Delaware
|
|
98-0178636
|
(State of other jurisdiction of
incorporation or
organization)
|
|
(IRS Employer Identification No.)
|
PART
I. FINANCIAL INFORMATION
|
|
Item
1. Financial Statements.
|
|
(Unaudited)
|
|
Consolidated
Balance Sheets -
|
|
January
31, 2009 and July 31, 2008
|
1
|
Consolidated
Statements of Operations — For the three and six month
|
|
periods
ended January 31, 2009 and 2008, and cumulative from
|
|
November
2, 1995 to January 31, 2009
|
2
|
Consolidated
Statements of Cash Flows — For the six month
|
|
periods
ended January 31, 2009 and 2008, and cumulative from
|
|
November
2, 1995 to January 31, 2009
|
3
|
Notes
to Consolidated Financial Statements
|
4
|
Item
2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
|
17
|
Item
3. Quantitative and Qualitative Disclosures About Market
Risk
|
35
|
Item
4. Controls and Procedures
|
36
|
PART
II: OTHER INFORMATION
|
|
Item
1. Legal Proceedings
|
36
|
Item
1A. Risk Factors
|
36
|
Item
2. Unregistered Sales of Equity Securities and Use of
Proceeds
|
39
|
Item
3. Defaults Upon Senior Securities
|
40
|
Item
4. Submission of Matters to a Vote of Security
Holders
|
40
|
Item
5. Other Information
|
40
|
Item
6. Exhibits
|
40
|
Signatures
|
40
|
January
31,
|
July
31,
|
|||||||
2009
|
2008
|
|||||||
ASSETS
|
(Unaudited)
|
|||||||
Current
Assets:
|
||||||||
Cash
and cash equivalents
|
$ | 7,679,832 | $ | 17,237,510 | ||||
Short-term
investments
|
-- | 8,852,214 | ||||||
Accounts
receivable
|
497,255 | 81,784 | ||||||
Inventory
|
1,187,516 | 1,465,222 | ||||||
Other
current assets
|
1,193,510 | 380,927 | ||||||
Restricted
cash
|
466,667 | -- | ||||||
Deferred
debt issuance costs
|
410,111 | 506,608 | ||||||
Total
Current Assets
|
11,434,891 | 28,524,265 | ||||||
Deferred
Debt Issuance Costs
|
-- | 211,086 | ||||||
Property
and Equipment, Net
|
1,446,276 | 1,744,974 | ||||||
Assets
Held for Investment, Net
|
3,033,770 | 3,713,317 | ||||||
Patents,
Net
|
3,793,177 | 3,954,241 | ||||||
TOTAL
ASSETS
|
$ | 19,708,114 | $ | 38,147,883 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
Liabilities:
|
||||||||
Accounts
payable and accrued expenses
|
$ | 6,184,342 | $ | 7,469,710 | ||||
Deferred
revenue and rebate liability
|
145,419 | 125,598 | ||||||
Current
maturities of long-term debt
|
1,345,161 | 1,832,684 | ||||||
Current
maturities of obligations under capital lease
|
40,469 | -- | ||||||
Convertible
debentures, net of debt discount of $7,472,474 and
|
||||||||
$15,931,480
at January 31, 2009 and July 31, 2008, respectively
|
3,540,859 | 4,718,520 | ||||||
Total
Current Liabilities
|
11,256,250 | 14,146,512 | ||||||
Obligations
Under Capital Lease, Net
|
30,229 | -- | ||||||
Long-Term
Debt, Net
|
1,268,217 | 1,354,564 | ||||||
Commitments
and Contingencies
|
||||||||
Stockholders’
Equity:
|
||||||||
Special
Voting Rights Preferred Stock, $.001 par value; authorized
|
||||||||
1,000
shares at January 31, 2009 and July 31, 2008; -0- shares
|
||||||||
issued
and outstanding at January 31, 2009 and July 31, 2008
|
-- | -- | ||||||
Common
stock, $.001 par value; authorized 500,000,000 shares at
|
||||||||
January
31, 2009 and July 31, 2008; 128,819,039 and 111,992,603
shares
|
||||||||
issued
and outstanding at January 31, 2009 and July 31, 2008,
respectively
|
128,819 | 111,992 | ||||||
Additional
paid-in capital
|
278,483,819 | 269,849,581 | ||||||
Deficit
accumulated during the development stage
|
(271,964,885 | ) | (248,229,261 | ) | ||||
Accumulated
other comprehensive income
|
505,665 | 914,495 | ||||||
Total
Stockholders’ Equity
|
7,153,418 | 22,646,807 | ||||||
TOTAL
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
$ | 19,708,114 | $ | 38,147,883 |
Cumulative
From
|
||||||||||||||||||||
November
2, 1995
|
||||||||||||||||||||
For
the Six Months Ended
|
For
the Three Months Ended
|
(Date
of Inception)
|
||||||||||||||||||
January
31,
|
January
31,
|
to
January 31,
|
||||||||||||||||||
2009
|
2008
|
2009
|
2008
|
2009
|
||||||||||||||||
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||||||||
Revenues,
net
|
$ | 972,982 | $ | 63,340 | $ | 434,636 | $ | 18,627 | $ | 3,472,367 | ||||||||||
Cost
of Goods Sold
|
349,390 | 25,585 | 327,198 | 5,654 | 463,038 | |||||||||||||||
Operating
Expenses:
|
||||||||||||||||||||
Research
and development
|
7,596,130 | 7,317,427 | 3,240,441 | 3,469,624 | 97,411,624 | |||||||||||||||
Research
and development -
|
||||||||||||||||||||
related
party
|
-- | -- | -- | -- | 220,218 | |||||||||||||||
Selling
and marketing
|
1,446,905 | 651,918 | 609,707 | 284,498 | 3,758,500 | |||||||||||||||
General
and administrative
|
4,912,435 | 6,602,793 | 2,064,522 | 3,086,873 | 110,548,901 | |||||||||||||||
General
and administrative -
|
||||||||||||||||||||
related
party
|
-- | -- | -- | -- | 314,328 | |||||||||||||||
Total
Operating Expenses
|
13,955,470 | 14,572,138 | 5,914,670 | 6,840,995 | 212,253,571 | |||||||||||||||
Operating
Loss
|
(13,331,878 | ) | (14,534,383 | ) | (5,807,232 | ) | (6,828,022 | ) | (209,244,242 | ) | ||||||||||
Other
Income (Expense):
|
||||||||||||||||||||
Miscellaneous
income (expense)
|
3 | -- | (2 | ) | -- | 196,261 | ||||||||||||||
Income
from rental operations, net
|
167,739 | 170,411 | 79,359 | 88,324 | 1,419,200 | |||||||||||||||
Interest
income
|
221,097 | 751,507 | 52,632 | 291,472 | 7,729,994 | |||||||||||||||
Interest
expense
|
(10,792,585 | ) | (116,622 | ) | (6,363,197 | ) | (58,948 | ) | (58,675,158 | ) | ||||||||||
Loss
on extinguishment of debt
|
-- | -- | -- | -- | (14,134,068 | ) | ||||||||||||||
Net
Loss Before Undernoted
|
(23,735,624 | ) | (13,729,087 | ) | (12,038,440 | ) | (6,507,174 | ) | (272,708,013 | ) | ||||||||||
Minority
Interest Share of Loss
|
-- | -- | -- | -- | 3,038,185 | |||||||||||||||
Net
Loss
|
(23,735,624 | ) | (13,729,087 | ) | (12,038,440 | ) | (6,507,174 | ) | (269,669,828 | ) | ||||||||||
Preferred
Stock Dividend
|
-- | -- | -- | -- | 2,295,057 | |||||||||||||||
Net
Loss Available to Common
|
||||||||||||||||||||
Shareholders
|
$ | (23,735,624 | ) | $ | (13,729,087 | ) | $ | (12,038,440 | ) | $ | (6,507,174 | ) | $ | (271,964,885 | ) | |||||
Basic
and Diluted Net Loss Per
|
||||||||||||||||||||
Common
Share
|
$ | (.20 | ) | $ | (.12 | ) | $ | (.10 | ) | $ | (.06 | ) | ||||||||
Weighted
Average Number of Shares
|
||||||||||||||||||||
of
Common Stock Outstanding
|
121,454,322 | 110,502,721 | 124,799,620 | 110,945,413 |
Cumulative
From
|
||||||||||||
November
2, 1995
|
||||||||||||
For
the Six Months Ended
|
(Date
of Inception)
|
|||||||||||
January
31,
|
to
January 31,
|
|||||||||||
2009
|
2008
|
2009
|
||||||||||
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
||||||||||
Cash
Flows From Operating Activities:
|
||||||||||||
Net
loss
|
$ | (23,735,624 | ) | $ | (13,729,087 | ) | $ | (269,669,828 | ) | |||
Adjustments
to reconcile net loss to net cash used
|
||||||||||||
in
operating activities:
|
||||||||||||
Depreciation
and amortization
|
413,793 | 599,644 | 7,380,658 | |||||||||
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
|
102,800 | 1,002,699 | 3,584,065 | |||||||||
Issuance
of options and option modifications as employee
|
||||||||||||
compensation
|
19,360 | -- | 91,938 | |||||||||
Common
stock issued for services rendered
|
124,166 | 1,054,661 | 8,650,364 | |||||||||
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
|
-- | -- | 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
|
307,583 | -- | 1,995,518 | |||||||||
Amortization
of discount on convertible debentures
|
8,459,007 | -- | 30,873,118 | |||||||||
Common
stock issued as interest payment on convertible
|
||||||||||||
debentures
|
252,083 | -- | 536,542 | |||||||||
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
|
(428,276 | ) | (51,281 | ) | (515,657 | ) | ||||||
Miscellaneous
receivables
|
-- | -- | 43,812 | |||||||||
Inventory
|
172,810 | (247,815 | ) | (1,290,631 | ) | |||||||
Other
current assets
|
(824,627 | ) | 16,200 | (899,653 | ) | |||||||
Accounts
payable and accrued expenses
|
(1,204,834 | ) | (922,649 | ) | 10,885,786 | |||||||
Deferred
revenue
|
27,446 | 69,384 | 152,958 | |||||||||
Other,
net
|
-- | -- | 110,317 | |||||||||
Net
Cash Used in Operating Activities
|
(14,724,325 | ) | (12,208,244 | ) | (160,922,066 | ) | ||||||
|
||||||||||||
Cash
Flows From Investing Activities:
|
||||||||||||
Purchase
of property and equipment
|
(1,385 | ) | (2,499 | ) | (4,594,932 | ) | ||||||
Costs
incurred for patents
|
(66,503 | ) | (118,277 | ) | (2,116,865 | ) | ||||||
Change
in restricted cash
|
(466,667 | ) | -- | (420,795 | ) | |||||||
Proceeds
from maturity of short term investments
|
8,852,214 | 11,829,420 | 195,242,918 | |||||||||
Purchases
of short-term investments
|
-- | (18,000,651 | ) | (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
|
-- | 30,795 | (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
|
8,317,659 | (6,261,212 | ) | (11,084,398 | ) | |||||||
|
||||||||||||
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
|
(41,095 | ) | (44,056 | ) | (1,982,939 | ) | ||||||
Repayment
of obligations under capital lease
|
(12,304 | ) | -- | (12,304 | ) | |||||||
Change
in due to related parties
|
-- | -- | 154,541 | |||||||||
Proceeds
from exercise of warrants
|
-- | -- | 44,015,049 | |||||||||
Proceeds
from exercise of stock options
|
56,000 | 49,290 | 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
|
-- | -- | (722,750 | ) | ||||||||
Repayments
of convertible debentures
|
(3,130,000 | ) | -- | (3,765,757 | ) | |||||||
Purchase
of treasury stock
|
-- | -- | (483,869 | ) | ||||||||
Proceeds
from issuance of common stock, net
|
-- | -- | 80,283,719 | |||||||||
Purchase
and retirement of common stock
|
-- | -- | (497,522 | ) | ||||||||
Net
Cash Provided by Financing Activities
|
(3,127,399 | ) | 5,234 | 179,731,518 | ||||||||
Effect
of Exchange Rates on Cash
|
(23,613 | ) | (41,858 | ) | (45,222 | ) | ||||||
Net
Increase (Decrease) in Cash and Cash Equivalents
|
(9,557,678 | ) | (18,506,080 | ) | 7,679,832 | |||||||
Cash
and Cash Equivalents, Beginning of Period
|
17,237,510 | 21,026,067 | -- | |||||||||
Cash
and Cash Equivalents, End of Period
|
$ | 7,679,832 | $ | 2,519,987 | $ | 7,679,832 |
|
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
|
(1,066,000 | ) | $ | 1.69 | ||||||||||||
Exercised
|
(100,000 | ) | $ | 0.56 | ||||||||||||
Outstanding,
January 31, 2009
|
5,080,638 | $ | 0.45 | 1.12 | $ | 770,426 | ||||||||||
Exercisable,
January 31, 2009
|
4,993,138 | $ | 770,426 | |||||||||||||
Grant
Date Fair Value of Forfeited or Expired Options
|
$ | 1.29 | ||||||||||||||
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,
January 31, 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
|
(59,375 | ) | 1.51 | |||||
Forfeited
|
-- | -- | ||||||
Non-vested
stock, January 31, 2009
|
44,531 | $ | 1.51 |
|
4.
|
Comprehensive
Income/(Loss)
|
|
5.
|
Accounts
Payable and Accrued Expenses
|
January
31,
|
July
31,
|
|||||||
2009
|
2008
|
|||||||
Accounts
Payable
|
$ | 1,450,709 | $ | 2,613,789 | ||||
Research
and Development
|
1,877,013 | 2,048,101 | ||||||
Executive
Compensation
|
2,493,716 | 2,469,026 | ||||||
Financial
Services
|
362,904 | 338,794 | ||||||
Total
|
$ | 6,184,342 | $ | 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
|
$ | 11,942,691 | ||
Principal
and Interest Converted
|
$ | -- | ||
Shares
Issued Upon Conversion
|
-- | |||
Principal
and Interest Repayments
|
||||
in Shares of Common
Stock
|
$ | 6,758,748 | ||
Shares
Issued for Principal and
|
||||
Interest
Repayments
|
16,311,994 | |||
Principal
and Interest Repayments
|
||||
in Cash
|
$ | 4,004,030 |
(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, 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.
|
(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; Series C warrants
12,799,580. During the six months ended January 31, 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 January 31, 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
(“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 six months ended January 31, 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 shall have 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 has agreed to honor 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 shall promptly pay the applicable Company
Redemption Amount when due.
|
|
7.
|
Pending
Litigation
|
|
8.
|
Net
Loss Per Share
|
|
9.
|
Supplemental
Disclosure of Cash Flow Information
|
For
the Six Months Ended
|
||||||||
January
31,
|
||||||||
2009
|
2008
|
|||||||
Cash
paid during the period for:
|
||||||||
Interest
|
$ | 976,706 | $ | 116,666 | ||||
Income
taxes
|
$ | -- | $ | -- | ||||
Disclosure
of non-cash investing and financing activities:
|
||||||||
Issuance of common stock as
satisfaction of accrued
|
||||||||
executive
compensation
|
$ | -- | $ | 471,875 | ||||
Issuance of common stock as
repayment of convertible
|
||||||||
debentures
|
$ | 6,506,668 | $ | -- | ||||
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
|
289,619 | $ | 290 | $ | 123,877 | $ | 124,167 | |||||||||
Issuance
of common stock as employee
|
||||||||||||||||
compensation
|
124,823 | 125 | 50,376 | 50,501 | ||||||||||||
Stock-based
executive compensation
|
-- | -- | 71,658 | 71,658 | ||||||||||||
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
|
16,311,994 | 16,312 | 6,742,436 | 6,758,748 | ||||||||||||
Warrant
re-pricing costs
|
-- | -- | 1,589,988 | 1,589,988 | ||||||||||||
Total
|
16,826,436 | $ | 16,827 | $ | 8,634,235 | $ | 8,651,062 |
11.
|
Subsequent
Events
|
|
(a)
|
The
Maturity Date is accelerated from August 30, 2009 to July 1, 2009, subject
to extension by the holder.
|
|
(b)
|
The
term “Installment Date” 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 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.
|
|
(d)
|
Section
4(a)(iii) of the debenture is 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.
|
|
(e)
|
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 will
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.
|
|
(f)
|
An
“Event of Default” includes 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)).
|
|
(g)
|
As
of the Effective Date, the Company may 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.
|
|
(h)
|
The
Company must 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 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 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 will be equal to the price which shall be
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 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 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 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 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.
|
·
|
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 are exercisable beginning 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 remaining exercisable for a period
of 18 months after a registration statement covering the shares of common
stock issuable upon conversion or exercise of the Notes and Warrants is
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) 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 the Effective Date, 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 the Effective
Date.
|
|
·
|
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
|
17,066,117
|
$
|
0.50
|
October
1, 2009
|
|||
March
31, 2008
|
25,496,610
|
$
|
0.50
|
March
31, 2016
|
|||
March
31, 2008
|
12,799,580
|
$
|
0.50
|
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, Lebanon 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
|
2,892,139
|
1,467,272
|
1,224,891
|
51,058
|
148,918
|
|||||||||||||||
Convertible
Debt Obligations
|
11,348,628
|
11,348,628
|
||||||||||||||||||
Capital
Lease Obligations
|
79,532
|
47,720
|
31,812
|
|||||||||||||||||
Operating
Lease Obligations
|
378,081
|
129,635
|
197,105
|
51,341
|
||||||||||||||||
Purchase
Obligations
|
||||||||||||||||||||
Other
Long-Term Liabilities Reflected on the Registrant's Balance Sheet under
GAAP
|
||||||||||||||||||||
Total
|
$
|
14,698,380
|
$
|
12,993,255
|
$
|
1,453,808
|
$
|
102,399
|
$
|
148,918
|
Loan Amount
|
Interest Rate
per Annum
|
|||||
591,609
|
6.82
|
%
|
||||
554,336
|
7.60
|
%
|
||||
325,160
|
8.50
|
%
|
||||
170,026
|
10
|
%
|
||||
972,247
|
6.07
|
%
|
||||
2,613,378
|
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;
|
|
·
|
to
meet our obligations under the 8% secured convertible notes;
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: March
11, 2009
|
By:
|
/s/ Anna E. Gluskin
|
Anna E. Gluskin
|
||
President and Chief Executive Officer
|
||
Date: March
11, 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 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.
|