Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
(Rule
14a-101)
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934
Filed by
the Registrant x
Check the
appropriate box:
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Preliminary
Proxy Statement
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¨
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Confidential,
For use of the Commission only (as permitted by Rule
14a-6(e)(2))
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x
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Definitive
Proxy Statement
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¨
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Definitive
Additional Materials
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¨
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Soliciting
Material Pursuant to
§240.14a-12
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GENEREX BIOTECHNOLOGY
CORPORATION
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(Name
of Registrant as Specified In Its
Charter)
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Payment
of Filing Fee (Check the appropriate box):
¨ Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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1) |
Title
of each class of securities to which transaction
applies:
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2)
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Aggregate
number of securities to which transaction
applies:
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3) Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
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4)
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Proposed
maximum aggregate value of
transaction:
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¨ Fee
paid previously with preliminary materials.
¨
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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1)
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Amount
Previously Paid:
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2)
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Form,
Schedule or Registration Statement
No.:
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GENEREX
BIOTECHNOLOGY CORPORATION
33
Harbour Square
Suite
202
Toronto,
Ontario, Canada M5J 2G2
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD WEDNESDAY, JULY 28, 2010
Dear
Stockholder:
You are
cordially invited to attend the annual meeting of stockholders of Generex
Biotechnology Corporation ("Generex") that will be held on Wednesday, July 28,
2010, at 10:00 a.m. (local time), at the Terrence Donnelly Centre for Cellular
and Biomolecular Research, University of Toronto, 160 College Street, Toronto,
Ontario, Canada M5S 3E1, for the following purposes, as set forth in the
accompanying Proxy Statement:
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1.
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To
elect five directors;
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2.
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To
approve an amendment to our Restated Certificate of Incorporation (i) to
effect a reverse stock split of our common stock, at an exchange ratio of
not less than 1-for-3 and not more than 1-for 10 at any time prior to
July 27, 2011 (the ratio and timing of which will be subject to
the discretion of the Board of Directors), and (ii) following the reverse
stock split, to maintain the authorized shares of common stock at
750,000,000;
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3.
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To
ratify the appointment of MSCM LLP as independent public accountants for
the fiscal year ending July 31, 2010;
and
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4.
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To
transact such other business as may properly come before the annual
meeting and any adjournment or postponement of the
meeting.
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The
Board of Directors has established the close of business on June 3, 2010, as the
record date for the determination of stockholders entitled to receive notice of,
and to vote at, the annual meeting and any adjournment or postponement
thereof. Generex is complying with the Securities and Exchange Commission
rule that permits us to furnish proxy materials to stockholders on the Internet.
This Notice and the Proxy Statement are being made available to stockholders on
or about June 18, 2010.
Your vote
is very important. Whether or not you plan to attend the 2010 annual meeting of
stockholders, we urge you to vote and to submit your proxy over the Internet, by
telephone or by mail. If you are a registered stockholder and attend the
meeting, you may revoke the proxy and vote your shares in person. If you hold
your shares through a bank or broker and want to vote your shares in person at
the meeting, please contact your bank or broker to obtain a legal
proxy.
By order
of the Board of Directors,
/s/
Rose C. Perri
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Rose
C. Perri
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Secretary
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June
15, 2010
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GENEREX
BIOTECHNOLOGY CORPORATION
33
Harbour Square
Suite
202
Toronto,
Ontario, Canada M5J 2G2
PROXY
STATEMENT
TABLE
OF CONTENTS
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Page
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About
the 2010 Annual Meeting and Voting at the Meeting
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1
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Election
of Directors (Item 1 on
the Proxy Card)
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5
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Independence
and Compensation of Directors
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7
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Director
Independence
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7
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Non-Employee
Directors’ Compensation
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7
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Corporate
Governance
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8
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Code
of Ethics
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8
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Board
Meetings and Committees; Annual Meeting Attendance
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8
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Audit
Committee
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8
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Compensation
Committee
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8
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Corporate
Governance and Nominating Committee
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9
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Director
Nominations by Stockholders
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9
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Communications
with Directors
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10
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Approval
of an Amendment to the Company’s Restated Certificate of Incorporation to
Effect a Reverse Stock Split and to Maintain the Authorized Shares of
Common Stock at 750,000,000 (Item 2 on the Proxy
Card)
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10
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Ratification
of the Appointment of MSCM LLP as Generex’s Independent Public Accountants
for Fiscal Year 2010 (Item 3 on the Proxy
Card)
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18
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Audit
Matters
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19
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Fees
Paid to Generex’s Independent Public Accountants
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19
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Policy
for Pre-Approval of Audit and Non-Audit Services
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19
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Report
of the Audit Committee
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20
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Compensation
Matters
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21
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Summary
Compensation Table
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21
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Compensation
Elements; Employment Agreements and Agreements Providing Payments Upon
Retirement, Termination or Change in Control for Named
Executives
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22
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Outstanding
Equity Awards at 2009 Fiscal Year-End
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23
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Nonqualified
Deferred Compensation
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25
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Other
Benefit Plans
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25
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Certain
Transactions
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26
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Change
in Control
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26
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Certain
Relationships and Related Transactions
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26
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Security
Ownership of Certain Beneficial Owners and Management
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27
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Section
16(a) Beneficial Ownership Reporting Compliance
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30
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Other
Information
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30
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Annual
Report.
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30
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Stockholder
Proposals for the Next Annual Meeting
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30
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Appendix
A – Form of Certificate of Amendment to Restated Certificate of
Incorporation
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A-1
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ABOUT
THE 2010 ANNUAL MEETING AND VOTING AT THE MEETING
Why
am I being furnished this Proxy Statement?
This
Proxy Statement is provided to the stockholders of Generex in connection with
the solicitation by our Board of Directors of proxies for use at our annual
meeting of stockholders to be held on Wednesday, July 28, 2010 at 10:00 a.m.
(local time), at the Terrence Donnelly Centre for Cellular and Biomolecular
Research, University of Toronto, 160 College Street, Toronto, Ontario, Canada
M5S 3E1, and any adjournments or postponements thereof. Generex’s Annual
Report to Stockholders in respect of the fiscal year of Generex ended July 31,
2009, including financial statements, accompanies this Notice and Proxy
Statement, but is not incorporated as part of the Proxy Statement and is not to
be regarded as part of the proxy solicitation material.
What
are the items of business for the meeting?
The items
of business for the meeting are as follows:
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To
elect five directors;
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To
approve an approve an amendment to our Restated Certificate of
Incorporation (i) ) to effect a reverse stock split of our common stock,
at an exchange ratio of not less than 1-for-3 and not more than 1-for 10
at any time prior to July 27, 2011 (the ratio and timing of
which will be subject to the discretion of the Board of Directors), and
(ii) following the reverse stock split, to maintain the authorized shares
of common stock at
750,000,000;
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To
ratify the appointment of MSCM LLP as our independent public accountants
for the fiscal year ending July 31, 2010;
and
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To
transact such other business as may properly come before the annual
meeting and any adjournment or postponement of the
meeting.
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Who
is soliciting my proxy?
The Board
of Directors is soliciting your proxy in order to provide you with an
opportunity to vote on all matters scheduled to come before the meeting whether
or not you attend the meeting in person.
What
if I received in the mail a Notice of Internet Availability of Proxy
Materials?
In
accordance with rules adopted by the Securities and Exchange Commission (SEC),
we are providing access to our proxy materials over the Internet. Accordingly,
on or about June 18, 2010, we are mailing to our record and beneficial
stockholders a Notice of Internet Availability of Proxy Materials, which
contains instructions on how to access our proxy materials over the Internet. If
you received a Notice of Internet Availability of Proxy Materials, you will not
receive a printed copy of our proxy materials by mail unless you request one.
You may request a printed copy of our proxy materials for the 2010 annual
meeting. If you wish to receive a printed copy of our proxy materials, you
should follow the instructions for requesting those materials included in the
Notice of Internet Availability of Proxy Materials.
Who
is entitled to vote?
You
may vote if you owned shares of Generex’s common stock as of the close of
business on June 3, 2010, which is the record date. You are entitled to
one vote for each share of common stock that you own. As of June 3, 2010,
we had 266,055,346 shares of common stock outstanding.
How
do I vote before the meeting?
If you
hold your shares in your own name as the stockholder of record, you have three
options for voting and submitting your proxy before the meeting:
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By Internet — We
encourage you to vote and submit your proxy over the Internet at www.proxyvote.com.
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By Telephone — You may
vote and submit your proxy by calling
1-800-690-6903.
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By
Mail — If you received your proxy materials by mail, you may vote by
completing, signing and returning the enclosed proxy
card.
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If you
are a street-name stockholder, you will receive instructions from your bank,
broker or other nominee describing how to vote your shares. Certain of
these institutions offer telephone and Internet voting. Please refer to
the information forwarded by your bank, broker or other nominee to see which
options are available to you.
What
shares can I vote?
You may
vote all shares owned by you as of the close of business on June 3, 2010, the
record date. These shares include:
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Shares
held directly in your name as the stockholder of record;
and
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Shares
of which you are the beneficial owner but not the stockholder of record
(typically referred to as being held in “street name”). These are
shares that are held for you through a broker, trustee or other nominee
such as a bank.
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May
I vote at the meeting?
You may
vote your shares at the meeting if you attend in person. If you hold your
shares through an account with a bank or broker, you must obtain a legal proxy
from the bank or broker in order to vote at the meeting. Even if you plan
to attend the meeting, we encourage you to vote your shares by proxy over the
Internet, by telephone or by mail.
How
do I revoke my proxy?
If you
are the stockholder of record, you may revoke your proxy at any time before the
polls close at the meeting. You may change you vote by:
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Signing
another proxy card with a later date and returning it to us prior to the
meeting.
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Voting
again over the Internet or by telephone prior to 11:59 p.m., Eastern Time,
on July 27, 2010.
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Voting
at the meeting if you are the stockholder of
record.
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Voting
at the meeting if you are the beneficial owner and have obtained a legal
proxy from your bank or
broker.
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Our
principal executive offices are located at 33 Harbour Square, Suite 202,
Toronto, Ontario, Canada M5J 2G2, and our telephone number is (416)
364-2551.
Will
my shares be voted if I do not return my proxy?
If your shares are registered
directly in your name, your shares will not be voted if you do not vote
over the Internet, vote by telephone, return your proxy, or vote by ballot at
the 2010 annual meeting.
If your shares are held in “street
name,” your brokerage firm, under certain circumstances, may vote your
shares for you if you do not return your proxy. Brokerage firms have authority
to vote customers’ unvoted shares on some routine matters. If you do not give a
proxy to your brokerage firm to vote your shares, your brokerage firm may either
vote your shares on routine matters, or leave your shares unvoted. Item 3, to ratify the
appointment of MSCM LLP as our independent public accountants, is considered a
routine matter. Item 1,
to elect five directors, and Item 2, to approve the
reverse stock split, are considered non-routine matters. Your brokerage firm
cannot vote your shares with respect to Item 1 or Item 2 unless they receive
your voting instructions. We encourage you to provide voting instructions to
your brokerage firm by giving your proxy. This ensures your shares will be voted
at the 2010 annual meeting according to your instructions. You should receive
directions from your brokerage firm about how to submit your proxy to them at
the time you receive this proxy statement.
What
if I return my proxy card but do not provide voting instructions?
Proxy
cards that are signed and returned but do not contain instructions will be voted
as follows:
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FOR the election of the
nominees for director named on page 5 of this proxy
statement.
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FOR the approval of an
amendment to our Restated Certificate of Incorporation (i) to effect a
reverse stock split of our common stock, at an exchange ratio of not less
than 1-for-3 and not more than 1-for 10 at any time prior to
July 27, 2011 (the ratio and timing of which will be subject to
the discretion of the Board of Directors), and (ii) following the reverse
stock split, to maintain the authorized shares of common stock at
750,000,000.
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FOR the ratification of
the appointment of MSCM LLP as our independent public accountants for the
fiscal year ending
July 31, 2010.
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In
accordance with the best judgment of the individuals named as proxies on
the proxy card on any other matters properly brought before the
meeting.
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What
does it mean if I receive more than one Notice of Internet Availability of Proxy
Materials or one proxy card?
Your
shares are probably registered in more than one account. You should vote
all of your shares. We encourage you to consolidate all of your accounts
by registering them in the same name, social security number and address.
For assistance consolidating accounts where you are the stockholder of record,
you may contact our transfer agent, StockTrans, at 1-800-733-1121.
May
stockholders ask questions at the meeting?
Yes.
Generex representatives will answer stockholders’ questions of general interest
at the end of the meeting.
How
many votes must be present to hold the meeting?
In order
for us to conduct our meeting, a majority of our outstanding shares of common
stock as of June 3, 2010 must be present in person or by proxy at the
meeting. This is referred to as a quorum. Your shares are counted as
present at the meeting if you attend the meeting and vote in person or if you
properly return a proxy by mail. Shares voted by banks or brokers on
behalf of beneficial owners are also counted as present at the meeting. In
addition, abstentions and broker non-votes will be counted for purposes of
establishing a quorum with respect to any matter properly brought before the
meeting. Broker non-votes occur on a matter when a bank or broker is not
permitted under applicable rules and regulations to vote on a matter without
instruction from the beneficial owner of the underlying shares and no
instruction has been given.
If a
quorum is not present, we expect that the 2010 annual meeting will be adjourned
until we obtain a quorum.
How
many votes are needed for each proposal and how are the votes
counted?
Election of Directors (Item 1 on the
Proxy Card). The five nominees for director receiving the highest
number of votes FOR election will be elected as directors. This is called a
plurality. Abstentions are not counted for purposes of electing directors.
Starting this year, if your shares are held by your broker in “street name” and
if you do not vote your shares, or instruct your broker how to vote with respect
to this item, your broker may not vote with respect to this proposal and those
votes will be counted as “broker non-votes.” If the broker does not vote your
unvoted shares, there will be no effect on the vote because these “broker
non-votes” are not considered to be voting on the matter. You may vote FOR all
of the nominees, WITHHOLD your vote from all of the nominees or WITHHOLD your
vote from any one of the nominees. Votes that are withheld will not be included
in the vote tally for the election of directors and will have no effect on the
results of the vote.
Approval of an Amendment of the
Restated Certificate of Incorporation to Effect a Reverse Stock Split and to
Maintain the Authorized Shares of Common Stock at 750,000,000 (Item 2 on the
Proxy Card). To approve the reverse stock split proposal,
stockholders holding a majority of the outstanding shares of Generex common
stock must vote FOR the proposal. If your shares are held by your broker in
“street name” and if you do not vote your shares, your brokerage firm may not
have the authority to vote your unvoted shares held by the firm on this
proposal, in which case this will have the same effect as a vote AGAINST the
proposal. If you vote to ABSTAIN on this proposal, your shares will not be voted
in favor of the proposal, will not be counted as votes cast or shares voting on
the proposal, and will have the same effect as a vote AGAINST the
proposal.
Ratification of the Appointment of
MSCM LLP as Generex’s Independent Public Accountants for Fiscal Year 2010 (Item
3 on the Proxy Card). To ratify the appointment of MSCM LLP as our
independent public accounts for fiscal year 2010, a majority of the votes cast
by stockholders present in person or by proxy and voting on the matter must vote
FOR the proposal. If your shares are held by your broker in “street name,”
and if you do not vote your shares, your brokerage firm has authority to vote
your unvoted shares held by the firm on this proposal. If the broker does
not vote your unvoted shares, there will be no effect on the vote because these
“broker non-votes” are not considered to be voting on the matter. If you vote to
ABSTAIN on this proposal, your shares will not be voted in favor of the
proposal, will not be counted as votes cast or shares voting on the proposal,
and will have no effect on the vote.
Any other
proposal that might properly come before the meeting will require the
affirmative vote of the holders of a majority of the shares of commons stock
present in person or by proxy at the meeting in order to be approved. On
any such proposal, abstentions will be counted as negative votes in the
tabulation of the votes cast by stockholders. Broker non-votes will not be
counted in the tabulation of the votes cast on the proposal but will be counted
for purposes of establishing a quorum.
How
will proxies be voted on other items or matters that properly come before the
meeting?
If any
other items or matters properly come before the meeting, the proxies received
will be voted on those items or matters in accordance with the discretion of the
proxy holders.
Is
Generex aware of any other item of business that will be presented at the
meeting?
The Board
of Directors does not intend to present, and does not have any reason to believe
that others will present, any item of business at the annual meeting other than
those specifically set forth in the notice of the meeting. However, if other
matters are properly brought before the meeting, the persons named on the
enclosed proxy will have discretionary authority to vote all proxies in
accordance with their best judgment.
Where
do I find the voting results of the 2010 annual meeting?
We will
report the voting results in a Form 8-K within four business days after the end
of the 2010 annual meeting.
Who
bears the costs of soliciting these proxies?
We
have hired Morrow & Co., LLC to assist us in soliciting proxies. We will pay
Morrow’s fees, which we expect to be approximately $5,500, plus all expenses for
such services. In addition, our directors, officers, and employees may
solicit proxies by telephone, e-mail, and in person, without additional
compensation. Upon request, we will also reimburse brokerage houses and
other custodians, nominees, and fiduciaries for their reasonable out-of-pocket
expenses for distributing proxy materials to stockholders. All costs and
expenses of any solicitation, including the cost of preparing this proxy
statement and posting it on the Internet and mailing the Notice of Internet
Availability of Proxy Materials, will be borne by Generex.
Will
the directors be in attendance at the meeting?
We
currently expect all of our director nominees to be in attendance at the 2010
annual meeting of stockholders. It has been customary for our directors to
attend our annual meetings of stockholders. All of the director nominees
attended the 2009 annual meeting of stockholders.
ELECTION
OF DIRECTORS
(Item 1 on the Proxy
Card)
How
many directors will be elected at the meeting?
Five
directors are to be elected at the annual meeting of stockholders.
What
is the term of office for each director elected at the meeting?
All
directors will be elected to hold office until the next annual meeting of
stockholders following election and until their successors are duly elected and
qualified.
Who
are the nominees for election as directors?
The
persons named below have been approved by our full Board of Directors as
nominees for election as directors. All nominees currently serve as our
directors
Name
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Age
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Position Held with Generex
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Director Since
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Anna
E. Gluskin
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58
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Chairperson,
President, Chief Executive Officer and Director
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September
1997
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Rose
C. Perri
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42
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Chief
Operating Officer, Chief Financial Officer, Treasurer, Secretary and
Director
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September
1997
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John
P. Barratt
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65
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Independent
Director
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March
2003
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Brian
T. McGee
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49
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Independent
Director
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March
2004
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Nola
E. Masterson
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62
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Independent
Director
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May
2007
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Biographical
Information of Nominees for Directors:
Anna E.
Gluskin: Director since September 1997. Ms. Gluskin has served as the
President and Chief Executive Officer of Generex since October 1997 and the
Chairperson of the Generex Board of Directors since November 2002. She held
comparable positions with Generex Pharmaceuticals Inc. from its formation in
1995 until its acquisition by Generex in October 1997. Ms. Gluskin is one of the
founders of Generex.
Rose C.
Perri. Director since September 1997. Ms. Perri has served as Treasurer
and Secretary of Generex since October 1997 and as Chief Operating Officer since
August 1998. She served as Acting Chief Financial Officer from November 2002
until April 2005 when she was appointed Chief Financial Officer. She was an
officer of Generex Pharmaceuticals Inc. from its formation in 1995 until its
acquisition by Generex in October 1997. Along with Ms. Gluskin, Ms. Perri is one
of the founders of Generex.
John P.
Barratt. Independent Director since March 2003. Mr. Barratt is currently
the Chairman of the Generex Compensation Committee and a member of the Generex
Audit Committee and Corporate Governance and Nominating Committee. Mr. Barratt
served as the Board Liaison Officer of The Caldwell Partners International from
July 2006 until May 2009. From April 2005 to July 2006, Mr. Barratt served as
Chief Operating Officer of The Caldwell Partners International. The Caldwell
Partners International is a Canadian-based human capital professional services
company. Mr. Barratt from January 2002 until February 2007 served as the
court-appointed Responsible Person and Liquidation Manager of Beyond.com
Corporation, Debtor-in-Possession, a U.S. Chapter 11 Bankruptcy case, in which
capacity Mr. Barratt reported to the bankruptcy court and to the U.S. Trustee’s
Office. From September 2000 to January 2002, Mr. Barratt acted in the capacity
of Chief Operating Officer of Beyond.com Corporation, an electronic fulfillment
provider. Between 1996 and 2000, Mr. Barratt was partner-in-residence with the
Quorum Group of Companies, an international investment partnership specializing
in providing debt and/or equity capital coupled with strategic direction to
emerging technology companies. Between 1988 and 1995, Mr. Barratt held a number
of positions with Coscan Development Corporation, a real estate development
company, the last position of which was Executive Vice-President and Chief
Operating Officer. Mr. Barratt currently serves on a number of Boards of
Directors, including Brookfield Investments Corporation and BAM Split
Corporation, and is a member of the Board of Directors and Chairman of the Risk
Policy Committee of the Bank of China (Canada). Mr. Barratt also serves as
Chairman of the Independent Review Committees of BAM Split Corp. and Brookfield
Investment Funds Management Inc. In addition, Mr. Barratt is a member of the
Advisory Board and also served as interim Chief Financial Officer of Crystal
Fountains Inc from September 2008 to May 2009.
Brian T.
McGee. Independent Director since March 2004. Mr. McGee is currently the
Chairman of the Generex Audit Committee and a member of the Generex Compensation
Committee and Corporate Governance and Nominating Committee. Mr. McGee has been
a partner of Zeifmans LLP ("Zeifmans") since 1995. Mr. McGee began working at
Zeifmans shortly after receiving a B.A. degree in Commerce from the University
of Toronto in 1985. Zeifmans is a Chartered Accounting firm based in Toronto,
Ontario. A significant element of Zeifmans’ business is public corporation
accounting and auditing. Mr. McGee is a Chartered Accountant. Throughout his
career, Mr. McGee has focused on, among other areas, public corporation
accounting and auditing. In 1992, Mr. McGee completed courses focused on
International Taxation and Corporation Reorganizations at the Canadian Institute
of Chartered Accountants and in 2003, Mr. McGee completed corporate governance
courses on compensation and audit committees at Harvard Business School. In
April 2004 Mr. McGee received his CPA designation from The American Institute of
Certified Public Accountants.
Nola E.
Masterson. Independent Director since May 2007. Ms. Masterson is
currently a Chairperson of the Generex Corporate Governance and Nominating
Committee and a member of the Generex Audit Committee and Compensation
Committee. Since 1982, she has been the chief executive officer of Science
Futures Inc., an investment and advisory firm. Ms. Masterson is currently
Managing Member and General Partner of Science Futures LLC, I, II and III, which
are venture capital funds invested in life science funds and companies. She also
serves as a Senior Advisor to TVM Techno Venture Management, an international
venture capital company, and as Chairperson of the Board of Directors of Repros
Therapeutics Inc., a development stage biopharmaceutical company formerly known
as Zonagen, Inc. (currently trading on The NASDAQ Global Market under the symbol
“RPRX”). Ms. Masterson was the first biotechnology analyst on Wall Street,
working with Drexel Burnham Lambert and Merrill Lynch, and is a co-founder of
Sequenom, Inc., a genetic analysis company located in San Diego and Hamburg,
Germany. She also started the BioTech Meeting in Laguna Nigel, CA, the annual
Biopharmaceutical Conference in Europe, and was nominated to the 100 Irish
American Business List in 2003. Ms. Masterson began her career at Ames Company,
a division of Bayer, and spent eight years at Millipore Corporation in sales and
sales management. Ms. Masterson has 31 years of experience in the life science
industry. She received her Masters in Biological Sciences from George Washington
University, and continued Ph.D. work at the University of Florida.
Are
there any family relationships among Generex’s officers and
directors?
There are
no family relationships among our officers and directors.
What
if a nominee is unable or unwilling to serve?
If, for
any reason, any of the nominees shall become unavailable for election, the
shares represented by proxies may be voted for any substitutes proposed by the
Corporate Governance and Nominating Committee and approved by the Board of
Directors. At this time, the Board of Directors knows of no reason why any
of the nominees might be unavailable to serve.
What
if I return my proxy card but do not provide voting instructions with respect to
the election of directors?
The
individuals named in the accompanying proxy intend to vote all proxies received
by them for the nominees listed above unless otherwise instructed.
What
if I do not wish to vote for a particular nominee?
If you do
not wish your shares to be voted for any of the nominees, you may so
indicate.
How
does the Board of Directors recommend that I vote?
We
recommend that you vote For the election of each of
the five nominees named in this proxy statement to the Board of
Directors.
INDEPENDENCE
AND COMPENSATION OF DIRECTORS
Director
Independence
The Board
of Directors currently consists of five members, three of whom are “independent”
as defined under applicable rules of the SEC and The NASDAQ Stock Market LLC.
The three independent members of the Board of Directors are John P. Barratt,
Brian T. McGee and Nola E. Masterson.
For a
director to be considered independent, the Board must determine that the
director has no relationship which, in the opinion of the Board, would interfere
with the exercise of independent judgment in carrying out the responsibilities
of a director.
All
members of the Audit Committee, the Compensation Committee and the Corporate
Governance and Nominating Committee must be independent directors under NASDAQ
rules. Members of the Audit Committee also must satisfy a separate SEC
independence requirement, which provides that they may not accept directly or
indirectly any consulting, advisory or other compensatory fee from the Company
or any of its subsidiaries other than their directors’ compensation. In
addition, under SEC rules, an Audit Committee member who is an affiliate of the
issuer (other than through service as a director) cannot be deemed to be
independent.
Non-Employee
Directors' Compensation
In fiscal
2009 our policy for compensation of non-employee directors was as
follows.
|
·
|
Nonemployee directors receive an
annual cash base retainer. Each nonemployee director serving on the Board
of Directors as of May 27, 2008 is entitled to an annual cash retainer of
$40,000. Each new nonemployee directors will initially receive a cash
retainer of $20,000, increasing to $30,000 for the second year, and
$40,000 thereafter.
|
|
·
|
At the discretion of the full
Board of Directors, nonemployee directors may receive stock options to
purchase shares of our common stock or shares of restricted stock each
fiscal year. The number and terms of such options or shares is within the
discretion of the full Board of
Directors.
|
|
·
|
Nonemployee
directors serving on committees of the Board of Directors receive
additional cash compensation as
follows:
|
Committee
|
|
Chairperson
|
|
|
Member
|
|
Audit
Committee
|
|
$ |
15,000 |
|
|
$ |
5,000 |
|
Compensation
Committee
|
|
$ |
15,000 |
|
|
$ |
5,000 |
|
Governance
& Nominating Committee
|
|
$ |
5,000 |
|
|
$ |
2,000 |
|
Directors
who are officers or employees of Generex do not receive separate consideration
for their service on the Board of Directors. The compensation received by Ms.
Gluskin and Ms. Perri as employees of Generex is show in the Summary
Compensation Table above.
Fiscal
Year 2009 Director Compensation Table
Name
|
|
Fees
Earned
or Paid
in Cash
|
|
|
Stock
Awards
(1)
|
|
|
Option
Awards
(2)
|
|
|
All Other
Compensation
|
|
|
Total
|
|
John
P. Barratt
|
|
$ |
62,000 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
62,000 |
|
Nola
E. Masterson
|
|
$ |
55,000 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
55,000 |
|
Brian
T. McGee
|
|
$ |
62,000 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
62,000 |
|
(1)
|
As
of July 31, 2008, the aggregate number of shares underlying stock awards
granted to each non-employee director was as follows: Mr. Barratt
(150,000), Ms. Masterson (100,000) and Mr. McGee
(150,000).
|
(2)
|
As
of July 31, 2009, the aggregate number of stock options held by each
non-employee director was as follows: Mr. Barratt (275,714) and Mr. McGee
(205,714).
|
CORPORATE
GOVERNANCE
Code
of Ethics
Generex
has adopted a code of ethics that applies to its directors and the following
executive officers: the President, Chief Executive Officer, Chief Financial
Officer (principal financial/accounting officer), Chief Operating Officer, any
Vice-President, Controller, Secretary, Treasurer and any other personnel
performing similar functions. We also expect any consultants or advisors whom we
retain to abide by this code of ethics. The Generex Code of Ethics has been
posted on Generex's Internet web site -
www.generex.com.
Board
Meetings and Committees; Annual Meeting Attendance
The
business affairs of Generex are managed under the direction of our Board of
Directors. During the fiscal year ended July 31, 2009, our Board of
Directors held five meetings and took action by unanimous consent six
times. During the fiscal year ended July 31, 2009, no director attended
fewer than 75% of the Board of Directors meetings that were held.
The Board
of Directors has established a standing Audit Committee, Compensation Committee
and Corporate Governance and Nominating Committee.
Audit
Committee
The Audit
Committee, which was established on March 1, 2000 in accordance with Section
3(a)(58)(A) of the Securities Exchange Act, met four times during the fiscal
year ended July 31, 2009. During fiscal 2009, the Audit Committee
consisted of Brian T. McGee (Chairperson), John P. Barratt and Nola E.
Masterson, each of whom satisfied the independence requirements under NASDAQ
Listing Rules for audit committee members. Members of the Audit Committee
also satisfied the separate SEC independence requirement, which provides that
members of the Audit Committee may not accept directly or indirectly any
consulting, advisory or other compensatory fee from Generex or any of its
subsidiaries other than their directors’ compensation. All of the members of the
Audit Committee attended all of the meetings that they were eligible to attend
during fiscal 2009.
The Audit
Committee reviews and discusses with Generex's management and its independent
auditors the audited and unaudited financial statements contained in Generex's
Annual Report on Form 10-K and Quarterly Reports on Form 10-Q,
respectively. Although Generex's management has the primary responsibility
for the financial statements and the reporting process, including the system of
internal controls and disclosure controls and procedures, the Audit Committee
reviews and discusses the reporting process with management on a regular
basis. The Audit Committee also discusses with the independent auditors
their judgments as to the quality of Generex's accounting principles, the
reasonableness of significant judgments reflected in the financial statements
and the clarity of disclosures in the financial statements, as well as such
other matters as are required to be discussed with the Audit Committee under
generally accepted auditing standards. The Audit Committee has adopted a
written charter, which was amended on October 30, 2003. A copy of the
Audit Committee charter is reproduced as Appendix A to our 2008 Proxy
Statement.
Compensation
Committee
The
Compensation Committee was formed on July 30, 2001 and met three times during
the fiscal year ended July 31, 2009. During the fiscal year
ending July 31, 2009, the Compensation Committee consisted of three non-employee
directors: John P. Barratt (Chairperson), Nola E. Masterson and Brian T.
McGee. In fiscal 2009, all of the members of the Compensation Committee
attended all of the meetings of the Compensation Committee that they were
eligible to attend.
The
Compensation Committee is responsible for reviewing and recommending to the
Board of Directors compensation programs and policies for our President and
Chief Executive Officer, our Chief Operating Officer, Chief Financial Officer,
Treasurer and Secretary, and our Executive Vice President and General Counsel,
who comprise Generex’s executive management team. The Compensation
Committee has the authority to use a compensation consultant to assist the
Compensation Committee in the evaluation of the compensation of our executive
management team and other executive officers and to consult with other outside
advisors to assist in its duties to the Company. The Compensation
Committee does not have a written charter.
In fiscal
2009, the Compensation Committee did not engage any compensation consultants in
its determination of executive compensation. In fiscal 2009, the
Compensation Committee reviewed, among other information, publicly available
executive compensation information for Generex’s peer companies and executive
compensation information as reported in biotechnology and pharmaceutical
industry publications. We do not typically use compensation consultants to
assist us with director compensation.
The
Compensation Committee does not delegate its authority. The President and
Chief Executive Officer typically presents the Compensation Committee with her
recommendations regarding salaries, bonuses and long term incentives for members
of the executive management team and support for such recommendations The
compensation of our Vice President, Medical Affairs, who has no involvement in
the day-to-day operations of Generex, is set forth in his employment agreement
with Generex, including his annual equity award in the form of a warrant to
purchase shares of Generex common stock. From time to time, the President and
Chief Executive Officer may make recommendations to the Compensation Committee
or to the full Board of Directors with respect to the compensation of our Vice
President, Medical Affairs. Members of our senior management team and
other executive officers do not attend meetings of the Compensation
Committee.
Corporate
Governance and Nominating Committee
The Board
of Directors formed the Corporate Governance and Nominating Committee on May 29,
2007 and appointed Messrs. Barratt and McGee and Ms. Masterson as members.
Ms. Masterson currently serves as the chairperson of this committee. The
Corporate Governance and Nominating Committee did not meet during fiscal
2009. The Corporate Governance and Nominating Committee has a charter,
which was adopted on May 29, 2007. A copy of the charter is attached as
Appendix B to our 2008
proxy statement.
The
Corporate Governance and Nominating Committee will consider candidates whom the
stockholders of Generex put forward. The name, together with the business
experience and other relevant background information of a candidate, should be
sent to Mark Fletcher, Executive Vice-President and General Counsel of Generex,
at Generex’s principal executive offices located at 33 Harbour Square, Suite
202, Toronto, Ontario, Canada M5J 2G2. Mr. Fletcher will then submit such
information to the chairperson of the Corporate Governance and Nominating
Committee for the Committee’s review and consideration. The process for
determining whether to nominate a director candidate put forth by a stockholder
is the same as that used for reviewing candidates submitted by directors.
After full consideration, the stockholder proponent will be notified of the
decision of the committee.
The
Corporate Governance and Nominating Committee will seek to identify director
candidates with the highest personal and professional ethics, integrity and
value and diverse experience in business, finance, pharmaceutical and regulatory
matters, and other matters relevant to a company such as Generex. The
Corporate Governance and Nominating Committee is expected to develop a formal
list of qualifications for members of the Board of Directors as mandated by its
charter. Additionally, the Corporate Governance and Nominating Committees
will require that director nominees have sufficient time to devote to the
company’s affairs.
In
accordance with our bylaws, the Board of Directors is permitted to increase the
number of directors and to fill the vacancies created by the increase until the
next annual meeting of stockholders.
To date,
the Corporate Governance and Nominating Committee has not engaged any third
party to assist it in identifying director candidates.
Director
Nominations by Stockholders
Any
stockholder entitled to vote for the election of directors may nominate a person
for election to the Board of Directors at the annual meeting. Any stockholder
wishing to do so must submit a notice of such nomination in writing to the
Secretary of Generex at Generex's principal offices located at 33 Harbour
Square, Suite 202, Toronto, Ontario, Canada M5J 2G2 not less than 60 nor more
than 90 days prior to the annual meeting. In the event that less than 70
days notice or prior disclosure of the date of the meeting is given or made to
stockholders, notice of nomination by a stockholder to be timely must be
received not later than the close of business on the 10th day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. The stockholder's notice of nomination must provide
information about both the nominee and the nominating stockholder, as required
by Generex's bylaws. A copy of these bylaw requirements will be provided upon
request in writing to Mark Fletcher, Executive Vice-President and General
Counsel of Generex, at Generex’s principal executive offices.
Communications
with Directors
Interested
parties who wish to make any concerns known to non-management directors may
submit communications at any time in writing to: Mark Fletcher, Executive
Vice-President and General Counsel, Generex Biotechnology Corporation, 33
Harbour Square, Suite 202, Toronto, Ontario, Canada M5J 2G2. The General
Counsel will determine, in his good faith judgment, which communications will be
relayed to the non-management directors.
APPROVAL
OF AN AMENDMENT TO THE COMPANY’S RESTATED CERTIFICATE OF
INCORPORATION
TO
EFFECT A REVERSE STOCK SPLIT AND
TO
MAINTAIN THE AUTHORIZED SHARES OF COMMON STOCK AT 750,000,000
(Item
2 on the Proxy Card)
What
am I voting on?
You are
voting on a proposal to approve an amendment to our Restated Certificate of
Incorporation (i) to effect a reverse stock split of our common stock at an
exchange ratio of not less than 1-for-3 and not more than 1-for 10 at any time
prior to July 27, 2011 (the ratio and timing of which will be subject
to the discretion of the Board of Directors) (the “Reverse Stock Split”), and
(ii) following the Reverse Stock Split, to maintain the current authorized
number of shares of our common stock at 750,000,000 (collectively, the
“Amendment”), without further approval of the stockholders, upon a determination
by the Board of Directors that such Amendment is in the best interests of
Generex and its stockholders.
The Board
of Directors has unanimously authorized the proposed Amendment to our Restated
Certificate of Incorporation to effect the Reverse Stock Split and to maintain
the authorized shares of common stock at 750 million. The form of the
proposed Amendment is attached to this proxy statement as Appendix A
and is incorporated herein by reference.
Why
is the Reverse Stock Split necessary?
The
Board of Director’s primary objective in proposing the Reverse Stock Split is to
raise the per share trading price of our common stock. The Board of Directors
believes that by increasing the market price per share of our common stock, we
may regain and maintain compliance with the NASDAQ listing
requirements.
On July
23, 2008, we received notice from The NASDAQ Stock Market that we were not
compliance with Marketplace Rule 4310(c)(4) (now known as Listing Rule
5550(a)(2)), which requires us to have a minimum bid price per share of at least
$1.00 for thirty (30) consecutive business days. In accordance with this
Rule, we had 180 calendar days, or until January 20, 2009, subject to extension,
to regain compliance with this Rule. Our initial compliance period of 180
calendar days ending on January 20, 2009 was subsequently extended until
November 9, 2009 due to NASDAQ’s temporary suspension of the minimum bid price
requirement from October 16, 2008 until August 3, 2009.
On
November 9, 2009, we received a second letter from NASDAQ indicating that we had
not regained compliance with the $1.00 minimum bid price required for continued
listing under Listing Rule 5550(a)(2) within the grace period previously allowed
by NASDAQ following the initial notice of noncompliance on July 23, 2008.
Pursuant to Listing Rule 5810(c)(3)(A), NASDAQ gave us an additional 180
calendar day compliance period because we met all other initial inclusion
criteria (other than the minimum bid price requirement) as of January 6,
2009. We had 180 calendar days, or until May 5, 2010, to regain
compliance with the rule. NASDAQ noted that if we failed to regain
compliance with this rule during the grace period, our common stock would be
subject to immediate delisting. To regain compliance with the minimum bid
price requirement, the closing bid price of our common stock had to close at
$1.00 per share or more for a minimum of ten consecutive business
days.
On May
5, 2010, our stock closed at $0.3999. On May 6, 2010, we received a
delisting determination letter from the staff of The Nasdaq Stock Market due to
our failure to regain compliance with The Nasdaq Capital Market's minimum bid
price requirement for continued listing. We are appealing the Nasdaq
Staff's determination. The hearing occurred on June 10, 2010,
and we are awaiting the determination of the Hearings Panel. The appeal to
the Hearings Panel will stay the suspension of our securities and the filing of
a Form 25-NSE with the SEC. The filing of a Form 25-NSE would remove our
stock from listing and registration on The Nasdaq Stock Market.
The
delisting determination letter states that historically, the Hearings Panel has
generally viewed a reverse stock split in 30 to 60 days as the only definitive
plan acceptable to resolve a bid price deficiency, but that the Hearings Panel
could allow up to 180 calendar days from the date of the Staff determination to
accomplish a split if the Hearings Panel deems it appropriate. The Board
of Directors approved the Reverse Stock Split proposal in part as a potential
means of increasing the share price of our common stock in anticipation of our
receipt of a delisting notice from NASDAQ.
There
can be no assurance that the Hearing Panel will grant our request for continued
listing. If we are not successful in such an appeal, our stock would be
delisted from the NASDAQ Capital Market and likely trade on NASDAQ’s
over-the-counter bulletin board, assuming we meet the requisite
criteria.
.
The
Reverse Stock Split is intended to raise the bid price of the common stock to
satisfy the $1.00 minimum bid price requirement. However, there can be no
assurance that the Reverse Stock Split, if implemented, will have the desired
effect of sufficiently raising the common stock price.
What
will happen if Generex’s common stock is delisted from NASDAQ?
If our
common stock is delisted, the stock would then be eligible for quotation on the
Over-The-Counter (OTC) Bulletin Board maintained by NASDAQ, on another
over-the-counter quotation system or on the “pink sheets.”
If our
common stock is delisted from NASDAQ and our public float falls below $75
million, we may become ineligible to use the SEC Form S-3 to register additional
shares of common stock for issuance by us in certain circumstances and to
register additional shares of common stock for resale by others. This will
make it more difficult and more expensive for us to register any additional
securities, which may adversely affect our ability to raise additional
funds.
In
addition, if our common stock is delisted from NASDAQ, the liquidity and
marketability of shares of our common stock would decrease. As a result, an
investor might find it more difficult to dispose of, or to obtain accurate
quotations as to the market value of our common stock. If our common stock were
to be delisted and the trading price of the common stock were to continue to be
less than $1.00 per share, trading in our common stock would also be subject to
certain rules under the 1934 Act which require additional disclosure by
broker-dealers in connection with any trades involving a stock defined as a
“penny stock” involving persons other than established customers and accredited
investors. The additional burdens imposed upon broker-dealers might discourage
broker-dealers from effecting transactions in our common stock, which might
further affect the liquidity of our common stock. For these reasons, we believe
that current and prospective investors will view an investment in our common
stock more favorably if the shares remain listed on The NASDAQ Capital Market
than if our common stock trades on the OTC Bulletin Board or similar trading
systems.
Why
is the Board requesting discretion to determine the reverse split ratio and to
effect the Reverse Stock Split?
The Board
of Directors believes that the availability of a range of reverse split ratios
will provide the Board with the flexibility to implement the Reverse Stock Split
in a manner designed to maximize the anticipated benefits for Generex and its
stockholders. In determining which reverse stock split ratio to implement,
if any, following the receipt of stockholder approval, the Board of Directors
may consider, among other things, factors such as:
|
·
|
the
historical trading price and trading volume of the common
stock;
|
|
·
|
the
then prevailing trading price and trading volume of the common stock and
the anticipated impact of the Reverse Stock Split on the trading market
for the common stock;
|
|
·
|
which
reverse split ratio would result in the greatest overall reduction in
Generex’s administrative costs; and
|
|
·
|
prevailing
general market and economic
conditions.
|
To
effect the Reverse Stock Split, the Board would set the timing for such a split
and select the specific ratio from the range of ratios described in this proxy
statement. No further action on the part of stockholders will be required to
either implement or abandon the Reverse Stock Split. If the proposal is approved
by stockholders, and the Board determines to implement any of the reverse stock
split ratios, we would communicate to the public, prior to the effective date of
the Reverse Stock Split, additional details regarding the Reverse Stock Split,
including the specific ratio the Board selects.
Although
the Board of Directors requests stockholder approval of the proposed amendment
to the Restated Certificate of Incorporation, the Board reserves the authority
to decide, in its discretion, to abandon or delay the Reverse Stock Split after
such vote. For example, the Board may decide in its discretion to abandon
or delay the Reverse Stock Split if Generex were to gain compliance with the
NASDAQ Capital Market continued listing requirements at the time of the annual
meeting or soon thereafter. If the Board fails to effect the Reverse Stock
Split within twelve months after the annual meeting, stockholder approval again
would be required prior to implementing any subsequent reverse stock
split.
What
are the anticipated effects of the Reverse Stock Split on existing stockholders
of Generex?
The
number of shares of common stock held by each stockholder will be reduced as a
result of the Reverse Stock Split. For example, if the Board of Directors
selects a reverse split ratio of 1-to-5, a stockholder holding 5,000 shares of
common stock before the Reverse Stock Split would hold 1,000 shares of common
stock immediately after the Reverse Stock Split. Any outstanding options
or warrants would also be adjusted by the same reverse split ratio. We
will not issue fractional shares of common stock. Where a stockholder
would have been entitled to a fractional share, we will round up fractional
shares to the nearest whole share. Each stockholder's proportionate ownership of
outstanding shares of common stock would remain the same, except for minor
differences resulting from the rounding up of fractional shares. A reverse
stock split may leave certain stockholders with one or more "odd lots," which
are stock holdings in amounts of fewer than 100 shares of common stock.
These odd lots may be more difficult to sell than shares of common stock
in even multiples of 100. Stockholders selling odd lots created by the
Reverse Stock Split may incur increased brokerage commissions in selling such
shares.
Except
for de minimis adjustments that may result from the treatment of fractional
shares as described above, the Reverse Stock Split will not have any dilutive
effect on our stockholders since each stockholder would hold the same percentage
of our common stock outstanding immediately following the Reverse Stock Split as
such stockholder held immediately prior to the Reverse Stock Split. The relative
voting and other rights that accompany the shares of common stock would not be
affected by the Reverse Stock Split.
Although
the Reverse Stock Split will not have any dilutive effect on our stockholders,
the proportion of shares owned by our stockholders relative to the number of
shares authorized for issuance will decrease because the Amendment maintains the
current authorized number of shares of common stock at 750 million.
The
following table shows the number of shares that would be (a) issued and
outstanding, (b) authorized and reserved for issuance upon the exercise of
outstanding capital stock options and warrants (assuming vesting of all
nonvested shares underlying such options and warrants), and (c) authorized
and unreserved for issuance, in each case upon the implementation of the Reverse
Stock Split at a ratio of 1-for-3 and a ratio of 1-for-10 based on our
capitalization as of the record date of June 3, 2010.
|
|
Shares
Issued and
Outstanding
|
|
|
Shares
Authorized
and
Reserved for
Issuance(1)
|
|
|
Shares
Authorized
and
Unreserved
|
|
|
Total
Authorized
|
|
Pre-Split
|
|
|
266,055,346 |
|
|
|
44,828,883 |
|
|
|
439,115,771 |
|
|
|
750,000,000 |
|
If
1-for -3 stock split enacted
|
|
|
88,685,115 |
|
|
|
14,942,961 |
|
|
|
646,371,924 |
|
|
|
750,000,000 |
|
If
1-for -10 stock split enacted
|
|
|
26,605,535 |
|
|
|
4,482,888 |
|
|
|
718,911,577 |
|
|
|
750,000,000 |
|
(1)
|
Shares which are authorized
and reserved for issuance upon the exercise of outstanding options and
warrants, assuming the vesting of all nonvested shares underlying such
options and warrants.
|
The
additional authorized but unissued shares of common stock that would become
available if the Reverse Stock Split is effected may be used for various
purposes, including, without limitation, raising capital, providing equity
incentives to employees, officers or directors, effecting stock dividends, and
establishing strategic relationships with other companies and expanding
Generex’s business or product lines through the acquisition of other businesses
or products. In order to support our projected need and timetable for additional
equity capital and to provide flexibility to raise the capital necessary to
finance ongoing operations, the Board of Directors believes the number of shares
of common stock we are authorized to issue should be maintained at 750
million.
At the
present time, we do not currently have any plans to issue any of the authorized
but unissued shares of common stock that would become available for issuance if
the Reverse Stock Split of our outstanding shares of common stock is approved by
our stockholders and subsequently effected by the Board of Directors. Even
if the Reverse Stock Split is effected, we will be required to obtain
stockholder approval prior to the issuance of authorized stock, in certain
circumstances, including if (1) the issuance would result in a change of control
of Generex, (2) shares are issued to purchase the stock or assets of another
company if a director, officer or substantial stockholder of Generex had a 5% or
greater interest (or such persons had collectively a 10% or greater interest) in
the company or assets to be acquired, or in consideration to be paid in the
transaction, and certain other conditions applied, (3) greater than 20% of
Generex’s common stock or voting power outstanding prior to the issuance of
shares is issued, and (4) if shares are issued pursuant to a new or amended
employee option plan.
What
are the anticipated effects of the Reverse Stock Split on the market for our
common stock?
The Board
of Directors believes that an increased stock price could enhance the appeal of
our common stock to the financial community, including institutional investors,
and the general investing public. Because of the trading volatility often
associated with low-priced stocks, many brokerage firms 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. Some of these policies
and practices pertain to the payment of brokers' commissions and to
time-consuming procedures that make the handling of lower-priced stocks
unattractive to brokers from an economic standpoint. We believe that the
anticipated higher market price resulting from a reverse stock split would
better enable institutional investors and brokerage firms with such policies and
practices to invest in our common stock. There can be no assurance that
this will be the case, however.
What
are the anticipated effects of the Amendment on our authorized and outstanding
shares?
If and
when the Board of Directors elects to effect the Reverse Stock Split, the
authorized number of shares of our common stock will remain at 750 million.
Accordingly, there will be no reduction in the number of authorized shares of
our common stock in proportion to the Reverse Stock Split ratio. As a result,
the proportion of shares owned by our stockholders relative to the number of
shares authorized for issuance will decrease, and the additional authorized
shares of common stock will be available for issuance at such times and for such
purposes as the Board of Directors may deem advisable without further action by
our stockholders, except as required by applicable laws and regulations. Because
our common stock is traded on The NASDAQ Capital Market, stockholder approval
must be obtained, under applicable NASDAQ rules, prior to the issuance of shares
for certain purposes, including the issuance of shares of Generex’s common stock
equal to or greater than 20% of the then outstanding shares of common stock in
connection with a private refinancing or an acquisition or merger, unless an
exemption is available from such approval. Such an exemption would be available
if the Board authorized the filing of an application with NASDAQ to waive the
shareholder vote requirement if it believed the delay associated with securing
such vote would seriously jeopardize our financial viability and NASDAQ granted
us such an exemption.
The
additional shares of our common stock to be authorized will be a part of the
existing class of common stock and, if and when issued, would have the same
rights and privileges as the shares of our common stock presently issued and
outstanding.
What
are the anticipated effects of the Reverse Stock Split on our stock
plans?
The
Reverse Stock Split, when implemented, will affect outstanding stock awards and
options to purchase our common stock. Each of Generex’s 2000 Stock Option
Plan, 2001 Stock Option Plan, as amended, and 2006 Stock Plan, as amended
(collectively, the "Plans"), includes provisions for appropriate adjustments to
the number of shares of common stock covered by each such plan and to stock
options and other grants of stock-based awards under the Plan, as well as the
per share exercise price. If
stockholders approve the Reverse Stock Split and the Board of Directors selects
a reverse split ratio of 1-to-5, an outstanding stock option to purchase five
shares of common stock would thereafter evidence the right to purchase one share
of common stock consistent with the reverse stock split ratio, and the exercise
price per share would be a corresponding multiple of the previous exercise
price. For example, a pre-split option for 500 shares of common stock with
an exercise price of $0.50 per share would be converted post-split into an
option to purchase 100 shares of common stock with an exercise price of $2.50
per share. Further, the number of shares of common stock reserved for
issuance under the plans will be reduced by the same ratio.
Will
the Reverse Stock Split have any effect on Generex?
We expect
our business and operations to continue as they are currently being conducted
and the Reverse Stock Split is not anticipated to have any effect upon the
conduct of our business. We expect to incur expenses of approximately
$50,000 to effect the Reverse Stock Split.
What
effect will the Reverse Stock Split on Generex’s registration under the Exchange
Act?
Our
common stock is currently registered under Section 12(b) of the Securities
Exchange Act of 1934 ("Exchange Act"), and we are subject to the periodic
reporting and other requirements of the Exchange Act. As of May 3, 2010,
we had 669 holders of record of our common stock (although we have significantly
more beneficial holders). We do not expect the Reverse Stock Split and the
rounding up of fractional shares to result in a significant reduction in the
number of record holders. We do presently does not intend to seek any
change in our status as a reporting company for federal securities law purposes,
either before or after the Reverse Stock Split.
If the
Reverse Stock Split is implemented, we currently expect that the common stock
will continue to be traded on the NASDAQ Capital Market under the symbol "GNBT",
provided that we meet the continued listing requirements (although NASDAQ would
likely add the letter "D" to the end of the trading symbol for a period of 20
trading days to indicate that the Reverse Stock Split has
occurred).
Will
the Reverse Stock Split have any potential anti-takeover or dilutive
effect?
The
purpose of maintaining our authorized common stock at 750 million after the
Reverse Stock Split is to facilitate our ability to raise additional capital to
support our operations, not to establish any barriers to a change of control or
acquisition of the company. The common shares that are authorized but unissued
provide our Board of Directors with flexibility to effect, among other
transactions, public or private refinancings, acquisitions, stock dividends,
stock splits and the granting of equity incentive awards. However, these
authorized but unissued shares may also be used by the Board of Directors,
consistent with and subject to its fiduciary duties, to deter future attempts to
gain control of us or make such actions more expensive and less desirable. The
Amendment would give our Board of Directors authority to issue additional shares
from time to time without delay or further action by the shareholders except as
may be required by applicable law or the NASDAQ rules. The Amendment is not
being recommended in response to any specific effort of which we are aware to
obtain control of Generex, nor does the Board of Directors have any present
intent to use the authorized but unissued common stock to impede a takeover
attempt.
In
addition, the issuance of additional shares of common stock for any of the
corporate purposes listed above could have a dilutive effect on earnings per
share and the book or market value of our outstanding common stock, depending on
the circumstances, and would likely dilute a shareholder’s percentage voting
power in the company. Holders of our common stock are not entitled to preemptive
rights or other protections against dilution. Our Board of Directors intends to
take these factors into account before authorizing any new issuance of
shares.
Are
their risks associated with the Reverse Stock Split?
Yes,
there are certain risks associated with the Reverse Stock Split, including
without limitation those described below.
There
can be no assurance that the total market capitalization of our common stock
(the aggregate value of all Generex common stock at the then market price) after
the implementation of the Reverse Stock Split will be equal to or greater
than the total market capitalization before the Reverse Stock Split or that the
per share market price of our common stock following the Reverse Stock Split
will increase in proportion to the reduction in the number of shares of our
common stock outstanding before the Reverse Stock Split.
There
can be no assurance that the market price per share of our common stock after
the Reverse Stock Split will remain unchanged or increase in proportion to the
reduction in the number of old shares of our common stock outstanding before the
Reverse Stock Split. For example, based on the closing price of our common stock
on June 3, 2010 of $0.42 per share, if the Board were to implement the Reverse
Stock Split and utilize a ratio of 1-for-5, we cannot assure you that the
post-split market price of our common stock would be $2.10 (that is,
$0.42 × 5) per share or greater. In many cases, the market price
of a company’s shares declines after a reverse
stock split.
Accordingly,
the total market capitalization of our common stock after the Reverse Stock
Split, when and if implemented, may be lower than the total market
capitalization before the Reverse Stock Split. Moreover, in the future, the
market price of our common stock following the Reverse Stock Split may not
exceed or remain higher than the market price prior to the Reverse Stock
Split.
The
Reverse Stock Split may not increase our stock price over the long-term, which
may prevent us from qualifying for listing with NASDAQ.
While we
expect that the Reverse Stock Split, together with other actions required to
meet applicable listing standards, will enable our shares to qualify for listing
with NASDAQ and that we will be able to continue to meet on-going quantitative
and qualitative listing requirements, we cannot be sure that this will be the
case. Negative financial results, adverse clinical trials developments, or
market conditions could adversely affect the market price of our common stock
and jeopardize our ability to meet or maintain applicable NASDAQ listing
requirements. Furthermore, in addition to its enumerated listing and maintenance
standards, NASDAQ has broad discretionary authority over the initial and
continued listing of securities, which it could exercise with respect to our
shares.
If
the Reverse Stock Split is effected, the resulting per-share stock price may not
attract institutional investors or investment funds and may not satisfy the
investing guidelines of such investors and, consequently, the trading liquidity
of our common stock may not improve.
While the
Board believes that a higher stock price may help generate investor interest,
there can be no assurance that the Reverse Stock Split will result in a
per-share price that will attract institutional investors or investment funds or
that such share price will satisfy the investing guidelines of institutional
investors or investment funds. As a result, the trading liquidity of our common
stock may not necessarily improve.
A
decline in the market price of our common stock after the Reverse Stock Split is
implemented may result in a greater percentage decline than would occur in the
absence of the Reverse Stock Split, and the liquidity of our common stock could
be adversely affected following the Reverse Stock Split.
If the
Reverse Stock Split is effected and the market price of our common stock
declines, the percentage decline may be greater than would occur in the absence
of the Reverse Stock Split. The market price of our common stock will, however,
also be based on our performance and other factors, which are unrelated to the
number of shares of common stock outstanding. Furthermore, the liquidity of our
common stock could be adversely affected by the reduced number of shares that
would be outstanding after the Reverse Stock Split.
How
will the Reverse Stock Split be effected?
If
approved by shareholders at the annual meeting and our Board of Directors
concludes that it is in the best interests of Generex and its stockholders to
effect the Reverse Stock Split, the Amendment will be filed with the Delaware
Secretary of State. The actual timing of the filing of the Amendment with the
Delaware Secretary of State to effect the Reverse Split will be determined by
the Board of Directors but will be no later than twelve months following the
approval of this Item
2. Also, if for any reason the Board of Directors deems it advisable to
do so, the Reverse Split may be abandoned at any time prior to the filing of the
Amendment, without further action by our shareholders. The Reverse Split will be
effective as of the date of filing with the Delaware Secretary of State (the
“Effective Time”). We will issue a press release and file a Form 8-K
pre-announcing the filing of the Amendment prior to its effective filing
date.
Upon the
filing of the Amendment, without further action on the part of us or the
stockholders, the outstanding shares of common stock held by stockholders of
record as of the Effective Time would be converted into a lesser number of
shares of common stock based on a reverse split ratio of one-for-three to
one-for-ten. For example, if you presently hold 1,000 shares of our common
stock, you would hold between 334 and 100 shares of our common stock following
the Reverse Stock Split.
Will
Generex issue fractional shares in connection with the Reverse Stock
Split?
The Board
of Directors does not currently intend to issue fractional shares in connection
with the Reverse Stock Split. Therefore, we do not expect to issue certificates
representing fractional shares. Stockholders of record who would otherwise hold
a fractional share because the number of shares of common stock they hold before
the Reverse stock Split is not evenly divisible by the split ratio will be
entitled to have their fractional share rounded up to the next whole
number.
How
do I exchange my pre-reverse stock split certificates for new post-reverse stock
split certificates?
If we
implement the Reverse Stock Split, our transfer agent will act as our exchange
agent for purposes of implementing the exchange of stock
certificates.
On or
after the Effective Time, the exchange agent will mail a letter of transmittal
to each stockholder. Each stockholder will be able to obtain a certificate
evidencing his, her or its post-Reverse Stock Split shares only by sending the
exchange agent the stockholder’s old stock certificate(s), together with the
properly executed and completed letter of transmittal and such evidence of
ownership of the shares as we may require. Stockholders will not receive
certificates for post-Reverse Stock Split shares unless and until they surrender
their old certificates. You should not forward your certificates to the
exchange agent until you receive the letter of transmittal, and you should only
send in your certificates with the letter of transmittal. If you elect to
receive a new stock certificate in the letter of transmittal, the exchange agent
will send you a new stock certificate after receipt of your properly completed
letter of transmittal and old stock certificate(s). If you surrender your
old stock certificate(s) but do not elect to receive a new stock certificate in
the letter of transmittal, you will hold that your shares electronically in
book-entry form with our transfer agent as described below. You will not have to
pay any service charges in connection with the exchange of your
certificates.
Certain
of our registered holders of common stock hold some or all of their shares
electronically in book-entry form with our transfer agent. These shareholders do
not have stock certificates evidencing their ownership of our common stock. They
are, however, provided with a statement reflecting the number of shares
registered in their accounts. If you hold all of your shares of common
stock electronically in book-entry form with our transfer agent, you do not need
to take any action as your holdings will be electronically adjusted by our
transfer agent to give effect to the Reverse Stock Split.
Upon the
Reverse Stock Split, we intend to treat shares of common stock held by
stockholders in "street name," that is, through a bank, broker or other nominee,
in the same manner as stockholders whose shares of common stock are registered
in their names. Banks, brokers or other nominees will be asked to effect
the Reverse Stock Split for their beneficial holders holding the common stock in
"street name." However, these banks, brokers or other nominees may have
different procedures than registered stockholders for processing the Reverse
Stock Split. If you hold shares of common stock with a bank, broker or
other nominee and have any questions in this regard, you are encouraged to
contact your bank, broker or other nominee directly.
You
should not send your certificates now. You should send them only after you
receive the letter of transmittal from our exchange agent.
What
are the accounting consequences of the Reverse Stock Split?
The par
value per share of our common stock will remain unchanged at $0.001 per share
after the Reverse Stock Split. As a result, as of the Effective Date, the
stated capital on Generex’s consolidated balance sheet attributable to Generex
common stock will be reduced and the additional paid-in-capital account will be
increased by the amount by which the stated capital is reduced. Per share
net income or loss will be increased because there will be fewer shares of
common stock outstanding. We do not anticipate that any other accounting
consequences, including changes to the amount of stock-based compensation
expense to be recognized in any period, will arise as a result of the Reverse
Stock Split.
What
are the federal income tax consequences of the Reverse Stock Split?
The
following is a summary of certain U.S. federal income tax consequences relating
to the Reverse Stock Split as of the date hereof. This summary addresses only
U.S. holders who hold their shares of Common Stock as a capital asset for U.S.
federal income tax purposes (i.e., generally, property held for
investment).
For
purposes of this summary, a “U.S. holder” means a beneficial owner of common
stock who is any of the following for U.S. federal income tax purposes: (i) an
individual who is a citizen or resident of the United States, (ii) a corporation
created or organized in or under the laws of the United States, any state
thereof, or the District of Columbia, (iii) an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or (iv) a
trust if (1) its administration is subject to the primary supervision of a court
within the United States and one or more U.S. persons have the authority to
control all of its substantial decisions, or (2) it has a valid election in
effect under applicable U.S. Treasury regulations to be treated as a U.S.
person.
This
summary is based on interpretations of the Internal Revenue Code of 1986, as
amended (the “Code”), and regulations, rulings and judicial decisions as of the
date hereof. These authorities may be changed, perhaps retroactively, and may
adversely affect the U.S. federal income tax consequences described herein. This
summary does not discuss all of the tax consequences that may be relevant to
particular stockholders or to stockholders subject to special treatment under
U.S. federal income tax laws (such as banks and other financial institutions,
insurance companies, real estate investment trusts, regulated investment
companies, personal holding companies, foreign entities, nonresident alien
individuals, broker-dealers, tax-exempt entities, partnerships, and stockholders
who hold common stock as part of a position in a straddle or as part of a
hedging, conversion or integrated transaction).
Moreover,
this description does not address the U.S. federal estate and gift tax,
alternative minimum tax, state, local, foreign or other tax consequences of the
Reverse Stock Split.
You
should consult your own tax adviser concerning the particular U.S. federal tax
consequences of the Reverse Stock Split, as well as any consequences arising
under the laws of any other taxing authority, such as any state, local or
foreign income tax consequences to which you may be subject.
To ensure
compliance with Treasury Department Circular 230, each holder of common stock is
hereby notified that: (a) any discussion of U.S. federal tax issues in this
proxy statement is not intended or written to be used, and cannot be used, by
such holder for the purpose of avoiding penalties that may be imposed on such
holder under the Code; (b) any such discussion has been included by Generex in
furtherance of the Reverse Stock Split on the terms described herein; and (c)
each such holder should seek advice based on its particular circumstances from
an independent tax advisor.
Generally,
the Reverse Stock Split will not result in the recognition of gain or loss by a
U.S. holder for U.S. federal income tax purposes. The aggregate adjusted basis
of the post-Reverse Stock Split shares will be the same as the aggregate
adjusted basis of the pre-Reverse Stock Split shares. The holding period of the
post-Reverse Stock Split shares will include a U.S. holder’s holding periods for
the pre-Reverse Stock Split shares.
The
Federal income tax consequence of the receipt of an additional share of common
stock in lieu of a fractional interest is not clear. If the receipt of a
portion of an additional share of common stock is taxed as a dividend, however,
any tax liability association with such receipt is not expected to be
material.
Generex
will not recognize any gain or loss as a result of the Reverse Stock
Split.
Am
I entitled to dissenters’ or appraisal rights in connection with the proposed
Amendment?
The
holders of shares of common stock will have no dissenters' rights of appraisal
under Delaware law, our Restated Certificate of Incorporation or our Amended and
Restated Bylaws with respect to the Amendment to accomplish the Reverse Stock
Split.
How
many votes are needed for this proposal and how are the votes
counted?
The
affirmative vote of a majority of the shares of common stock entitled to vote
thereon is required to approve the Amendment to our Company's Restated
Certificate of Incorporation to accomplish the Reverse Stock Split and to
maintain the authorized shares of common stock at 750 million thereafter.
The effect of an abstention or broker non-vote is the same as that of a
vote against the proposal.
How
does the Board of Directors recommend that I vote?
We
recommend that you vote FOR
the approval of the amendment to our Restated Certificate of
Incorporation to effect the Reverse Stock Split of the common stock and,
following the Reverse Stock Split, to maintain the authorized shares of common
stock at 750,000,000 thereafter.
RATIFICATION
OF THE APPOINTMENT OF MSCM LLP
AS
GENEREX’S INDEPENDENT PUBLIC ACCOUNTANTS FOR FISCAL YEAR 2010
(Item
3 on the Proxy Card)
What
am I voting on?
The Audit
Committee of the Board of Directors has selected MSCM LLP as the independent
public accountants to examine the financial statements of Generex and its
subsidiaries for the fiscal year ending July 31, 2010. The Board of
Directors has concurred in the Audit Committee’s selection and is presenting the
matter to the stockholders for ratification at the annual meeting. MSCM
LLP has served as our independent auditors since September 5, 2008.
Why
is ratification of the selection of MSCM LLP necessary?
Stockholder
ratification of the selection of MSCM LLP as our independent auditors is not
required by our bylaws or otherwise. However, we are submitting the
selection of MSCM LLP to the stockholders for ratification as a matter of good
corporate practice. If the stockholders fail to ratify the selection, the
Audit Committee will reconsider whether or not to retain MSCM LLP. Even if
the selection is ratified, the Audit Committee in its discretion may direct the
appointment of a different independent audit firm at any time during the year if
it is determined that such a change would be in the best interests of us and our
stockholders.
What
is the relationship of MSCM LLP to Generex’s former independent auditors,
Danziger Hochman Partners LLP?
MSCM LLP
is the successor to our former independent auditors, Danziger Hochman Partners
LLP, following MSCM LLP’s merger with Danziger Hochman Partners LLP in September
2008. Danziger Hochman Partners LLP served as our independent auditors from
February 1, 2006 until September 5, 2008.
On July
28, 2008, we received notice of the merger of Danziger Hochman Partners LLP with
MSCM LLP, to be effective as of August 1, 2008. The merger of Danziger
Hochman Partners LLP and MSCM LLP did not close until the week of
September 15, 2008. On September 5, 2008, the Audit Committee
received an engagement letter from MSCM LLP and approved the engagement of MSCM
LLP as Danziger Hochman Partners LLP’s successor to continue as our independent
registered public accountant for the fiscal year ending July 31,
2008.
The
reports of Danziger Hochman Partners LLP on our financial statements for the
fiscal years ended July 31, 2007 and 2006 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.
During
our fiscal years ended July 31, 2008 and 2007 and the subsequent interim period
through September 5, 2008, the date on which the Audit Committee approved the
engagement of MSCM LLP and Danziger Hochman Partners LLP ceased being our
independent auditors, there were no disagreements between us and Danziger
Hochman Partners LLP on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedure, which
disagreements, if not resolved to the satisfaction of Danziger Hochman Partners
LLP, would have caused Danziger Hochman Partners LLP to make reference to the
subject matter of the disagreements in connection with its audit reports on our
financial statements. During our past fiscal years ended July 31, 2008 and 2007
and the interim period through September 5, 2008, Danziger Hochman Partners LLP
did not advise us of any of the matters specified in Item 304(a)(1)(v) of
Regulation S-K.
During
our fiscal years ended July 31, 2008 and 2007 and the subsequent interim period
through September 5, 2008, we had no consultations with MSCM LLP regarding (a)
the application of accounting principles to a specified transaction, either
completed or proposed, or the type of audit opinion that might be rendered on
our consolidated financial statements as to which we received a written report
or oral advice that was an important factor in reaching a decision on any
accounting, auditing or financial reporting issue; (b) any matter that was the
subject of a disagreement, as defined in Item 304(a)(1)(iv) of Regulation S-K,
or (c) any matter that was the subject of a reportable event, as defined in Item
304(a)(1)(v) of Regulation S-K.
What
services will the independent registered public accounting firm
provide?
Audit
services provided by MSCM LLP for fiscal year 2010 will include the examination
of the consolidated financial statements of Generex and services related to
periodic filings made with the SEC. Audit services for fiscal year 2010 also
will include the audit of the effectiveness of the company’s internal control
over financial reporting as required by Section 404 of the Sarbanes-Oxley
Act of 2002. Additionally, MSCM LLP may provide audit-related, tax and other
services comparable in nature to the services that it performed in fiscal 2009
and the services performed by Danziger Hochman Partners LLP in fiscal year 2008,
as described below under the heading “Audit Matters” and the subheading “Fees
Paid to Generex’s Independent Public Accountants.”
Will
representatives of the independent registered public accounting firm be present
at the 2010 annual meeting?
Representatives
of MSCM LLP are expected to be present at the meeting, will have an opportunity
to make a statement if they so desire and will be available to respond to
appropriate questions.
How
does the Board of Directors recommend that I vote?
We
recommend that you vote For the ratification of the
appointment of MSCM LLP as Generex’s independent registered public accounting
firm for fiscal year 2010.
AUDIT
MATTERS
Fees
Paid to Generex’s Independent Public Accountants
MSCM LLP
("MSCM") has served as our independent auditors since September 5, 2008. The
appointment of MSCM as our independent public accountants was unanimously
approved by the Audit Committee of our Board of Directors. MSCM is the successor
to our former independent auditors, Danziger Hochman Partners LLP (“Danziger
Hochman”), following MSCM’s merger with Danziger Hochman in September 2008.
Danziger Hochman served as our independent auditors from February 1, 2006 until
September 5, 2008.
The
following table sets forth the aggregate fees paid by Generex for the fiscal
years ended July 31, 2009 and 2008 to our independent auditors:
|
|
Fiscal Year
Ended
July 31, 2008
|
|
|
Fiscal Year
Ended
July 31, 2009
|
|
Audit
Fees
|
|
$
|
233,300
|
(1)
|
|
$
|
212,756
|
(1)
|
Audit-Related
Fees
|
|
$
|
128,750
|
(2)
|
|
$
|
0
|
(2)
|
Tax
Fees
|
|
$
|
0
|
(3)
|
|
$
|
0
|
(3)
|
All
Other Fees
|
|
$
|
0
|
|
|
$
|
0
|
|
TOTAL
|
|
$
|
362,050
|
|
|
$
|
212,756
|
|
(1)
|
Represents charges of MSCM LLP,
Generex's auditors for fiscal year ended July 31, 2008 and
2009.
|
(2)
|
Represents charges of MSCM LLP,
Generex's auditor in fiscal year ended July 31, 2008 for Sarbanes-Oxley
Section 404 audit of internal controls over financial
reporting
|
(3)
|
MSCM LLP did not provide and did
not bill for any tax
services.
|
Policy
for Pre-Approval of Audit and Non-Audit Services
The Audit
Committee’s policy is to pre-approve all audit services and all non-audit
services that Generex’s independent auditor is permitted to perform for Generex
under applicable federal securities regulations. As permitted by the applicable
regulations, the Audit Committee’s policy utilizes a combination of specific
pre-approval on a case-by-case basis of individual engagements of the
independent auditor and general pre-approval of certain categories of
engagements up to predetermined dollar thresholds that are reviewed annually by
the Audit Committee. Specific pre-approval is mandatory for the annual financial
statement audit engagement, among others.
The
pre-approval policy was implemented effective as of October 30, 2003. All
engagements of the independent auditor to perform any audit services and
non-audit services since that date have been pre-approved by the Audit Committee
in accordance with the pre-approval policy. The policy has not been waived in
any instance. All engagements of the independent auditor to perform any audit
services and non-audit services prior to the date the pre-approval policy was
implemented were approved by the Audit Committee in accordance with its normal
functions.
Report
of the Audit Committee
The Audit
Committee reviewed and discussed Generex's audited financial statements for the
fiscal year ended July 31, 2009 with management. The Audit Committee
discussed with MSCM LLP, Generex's independent public accountants for the fiscal
year ended July 31, 2009, the matters required to be discussed by Statement on
Auditing Standards No. 61, as amended as adopted by the Public Company
Accounting Oversight Board in Rule 3200T. The Audit Committee received the
written disclosures and the letter from MSCM LLP required by applicable
requirements of the Public Company Accounting Oversight Board regarding the
independent accountant’s communications with the Audit Committee concerning
independence, and has discussed with MSCM LLP its independence. Based on
the review and discussions described above, among other things, the Audit
Committee recommended to the Board of Directors that the audited financial
statements be included in Generex's Annual Report on Form 10-K for the fiscal
year ended July 31, 2009 for filing with the Securities and Exchange
Commission.
Submitted
by the Audit Committee
Brian T.
McGee (Chairman)
John P.
Barratt
Nola E.
Masterson
The
foregoing Report of the Audit Committee shall not be deemed to be soliciting
material, to be filed with the SEC or to be incorporated by reference into any
of Generex's previous or future filings with the SEC, except as otherwise
explicitly specified by Generex in any such filing.
COMPENSATION
MATTERS
Generex
met the definition of a “smaller reporting company” as of July 31, 2009 and has
elected to follow scaled disclosure requirements for smaller reporting companies
with respect to executive compensation disclosures in this proxy
statement. Under the scaled disclosure obligations, “named executive
officers” include Generex’s principal executive officer and two other most
highly compensated executive officers. Under the scaled disclosure
obligations, Generex is not required to provide Compensation Discussion and
Analysis, Compensation Committee Report and certain other tabular and narrative
disclosures relating to executive compensation. Nor is Generex required to
quantify payments due to the named executives upon termination of employment.
Management believes that the scaled requirements for executive compensation
disclosures are appropriate because the Company is small for a publicly-traded
company, has only three named executives and has a relatively simple
compensation policy and structure that has not changed in the last fiscal
year.
Summary
Compensation Table
The
following table provides information concerning compensation of Generex’s named
executives for Generex’s last two completed fiscal years ending July 31, 2008
and 2009. In respect of fiscal years 2008 and 2009, the named executives
did not receive compensation in the form of non-equity incentive plan
compensation or changes in pension value or non-qualified deferred compensation
earnings. Therefore, the table below does not include columns for these types of
compensation.
Name
and
Principal
Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Stock
Awards
($)
|
|
Option
Awards
($)
|
|
All
Other
Compensation
($)
|
|
Total
($)
|
|
Anna
E. Gluskin
|
|
2009
|
|
$ |
525,000 |
|
|
|
0 |
|
|
|
37,750 |
(3) |
|
|
9,219 |
(4) |
|
|
23,991 |
(6) |
|
|
595,960 |
|
President
and
Chief
Executive Officer
|
|
2008
|
|
$ |
514,583 |
(1) |
|
$ |
215,000 |
(2) |
|
$ |
113,250 |
(3) |
|
$ |
17,516 |
(4) |
|
$ |
288,775 |
(5)(6) |
|
$ |
1,149,124 |
|
Rose
C. Perri
|
|
2009
|
|
|
420,000 |
|
|
|
0 |
|
|
|
33,031 |
(3) |
|
|
24,583 |
(4) |
|
|
23,991 |
(6) |
|
|
501,605 |
|
Chief
Operating Officer,
Chief
Financial Officer,
Treasurer
and Secretary
|
|
2008
|
|
$ |
411,667 |
(7) |
|
$ |
165,000 |
(2) |
|
$ |
99,094 |
(3) |
|
$ |
41,484 |
(4) |
|
$ |
256,083 |
(5),(6) |
|
$ |
973,328 |
|
Mark
A. Fletcher
|
|
2009
|
|
$ |
315,000 |
|
|
|
0 |
|
|
|
18,875 |
(3) |
|
|
0 |
|
|
|
0 |
|
|
|
333,875 |
|
Executive
Vice President
And
General Counsel
|
|
2008
|
|
$ |
308,750 |
(8) |
|
$ |
125,000 |
(2) |
|
$ |
56,625 |
(3) |
|
$ |
0 |
|
|
$ |
228,846 |
(5) |
|
$ |
719,221 |
|
*Cash
compensation is stated in the table in U.S. dollars. To the extent any cash
compensation was paid in Canadian dollars, it has been converted into U.S.
dollars based on the average Canadian/U.S. dollar exchange rate for the years
ended July 31, 2009 and July 31, 2008.
(1)
|
This
amount reflects the base salary earned by the named executive in fiscal
2008 ($500,000) and the retroactive salary increase for fiscal 2008 (to
$525,000) approved by the Board on May 6,
2008.
|
(2)
|
On
May 6, 2008, the Board awarded this discretionary bonus to Ms. Gluskin,
Ms. Perri and Mr. Fletcher in respect of fiscal 2007. Due to the timing of
the Board’s decision, this bonus is reported as compensation received in
fiscal 2008.
|
(3)
|
This
amount represents the dollar amount recognized for financial statement
reporting purposes with respect to the fiscal years ended July 31, 2009
and 2008 for restricted stock awards granted in August 2007, a portion of
which was in respect of fiscal 2007 and was immediately vested. The fair
value is calculated using the closing price of Generex stock on the date
of grant. For additional information, refer to Note 13 of the Notes to Consolidated
Financial Statements included in each of our Annual Reports on Form
10-K for the years ended July 31, 2008 and 2009, as filed with the SEC.
This amount reflects our accounting expense for these awards, and does not
correspond to the actual value that will be recognized by the named
executives.
|
(4)
|
This
amount represents the dollar amount recognized for financial statement
reporting purposes in accordance with SFAS No. 123R with respect to the
fiscal years ended July 31, 2009 and 2008 for option awards granted in May
2008 in respect of fiscal year 2007. Such awards were made pursuant to the
2006 Stock Plan. Specifically, amounts reflected in this column related to
options to purchase 50,000 shares of common stock granted to Ms. Gluskin
and options to purchase 125,000 shares of common stock granted to Ms.
Perri on May 27, 2008. The options vest incrementally over two years. The
total fair values of the respective option grants are being expensed over
the two-year vesting periods for the options. We utilize a closed-form
model (Black-Scholes) to estimate the fair value of stock option grants on
the date of grant. Assumptions used in the calculation of these amounts
are as follows: risk-free interest rate of 1.96%, expected dividend yield
of 0.0%, 5 year expected life of options and expected volatility rate of
73.76%.
|
(5)
|
This
amount includes cash payments to each of the following named executives:
Ms. Gluskin - $261,538 (CAD $281,101), Ms. Perri - $228,846 (CAD $245,963)
and Mr. Fletcher - $228,846 (CAD $245,963). On May 6, 2008, the Board
approved such payments to these named executives to compensate them for
income tax liabilities incurred in respect of the restricted stock awards
granted in August 2007. These amounts were converted at the exchange rate
of US $1.00 to CAD $1.0748, which represented the market exchange rate on
the date of the grant.
|
(6)
|
Also
included in this amount for each of Ms. Gluskin and Ms. Perri is $23,991
in 2009 and $27,236.50 in 2008, which represents 50% of the management fee
paid to the property management company that manages all of our real
estate properties and is owned by Ms. Perri, Ms. Gluskin and the estate of
Mark Perri, our former Chairman of the Board. In addition, Ms. Gluskin and
Ms. Perri each receive a car allowance with an estimated value of $800 per
month to compensate use of their cars for business purposes, but such
amounts have not been included in this column as the total value of such
perquisites is less than $10,000 per named executive for fiscal year 2009
and 2008..
|
(7)
|
This
amount reflects the base salary earned by the named executive in fiscal
2008 ($400,000) and the retroactive salary increase for fiscal 2008 (to
$420,000) approved by the Board on May 6,
2008.
|
(8)
|
This
amount reflects the base salary earned by the named executive in fiscal
2008 ($300,000) and the retroactive salary increase for fiscal 2008 (to
$315,000) approved by the Board on May 6,
2008
|
Compensation
Elements; Employment Agreements and Agreements Providing Payments Upon
Retirement, Termination or Change in Control for Named Executives
Historically,
the key components of our executive compensation have been base salary, cash
bonuses, and equity incentives, including stock bonuses, restricted stock, and
stock options awarded at the discretion of our Compensation Committee and Board
of Directors. As a development stage company, we have reviewed compensation of
our executive management team from time to time and at the discretion of the
Compensation Committee when warranted by our financial condition and achievement
of our business goals. In fiscal 2009, our Compensation Committee
determined that no changes in base salary or bonuses were warranted in light of
the company’s efforts to conserve cash and repay the secured convertible notes
issued in March 2008.
Set forth
below are the material terms of employment for each of the three named
executives. The terms of employment provide for certain payments upon
retirement, termination or change in control. Such benefits are in
addition to benefits available generally to salaried employees who joined the
company prior to 2008, such as distributions under the 401(k) savings plan,
disability and death benefits and accrued vacation pay.
Terms
of Employment for Ms. Gluskin and Ms. Perri
On
December 9, 2005, upon the recommendation of a majority of the members of the
Compensation Committee, the Board of Directors approved the terms and conditions
of employment for Ms. Gluskin as President and Chief Executive Officer and Ms.
Perri as Chief Financial Officer and Chief Operating Officer. Prior to such
date, Ms. Gluskin and Ms. Perri served in such capacities without formal
employment terms. The terms of employment with Ms. Gluskin and Ms. Perri have
not been memorialized in separate written agreements. The material terms of
Generex’s employment of each of Ms. Gluskin and Ms. Perri are identical except
as otherwise noted and are as follows:
·
|
Each
named executive’s employment is effective as of January 1, 2006. The
initial term of employment is five years, subject to the termination
provisions described below. Generex or either executive may give notice of
non-renewal not less than six months prior to the expiration of the term.
If no such notice is given, the term of employment will extend
indefinitely and will be terminable upon not less than six months’ prior
written notice.
|
·
|
The
named executive will be entitled to an annual bonus as determined by
Generex’s Compensation Committee in respect of each fiscal year of Generex
during the term of employment and reimbursement of all reasonable expenses
incurred by her in connection with Generex’s
business.
|
·
|
The
named executive will be included on any management slate of nominees
submitted to Generex’s stockholders for election to the Board of
Directors.
|
·
|
Standard
employee confidentiality, non-competition and non-solicitation covenants
will apply.
|
·
|
Each
named executive is entitled to receive an annual base salary under the
terms of her respective employment with Generex, which salary may not be
reduced during the term of such
employment.
|
·
|
Each
named executive’s employment may be
terminated:
|
|
(a)
|
By
Generex for cause (without any additional payment to the named
executive);
|
|
(b)
|
automatically
upon expiration of the term;
|
|
(c)
|
automatically
upon the named executive’s death or disability;
or
|
|
(d)
|
By
the named executive upon thirty days’ prior written notice if there is
a:
|
|
(i)
|
a
material change in duties (other than removal of the title of Chief
Financial Officer and the duties associated therewith in the case of Ms.
Perri),
|
|
(ii)
|
a
material reduction in the named executive’s
remuneration,
|
|
(iii)
|
a
material breach of the terms of employment by
Generex,
|
|
(iv)
|
a
change of control of Generex, or
|
|
(v)
|
a
sale of all or substantially all of the property and assets of
Generex.
|
In the
event of termination pursuant to clause (b) above as a result of Generex’s
notice of non-renewal or pursuant to clause (d) above, Generex will pay the
named executive an amount equal to the greater of:
|
(x)
|
an
amount equal to five times the named executive’s base annual salary as of
the date of termination, which amount will be payable in a lump sum on the
date of termination, or
|
|
(y)
|
$5,000,000,
$3,000,000 of which will be payable in a lump sum on the date of
termination and $2,000,000 of which will be payable in stock issuable
within three business days of the date of termination and valued at the
20-day volume weighted average price as of the close of business on the
date of termination.
|
In
addition, in such a termination event, the named executive will be entitled to
participate in and receive benefits for a period of twelve months following
termination and will have no duty to mitigate.
Terms
of Employment for Mr. Fletcher
On March
17, 2003, our Board of Directors approved the terms and conditions of Mr.
Fletcher’s employment, prior to his joining Generex on or about April 21, 2003.
Pursuant to the terms of his employment, Mr. Fletcher holds the position of
Executive Vice President and General Counsel. Subject to termination in
accordance with the terms and conditions of his employment, Mr. Fletcher's term
of service extends through March 16, 2008, which term has not been formally
extended to date. Mr. Fletcher is entitled to receive annual base compensation
and may receive additional cash bonuses at the discretion of the Board of
Directors.
The terms
of his employment provide that Mr. Fletcher will be bound by standard
restrictive covenants prohibiting him from disclosing confidential information
about Generex. Either party may give at least 12 months’ notice of non-renewal
of the term; if such notice is not given, the term of employment will be
indefinite.
Generex
may terminate its obligations with respect to Mr. Fletcher’s employment as
follows:
|
(i)
|
upon
30 days written notice;
|
|
(iii)
|
in
the event of Mr. Fletcher’s
disability;
|
|
(iv)
|
in
the event of Mr. Fletcher’s death;
or
|
|
(v)
|
in
the event of Mr. Fletcher voluntarily
resigning.
|
Mr.
Fletcher may terminate his obligations upon 30 days written notice
upon:
|
(a)
|
a
material change in his duties,
|
|
(b)
|
a
material reduction in compensation,
|
|
(c)
|
a
material breach or default by Generex,
or
|
|
(d)
|
a
change in control of Generex which includes but is not limited to the
replacement of Anna Gluskin as a director or Chief Executive
Officer.
|
In the
event that Mr. Fletcher terminates his employment voluntarily (and not under the
circumstances described in (a), (b), (c) or (d) above) or Generex terminates his
employment under the circumstances described in (ii), (iii), (iv) or (v) above,
Mr. Fletcher will be entitled only to that portion of his base salary due and
owing as of his last day worked, less any amounts owed to Generex. Under these
circumstances, he will not be entitled to any bonus or incentive
compensation.
If
Generex terminates Mr. Fletcher’s employment under the circumstance described in
(i) above (and not for cause, disability or death) or Mr. Fletcher gives notice
of termination pursuant to (a), (b), (c) or (d) above, Mr. Fletcher will be
entitled to receive a lump sum severance payment on the termination date in an
amount equal to 18 months of base salary plus the average annual bonus paid
to him during each fiscal year of the term of his employment and he will be
entitled to participate in and receive benefits for 18 months after the
termination date. Mr. Fletcher will have 90 days after the eighteenth month
anniversary of the termination date to exercise vested options, and all unvested
options that he holds will accelerate and fully vest on the termination date. He
has no duty to mitigate his damages based on the termination of
employment.
Outstanding
Equity Awards at 2009 Fiscal Year-End
The
following table provides information on the current holdings of stock option and
stock awards by the named executives. This table includes unexercised and
unvested option awards and unvested restricted stock awards as of
July 31, 2009. Each equity grant is shown separately for each named
executive. The market value of the shares set forth under the “Stock Awards”
column was determined by multiplying the number of unvested shares by the
closing price of our common stock on July 31, 2009, the last trading day of
fiscal year 2009. The vesting schedule for each outstanding award is set forth
in the footnotes to the table. We do not have any “equity incentive plans” as
defined in Regulation S-K Item 402(a)(6)(iii); thus, the columns relating to
equity incentive awards are not included in the table below.
|
|
Option Awards
|
|
|
Stock Awards
|
|
Name
|
|
Grant Date
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
|
Option
Exercise
Price ($)
|
|
|
Option
Expiration
Date
|
|
|
Number of
Shares of Units
of Stock That
Have Not Vested
(#)
|
|
|
Market Value
of Shares or
Units of Stock
That Have Not
Vested ($)
|
|
Anna
E. Gluskin,
|
|
|
12-13-2004 |
|
|
|
250,000 |
(1) |
|
|
0 |
|
|
$ |
0.61 |
|
|
|
12-13-2009 |
* |
|
|
- |
|
|
|
- |
|
President
and
|
|
|
4-5-2005 |
|
|
|
819,672 |
(2) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
Chief
Executive |
|
|
4-5-2005 |
|
|
|
301,032 |
(3) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
Officer
|
|
|
8-17-2007 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
25,000 |
(4) |
|
$ |
16,373 |
|
|
|
|
5-27-2008 |
|
|
|
37,500 |
(5) |
|
|
12,500 |
(5) |
|
$ |
0.96 |
|
|
|
5-26-2013 |
|
|
|
- |
|
|
|
- |
|
Rose
C. Perri,
|
|
|
12-13-2004 |
|
|
|
250,000 |
(1) |
|
|
0 |
|
|
$ |
0.61 |
|
|
|
12-13-2009 |
* |
|
|
- |
|
|
|
- |
|
Chief
Operating
|
|
|
4-5-2005 |
|
|
|
409,836 |
(6) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
Officer,
Chief
|
|
|
4-5-2005 |
|
|
|
166,916 |
(7) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
Financial
Officer, Treasurer
|
|
|
8-17-2007 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
21,875 |
(4) |
|
$ |
14,326 |
|
And
Secretary |
|
|
5-27-2008 |
|
|
|
93,750 |
(5) |
|
|
31,250 |
(5) |
|
$ |
0.96 |
|
|
|
5-26-2013 |
|
|
|
- |
|
|
|
- |
|
Mark
E. Fletcher,
|
|
|
12-13-2004 |
|
|
|
250,000 |
(1) |
|
|
0 |
|
|
$ |
0.61 |
|
|
|
12-13-2009 |
* |
|
|
|
|
|
|
|
|
Executive
Vice President
|
|
|
4-5-2005 |
|
|
|
327,869 |
(8) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
and
General
|
|
|
4-5-2005 |
|
|
|
142,857 |
(9) |
|
|
0 |
|
|
$ |
0.001 |
|
|
|
4-4-2010 |
* |
|
|
- |
|
|
|
- |
|
Counsel
|
|
|
8-17-2007 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
12,500 |
(4) |
|
$ |
8,186 |
|
|
|
(1)
|
These
stock options were approved by the Board of Director on April 5, 2005 with
an effective grant date of December 13, 2004. The exercise price per share
is equal to the closing price of Generex common stock on December 13,
2004. These options were exercisable immediately upon their grant. The
fair value of Generex common stock on April 5, 2005 was $0.56 per
share.
|
(2)
|
These
options were granted to Ms. Gluskin representing a bonus of $500,000
awarded to Ms. Gluskin on April 5, 2005. The number of shares awarded was
calculated using the closing price of the common stock on The NASDAQ
Capital Market on December 13, 2004 ($0.61 per share). The options were
immediately exercisable on the date of grant. They were issued under the
2001 Plan. The fair value of Generex common stock on April 5, 2005 was
$0.56 per share.
|
(3)
|
These
options were issued to Ms. Gluskin on April 5, 2005 in satisfaction of
retroactive salary adjustment as of August 1, 2004 and unpaid salary
amounts accrued through March 31, 2005 ($168,578). The number of shares
was calculated using the closing price of the common stock on the NASDAQ
Capital Market on April 4, 2005 ($0.56 per share). The options were
immediately exercisable on the date of grant and were issued under the
2001 Plan.
|
(4)
|
This
shares of restricted stock were granted on August 17, 2007. The shares
underlying the awards to Ms. Gluskin (200,000) and Ms. Perri (175,000)
will vest as follows: 50% of the shares awarded vested on the grant date;
25% of the shares awarded vest on August 17, 2008; and 25% of the shares
vested on August 17, 2009. The shares underlying the award to Mr. Fletcher
will vest as follows: 125,000 of the shares awarded vested on the date of
grant; 25,000 of the shares vested on August 17, 2008; and 25,000 of the
shares vested on August 17, 2009.
|
(5)
|
These
options were granted on May 27, 2008. The grants were made pursuant to the
terms of our 2006 Stock Plan. The options vest as follows: 50% of the
options are exercisable on the date of grant; 25% of the options become
exercisable on the first anniversary of the date of grant, and the
remaining 25% of the options become exercisable on the second anniversary
of the date of grant.
|
(6)
|
These
options were granted to Ms. Perri representing a bonus of $250,000 awarded
to Ms. Perri on April 5, 2005. The number of shares awarded was calculated
using the closing price of the common stock on The NASDAQ Capital Market
on December 13, 2004 ($0.61 per share). The options were immediately
exercisable on the date of grant. They were issued under the 2001
Plan.
|
(7)
|
These
options were issued to Ms. Perri on April 5, 2005 in satisfaction of
retroactive salary adjustment as of August 1, 2004 and unpaid salary
amounts accrued through March 31, 2005 ($93,473). The number of shares was
calculated using the closing price of the common stock on the NASDAQ
Capital Market on April 4, 2005 ($0.56 per share). The options were
immediately exercisable on the date of grant and were issued under the
2001 Plan.
|
(8)
|
These
options were granted to Mr. Fletcher representing a bonus of $200,000
awarded to Mr. Fletcher on April 5, 2005. The number of shares awarded was
calculated using the closing price of the common stock on The NASDAQ
Capital Market on December 13, 2004 ($0.61 per share). The options were
immediately exercisable on the date of grant. They were issued under the
2001 Plan. The fair value of Generex common stock on April 5, 2005 was
$0.56 per share.
|
(9)
|
These
options were issued to Mr. Fletcher on April 5, 2005 in satisfaction of
retroactive salary adjustment as of August 1, 2004 and unpaid salary
amounts accrued through March 31, 2005 ($80,000). The number of shares was
calculated using the closing price of the common stock on the NASDAQ
Capital Market on April 4, 2005 ($0.56 per share). The options were
immediately exercisable on the date of grant and were issued under the
2001 Plan.
|
* On
October 20, 2009, the Board of Directors of Generex unanimously approved the
extension of the term of these options through October 26, 2014.
Nonqualified
Deferred Compensation
On
December 9, 2005, the Board of Directors approved a one-time recompense payment
in the aggregate amount of $1,000,000 for each of Ms. Gluskin and Ms. Perri in
recognition of Generex’s failure to remunerate each of Ms. Gluskin and Ms. Perri
in each of the fiscal years ended July 31, 1998, 1999, 2000 and 2001 in a fair
and reasonable manner commensurate with comparable industry standards and Ms.
Gluskin and Ms. Perri’s duties, responsibilities and performance during such
years. Such amounts were payable (i) in cash at such time or times and in such
amounts as determined solely by Ms. Gluskin or Ms. Perri, as applicable, and/or
(ii) in shares of Generex’s common stock at such time or such times as
determined by Ms. Gluskin or Ms. Perri, as applicable, provided that the
conversion price for any such shares was equal to the average closing price of
Generex’s common stock ($0.95) on the NASDAQ Capital Market for the 20
successive trading days immediately preceding, but not including, December 9,
2005. No interest or other earnings are accrued on this deferred
compensation.
We did
not make any payment of this deferred compensation during fiscal 2008 or
2009.
At July
31, 2009, the dollar amounts of the total balance of Ms. Gluskin’s and Ms.
Perri’s deferred compensation were as follows:
Name
|
|
Aggregate Balance at 2009 FYE
|
|
Anna
Gluskin
|
|
$ |
911,433.00 |
|
Rose
C. Perri
|
|
$ |
584,172.00 |
|
Other
Benefit Plans
We have
no defined benefit or actuarial pension plans.
CERTAIN
TRANSACTIONS
Changes
in Control
We know
of no arrangements, including any pledge by any person of our securities, the
operation of which may at a subsequent date result in the change in control of
Generex.
Certain
Relationships and Related Transactions
Generex
has followed the scaled disclosure requirements set forth in Item 404 of
Regulation S-K for smaller reporting companies and, thus, has not included
disclosures related to review, approval or ratification of related person
transactions.
Related
Transactions
Prior to
January 1, 1999, a portion of our general and administrative expenses resulted
from transactions with affiliated persons, and a number of capital transactions
also involved affiliated persons. Although these transactions were not the
result of "arms-length" negotiations, we do not believe that this fact had a
material impact on our results of operations or financial position. Prior to
December 31, 1998, we classified certain payments to executive officers for
compensation and expense reimbursements as "Research and Development - related
party" and "General and Administrative - related party" because the executive
officers received such payments through personal services corporations rather
than directly. After December 31, 1998, these payments have been and will
continue to be accounted for as though the payments were made directly to the
officers, and not as a related party transaction. With the exception of our
arrangement with our management company described below, we do not foresee a
need for, and therefore do not anticipate, any related party transactions in the
current fiscal year.
On May 3,
2001, we advanced $334,300 to each of three senior officers, who are also our
stockholders, in exchange for promissory notes. These notes bore interest at
8.5% per annum and were payable in full on May 1, 2002. These notes were
guaranteed by a related company owned by these officers and secured by a pledge
of 2,500,000 shares of our common stock owned by this related company. On June
3, 2002, our Board of Directors extended the maturity date of the loans to
October 1, 2002. The other terms and conditions of the loans and guaranty
remained unchanged and in full force and effect. As of July 31, 2002, the
balance outstanding on these notes, including accrued interest, was $1,114,084.
Pursuant to a decision made by the Compensation Committee as of August 30, 2002,
these loans were satisfied through the application of 592,716 shares of pledged
stock, at a value of $1.90 per share, which represented the lowest closing price
during the sixty days prior to August 30, 2002.
On
December 9, 2005, our Board of Directors approved a one-time recompense payment
in the aggregate amount of $1,000,000 for each of Ms. Gluskin, our Chairwoman,
Chief Executive Officer and President, and Ms. Rose Perri, our Chief Operating
Officer, Chief Financial Officer, Treasurer and Secretary, in recognition of the
company’s failure to remunerate each of Ms. Gluskin and Ms. Perri in each of the
fiscal years ended July 31, 1998, 1999, 2000 and 2001 in a fair and reasonable
manner commensurate with comparable industry standards and Ms. Gluskin’s and Ms.
Perri’s duties, responsibilities and performance during such years. The payment
of such amount to each of Ms. Gluskin and Ms. Perri will be made (a) in cash at
such time or times and in such amounts as determined solely by Ms. Gluskin or
Ms. Perri, as applicable, and/or (b) in shares of our common stock at such time
or times as determined by Ms. Gluskin or Ms. Perri, as applicable, provided that
the conversion price for any such shares shall be equal to the average closing
price of our common stock on the NASDAQ Capital Market for the 20 successive
trading days immediately preceding, but not including, December 9, 2005. The
amounts were not paid as of July 31, 2009 with the exception of
$415,742.30 that was used by Ms. Perri to repay Note Receivable, Due from
Related Party. The amount was due from EBI, Inc., a shareholder of the Company
that is controlled by the estate of the Company’s former Chairman of the Board,
Mark Perri. The note was not interest bearing, unsecured and did not have any
fixed terms of repayment. The note was extended to EBI, Inc. in May
1997.
Real Estate Transactions: On
August 7, 2002, we purchased real estate with an aggregate purchase price of
approximately $1.6 million from an unaffiliated party. In connection with that
transaction, Angara Enterprises, Inc., a licensed real estate broker that is an
affiliate of Ms. Gluskin received a commission from the proceeds of the sale to
the seller in the amount of 3% of the purchase price, or $45,714. We believe
that this is less than the aggregate commission which would have been payable if
a commission had been negotiated with an unaffiliated broker on an arm's length
basis.
On
December 9, 2005, our Board of Directors approved the grant to Ms. Perri of a
right of first refusal in respect of any sale, transfer, assignment or other
disposition of either or both real properties municipally known as 1740 Sismet
Road, Mississauga, Ontario and 98 Stafford Drive, Brampton, Ontario
(collectively, the “Properties”). We granted Ms. Perri this right in recognition
of the fair market value transfer to us during the fiscal year ended July 31,
1998 by Ms. Perri (or parties related to her) of the Properties.
We
utilize a management company to manage all of our real properties. The property
management company is owned by Ms. Perri, Ms. Gluskin and the estate of Mark
Perri, our former Chairman of the Board. In the fiscal years ended July 31, 2009
and 2008, we paid the management company approximately $47,981 and $54,473,
respectively, in management fees. We believe that the amounts paid to the
management company approximate the rates that would be charged by a
non-affiliated property management company.
Legal Fees. David Wires, a
former director, is a partner of the firm Wires Jolley LLP. Wires Jolley
represented us in various matters. During fiscal 2009 and 2008, we paid
approximately $ 900 and $44,000, respectively, in fees to Wires Jolley. We
are not using the services of Wires Jolley at present and do not expect to pay
legal fees to the firm in fiscal 2010.
Private Placement of Notes and
Warrants. One of the institutional investors in the March 2008 private
placement of the Notes and Series Warrants was Cranshire Capital, L.P.
Cranshire purchased Notes in the aggregate principal amount of $5,000,000 and
received Series A Warrants initially exercisable for 1,273,058 shares of common
stock, Series A-1 Warrants initially exercisable for 1,826,115 shares, Series B
Warrants initially exercisable for 4,132,231 and Series C Warrants initially
exercisable for 3,099,173. As of July 31, 2009, the principal amount of
the Notes held by Cranshire and accrued interest thereon was repaid in
full. On February 12, 2010, Cranshire jointly filed an amendment to
Schedule 13G with Downsview Capital, Inc. and Mitchell P. Kopin reporting
beneficial ownership of approximately 4.7% of our outstanding shares of common
stock based on (1) 248,522,740 shares of common stock issued and outstanding on
December 10, 2009, as disclosed in the Form 10-Q for the quarterly period ended
October 31, 2009, filed by Generex on December 9, 2009, plus (2) 12,192,162
shares of common stock in the aggregate issuable upon conversion of the warrants
held by Cranshire. A description of the March 2008 private placement and the
notes and warrants and subsequent agreements with the holders of the notes and
warrants is set forth under Item 7. Management’s Discussion and
Analysis of Financial Condition and Results of Operations - Financial Condition,
Liquidity and Resources - Financing – 8% Secured Convertible Notes and
Warrants in our Annual Report on Form 10-K filed with the SEC on October
14, 2009.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The table
on the following pages sets forth information regarding the beneficial ownership
of the common stock by:
|
·
|
Our executive officers and
directors;
|
|
·
|
All directors and executive
officers as a group; and
|
|
·
|
Each person known to us to
beneficially own more than five percent (5%) of our outstanding shares of
common stock.
|
The
information contained in these tables is as of May 3, 2010, except as indicated
below. At that date, we had 261,913,017 shares of common stock
outstanding.
A person
is deemed to be a beneficial owner of shares if he has the power to vote or
dispose of the shares. This power can be exclusive or shared, direct or
indirect. In addition, a person is considered by SEC rules to beneficially own
shares underlying options or warrants that are presently exercisable or that
will become exercisable within sixty (60) days.
Except as
otherwise indicated, the address of each person named in the table below is c/o
Generex Biotechnology Corporation, 33 Harbour Square, Suite 202, Toronto, Canada
M5J 2G2.
Beneficial
Ownership
Name of Beneficial Owner
|
|
Number of
Shares
|
|
|
Percent of
Class
|
|
|
|
|
|
|
|
|
(i)
Directors and Executive Officers
|
|
|
|
|
|
|
John
P. Barratt (1)
|
|
|
459,047 |
|
|
|
* |
|
Mark
Fletcher (2)
|
|
|
1,086,803 |
|
|
|
* |
|
Anna
E. Gluskin (3)
|
|
|
2,767,164 |
|
|
|
1.0 |
% |
Rose
C. Perri (4)
|
|
|
5,189,887 |
|
|
|
2.0 |
% |
Brian
T. McGee (5)
|
|
|
389,047 |
|
|
|
* |
|
Nola
Masterson (6)
|
|
|
83,333 |
|
|
|
* |
|
Officers
and Directors as a group (6 persons)
|
|
|
10,177,981 |
|
|
|
4.0 |
% |
|
|
|
|
|
|
|
|
|
(ii)
Other Beneficial Owners (and their addresses)
|
|
|
|
|
|
|
|
|
EBI,
Inc. In Trust(7)
c/o
Miller & Simons
First
Floor, Butterfield Square
P.O.
Box 260
Providencials
Turks
and Caicos Islands
British
West Indies
|
|
|
1,441,496 |
|
|
|
* |
% |
|
|
|
|
|
|
|
|
|
GHI,
Inc. In Trust (8)
c/o
Miller & Simons
First
Floor, Butterfield Square
P.O.
Box 260
Providencials
Turks
and Caicos Islands
British
West Indies
|
|
|
1,907,334 |
|
|
|
* |
% |
|
|
|
|
|
|
|
|
|
Cranshire
Capital, L.P. (9)
3100
Dundee Road, Suite 703
Northbrook,
Illinois 60062
|
|
|
12,331,859 |
|
|
|
4.7 |
% |
(1)
|
Includes
70,000 shares, 70,000, 100,000 and 35,714 shares issuable upon exercise of
stock options under the 2001 Plan the expiration dates of which were
extended on October 26, 2009, 33,333 shares issuable upon exercise of
stock options granted on March 8, 2010 under the 2006 Plan which are
vested as of date of this proxy statement, and 150,000 shares of
restricted stock awarded on May 30, 2006 under the 2006
Plan.
|
(2)
|
Includes
91,077 shares, 470,726 and 250,000 shares issuable upon exercise of stock
options under the 2001 Plan the expiration dates of which were extended on
October 26, 2009, 100,000 shares issuable upon exercise of stock options
granted on March 8, 2010 under the 2006 Plan which are vested as of date
of this proxy statement, and 175,000 shares of restricted stock granted in
August 2007 under 2006 Stock Plan.
|
(3)
|
Includes
26,127 shares held by Ms. Gluskin, 953,667 shares owned of record by GHI,
Inc. that are beneficially owned by Ms. Gluskin, 250,000 and 1,120,704
shares issuable upon exercise of stock options under the 2001 Plan the
expiration dates of which were extended on October 26, 2009,,200,000
shares of restricted stock granted in August 2007 under 2006 Stock Plan,
37,500 shares issuable upon the exercise of options granted on May 27,
2008 under the 2006 Stock Plan, and 166,666 shares issuable upon exercise
of stock options granted on March 8, 2010 under the 2006 Plan which are
vested as of date of this proxy
statement..
|
(4)
|
Includes
229,726 shares held by Ms. Perri, 953,667 shares owned of record by
GHI, Inc. that are beneficially owned by Ms. Perri, 250,000 and 576,752
shares issuable upon exercise of stock options under the 2001 Plan the
expiration dates of which were extended on October 26, 2009, 175,000
shares of restricted stock granted in August 2007 under 2006 Stock Plan,
93,750 shares issuable upon the exercise of options granted on May 27,
2008 under the 2006 Stock Plan and 133,333 shares issuable upon exercise
of stock options granted on March 8, 2010 under the 2006 Plan which are
vested as of date of this proxy statement.. Also includes the shares that
are owned by the estate of Mr. Mark Perri, of which Ms. Perri is executor
and beneficiary, but is not considered to beneficially own for some
purposes: 45,914 shares previously owned of record by Mr. Mark Perri;
1,100,000 shares owned of record by EBI, Inc. (of which Mr. Mark Perri was
beneficial owner); 305,332 shares held of record by brokerage accounts.
Also includes 341,496 shares owned of record by EBI, Inc., which Ms. Perri
may be deemed to beneficially own because of the power to vote the shares
but which are beneficially owned by other stockholders because they are
entitled to the economic benefits of the shares. Ms. Perri is also deemed
to beneficially own an additional 953,667 shares owned of record by GHI,
Inc. by holding the right to vote such shares. These shares are also
beneficially owned by Ms. Gluskin.
|
(5)
|
Includes
100,000 shares, 70,000, 100,000 and 35,714 shares issuable upon exercise
of stock options under the 2001 Plan the expiration dates of which were
extended on October 26, 2009, 33,333 shares issuable upon exercise of
stock options granted on March 8, 2010 under the 2006 Plan which are
vested as of date of this proxy statement and 150,000 shares of restricted
stock awarded on May 30, 2006 under the 2006
Plan.
|
(6)
|
Includes
50,000 shares of restricted common stock granted on August 17, 2007 under
the 2006 Plan and 33,333 shares issuable upon exercise of stock options
granted on March 8, 2010 under the 2006 Plan which are vested as of date
of this proxy statement
|
(7)
|
All
of these shares were previously beneficially owned by Mr. Mark Perri but
are now deemed to be beneficially owned by Ms. Perri because she has the
sole power to vote the shares. With respect to 1,100,000 of the shares
owned of record by EBI, Inc., Ms. Perri also has investment power and
otherwise is entitled to the economic benefits of
ownership.
|
(8)
|
Ms.
Gluskin and Ms. Perri each own beneficially 953,667 of the shares owned of
record by GHI, Inc. by reason of their ownership of investment power and
other economic benefits associated with such shares. The shares
beneficially owned by Ms. Gluskin also are deemed to be beneficially owned
by Ms. Perri because she has the sole power to vote the
shares.
|
(9)
|
As
reported in Amendment No. 2 to Schedule 13G filed with the SEC on February
12, 2010, Downsview Capital, Inc. (“Downsview”) is the general partner of
Cranshire Capital, L.P. (“Cranshire”) and consequently has voting
control and investment discretion over securities held by Cranshire.
Mitchell P. Kopin (“Mr. Kopin”), President of Downsview, has voting
control over Downsview. As a result of the foregoing, each of Mr. Kopin
and Downsview may be deemed to have beneficial ownership (as determined
under Section 13(d) of the Securities Exchange Act of 1934, as amended) of
any shares of common stock of Generex deemed to be beneficially owned by
Cranshire. The number of shares assumes that there has been no
change in the number of shares beneficially owned from the number of
shares reported as being beneficially owned in Amendment No. 2 to Schedule
13G.
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SECTION
16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Exchange Act requires that Generex's directors and executive
officers, and any persons who own more than ten percent (10%) of Generex's
common stock, file with the Securities and Exchange Commission (the “SEC”)
initial reports of ownership and reports of changes in ownership of common stock
and other equity securities of Generex. Such persons are required by SEC
regulations to furnish Generex with copies of all such reports that they
file. To the knowledge of Generex, based upon its review of these reports,
all Section 16 reports required to be filed by its directors and executive
officers during the fiscal year ended July 31, 2009 were filed on a timely
basis.
OTHER
INFORMATION
Annual
Report
Copies of
our Annual Report on Form 10-K for the fiscal year ended July 31, 2009 (without
exhibits or documents incorporated by reference therein), are available without
charge to stockholders upon written request to the Secretary of Generex at
Generex Biotechnology Corporation, 33 Harbour Square, Suite 202, Toronto,
Ontario, Canada M5J 2G2, by calling 305-918-7000 or via the Internet at www.generex.com.
Stockholders
are referred to the report for financial and other information about Generex,
but such report is not incorporated in this proxy statement and is not a part of
the proxy soliciting material.
Stockholder
Proposals for the Next Annual Meeting
Any
proposals of stockholders intended to be presented at the 2011 annual meeting of
stockholders must be received by Generex at 33 Harbour Square, Suite 202,
Toronto, Ontario, Canada M5J 2G2, no later than February 19, 2011 in order to be
included in the proxy materials and form of proxy relating to such
meeting. It is suggested that stockholders submit any proposals by an
internationally recognized overnight delivery service to the Secretary of
Generex at its principal executive offices located at 33 Harbour Square, Suite
202, Toronto, Ontario, Canada M5J 2G2. Such proposal must meet the
requirements set forth in the rules and regulations of the SEC in order to be
eligible for inclusion in the proxy materials for such meeting. The annual
meeting for the fiscal year ended July 31, 2010 is tentatively scheduled to
take place in July 2011.
For
business to be properly brought before the 2011 annual meeting by a stockholder
in a form other than a stockholder proposal requested to be included in
Generex’s proxy materials, any stockholder who wishes to bring such business
before the annual meeting of stockholders must give notice of such business in
writing to the Secretary of Generex not less than 60 nor more than 90 days prior
to the annual meeting. In the event that less than 70 days notice or prior
disclosure of the date of the meeting is given or made to stockholders, notice
of such business to be timely must be received by the Secretary of Generex not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
The stockholder's notice of such business must provide information about the
stockholder proposing such business and the nature the business, as required by
Generex's bylaws. A copy of these bylaw requirements will be provided upon
request in writing to Mark Fletcher, Executive Vice President and General
Counsel, at the principal offices of Generex.
If there
should be any change in the foregoing submission deadlines, Generex intends to
publicly disseminate information concerning the change.
Appendix
A
FORM OF
CERTIFICATE OF AMENDMENT
TO
RESTATED
CERTIFICATE OF INCORPORATION
OF
GENEREX
BIOTECHNOLOGY CORPORATION
Generex
Biotechnology Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
“DGCL”),
DOES
HEREBY CERTIFY:
FIRST:
That, in accordance with Section 242 of the DGCL, the Board of Directors
of Generex Biotechnology Corporation (the “Corporation”), by unanimous written
consent filed with the minutes of the Board of Directors, duly adopted by
resolution the amendment (the “Amendment”) to the Corporation’s Restated
Certificate of Incorporation (the “Certificate of Incorporation”) and directed
that said Amendment be submitted to the stockholders of the Corporation for
consideration.
SECOND:
That thereafter, the holders of a
majority of the outstanding stock of the Corporation entitled to vote thereon
approved the Amendment at the annual meeting of the Corporation’s stockholders
in accordance with Section 242 of the DGCL.
THIRD:
Effective upon the filing
of this Certificate of Amendment with the Delaware Secretary of State, the
Certificate of Incorporation is hereby amended by deleting Article FOURTH in its
entirety and replacing it with the following:
|
“FOURTH:
The aggregate number of shares of all classes of stock that this
Corporation shall have the authority to issue after giving effect to the
Reverse Stock Split (as defined herein) is 751,000,000 shares, consisting
of (a) 750,000,000 shares of common stock, par value $.001 per share, and
(b) 1,000,000 shares of preferred stock, par value $.001 per share.
The preferred stock may be issued in one or more series and may have
preferences as to dividends and to liquidation of the Corporation.
The Board of Directors of the Corporation shall establish the specific
rights, preferences, voting privileges and restrictions of such preferred
stock or any series thereof.
|
|
“Upon
the filing and effectiveness (the “Effective Time”) of this Certificate if
Amendment to the Restated Certificate of Incorporation, each [number]1 shares of the Corporation’s common
stock, issued and outstanding immediately prior to the Effective Time,
shall automatically 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, subject to treatment of fractional
share interests as described below (the “Reverse Stock Split”). No
certificates representing fractional shares shall be issued in connection
with the Reverse Stock Split. Stockholders who otherwise would be
entitled to receive a fractional share of common stock shall be entitled
to receive from the Corporation’s transfer agent, in lieu of any
fractional share, the number of shares rounded up to the next whole
number. 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 such Old Certificate shall have been combined,
subject to the elimination of fractional share interests as set forth
above. Shares of common stock that were outstanding prior to the
Effective Time and that are not outstanding after the Effective Time shall
resume the status of authorized but unissued shares of common
stock.”
|
FOURTH:
This
Certificate of Amendment will be effective upon filing.
IN
WITNESS WHEREOF, Generex Biotechnology Corporation has caused this Certificate
of Amendment to the Restated Certificate of Amendment to be signed by Anna E.
Gluskin, its Chief Executive Officer, this day of
,
2010.
GENEREX
BIOTECHNOLOGY CORPORATION
|
|
|
By:
|
|
|
|
|
Anna
E. Gluskin
Chief
Executive Officer
|
1 The
ratio for the reverse stock split will selected by our Board of Directors within
the range approved by our stockholders.