ý |
Preliminary
Proxy Statement
|
¨ |
Confidential,
For use of the Commission only (as permitted
by
|
Rule
14a-6(e)(2))
|
¨ |
Definitive
Proxy Statement
|
¨ |
Definitive
Additional Materials
|
¨ |
Soliciting
Material Pursuant to §240.14a-12
|
ý |
No
fee required.
|
¨ |
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
¨ |
Fee
paid previously with preliminary materials.
|
1.
|
To
elect five directors;
|
2.
|
To
authorize the Board of Directors, in the three-month period commencing
with the date of the annual meeting, to issue, without prior stockholder
approval, in connection with capital raising transactions, and/or
acquisitions of assets, businesses or companies, up to 25,000,000
shares
of common stock, including options, warrants, securities or other
rights
convertible into common stock, in the aggregate, in excess of the
number
of shares that NASDAQ Marketplace Rules 4350(i)(1)(C) and (D) permit
us to
issue in such transactions without prior stockholder approval, the
issuance of such 25,000,000 shares to be upon such terms as the Board
of
Directors shall deem to be in our best interests, for a price of
not less
than 70% of the market price at the time of such issuance and for
an
aggregate consideration not to exceed $50,000,000, which such
authorization shall include shares of common stock issued by us at
or
above market price prior to the date of the annual meeting (a "Prior
Issuance") in the event The NASDAQ Stock Market LLC integrates (i)
a new
below market issuance by us within the three-month period commencing
on
the date of the annual meeting with (ii) the Prior Issuance;
|
3.
|
To
ratify the appointment of Danziger Hochman Partners LLP as independent
public accountants for the fiscal year ending July 31, 2008;
and
|
4.
|
To
transact such other business as may properly come before the annual
meeting and any adjournment or postponement of the
meeting.
|
/s/
Rose C. Perri
|
Rose
C. Perri
|
Secretary
|
Page
|
|
|
|
About
the 2008 Annual Meeting and Voting at the Meeting
|
1
|
Election
of Directors (Item 1 on the Proxy Card)
|
5
|
Independence
and Compensation of Directors
|
6
|
Director
Independence
|
6
|
Non-Employee
Directors’ Compensation
|
7
|
Corporate
Governance
|
7
|
Code
of Ethics
|
7
|
Board
Meetings and Committees; Annual Meeting Attendance
|
8
|
Audit
Committee
|
8
|
Compensation
Committee
|
8
|
Compensation
Committee Interlocks and Insider Participation
|
9
|
Corporate
Governance and Nominating Committee
|
9
|
Director
Nominations by Stockholders
|
10
|
Communications
with Directors
|
10
|
Approval
of the Potential Issuance and Sale of Shares at Prices Below the
Then
Current Market Price in Potential Capital Raising Transactions and/or
Acquisitions (Item 2 on the Proxy Card)
|
11
|
Potential
Equity Related Investments
|
12
|
Effect
of a Potential Equity Related Investment upon Existing
Stockholders
|
12
|
Ratification
of Appointment of Danziger Hochman Partners LLP as Independent Public
Accountants for Fiscal Year 2008 (Item 3 on the Proxy
Card)
|
14
|
Audit
Matters
|
14
|
Fees
Paid to Generex’s Independent Public Accountants
|
14
|
Policy
for Pre-Approval of Audit and Non-Audit Services
|
14
|
Report
of the Audit Committee
|
15
|
Compensation
Matters
|
16
|
Compensation
Discussion and Analysis
|
16
|
Compensation
Committee Report
|
21
|
Executive
Compensation Tables
|
22
|
Other
Benefit Plans
|
26
|
Employment
Agreements
|
26
|
Potential
Payments upon Termination of Employment or Change in
Control
|
29
|
Certain
Transactions
|
32
|
Change
of Control
|
32
|
Certain
Relationships and Related Transactions
|
32
|
Security
Ownership of Certain Beneficial Owners and Management
|
33
|
Section
16(a) Beneficial Ownership Reporting Compliance
|
36
|
Other
Information
|
37
|
Annual
Report.
|
37
|
Stockholder
Proposals for the Next Annual Meeting
|
37
|
Appendix
A – Charter of Audit Committee
|
A-1
|
Appendix B - Charter of Corporate Governance and Nominating Committee |
B-1
|
· |
To
elect five directors;
|
· |
To
authorize the Board of Directors to issue up to 25,000,000 shares
of
common stock at less than market price in excess of amounts permitted
under NASDAQ Marketplace Rules 4350(i)(1)(C) and
(D);
|
· |
To
ratify the appointment of Danziger Hochman Partners LLP as our independent
public accountants for the fiscal year ending July 31, 2008;
and
|
· |
To
transact such other business as may properly come before the annual
meeting and any adjournment or postponement of the
meeting.
|
· |
By
Internet — We encourage you to vote and submit your proxy over the
Internet at [web address].
|
· |
By
telephone — You may vote and submit your proxy by calling
[#-###-###-####].
|
· |
By
mail — If you received your proxy materials by mail, you may vote by
completing, signing and returning the enclosed proxy card.
|
· |
Shares
held directly in your name as the stockholder of record;
and
|
· |
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.
|
· |
Signing
another proxy card with a later date and returning it to us prior
to the
meeting.
|
· |
Voting
again over the Internet or by telephone prior to [10:00] a.m., Eastern
Time, on May 27, 2008.
|
· |
Voting
at the meeting if you are the stockholder of record.
|
· |
Voting
at the meeting if you are the beneficial owner and have obtained
a legal
proxy from your bank or broker.
|
· |
FOR
the election of the nominees for director named on page 5 of this
Proxy
Statement.
|
· |
FOR
the proposal to authorize the Board of Directors to issue up to 25,000,000
shares of common stock at less than market price in excess of amounts
permitted under NASDAQ Marketplace Rules 4350(i)(1)(C) and
(D).
|
· |
FOR
the ratification of the appointment of Danziger Hochman Partners
LLP as
our independent public accountants for the fiscal year ending July
31,
2008.
|
· |
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.
|
Name
|
Age
|
Position
Held with Generex
|
Director
Since
|
|||
Anna
E. Gluskin
|
56
|
Chairperson,
President, Chief Executive Officer and Director
|
September
1997
|
|||
Rose
C. Perri
|
40
|
Chief
Operating Officer, Chief Financial Officer, Treasurer, Secretary
and
Director
|
September
1997
|
|||
John
P. Barratt
|
63
|
Independent
Director
|
March
2003
|
|||
Brian
T. McGee
|
47
|
Independent
Director
|
March
2004
|
|||
Nola
E. Masterson
|
61
|
Independent
Director
|
May
2007
|
Name
|
Fees Earned or
Paid in Cash
|
|
Stock Awards
|
|
Option Awards
(1
)
|
|
All Other
Compensation
|
|
Total
|
|||||||
Mindy
J. Allport-Settle (2)
|
$
|
30,000
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
30,000
|
||||||
Peter
G. Amanatides
|
$
|
40,000
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
40,000
|
||||||
John
P. Barratt
|
$
|
40,000
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
40,000
|
||||||
Nola
E. Masterson (3)
|
$
|
6,667
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
6,667
|
||||||
Brian
T. McGee
|
$
|
40,000
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
40,000
|
||||||
David
E. Wires (4)
|
$
|
30,000
|
$
|
0
|
$
|
0
|
$
|
0
|
$
|
30,000
|
|
Fiscal Year Ended
July 31, 2006
|
Fiscal Year Ended
July 31, 2007
|
|||||
Audit
Fees
|
$
|
184,082
|
(1)
|
$
|
217,831
|
(1)
|
|
Audit-Related
Fees
|
$
|
145,860
|
(2)
|
$
|
123,315
|
(2)
|
|
Tax
Fees
|
$
|
0
|
$
|
0
|
|||
All
Other Fees
|
$
|
0
|
(3)
|
$
|
0
|
(3)
|
Named Executive
|
Current
(Effective August 1, 2004)
|
Fiscal Year 2005
Retroactive Adjustment
(Effective August 1, 2005)
|
Fiscal Year 2007
Retroactive Adjustment
(Effective January 1, 2007)
|
|||||||
Anna
E. Gluskin
President
and CEO
|
$
|
425,000
|
$
|
450,000
|
$
|
500,000
|
||||
Rose
C. Perri
COO,
CFO, Treasurer and Secretary
|
$
|
325,000
|
$
|
350,000
|
$
|
400,000
|
||||
Mark
A. Fletcher
EVP
and General Counsel
|
$
|
250,000
|
$
|
275,000
|
$
|
300,000
|
·
|
Ms.
Gluskin’s role as President, Chief Executive Officer and Chairperson of
the Board of Directors, as well as her efforts in securing financing
for
Generex;
|
|
·
|
Ms.
Perri’s roles as Chief Operating Officer, Chief Financial Officer,
Treasurer and Secretary; and
|
|
·
|
Mr.
Fletcher’s role as General Counsel and Executive Vice President, as well
as his efforts as chief legal compliance officer for
Generex.
|
Named Executive
|
Restricted
Shares
|
|||
Anna
E. Gluskin
President
and CEO
|
200,000
shares
|
|||
Rose
Perri
COO,
CFO, Treasurer and Secretary
|
175,000
shares
|
|||
Mark
A. Fletcher
EVP,
General Counsel
|
175,000
shares
|
·
|
commercial
launch of Oral-lyn™ in Ecuador;
|
|
·
|
filing
of a patent pertaining to Glucose RapidSpray™;
|
|
·
|
development
of a distribution arrangements in the Middle East for Oral-lyn™ and
Glucose RapidSpray™;
|
·
|
final
agreement with Fertin Pharma A/S for metformin gum;
|
|
·
|
preparation
and filing of applications to Health Canada and FDA for Glucose
RapidSpray™; and acceptance of classification as food item in both
jurisdictions; and
|
|
·
|
preparation
and filing of vendor submissions to various distributors and retail
chains
in the United States and Canada for Glucose
RapidSpray™.
|
·
|
submission
to Health Canada of an approvable New Drug Submission for
Oral-lyn™;
|
|
·
|
executive
goal forecasts for high-level project plans for 2006 and
2007;
|
|
·
|
commercialization
of Glucose RapidSpray™ by end of December 2006;
|
|
·
|
submission
of 2006-2007 budget to Board; and
|
|
·
|
operating
within budget for the fiscal year.
|
Name and
Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option
Awards
($)
|
All Other
Compensation ($)
|
Total
($)
|
|||||||||||||||
Anna
E. Gluskin
President
and
Chief
Executive Officer
|
2007
|
$
|
504,167
|
(1)
|
$
|
0
|
(2)
|
$
|
151,000
|
(3)
|
$
|
0
|
(4)
|
$
|
23,916
|
(5)
|
$
|
679,083
|
||||
Rose
C. Perri
Chief
Operating Officer,
Chief
Financial Officer,
Treasurer
and Secretary
|
2007
|
$
|
404,167
|
(6)
|
$
|
0
|
(2)
|
$
|
132,125
|
(3)
|
$
|
0
|
(4)
|
$
|
23,916
|
(5)
|
$
|
560,208
|
||||
Mark
A. Fletcher
Executive
Vice President
and
General Counsel
|
2007
|
$
|
314,583
|
(7)
|
$
|
0
|
(2)
|
$
|
188,750
|
(3)
|
$
|
0
|
(4)
|
$
|
0
|
$
|
503,333
|
|||||
Gerald
Bernstein, MD
Vice
President, Medical Affairs
|
2007
|
$
|
200,000
|
$
|
25,000
|
$
|
0
|
$
|
62,500
|
(8)
|
$
|
0
|
(9)
|
$
|
287,500
|
Name
|
Grant Date
|
All Other Stock
Awards: Number
of Shares of Stock
or Units
(#) (1)
|
All Other Option
Awards: Number of
Securities
Underlying Options
(#) (2)
|
Exercise or
Base Price of
Option Awards
($/Sh) (3)
|
Grant Date
Fair Value of
Stock and
Option Awards
(4)
|
|||||||||||
Gerald
Bernstein, MD
Vice
President, Medical Affairs
|
3/5/2007
|
-
|
50,000
|
$
|
1.71
|
$
|
1.25
|
Name
|
Option Grant
Date
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
Option Exercise
Price ($)
|
Option
Expiration
Date
|
|||||||||||
Anna
E. Gluskin
|
11-29-2002
|
350,000
|
(1)
|
0
|
$
|
2.10
|
11-29-2007
|
|||||||||
President
and Chief Executive Officer
|
11-24-2003
|
100,000
|
(2)
|
0
|
$
|
1.62
|
11-24-2008
|
|||||||||
|
12-13-2004
|
250,000
|
(3)
|
0
|
$
|
0.61
|
12-13-2009
|
|||||||||
|
4-5-2005
|
819,672
|
(4)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
4-5-2005
|
301,032
|
(5)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
|
|
|
|
|
|||||||||||
Rose
C. Perri
|
11-29-2003
|
300,000
|
(1)
|
0
|
$
|
2.10
|
11-29-2007
|
|||||||||
Chief
Operating Officer, Chief
|
11-24-2003
|
100,000
|
(2)
|
0
|
$
|
1.62
|
11-24-2008
|
|||||||||
Financial
Officer, Treasurer and Secretary
|
12-13-2004
|
250,000
|
(3)
|
0
|
$
|
0.61
|
12-13-2009
|
|||||||||
|
4-5-2005
|
409,836
|
(6)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
4-5-2005
|
166,916
|
(7)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
|
|
|
|
|
|||||||||||
Mark
E. Fletcher
|
3-19-2003
|
250,000
|
(8)
|
0
|
$
|
0.89
|
3-19-2008
|
|||||||||
Executive
Vice President
|
12-13-2004
|
250,000
|
(3)
|
0
|
$
|
0.61
|
12-13-2009
|
|||||||||
and
General Counsel
|
4-5-2005
|
327,869
|
(9)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
4-5-2005
|
142,857
|
(10)
|
0
|
$
|
0.001
|
4-4-2010
|
|||||||||
|
|
|
|
|
|
|||||||||||
Gerald
Bernstein, MD
|
3-19-2003
|
50,000
|
(11)
|
0
|
$
|
1.00
|
3-19-2008
|
|||||||||
Vice
President, Medical Affairs
|
12-13-2004
|
100,000
|
(3)
|
0
|
$
|
0.61
|
12-13-2009
|
|||||||||
|
4-18-2006
|
50,000
|
(11)
|
0
|
$
|
2.66
|
4-17-2011
|
|||||||||
|
3-5-2007
|
50,000
|
(11)
|
0
|
$
|
1.71
|
3-5-2012
|
Name
|
Aggregate Balance
at Last FYE
($)
|
|||
Anna
Gluskin
|
$
|
1,000,000.00
|
||
Rose
C. Perri
|
$
|
584,257.70
|
· |
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.
|
· |
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.
|
|
(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.
|
· |
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 her current annual base salary
under the terms of her respective employment with Generex, which
salary
may not be reduced during the term of such employment. On April 5,
2005,
the Board of Directors increased Ms. Gluskin’s base salary to $425,000,
effective as of August 1, 2004. On August 17, 2007, the Board of
Directors
increased her base salary to $450,000, effective as of August 1,
2005, and
to $500,000, effective as of January 1, 2007. On April 5, 2005, the
Board
of Directors increased Ms. Perri’s base salary to $325,000, effective as
of August 1, 2004. On August 17, 2007, the Board of Directors increased
her base salary to $350,000, effective as of August 1, 2005, and
to
$400,000, effective as of January 1,
2007.
|
|
(i)
|
upon
30 days written notice;
|
|
(ii)
|
for
“cause”;
|
|
(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.
|
|
(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.
|
|
(i)
|
by
either party upon 90 days written notice;
|
|
(ii)
|
by
Generex for “cause” as defined in the agreement;
|
|
(iii)
|
immediately
by Generex upon Dr. Bernstein’s death;
|
|
(iv)
|
immediately
by Generex if Dr. Bernstein has been unable to perform his regular
duties
due to disability for more than 9 months in any 12 month
period;
|
|
(v)
|
by
Dr. Bernstein for Generex’s material breach or default that continues
after notice and a 14-day cure
period.
|
(i) |
breached
his or her employment or service contract with
Generex;
|
(ii) |
engaged
in disloyalty to Generex, including, without limitation, fraud,
embezzlement, theft, commission of a felony or proven dishonesty
in the
course of his or her employment or service;
|
(iii) |
disclosed
trade secrets or confidential information of Generex to persons not
entitled to receive such information;
|
(iv) |
breached
any written confidentiality, non-competition or non-solicitation
agreement
between the named executive and Generex;
or
|
(v) |
has
engaged in such other behavior detrimental to the interests of Generex
as
determined by the Compensation
Committee.
|
(i) |
a
liquidation or dissolution of Generex,
|
(ii) |
a
sale of all or substantially all of Generex’s assets,
|
(iii) |
a
merger in which Generex’s stockholders hold less than 80% of the voting
stock in the surviving corporation,
or
|
(iv) |
when
a person or group acquires control of more than 20% of the voting
stock
without the approval of the Board of Directors.
|
Name
|
Benefit
|
Cause
|
Without
Cause/Non-Renewal
|
Voluntary
Termination by Executive
|
Breach by
Generex
(1)
|
Change in
Control
|
Disability
|
Death
|
|||||||||||||||||
Anna
E. Gluskin
|
Cash
Payment
|
(2)
|
$
|
0
|
$
|
3,000,000
|
$
|
0
|
$
|
3,000,000
|
$
|
3,000,000
|
|
(15)
|
|
(15)
|
|||||||||
|
Stock
|
(3) |
$
|
0
|
$
|
2,000,000
|
$
|
0
|
$
|
2,000,000
|
$
|
2,000,000
|
$
|
0
|
$
|
0
|
|||||||||
|
Stock
Options
|
$
|
2,039,506
|
(4)
|
$
|
2,039,506
|
(5)
|
$
|
2,039,506
|
(5)
|
$
|
2,039,506
|
(5)
|
$
|
2,039,506
|
(9)
|
$
|
2,039,506
|
(6)
|
$
|
2,039,506
|
(7)
|
|||
|
Benefits
|
$
|
0
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
$
|
0
|
||||||
|
Total
|
$
|
2,039,506
|
$
|
7,039,506
|
$
|
2,039,506
|
$
|
7,039,506
|
$
|
7,039,506
|
$
|
2,039,506
|
$
|
2,039,506
|
||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Rose
C. Perri
|
Cash
Payment
|
(2)
|
$
|
0
|
$
|
3,000,000
|
$
|
0
|
$
|
3,000,000
|
$
|
3,000,000
|
|
(15)
|
|
(15)
|
|||||||||
|
Stock
|
(3) |
$
|
0
|
$
|
2,000,000
|
$
|
0
|
$
|
2,000,000
|
$
|
2,000,000
|
$
|
0
|
$
|
0
|
|||||||||
|
Stock
Options
|
$
|
1,169,726
|
(4)
|
$
|
1,169,726
|
(5)
|
$
|
1,169,726
|
(5)
|
$
|
1,169,726
|
(5)
|
$
|
1,169,726
|
(9)
|
$
|
1,169,726
|
(6)
|
$
|
1,169,726
|
(7)
|
|||
|
Benefits
|
$
|
0
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
(8)
|
$
|
0
|
$
|
0
|
||||||
|
Total
|
$
|
1,169,726
|
$
|
6,169,726
|
$
|
1,169,726
|
$
|
6,169,726
|
$
|
6,169,726
|
$
|
1,169,726
|
$
|
1,169,726
|
||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Mark
A. Fletcher
|
Cash
Payment
|
$
|
0
|
$
|
375,000
|
(10)
|
$
|
0
|
$
|
375,000
|
(10)
|
$
|
375,000
|
(10)
|
|
(15)
|
|
(15)
|
|||||||
|
Stock
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||
|
Stock
Options
|
$
|
1,000,191
|
(4)
|
$
|
1,000,191
|
(5),(11)
|
$
|
1,000,191
|
(5)
|
$
|
1,000,191
|
(5),(11)
|
$
|
1,000,191
|
(9)
|
$
|
1,000,191
|
(6)
|
$
|
1,000,191
|
(7)
|
|||
|
Benefits
|
$
|
0
|
$
|
0
|
(8),(10)
|
$
|
0
|
(8)
|
$
|
0
|
(8),(10)
|
$
|
0
|
(8),
(10)
|
$
|
0
|
$
|
0
|
||||||
|
Total
|
$
|
1,000,191
|
$
|
1,375,191
|
$
|
1,000,191
|
$
|
1,375,191
|
$
|
1,375,191
|
$
|
1,000,191
|
$
|
1,000,191
|
||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Gerald
Bernstein, M.D.
|
Cash
Payment
|
$
|
0
|
(12)
|
$
|
133,334
|
(13)
|
$
|
0
|
$
|
133,134
|
(14)
|
$
|
0
|
|
(15)
|
|
(15)
|
|||||||
|
Stock
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||
|
Stock
Options
|
$
|
99,000
|
(4),(12)
|
$
|
99,000
|
(5)
|
$
|
99,000
|
(5)
|
$
|
99,000
|
(5)
|
$
|
99,000
|
(9)
|
$
|
99,000
|
(6)
|
$
|
99,000
|
(7)
|
|||
|
Benefits
|
$
|
0
|
(12)
|
$
|
0
|
(13)
|
$
|
0
|
$
|
0
|
(14)
|
$
|
0
|
$
|
0
|
$
|
0
|
|||||||
|
Total
|
$
|
99,000
|
$
|
232,334
|
$
|
99,000
|
$
|
232,334
|
$
|
99,000
|
$
|
99,000
|
$
|
99,000
|
Name
of Beneficial Owner
|
Number
of
Shares
|
Percent
of
Class
|
|||||
|
|
|
|||||
(i)
Directors and Executive Officers
|
|||||||
|
|||||||
Peter
G. Amanatides (1)
|
251,000
|
*
|
|||||
John
P. Barratt (2)
|
495,714
|
*
|
|||||
Gerald
Bernstein, M.D. (3)
|
303,469
|
*
|
|||||
Mark
Fletcher (4)
|
1,109,086
|
1.0
|
%
|
||||
Anna
E. Gluskin (5)
|
2,890,498
|
2.6
|
%
|
||||
Rose
C. Perri (6)
|
5,419,054
|
4.9
|
%
|
||||
Brian
T. McGee (7)
|
455,714
|
*
|
|||||
Nola
Masterson (8)
|
102,700
|
*
|
|||||
Officers
and Directors as a group (8 persons)
|
11,202,174
|
10.0
|
%
|
||||
|
|||||||
(ii)
Other Beneficial Owners (and their
addresses)
|
|||||||
EBI,
Inc. In Trust(9)
c/o
Miller & Simons
First
Floor, Butterfield Square
P.O.
Box 260
Providencials
Turks
and Caicos Islands
British
West Indies
|
1,441,496
|
1.3
|
%
|
||||
GHI,
Inc. In Trust (10)
c/o
Miller & Simons
First
Floor, Butterfield Square
P.O.
Box 260
Providencials
Turks
and Caicos Islands
British
West Indies
|
1,907,334
|
1.7
|
%
|
1.
|
Review
and reassess the adequacy of this Charter from time to time and recommend
any proposed changes to the Board for
approval.
|
2.
|
Review
the Company's annual audited financial statements with management
and the
Company's independent auditor, including major issues regarding accounting
and auditing principles and
practices.
|
3.
|
Review
with management and the Company's independent auditor any significant
financial reporting issues and judgments observed by or brought to
the
attention of the Committee relative to the preparation of the Company's
financial statements.
|
4.
|
Review
the Company's quarterly financial statements prior to the filing
of its
Form 10-Q.
|
5.
|
Review
any proposed major changes to the Company's auditing and accounting
principles prior to their adoption.
|
6.
|
Receive
periodic reports from the Company's independent auditor regarding
the
auditor's independence, discuss such reports with the auditor, and
recommend any Board action deemed necessary and appropriate by the
Committee to assure the independence of the
auditor.
|
7.
|
Ensure
the rotation of the audit partners of the independent auditor to
the
extent required by law.
|
8.
|
Recommend
to the Board policies for the Company's hiring of employees, or former
employees, of the Company's independent auditor who participated
in any
capacity in the audit of the Company, prior to the Company's hiring
any
such persons.
|
9.
|
Review
and discuss reports from the independent auditor on: (a) all critical
accounting policies and practices to be used; (b) all alternative
treatments of financial information within generally accepted accounting
principles that have been discussed with management, ramifications
of the
use of such alternative disclosures and treatments, and the treatment
preferred by the independent auditor; and (c) other material
communications between the independent auditor and
management.
|
10.
|
Discuss
with the independent auditor the matters required to be discussed
with the
Committee by the independent auditor under Statement on Auditing
Standards
No. 61 relating to the conduct of the audit of the Company's financial
statements.
|
11.
|
Review
with the Company's independent auditor any problems or difficulties
the
auditor may have encountered, as well as any management letter provided
by
the auditor and the Company's response to that
letter.
|
12.
|
Review
and discuss with management, the independent auditor and the Controller:
(a) the adequacy and effectiveness of the Company's internal controls
(including any significant deficiencies and significant changes in
internal controls reported to the Committee by the independent auditor
or
management); (b) the Company's internal audit procedures; and (c)
the
adequacy and effectiveness of the Company's disclosures controls
and
procedures, and management reports
thereon.
|
13.
|
Review
disclosures made to the Committee by the Company's Chief Executive
Officer
and Chief Financial Officer during their certification process for
the
Form 10-K and Form 10-Q about any significant deficiencies in the
design
or operation of internal controls or material weaknesses therein
and any
fraud involving management or other employees who have a significant
role
in the Company's internal controls.
|
15.
|
Prepare
the report required by the rules of the Securities and Exchange Commission
to be included in the Company's annual proxy
statement.
|
16.
|
Review
with the Company's attorneys such legal matters as the Committee
determines may have a material impact on the Company's financial
statements.
|
17.
|
Evaluate
together with the Board the performance of the Company's independent
auditor.
|
18.
|
Review
the appointment and any replacements of the Company's principal accounting
officer.
|
19.
|
Establish
procedures for the receipt, retention and treatment of complaints
received
regarding accounting, internal accounting controls or auditing matters
and
the confidential, anonymous submission by employees of concerns regarding
questionable accounting or auditing
matters.
|
1.
|
Review
with the Board on an annual basis the appropriate skills and
characteristics required on the Board in the context of the strategic
direction of the Company.
|
2.
|
Review
Board composition to ensure that the Board reflects a balance of
knowledge, experience, skills, expertise, and diversity, including
racial
and gender diversity required for the Board to fulfill its
duties.
|
(i).
|
Develop
a set of criteria for Board membership that strives to attain a diversity
of background and skills for the Board.
|
(ii).
|
Create
a search protocol that seeks qualified Board candidates from, among
other
areas, the traditional corporate environment, government, academia,
private enterprise, non-profit organizations, and professions such
as
accounting, human resources, and legal services.
|
(iii).
|
Strive
for the inclusion of diverse groups, knowledge, and viewpoints. To
accomplish this, the committee may retain an executive search firm
to help
meet the committee’s diversity objective, as well as form alliances with
organizations representing the interests of women and minorities.
In
connection with its efforts to create and maintain a diverse board,
the
governance committee will:
|
o
|
Develop
recruitment protocols that seek to include diverse candidates in
any
director search. These protocols should take into account that qualified,
but often overlooked, candidates may be found at the senior levels
in a
broad array of organizations, including academic institutions, privately
held businesses, nonprofit organizations, and trade associations,
in
addition to the traditional candidate pool of corporate directors
and
officers.
|
o
|
Strive
to use, to their fullest potential, the current network of organizations
and trade groups that may help identify diverse
candidates.
|
o
|
Periodically
review director recruitment and selection protocols so that diversity
remains a component of any director
search.
|
(iv).
|
The
Committee shall seek diverse populations, expertise, and viewpoints
for
representation on the Board. The Board recognizes, however, that
the
representation of any specific characteristic may vary over
time.
|
3.
|
Manage
the process whereby the full Board annually assesses its performance,
and
then report the results of this evaluation to the Board along with
any
recommendations for improvements.
|
4.
|
Manage
the process whereby the current Board members are evaluated individually
by the Board at the time they are considered for re-nomination, and
provide advice to individual Board members based on these
evaluations.
|
5.
|
Upon
receiving the resignation letter required from any director who makes
a
principal occupation change (including retirement), and after considering
advice from the Chairperson of the Board and the President & Chief
Executive Officer of the Company, recommend to the full Board whether
to
accept the resignation.
|
6.
|
Recommend
for Board approval a definition of what constitutes an independent
director. The definition should be in compliance with relevant standards
by regulators and listing bodies.
|
7.
|
Investigate
any potential conflict of interest by a director as assigned to it
by the
Board.
|
8.
|
Recommend
to the Board the existing directors to be re-nominated, after considering
the appropriate skills and characteristics required on the Board,
the
current makeup of the Board, the results of the individual evaluations
of
the directors, and the wishes of existing Board members to be
re-nominated.
|
9.
|
Review
with the Board on an annual basis the appropriate skills and
characteristics required of new Board members. (See also items 1,
2, and
4.)
|
10.
|
Solicit
nominations for new directors and screen the list of potential new
directors submitted to it by other directors or any other sources.
Decide
whether the assistance of a search firm is needed, and, if so, choose
the
firm. This Committee shall have the sole authority to retain and
terminate
any search firm to be used to identify director candidates, including
sole
authority to approve the search firm’s fees and other retention
terms.
|
11.
|
After
a review of Board candidates and after considering the advice of
the
chairperson of the Board and the President & Chief Executive Officer
of the Company, designate which candidates are to be interviewed.
Candidates at a minimum are interviewed by the chairperson of this
Committee, the chairperson of the Board, and the President & Chief
Executive Officer of the Company, but may be interviewed by other
directors.
|
12.
|
After
the interviews, recommend for Board approval any new directors to
be
nominated. Prior to the final vote of the Board on the nomination
of a new
director, arrange for the selected candidate to meet all existing
directors not yet met.
|
13.
|
Design
an orientation program for new directors and consult with them on
their
progress.
|
14.
|
Recommend
committee assignments, including committee chairmanships, to the
full
Board for approval. This is done after receiving advice from the
chairperson of the Board and the President & Chief Executive Officer
of the Company, and with consideration of the desires of individual
Board
members.
|
15.
|
Review
annually the corporate governance guidelines and committee charters
and
recommend to the Board any needed
changes.
|
16.
|
Keep
abreast of the developments in the corporate governance field that
might
affect the Company.
|
17.
|
Jointly
with the Company’s Compensation Committee, recommend to the Board the
compensation to be paid to directors, including the chairperson of
the
Board.
|
18.
|
If
a separate chairperson of the Board or a lead director has not been
selected, then the governance and nominating committee has two additional
duties:
|
(i).
|
Work
with the chairperson of the Compensation Committee on issues of management
objectives, Chief Executive Officer evaluation, and management development
and succession.
|
(ii).
|
Work
with the Chief Executive Officer of the Company to establish an annual
schedule of agenda items and present this proposed schedule to the
Board
for approval at its first meeting of the year. The chairperson of
this
Committee meets with the Chief Executive Officer of the Company as
needed
during the year to discuss a specific agenda for each Board
meeting.
|
INTERNET
|
|
|
TELEPHONE
|
|
|
MAIL
|
||
|
|
|
|
|||||
https://www.proxyvote.com
|
|
|
1-XXX-XXX-XXXX
|
|
|
|||
• Go
to the website address listed above.
|
|
OR
|
|
• Use
any touch-tone telephone.
• Have
your proxy card ready.
|
|
OR
|
|
• Mark,
sign and date your proxy card.
|
• Have
your proxy card ready.
• Follow
the simple instructions that appear on your computer
screen.
|
|
|
• Follow
the simple recorded instructions.
|
|
|
• Detach
your proxy card.
• Return
your proxy card in the postage-paid envelope
provided.
|
CALL
TOLL-FREE TO VOTE
1-XXX-XXX-XXXX
|
|
o
|
|
o DETACH
PROXY CARD
HERE IF YOU ARE NOT VOTING BY TELEPHONE OR INTERNET o
|
|
Please
Sign, Date and Return
the
Proxy Card Promptly
Using
the Enclosed Envelope.
|
|
o
Votes
must be indicated
(x)
in Black or Blue ink.
|
|
NOMINEES:
|
01.
Anna E. Gluskin
|
02.
Rose C. Perri
|
03.
John P. Barratt
|
|
04.
Brian T. McGee
|
05.
Nola E. Masterson
|
|
|
|
|
o
FOR
ALL
NOMINEES
|
o
WITHHOLD
ALL
NOMINEES
|
o
|
|
|
For
all nominees
|
|
|
except
as noted
|
|
|
Above
|
|
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|
|
o
FOR
|
o
AGAINST
|
o
ABSTAIN
|