def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
o Preliminary
Proxy Statement
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
x Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material Pursuant to
§ 240.14a-12
Marshall Edwards, Inc.
(Name of Registrant as Specified In
Its Charter)
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
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(1) |
Title of each class of securities to which transaction applies:
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(2) |
Aggregate number of securities to which transaction applies:
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(3) |
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(set forth the amount on which the filing fee is calculated and
state how it was determined):
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(4) |
Proposed maximum aggregate value of transaction:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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(1) |
Amount Previously Paid:
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(2) |
Form, Schedule or Registration Statement No.:
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Marshall Edwards, Inc.
140 Wicks Road
North Ryde, New South Wales 2113
Australia
NOTICE OF
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MARCH 29, 2010
To Our Stockholders:
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What:
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Special Meeting of Stockholders
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When:
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Monday, March 29, 2010 at 1:00 p.m., Pacific Time
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Where:
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Offices of Morgan, Lewis & Bockius, Room 2852, One Market,
Spear Street Tower, San Francisco, California 94105
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Why:
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At this Special Meeting, we plan to consider and vote upon the
proposal listed below and any other matters that may properly
come before the Special Meeting or any adjournment or
postponement of the Special Meeting.
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Proposal No. 1: A proposal to amend
our Restated Certificate of Incorporation to effect a reverse
stock split of our Common Stock at the
1-for-10
reverse split ratio.
The close of business on February 24, 2010 has been fixed
as the record date for determining those Marshall Edwards
stockholders entitled to vote at the Special Meeting.
Accordingly, only stockholders of record at the close of
business on that date will receive this notice of, and be
eligible to vote at, the Special Meeting and any adjournment or
postponement of the Special Meeting. The item of business listed
above is more fully described in the Proxy Statement that
accompanies this notice.
The Marshall Edwards Board of Directors recommends that you
vote FOR the above proposal.
Your vote is important. Please read the Proxy
Statement and the instructions on the enclosed proxy card and
then, whether or not you plan to attend the Special Meeting in
person, and no matter how many shares you own, please submit
your proxy promptly in accordance with the instructions on the
enclosed proxy card, or by signing, dating and returning your
proxy card in the postage paid envelope provided. This will not
prevent you from voting in person at the Special Meeting. It
will, however, help to assure a quorum and to avoid added proxy
solicitation costs.
You may change your vote or revoke your proxy at any time before
it is voted at the Special Meeting by executing a later-voted
proxy or by voting by ballot at the Special Meeting. Attendance
at the Special Meeting will not in and of itself constitute
revocation of a proxy.
BY ORDER OF THE BOARD OF DIRECTORS
David Seaton
Chief Executive Officer
February 24, 2010
Important
Notice Regarding the Availability of Proxy Materials for the
Special Meeting to be Held on March 29, 2010:
The Companys Proxy Statement are available on the
website at http//www.edocumentview.com/MSHL.
TABLE OF
CONTENTS
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A-1
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i
MARSHALL
EDWARDS, INC.
140 Wicks Road
North Ryde, New South Wales 2113
Australia
FOR THE
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MARCH 29, 2010
This Proxy Statement is being furnished in connection with the
solicitation of proxies by and on behalf of the Board of
Directors of Marshall Edwards, Inc. (the Company) to
be used at the Special Meeting of Stockholders to be held on
March 29, 2010 (the Special Meeting), and at
any adjournment thereof, for the purpose set forth in the
accompanying Notice of Special Meeting (the Proxy
Statement).
Date,
Time and Place
A Special Meeting of Marshall Edwards stockholders will be held
at 1:00 p.m., Pacific Time, on March 29, 2010 at the
offices of Morgan, Lewis & Bockius, Room 2852, One
Market, Spear Street Tower, San Francisco, California
94105. This Proxy Statement is intended to be first mailed or
otherwise delivered to stockholders on or about
February 26, 2010.
Purpose
of the Special Meeting
The purpose of the Special Meeting is to consider and vote on
the following proposal:
Proposal No. 1: A proposal to amend
our Restated Certificate of Incorporation to effect a reverse
stock split of our Common Stock at the
1-for-10
reverse split ratio.
At the Special Meeting, Marshall Edwards stockholders will also
be asked to consider and vote on any other matters that may
properly come before the Special Meeting or any adjournment or
postponement of the Special Meeting. At this time, our Board of
Directors is unaware of any matters, other than that set forth
above, that may properly come before the Special Meeting.
Record
Date; Shares Outstanding and Entitled to Vote
The close of business on February 24, 2010 has been fixed
as the record date (the Record Date) for the
determination of the stockholders entitled to notice of and to
vote at the Special Meeting. Only holders of shares of the
Companys common stock, $0.00000002 par value per
share (the Common Stock) as of the Record Date are
entitled to notice of and to vote at the Special Meeting. Each
share of Common Stock entitles the holder thereof to one vote
per share on each matter presented to the stockholders for
approval at the Special Meeting. On the Record Date, there were
73,463,233 shares of Common Stock outstanding and entitled
to vote and no shares of preferred stock outstanding and
entitled to vote.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY
MATERIALS FOR THE SPECIAL STOCKHOLDERS MEETING TO BE HELD ON
March 29, 2010.
How to
Vote Your Shares and Change Your Vote
The Proxy Statement and the directions to the Special Meeting
are available at
http://www.edocumentview.com/MSHL.
If your shares are registered directly in your name with the
Companys transfer agent, Computershare Investor Services
LLC, you are considered the stockholder of record of
those shares and this Proxy Statement and the accompanying
materials are being sent directly to you by the Company.
If you are a stockholder of record (also called a registered
stockholder) you can vote your shares in person at the Special
Meeting or you can vote by proxy by completing and returning the
enclosed proxy card. Whichever method you use, each valid proxy
received in time will be voted at the Special Meeting in
accordance with your instructions. To ensure that your proxy is
voted, it should be received by the close of business on
March 26, 2010. If you submit a proxy without giving
instructions, your shares will be voted as recommended by the
Board of Directors.
If your shares are held in a stock brokerage account or by a
bank or other nominee, you are considered the beneficial
owner of shares held in street name (also called a
street name holder), and this Proxy Statement and
the accompanying materials are being forwarded to you by your
broker, bank or nominee, who is considered the stockholder of
record of those shares. As a beneficial owner, you have the
right to direct your broker, bank or nominee on how to vote the
shares held in your account.
If you are a beneficial owner of shares held in street name, you
are invited to attend the Special Meeting. However, since you
are not a stockholder of record, you may not vote these shares
in person at the Special Meeting unless you bring with you a
legal proxy from the stockholder of record. A legal proxy may be
obtained from your broker, bank or nominee. If you do not wish
to vote in person or you will not be attending the Special
Meeting, you may vote your shares according to the voting
instructions that you receive from your broker, bank or nominee.
You may change your vote or revoke your proxy at any time before
it is voted at the Special Meeting by executing a later-voted
proxy or by voting by ballot at the Special Meeting. Attendance
at the Special Meeting will not in and of itself constitute
revocation of a proxy.
If you hold your shares in your own name, you may submit a proxy
by mail or vote by attending the Special Meeting and voting in
person.
Proxies;
Counting Your Vote
If you provide specific voting instructions, your shares will be
voted at the Special Meeting in accordance with your
instructions. If you hold shares in your name and sign and
return a proxy card or submit a proxy without giving specific
voting instructions, your shares will be voted as follows:
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FOR approval of the amendment to our Restated
Certificate of Incorporation to effect a reverse stock split of
our Common Stock at the
1-for-10
reverse split ratio.
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At this time we are unaware of any matters, other than that set
forth above, that may properly come before the Special Meeting.
If any other matters properly come before the Special Meeting,
the persons named in the enclosed proxy, or their duly
constituted substitutes acting at the Special Meeting or any
adjournment or postponement of the Special Meeting, will be
deemed authorized to vote or otherwise act on such matters in
accordance with their judgment.
The persons named in the enclosed proxy, or their duly
constituted substitutes acting at the Special Meeting or any
adjournment or postponement of the Special Meeting, may propose
and vote for one or more adjournments or postponements of the
Special Meeting, including adjournments or postponements to
permit further solicitations of proxies. Proxies solicited may
be voted only at the Special Meeting and any adjournment or
postponement of the Special Meeting and will not be used for any
other Marshall Edwards meeting of stockholders.
Officers of Marshall Edwards will serve as proxy tabulator and
count the votes. The results will be certified by the inspectors
of election.
Abstentions
and Broker Non-Votes
An abstention occurs when a stockholder sends in a
proxy with explicit instructions to decline to vote regarding a
particular matter. Abstentions are counted as present for
purposes of determining a quorum. However, an abstention with
respect to a matter submitted to a vote of stockholders will not
be counted as having been voted for or against the matter.
Because approval of the proposal to be voted on at the Special
Meeting requires a majority of the outstanding shares, an
abstention with respect to any of the matters scheduled for a
vote at the Special Meeting will have the same effect as a vote
Against the proposal.
A broker non-vote occurs when a broker or other nominee who
holds shares for another person does not vote on a particular
proposal because that holder does not have discretionary voting
power for the proposal and has not received voting instructions
from the beneficial owner of the shares so the broker is unable
to vote those uninstructed shares. Brokers will have
discretionary voting power to vote on Proposal No. 1,
so we do not anticipate any broker non-votes. However, shares
that are the subject of a broker non-vote are included for
quorum purposes, but a broker non-vote with respect to a
proposal will not be counted as a vote cast for or
against the proposal. Because approval of the proposal to be
voted on at the Special Meeting requires a majority of the
2
outstanding shares, a broker non-vote with respect to any of the
matters scheduled for a vote at the Special Meeting will have
the same effect as a vote Against the proposal.
Quorum
and Required Votes
In deciding all matters that come before the Special Meeting,
each holder of Common Stock as of the Record Date is entitled to
one vote per share of Common Stock. The holders of the Common
Stock vote as a single class.
The presence, in person or by proxy, of the holders of one-third
of the shares of the Common Stock issued and outstanding and
entitled to vote at the Special Meeting will constitute a
quorum. Proxies marked Abstain and broker
non-votes will be treated as shares that are present
for purposes of determining the presence of a quorum.
Proposal No. 1: Proposal No. 1
to approve the amendment our Restated Certificate of
Incorporation to effect a reverse stock split requires the
affirmative vote of a majority of the outstanding shares. Any
shares not voted (whether by abstention or otherwise) will have
the same effect as a vote Against the proposal.
Our largest stockholder, Novogen Limited, which holds 71.3% of
the Common Stock outstanding, (Novogen) has
indicated that it intends to vote in favor of the above
proposal. See the section entitled Security Ownership of
Certain Beneficial Owners and Management of Marshall
Edwards beginning on page 14. If Novogen votes all of
its shares in favor of the proposal as it has indicated, the
proposal will be approved.
All share numbers in this Proxy Statement do not take into
account the effect of the proposed amendments to our Restated
Certificate of Incorporation, unless otherwise expressly
indicated.
Solicitation
of Proxies
We are soliciting proxies from stockholders on behalf of our
Board of Directors and will pay for all costs incurred by it in
connection with the solicitation. In addition to solicitation by
mail, the directors, officers and employees of Marshall Edwards
and its subsidiaries may solicit proxies from our stockholders
in person or by telephone, facsimile,
e-mail or
other electronic methods without additional compensation other
than reimbursement for their actual expenses.
Arrangements also will be made with brokerage firms and other
custodians, nominees and fiduciaries for the forwarding of
solicitation material to the beneficial owners of stock held of
record by such persons, and we will reimburse such custodians,
nominees and fiduciaries for their reasonable
out-of-pocket
expenses in connection therewith.
Recommendation
of the Marshall Edwards Board of Directors
The Marshall Edwards Board of Directors, by unanimous vote of
those directors present, has approved the amendment to the
Restated Certificate of Incorporation to effect a reverse stock
split of our Common Stock at the
1-for-10
reverse split ratio.
The Marshall Edwards Board of Directors recommends that you
vote FOR approval of the amendment to our Restated
Certificate of Incorporation.
Important Notice Regarding the Availability of Proxy
Materials for the Stockholder Meeting To Be Held on
March 29, 2010. The Proxy Statement is available at
http://www.edocumentview.com/MSHL.
If you have any questions about voting your shares or would
like to obtain directions to attend the Special Meeting, please
contact David Seaton:
Marshall Edwards, Inc.
140 Wicks Road
North Ryde, New South Wales 2113
Australia
Telephone: +61 2 9878 0088
3
QUESTIONS
AND ANSWERS ABOUT THIS PROXY STATEMENT
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Q1: |
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What am I voting on? |
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A1: |
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You are voting on one proposal: |
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Proposal No. 1: Amendment of our
Restated Certificate of Incorporation to effect a reverse stock
split of our Common Stock at the
1-for-10
reverse split ratio. |
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Q2: |
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Who is soliciting my proxy to vote on the proposal? |
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Our Board of Directors is requesting your proxy to vote on the
proposal. |
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Q3: |
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How does the Marshall Edwards Board of Directors recommend
that I vote? |
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A3: |
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Our Board of Directors recommends that you vote FOR
the proposal. |
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Q4: |
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Why does Marshall Edwards need to hold this vote? |
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A4: |
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In September 2009, we were notified in writing by Nasdaq that
the trading price of our Common Stock was below the criteria of
Nasdaqs continued listing standards, as the average per
share closing price of our Common Stock over a consecutive
30-trading day period was less than $1.00. The letter stated
that we have a six-month cure period or until March 15,
2010 to bring the price of our Common Stock above $1.00 for 10
consecutive trading days. The letter further stated that in the
event a $1.00 share price is not attained for 10
consecutive trading days at the expiration of the six-month cure
period, Nasdaq will commence suspension and delisting
procedures. Nasdaq has reserved the right to reevaluate its
continued listing determinations relating to companies who are
notified of non-compliance like Marshall Edwards with respect to
Nasdaqs qualitative listing standards, including if our
shares trade at sustained levels that are considered to be
abnormally low. |
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Our Board of Directors has determined that an amendment to our
Restated Certificate of Incorporation to effect a reverse stock
split is necessary to promote the continued listing of our
Common Stock on Nasdaq and is in the best interests of our
stockholders. Pursuant to the law of our state of incorporation,
Delaware, our Board of Directors must adopt any amendment to our
Restated Certificate of Incorporation and submit the amendment
to stockholders for approval. Accordingly, our Board of
Directors is requesting your proxy to vote FOR
Proposal No. 1. |
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What vote is required to approve the reverse stock split? |
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Proposal No. 1 requires the affirmative vote of a
majority of the outstanding shares. |
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Q6: |
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What effect will the reverse stock split have on our issued
and outstanding shares of Common Stock? |
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A6: |
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If the reverse stock split is approved by our stockholders, we
will exchange one new share of Common Stock for ten outstanding
shares of Common Stock. When the reverse stock split becomes
effective, the number of our outstanding shares of Common Stock
will be reduced proportionately to the reverse split ratio, but
the value of each share of Common Stock will be proportionately
increased by that same ratio. We will not issue any fractional
shares of Common Stock. Stockholders who would otherwise hold
fractional shares of Common Stock as a result of the reverse
stock split will be entitled to receive cash (without interest
or deduction) in lieu of such fractional shares of Common Stock
from our transfer agent, upon receipt by our transfer agent of a
properly completed and duly executed transmittal letter and,
where shares of Common Stock are held in certificated form, the
surrender of all old stock certificate(s) (Old
Certificate(s)), in an amount equal to the proceeds
attributable to the sale of such fractional shares of Common
Stock following the aggregation and sale by our transfer agent
of all fractional shares of Common Stock otherwise issuable. The
reverse stock split will not impact the market value of our
company as a whole, although the market value of our Common
Stock may move up or down once the reverse stock split is
effective. |
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Q7: |
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How will the reverse stock split impact Marshall
Edwardss Stock Plan? |
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A7: |
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Our Compensation Committee has approved proportionate
adjustments to the number of shares of Common Stock outstanding
and available for issuance under Marshall Edwardss Stock
Plan (defined below) and to the exercise price, grant price or
purchase price relating to any award under the Stock Plan, using
the same split ratio, if the reverse stock split is effected,
pursuant to existing authority granted to such Committee under
the Stock Plan. |
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Q8: |
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What are the mechanics of the reverse stock split? |
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A8: |
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Assuming the reverse stock split is approved by our
stockholders, this is how it will work: |
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If your shares are held in street
name that is, through an account at a
brokerage firm, bank, dealer, or other similar
organization the number of shares of Common Stock
you hold will automatically be adjusted to reflect the reverse
stock split.
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If your shares are registered directly in your name
with our transfer agent and your shares are held in book-entry
form (i.e. your shares of Common Stock are not represented by a
physical stock certificate), the number of shares of Common
Stock you hold will automatically be adjusted to reflect the
reverse stock split. You will be sent a transmittal letter by
our transfer agent. You will need to return to our transfer
agent a properly completed and duly executed transmittal letter
in order to receive any cash payment in lieu of fractional
shares of Common Stock or any other distributions, if any, that
may be declared and payable to holders of record.
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If your shares of Common Stock are registered
directly in your name with our transfer agent and your shares
are held in certificated form (i.e. your shares of Common Stock
are represented by one or more physical stock certificates), you
will receive a transmittal letter asking you to surrender your
Old Certificate(s) representing pre-split shares of Common Stock
in exchange for a new certificate (New Certificate)
representing post-split shares. You will need to return to our
transfer agent a properly completed and duly executed
transmittal letter, together with your Old Certificate(s), in
order to receive a New Certificate and any cash payment in lieu
of fractional shares of Common Stock or any other distributions,
if any, that may be declared and payable to holders of record
following the reverse stock split.
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Whether your shares of Common Stock are held in street name or
directly, we will not issue fractional shares of Common Stock to
you. Stockholders who would otherwise hold fractional shares of
Common Stock as a result of the reverse stock split will be
entitled to receive cash (without interest or deduction) in lieu
of such fractional shares of Common Stock from our transfer
agent, upon receipt by our transfer agent of a properly
completed and duly executed transmittal letter and, where shares
of Common Stock are held in certificated form, the surrender of
all Old Certificate(s), in an amount equal to the proceeds
attributable to the sale of such fractional shares of Common
Stock following the aggregation and sale by our transfer agent
of all fractional shares of Common Stock otherwise issuable. |
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Any cash due to you in exchange for fractional shares of Common
Stock will be paid to you as follows: |
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If your shares of Common Stock are held in street
name, payment for the fractional shares of Common Stock will be
deposited directly into your account with the organization
holding your shares of Common Stock.
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If your shares of Common Stock are registered
directly in your name with our transfer agent, whether you hold
your shares in certificated or uncertificated form, payment for
the fractional shares of Common Stock will be made by check,
sent to you directly from our transfer agent upon receipt of
your properly completed and duly executed transmittal letter
and, where your shares of Common Stock are held in certificated
form, the surrender of your Old Certificate(s).
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Q9: |
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After the reverse stock split, I will have an odd
lot of fewer than 100 shares of Common Stock. Will I
be able to sell the odd lot? |
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A9: |
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The reverse stock split may result in some stockholders owning
odd lots of fewer than 100 shares on a
post-split basis. You will be able to sell the odd lots, but odd
lot sales may result in higher transaction costs per share of
Common Stock than round lot sales, which are sales
of even multiples of 100 shares of Common Stock. |
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Q10: |
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Are there any dissenters rights or appraisal rights? |
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A10: |
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Pursuant to applicable Delaware law, there are no
dissenters or appraisal rights relating to the matters to
be acted upon at the Special Meeting. |
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Q11: |
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If my shares are held in street name by my
broker, will my broker vote my shares for me? |
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A11: |
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If your shares of Common Stock are held in the name of a bank or
broker or other nominee, you will receive separate instructions
from your bank, broker or other nominee describing how to vote
your shares of Common Stock. Please check with your bank or
broker and follow the voting procedures your bank or broker
provides. |
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You should instruct your bank, broker or other nominee how to
vote your shares of Common Stock. If your broker does not
receive voting instructions from you regarding the proposal,
Nasdaq rules grant your broker discretionary authority to vote
your shares of Common Stock. |
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Q12: |
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May I change my vote after I have mailed my signed proxy
card? |
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A12: |
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Yes. You may change your vote or revoke your proxy at any time
before it is voted at the Special Meeting by executing a
later-voted proxy or by voting by ballot at the Special Meeting.
You may print a new proxy card by accessing the electronic
version of this Proxy Statement available on our website at
http://www.edocumentview.com/MSHL.
You must submit your new proxy card to Proxy Services c/o
Computershare Trust Company N.A., P.O. Box 43102,
Providence, Rhode Island
02940-3070. |
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You can also attend the Special Meeting and vote in person.
Simply attending the Special Meeting, however, will not revoke
your proxy. To revoke your earlier proxy, you must vote at the
Special Meeting. |
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If you have instructed a broker to vote your shares of Common
Stock, the preceding instructions do not apply, and you must
follow the voting procedures received from your broker to change
your vote. |
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Q13: |
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If I want to attend the Special Meeting, what do I do? |
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A13: |
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You should come to the offices of Morgan, Lewis &
Bockius, Room 2852, One Market, Spear Street Tower,
San Francisco, California 94105, at 1:00 p.m. Pacific
Time, on March 29, 2010. Stockholders of record as of the
Record Date for the Special Meeting (March 29,
2010) can vote in person at the Special Meeting. If your
shares of Common Stock are held in street name, then you are not
the stockholder of record and you must ask your bank, broker or
other nominee holder how you can vote in person at the Special
Meeting. |
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Q14: |
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Who can help answer my questions? |
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A14: |
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If you have any questions or need assistance in voting your
shares of Common Stock or questions regarding the Special
Meeting, please contact David Seaton at: |
Marshall Edwards, Inc.
140 Wicks Road
North Ryde, New South Wales 2113
Australia
Telephone: +61 2 9878 0088
6
PROPOSAL NO. 1
APPROVAL
OF THE AMENDMENT OF OUR RESTATED CERTIFICATE OF INCORPORATION TO
EFFECT A REVERSE STOCK SPLIT OF OUR COMMON STOCK AT THE
1-FOR-10
REVERSE SPLIT RATIO
Our Board of Directors has unanimously adopted and is submitting
for stockholder approval an amendment to our Restated
Certificate of Incorporation to effect a reverse stock split of
our Common Stock at a
1-for-10
reverse split ratio. Pursuant to the law of our state of
incorporation, Delaware, our Board of Directors must adopt any
amendment to our Restated Certificate of Incorporation and
submit the amendment to stockholders for their approval. The
affirmative vote of a majority of the outstanding shares of
Common Stock is required to approve Proposal No. 1.
The form of the proposed amendment to our Restated Certificate
of Incorporation to effect the reverse stock split of our Common
Stock is attached to this Proxy Statement as Annex A. The
amendment will effect a reverse stock split of our Common Stock
at the
1-for-10
reverse split ratio. Our Board of Directors may determine in its
discretion not to proceed with the reverse stock split.
To avoid the existence of fractional shares of our Common Stock,
stockholders who would otherwise hold fractional shares of
Common Stock as a result of the reverse stock split will be
entitled to receive cash (without interest or deduction) in lieu
of such fractional shares of Common Stock from our transfer
agent, upon receipt by our transfer agent of a properly
completed and duly executed transmittal letter and, where shares
of Common Stock are held in certificated form, the surrender of
all Old Certificate(s), in an amount equal to the proceeds
attributable to the sale of such fractional shares of Common
Stock following the aggregation and sale by our transfer agent
of all fractional shares of Common Stock otherwise issuable.
At the close of business on February 24, 2010, we had
73,463,233 shares of Common Stock issued and outstanding.
Based on the number of shares of common stock currently issued
and outstanding, immediately following the completion of the
reverse stock split, and, for illustrative purposes only,
assuming a
1-for-10
reverse stock split, we would have approximately
7,346,323 shares of Common Stock issued and outstanding
(without giving effect to the treatment of fractional shares of
Common Stock). We do not expect the reverse stock split itself
to have any economic effect on our stockholders or holders of
options, except to the extent the reverse stock split will
result in fractional shares as discussed below.
Reasons
for the Reverse Stock Split
Our Board of Directors authorized the reverse split of our
Common Stock with the primary intent of increasing the price of
our Common Stock in order to meet Nasdaqs price criteria
for continued listing on that exchange. Our Common Stock is
publicly traded and listed on Nasdaq under the symbol
MSHL. Our Board of Directors believes that, in
addition to increasing the price of our Common Stock, the
reverse stock split would also reduce certain of our costs, such
as Nasdaq listing fees, and make our Common Stock more
attractive to a broader range of institutional and other
investors. Accordingly, for these and other reasons discussed
below, we believe that effecting the reverse stock split is in
the Companys and our stockholders best interests.
In September 2009, we were notified in writing by Nasdaq that
the trading price of Our Common Stock was below the criteria of
Nasdaqs continued listing standards, as the average per
share closing price of our Common Stock over a consecutive
30-trading day period was less than $1.00. The letter stated
that we have a six-month cure period or until March 15,
2010 to bring the price of our Common Stock above $1.00 for 10
consecutive trading days. The letter further stated that in the
event a $1.00 share price is not attained for 10
consecutive trading days at the expiration of the six-month cure
period, Nasdaq will commence suspension and delisting
procedures. Nasdaq has reserved the right to reevaluate its
continued listing determinations relating to companies who are
notified of non-compliance like Marshall Edwards with respect to
Nasdaqs qualitative listing standards, including if our
shares of Common Stock trade at sustained levels that are
considered to be abnormally low.
In addition to bringing the price of our Common Stock back above
$1.00, we also believe that the reverse stock split will make
our Common Stock more attractive to a broader range of
institutional and other investors, as we have been advised that
the current market price of our Common Stock may affect its
acceptability to certain institutional investors, professional
investors and other members of the investing public. Many
brokerage houses and
7
institutional investors have internal policies and practices
that either prohibit them from investing in low-priced stocks or
tend to discourage individual brokers from recommending
low-priced stocks to their customers. In addition, some of those
policies and practices may function to make the processing of
trades in low-priced stocks economically unattractive to
brokers. Moreover, because brokers commissions on
low-priced stocks generally represent a higher percentage of the
stock price than commissions on higher-priced stocks, the
current average price per share of Common Stock can result in
individual stockholders paying transaction costs representing a
higher percentage of their total share value than would be the
case if the share price were substantially higher. However, some
investors may view the reverse stock split negatively since it
reduces the number of shares of Common Stock available in the
public market.
Reducing the number of outstanding shares of our Common Stock
through the reverse stock split is intended, absent other
factors, to increase the per share market price of our Common
Stock. However, other factors, such as our financial results,
market conditions and the market perception of our business may
adversely affect the market price of our Common Stock. As a
result, there can be no assurance that the reverse stock split,
if completed, will result in the intended benefits described
above, that the market price of our Common Stock will increase
following the reverse stock split or that the market price of
our Common Stock will not decrease in the future.
Effects
of the Reverse Stock Split
General
If the reverse stock split is approved and implemented, the
principal effect will be to proportionately decrease the number
of outstanding shares of our Common Stock based on the
1-for-10
reverse stock split ratio. Our Common Stock is currently
registered under Section 12(b) of the Securities Exchange
Act of 1934, or the Exchange Act, and we are subject to the
periodic reporting and other requirements of the Exchange Act.
The reverse stock split will not affect the registration of our
Common Stock under the Exchange Act or the listing of our Common
Stock on Nasdaq. Following the reverse stock split, our Common
Stock will continue to be listed on Nasdaq under the symbol
MSHL, although it will be considered a new listing
with a new CUSIP number.
Proportionate voting rights and other rights of the holders of
our Common Stock will not be affected by the reverse stock
split, other than as a result of the treatment of fractional
shares as described below. For example, a holder of 2% of the
voting power of the outstanding shares of our Common Stock
immediately prior to the effectiveness of the reverse stock
split will generally continue to hold 2% of the voting power of
the outstanding shares of our Common Stock after the reverse
stock split. The number of stockholders of record will not be
affected by the reverse stock split (except to the extent any
are cashed out as a result of holding fractional shares of
Common Stock). If approved and implemented, the reverse stock
split may result in some stockholders owning odd
lots of less than 100 shares of our Common Stock. Odd
lot shares of Common Stock may be more difficult to sell, and
brokerage commissions and other costs of transactions in odd
lots are generally somewhat higher than the costs of
transactions in round lots of even multiples of
100 shares of Common Stock. Our Board of Directors
believes, however, that these potential effects are outweighed
by the benefits of the reverse stock split.
Effectiveness
of Reverse Stock Split
The reverse stock split, if approved by our stockholders, would
become effective upon the filing and effectiveness (the
Effective Time) of a Certificate of Amendment to our
Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware. It is expected that such filing
will take place promptly following the Special Meeting, assuming
the stockholders approve the amendment. However, the exact
timing of the filing of the amendment will be determined by our
Board of Directors based on its evaluation as to when such
action will be the most advantageous to our Company and our
stockholders. In addition, our Board of Directors reserves the
right, notwithstanding stockholder approval and without further
action by the stockholders, to elect not to proceed with the
reverse stock split if, at any time prior to filing the
Certificate of Amendment, our Board of Directors, in its sole
discretion, determines that it is no longer in our
Companys best interests and the best interests of our
stockholders to proceed with the reverse stock split.
Effect
on Marshall Edwardss Stock Plan
As of February 24, 2010, we had approximately
50,000 shares subject to stock options outstanding under
our 2008 Stock Omnibus Equity Compensation Plan (the Stock
Plan). The Compensation Committee of our Board of
8
Directors has sole discretion to determine the appropriate
adjustment to the awards granted under our Stock Plan in the
event of a stock split. Should the reverse stock split be
effected, the Compensation Committee of our Board of Directors
has approved proportionate adjustments to the number of shares
of Common Stock outstanding and available for issuance under
Marshall Edwardss Stock Plan and proportionate adjustments
to the exercise price, grant price or purchase price relating to
any award under the Stock Plan. The Compensation Committee will
determine the treatment of fractional shares of Common Stock
subject to stock options under the Stock Plan.
Accordingly, if the reverse stock split is approved by our
stockholders, upon the filing of an amendment to our Restated
Certificate of Incorporation with the Delaware Secretary of
State, the number of all outstanding equity awards, the number
of shares of Common Stock available for issuance and the
exercise price, grant price or purchase price relating to any
award under Marshall Edwardss Stock Plan will be
proportionately adjusted using the 1-for-10 reverse split ratio
(subject to the treatment of fractional shares of Common Stock
to be determined by our Compensation Committee). The
Compensation Committee has also authorized the Company to effect
any other changes necessary, desirable or appropriate to give
effect to the reverse stock split, including any applicable
technical, conforming changes to our Stock Plan. For example, if
a 1-for-10
reverse stock split is effected, the 6,950,000 shares of
Common Stock that remain available for issuance under the Stock
Plan as of February 24, 2010, would be adjusted to
695,000 shares, subject to increase as and when awards made
under such Stock Plan expire or are forfeited and are returned
per the terms of such Stock Plan. In addition, the exercise
price per share of Common Stock under each stock option would be
increased by 10 times, such that upon an exercise, the aggregate
exercise price payable by the optionee to the company would
remain the same. For illustrative purposes only, an outstanding
stock option for 3,000 shares of Common Stock, exercisable
at $1.00 per share of Common Stock, would be adjusted as a
result of a
1-for-10
reverse split ratio into an option exercisable for
300 shares of Common Stock at an exercise price of $10.00
per share.
Effect
on Authorized Shares of Common Stock and Preferred
Stock
Currently, we are authorized to issue up to a total of
113,100,000 shares, comprising 113,000,000 shares of
Common Stock, of which 73,463,233 shares of Common Stock
were issued and outstanding as of February 24, 2010, and
100,000 shares of preferred stock, of which no shares were
issued and outstanding as of February 24, 2010. The
proposed amendment to our Restated Certificate of Incorporation
will not affect the number of authorized shares of Common Stock
or preferred stock.
Accordingly, the proposed amendment will reduce the number of
issued and outstanding shares which will result in an increase
in the number of authorized but unissued shares. Although we are
considering various capital raising transactions in order to
enhance our liquidity and fund our development, we do not
currently anticipate that any such capital raising transaction
would result in the issuance of a number of shares exceeding the
number of authorized but unissued shares immediately preceding
the reverse stock split.
Effect
on Par Value
The proposed amendments to our Restated Certificate of
Incorporation will not affect the par value of our Common Stock,
which will remain at $0.00000002, or the par value of our
preferred stock, which will remain at $0.01.
Reduction
in Stated Capital
As a result of the reverse stock split, upon the Effective Time,
the stated capital on our balance sheet attributable to our
Common Stock, which consists of the par value per share of our
Common Stock multiplied by the aggregate number of shares of our
Common Stock issued and outstanding, will be reduced in
proportion to the size of the reverse stock split.
Correspondingly, our additional paid-in capital account, which
consists of the difference between our stated capital and the
aggregate amount paid to us upon issuance of all currently
outstanding shares of our Common Stock, shall be credited with
the amount by which the stated capital is reduced. Our
stockholders equity, in the aggregate, will remain
unchanged.
9
No
Going Private Transaction
Notwithstanding the decrease in the number of outstanding shares
of Common Stock following the proposed reverse stock split, our
Board of Directors does not intend for this transaction to be
the first step in a going private transaction within
the meaning of
Rule 13e-3
of the Exchange Act.
Book-Entry
Shares of Common Stock
If the reverse stock split is effected, stockholders who hold
uncertificated shares of Common Stock (i.e. shares of Common
Stock held in book-entry form and not represented by a physical
stock certificate), either as direct or beneficial owners, will
have their holdings electronically adjusted by our transfer
agent through Nasdaqs Direct Registration System (and, for
beneficial owners, by their brokers or banks that hold in
street name for their benefit, as the case may be)
to give effect to the reverse stock split.
Stockholders who hold uncertificated shares of Common Stock as
direct owners will be sent a transmittal letter by our transfer
agent and will need to return a properly completed and duly
executed transmittal letter in order to receive any cash payment
in lieu of fractional shares of Common Stock or any other
distributions, if any, that may be declared and payable to
holders of record following the reverse stock split.
Exchange
of Stock Certificates
If the reverse stock split is effected, stockholders holding
certificated shares of Common Stock (i.e. shares of Common Stock
represented by one or more physical stock certificates) will be
required to exchange their Old Certificate(s) for New
Certificate(s) representing the appropriate number of shares of
our Common Stock resulting from the reverse stock split.
Stockholders of record upon the Effective Time will be furnished
the necessary materials and instructions for the surrender and
exchange of their Old Certificate(s) at the appropriate time by
our transfer agent. Stockholders will not have to pay any
transfer fee or other fee in connection with such exchange. As
soon as practicable after the Effective Time, our transfer agent
will send a transmittal letter to each stockholder advising such
holder of the procedure for surrendering Old Certificate(s) in
exchange for New Certificate(s). Pursuant to applicable rules of
Nasdaq, your Old Certificate(s) representing pre-split shares of
Common Stock cannot be used for either transfers or deliveries
made on Nasdaq; thus, you must exchange your Old Certificate(s)
for New Certificate(s) in order to effect transfers or
deliveries of your shares of Common Stock on Nasdaq.
YOU SHOULD NOT SEND YOUR OLD CERTIFICATES NOW. YOU
SHOULD SEND THEM ONLY AFTER YOU RECEIVE THE LETTER OF
TRANSMITTAL FROM OUR TRANSFER AGENT.
As soon as practicable after the surrender to the transfer agent
of any Old Certificate(s), together with a properly completed
and duly executed transmittal letter and any other documents the
transfer agent may specify, the transfer agent will deliver to
the person in whose name such Old Certificate(s) had been issued
a New Certificate registered in the name of such person.
Until surrendered as contemplated herein, a stockholders
Old Certificate(s) shall be deemed at and after the Effective
Time to represent the number of full shares of our Common Stock
resulting from the reverse stock split. Until stockholders have
returned their properly completed and duly executed transmittal
letter and surrendered their Old Certificate(s) for exchange,
stockholders will not be entitled to receive any other
distributions, if any, that may be declared and payable to
holders of record following the reverse stock split.
Any stockholder whose Old Certificate(s) have been lost,
destroyed or stolen will be entitled to a New Certificate only
after complying with the requirements that we and the transfer
agent customarily apply in connection with lost, stolen or
destroyed certificates.
No service charges, brokerage commissions or transfer taxes
shall be payable by any holder of any Old Certificate, except
that if any New Certificate is to be issued in a name other than
that in which the Old Certificate(s) are registered, it will be
a condition of such issuance that (1) the person requesting
such issuance must pay to us any applicable transfer taxes or
establish to our satisfaction that such taxes have been paid or
are not payable, (2) the transfer complies with all
applicable federal and state securities laws, and (3) the
surrendered certificate is properly endorsed and otherwise in
proper form for transfer.
10
Fractional
Shares of Common Stock
We do not currently intend to issue fractional shares of Common
Stock in connection with the reverse stock split. Therefore, we
do not expect to issue certificates representing fractional
shares of Common Stock. Stockholders who would otherwise hold
fractional shares of Common Stock because the number of shares
of Common Stock they hold before the reverse stock split is not
evenly divisible by the
1-for-10
reverse split ratio will be entitled to receive cash (without
interest or deduction) in lieu of such fractional shares of
Common Stock from our transfer agent, upon receipt by our
transfer agent of a properly completed and duly executed
transmittal letter and, where shares of Common Stock are held in
certificated form, the surrender of all Old Certificate(s), in
an amount equal to the proceeds attributable to the sale of such
fractional shares of Common Stock following the aggregation and
sale by our transfer agent of all fractional shares of Common
Stock otherwise issuable. The ownership of a fractional share
interest will not give the holder any voting, dividend or other
rights, except to receive the above-described cash payment.
Marshall Edwards will be responsible for any brokerage fees or
commissions related to the transfer agents selling in the
open market shares of Common Stock that would otherwise be
fractional shares of Common Stock.
Stockholders should be aware that, under the escheat laws of
various jurisdictions, sums due for fractional interests that
are not timely claimed after the completion of the reverse stock
split may be required to be paid to the designated agent for
each such jurisdiction, unless correspondence has been received
by us or our transfer agent concerning ownership of such funds
within the time permitted in such jurisdiction. Thereafter, if
applicable, stockholders otherwise entitled to receive such
funds, but who do not receive them due to, for example, their
failure to timely comply with our transfer agents
instructions, will have to seek to obtain such funds directly
from the state to which they were paid.
No
Appraisal Rights
Under the Delaware General Corporation Law, our stockholders are
not entitled to dissenters rights or appraisal rights with
respect to the reverse stock split described in this
Proposal No. 1, and we will not independently provide
our stockholders with any such rights.
Certain
Federal Income Tax Consequences of the Reverse Stock
Split
The following discussion is a general summary of certain
U.S. federal income tax consequences of the reverse stock
split that may be relevant to (i) holders of our common
stock that hold such stock as a capital asset for federal income
tax purposes and (ii) to us. This summary is based upon the
provisions of the Internal Revenue Code of 1986, as amended (the
Code), Treasury regulations promulgated thereunder,
administrative rulings and judicial decisions as of the date
hereof, all of which may change, possibly with retroactive
effect, resulting in U.S. federal income tax consequences
that may differ from those discussed below. This discussion does
not address all aspects of federal income taxation that may be
relevant to such holders in light of their particular
circumstances or to holders that may be subject to special tax
rules, including, without limitation: (i) holders subject
to the alternative minimum tax; (ii) banks, insurance
companies, or other financial institutions;
(iii) tax-exempt organizations; (iv) dealers in
securities or commodities; (v) regulated investment
companies or real estate investment trusts;
(vi) partnerships (or other flow-through entities for
U.S. federal income tax purposes and their partners or
members); (vii) traders in securities that elect to use a
mark-to-market
method of accounting for their securities holdings;
(viii) U.S. Holders (as defined below) whose
functional currency is not the U.S. dollar;
(ix) persons holding our Common Stock as a position in a
hedging transaction, straddle, conversion
transaction or other risk reduction transaction;
(x) persons who acquire shares of our Common Stock in
connection with employment or other performance of services; or
(xi) U.S. expatriates. In addition, this summary does
not address the tax consequences arising under the laws of any
foreign, state or local jurisdiction and U.S. federal tax
consequences other than federal income taxation. If a
partnership (including any entity or arrangement treated as a
partnership for U.S. federal income tax purposes) holds
shares of our Common Stock, the tax treatment of a holder that
is a partner in the partnership generally will depend upon the
status of the partner and the activities of the partnership.
We have not sought, and will not seek, an opinion of counsel or
a ruling from the Internal Revenue Service (IRS)
regarding the United States federal income tax consequences of
the reverse stock split and there can be no assurance the IRS
will not challenge the statements and conclusions set forth
below or that a court would not sustain any such challenge. EACH
HOLDER OF COMMON STOCK SHOULD CONSULT SUCH HOLDERS TAX
11
ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES OF THE
REVERSE STOCK SPLIT TO SUCH HOLDER.
For purposes of the discussion below, a
U.S. Holder is a beneficial owner of shares of
Our Common stock that for U.S. federal income tax purposes
is: (1) an individual citizen or resident of the United
States; (2) a corporation (including any entity treated as
a corporation for U.S. federal income tax purposes) created
or organized in or under the laws of the United States, any
state or political subdivision thereof; (3) an estate the
income of which is subject to U.S. federal income taxation
regardless of its source; or (4) a trust, the
administration of which is subject to the primary supervision of
a U.S. court and as to which one or more U.S. persons
have the authority to control all substantial decisions of the
trust, or that has a valid election in effect to be treated as a
U.S. person. A
Non-U.S. Holder
is a beneficial owner (other than a partnership) of shares of
our Common Stock who is not a U.S. Holder.
U.S.
Holders
The reverse stock split should constitute a
recapitalization for U.S. federal income tax
purposes. As a result, a U.S. Holder generally should not
recognize gain or loss upon the reverse stock split, except with
respect to cash received in lieu of a fractional share of our
Common Stock, as discussed below. A U.S. Holders
aggregate tax basis in the shares of our Common Stock received
pursuant to the reverse stock split should equal the aggregate
tax basis of the shares of our Common Stock surrendered
(excluding any portion of such basis that is allocated to any
fractional share of our Common Stock), and such
U.S. Holders holding period (i.e. acquired date) in
the shares of our Common Stock received should include the
holding period in the shares of our Common Stock surrendered.
Treasury regulations promulgated under the Code provide detailed
rules for allocating the tax basis and holding period of the
shares of our Common Stock surrendered to the shares of our
Common Stock received pursuant to the reverse stock split.
Holders of shares of our Common Stock acquired on different
dates and at different prices should consult their tax advisors
regarding the allocation of the tax basis and holding period of
such shares of Common Stock.
A U.S. Holder who receives cash in lieu of a fractional
share of Our Common stock pursuant to the reverse stock split
should recognize capital gain or loss in an amount equal to the
difference between the amount of cash received and the
U.S. Holders tax basis in the shares of our Common
Stock surrendered that is allocated to such fractional share of
our Common Stock. Such capital gain or loss should be long term
capital gain or loss if the U.S. Holders holding
period for our Common Stock surrendered exceeded one year at the
Effective Time.
Information Reporting and Backup Withholding. Information
returns generally will be required to be filed with the IRS with
respect to the receipt of cash in lieu of a fractional share of
our Common Stock pursuant to the reverse stock split in the case
of certain U.S. Holders. In addition, U.S. Holders may
be subject to a backup withholding tax (at the current
applicable rate of 28%) on the payment of such cash if they do
not provide their taxpayer identification numbers in the manner
required or otherwise fail to comply with applicable backup
withholding tax rules. Backup withholding is not an additional
tax. Any amounts withheld under the backup withholding rules may
be refunded or allowed as a credit against the
U.S. Holders federal income tax liability, if any,
provided the required information is timely furnished to the IRS.
Non-U.S.
Holders
Non-U.S. Holders
who exchange shares of our Common Stock pursuant to the reverse
stock split generally should be subject to tax in the manner
described above under U.S. Holders, except that
any capital gain realized by a
Non-U.S. Holder
as a result of receiving cash in lieu of a fractional share of
our Common Stock generally should not be subject to
U.S. federal income or withholding tax unless:
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the
Non-U.S. Holder
is an individual who holds our Common Stock as a capital asset,
is present in the U.S. for 183 days or more during the
taxable year of the reverse stock split and meets certain other
conditions;
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the gain is effectively connected with the
Non-U.S. Holders
conduct of a trade or business in the U.S. (and, if certain
income tax treaties apply, is attributable to a
Non-U.S. Holders
permanent establishment in the U.S.); or
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12
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we are or have been a United States real property holding
corporation for U.S. federal income tax purposes at
any time within the shorter of the five-year period ending on
the Effective Time, or the period that the
Non-U.S. Holder
held the shares of our Common Stock.
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We do not believe that we have been, currently are, or will
become, a United States real property holding corporation.
Individual
Non-U.S. Holders
who are subject to U.S. federal income tax because they are
present in the United States for 183 days or more during
the year of the reverse stock split will be taxed on their gain
(including gain from the sale of shares of our common stock and
net of applicable U.S. losses from sales or exchanges of
other capital assets recognized during the year) at a flat rate
of 30% or such lower rate as may be specified by an applicable
income tax treaty. Other
Non-U.S. Holders
subject to U.S. federal income tax with respect to gain
recognized as a result of receiving cash in lieu of a fractional
share of Common Stock generally will be taxed on such gain in
the same manner as if they were U.S. Holders and, in the
case of foreign corporations, may be subject to an additional
branch profits tax at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty.
Information Reporting and Backup
Withholding. In general, backup withholding and
information reporting will not apply to payment of cash in lieu
of a fractional share of our Common Stock to a
Non-U.S. Holder
pursuant to the reverse stock split if the
Non-U.S. Holder
certifies under penalties of perjury that it is a
Non-U.S. Holder
and neither we nor the transfer agent has actual knowledge to
the contrary. Backup withholding is not an additional tax. Any
amounts withheld under the backup withholding rules may be
refunded or allowed as a credit against the
Non-U.S. Holders
U.S. federal income tax liability, if any, provided that
certain required information is timely furnished to the IRS. In
certain circumstances the amount of cash paid to a
Non-U.S. Holder
in lieu of a fractional share of our Common Stock, the name and
address of the beneficial owner and the amount, if any, of tax
withheld may be reported to the IRS.
THE MARSHALL EDWARDS BOARD OF DIRECTORS RECOMMENDS THAT YOU
VOTE FOR THIS PROPOSAL TO AMEND OUR RESTATED
CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT AT
THE 1-FOR-10
REVERSE SPLIT RATIO.
13
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT OF MARSHALL EDWARDS
The following table sets forth information with respect to the
beneficial ownership of shares of the Companys Common
Stock as of February 24, 2010 by (i) each person known
to beneficially own more than 5% of the Companys Common
Stock, (ii) each of the Companys officers and
directors and (iii) the Companys officers and
directors as a group.
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Beneficial Owners
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Beneficial Ownership
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Beneficially Owned**
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Novogen(1)
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52,408,295
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71.3
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%
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OppenheimerFunds, Inc.(2)
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8,167,731
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11.0
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%
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Oppenheimer International Growth Fund(3)
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4,965,704
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6.8
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%
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Josiah T. Austin(4)
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4,611,843
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6.2
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%
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El Coronado Holdings, L.L.C.(5)
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4,603,843
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6.2
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%
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Philip Johnston(6)
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10,000
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*
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Bryan Williams(7)
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5,000
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*
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Paul Nestel(8)
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4,000
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*
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William D. Rueckert(9)
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20,849
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*
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Leah Cann
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0
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*
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David R. Seaton(10)
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5,000
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*
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All directors and executive officers as a group
(6 individuals)
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49,849
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*
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** |
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Based upon 73,463,233 shares of the Companys Common
Stock outstanding as of February , 2010. Shares
of Common Stock subject to warrants that are currently
exercisable or exercisable within 60 days of
February 24, 2010 are deemed outstanding in addition to
73,463,233 shares of Common Stock outstanding as of
February 24, 2010 for purposes of computing the percentage
ownership of the person holding the warrants but are not deemed
exercisable for computing the percentage ownership of any other
person. |
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(1) |
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Derived from a Schedule 13D filed on August 7, 2008 by
Novogen. Novogen is the beneficial owner of
52,408,295 shares of Common Stock. The business address of
Novogen is 140 Wicks Road, North Ryde, New South Wales 2113,
Australia. |
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(2) |
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Derived from Amendment No. 4 to Schedule 13D filed by
Oppenheimer Funds, Inc. on February 3, 2010. Oppenheimer
Funds, Inc., an investment advisor, is the beneficial owner of
8,167,731 shares of Common Stock, which includes shares of
Common Stock issuable upon the exercise of warrants exercisable
within 60 days of February 24, 2010. OppenheimerFunds,
Inc. exercises shared voting and investment control with respect
to the shares. The business address of Oppenheimer Funds, Inc.
is Two World Financial Center, 225 Liberty Street, New York, New
York 10281. |
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(3) |
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Derived from Amendment No. 4 to Schedule 13D filed by
Oppenheimer International Growth Fund on February 3, 2010.
Oppenheimer International Growth Fund is the beneficial owner of
4,965,704 shares of Common Stock, which includes shares of
Common Stock issuable upon the exercise of warrants exercisable
within 60 days of February 24, 2010. Oppenheimer
International Growth Fund exercises shared voting and investment
control with respect to the shares. The business address of
Oppenheimer International Growth Fund is
6803 S. Tuscon Way, Centennial, Colorado 80122. |
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(4) |
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Derived from Schedule 13D filed by Josiah T. Austin on
November 13, 2007. Mr. Austin is the beneficial owner
of 4,611,843 shares of Common Stock, which includes
805,000 shares of Common Stock issuable upon the exercise
of warrants exercisable within 60 days of October 15,
2009. Mr. Austin shares voting and investment control with
respect to 4,603,843 of the shares. Mr. Austins
business address is 4673 Christopher Place, Dallas, Texas 75204. |
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(5) |
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Based upon information provided to us by El Coronado Holdings,
L.L.C. (El Coronado). El Coronado is the beneficial
owner of 4,603,843 shares of Common Stock, which includes
805,000 shares of Common Stock issuable upon the exercise
of warrants exercisable within 60 days of October 15,
2009. El Coronado shares |
14
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voting and investment control with respect to the shares. Josiah
T. Austin is the sole managing member of El Coronado. The
business address of El Coronado is 4673 Christopher Place,
Dallas, Texas 75204. |
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(6) |
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Philip A. Johnston is the beneficial owner of 10,000 shares
of Common Stock which are held in the name of Qualcare
Management Pty Ltd AFT The Johnston Superannuation Fund.
Mr. Johnston exercises shared voting and sole investment
control with respect to the shares. Mr. Johnstons
business address is c/o Marshall Edwards, Inc., 140
Wicks Road, North Ryde, New South Wales 2113 Australia. |
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(7) |
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Professor Bryan Williams is the beneficial owner of
5,000 shares of Common Stock. Professor Williams exercises
sole voting and investment control with respect to the shares.
Mr. Williams business address is
c/o Marshall
Edwards, Inc., 140 Wicks Road, North Ryde, New South Wales 2113,
Australia. |
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(8) |
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Professor Paul Nestel is the beneficial owner of
4,000 shares of Common Stock. Professor Nestel exercises
sole voting and investment control with respect to the shares.
Professor Nestels business address is
c/o Marshall
Edwards, Inc., 140 Wicks Road, North Ryde, New South Wales 2113,
Australia. |
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(9) |
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William D. Rueckert is the beneficial owner of
20,849 shares of Common Stock. Mr. Rueckert exercises
sole voting and investment control with respect to the shares.
Mr. Rueckerts business address is
c/o Marshall
Edwards, Inc., 140 Wicks Road, North Ryde, New South Wales 2113,
Australia. |
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(10) |
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David R. Seaton is the beneficial owner of 5,000 shares of
Common Stock. Mr. Seaton exercises sole voting and
investment control with respect to the shares.
Mr. Seatons business address is
c/o Marshall
Edwards, Inc., 140 Wicks Road, North Ryde, New South Wales 2113,
Australia. |
15
FUTURE
MARSHALL EDWARDS STOCKHOLDER PROPOSAL
Whether or not the amendment to our Certificate of Incorporation
is approved, we will hold our regular annual meeting of
stockholders in 2010. Stockholders who, in accordance with
Rule 14a-8
under the Exchange Act, wish to present proposals for inclusion
in next years proxy statement, must submit such proposals
in writing addressed to the Companys Secretary and such
proposals must be received at the Companys executive
offices at 140 Wicks Road, North Ryde Sydney NSW Australia 2113
no later than the close of business on June 26, 2010.
Stockholder proposals for presentation at next years
annual meeting which are not submitted in accordance with
Rule 14a-8,
will be considered untimely if such proposals are not received
by the Companys Secretary by the close of business on
September 9, 2010.
DELIVERY
OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS
The Company may satisfy SEC rules regarding delivery of proxy
statements by delivering a single proxy statement to an address
shared by two or more Company stockholders. This delivery method
is referred to as householding and can result in
meaningful cost savings for the Company. In order to take
advantage of this opportunity, the Company has delivered only
one proxy statement to multiple stockholders who share an
address, unless contrary instructions were received from
impacted stockholders prior to the mailing date. We undertake to
deliver promptly upon written or oral request a separate copy of
the proxy statement, as requested, to a stockholder at a shared
address to which a single copy of the document was delivered. If
you hold stock as a registered stockholder and prefer to receive
separate copies of a proxy statement either now or in the
future, please contact Computershare Investor Services LLC at
P.O. Box A3504, Chicago, Illinois
60690-3504
or by telephone at
(312) 360-5494.
If your Common Stock is held through a broker or bank and you
prefer to receive separate copies of a proxy statement either
now or in the future, please contact such broker or bank.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Proxy Statement includes forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of
1995, including statements regarding our intent to solicit
approval of Proposal No. 1 to effect a reverse stock
split, the timing of the reverse stock split, the potential
benefits of a reverse stock split, including but not limited to
increased investor interest, continued listing on Nasdaq and the
potential for a higher stock price and the timing and effects of
the proposed amendment to our Restated Certificate of
Incorporation . These forward-looking statements are identified
by terms and phrases such as anticipate,
believe, intend, estimate,
expect, continue, should,
could, may, plan,
project, predict, will and
similar expressions and include references to assumptions and
relate to our future prospects, developments and business
strategies. Such statements reflect the current views and
assumptions of the company, and are subject to various risks and
uncertainties that could cause actual results to differ
materially from expectations. These risks include, but are not
limited to, risks relating to the volatility of our stock price
and general market and economic conditions.
We undertake no obligation to update or revise the
forward-looking statements included in this Proxy Statement,
whether as a result of new information, future events or
otherwise, after the date of this Proxy Statement. Our actual
results, performance or achievements could differ materially
from the results expressed in, or implied by, these
forward-looking statements. Factors that could cause or
contribute to such differences are discussed in the sections
entitled Risk Factors and Managements
Discussion and Analysis of Financial Condition and Results of
Operations included in our Annual Report on
Form 10-K
for the fiscal year ended June 30, 2009, which we filed
with the SEC on September 1, 2009, and our Quarterly Report
on
Form 10-Q
for the quarter ended September 30, 2009, which we filed
with the SEC on November 12, 2009. These documents are
available on the SECs website at www.sec.gov.
INCORPORATION
BY REFERENCE
The Securities and Exchange Commission allows us to
incorporate by reference the information we file
with it, which means that we can disclose important information
to you by referring you to those documents. The information
incorporated by reference is considered to be part of this Proxy
Statement, and information that we file later with the SEC will
automatically update and supersede previously filed information,
including information contained in this document. We incorporate
by reference our Annual Report on
Form 10-K
for the fiscal year ended
16
June 30, 2009, which we filed with the SEC on
September 1, 2009, our Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2009 and
December 31, 2009, which we filed with the SEC on
November 12, 2009 and February 12, 2010, respectively,
and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
OTHER
MATTERS
We have not received notice of any other matters to be proposed
at the Special Meeting. Consequently, the only matters expected
to be acted on at the Special Meeting are those described in
this Proxy Statement, along with any necessary procedural
matters related to the Special Meeting. As to procedural
matters, or any other matters that are determined to be properly
brought before the Special Meeting calling for a vote of the
stockholders, it is the intention of the persons named in the
accompanying proxy, unless otherwise directed in that proxy, to
vote on those matters in accordance with their best judgment.
17
ANNEX A
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
MARSHALL EDWARDS, INC.
Pursuant
to Sections 228 and 242 of
the General Corporation Law of the
State of Delaware
MARSHALL EDWARDS, INC., a corporation organized and existing
under and by virtue of the provisions of the General Corporation
Law of the State of Delaware (the Corporation), does
hereby certify as follows:
FIRST: Upon the filing and effectiveness (the
Effective Time) pursuant to the General Corporation
Law of the State of Delaware (the DGCL) of this
Certificate of Amendment to the Restated Certificate of
Incorporation of the Corporation, each ten (10) shares of
the Corporations common stock, par value $0.00000002 per
share (Common Stock), issued and outstanding
immediately prior to the Effective Time shall automatically be
combined into one (1) validly issued, fully paid and
non-assessable share of Common Stock without any further action
by the Corporation or the holder thereof, subject to the
treatment of fractional share interests as described below (the
Reverse Stock Split). No certificates representing
fractional shares of Common Stock shall be issued in connection
with the Reverse Stock Split. Stockholders who otherwise would
be entitled to receive fractional shares of Common Stock shall
be entitled to receive cash (without interest or deduction) from
the Corporations transfer agent in lieu of such fractional
share interests, upon receipt by the Corporations transfer
agent of the stockholders properly completed and duly
executed transmittal letter and, where shares are held in
certificated form, the surrender of the stockholders Old
Certificates (as defined below), in an amount equal to the
proceeds attributable to the sale of such fractional shares of
Common Stock following the aggregation and sale by the
Corporations transfer agent of all fractional shares of
Common Stock otherwise issuable. Each certificate that
immediately prior to the Effective Time represented shares of
Common Stock (Old Certificates), shall thereafter
represent that number of shares of Common Stock into which the
shares of Common Stock represented by the Old Certificate shall
have been combined, subject to the elimination of fractional
share interests as described above.
SECOND: This Certificate of Amendment shall
become effective as
of .
THIRD: This Certificate of Amendment was duly
adopted in accordance with Section 242 of the DGCL. The
Board of Directors duly adopted resolutions setting forth and
declaring advisable this Certificate of Amendment and directed
that the proposed amendments be considered by the stockholders
of the Corporation. A special meeting of stockholders was duly
called upon notice in accordance with Section 222 of the
DGCL and held on March 29, 2010, at which meeting the
necessary number of shares were voted in favor of the proposed
amendments. The stockholders of the Corporation duly adopted
this Certificate of Amendment.
A-1
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Amendment to be duly executed in its corporate name as of
the
day of March , 2010.
MARSHALL EDWARDS, INC.
By:
Name: David R. Seaton
Title: Acting Chief Executive Officer
and Chief Financial
Officer
A-2
Using a black ink pen, mark your votes
with an X as shown in this example. Please
do not write outside the designated areas.
Special Meeting Proxy Card
3 PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE ENCLOSED ENVELOPE. 3
Proposal The Board of Directors recommends a vote FOR approval of the amendment to our
Restated Certificate of Incorporation to effect a reverse stock split of our common stock at the
1-for-10 reverse split ratio.
For Against Abstain
Authorized Signatures This section must be completed for your vote to be counted. Date
and Sign Below
OTE: Please sign your name(s) EXACTLY as your name(s) appear(s) on this proxy. All joint
holders must sign. When signing as attorney, trustee, executor, administrator, guardian or
corporate officer, please provide your FULL title.
ate (mm/dd/yyyy) Please print date below. Signature 1 Please keep signature within the box.
Signature 2 Please keep signature within the box. |
Important notice regarding the Internet availability of proxy materials for the Special
Meeting of shareholders The Proxy Statement is available at: www.edocumentview.com/MSHL
Proxy MARSHALL EDWARDS, INC.
Proxy for the Special Meeting of Stockholders To be
held on March 29, 2010, Solicited by the Board of Directors
The undersigned hereby appoints David Seaton and Leah Cann, and each of them, with full power
of substitution, to represent the undersigned and to vote all of the shares of stock in Marshall
Edwards, Inc., as directed and permitted herein, that the undersigned is entitled to vote at the
Special Meeting of Stockholders to be held on March 29, 2010 at the offices of Morgan, Lewis &
Bockius, Room 2852, One Market, Spear Street Tower, San Francisco, California 94105 at 1:00 p.m.,
Pacific Time, and at any adjournment or postponement thereof.
THE SHARES REPRESENTED HEREBY SHALL BE VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THIS PROXY
WILL BE VOTED FOR APPROVAL OF THE AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO EFFECT
A REVERSE STOCK SPLIT OF OUR COMMON STOCK AT THE 1-FOR-10 REVERSE SPLIT RATIO. |