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EX-99.1 - GENEREX BIOTECHNOLOGY CORP | v199423_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
Current
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of Report (Date of earliest event reported): October 18, 2010
GENEREX
BIOTECHNOLOGY CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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000-29169
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98-0178636
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(I.R.S
Employer Identification No.)
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33
Harbour Square, Suite 202, Toronto, Ontario Canada
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M5J
2G2
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (416) 364-2551
N/A
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
3.01.
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Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard;Transfer of Listing.
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As
previously disclosed, Generex Biotechnology Corporation (“Generex”) received
notice from The NASDAQ Stock Market on July 28, 2008 that it was not in
compliance with Marketplace Rule 4310(c)(4) (now known as Listing Rule
5550(a)(2)), which required Generex to have a minimum bid price per share of at
least $1.00 for thirty (30) consecutive business days. In accordance
with this Rule, Generex had 180 calendar days, or until January 20, 2009,
subject to extension, to regain compliance with this Rule. The
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, Generex received a second letter from NASDAQ indicating that
it 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
Generex an additional 180 calendar day compliance period because Generex met all
other initial inclusion criteria (other than the minimum bid price requirement)
as of January 6, 2009. Generex had 180 calendar days, or until May 5,
2010, to regain compliance with the rule. NASDAQ noted that if
Generex failed to regain compliance with this rule during the grace period, its
common stock would be subject to immediate delisting. To regain
compliance with the minimum bid price requirement, the closing bid price of the
common stock had to close at $1.00 per share or more for a minimum of ten
00consecutive business days.
On May 5,
2010, Generex’s common stock closed at $0.3999. On May 6, 2010,
Generex received a delisting determination letter from the staff of The NASDAQ
Stock Market due to its failure to regain compliance with The NASDAQ Capital
Market's minimum bid price requirement for continued listing. Generex
appealed the NASDAQ Staff's determination. The hearing occurred on
June 10, 2010. The appeal to the Hearings Panel stayed the suspension
of Generex’s securities and the filing of a Form 25-NSE with the
SEC.
On July
9, 2010, the NASDAQ Hearings Panel granted Generex’s request to remain listed on
The NASDAQ Stock Market, subject to certain conditions. One of these
conditions required Generex to inform the Panel on or about July 28, 2010 that
it had obtained shareholder approval to implement a reverse stock split in a
ratio sufficient to meet the $1.00 bid price requirement for continued listing
set forth in NASDAQ Listing Rule 5550(a)(2).
On July
28, 2010, Generex held the Annual Meeting of Stockholders. One of the
proposals that was voted on by the stockholders at the Annual Meeting was
whether or not to approve a proposed amendment to the Restated Certificate of
Incorporation to, among other things, effect a reverse stock split in a 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, following the reverse stock split, to maintain the
authorized shares of common stock at 750,000,000. The proposal was
not approved because it did not receive a favorable vote from the holders of at
least 50% of the outstanding shares. Generex reported the results of
the Annual Meeting to the NASDAQ Hearings Panel, and requested additional time
to hold a Special Meeting dedicated to approving the reverse stock
split.
On August
23, 2010, Generex filed a definitive proxy statement on Schedule 14A (as revised
on August 27, 2010, the “Proxy Statement”) with the Securities and Exchange
Commission for a Special Meeting of the stockholders to be held on September 17,
2010. The purpose of the Special Meeting was to vote on a proposal to
an amendment to Generex’s 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-2 and not more than 1-for-10 at any time prior to September 16, 2011
(the implementation of the reverse stock split, ratio and timing of which will
be subject to the discretion of the Board of Directors), and (ii) following the
reverse stock split, if implemented, to reduce the number of authorized shares
of common stock from 750,000,000 to 500,000,000 unless the Board of Directors
utilizes a ratio of not more than 1-for-2, in which case, the number of
authorized shares of common stock will be maintained at
750,000,000.
On
September 14, 2010, the NASDAQ Hearings Panel granted Generex’s further request
for continued listing, subject to certain conditions. These
conditions included informing the Panel on or about October 15, 2010 that
Generex obtained shareholder approval to implement a reverse stock split in a
ratio sufficient to meet the $1.00 bid price and demonstrating on or before
November 2, 2010 a closing bid price of $1.00 or more for a minimum of ten prior
consecutive trading days.
Following
the NASDAQ Hearings Panel’s grant of Generex’s request for continued listing,
Generex sought and obtained approval from stockholders to adjourn the Special
Meeting until October 15, 2010 in order to provide it with more time to solicit
additional proxies for the reverse stock split proposal. As described
below under Item 5.07, the reverse stock split proposal was not approved at the
reconvened Special Meeting held on October 18, 2010 because it fell short of the
required threshold of at least 50% of the total shares outstanding voting in
favor.
On
October 19, 2010, Generex received a notice from NASDAQ that it has not regained
compliance with the $1.00 bid price requirement for continued listing set forth
in NASDAQ Listing Rule 5550(a)(2), and, accordingly, its securities will be
delisted from the NASDAQ Capital Market effective at the open of trading on
October 21, 2010. Generex has determined to appeal the NASDAQ
Hearings Panel's decision to the Listing Council; however, the appeal to the
Listing Council will not stay the Panel's decision or the suspension of the
trading of Generex’s stock pending a final determination by the Listing
Council.
Generex
expects its common stock will be quoted on the OTCQB effective with the opening
of markets on October 21, 2010 following its delisting from the NASDAQ Capital
Market.
Item
5.07.
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Submission
of Matters to a Vote of Security
Holders.
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On
October 18, 2010, Generex reconvened a Special Meeting of the stockholders
following the adjournment of the Special Meeting on September 17,
2010. The proposals submitted to the stockholders for a vote at the
reconvened Special Meeting on October 18, 2010 were the following proposals,
which are described in detail in the Proxy Statement:
1)
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To
approve an amendment to Generex’s Restated Certificate of Incorporation
(i) to effect a reverse stock split of the common stock, at an exchange
ratio of not less than 1-for-2 and not more than 1-for-10 at any time
prior to September 16, 2011 (the implementation of the reverse stock
split, ratio and timing of which will be subject to the discretion of the
Board of Directors), and (ii) following the reverse stock split, if
implemented, to reduce the number of authorized shares of common stock
from 750,000,000 to 500,000,000 unless the Board of Directors utilizes a
ratio of not more than 1-for-2, in which case, the number of authorized
shares of common stock will be maintained at 750,000,000 (the “Reverse
Split Proposal”); and
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2)
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To
approve the adjournment of the Special Meeting, if necessary, to solicit
additional proxies for the Reverse Stock Split Proposal (the “Adjournment
Proposal”).
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Only
stockholders of record as of the close of business on August 17, 2010 were
entitled to vote at the reconvened Special Meeting. As of August 17,
2010, 269,360,643 shares of common stock of Generex were outstanding and
entitled to vote at the Special Meeting. At the Special Meeting,
191,872,323 shares of common stock of Generex were represented, in person or by
proxy, constituting a quorum.
The votes
with respect to the proposals are set forth below.
(1)
Reverse Stock Split Proposal:
For
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Against
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Abstain
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127,819,048
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62,850,827
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1,202,448
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The
Reverse Stock Split Proposal was not approved as only 47.45% of the outstanding
common stock voted in favor of the Reverse Stock Split Proposal and at least 50%
of the outstanding common stock would have needed to vote in favor to approve
it.
(2)
Adjournment Proposal:
For
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Against
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Abstain
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130,011,921
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57,787,329
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4,073,073
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The
Adjournment Proposal was approved.
A copy of
the press release announcing the results of the reconvened Special Meeting and
Generex’s delisting is attached as Exhibit 99.1 to this Form 8-K.
Item
9.01
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Financial
Statements and Exhibits
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(d)
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Exhibits.
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The
following material is filed as an exhibit to this Form
8-K.
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Exhibit
99.1
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Press
release of Generex Biotechnology Corporation, dated October 19,
2010.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
GENEREX
BIOTECHNOLOGY CORPORATION.
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Date:
October 19, 2010
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/s/ Rose C. Perri
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Rose
C. Perri
Chief
Operating Officer
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/s/ John P. Barratt
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John
P. Barratt
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Chairman
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Exhibit Index
Exhibit
Number
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Description
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99.1
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Press
release of Generex Biotechnology Corporation dated October 19,
2010
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