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Item
1.01
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Entry
into a Material Definitive
Agreement
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As
a
condition to the Merger described below, the registrant’s Board of Directors and
those shareholders holding a majority of the registrant’s outstanding voting
power adopted and approved the GeoVax Labs, Inc. 2006 Equity Incentive Plan
(the
“Plan”). The following is a brief summary of the Plan. This summary
is qualified in its entirety by the full text of the Plan. The Plan
reserves 36,000,000 shares of the registrant’s common stock, or approximately 5%
of the shares issued and outstanding on the date of the Merger, for issuance
in
accordance with its terms. The purpose of the Plan is to enable the registrant
to offer to employees, officers, directors and consultants an opportunity
to
acquire a proprietary interest in the registrant.
The
Plan
became effective upon the consummation of the Merger. Unless the Plan is
earlier
terminated in accordance with its provisions, no stock incentives will be
granted under the Plan after the earlier of ten years from the effective
date,
or the date on which all of the shares reserved for the Plan have been issued
or
are no longer available for use under the Plan.
The
Plan
will be administered by a committee of two or more members of the Board of
Directors. The Committee will have full power to:
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·
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select
eligible participants to receive awards under the
Plan;
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·
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determine
the sizes and types of stock incentives to award under the
Plan;
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·
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determine
the terms and conditions of such
awards;
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·
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interpret
the Plan and any agreement or instrument entered into under the
Plan;
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·
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establish,
amend, or waive rules or regulations for the administration of
the
Plan;
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·
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amend
the terms and conditions of any outstanding stock incentives as
allowed
under the Plan; and
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·
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make
all other determinations, or take such other actions, as may be
necessary
or advisable for the administration of the
Plan.
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The
Board
of Directors and the Committee may grant the following stock incentives under
the Plan (each individually, a “Stock Incentive”):
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·
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stock
options to purchase shares of common stock, including options intended
to
qualify under Section 422 of the Internal Revenue Code (“incentive
stock options”) and options not intended to qualify under Section 422
of the Internal Revenue Code (“non-qualified stock
options”);
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·
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restricted
stock awards; and
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·
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restricted
stock bonus awards.
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Each
of
the above Stock Incentives will be evidenced by a stock incentive agreement
executed by the registrant and the eligible recipient, in such form and with
such terms and conditions as the Committee may, pursuant to the provisions
of
the Plan, determine in their discretion from time to time.
Awards
of
Stock Incentives under the Plan may be made to employees of the registrant
and
its subsidiaries, non-employee directors, and consultants or advisors that
provide services (other than the offering, sale or marketing of the registrant’s
securities) to the registrant or its subsidiaries (collectively, the
“Participants”). Only employees are eligible to receive a grant of incentive
stock options.
Stock
options may not be exercised after the tenth anniversary of the grant date,
except that any incentive stock option granted to a ten-percent shareholder
may
not be exercised after the fifth anniversary of the grant date.
A
stock
option issued under the Plan may not be transferable or assignable, except
by
the laws of descent and distribution, and may be exercisable only by the
Participant. However, a non-qualified stock option may be transferred by
the
Participant as a bona fide gift to his or her spouse, lineal descendant or
ascendant, siblings, and children by adoption.
Payment
for shares purchased pursuant to exercise of a stock option may be made in
cash
or, where expressly approved by the Committee, by delivery to the
registrant of a number of shares that have been owned and completely paid
for by
the Participant for at least six months prior to the date of exercise, or
a
combination thereof. In addition, the stock option may be exercised through
a
brokerage transaction as permitted under the provisions of Regulation T,
applicable to cashless exercises promulgated by the Board of Governors of
the
Federal Reserve System, unless prohibited by Section 402 of the Sarbanes-Oxley
Act of 2002. Except as otherwise provided in the Plan, payment must be made
at
the time that the stock option, or any part thereof, is exercised, and no
shares
shall be issued or delivered to the Participant upon exercise of the option
until full payment has been made by the Participant. Unless prohibited by
the
Sarbanes-Oxley Act of 2002, in the sole discretion of the Committee, a stock
option may be exercised by delivery to the registrant of a promissory note
executed by the Participant, with such other terms and conditions as the
Committee may determine. Other methods of payment may also be used if approved
by the Committee in its sole and absolute discretion and provided for under
the
related stock incentive agreement.
The
Committee may approve the repricing of all or any portion of outstanding
stock
options granted under the Plan without the additional approval of the
shareholders.
A
stock
bonus is an award of shares under the Plan for extraordinary service to the
registrant or any subsidiary. The Committee will determine the number of
shares
to be awarded and any conditions, criteria, or performance requirements
applicable to the stock bonus.
A
stock
award is an offer by the registrant to sell to an eligible person shares
that
may or may not be subject to restrictions. The Committee may determine the
terms, conditions, restrictions, and other provisions of each stock award.
Stock
awards issued under the Plan may have restrictions that lapse based upon
the
service of a Participant, or based upon the attainment of performance goals
established pursuant to the business criteria listed in the Plan, or based
upon
any other criteria that the Committee may determine appropriate. The purchase
price of shares sold pursuant to a stock award will be determined by the
registrant on the date the stock award is granted but may not be less than
the
Fair Market Value of the registrant’s common stock on the date of grant,
provided however, in the case of a sale, a holder of 10% or more of the
registrant’s common stock, the purchase price shall not be less than 110% of the
Fair Market Value.
The
Committee may attach a right to repurchase all, or any portion of, a Stock
Award
under the Plan.
The
Board
of Directors or the Committee may suspend, terminate, or amend the Plan from
time to time except that certain amendments as specified in the Plan may
not be
made without the approval of the registrant’s shareholders, including an
amendment to increase the number of shares reserved and issuable under the
Plan,
to extend the term of the Plan, or to decrease the minimum exercise price
of any
Stock Incentive. The Board of Directors or the Committee may also modify,
amend
or cancel any Stock Incentive granted under the Plan, including the repricing
of
any outstanding Stock Options granted under the Plan; provided, however,
that
without the consent of the Participant affected, no such modification, amendment
or cancellation may diminish the rights of such Participant under the Stock
Incentive previously granted under the Plan.
Prior
to
the Merger discussed below, on September 27, 2006, the registrant entered
into a
Second Amendment to Agreement and Plan of Merger in order to amend Sections
1.3(a) and 4.3 and Schedules 1.3(b), 1.7(b), 1.10 and Schedule IV of the
Agreement and Plan of Merger which was originally entered into between
the
registrant and GeoVax, Inc. on January 20, 2006 and initially amended on
June
29, 2006 (as amended, the “Merger Agreement”). The purpose of the amendment to
Section 1.3(b) of the Merger Agreement was to adjust the conversion ratio
such
that the registrant would issue 29.6521 shares of its common stock for
each
share of GeoVax, Inc. common stock. The conversion ratio was previously
29.2832
to 1. This change resulted from a correction of the number of issued and
outstanding shares of GeoVax, Inc. provided in Section 4.3 of the Merger
Agreement. The amendment to Section 4.3 changes the number of issued and
outstanding shares of GeoVax, Inc. common stock from 10,756,983 to 10,548,648.
These changes do not affect the total number of shares of the registrant’s
common stock issuable to the GeoVax, Inc. shareholders pursuant to the
Merger
Agreement. The amended Schedule 1.7(b) provides the names of the registrant’s
new officers and directors effective as of the closing of the Merger Agreement.
The amended Schedules 1.10 and IV provide updated numbers of outstanding
options
and warrants of the registrant and GeoVax, Inc. as of the closing of the
Merger
Agreement. The foregoing discussion is qualified in its entirety by reference
to
the amendment attached as an exhibit to this Current Report on Form
8-K.
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Item
2.01
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Completion
of Acquisition or Disposition of
Assets
|
On
September 28, 2006, in accordance with the terms of the Merger Agreement,
the
merger between the registrant and GeoVax, Inc. (the “Merger”) was consummated.
Following the Merger, shareholders of GeoVax, Inc. received a total of
490,332,103 shares of the registrant’s 708,326,669 shares of common stock
outstanding. Section 1.4(e) of the Merger Agreement contemplated that there
would be 733,332,879 shares of common stock outstanding at the closing
of the
Merger. However, this number assumed the sale and issuance of a total of
$13
million of the registrant’s common stock, as provided in Section 6.1(b) of the
Merger Agreement. Of this amount, the registrant has sold and issued $2
million
of common stock thus far. (See discussion below under the heading “Recent sales
of unregistered securities.”)
Description
of the registrant’s business.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Risk
factors.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Financial
information.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Properties.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Security
ownership of certain beneficial owners and management.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Directors
and executive officers.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission
on
August 18, 2006. While named in the definitive information statement as
a
director designee, Mr. David Kennedy resigned from the Board of Directors
of
GeoVax, Inc. prior to the consummation of the Merger. As a result, Mr.
Kennedy
did not become a director of the registrant at the closing of the Merger
as
previously planned. Mr. Kennedy cited personal reasons for his resignation.
Mr.
Kennedy’s resignation was not as a result of a disagreement with the registrant
or Geovax, Inc. on any matter relating to its operations, policies or practices.
Certain
relationships and related transactions.
On
December 1, 2001, GeoVax, Inc. and Emory University entered into an Equipment
and Ground Sublease. Emory University owns approximately 31.4% of the
registrant’s common stock. Pursuant to the lease, GeoVax, Inc. rents the
premises located at 1256 Briarcliff Road, Atlanta, Georgia 30322. The sublease
is month-to-month. The base rent was $980 per month plus 50% of the expenses
attributable to the premises until August 18, 2003 when GeoVax, Inc. increased
the amount of space it subleased. At that time the rent obligation increased
to
$4,248, plus 50% of the expenses.
On
August
23, 2002 the registrant and Emory University entered into a License Agreement.
Pursuant to the License Agreement, Emory University has sublicensed to GeoVax,
Inc. certain technology rights (including patents) acquired pursuant to an
Interinstitutional Agreement dated June 23, 2004 between Emory University
and
the Public Health Service. GeoVax, Inc. is required to pay to Emory University
royalties and maintenance fees in accordance with the License Agreement.
The
License Agreement will end on the expiration date of the last to expire of
the
licensed patents, unless sooner terminated due to (i) a failure by GeoVax,
Inc.
to pay any amount due under the License Agreement, (ii) a material breach
of any
term or provision of the License Agreement that is not cured within 30 days
of
receipt of written notice provided by the non-breaching party, (iii) the
transfer by GeoVax, Inc. of substantially all of its assets for the benefit
of
creditors or commencement of a proceeding under federal or state bankruptcy,
insolvency or similar laws or the declaration by a court of competent
jurisdiction determining that GeoVax, Inc. is insolvent or bankrupt; or (iv)
upon 90 days written notice to Emory University by GeoVax, Inc.
On
December 20, 2002 GeoVax, Inc. entered into an employment agreement with
Donald
G. Hildebrand, its President. Pursuant to the employment agreement, Mr.
Hildebrand receives a base salary of $180,000 annually. Mr. Hildebrand may
earn
a bonus of up to $75,000 per year, which bonus may be paid in cash, in stock,
or
in a combination of cash and stock. In conjunction with the employment
agreement, GeoVax, Inc. has agreed to pay for a term policy of life insurance
in
the amount of $500,000 and long term disability insurance the benefits of
which
will begin 90 days after the date of disability, with coverage to replace
70% of
annual compensation and to reimburse Mr. Hildebrand for state and federal
income
taxes paid in relation to medical and dental insurance premiums paid on his
behalf by his former employer. Mr. Hildebrand’s employment may be terminated
with cause or without cause. If he is terminated without cause, GeoVax, Inc.
has
agreed to provide him with 30 days notice and to continue his salary for
a
period of nine months after the effective date of termination. Mr. Hildebrand
has agreed to keep confidential GeoVax, Inc.’s trade secrets and confidential
information. He has also agreed, for a period of two years following the
termination of his employment, not to attempt to recruit employees from GeoVax,
Inc. The employment agreement includes an arbitration provision.
By
Subscription Agreement dated March 22, 2004, IP Squared Biotech, LLC, a limited
liability company of which David Kennedy is a member, entered into an agreement
with GeoVax, Inc. pursuant to which it purchased 2,500,000 shares of GeoVax,
Inc. common stock for the sum of $3,000,000. In accordance with the Subscription
Agreement, IP Squared Biotech, LLC paid $250,000 of the purchase price with
cash. GeoVax, Inc. accepted a security interest, in accordance with the terms
of
a Security Agreement dated March 22, 2004, in 2,291,665 shares of GeoVax,
Inc.
common stock as security for the payment of the balance of the purchase price,
which amounted to $2,750,000, all of which has been paid.
Market
price of and dividends on common equity and related shareholder
matters.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Description
of securities to be registered.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Financial
statements.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Changes
in and disagreements with accountants on accounting and financial
disclosure.
The
registrant incorporates by reference the information included in the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
Executive
compensation.
The
following table sets forth information as to the compensation paid or accrued
during the past three fiscal years to Mr. Andrew J. Kandalepas, our former
Chief
Executive Officer and President.
SUMMARY
COMPENSATION TABLE
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Annual
Compensation
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Long
Term
Compensation
Awards
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Name
and
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Securities
underlying
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Principal
Position
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Year
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Salary
($)
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Bonus
($)
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Options
(#)
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Andrew
J. Kandalepas
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2005
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$195,000
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$0
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0
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Chief
Executive Officer
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2004
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$195,000
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$0
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0
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President
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2003
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$195,000
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$0
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0
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There
were no stock options granted to or exercised by our executive officers during
the last completed fiscal year.
There
are
no employment contracts between the registrant and any executive officer.
There is an employment agreement between Geovax, Inc. and Mr. Donald
Hildebrand. This agreement is described above in the section titled
"Certain Relationships and Related Transactions."
With
the
exception of the employment agreement between Geovax, Inc. and Mr. Hildebrand,
the registrant has no compensatory plan or arrangement that results or will
result in the payment of more than $100,000 to an executive officer as a
result
of his resignation, retirement or any other termination of his employment
with
the registrant and its subsidiaries or from a change-in-control of the
registrant or a change in his responsibilities following a
change-in-control.
Legal
proceedings.
The
registrant is not currently involved in any legal proceeding.
Recent
sales of unregistered securities.
On
or
about June 20, 2006, the registrant sold and issued two convertible promissory
notes to an accredited investor, each in the principal amount of $1 million,
for
aggregate proceeds of $2 million. Each note was converted into 3,333,333
shares
of the registrant’s common stock upon the amendment of the registrant’s articles
of incorporation increasing the registrant’s authorized common stock to
850,000,000 shares, which occurred on or about September 18, 2006. The
registrant relied on Rule 506 of Regulation D of the Securities Act of
1933 to
issue the convertible promissory notes and common stock upon conversion
thereof,
inasmuch as the convertible promissory notes and underlying common stock
were
sold without any form of general solicitation or general advertising and
the
sales were made only to an accredited investor.
In
conjunction with the Merger the registrant issued a total of 490,332,103
shares
of the registrant’s 708,326,669 shares of common stock outstanding to the
shareholders of GeoVax, Inc. in exchange for all of the issued and outstanding
shares of GeoVax, Inc. As a result of the Merger, the former shareholders
of
GeoVax, Inc. currently own 69.2% of the registrant’s issued and outstanding
shares of common stock.
The
registrant relied on Rule 506 of Regulation D of the Securities Act of
1933 to
issue the common stock, inasmuch as the common stock was sold without any
form
of general solicitation or general advertising and sales were made only
to
accredited investors.
The
registrant intends to continue to seek equity financing by selling up to
an
additional $11 million of its securities as contemplated by Section 6.1(b)
of
the Merger Agreement. As securities are sold, the percentage ownership
attributed to the former shareholders of GeoVax, Inc. will be
diluted.
The
registrant issued 20,000,000 shares of common stock to Mr. Andrew J. Kandalepas,
its former Chief Executive Officer and President, for services rendered
in
connection with the Merger. The registrant relied on section 4(2) of the
Securities Act of 1933 to issue the securities inasmuch as the registrant
did
not engage in general solicitation or advertising in making this offering
and
the offeree occupied an insider status relative to the registrant that
afforded
him effective access to the information registration would otherwise provide.
These shares, while reported separately, are included in the number of
issued
and outstanding shares of the registrant reported in Item 2.01
above.
Indemnification
of officers and directors.
The
registrant is incorporated in the State of Illinois. Section 8.75 of the
Illinois Business Corporation Act defines the powers of a corporation to
indemnify its officers, directors, employees and agents. Aside from the
discretionary indemnification permitted by subsections (a) and (b) of Section
8.75, subsection (c) of Section 8.75 requires the registrant to indemnify
a
present or former director, officer or employee who has been successful,
on the
merits or otherwise, in the defense of any action, suit or proceeding so
long as
the person acted in good faith and in a manner he or she reasonably believed
to
be in, or not opposed to, the best interests of the corporation.
The
registrant has also adopted a by-law provision which stipulates that it shall
indemnify any person who was or is a party, or is threatened to be made a
party
to any threatened, pending or completed action, suit or proceeding, whether
civil, investigative or administrative, including by or in the right of the
registrant, by reason of the fact that he is or was a director, officer,
employee or agent of the registrant or fiduciary of any employee benefit
plan
maintained by the registrant, or who is or was a director, officer, employee
or
agent of the corporation of a fiduciary, or who is or was serving at the
request
of the registrant as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney’s fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with
such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the registrant’s best interest
and had no reasonable cause to believe his conduct was unlawful. No
indemnification may be made in respect of any claim, issue or matter as to
which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the registrant, unless, and only to the
extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view of all
the
circumstances of the case, such person is fairly and reasonably entitled
to
indemnity for such expenses as the court shall deem proper. Any indemnification
(unless ordered by a court) shall be made by the registrant only as authorized
in the specific case, upon a determination that the director, officer, employee,
agent or fiduciary has met the applicable standard of conduct. Such
determination shall be made (1) by the board of directors by a majority vote
of
a quorum consisting of directors who were not parties to such action, suit
or
proceeding, or (2) if such a quorum is not obtained, or even if obtainable,
if a
quorum of disinterested directors so directs, by independent legal counsel
in a
written opinion, or (3) by the shareholders.
To
the
extent that a director, officer, employee or agent of the registrant or
fiduciary has been successful, on the merits or otherwise, in the defense
of any
action, suit or proceeding referred to in the preceding section, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorney’s fees) actually and reasonably incurred by him in
connection therewith.
Expenses
incurred in defending a civil or criminal action, suit or proceeding may
be paid
by the registrant in advance of the final disposition of such action, suit
or
proceeding, as authorized by the Board of Directors in the specific case,
upon
receipt of an undertaking by or on behalf of the director, officer, employee
or
agent to repay such amount unless it shall ultimately be determined that
he is
entitled to be indemnified by the registrant.
The
indemnification provided by the registrant’s bylaws shall not be deemed
exclusive of any other rights to which those seeking indemnification may
be
entitled under any bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity and as
to
action in another capacity while holding such office, and shall continue
as to a
person who has ceased to be a director, officer, employee or agent, and shall
incur to the benefit of the heirs, executors and administrators of such
person.
The
registrant may purchase and maintain insurance on behalf of any person who
is or
was a director, officer, employee or agent of the registrant or fiduciary,
or
who is or was serving at the request of the registrant as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the registrant would have the power to indemnify him against
such
liability under the provisions of its bylaws.
|
Item
9.01
|
Financial
Statements and Exhibits
|
(a)
Audited
financial statements of GeoVax, Inc. for the fiscal years ended December
31,
2005 and December 31, 2004 are incorporated by reference from the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
(b)
Interim
financial statements of GeoVax, Inc. for the three month and six month periods
ended June 30, 2006 are incorporated by reference from the definitive
information statement filed with the Securities and Exchange Commission on
August 18, 2006.
(c)
The
registrant’s unaudited pro forma combined financial statements as of June 30,
2006 are incorporated by reference from the definitive information statement
filed with the Securities and Exchange Commission on August 18,
2006.
(d)
The
following exhibits are filed with this Current Report:
2.
Agreement
and Plan of Merger by and among GeoVax, Inc., GeoVax Acquisition Corporation
and
Dauphin Technology, Inc. dated January 20, 2006
(1)
2.1
First
Amendment to Agreement and Plan of Merger dated February 29, 2006
(2)
3.1
Articles
of Incorporation*
3.1.2
Articles
of Merger dated September 16, 1991*
3.1.3
Articles
of Amendment to Articles of Incorporation
(3)
3.2
Bylaws*
10.1
GeoVax
Labs, Inc. 2006 Equity Incentive Plan
(3)
10.2
License
Agreement dated August 23, 2002 between Emory University and GeoVax,
Inc.*
10.3
License
Amendment to L-286-2002/0 Based on License Application A-082-2004 between
the
National Institutes of Health and GeoVax, Inc.*
10.4
Technology
Sale and Patent License Agreement between MFD Inc. and GeoVax, Inc. dated
December 26, 2004*
10.5
Clinical
Trial Agreement based on Protocol HVTN 065 between the Division of AIDS National
Institute of Allergy and Infectious Diseases and GeoVax, Inc. dated April
28,
2005*
10.6
Employment
Agreement between Donald G. Hildebrand and GeoVax, Inc. dated December 20,
2002*
10.7
Equipment
and Ground Sublease made between EmTech Biotechnology Development, Inc. and
GeoVax, Inc.*
10.8
Equipment
and Ground Sublease Amendment No. 2 dated August 18, 2003*
10.9
Subscription
Agreement dated March 22, 2004 between GeoVax, Inc. and IP Squared Biotech,
LLC*
10.10
Security
Agreement dated March 22, 2004 between GeoVax, Inc. and IP Squared Biotech,
LLC.*
10.11
Second
Amendment to Agreement and Plan of Merger, dated September 27, 2006, by and
among Dauphin Technology Inc., GeoVax Acquisition Corp. and GeoVax,
Inc.*
10.12
Convertible
Promissory Note dated June 20, 2006 by the registrant in favor of Diamantis
Antonopoulos, in the principal amount of $1,000,000.*
10.13
Convertible
Convertible Promissory Note dated June 20, 2006 by the registrant in favor
of
Diamantis Antonopoulos, in the principal amount of
$1,000,000.*
_______________________________
*Filed
herewith.
(1)
Incorporated by reference from the registrant’s Current Report on Form 8-K filed
with the Securities and Exchange Commission on January 24, 2006.
(2)
Incorporated by reference from the registrant’s Current Report on Form 8-K filed
with the Securities and Exchange Commission on July 13, 2006.
(3)
Incorporated by reference from the registrants definitive information statement
filed with the Securities and Exchange Commission on August 18,
2006.
