PROXY STATEMENT
PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant |x|
Filed by a Party other than the Registrant
Check the appropriate box:
|_| Preliminary Proxy Statement
|_| Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2)
|x| Definitive Proxy Statement
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
ACCELR8 TECHNOLOGY CORPORATION
------------------------------
(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):
|_| $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(i)(2).
|_| $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(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):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
|_| Fee paid previously with preliminary materials.
|_| 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.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
ACCELR8 TECHNOLOGY CORPORATION
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD DECEMBER 18, 2008
Notice is hereby given that the Annual Meeting (the "Annual Meeting") of
the shareholders (the "Shareholders") of Accelr8 Technology Corporation, a
Colorado corporation (the "Company"), will be held at 2:30 p.m., local time, on
December 18, 2008, at the Warwick Hotel Denver, 1776 Grant Street, Denver,
Colorado 80203, and any adjournments or postponements thereof for the following
purposes:
1. To elect the following three (3) persons to serve as directors of the
Company until the next Annual Meeting of Shareholders and thereafter
until their successors shall have been elected and qualified: Thomas
V. Geimer, A. Alexander Arnold III and Charles E. Gerretson.
2. To ratify the selection of Comiskey & Company, P.C. as the independent
public accountants of the Company for the fiscal year ending July 31,
2009.
3. To consider and act upon such other business as may properly come
before the Annual Meeting or any adjournments thereof.
Only Shareholders of record at the close of business on November 13, 2008,
shall be entitled to notice of and to vote at the Annual Meeting or any
adjournments thereof. All Shareholders are cordially invited to attend the
Annual Meeting in person.
By Order of the Board of Directors
Thomas V. Geimer, Chairman of the Board
November 14, 2008
Denver, Colorado
IF YOU DO NOT EXPECT TO BE PRESENT AT THE ANNUAL MEETING AND WISH YOUR SHARES OF
COMMON STOCK TO BE VOTED, YOU ARE REQUESTED TO SIGN AND MAIL PROMPTLY THE
ENCLOSED PROXY WHICH IS BEING SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. A
RETURN ENVELOPE WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES IS
ENCLOSED FOR THAT PURPOSE.
ACCELR8 TECHNOLOGY CORPORATION
7000 North Broadway, Building 3-307
Denver, CO 80221
PROXY STATEMENT
Dated November 14, 2008
ANNUAL MEETING OF SHAREHOLDERS
FOR THE FISCAL YEAR ENDED JULY 31, 2008
TO BE HELD ON DECEMBER 18, 2008
GENERAL
-------
This Proxy Statement is being furnished to the shareholders of Accelr8
Technology Corporation, a Colorado corporation (the "Company"), in connection
with the solicitation of proxies by the Board of Directors of the Company (the
"Board of Directors") from holders (the "Shareholders") of outstanding shares of
common stock, no par value, of the Company (the "Common Stock"), for use at the
Annual Meeting of the Shareholders for the fiscal year ended July 31, 2008, to
be held at 2:30 p.m., local time, on December 18, 2008, at the Warwick Hotel
Denver, 1776 Grant Street, Denver, Colorado 80203, and any adjournments or
postponements thereof (the "Annual Meeting"). This Proxy Statement, Notice of
Annual Meeting of Shareholders and the accompanying Proxy Card are first being
mailed to shareholders on or about November 14, 2008.
VOTING SECURITIES AND VOTE REQUIRED
-----------------------------------
Only Shareholders of record at the close of business on November 13, 2008
(the "Record Date") are entitled to notice of and to vote the shares of Common
Stock of the Company held by them on such date at the Annual Meeting or any and
all adjournments thereof. As of the Record Date, there were 10,226,210 shares of
Common Stock issued and outstanding with 1,129,110 shares held in a Rabbi Trust
by the Company for the benefit of Thomas V. Geimer. Mr. Geimer does not have
voting power over the shares that are held in the Rabbi Trust. As a result,
there are 9,097,100 shares entitled to vote at the Company's Annual Meeting.
There was no other class of voting securities outstanding as of the Record Date.
Each share of Common Stock held by a Shareholder entitles such Shareholder
to one vote on each matter that is voted upon at the Annual Meeting or any
adjournments thereof.
The presence, in person or by proxy, of the holders of 33% of the
outstanding shares of Common Stock is necessary to constitute a quorum at the
Annual Meeting. Assuming that a quorum is present, the affirmative vote of the
holders of a majority of the shares of Common Stock present at the Annual
Meeting in person or by proxy will be required to (i) elect each of the three
nominees for directors of the Company and (ii) ratify the selection of Comiskey
& Company, P.C. as the independent public accountants of the Company for the
fiscal year ending July 31, 2009.
1
Abstentions and broker "non-votes" will be counted toward determining the
presence of a quorum for the transaction of business; however, abstentions will
have the effect of a negative vote on the proposals being submitted. Abstentions
may be specified on all proposals. A broker "non-vote" will have no effect on
the outcome of any of the proposals.
If the accompanying proxy is properly signed and returned to the Company
and not revoked, it will be voted in accordance with the instructions contained
therein. Unless contrary instructions are given, the persons designated as proxy
holders in the accompanying Proxy Card will vote "FOR" each proposal to be
considered by the Shareholders at the Annual Meeting or, if no such
recommendation is given, in their own discretion. The Company's executive
officers and directors have advised the Company that they intend to vote their
shares (including those shares over which they hold voting power), representing
approximately 8.87% as of October 15, 2008, of the outstanding shares of Common
Stock (excluding the shares held in a Rabbi Trust), in favor of each of the
proposals above. Each Proxy granted by a Shareholder may be revoked by such
Shareholder at any time thereafter by writing to the Secretary of the Company
prior to the Annual Meeting, or by execution and delivery of a subsequent Proxy
or by attendance and voting in person at the Annual Meeting, except as to any
matter or matters upon which, prior to such revocation, a vote shall have been
cast pursuant to the authority conferred by such Proxy.
Representatives from Comiskey & Company, P.C. are expected to attend the
Annual Meeting. As a result, the Company anticipates that a representative from
Comiskey & Company, P.C. will be available to make a statement or respond to any
questions at the Annual Meeting.
The cost of soliciting these Proxies, consisting of the printing, handling,
and mailing of the Proxy and related material, and the actual expense incurred
by brokerage houses, custodians, nominees and fiduciaries in forwarding proxy
materials to the beneficial owners of the shares of Common Stock, will be paid
by the Company.
In order to assure that there is a quorum, it may be necessary for certain
officers, directors, regular employees and other representatives of the Company
to solicit Proxies by telephone, facsimile or in person. These persons will
receive no extra compensation for their services.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
--------------------------------------------------------------
The following table sets forth certain information regarding beneficial
ownership of our Common Stock as of October 15, 2008 by (i) each person who is
known by the Company to own beneficially more than 5% of the Company's
outstanding Common Stock; (ii) each of the Company's executive officers and
directors; and (iii) all executive officers and directors as a group. The
calculation excludes 1,129,110 shares which are held by the Rabbi Trust for the
benefit of Thomas V. Geimer. Further, Mr. Geimer does not have voting power over
the shares that are held in the Rabbi Trust. Common Stock not outstanding but
deemed beneficially owned by virtue of the right of an individual to acquire
shares is treated as outstanding only when determining the amount and percentage
of Common Stock owned by such individual. Except as noted, each person or entity
has sole voting and sole dispositve power with respect to the shares shown.
2
Name and Address of Beneficial Owner Shares Beneficially Owned
------------------------------------ -------------------------
Number Percent
------ -------
Thomas V. Geimer (1) 454,000 4.27%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
A. Alexander Arnold III(2) 868,000 8.47%
845 Third Ave., 6th Floor
New York, NY 10021
Charles E. Gerretson(3) 128,150 1.26%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
David Howson(4) 300,000 2.85%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
Executive Officers and Directors 1,751,400 15.91%
as a Group (4 persons)
(1) Does not include 1,129,110 shares, which were purchased by Mr. Geimer upon
exercise of warrants and options. Mr. Geimer exercised these options and
warrants on October 14, 1997, and simultaneously contributed the shares
acquired to a Rabbi Trust. See Note 7 to Financial Statements for further
information. Includes 400,000 shares, which may be purchased by Mr. Geimer
upon exercise of options. Includes 400 shares held in brokerage accounts
for Mr. Geimer's children, in which Mr. Geimer has the power and authority
to dispose of the shares held by these accounts.
(2) Includes 730,000 shares held by four trusts. Mr. Arnold merely serves as
trustee for each of those trusts, but is not a beneficiary of and has no
pecuniary interest in any of those trusts. Also includes 63,000 shares held
in investment advisory accounts for which Mr. Arnold serves as the
investment advisor. Also includes 75,000 shares, which may be purchased by
Mr. Arnold upon exercise of options.
(3) Includes: (i) 103,250 shares owned directly by Mr. Gerretson; and (ii)
10,000 shares, which may be purchased by Mr. Gerretson upon exercise of
options which options expire on March 15, 2015. Also includes 14,900 shares
held in brokerage and retirement accounts of individuals in which Mr.
Gerretson has the power and authority to dispose of the shares held by
these accounts. Mr. Gerretson disclaims any beneficial ownership with
respect to such shares.
(4) Includes 300,000 shares, which may be purchased by Mr. Howson upon exercise
of options which options expire on March 15, 2015, of which 75,000 stock
options shall vest if and only if prior to the expiration date of the
Options, the Company closes on a transfer for the sale of the Company
assets or the acquisition of the Company in which the Company's
shareholders receive aggregate consideration at closing equal to or greater
than $250,000,000.
3
BOARD OF DIRECTORS AND COMMITTEE MEETINGS
The Board of Directors currently consists of three members, each of whom is
proposed for election at the Annual Meeting.
The Board of Directors maintains a Compensation Committee and an Audit
Committee. The Audit Committee and Compensation Committee is comprised of
Messrs. Arnold and Gerretson, the Company's independent directors. The primary
function of the Compensation Committee is to review and make recommendations to
the Board with respect to the compensation, including bonuses, of the Company's
officers and to administer the Company's stock option plans. The function of the
Audit Committee is to review and approve the scope of audit procedures employed
by the Company's independent auditors, to review and approve the audit reports
rendered by the Company's independent auditors and to approve the audit fee
charged by the independent auditors. The Audit Committee reports to the Board of
Directors with respect to such matters and recommends the selection of
independent auditors. The Audit Committee's financial expert is Charles E.
Gerretson. The board of directors does not have a Nominating Committee or any
committee performing similar functions and the Board of Directors participates
in the consideration of new nominees as members of the Board of Directors.
During the fiscal year ended July 31, 2008, the board of directors held
five (5) board meetings with all board members present. During the fiscal year
ended July 31, 2008, the Audit Committee held four (4) meetings and the
Compensation Committee held one (1) meeting with no director attending fewer
than 75% of the aggregate of all the meetings of the Audit Committee and the
Compensation Committee.
As noted above, the members of the Audit Committee are A. Alexander Arnold
III and Charles E. Gerretson, both of whom are independent directors as defined
in Section 803 of the NYSE Alternext US LLC listing standards, as applicable and
as may be modified or supplemented.
Effective as of June 9, 2000, the Board of Directors of the Company adopted
a written charter for the Audit Committee. Effective November 3, 2005, the Audit
Committee adopted a revised written charter for the Audit Committee, a copy of
which was filed with the Company's Proxy Statement at Appendix A on November 17,
2005.
Audit Committee Report
The Audit Committee has reviewed and discussed with management the
Company's audited financial statements for the year ended July 31, 2008.
The Audit Committee has also discussed with Comiskey & Company, P.C. the
matters required to be discussed by Statement on Auditing Standards No. 61,
Communication with Audit Committees, as amended, by the Auditing Standards Board
of the American Institute of Certified Public Accountants.
4
The Audit Committee has received and reviewed the written disclosures and
the letter from Comiskey & Company, P.C. required by Independence Standards
Board Standard No. 1, Independence Discussions with Audit Committees, as
amended, and has discussed with Comiskey & Company, P.C. their independence.
Based on the reviews and discussions referred to above, the Audit Committee
has recommended to the Board of Directors that the audited financial statements
referred to above be included in the Company's Annual Report on Form 10-KSB for
the year ended July 31, 2008 filed with the Securities and Exchange Commission.
Audit Committee of The Board of Directors
A. Alexander Arnold III
Charles E. Gerretson
EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
Our executive compensation program for Thomas V. Geimer and David C.
Howson, the named executive officers (the "NEOs") is administered by the
Company's compensation committee, which is comprised of A. Alexander Arnold III
and Charles E. Gerretson.
Compensation Objectives
We believe that the compensation programs for the NEOs should reflect our
performance and the value created for the Company's stockholders. In addition,
the compensation programs should support the long-term strategic goals and
values of the Company, and should reward individual contributions to the
Company's success. We believe that the structure of the compensation programs
for our executives reflects these objectives. Our compensation programs consist
of two basic components: base salary and long-term compensation.
Elements of Compensation
The elements of our compensation program include: (1) base salary; and (2)
long term compensation.
Base Salary. The NEOs are paid a base salary. Base salary for the NEOs is
established based on the scope of their responsibilities, professional
qualifications and the other elements of his/her compensation.
Long-term Compensation. Long-term compensation is comprised of various
forms of equity compensation. The long-term elements are designed to assist the
Company in long-term retention of key personnel and further align the interests
of the NEOs with our shareholders.
The determination of each element of compensation to the NEOs is entirely
in the discretion of the Compensation Committee. We do not currently use any
specific benchmarks or performance goals in determining the elements of and the
size of awards and compensation.
5
Equity Award Practices
All equity awards are approved before or on the date of grant. The exercise
price of at-the-money stock options and the grant price of all full-value awards
is the closing price on the date of grant.
Our equity award approval process specifies the individual receiving the
grant, the number of units or the value of the award, the exercise price or
formula for determining the exercise price and the date of grant. The Company
has no program, plan or practice to the timing of its option grants.
Summary Compensation Table
The following table summarizes the compensation of the NEO's for the fiscal
years ended July 31, 2008 and 2007:
Name and Fiscal Stock Option All other
Principal Position Year Salary Bonus Awards Awards Compensation Total ($)
-----------------------------------------------------------------------------------------------
Thomas V. Geimer 2008 $165,000 $0 0 0 $75,000(1) $240,000
Chief Executive 2007 $165,000 $0 0 0 $75,000(1) $240,000
Officer and
Chief Financial
Officer
David C. Howson 2008 $150,000 $0 0 0 $0 $150,000
President 2007 $138,807 $0 0 0 $0 $138,807
(1) Represents deferred compensation for Mr. Geimer pursuant to the
Company's deferred compensation plan, $75,000 of which vested during
each of the fiscal years ended July 31, 2008 and 2007 but such
payments were not made until October 29, 2008 and October 26, 2007 of
the subsequent fiscal year.
Narrative Disclosure to Summary Compensation Table and Grants of Plan-Based
Awards Table
Individual Arrangements and Employment Agreements
The following is a description of the individual arrangements that we have
made to each of the NEOs with respect to their compensation. Mr. Geimer was paid
during the fiscal year ended July 31, 2008 in accordance with his prior and his
new employment agreement with us. Mr. Howson does not have an employment
agreement with the Company. In addition, Mr. Geimer also has a Change-in-Control
payment that is described in the "Potential Payments Upon Termination" below.
6
Thomas V. Geimer - Chief Executive Officer, Chief Financial Officer,
Secretary and Chairman of the Board of Directors
Effective December 1, 2008, we entered into an employment agreement with
Mr. Geimer. The agreement was negotiated and approved by the Compensation
Committee. The agreement provides for an annual base salary of $165,000 with
annual deferred compensation of $75,000. The agreement expires on December 31,
2012. The compensation committee reviewed the prior employment agreement of Mr.
Geimer in connection with the approval of Mr. Geimer's employment agreement.
In the event of termination by mutual agreement, termination "with cause,"
as defined in the agreement, death or permanent incapacity or voluntary
termination, Mr. Geimer, or his estate, would be entitled to the sum of the base
salary and unreimbursed expenses accrued to the date of termination and any
other amounts due under the agreement. In the event of termination "without
cause," as defined in the agreement, Mr. Geimer would be entitled to the sum of
the base salary and unreimbursed expenses accrued to the date of termination and
any other amounts due under the agreement and an amount equal to the greater of
Mr. Geimer's annual base salary (12 months of salary) or any other amounts
remaining due to Mr. Geimer under the agreement, which as of July 31, 2008 would
be $817,500. Additionally, in the event of a change in control, any unpaid
amounts due under the initial term of the agreement for both base salary and
deferred compensation would be payable plus five times the sum of the base
salary and deferred compensation. In his positions as Chief Executive Officer
and Chief Financial Officer, Mr. Geimer exercises detailed supervision over the
operations of the Company and is ultimately responsible for the operations of
the Company. Mr. Geimer is also responsible for all duties incident to the title
of Chief Financial Officer and Secretary.
David C. Howson - President
During the fiscal year ended July 31, 2008, we paid Mr. Howson $138,807 in
cash compensation. During the fiscal year ended July 31, 2008, the Compensation
Committee increased Mr. Howson's salary to $150,000. Mr. Howson does not have an
employment agreement with the Company. In his position as President, Mr. Howson
supervises the technical development and develop product strategies. Mr. Howson
further performs all duties incident to the title of President and such other
duties as from time to time may be assigned to him by the Board of Directors.
7
Outstanding Equity Awards at Fiscal Year End
The following table sets forth information concerning options awards to
Messrs. Geimer and Howson at the fiscal year ended July 31, 2008. The Company
granted additional options during the fiscal year ended July 31, 2008 as shown
below:
Option Awards
----------------------------------------------------------------------------------------------------------------------
Number of Number of
Securities Securities
Underlying Underlying
Unexercised Unexercised Option Option
Option (#) Options (#) Exercise Expiration
Name Grant Date Exercisable Unexercisable Price Date
----------------------------------------------------------------------------------------------------------------------
Thomas V. Geimer December 11, 2007 100,000 0 $3.60 December 11, 2017
August 2, 2001 200,000 0 $1.45 August 1, 2011
August 27, 1999 100,000 0 $1.50 August 26, 2009
David Howson March 16, 2005 225,000 0 $2.57 March 16, 2015
March 16, 2005 0 75,000 $2.57 March 16, 2015
Option Exercises During Fiscal Year
There were no options exercised by the NEO's during the year ended July 31,
2008.
Potential Payments Upon Termination
Cash Compensation
Mr. Geimer's employment agreement contains provisions under which the
Company will be obligated to pay Mr. Geimer certain compensation upon his
termination. The following tables set forth the details of the estimated
payments and benefits that would be provided to Mr. Geimer in the event that his
employment with us is terminated for any reason, including a termination for
cause, resignation or retirement, a constructive termination, a without cause
termination, death, long term disability, and termination in connection with a
change in control as of July 31, 2008.
Termination in
Termination by connection
Mutual Illness or Resignation/ with a change
Thomas V. Geimer Agreement Incapacity With cause Without cause Retirement in control
--------------------------------------------------------------------------------------------------------------------------------
Cash Compensation 0 0 0 $817,500 0 $2,280,000
(1)(2) (1)(2)
(1) Represents the amounts due under Mr. Geimer's employment agreement.
See "Individual Arrangements and Employment Agreements."
(2) Includes the $75,000 payment of the deferred compensation for the
fiscal year ended July 31, 2008, which payment was made on October 29,
2008.
(3) A change of control is defined in Mr. Geimer's employment agreement to
mean the occurrence of one or more of the following three events:
8
(a) Any person becomes a beneficial owner (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended) directly or indirectly of securities representing 33%
or more of the total number of votes that may be cast for the
election of directors of the Company;
(b) Within two years after a merger, consolidation, liquidation or
sale of assets involving the Company, or a contested election of
a Company director, or any combination of the foregoing, the
individuals who were directors of the Company immediately prior
thereto shall cease to constitute a majority of the Board; or
(c) Within two years after a tender offer or exchange offer for
voting securities of the Company, the individuals who were
directors of the Company immediately prior thereto shall cease to
constitute a majority of the Board.
Effects of Termination Events or Change in Control on Unvested Equity Awards
All unvested stock option awards granted to Mr. Howson provide that upon a
change of control, the unvested stock options will not immediately vest unless
the contingencies to the stock options have been met.
Compensation of Non-Management Directors
The Company did not pay its non-management directors any compensation
during the fiscal year ended July 31, 2008.
Cash Compensation
We have not paid any cash compensation to our directors for their service
on our Board of Directors.
Liability Insurance
The Company provides liability insurance for its directors and officers.
Carolina Casualty Insurance Company is the underwriter of the current coverage,
which extends until January 7, 2009. The annual cost of this coverage is
approximately $20,000.
9
Compensation Pursuant to Plans
Deferred Compensation Plan.
In January 1996, we established a deferred compensation plan for our
employees. Contributions to the plan are provided for under the employment
agreement detailed above. For each of the fiscal years ended July 31, 2008 and
2007, we contributed $75,000 to the plan. The $75,000 contribution for the
fiscal year ended July 31, 2008 was made on October 29, 2008.
On October 14, 1997, Thomas V. Geimer exercised an aggregate of 1,140,000
warrants and options to acquire 1,140,000 shares of the Company's Common Stock
at an exercise price of $0.24 per share. Under the terms of the Rabbi Trust, we
will hold the shares in trust and carry the shares as held for employee benefit
by the Company. The Rabbi Trust provides that upon Mr. Geimer's death,
disability, or termination of his employment the shares will be released ratably
over the subsequent ten (10) years, unless the Board of Directors determines
otherwise. See Note 7 to the Financial Statement for further information.
Securities Authorized For Issuance Under Compensation Plans
The table set forth below presents the securities authorized for issuance
with respect to compensation plans under which equity securities are authorized
for issuance as of July 31, 2008:
Equity Compensation Plan Information
------------------------------------
Number of securities Weighted average Number of securities
to be issued upon exercise price of remaining for future
plan category available outstanding issuance under equity
exercise of options, warrants and compensation plans
outstanding options rights (excluding securities
warrants and rights reflected in the 1st
column)
Equity Compensation 897,500 $2.06 510,000
Plans approved by
security holders
-----------------------------------------------------------------------------------------------
Equity Compensation 0 0 0
Plans not approved by
security holders
-----------------------------------------------------------------------------------------------
Total 897,500 510,000
10
The 1996 Stock Option Plans
The Board of Directors of the Company has adopted an incentive stock option
plan (the "Qualified Plan") which provides for the grant of options to purchase
an aggregate of not more than 700,000 shares of the Company's Common Stock. The
purpose of the Qualified Plan is to make options available to management and
employees of the Company in order to provide them with a more direct stake in
the future of the Company and to encourage them to remain with the Company. The
Qualified Plan provides for the granting to management and employees of
"incentive stock options" within the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "Code").
The Board of Directors of the Company has adopted a non-qualified stock
option plan (the "Non-Qualified Plan") which provides for the grant of options
to purchase an aggregate of not more than 300,000 shares of the Company's Common
Stock. The purpose of the Non-Qualified Plan is to provide certain key
consultants, independent contractors, technical advisors and directors of the
Company with options in order to provide additional rewards and incentives for
contributing to the success of the Company. These options are not incentive
stock options within the meaning of Section 422 of the Code.
The Qualified Plan and the Non-Qualified Plan (the "Stock Option Plans")
are administered by a committee (the "Committee") appointed by the Board of
Directors which determines the persons to be granted options under the Stock
Option Plans and the number of shares subject to each option. No options granted
under the Stock Option Plans are transferable by the optionee other than by will
or the laws of descent and distribution and each option is exercisable, during
the lifetime of the optionee, only by such optionee. Any options granted to an
employee terminate 90 days after his ceasing to be an employee, except in
limited circumstances, including death of the employee, and where the Committee
deems it to be in the Company's best interests not to terminate the options.
The exercise price of all incentive stock options granted under the
Qualified Plan must be equal to the fair market value of such shares on the date
of grant as determined by the Committee, based on guidelines set forth in the
Qualified Plan. The exercise price may be paid in cash or (if the Qualified Plan
shall meet the requirements of rules adopted under the Exchange Act) in Common
Stock or a combination of cash and Common Stock. The term of each option and the
manner in which it may be exercised will be determined by the Committee, subject
to the requirement that no option may be exercisable more than 10 years after
the date of grant. With respect to an incentive stock option granted to a
participant who owns more than 10% of the voting rights of the Company's
outstanding capital stock on the date of grant, the exercise price of the option
must be at least equal to 110% of the fair market value on the date of grant and
the option may not be exercisable more than five years after the date of grant.
The Stock Option Plans were approved by our shareholders at a special
shareholders meeting held on November 8, 1996. At the annual meeting of
shareholders held on December 12, 2002, shareholders approved the following
amendments to the Qualified Plan and the Non-Qualified Plan: (i) the Committee
was given the power to amend and alter the Qualified Plan and the Non-Qualified
Plan so long as the amendments do not affect any outstanding options; (ii)
provide that any shares cancelled, terminated, or expired pursuant to the
Qualified Plan and the Non-Qualified Plan be made available for purposes of the
Qualified Plan and the Non-Qualified Plan; (iii) provide that the cashless
exercise provision of the Qualified Plan and the Non-Qualified Plan be in the
sole discretion of the Committee; and (iv) extended the expiration date of the
Qualified Plan and the Non-Qualified Plan until December 12, 2012.
11
As of July 31, 2008, 699,000 options had been granted pursuant to the
Qualified Plan with 17,500 of these options exercised, 231,500 options that
expired, leaving 351,000 available for grant and 315,000 options had been
granted pursuant to the Non-Qualified Plan with 125,000 of these options
exercised, 0 options that expired, 50,000 that were cancelled and 130,000
available for grant.
2004 Omnibus Stock Option Plan
On December 14, 2004, the shareholders approved the Company's 2004 Omnibus
Stock Option Plan (the "Omnibus Plan"). The Omnibus Plan authorizes the issuance
of up to five hundred thousand (500,000) shares of the Company's Common Stock.
The purpose of the Omnibus Plan is to promote the growth of the Company by
permitting the Company to grant options ("Options") to purchase shares of its
Common Stock, to attract and retain the best available personnel for positions
of substantial responsibility and to provide certain key employees, independent
contractors, consultants, technical advisors and directors of the Company with a
more direct stake in the future of the Company and provide an additional
incentive to contribute to the success of the Company.
The Omnibus Plan is administered by the Compensation Committee of the Board
or any committee of the Board performing similar functions, as appointed from
time to time by the Board (the "Omnibus Committee"). Pursuant to the terms of
the Omnibus Plan, the Omnibus Committee may grant either "incentive stock
options" within the meaning of Section 422 of the Internal Revenue Code of 1986
(the "Code") or nonqualified stock options, provided that incentive stock
options may not be granted to independent contractors and consultants. The
exercise price of all incentive stock options granted under the Omnibus Plan
must be equal to the fair market value of such shares on the date of grant as
determined by the Omnibus Committee, based on guidelines set forth in the
Omnibus Plan. The exercise price of nonqualified stock options granted under the
Omnibus Plan shall be not less than 50% of the fair market value of a share on
the date of grant of such Option. The Omnibus Committee may grant on behalf of
the Company, Options to purchase shares of the Company's Common Stock to any key
employee, independent contractor, consultant, technical advisor or director.
As of July 31, 2008, 620,000 options had been granted pursuant to the
Omnibus Plan with 5,000 of these options exercised, 120,000 expired leaving 0
available for grant.
CERTAIN TRANSACTIONS
During fiscal year 1996, we established a deferred compensation plan for
our employees. We may make discretionary contributions to the plan based on
recommendations from the Board of Directors. As of July 31, 2008, the Board of
Directors had authorized deferred compensation totaling $1,050,000 since fiscal
year 1996 to Mr. Geimer of which $975,000 had been funded. The $75,000
representing the difference between the authorized deferred compensation and the
funded deferred compensation was funded on October 29, 2008.
12
There were no other transactions or series of transactions for the fiscal
year ended July 31, 2008, nor are there any currently proposed transactions, or
series of the same to which we are a party, in which the amount involved exceeds
$60,000 and in which, to the knowledge of the Company, any director, executive
officer, nominee, 5% shareholder or any member of the immediate family of the
foregoing persons, have or will have a direct or indirect material interest.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Section 16(a) of the Exchange Act, generally requires the Company's
directors and executive officers and persons who own more than 10% of a
registered class of the Company's equity securities ("10% owners") to file with
the SEC initial reports of ownership and reports of changes in ownership of
Common Stock and other equity securities of the Company. Directors and executive
officers and 10% owners are required by Securities and Exchange Commission
regulation to furnish the Company with copies of all Section 16(a) forms they
file. To the Company's knowledge, based solely on review of copies of such
reports furnished to us and verbal representations that no other reports were
required to be filed during the fiscal year ended July 31, 2008, all Section
16(a) filing requirements applicable to its directors, executive officers and
10% owners were met except that Thomas V. Geimer filed a delinquent Form 4 on
January 7, 2008 reporting one delinquent transaction that was required to be
filed on January 3, 2008 and Mr. Geimer filed a delinquent Form 4 on May 30,
2008 reporting one delinquent transaction that was required to be filed on May
25, 2008.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY[
13
PROPOSAL 1
ELECTION OF THREE (3) PERSONS
TO SERVE AS DIRECTORS OF THE COMPANY
The Company's directors are elected annually to serve until the next Annual
Meeting of Shareholders and thereafter until their successors shall have been
elected and qualified. The number of directors presently authorized by the
Bylaws of the Company shall be not less than three (3) nor more than seven (7).
Unless otherwise directed by shareholders, the proxy holders will vote all
shares represented by proxies held by them for the election of the following
nominees, all of whom are now members and constitute the Company's Board of
Directors. The Company is advised that all nominees have indicated their
availability and willingness to serve if elected. In the event that any nominee
becomes unavailable or unable to serve as a director of the Company prior to the
voting, the proxy holder will vote for a substitute nominee in the exercise of
his best judgment.
INFORMATION CONCERNING NOMINEES
Thomas V. Geimer, 61, has been the Chairman of the Board of Directors and a
director of Accelr8 since 1987. He currently serves as the Chief Executive
Officer, Chief Financial Officer and Secretary of the Company. Mr. Geimer is
responsible for development of our business strategy, day-to-day operations,
accounting and finance functions. Before assuming full-time responsibilities at
the Company, Mr. Geimer founded and operated an investment banking firm.
Alexander Arnold III, 67, has served as a director of the Company since
September 1992. For the past 30 years Mr. Arnold has served as a Managing
Director of Trainer, Wortham & Co., Inc., a New York City-based investment
counseling firm. Mr. Arnold received a Bachelor of Arts degree from Rollins
College in 1964 and a Masters of Business Administration from Boston University
in 1966.
Charles E. Gerretson, 62, was appointed a director of the Company on July
19, 2003. For the past 30 years, Mr. Gerretson has served as the President of
Gerretson Realty, Inc., a Denver Colorado based real estate firm, which Mr.
Gerretson founded. Mr. Gerretson received a Bachelor of Science degree in
Business Administration from the University of Minnesota in 1968. Mr. Gerretson
was formerly a CPA with Arthur Andersen and Company and currently heads the
Company's Audit Committee.
Board Recommendation
The Board recommends a vote FOR the election of each of the three nominees
for directors of the Company.
14
PROPOSAL 2
RATIFICATION OF SELECTION OF
COMISKEY & COMPANY, P.C. AS INDEPENDENT
PUBLIC ACCOUNTANTS OF COMPANY
The Board of Directors has selected Comiskey & Company, P.C. as independent
public accountants of the Company for the fiscal year ending July 31, 2009, and
has further directed that the Company submit the selection of independent public
accountants for ratification by shareholders at the Annual Meeting of
Shareholders.
Fees Paid to the Independent Auditors
The aggregate fees billed by Comiskey & Company, P.C. for professional
services rendered for the audit of the Company's annual consolidated financial
statements for the years ended July 31, 2008 and 2007, including the reviews of
the unaudited interim financial statements of the Company's Form 10-QSBs was
approximately $35,000 and $32,000, respectively.
Tax Fees
The aggregate fees billed by Comiskey & Company, P.C. for professional
services rendered for the tax compliance, tax advice and tax planning for the
fiscal years ended July 31, 2008 and 2007 ("Tax Fees") was $0 and $0,
respectively.
All other Fees
Comiskey & Company, P.C. did not perform any professional services other
than those set forth above for the fiscal years ended July 31, 2008 and 2007.
Audit Committee Pre-Approval Policies
The Audit Committee shall pre-approve all auditing services and permitted
non-audit services (including the fees and terms thereof) to be performed for
the Company by its independent auditor, subject to any de minimus exceptions
that may be set for non-audit services described in Section 10A(i)(l)(B) of the
Exchange Act which are approved by the Committee prior to the completion of the
audit.
None of the hours expended on the principal accountant's engagement to
audit the Company's financial statements for the most recent fiscal year were
attributed to work performed by persons other than the principal accountant's
full-time permanent employees.
Board Recommendation
The Board recommends a vote FOR the ratification of the selection of
Comiskey & Company, P.C. as independent public accountants of the Company for
the fiscal year ending July 31, 2009.
15
GENERAL
Other Matters
The Board of Directors does not know of any matters that are to be
presented at the Annual Meeting of Shareholders other than those stated in the
Notice of Annual Meeting and referred to in this Proxy Statement. If any other
matters should properly come before the Annual Meeting, it is intended that the
proxies in the accompanying form will be voted as the persons named therein may
determine in their discretion.
Shareholder Proposals
If any shareholder of the Company intends to present a proposal for
consideration at the 2009 Annual Meeting of Shareholders and desires to have
such proposal included in the proxy statement and form of proxy distributed by
the Board of Directors with respect to such meeting, such proposal must be
received at the Company's offices, 7000 North Broadway, Building 3-307, Denver,
CO 80221, Attention: Secretary, not later than July 7, 2009.
By Order of the Board of Directors
---------------------------------
Thomas V. Geimer,
Chairman of the Board
16
ACCELR8 TECHNOLOGY CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
December 18, 2008
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned shareholder of ACCELR8 TECHNOLOGY CORPORATION, a Colorado
corporation (the "Company"), acknowledges receipt of the Notice of Annual
Meeting of Shareholders and Proxy Statement, dated November 14, 2008, and hereby
appoints Thomas V. Geimer with the power of substitution, as Attorney and Proxy
to represent and vote all shares of Common Stock of the Company which the
undersigned would be entitled to vote at the Annual Meeting of Shareholders and
at any adjournment or adjournments thereof, hereby revoking any proxy or proxies
heretofore given and ratifying and confirming all that said Attorneys and
Proxies may do or cause to be done by virtue thereof with respect to the
following matters:
1. Election of each of the following three (3) persons to serve as
directors of the Company until the next Annual Meeting of Shareholders
and thereafter until their successors shall have been elected and
qualified:
Thomas V. Geimer
FOR /___/ AGAINST /___/ ABSTAIN /___/
A. Alexander Arnold III
FOR /___/ AGAINST /___/ ABSTAIN /___/
Charles E. Gerretson
FOR /___/ AGAINST /___/ ABSTAIN /___/
2. Ratification of the selection of Comiskey & Company, P.C. as the
independent public accountants of the Company for the fiscal year
ending July 31, 2009.
FOR /___/ AGAINST /___/ ABSTAIN /___/
3. To act upon such other matters as may properly come before the Meeting
or any adjournments thereof.
17
This Proxy, when properly executed, will be voted as directed. If no direction
is indicated, the Proxy will be voted FOR the election of each of the nominees
listed above to the Board of Directors and FOR the proposal to ratify the
selection of Comiskey & Company, P.C. as the independent public accountants of
the Company for the fiscal year ending July 31, 2009.
Dated:________________________, 2008 __________________________________
__________________________________
PLEASE SIGN, DATE AND MAIL THIS PROXY IMMEDIATELY IN THE ENCLOSED ENVELOPE.
Please sign exactly as name appears on the label ATTACHED TO THIS PROXY. When
shares are held by joint tenants, both should sign. When signing as attorney,
executor, administrator, trustee, or guardian, please give full title as it
appears hereon. If a corporation, please sign in full corporate name by an
authorized officer and affix corporate seal. If a partnership, please sign in
full partnership name by authorized person. No Postage is required if returned
in the enclosed envelope and mailed in the united states.
18