Delaware
|
|
98-0178636
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(State of other jurisdiction of
incorporation or
organization)
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|
(IRS Employer Identification No.)
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PART
I. FINANCIAL INFORMATION
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|
Item
1. Financial Statements.
|
|
(Unaudited)
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|
Consolidated
Balance Sheets -
|
|
April
30, 2009 and July 31, 2008
|
1
|
Consolidated
Statements of Operations — For the three and nine month
|
|
periods
ended April 30, 2009 and 2008, and cumulative from
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|
November
2, 1995 to April 30, 2009
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2
|
Consolidated
Statements of Cash Flows — For the nine month
|
|
periods
ended April 30, 2009 and 2008, and cumulative from
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|
November
2, 1995 to April 30, 2009
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3
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Notes
to Consolidated Financial Statements
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5
|
Item
2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
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19
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Item
3. Quantitative and Qualitative Disclosures About Market
Risk
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34
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Item
4. Controls and Procedures
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34
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PART
II: OTHER INFORMATION
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|
Item
1. Legal Proceedings
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35
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Item
1A. Risk Factors
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35
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Item
2. Unregistered Sales of Equity Securities and Use of
Proceeds
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37
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Item
3. Defaults Upon Senior Securities
|
38
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Item
4. Submission of Matters to a Vote of Security
Holders
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38
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Item
5. Other Information
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38
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Item
6. Exhibits
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38
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Signatures
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39
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April
30,
|
July
31,
|
|||||||
2009
|
2008
|
|||||||
(Unaudited)
|
||||||||
ASSETS
|
||||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents
|
$ | 1,061,355 | $ | 17,237,510 | ||||
Short-term
investments
|
— | 8,852,214 | ||||||
Accounts
receivable
|
89,620 | 81,784 | ||||||
Inventory
|
1,250,448 | 1,465,222 | ||||||
Other
current assets
|
719,310 | 380,927 | ||||||
Restricted
cash
|
3,466,667 | — | ||||||
Convertible
debenture - advance payments
|
2,202,030 | — | ||||||
Deferred
debt issuance costs
|
143,539 | 506,608 | ||||||
Total
Current Assets
|
8,932,969 | 28,524,265 | ||||||
Deferred
Debt Issuance Costs
|
— | 211,086 | ||||||
Property
and Equipment, Net
|
1,393,137 | 1,744,974 | ||||||
Assets
Held for Investment, Net
|
3,055,766 | 3,713,317 | ||||||
Patents,
Net
|
3,738,977 | 3,954,241 | ||||||
TOTAL
ASSETS
|
$ | 17,120,849 | $ | 38,147,883 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable and accrued expenses
|
$ | 8,557,524 | $ | 7,469,710 | ||||
Deferred
revenue and rebate liability
|
149,153 | 125,598 | ||||||
Current
maturities of long-term debt
|
414,971 | 1,832,684 | ||||||
Current
maturities of obligations under capital lease
|
42,360 | — | ||||||
Convertible
debentures, net of debt discount of $2,327,509 and $15,931,480 at April
30, 2009 and July 31, 2008, respectively
|
3,454,490 | 4,718,520 | ||||||
Total
Current Liabilities
|
12,618,498 | 14,146,512 | ||||||
Obligations
Under Capital Lease, Net
|
15,460 | — | ||||||
Long-Term
Debt, Net
|
2,221,669 | 1,354,564 | ||||||
Commitments
and Contingencies
|
||||||||
Stockholders’
Equity:
|
||||||||
Special
Voting Rights Preferred Stock, $.001 par value; authorized 1,000
shares at April 30, 2009 and July 31, 2008; -0- shares issued and
outstanding at April 30, 2009 and July 31, 2008
|
— | — | ||||||
Common
stock, $.001 par value; authorized 500,000,000 shares at April 30,
2009 and July 31, 2008; 155,927,556 and 111,992,603 shares issued
and outstanding at April 30, 2009 and July 31, 2008,
respectively
|
155,927 | 111,992 | ||||||
Additional
paid-in capital
|
285,019,904 | 269,849,581 | ||||||
Deficit
accumulated during the development stage
|
(283,313,900 | ) | (248,229,261 | ) | ||||
Accumulated
other comprehensive income
|
403,291 | 914,495 | ||||||
Total
Stockholders’ Equity
|
2,265,222 | 22,646,807 | ||||||
TOTAL
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
$ | 17,120,849 | $ | 38,147,883 |
For
the Nine Months
Ended
April
30,
|
For
the Three Months
Ended
April
30,
|
Cumulative
From
November
2, 1995
(Date
of Inception)
to
April 30,
|
||||||||||||||||||
2009
|
2008
|
2009
|
2008
|
2009
|
||||||||||||||||
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||||||||
Revenues,
net
|
$ | 1,018,233 | $ | 64,870 | $ | 45,251 | $ | 1,530 | $ | 3,517,618 | ||||||||||
Cost
of Goods Sold
|
375,687 | 26,224 | 26,297 | 639 | 489,335 | |||||||||||||||
Operating
Expenses:
|
||||||||||||||||||||
Research
and development
|
10,597,956 | 11,620,817 | 3,001,826 | 4,303,390 | 100,413,450 | |||||||||||||||
Research
and development - related party
|
— | — | — | — | 220,218 | |||||||||||||||
Selling
and marketing
|
1,814,276 | 1,070,722 | 367,371 | 418,804 | 4,125,871 | |||||||||||||||
General
and administrative
|
7,649,085 | 11,733,562 | 2,736,650 | 5,130,769 | 113,285,551 | |||||||||||||||
General
and administrative - related party
|
— | — | — | — | 314,328 | |||||||||||||||
Total
Operating Expenses
|
20,061,317 | 24,425,101 | 6,105,847 | 9,852,963 | 218,359,418 | |||||||||||||||
Operating
Loss
|
(19,418,771 | ) | (24,386,455 | ) | (6,086,893 | ) | (9,852,072 | ) | (215,331,135 | ) | ||||||||||
Other
Income (Expense):
|
||||||||||||||||||||
Miscellaneous
income (expense)
|
3 | 70 | — | 70 | 196,261 | |||||||||||||||
Income
from rental operations, net
|
240,120 | 250,195 | 72,381 | 79,784 | 1,491,581 | |||||||||||||||
Interest
income
|
231,505 | 958,457 | 10,408 | 206,950 | 7,740,402 | |||||||||||||||
Interest
expense
|
(16,137,496 | ) | (725,535 | ) | (5,344,911 | ) | (608,913 | ) | (64,020,069 | ) | ||||||||||
Loss
on extinguishment of debt
|
— | — | — | — | (14,134,068 | ) | ||||||||||||||
Net
Loss Before Undernoted
|
(35,084,639 | ) | (23,903,268 | ) | (11,349,015 | ) | (10,174,181 | ) | (284,057,028 | ) | ||||||||||
Minority
Interest Share of Loss
|
— | — | — | — | 3,038,185 | |||||||||||||||
Net
Loss
|
(35,084,639 | ) | (23,903,268 | ) | (11,349,015 | ) | (10,174,181 | ) | (281,018,843 | ) | ||||||||||
Preferred
Stock Dividend
|
— | — | — | — | 2,295,057 | |||||||||||||||
Net
Loss Available to Common Shareholders
|
$ | (35,084,639 | ) | $ | (23,903,268 | ) | $ | (11,349,015 | ) | $ | (10,174,181 | ) | $ | (283,313,900 | ) | |||||
Basic
and Diluted Net Loss Per Common Share
|
$ | (.27 | ) | $ | (.22 | ) | $ | (.08 | ) | $ | (.09 | ) | ||||||||
Weighted
Average Number of Shares of Common Stock Outstanding
|
128,653,235 | 110,758,728 | 143,536,381 | 111,282,111 |
Cumulative
From
|
||||||||||||
November
2, 1995
|
||||||||||||
For
the Nine Months
|
(Date
of Inception)
|
|||||||||||
Ended April
30,
|
to
April 30,
|
|||||||||||
2009
|
2008
|
2009
|
||||||||||
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||
Cash
Flows From Operating Activities:
|
||||||||||||
Net
loss
|
$ | (35,084,639 | ) | $ | (23,903,268 | ) | $ | (281,018,843 | ) | |||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||||||
Depreciation
and amortization
|
609,202 | 846,552 | 7,576,067 | |||||||||
Minority
interest share of loss
|
— | — | (3,038,185 | ) | ||||||||
Reduction
of notes receivable - common stock in exchange for services
rendered
|
— | — | 423,882 | |||||||||
Write-off
of uncollectible notes receivable - common stock
|
— | — | 391,103 | |||||||||
Write-off
of deferred offering costs
|
— | — | 3,406,196 | |||||||||
Write-off
of abandoned patents
|
— | — | 913,196 | |||||||||
Loss
on disposal of property and equipment
|
— | — | 911 | |||||||||
Loss
on extinguishment of debt
|
— | — | 14,134,069 | |||||||||
Common
stock issued as employee compensation
|
150,464 | 1,109,692 | 3,631,729 | |||||||||
Issuance
of options and option modifications as employee
compensation
|
29,040 | — | 101,618 | |||||||||
Common
stock issued for services rendered
|
434,121 | 1,429,061 | 8,960,319 | |||||||||
Amortization
of prepaid services in conjunction with common stock
issuance
|
— | — | 138,375 | |||||||||
Non-cash
compensation expense
|
— | — | 45,390 | |||||||||
Stock
options and warrants issued for services rendered
|
— | 82,000 | 7,354,723 | |||||||||
Issuance
of warrants as additional exercise right inducement
|
— | — | 21,437,909 | |||||||||
Preferred
stock issued for services rendered
|
— | — | 100 | |||||||||
Treasury
stock redeemed for non-performance of services
|
— | — | (138,000 | ) | ||||||||
Amortization
of deferred debt issuance costs and loan origination fees
|
574,155 | 51,264 | 2,262,090 | |||||||||
Amortization
of discount on convertible debentures
|
13,603,972 | 408,851 | 36,018,083 | |||||||||
Common
stock issued as interest payment on convertible debentures
|
391,280 | — | 675,739 | |||||||||
Interest
on short-term advance
|
— | — | 22,190 | |||||||||
Founders’
shares transferred for services rendered
|
— | — | 353,506 | |||||||||
Fees
in connection with refinancing of debt
|
— | — | 113,274 | |||||||||
Warrant
repricing costs
|
1,589,988 | — | 1,589,988 | |||||||||
Changes
in operating assets and liabilities (excluding the effects of
acquisition):
|
||||||||||||
Accounts
receivable
|
(18,868 | ) | (39,392 | ) | (106,249 | ) | ||||||
Miscellaneous
receivables
|
— | — | 43,812 | |||||||||
Inventory
|
110,520 | (728,681 | ) | (1,352,921 | ) | |||||||
Other
current assets
|
(348,162 | ) | 79,714 | (423,188 | ) | |||||||
Accounts
payable and accrued expenses
|
1,174,737 | 2,662,777 | 13,265,357 | |||||||||
Deferred
revenue
|
29,372 | 70,897 | 154,884 | |||||||||
Other,
net
|
— | — | 110,317 | |||||||||
Net
Cash Used in Operating Activities
|
(16,754,818 | ) | (17,930,533 | ) | (162,952,559 | ) | ||||||
Cash
Flows From Investing Activities:
|
||||||||||||
Purchase
of property and equipment
|
(1,385 | ) | (55,461 | ) | (4,594,932 | ) | ||||||
Costs
incurred for patents
|
(107,638 | ) | (185,555 | ) | (2,158,000 | ) | ||||||
Change
in restricted cash
|
(3,466,667 | ) | — | (3,420,795 | ) | |||||||
Proceeds
from maturity of short term investments
|
8,852,214 | 16,984,782 | 195,242,918 | |||||||||
Purchases
of short-term investments
|
— | (24,018,211 | ) | (195,242,918 | ) | |||||||
Cash
received in conjunction with merger
|
— | — | 82,232 | |||||||||
Advances
to Antigen Express, Inc.
|
— | — | (32,000 | ) | ||||||||
Increase
in officers’ loans receivable
|
— | — | (1,126,157 | ) | ||||||||
Change
in deposits
|
— | (95,102 | ) | (652,071 | ) | |||||||
Change
in notes receivable - common stock
|
— | — | (91,103 | ) | ||||||||
Change
in due from related parties
|
— | — | (2,222,390 | ) | ||||||||
Other,
net
|
— | — | 89,683 | |||||||||
Net
Cash Provided by (Used in) Investing Activities
|
5,276,524 | (7,369,547 | ) | (14,125,533 | ) |
For
the Nine Months
Ended
April
30,
|
Cumulative
From
November
2, 1995
(Date
of Inception)
to
April 30,
|
|||||||||||
2009
|
2008
|
2009
|
||||||||||
Cash
Flows From Financing Activities:
|
||||||||||||
Proceeds
from short-term advance
|
— | — | 325,179 | |||||||||
Repayment
of short-term advance
|
— | — | (347,369 | ) | ||||||||
Proceeds
from issuance of long-term debt
|
— | — | 2,005,609 | |||||||||
Repayment
of long-term debt
|
(60,751 | ) | (66,596 | ) | (2,002,595 | ) | ||||||
Repayment
of obligations under capital lease
|
(25,182 | ) | — | (25,182 | ) | |||||||
Change
in due to related parties
|
— | — | 154,541 | |||||||||
Proceeds
from exercise of warrants
|
— | — | 44,015,049 | |||||||||
Proceeds
from exercise of stock options
|
56,000 | 391,790 | 5,001,916 | |||||||||
Proceeds
from minority interest investment
|
— | — | 3,038,185 | |||||||||
Proceeds
from issuance of preferred stock
|
— | — | 12,015,000 | |||||||||
Redemption
of SVR preferred stock
|
— | — | (100 | ) | ||||||||
Proceeds
from issuance of convertible debentures, net
|
— | — | 40,704,930 | |||||||||
Payment
of costs associated with convertible debentures
|
— | 20,450,000 | (722,750 | ) | ||||||||
Repayments
of convertible debentures
|
(4,506,667 | ) | (722,750 | ) | (5,142,424 | ) | ||||||
Purchase
of treasury stock
|
— | — | (483,869 | ) | ||||||||
Proceeds
from issuance of common stock, net
|
— | — | 80,283,719 | |||||||||
Purchase
and retirement of common stock
|
— | (378,456 | ) | (497,522 | ) | |||||||
Net
Cash Provided by Financing Activities
|
(4,536,600 | ) | 19,673,988 | 178,322,317 | ||||||||
Effect
of Exchange Rates on Cash
|
(161,261 | ) | (58,151 | ) | (182,870 | ) | ||||||
Net
Increase (Decrease) in Cash and Cash Equivalents
|
(16,176,155 | ) | (5,684,243 | ) | 1,061,355 | |||||||
Cash
and Cash Equivalents, Beginning of Period
|
17,237,510 | 21,026,067 | — | |||||||||
Cash
and Cash Equivalents, End of Period
|
$ | 1,061,355 | $ | 15,341,824 | $ | 1,061,355 |
|
1.
|
Basis
of Presentation
|
|
2.
|
Effects
of Recent Accounting Pronouncements
|
|
3.
|
Stock-Based
Compensation
|
Weighted
|
Weighted
|
|||||||||||||||
Average
|
Average
|
|||||||||||||||
Exercise
|
Remaining
|
Aggregate
|
||||||||||||||
Price
|
Contractual
|
Intrinsic
|
||||||||||||||
Shares
|
Share
|
Term (Years)
|
Value
|
|||||||||||||
Outstanding,
August 1, 2008
|
6,246,638 | $ | 0.66 | |||||||||||||
Granted
|
— | $ | — | |||||||||||||
Forfeited
or expired
|
(1,129,500 | ) | $ | 1.68 | ||||||||||||
Exercised
|
(100,000 | ) | $ | 0.56 | ||||||||||||
Outstanding,
April 30, 2009
|
5,017,138 | $ | 0.44 | 0.89 | $ | 871,208 | ||||||||||
Exercisable,
April 30, 2009
|
4,929,638 | $ | 871,208 | |||||||||||||
Grant
Date Fair Value of Forfeited or Expired Options
|
$ | 1.28 | ||||||||||||||
Total
Intrinsic Value of Options Exercised
|
$ | 15,111 |
Weighted
Average
|
||||||||
Grant Date
|
||||||||
Options
|
Fair Value
|
|||||||
Outstanding,
August 1, 2008
|
87,500 | $ | 0.59 | |||||
Granted
|
— | $ | — | |||||
Vested
|
— | $ | — | |||||
Forfeited
|
— | $ | — | |||||
Outstanding,
April 30, 2009
|
87,500 | $ | 0.59 |
Weighted
|
||||||||
Average
|
||||||||
Grant Date
|
||||||||
Number of
|
Fair
|
|||||||
Shares
|
Value
|
|||||||
Non-vested
stock, August 1, 2008
|
103,906 | $ | 1.51 | |||||
Granted
|
— | — | ||||||
Vested
|
(74,218 | ) | 1.51 | |||||
Forfeited
|
— | — | ||||||
Non-vested
stock, April 30, 2009
|
29,688 | $ | 1.51 |
|
4.
|
Comprehensive
Income/(Loss)
|
|
5.
|
Accounts
Payable and Accrued Expenses
|
April 30,
|
July 31,
|
|||||||
2009
|
2008
|
|||||||
Accounts
Payable
|
$ | 1,740,173 | $ | 2,613,789 | ||||
Research
and Development
|
3,701,430 | 2,048,101 | ||||||
Executive
Compensation
|
2,744,645 | 2,469,026 | ||||||
Financial
Services
|
371,276 | 338,794 | ||||||
Total
|
$ | 8,557,524 | $ | 7,469,710 |
|
6.
|
Secured
Convertible Debentures
|
Notes/Debenture
|
||||
$20,650,000 | ||||
Date
Issued
|
3/2008 | |||
Promissory
Note Amount
|
$ | (A | ) | |
#
of Promissory Notes
|
6 | |||
Terms
|
(B
|
) | ||
Conversion
Price
|
$ | 1.21 | ||
Gross
Proceeds
|
$ | 20,650,000 | ||
Net
Cash Proceeds
|
$ | 20,450,000 | ||
Warrants
(“Series”) Issued to Investors (C)
|
42,665,274 | |||
Warrant
(“Series”) Exercise Price (C)
|
$ | 0.50 | ||
Existing
Warrants (“Pre-Extant”) Re-priced (D)
|
12,697,024 | |||
Re-priced
Warrant (“Pre-Extant”) Exercise Price (D)
|
0.50 | |||
Warrant
Fair Value (WFV) (includes value of re-priced warrants
(“Pre-Extant”))
|
$ | 21,976,130 | ||
Warrant
Relative Fair Value (WRFV)
|
$ | 10,646,218 | ||
Black-Scholes
Model Assumptions
|
(E
|
) | ||
Beneficial
Conversion Feature (BCF)
|
$ | 8,768,946 | ||
Costs
associated with issuance classified as deferred debt issuance
costs
|
$ | 722,750 | ||
Amortization
of WFV and BCF as Non-cash Interest Expense
|
$ | 17,087,656 | ||
Principal
and Interest Converted
|
$ | — | ||
Shares
Issued Upon Conversion
|
— | |||
Principal
and Interest Repayments in Shares of Common Stock
|
$ | 12,954,643 | ||
Shares
Issued for Principal and Interest Repayments
|
42,007,335 | |||
Principal
and Interest Repayments in Cash
|
$ | 5,380,697 |
(A)
|
$7,000,000;
$5,000,000; $3,650,000; (2) $2,000,000;
$1,000,000
|
(B)
|
The
debentures carry an 8% coupon and the initial maturity date was September
30, 2009, and was accelerated to July 1, 2009, provided, however, the
maturity date may be extended at the option of the
holder. Initially, the debentures carried an 18-month term and
amortized in 15 installments commencing in the fifth month of the
term. The principal and interest payments are payable in cash
or, at the Company's option, the lower of (i) the then applicable
conversion price and (ii) the price which initially was computed as 90% of
the arithmetic average of the VWAP of the common stock on each of the
twenty (20) consecutive trading days immediately preceding the applicable
installment date, subject to certain conditions. Each installment payment
elected by the Company to be repaid in shares requires the Company to
deliver the number of shares estimated to satisfy the installment payment
20 trading days preceding the installment due date. The difference in the
value of these shares and the installment payment on the installment date
is required to be delivered to the holders by issuing additional shares.
In addition, each debenture lists certain “Events of Default”, which
include, without limitation, any default in the payment of principal or
interest in respect of the debentures as when they become due and payable,
the Company’s failure to observe or perform any other covenant, agreement
or warranty contained in the agreements relating to the
debentures. Upon the occurrence of the “Event of Default”, the
holder may require us to redeem all or any portion of the debentures upon
written notice. Other conditions in the debentures impede the
Company’s ability to make its monthly installment payments in shares of
its common stock. Two of such conditions – the effectiveness of
the registration statement for at least 30 days prior to installment
notice and listing maintenance minimum bid price requirement of The NASDAQ
Stock Market, were not met requiring the Company to procure waivers from
the debenture holders in respect to these
conditions. Additional conditions that would trigger an “Event
of Default” have been disclosed below under the heading “Forbearance and
Amendment.”
|
(C)
|
The
warrants issued to the holders of the debentures are comprised of the
following: Series A warrants 5,257,729; Series A-1 warrants 7,541,857;
Series B warrants 17,066,108 and Series C warrants
12,799,580. During the nine months ended April 30, 2009, the
Company revised the terms of these warrants to reduce the exercise price.
Additionally, the expiration date of the Series A, A-1 and C warrants were
extended.
|
a.
|
The
Series C warrants are issuable contingent upon exercise of Series B
warrants. The relative fair value associated with the Series C
warrants at the commitment date amounted to $1,234,836. At such
time the contingency is met, the Company would include the relative fair
value as a charge to interest expense. The Company has
accounted for this contingency in accordance with EITF 98-5 and
00-27. At April 30, 2009, Series B warrants have not been
exercised and therefore the contingency has not been
met.
|
(D)
|
The
Company re-priced 12,697,024 existing warrants held by the convertible
debenture holders (“Pre-Extant”). The value associated with the
“Pre-Extant” warrants amounted to $5,399,160 and was valued using the
Black-Scholes pricing model. The value of the “Pre-Extant”
warrants has been added to the value of the new warrants issued (see (B)
above) and accounted for in accordance with EITF 98-5 and
00-27. During the nine months ended April 30, 2009, the Company
revised the terms of the “Pre-Extant” warrants to reduce the exercise
price and extend the expiration
date.
|
(E)
|
Black-Scholes
pricing model assumptions used in valuing the “Pre-Extant” warrants were:
risk free interest (2.70 percent); expected volatility (.8611); life of 1
½ years, 7 years and 7 ½ years.
|
|
·
|
Each
holder agreed to waive (a) the Event of Default under Section 4(a)(xv) of
the debentures with respect to the Company’s failure to meet Net Cash
Balance Test in respect of any and all periods prior to December 22, 2008
(the “Effective Date”), and (b) compliance by the Company with the Net
Cash Balance Test for the period commencing on the Effective
Date and ending on January 30,
2009.
|
|
·
|
The
exercise price of each of the Series Warrants was reduced from $1.21 to
$0.50.
|
|
·
|
The
exercise price of each of the Pre-Extant Warrants was reduced from $1.10
to $0.50.
|
|
·
|
The
Company was granted a one-time right to require each of the holders to
exercise all of their then outstanding Series Warrants and Pre-Extant
Warrants if the arithmetic average of the volume weighted average price of
the Common Stock on the Principal Market for a twenty-one (21) consecutive
Trading Day period is equal to or greater than $1.00. The
Company agreed to issue each holder a seven-year warrant to acquire up to
that number of shares of Common Stock that is equal to the number of
shares of Common Stock acquired by such holder in connection with such
holder’s exercise of its Series Warrants and its Pre-Extant Warrants
pursuant to the exercise of such call option by the Company, at an
exercise price of $1.00 per share.
|
|
·
|
The
expiration date of each Series A Warrant and each Series A-1 Warrant was
extended to March 31, 2016.
|
|
·
|
The
expiration date of each Series C Warrant was extended to September
30, 2016.
|
|
·
|
The
expiration date of each Pre-Extant Warrant was extended to March 31,
2016.
|
|
·
|
The
Company honored the notices it delivered to each of the holders on
December 1, 2008 in respect of the January 1, 2009 Installment Date
pursuant to which the Company confirmed its intention to redeem 100% of
the January 1, 2009 Installment Amounts pursuant to a Company Redemption,
and the Company paid the applicable Company Redemption Amount when
due.
|
|
·
|
The
Maturity Date was accelerated from August 30, 2009 to July 1, 2009,
subject to extension by the holder.
|
|
·
|
The
term “Installment Date” was amended to mean each of the following dates:
(i) August 1, 2008, (ii) September 1, 2008, (iii) October 1, 2008, (iv)
November 1, 2008, (v) December 1, 2008, (vi) January 1, 2009, (vii)
February 1, 2009, (viii) March 1, 2009, (ix) April 1, 2009, (x) May 1,
2009, (xi) June 1, 2009 and (xii) the Maturity
Date.
|
|
·
|
The
term “Installment Amount” was amended to mean, with respect to any
Installment Date occurring on or after March 1, 2009, the lesser of (A)
the product of (i) $1,927,333.32, multiplied by (ii) Holder Pro Rata
Amount and (B) the Principal amount under the debenture as of such
Installment Date, together with any accrued and unpaid Interest as of such
Installment Date and accrued and unpaid Late Charges, if any, as of such
Installment Date.
|
|
·
|
Section
4(a)(iii) of the debenture was amended to permit the Common Stock to be
quoted on the OTC Bulletin Board if it is suspended from trading or
delisted from the NASDAQ Capital
Market.
|
|
·
|
The
monthly expenditure of cash by the Company together with its subsidiaries
in excess of $900,000 in the aggregate in March, April or May 2009 would
constitute an “Event of Default,” provided that all cash used to effect
Company Redemptions under the debentures as permitted thereunder will not
be deemed to be cash expended solely for purposes of this
determination.
|
|
·
|
An
“Event of Default” was defined to include any breach by the Company of
Section 8 of the Registration Rights Agreement (including, without
limitation, any failure by the Company to (i) file with the SEC any
required reports under Section 13 or 15(d) of the 1934 Act such that it is
not in compliance with Rule 144(c)(1), or (ii) meet any of the
requirements under rule 144(i)(2)).
|
|
·
|
As
of the Effective Date, the Company could only effect a Company Redemption
with respect to the payment of an Installment Amount by using net proceeds
received by the Company from any subsequent private placements, revenues
from sales of products by the Company or licensing fees received by the
Company.
|
|
·
|
The
Company had to provide a monthly certification executed by the Company’s
Chief Financial Officer stating whether an Event of Default occurred with
respect to the Company’s and its subsidiaries’ cash expenditures in excess
of $900,000 in the calendar month immediately preceding the date of such
certification, and the Company must publicly disclose any such Event of
Default on the date of such
certification.
|
|
·
|
March
9, 2009 was the Installment Notice Due
Date.
|
|
·
|
The
Pre-Installment Conversion Price was equal to the price which was computed
as 90% of the arithmetic average of the VWAP of the Common Stock on each
of the 14 consecutive Trading Days immediately preceding March 9, 2009 (to
be appropriately adjusted for any stock split, stock dividend, stock
combination or other similar transaction during such measuring
period).
|
|
·
|
The
Company Conversion Price was equal to the price which was computed as 90%
of the arithmetic average of the VWAP of the Common Stock on each of the
17 consecutive Trading Days immediately preceding such Installment Date
(to be appropriately adjusted for any stock split, stock dividend, stock
combination or other similar transaction during such measuring
period).
|
|
·
|
The
Company was obligated to deliver the Pre-Installment Conversion Shares
(which will be equal the number of shares of Common Stock equal to the
quotient of (i) the Installment Amount due on such Installment Date
divided by (ii) the Pre-Installment Conversion Price) to the holder no
later than two Trading Days after March 9,
2009.
|
|
·
|
The
number of shares of Common Stock to be delivered pursuant to a Company
Conversion on April 1, 2009 with respect to the Installment Amount due on
that date was reduced by the above-mentioned number of the Pre-Installment
Conversion Shares previously
delivered.
|
|
·
|
the
Listing Maintenance Equity Condition solely with respect to the
Installment Dates of March 1, 2009, April 1, 2009, May 1, 2009,
June 1, 2009 and the Maturity Date, if, (i) other Equity Conditions and
all other conditions relating to a Company Conversion are satisfied and
(ii) the shares of Common Stock continue to be listed or designated for
quotation on, and trade on, the NASDAQ Capital Market, another national
stock exchange or are quoted on the OTC Bulletin
Board;
|
|
·
|
the
Net Cash Balance Test, but only until a Standstill Termination occurs;
and
|
|
·
|
all
Existing Events of Default, the Net Cash Balance Test and accrual of
interest at the default interest rate, but only to the extent that the
Company complies with all terms of the Forbearance Agreement and no other
Event of Default occurs after the Effective
Date.
|
|
7.
|
Pending
Litigation
|
|
8.
|
Net
Loss Per Share
|
|
9.
|
Supplemental
Disclosure of Cash Flow Information
|
For
the Nine Months Ended
|
||||||||
April 30,
|
||||||||
2009
|
2008
|
|||||||
Cash
paid during the period for:
|
||||||||
Interest
|
$ | 1,025,034 | $ | 174,428 | ||||
Income
taxes
|
$ | — | $ | — | ||||
Disclosure
of non-cash investing and financing activities:
|
||||||||
Issuance
of common stock as satisfaction of accrued executive
compensation
|
$ | — | $ | 471,875 | ||||
Deferred
debt issuance costs paid from the proceeds of convertible
notes
|
$ | — | $ | 200,000 | ||||
Value
of warrants issued in conjunction with issuance of convertible debentures
and related beneficial conversion feature
|
$ | — | $ | 19,415,164 | ||||
Issuance
of common stock as repayment of convertible debentures and advance
payments
|
$ | 12,563,365 | $ | — | ||||
Par
value of common stock issued in conjunction with cashless exercise of
warrants
|
$ | 341 | $ | — | ||||
Purchase
of property and equipment through the issuance of obligations under
capital lease
|
$ | 83,002 | $ | — |
10.
|
Stockholders’
Equity
|
Additional
|
Total
|
|||||||||||||||
Common Stock
|
Paid-In
|
Stockholders’
|
||||||||||||||
Shares
|
Amount
|
Capital
|
Equity
|
|||||||||||||
Issuance
of common stock for services
|
1,275,302 | $ | 1,275 | $ | 432,847 | $ | 434,122 | |||||||||
Issuance
of common stock as employee compensation
|
211,316 | 211 | 75,540 | 75,751 | ||||||||||||
Stock-based
executive compensation
|
— | — | 103,752 | 103,752 | ||||||||||||
Stocks
options exercised for cash
|
100,000 | 100 | 55,900 | 56,000 | ||||||||||||
Issuance
of common stock as repayment of convertible debentures, accrued interest
and prepayment
|
42,007,335 | 42,007 | 12,912,635 | 12,954,642 | ||||||||||||
Issuance
of common stock in conjunction with cashless exercise of
warrants
|
341,000 | 341 | (341 | ) | — | |||||||||||
Warrant
re-pricing costs
|
— | — | 1,589,988 | 1,589,988 | ||||||||||||
Total
|
43,934,953 | $ | 43,935 | $ | 15,170,321 | $ | 15,214,256 |
11.
|
Subsequent
Events
|
·
|
our
expectations concerning product candidates for our
technologies;
|
|
·
|
our expectations concerning
existing or potential development and license agreements for third-party
collaborations and joint ventures;
|
|
·
|
our expectations of when
different phases of clinical activity may commence and
conclude;
|
|
·
|
our expectations of when
regulatory submissions may be filed or when regulatory approvals may be
received; and
|
|
·
|
our expectations of when
commercial sales of our products may commence and when actual revenue from
the product sales may be
received.
|
·
|
the inherent uncertainties of
product development based on our new and as yet not fully proven
technologies;
|
|
·
|
the risks and uncertainties
regarding the actual effect on humans of seemingly safe and efficacious
formulations and treatments when tested
clinically;
|
|
·
|
the inherent uncertainties
associated with clinical trials of product
candidates;
|
|
·
|
the inherent uncertainties
associated with the process of obtaining regulatory approval to market
product candidates;
|
|
·
|
the inherent uncertainties
associated with commercialization of products that have received
regulatory approval;
|
|
·
|
the volatility of, and recent
decline in, our stock price and the impact on our ability to pay
installments due on our outstanding senior secured notes in stock rather
than cash; and
|
|
·
|
our ability to obtain the
necessary financing to fund our
operations.
|
(i)
|
Series A and A-1 Warrants, which
are exercisable for a period of 7 years into an aggregate of 75% of the
number of shares of our common stock initially issuable upon conversion of
the Notes, with the Series A Warrants being exercisable into 5,257,729
shares immediately upon issuance and the Series A-1 warrants being
exercisable into 7,541,857 shares beginning October 1,
2008;
|
(ii)
|
Series B Warrants, which became
exercisable on October 1, 2008 into 100% of the shares of our common stock
initially issuable upon conversion of the Notes (initially 17,066,166
shares) and remain exercisable for a period of 18 months after the
registration statement covering the shares of common stock issuable upon
conversion or exercise of the Notes and Warrants was declared effective by
the SEC; and
|
(iii)
|
Series C Warrants, which are
exercisable for a period of 7 years beginning October 1, 2008, but only to
the extent that the Series B Warrant are exercised and only in the same
percentage that the Series B Warrants are exercised, up to a maximum
percentage of 75% of the number of shares of our common stock initially
issuable upon conversion of the Notes (initially a maximum of 12,799,580
shares).
|
·
|
the registration statement for
the resale of all of the shares of common stock underlying the Notes and
the Warrants was not effective at least thirty days prior to the
installment notice date of August 1, 2008;
and
|
·
|
we failed to comply with the
minimum bid price requirement of Marketplace Rule 4310(c)(4) (now known as
Listing Rule 5550(a)(2))of The NASDAQ Stock
Market.
|
(a)
|
The Maturity Date is accelerated
from August 30, 2009 to July 1, 2009, subject to extension by the
Noteholder.
|
(b)
|
The term “Installment Date” in
the Note is amended to mean each of the following dates: (i) August 1,
2008, (ii) September 1, 2008, (iii) October 1, 2008, (iv) November 1,
2008, (v) December 1, 2008, (vi) January 1, 2009, (vii) February 1, 2009,
(viii) March 1, 2009, (ix) April 1, 2009, (x) May 1, 2009, (xi) June 1,
2009 and (xii) the Maturity
Date.
|
(c)
|
The term “Installment Amount” is
amended to mean, with respect to any Installment Date occurring on or
after March 1, 2009, the lesser of (A) the product of (i) $1,927,333.32,
multiplied by (ii) Holder Pro Rata Amount and (B) the Principal amount
under the Note as of such Installment Date, together with any accrued and
unpaid Interest as of such Installment Date and accrued and unpaid Late
Charges, if any, as of such Installment
Date.
|
(d)
|
Section 4(a)(iii) of the Note is
amended to permit our common stock to be quoted on the OTC Bulletin Board
if it is suspended from trading or delisted from the NASDAQ Capital
Market.
|
(e)
|
The monthly expenditure of cash
by Generex together with its subsidiaries in excess of $900,000 in the
aggregate in March, April or May 2009 will constitute an “Event of
Default,” provided that all cash used to effect Company Redemptions under
the Notes as permitted thereunder will not be deemed to be cash expended
solely for purposes of this
determination.
|
(f)
|
An “Event of Default” includes
any breach by Generex of Section 8 of the Registration Rights Agreement
(including, without limitation, any failure by Generex to (i) file with
the SEC any required reports under Section 13 or 15(d) of the 1934 Act
such that it is not in compliance with Rule 144(c)(1), or (ii) meet any of
the requirements under rule
144(i)(2)).
|
(g)
|
As of February 27, 2009, we may
only effect a Company Redemption with respect to the payment of an
Installment Amount in cash by using net proceeds received by us from any
subsequent private placements, revenues from sales of our products or
licensing fees received by
us.
|
(h)
|
We must provide a monthly
certification executed by our Chief Financial Officer stating whether an
Event of Default occurred with respect to our cash expenditures in excess
of $900,000 in the calendar month immediately preceding the date of such
certification, and we must publicly disclose any such Event of Default on
the date of such
certification.
|
•
|
March 9, 2009 will constitute the
Installment Notice Due Date.
|
•
|
The Pre-Installment Conversion
Price will be equal to the price which shall be computed as 90% of the
arithmetic average of the VWAP of our common stock on each of the 14
consecutive trading days immediately preceding March 9, 2009 (to be
appropriately adjusted for any stock split, stock dividend, stock
combination or other similar transaction during such measuring
period).
|
•
|
The Company Conversion Price will
be equal to the price which shall be computed as 90% of the arithmetic
average of the VWAP of our common stock on each of the 17 consecutive
trading days immediately preceding such Installment Date (to be
appropriately adjusted for any stock split, stock dividend, stock
combination or other similar transaction during such measuring
period).
|
•
|
We will deliver the
Pre-Installment Conversion Shares (which will be equal the number of
shares of common stock equal to the quotient of (i) the Installment Amount
due on such Installment Date divided by (ii) the Pre-Installment
Conversion Price) to the Noteholder no later than two trading days after
March 9, 2009.
|
·
|
The number of shares of common
stock to be delivered pursuant to a Company Conversion on April 1, 2009
with respect to the Installment Amount due on that date will be reduced by
the above-mentioned number of the Pre-Installment Conversion Shares
previously delivered.
|
•
|
the Listing Maintenance Equity
Condition solely with respect to the Installment Dates of March
1, 2009, April 1, 2009, May 1, 2009, June 1, 2009 and the Maturity Date,
if, (i) other Equity Conditions and all other conditions relating to a
Company Conversion are satisfied and (ii) the shares of our common stock
continue to be listed or designated for quotation on, and trade on, the
NASDAQ Capital Market, another national stock exchange or are quoted on
the OTC Bulletin Board;
|
•
|
the Net Cash Balance Test, but
only until a Standstill Termination occurs;
and
|
•
|
all Existing Events of Default,
the Net Cash Balance Test and accrual of Interest at the default Interest
Rate, but only to the extent that we comply with all terms of the
Forbearance Agreement and no other Event of Default occurs after February
27, 2009.
|
·
|
We issue only shares of our
common stock;
|
·
|
The purchase price for each share
is equal or greater than
$0.25;
|
·
|
The aggregate gross proceeds to
us are no more $5,000,000;
and
|
·
|
Rodman & Renshaw, LLC acts as
the sole placement agent.
|
Date Issued
|
Aggregate No. of
Shares Unexercised
|
Exercise
Price*
|
Expiration Date
|
||||||
March
31, 2008
|
15,175,117 | $ | 0.33 |
October
1, 2009
|
|||||
March
31, 2008
|
25,496,610 | $ | 0.33 |
March
31, 2016
|
|||||
March
31, 2008
|
12,799,580 | $ | 0.33 |
September
30, 2016
|
·
|
The timing and amount of expense
incurred to complete our clinical
trials;
|
·
|
the costs and timing of the
regulatory process as we seek approval of our products in
development;
|
·
|
The advancement of our products
in development;
|
·
|
our ability to generate new
relationships with industry partners throughout the world that will
provide us with regulatory assistance and long-term commercialization
opportunities;
|
·
|
the timing, receipt and amount of
sales, if any, from Generex Oral-lyn™ in India and
Ecuador;
|
·
|
The timing, receipt and amount of
sales, if any, from our over-the-counter
products;
|
·
|
the cost of manufacturing (paid
to third parties) of our licensed products, and the cost of marketing and
sales activities of those
products;
|
·
|
the costs of prosecuting,
maintaining, and enforcing patent claims, if any claims are
made;
|
·
|
our ability to maintain existing
collaborative relationships and establish new relationships as we advance
our products in development;
and
|
·
|
The receptivity of the financial
market to biopharmaceutical
companies.
|
Payments Due by Period
|
||||||||||||||||||||
Contractual Obligations
|
|
Total
|
|
|
Less than 1
Year
|
|
|
1-3 years
|
|
|
3-5 years
|
|
More than
5 years
|
|
||||||
Long-Term
Debt Obligations
|
3,444,847
|
577,591
|
1,397,553
|
234,110
|
1,235,593
|
|||||||||||||||
Convertible
Debt Obligations
|
5,913,058
|
5,913,058
|
||||||||||||||||||
Capital
Lease Obligations
|
63,625
|
47,719
|
15,906
|
|||||||||||||||||
Operating
Lease Obligations
|
342,732
|
120,627
|
195,090
|
27,015
|
||||||||||||||||
Purchase
Obligations
|
||||||||||||||||||||
Other
Long-Term Liabilities Reflected on the Registrant's Balance Sheet under
GAAP
|
||||||||||||||||||||
Total
|
$
|
9,764,262
|
$
|
6,658,995
|
$
|
1,608,549
|
$
|
261,125
|
$
|
1,235,593
|
Loan Amount
|
Interest Rate
per Annum
|
||||
596,368
|
6.82
|
%
|
|||
559,087
|
7.60
|
%
|
|||
330,560
|
8.50
|
%
|
|||
170,576
|
10
|
%
|
|||
980,049
|
5.91
|
%
|
|||
2,636,640
|
Total
|
·
|
to proceed with the development
of our buccal insulin product;
|
|
·
|
to finance the research and
development of new products based on our buccal delivery and
immunomedicine technologies, including clinical testing relating to new
products;
|
·
|
to finance the research and
development activities of our subsidiary Antigen with respect to other
potential technologies;
|
|
·
|
to commercially launch and market
developed products;
|
|
·
|
to develop or acquire other
technologies or other lines of business;
|
|
·
|
to establish and expand our
manufacturing capabilities;
|
|
·
|
to finance general and
administrative activities that are not related to specific products under
development; and
|
|
·
|
to otherwise carry on
business.
|
·
|
announcements of research
activities and technology innovations or new products by us or our
competitors;
|
|
·
|
changes in market valuation of
companies in our industry generally;
|
|
·
|
variations in operating
results;
|
|
·
|
changes in governmental
regulations;
|
·
|
developments in patent and other
proprietary rights;
|
|
·
|
public concern as to the safety
of drugs or treatments developed by us or
others;
|
|
·
|
results of clinical trials of our
products or our competitors' products; and
|
|
·
|
regulatory action or inaction on
our products or our competitors'
products.
|
GENEREX BIOTECHNOLOGY CORPORATION
|
||
(Registrant)
|
||
Date: June
9, 2009
|
By:
|
/s/ Anna E. Gluskin
|
Anna E. Gluskin
|
||
President and Chief Executive Officer
|
||
Date: June
9, 2009
|
By:
|
/s/ Rose C. Perri
|
Rose C. Perri
|
||
Chief Financial Officer
|
Exhibit
Number
|
|
Description of Exhibit(1)
|
2
|
Agreement
and Plan of Merger among Generex Biotechnology Corporation, Antigen
Express, Inc. and AGEXP Acquisition Inc. (incorporated by reference to
Exhibit 2.1 to Generex Biotechnology Corporation’s Current Report on Form
8-K filed on August 15, 2003)
|
|
3(i)
|
Restated
Certificate of Incorporation of Generex Biotechnology Corporation
(incorporated by reference to Exhibit 3(II) to Generex Biotechnology
Corporation’s Report on Form 10-Q filed on June 19,
2006)
|
|
3(ii)
|
Amended
and Restated By-Laws of Generex Biotechnology Corporation (incorporated by
reference to Exhibit 3.2(ii) to Generex Biotechnology Corporation’s Report
on Form 8-K filed December 5, 2007)
|
|
4.1
|
Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
Generex Biotechnology Corporation’s Registration Statement on Form S-1
(File No. 333-82667) filed on July 12, 1999)
|
|
4.2.1
|
Form
of Securities Purchase Agreement entered into with Cranshire Capital,
L.P.; Gryphon Partners, L.P.; Langley Partners, L.P.; Lakeshore Capital,
Ltd.; LH Financial; Omicron Capital; Photon Fund, Ltd.; Howard Todd
Horberg and Vertical Ventures, LLC dated May 29, 2003 (incorporated by
reference to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on
Form 10-Q/A for the quarter ended April 30, 2003 filed on August 13,
2003)
|
|
4.2.2
|
Form
of Registration Rights Agreement entered into with Cranshire Capital,
L.P.; Gryphon Partners, L.P.; Langley Partners, L.P.; Lakeshore Capital,
Ltd.; LH Financial; Omicron Capital; Photon Fund, Ltd.; Howard Todd
Horberg and Vertical Ventures, LLC dated May 29, 2003 (incorporated by
reference to Exhibit 4.2 to Generex Biotechnology Corporation’s Report on
Form 10-Q/A for the quarter ended April 30, 2003 filed on August 13,
2003)
|
|
4.2.3
|
Form
of Warrant granted to Cranshire Capital, L.P.; Gryphon Partners, L.P.;
Langley Partners, L.P.; Lakeshore Capital, Ltd.; LH Financial; Omicron
Capital; Photon Fund, Ltd.; Howard Todd Horberg and Vertical Ventures, LLC
dated May 29, 2003 (incorporated by reference to Exhibit 4.3 to Generex
Biotechnology Corporation’s Report on Form 10-Q/A for the quarter ended
April 30, 2003 filed on August 13, 2003)
|
|
4.3
|
Form
of replacement Warrant issued to warrant holders exercising at reduced
exercise price in May and June 2003 (incorporated by reference to Exhibit
4.13.7 to Generex Biotechnology Corporation’s Report on Form 10-K for the
period ended July 31, 2003 filed on October 29, 2003)
|
|
4.4.1
|
Securities
Purchase Agreement, dated December 19, 2003, by and among Generex
Biotechnology Corporation and the investors named therein (incorporated by
reference to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on
Form 8-K/A filed on March 24, 2004)
|
|
4.4.2
|
Registration
Rights Agreement, dated December 19, 2003, by and among Generex
Biotechnology Corporation and the investors named therein (incorporated by
reference to Exhibit 4.2 to Generex Biotechnology Corporation’s Report on
Form 8-K/A filed on March 24, 2004)
|
|
4.4.3
|
Form
of Warrant issued in connection with Exhibit 4.4.1 (incorporated by
reference to Exhibit 4.3 to Generex Biotechnology Corporation’s Report on
Form 8-K/A filed on March 24, 2004)
|
|
4.4.4
|
Form
of Additional Investment Right issued in connection with Exhibit 4.4.1
(incorporated by reference to Exhibit 4.4 to Generex Biotechnology
Corporation’s Report on Form 8-K/A filed on March 24,
2004)
|
|
4.5.1
|
Securities
Purchase Agreement, dated January 7, 2004, by and between Generex
Biotechnology Corporation and ICN Capital Limited (incorporated by
reference to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.5.2
|
Registration
Rights Agreement, dated January 7, 2004, by and between Generex
Biotechnology Corporation and ICN Capital Limited (incorporated by
reference to Exhibit 4.2 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
4.5.3
|
Warrant
issued in connection with Exhibit 4.5.1 (incorporated by reference to
Exhibit 4.3 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.5.4
|
Additional
Investment Right issued in connection with Exhibit 4.5.1 (incorporated by
reference to Exhibit 4.4 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.6.1
|
Securities
Purchase Agreement, dated January 9, 2004, by and between Generex
Biotechnology Corporation and Vertical Ventures, LLC (incorporated by
reference to Exhibit 4.5 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.6.2
|
Registration
Rights Agreement, dated January 9, 2004, by and between Generex
Biotechnology Corporation and Vertical Ventures, LLC (incorporated by
reference to Exhibit 4.6 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.6.3
|
Warrant
issued in connection with Exhibit 4.6.1 (incorporated by reference to
Exhibit 4.7 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.6.4
|
Additional
Investment Right issued in connection with Exhibit 4.6.1 (incorporated by
reference to Exhibit 4.8 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.7.1
|
Securities
Purchase Agreement, dated February 6, 2004, by and between Generex
Biotechnology Corporation and Alexandra Global Master Fund, Ltd.
(incorporated by reference to Exhibit 4.9 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on March 1,
2004)
|
|
4.7.2
|
Registration
Rights Agreement, dated February 6, 2004, by and between Generex
Biotechnology Corporation and Alexandra Global Master Fund, Ltd.
(incorporated by reference to Exhibit 4.10 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on March 1,
2004)
|
|
4.7.3
|
Warrant
issued in connection with Exhibit 4.7.1 (incorporated by reference to
Exhibit 4.11 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.7.4
|
Additional
Investment Right issued in connection with Exhibit 4.7.1 (incorporated by
reference to Exhibit 4.12 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
|
||
4.7.5
|
Escrow
Agreement, dated February 26, 2004, by and among Generex Biotechnology
Corporation, Eckert Seamans Cherin & Mellott, LLC and Alexandra Global
Master Fund, Ltd. (incorporated by reference to Exhibit 4.13 to Generex
Biotechnology Corporation’s Report on Form 8-K filed on March 1,
2004)
|
|
4.8.1
|
Securities
Purchase Agreement, dated February 11, 2004, by and between Generex
Biotechnology Corporation and Michael Sourlis (incorporated by reference
to Exhibit 4.14 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.8.2
|
Registration
Rights Agreement, dated February 11, 2004, by and between Generex
Biotechnology Corporation and Michael Sourlis (incorporated by reference
to Exhibit 4.15 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.8.3
|
Additional
Investment Right issued in connection with Exhibit 4.8.1 (incorporated by
reference to Exhibit 4.17 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.9.1
|
Securities
Purchase Agreement, dated February 13, 2004, by and between Generex
Biotechnology Corporation and Zapfe Holdings, Inc. (incorporated by
reference to Exhibit 4.18 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.9.2
|
Registration
Rights Agreement, dated February 13, 2004, by and between Generex
Biotechnology Corporation and Zapfe Holdings, Inc. (incorporated by
reference to Exhibit 4.19 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1, 2004)
|
|
4.9.3
|
Warrant
issued in connection with Exhibit 4.9.1 (incorporated by reference to
Exhibit 4.20 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 1, 2004)
|
|
4.9.4
|
Additional
Investment Right issued in connection with Exhibit 4.9.1 (incorporated by
reference to Exhibit 4.21 Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 1,
2004)
|
4.10.1
|
Securities
Purchase Agreement, dated June 23, 2004, by and among Generex
Biotechnology Corporation and the investors named therein (incorporated by
reference to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on July 14, 2004)
|
|
4.10.2
|
Registration
Rights Agreement, dated June 23, 2004, by and among Generex Biotechnology
Corporation and the investors (incorporated by reference to Exhibit 4.2 to
Generex Biotechnology Corporation’s Report on Form 8-K filed on July 14,
2004)
|
|
4.10.3
|
Form
of Warrant issued in connection with Exhibit 4.10.1 (incorporated by
reference to Exhibit 4.3 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on July 14, 2004)
|
|
4.10.4
|
Form
of Additional Investment Right issued in connection Exhibit 4.10.1
(incorporated by reference to Exhibit 4.4 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on July 14,
2004)
|
|
4.11.1
|
Securities
Purchase Agreement, dated November 10, 2004, by and among Generex
Biotechnology Corporation and the investors named therein (incorporated by
reference to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on November 12, 2004)
|
|
4.11.2
|
Form
of 6% Secured Convertible Debenture issued in connection with Exhibit
4.11.1 (incorporated by reference to Exhibit 4.2 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on November 12,
2004)
|
|
4.11.3
|
Registration
Rights Agreement, dated November 10, 2004, by and among Generex
Biotechnology Corporation and the investors named therein (incorporated by
reference to Exhibit 4.3 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on November 12, 2004)
|
|
4.11.4
|
Form
of Voting Agreement entered into in connection with Exhibit 4.11.1
(incorporated by reference to Exhibit 4.7 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on November 12,
2004)
|
|
4.12
|
Warrant
issued to The Aethena Group, LLC on April 28, 2005 (incorporated by
reference to Exhibit 4.20 to Generex Biotechnology Corporation’s Quarterly
Report on Form 10-Q filed on June 14, 2005)
|
|
4.13.1
|
Amendment
No. 4 to Securities Purchase Agreement and Registration Rights Agreement
entered into by and between Generex Biotechnology Corporation and the
Purchasers listed on the signature pages thereto on January 19, 2006
(incorporated by reference herein to Exhibit 4.1 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on January 20,
2006)
|
|
4.13.2
|
Form
of Additional AIRs issued in connection with Exhibit 4.13.1 (incorporated
by reference herein to Exhibit 4.4 to Generex Biotechnology Corporation’s
Report on Form 8-K filed on January 20, 2006)
|
|
4.14
|
Form
of Warrant issued by Generex Biotechnology Corporation on January 23, 2006
(incorporated by reference to Exhibit 4.2 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on January 24,
2006)
|
|
4.15.1
|
Agreement
to Amend Warrants between Generex Biotechnology Corporation and Cranshire
Capital L.P. dated February 27, 2006 (incorporated by reference to Exhibit
4.1 to Generex Biotechnology Corporation’s Report on Form 8-K filed on
February 28, 2006).
|
|
4.15.2
|
Agreement
to Amend Warrants between Generex Biotechnology Corporation and Omicron
Master Trust dated February 27, 2006 (incorporated by reference to Exhibit
4.2 to Generex Biotechnology Corporation’s Report on Form 8-K filed on
February 28, 2006).
|
|
4.15.3
|
Agreement
to Amend Warrants between Generex Biotechnology Corporation and Iroquois
Capital L.P. dated February 27, 2006 (incorporated by reference to Exhibit
4.3 to Generex Biotechnology Corporation’s Report on Form 8-K filed on
February 28, 2006).
|
|
4.15.4
|
Agreement
to Amend Warrants between Generex Biotechnology Corporation and Smithfield
Fiduciary LLC dated February 27, 2006 (incorporated by reference to
Exhibit 4.4 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on February 28, 2006).
|
|
4.15.5
|
Form
of Warrant issued by Generex Biotechnology Corporation on February 27,
2006 (incorporated by reference to Exhibit 4.26 to Generex Biotechnology
Corporation’s Report on Form 10-K filed on October 16,
2006)
|
4.16.1
|
Agreement
to Amend Additional Investment Right between Generex Biotechnology
Corporation and Cranshire Capital, L.P. dated February 28, 2006
(incorporated by reference to Exhibit 4.1 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on March 1,
2006).
|
|
4.16.2
|
Agreement
to Amend Additional Investment Right between Generex Biotechnology
Corporation and Omicron Master Trust dated February 28, 2006 (incorporated
by reference to Exhibit 4.2 to Generex Biotechnology Corporation’s Report
on Form 8-K filed on March 1, 2006).
|
|
4.16.3
|
Agreement
to Amend Additional Investment Right between Generex Biotechnology
Corporation and Iroquois Capital LP dated February 28, 2006 (incorporated
by reference to Exhibit 4.3 to Generex Biotechnology Corporation’s Report
on Form 8-K filed on March 1, 2006).
|
|
4.16.4
|
Agreement
to Amend Additional Investment Right between Generex Biotechnology
Corporation and Smithfield Fiduciary LLC dated February 28, 2006
(incorporated by reference to Exhibit 4.4 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on March 1,
2006).
|
|
4.16.5
|
Form
of Additional AIR Debenture issued by Generex Biotechnology Corporation on
February 28, 2006 (incorporated by reference to Exhibit 4.31 to Generex
Biotechnology Corporation’s Report on Form 10-K filed on October 16,
2006)
|
|
4.16.6
|
Form
of Additional AIR Warrant issued by Generex Biotechnology Corporation on
February 28, 2006 (incorporated by reference to Exhibit 4.32 to Generex
Biotechnology Corporation’s Report on Form 10-K filed on October 16,
2006)
|
|
4.17.1
|
Form
of Agreement to Amend Warrants between Generex Biotechnology Corporation
and the Investors dated March 6, 2006 (incorporated by reference to
Exhibit 4.1 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on March 7, 2006).
|
|
4.17.2
|
Form
of Warrant issued by Generex Biotechnology Corporation on March 6, 2006
(incorporated by reference to Exhibit 4.2 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on March 7,
2006)
|
|
4.18
|
Warrant
issued by Generex Biotechnology Corporation on April 17, 2006 to Zapfe
Holdings, Inc. (incorporated by reference to Exhibit 4.33 to Generex
Biotechnology Corporation’s Report on Form 10-Q filed on June 14,
2006)
|
|
4.19
|
Form
of Warrant issued by Generex Biotechnology Corporation on April 17, 2006
to certain employees (incorporated by reference to Exhibit 4.34 to Generex
Biotechnology Corporation’s Report on Form 10-Q filed on June 14,
2006).
|
|
4.20.1
|
Securities
Purchase Agreement entered into by and between Generex Biotechnology
Corporation and four Investors on June 1, 2006 (incorporated by reference
to Exhibit 4.1 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on June 2, 2006)
|
|
4.20.2
|
Form
of Warrant issued by Generex Biotechnology Corporation on June 1, 2006
(incorporated by reference to Exhibit 4.2 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on June 2, 2006)
|
|
4.21.1
|
Form
of Amendment to Outstanding Warrants (incorporated by reference to Exhibit
4.3 to Generex Biotechnology Corporation’s Report on Form 8-K filed on
June 2, 2006)
|
|
4.21.2
|
Form
of Warrant issued by Generex Biotechnology Corporation on June 1, 2006 in
connection with Exhibit 4.39 (incorporated by reference to Exhibit 4.4 to
Generex Biotechnology Corporation’s Report on Form 8-K filed on June 2,
2006)
|
|
4.22.1
|
Securities
Purchase Agreement, dated as of March 31, 2008 among the Registrant and
each of the purchasers named therein (incorporated by reference to Exhibit
4.1 to Generex Biotechnology Corporation’s Report on Form 8-K filed on
April 2, 2008)
|
4.22.2
|
Form
of 8% Secured Convertible Note, as amended (incorporated by reference to
Exhibit 4.2 to Generex Biotechnology Corporation’s Registration Statement
(333-150562) on Form S-3 filed on April 30, 2008)
|
|
4.22.3
|
Form
of Series A Warrant, as amended (incorporated by reference to Exhibit 4.3
to Generex Biotechnology Corporation’s Registration Statement on Form S-3
(333-150562) filed on April 30, 2008)
|
|
4.22.4
|
Form
of Series A-1 Warrant, as amended (incorporated by reference to Exhibit
4.4 to Generex Biotechnology Corporation’s Registration Statement on Form
S-3 (333-150562) filed on April 30, 2008)
|
|
4.22.5
|
Form
of Series B Warrant, as amended (incorporated by reference to Exhibit 4.5
to Generex Biotechnology Corporation’s Registration Statement on Form S-3
(333-150562) filed on April 30, 2008)
|
|
4.22.6
|
Form
of Series C Warrant, as amended (incorporated by reference to Exhibit 4.6
to Generex Biotechnology Corporation’s Registration Statement on Form S-3
(333-150562) filed on April 30, 2008)
|
|
4.22.7
|
Registration
Rights Agreement, dated March 31, 2008, among Registrant and each of the
purchasers under Securities Purchase Agreement (incorporated by reference
to Exhibit 4.7 to Generex Biotechnology Corporation’s Report on Form 8-K
filed on April 2, 2008)
|
|
4.22.8
|
Security
Agreement (incorporated by reference to Exhibit 4.8 to Generex
Biotechnology Corporation’s Report on Form 8-K filed on April 2,
2008)
|
|
4.22.9
|
Form
of Guaranty (incorporated by reference to Exhibit 4.9 to Generex
Biotechnology Corporation’s Report on Form 8-K filed on April 2,
2008)
|
|
9
|
Form
of Voting Agreement entered into in connection with Exhibit 4.11.1
(incorporated by reference to Exhibit 4.7 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on November 12,
2004)
|
|
10.1
|
Form
of separate Agreements entered into with each of Cranshire Capital, L.P.,
Portside Growth and Opportunity Fund, Rockmore Investment Master Fund
Ltd., Smithfield Fiduciary LLC and Iroquois Capital Opportunity Fund, LP
on December 22, 2008 (incorporated by reference to Exhibit 10.1 to Generex
Biotechnology Corporation’s Report on Form 8-K filed on December 23,
2008)
|
|
10.2
|
Form
of Agreement entered into with Iroquois Master Fund Ltd. on December 22,
2008 (incorporated by reference to Exhibit 10.2 to Generex Biotechnology
Corporation’s Report on Form 8-K filed on December 23,
2008)
|
|
10.3
|
Form
of separate Letter Agreements dated as of February 13, 2009 and entered
into by and between Generex Biotechnology Corporation and each of
Cranshire Capital, L.P., Portside Growth and Opportunity Fund, Rockmore
Investment Master Fund Ltd., Smithfield Fiduciary LLC, Iroquois Master
Fund Ltd. and Iroquois Capital Opportunity Fund, LP. (incorporated by
reference to Exhibit 10.1 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on February 17, 2009).
|
|
10.4
|
Form
of Forbearance and Amendment Agreement dated as of February 27, 2009 and
entered into by and between Generex Biotechnology Corporation and each of
Cranshire Capital, L.P., Portside Growth and Opportunity Fund, Rockmore
Investment Master Fund Ltd., Smithfield Fiduciary LLC, Iroquois Master
Fund Ltd. and Iroquois Capital Opportunity Fund, LP. (incorporated by
reference to Exhibit 10.1 to Generex Biotechnology Corporation’s Report on
Form 8-K filed on March 2, 2009).
|
|
31.1
|
Certification
of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
|
|
31.2
|
Certification
of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
|
|
32
|
Certification
of Chief Executive Officer and Chief Financial Officer pursuant to Section
906 of the Sarbanes-Oxley Act of
2002
|
(1)
|
In the case of incorporation by
reference to documents filed by the Registrant under the Exchange Act, the
Registrant’s file number under the Exchange Act is
000-25169.
|