UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549 FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): July 13, 2020

 

GENEREX BIOTECHNOLOGY CORPORATION

(Exact of registrant as specified in its charter)

 

DELAWARE	000-29169	98-0178636
State or other jurisdiction of incorporation	Commission File Number	IRS Employer Identification No.

 

10102 USA Today Way, Miramar, Florida 33025

(Address of principal executive offices) (Zip Code)

 

(416) 364-2551

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

  ☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

  ☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)WQ

  ☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

  ☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐ 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13 (a) of the Exchange Act. ☐

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
N/A	N/A	N/A

 

 

Item 8.01 Other Events.

On July 14, 2020, Generex Biotechnology Corporation (“Generex”) won and received a favorable order from the Third Judicial District Court in the State of Utah (the “Court”) denying plaintiff Iliad Research and Trading, L.P.’s motion for Temporary Restraining Order and further ordered that the Court’s hold in place order entered on May 29, 2010 be Withdrawn and Dissolved. Also, on July 13, 2020, the Court ordered that the State court case be stayed pending arbitration.

Generex may issue, transfer or otherwise dispose of any shares of stock without any restrictions by the Court.

A copy of the two (2) Court orders are attached to this report as Exhibit 99.1 and 99.2 and are incorporated by reference herein.

Forward-Looking Statements

Statements in this report may contain certain forward-looking statements. All statements included concerning activities, events or developments that the Generex expects, believes or anticipates will or may occur in the future are forward-looking statements. Actual results could differ materially from the results discussed in the forward-looking statements. Forward-looking statements are based on current expectations and projections about future events and involve known and unknown risks, uncertainties and other factors that may cause actual results and performance to be materially different from any future results or performance expressed or implied by forward-looking statements. Known risks and uncertainties also include those identified from time to time in the reports filed by Generex with the Securities and Exchange Commission, which should be considered together with any forward-looking statement. No forward-looking statement is a guarantee of future results or events, and one should avoid placing undue reliance on such statements. Generex undertakes no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. Generex cannot be sure when or if it will be permitted by regulatory agencies to undertake additional clinical trials or to commence any particular phase of clinical trials. Because of this, statements regarding the expected timing of clinical trials or ultimate regulatory approval cannot be regarded as actual predictions of when Generex will obtain regulatory approval for any “phase” of clinical trials or when it will obtain ultimate regulatory approval by a particular regulatory agency. Generex claims the protection of the safe harbor for forward-looking statements that is contained in the Private Securities Litigation Reform Act. Additional information on these and other risks, uncertainties and factors is included in the Company’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8- K and other documents filed with the SEC.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit No.	Description
99.1	Court Order provided by Utah Third District Court dated July 13, 2020
99.2	Court Order provided by Utah Third District Court dated July 14, 2020

Exhibit 99.1

 

		The Order of the Court is stated below:
		Dated:	July 13, 2020 03:58:04 PM	/s/ ROYAL I HANSEN District Court Judge

 

Jeremy C. Reutzel (10692)

Ryan M. Merriman (14720)

Bennett Tueller Johnson & Deere

3165 East Millrock Drive, Suite

500 Salt Lake City, Utah 84121-5027

Telephone: (801) 438-2000

Facsimile: (801) 438-2050

Email: jreutzel@btjd.com;

rmerriman@btjd.com

Attorneys for Plaintif s 

 

IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY   STATE OF UTAH
ILIAD RESEARCH AND TRADING, L.P., a Utah limited partnership, Plaintiff,   vs.   GENEREX BIOTECHNOLOGY CORPORATION, a Delaware corporation, Defendant.		ORDER GRANTING STIPULATED MOTION TO STAY PENDING ARBITRATION   Case No. 200903161   Judge Royal I. Hansen

 

 

 

 

The Court, having considered the parties’ Stipulated Motion to Stay Pending Arbitration (the “Motion”), and for good cause appearing, hereby ORDERS as follows:

 

1. The Motion is GRANTED;

 

2. The above-captioned case shall be stayed until the arbitrator issues a final arbitration award.

 

***ENTERED BY THE COURT ON THE DATE AND AS INDICATED BY THE COURT’S SEAL AT THE TOP OF THE FIRST PAGE**

 

Approved as to Form and Content:

 

Shumway Van

 

/s/ R. Tee Spjute

R. Tee Spjute

 

(Signed electronically by Ryan M. Merriman with express written authorization via email from R. Tee Spjute)

 

CERTIFICATE OF SERVICE

 

I certify that on July 10, 2020, I filed a true and correct copy of the foregoing document with the Court’s electronic filing system, which caused a copy to be served via email upon counsel of record.

 

/s/ Bree Boynton

 

 Exhibit 99.2

 

		The Order of the Court is stated below:
		Dated:	July 14, 2020 10:35:14 AM	/s/ ROYAL I HANSEN District Court Judge

  

ROBERT T. SPJUTE, ESQ. (13866)

SHUMWAY VAN

8 East Broadway, Suite 550

Salt Lake City, Utah 84111

Phone: (801) 478-8080

Fax: (801) 478-8088

tee@shumwayvan.com

Attorneys for Defendants

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
ILIAD RESEARCH AND TRADING, L.P., a Utah limited partnership, Plaintiff, vs.   GENEREX BIOTECHNOLOGY CORPORATION, a Delaware corporation, Defendant.		ORDER DENYING PLAINTIFF ILIAD RESEARCH AND TRADING, L.P.’S MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PREJUDGMENT WRIT OF ATTACHMENT   Case No.: 200903161   Judge: Royal I. Hansen

 

This matter comes before the Court on Plaintiff’s Motion for Temporary Restraining Order, Preliminary Injunction, and Prejudgment Writ of Attachment (the “Motion”). A hearing was held on June 25, 2020 (the “Hearing”), wherein Plaintiff Iliad Research and Trading, L.P. (“Plaintiff”) was represented by Jeremy C. Reutzel, Defendant Generex Biotechnology Corporation (“Defendant”) was represented by Robert T. Spjute, potential intervenor Auctus Fund, LLC was represented by Brian M. Rothschild and potential intervenor Discover Growth The Order of the Court is stated below: Dated: July 14, 2020 /s/ ROYAL I HANSEN 10:35:14 AM District Court Judge July 14, 2020 10:35 AM 1 of 6 Fund, LLC (collectively with Auctus Fund, LLC “Potential Intervenors”) was represented by R. Jeremy Adamson. After reviewing the briefing by both sides and the arguments raised at the Hearing, the Court makes the following ORDER:

ORDER

It is hereby ORDERED that the Plaintiff’s request for temporary restraining order is DENIED.

It is FURTHER ORDERED that the Court’s hold in place order entered on May 29, 2020 is WITHDRAWN and DISSOLVED and is SUBSTITUTED by this Order. This Order is based on the following:

RULING

Pursuant to Rule 65A(e) an applicant for a temporary restraining order or preliminary injunction must show the following:

(e)(1) The applicant will suffer irreparable harm unless the order or injunction issues;

(e)(2) The threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restrained or enjoined;

(e)(3) The order or injunction, if issued, would not be adverse to the public interest; and (e)(4) There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.

After reviewing the briefing and arguments raised in the Hearing, it is the Court’s determination that the balance of threatened injury weighs against the issuance of a temporary restraining order. The balance weighs against entering a temporary restraining order based on Defendant’s ability to continue as an ongoing concern due to the current COVID-19 pandemic. Some examples that July 14, 2020 10:35 AM 2 of 6 the Court relies on are that Defendant has seen a reduction in surgeries performed in VA hospitals which has affected Defendant’s current case flow, as well as the limited market for Generex shares as an over-the-counter stock.

Additionally, the Court finds that the public interest is not served by granting the requested temporary restraining order. With regard to the enforcement of contracts, specifically, the public has a strong interest in honoring and enforcing lawful contractual obligations. See ClearOne Commc’ns, Inc. v. Chiang, 608 F. Supp. 2d 1270, 1281 (D. Utah 2009), aff’d in part sub nom ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011) (“Although the court recognizes the public has a strong interest in a competitive marketplace, the public has an even greater interest in honoring contractual obligations and in fostering honest competition.”). Furthermore, Plaintiff and the proposed Intervenors have reached a stipulation that if injunctive relief is allowed by this Court then that injunctive relief would not apply to the Proposed Intervenors. However, Plaintiff’s agreements with Defendant do not authorize that stipulation, therefore, the Court cannot find that there is sufficient basis for granting a temporary restraining order based on the public interest concerns at issue.

As for irreparable harm, the Court notes there is potentially an argument that the Plaintiff could prevail with regard to irreparable harm, but the failure to meet the other elements of Rule 65A(e) prevents the Court from issuing a restraining order under these circumstances. The Court notes that this case presents serious issues on the merits which should be the subject of further litigation. However the Court does not weigh in, or make any determination with regard to which of the parties will prevail or not prevail, but simply notes that Plaintiff has made a prima facie July 14, 2020 10:35 AM 3 of 6 case of irreparable harm, but failed to prevail on the other issues that are before the Court relevant to Rule 65A(e) injunctive relief.

INTERVENTION AND OTHER FILINGS

As Intervenors have filed motions for intervention in this matter, the Court sets the following briefing Schedule:

To the extent there is any further opposition pleadings to the proposed interventions, writ of attachment or other moving documents, those filings must be filed by July 1, 2020. Any reply memoranda or responses to moving documents shall be filed by July 8, 2020.

[Court Seal/Signature Will Appear at the Top of the First Page]

Respectfully submitted by:

SHUMWAY VAN

/s/ Robert T. Spjute

ROBERT T. SPJUTE, ESQ.

JARED S. HYDE, ESQ.

Attorneys for Defendants Terraces at Holladay, LLC and Mason Dutton

Approved as to form:

BENNETT TUELLER JOHNSON & DEERE

/s/ Ryan M. Merriman

JEREMY C. REUTZEL, ESQ. (approved as to form via email)

RYAN M. MERRIMAN, ESQ.

Attorneys for Plaintiff Iliad Research and Trading, L.P.

Approved as to form:

PARSONS BEHLE & LATIMER

/s/ Brian M. Rothschild

BRIAN M. ROTHSCHILD, ESQ. (approved as to form via email)

Attorney for proposed IntervenorAuctus Fund, LLC

Approved as to form:

KUNZLER BEAN & ADAMSON, PC

/s/ Jeremy Adamson

R. JEREMY ADAMSON, ESQ. (approved as to form via email)

MEGAN J. NELSON, ESQ.

Attorneys for proposed Intervenor Discovery Growth Fund, LLC

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of July, 2020, I served a copy of this proposed order on counsel listed below via email pursuant to Rule 7(j) for approval as to form:

Jeremy C. Reutzel (10692)

Ryan M. Merriman (14720)

BENNETT TUELLER JOHNSON &DEERE

3165 East Millrock Drive, Suite 500

Salt Lake City, Utah 84121-5027

Telephone: (801) 438-2000

Facsimile: (801) 438-2050

Email: jreutzel@btjd.com;

rmerriman@btjd.com

Attorneys for Plaintiff

BRIAN M. ROTHSCHILD, USB #15316

PARSONS BEHLE & LATIMER

201 South Main Street, Suite 1800

Salt Lake City, Utah 84111

Telephone: 801.532.1234

Facsimile: 801.536.6111

BRothschild@parsonsbehle.com

Attorney for Intervenor Auctus Fund, LLC

R. Jeremy Adamson (12818)

Megan J. Nelson (15691)

KUNZLER BEAN & ADAMSON, PC

50 West Broadway, 10thFloor

Salt Lake City, Utah 84101

Telephone: 801-994-4646

jadamson@kba.law

nelson@kba.law

Attorneys for Discover Growth Fund, LLC

Signature: /s/ Robert T. Spjute

An employee of Shumway Van

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date: July 17, 2020

 

GENEREX BIOTECHNOLOGY CORPORATION

 

/s/Joseph Moscato

By: Joseph Moscato, CEO, President