OPTION AGREEMENT
THIS OPTION AGREEMENT, entered into effective this 3rd of January, 2000, by
and between Generex Biotechnology Corporation (the "Company"), a Delaware
corporation, and Xxxxx Xxxxxxx Associates ("Xxxxx"), a New York corporation with
a principal place of business located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000.
1. In consideration of Xxxxx'x past services as financial communications
and investor relations counsel and as an incentive to Xxxxx to perform such
services in the future to the best of its ability, the Company hereby grants to
Xxxxx the option (hereinafter, the "Option") to purchase from the Company, at
any time from the date hereof through and including the Expiration Date set
forth below (the "Exercise Period"), ONE HUNDRED TWENTY FIVE THOUSAND (125,000)
fully paid and nonassessable shares (the "Shares") of the Company's Common
Stock, $.001 par value per share (the "Common Stock"), at a price of EIGHT
($8.00) DOLLARS per Share (the "Exercise Price"), subject to the limitations,
terms and conditions set forth herein. Xxxxx'x rights hereunder may be assigned
only to principals and employees of Xxxxx, and only in accordance with and
subject to the terms, conditions and other provisions of this Agreement. The
term "Optionee", as used herein, shall include Xxxxx and only such persons to
whom rights to acquire shares of the Company's Common Stock have been assigned
by Xxxxx in strict conformity with the terms and conditions set forth or
incorporated by reference herein.
2. The Option shall expire on June 15, 2004 , subject to early termination
pursuant to paragraph 15 below in the event of a Change of Control.
3. The Option be exercised during the Exercise Period as to the whole or
any lesser number of whole Shares by delivery of written notice of exercise (the
"Notice of Exercise") to the Company, marked to the attention of its President,
00 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, or such other
place as is designated in writing and delivered to Optionee by the Company,
accompanied by a certified or bank cashier's check payable to the order of the
Company in an amount equal to the Exercise Price multiplied by the number of
Shares covered by such exercise (the "Shares Purchase Price").
4. Any exercise of the Option shall be deemed to have been effected as of
the close of the business day on which the Company has received the last of the
Notice of Exercise and the Shares Purchase Price. Upon each exercise of the
Option, the Optionee shall be deemed to be the holder of record of the Shares
issuable upon such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed. As soon as practicable after each such
exercise, the Company shall issue and deliver to the Optionee a certificate or
certificates for the Shares issuable upon such exercise, registered in the name
of the Optionee.
5. The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the Option, such number of Shares as shall, from time to time,
be sufficient therefor.
6. The Exercise Price shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on outstanding shares of its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock
into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of Common Stock into a lesser number of shares, the
Exercise Price in effect at the time of the record date for such dividend or
distribution on the effective date of such subdivision, combination or
reclassification shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price then in effect by a fraction,
the denominator of which shall be the number of shares of Common Stock
outstanding immediately after giving effect to such action, and of which the
numerator shall be the number of shares of
Common Stock outstanding immediately prior to such action. Such adjustment
shall be made successively whenever any event specified above shall occur.
(b) Whenever the Exercise Price is adjusted pursuant to subparagraph (a)
above, the number of Shares purchasable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Shares initially
issuable upon exercise of this Warrant by the initial Exercise Price in
effect on the date hereof and dividing the product so obtained by the
Exercise Price, as adjusted.
(c) All calculations under this Section 6 shall be made to the nearest
one-hundredth of a cent and to the nearest whole Share.
7. Subject to the provisions of paragraph 15 below:
(a) In case of any consolidation with or merger of the Company with or
into another corporation (other than a merger of consolidation in which the
Company is the continuing or surviving corporation), or in case of any sale,
lease or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, appropriate provisions shall be
made so that the Optionee shall have the right thereafter to receive upon
exercise of the Option solely the kind and amount of shares of stock and
other securities, property, cash or any combination thereof receivable upon
such consolidation, merger, sale, lease or conveyance by a holder of the
number of Shares of Common Stock for which the Option might have been
exercised immediately prior to such consolidation, merger, sale, lease or
conveyance, and for adjustments which shall be as nearly equivalent as
practicable to the adjustments in this Section 6.
(b) In case of any reclassification or change in the Shares of Common
Stock (other than a change in par value, or from par value to no par value,
or as a result of a subdivision or combination, but including any change in
the Shares into two or more classes or series of shares) or in case of any
consolidation or merger of another corporation into the Company in which the
Company is the continuing corporation and in which there is a
reclassification or change (including a change to the right to receive cash
or other property) in the Company's Common Stock (other than a change in par
value, or from par value to no par value, or as a result of a subdivision or
combination, but including any change in the Shares into two or more classes
or series of Shares), the Optionee shall have the right thereafter to receive
upon exercise of the Option solely the kind and amount of shares of stock and
other securities, property, cash or any combination thereof receivable by the
holder of the number of Shares for which this Warrant might have been
exercised immediately prior to such reclassification, change, consolidation
or merger. Thereafter, appropriate provision (as reasonably determined by the
Board of Directors) shall be made for adjustment which shall be as nearly
equivalent as practicable to the adjustments in Section 6.
(c) The above provisions of this Section 7 shall similarly apply to
successive reclassification and changes in Shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
8. The issue of any stock or other certificate upon the exercise of the
Option shall be made without charge to the Optionee for any tax in respect of
the issue of such certificate. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of any certificate in a name other than that of the
Optionee and the Company shall not be required to issue or deliver any such
certificates unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
9. Notwithstanding any other term herein, none of the rights of Optionee
hereunder shall be assigned except (a) to a principal or employee of Xxxxx
who is an "accredited investor", as that term is defined in Rule 501,
Regulation D, or (b) with the approval of the Company.
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10. Unless registered under the Securities Act of 1933, Shares or other
securities issued upon the exercise of the Option shall be subject to a
stop-transfer order and the certificate or certificates evidencing any such
Shares or securities shall bear the following legend and any other legend
which counsel for the Company may deem necessary or advisable:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS SO REGISTERED OR UNLESS IN
THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
11. No Optionee shall have, solely on account of such status, any rights
of a shareholder of the Company, either at law or in equity, or to any notice
of meetings of shareholders or of any other proceedings of the Company.
12. (a) The Company shall use its best efforts to prepare, file and
process to effectiveness a Registration Statement ("Registration Statement")
under the Act with respect to the Shares, provided that the Company shall
have no obligation to file a Registration Statement prior to December 31,
2001. The Company shall give prompt written notice of such filing and of the
effectiveness of such Registration Statement to Optionee, and shall use its
best efforts to keep such Registration Statement in effect for a period of at
least ninety (90) days from its effective date (one hundred eighty [180] days
if the Registration Statement is on Form S-3).
(b) In addition to its obligations pursuant to Section 13(a) above, if,
after December 31, 2001, but prior to the effectiveness of a Registration
Statement, or following the effectiveness of a Registration Statement if the
Company fails to maintain the effectiveness of the Registration Statement for
at least ninety (90) days, the Company proposes to file a Registration
Statement under the Securities Act (other than in connection with an exchange
offer, a "rights" offering to shareholders, a Registration Statement on Form
S-8 or Form S-4 or any successor forms relating to employee benefit plans, an
acquisition of another entity or in connection with a dividend reinvestment
plan, an employee benefit plan, the conversion of any convertible securities,
or a stand-by underwriting with respect to the call of a warrant, option,
right or convertible security for redemption) with respect to shares of
Common Stock (a "Piggy Back Registration Statement"), the Company shall give
written notice of such proposed filing to Optionee at least thirty (30)
calendar days before the anticipated filing date of such Registration
Statement or, in the event that the Company has not formulated its intent to
file such Registration Statement at least thirty (30) calendar days before
the anticipated filing date of such Registration Statement, as soon as
practicable upon the formation by the Company of such intent. The notice
shall specify the information required to be provided to the Company by
Optionee pursuant to paragraph 12(d) below and shall offer to Optionee the
opportunity to include in the Piggy Back Registration Statement such number
of Shares as Optionee may request. The Company shall not be required to honor
any such request (i) if, in the opinion of counsel to the Company reasonably
acceptable to Optionee, registration under the Act is not required for the
transfer of the Shares in the manner proposed by Optionee; or (ii) to
register in the aggregate fewer than 10,000 Shares. The Company shall permit,
or, in the case of an offering made through an underwriter or group of
underwriters on a "firm commitment" basis (an "Underwritten Offering"), shall
use its best efforts to cause the managing underwriter of the proposed
offering to permit, such Shares to be included in the proposed offering on
the same terms and conditions as applicable to the shares of Common Stock
Offered by the Company and for the account of any person other than the
Company, as the case may be.
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(c) Notwithstanding the foregoing, if the managing underwriter of an
underwritten offering shall advise the Company in writing that, in its
opinion, the distribution of all or a portion of the Shares requested by
Optionee to be included in the Piggy Back Registration Statement concurrently
with the shares of Common Stock being registered by the Company would
materially adversely affect the distribution of such securities by the
Company for its own account, or for the account of any person or persons that
have asserted demand registration rights under any other agreement with
respect to such registration, then such requested Shares shall not be
included in the Registration. If the managing underwriter elects to include
less than all Shares, then the number of Shares shall be pro rata with (i)
other securities properly requested to be included in the Piggy Back
Registration Statement by other holders pursuant to piggy back or incidental
registration rights under any other agreement or (ii) shares included in the
Piggy Back Registration Statement for the account of any corporate officer or
director of the Company and any of their respective family members, whichever
results in the registration of the greater number of Shares for Optionee's
account. The Company shall not be required to maintain in effect the Piggy
Back Registration Statement as it relates to Shares beyond the period
necessary to comply with the Securities Act (otherwise than pursuant to Rule
415 or any similar regulation permitting "shelf registration") with respect
to the distribution of the Shares included therein.
(d) In connection with any registration of Shares pursuant to paragraphs
13 (a), (b) or (c) above, and as a condition to the Company's obligation to
register the Shares, Optionee shall promptly furnish to the Company such
information regarding Optionee, the proposed distribution of the Shares by
Optionee and such other matters as the Company may reasonably request in
writing.
(e) All expenses incident to the Company's performance of or compliance
with the provisions set forth herein (other than underwriting discounts and
commissions relating to the sale of the Shares, and the fees and
disbursements of Optionee's counsel or other persons, if any, engaged by
Optionee) will be borne by the Company. In addition, the Company shall,
without charge to Optionee, provide Optionee with reasonable quantities of
preliminary prospectuses, final prospectuses and other material required to
effect sales of the Shares to the public, and will take appropriate action to
enable the Shares to be sold in the State of New York and such other states
as the Company may elect.
13. Without limiting any indemnification rights of the Company or
Optionee arising under any other agreement or law, in any registration of
Shares pursuant hereto:
(a) the Company will indemnify and hold harmless Optionee against any
losses, claims, damages or liabilities (which shall include, but not be
limited to, all costs of defense and investigation and all attorneys' fees)
to which Optionee may become subject under the Act, the Securities Exchange
Act of 1934 or otherwise in connection with sale of any Shares insofar as
such losses, claims, damages or liability (or actions in respect thereof)
arise out of or are based upon any untrue statement of any material fact
contained, during the effective period thereof, in any Registration
Statement, any preliminary or final prospectus furnished by the Company, or
any amendment or supplement thereto, or arise out of or are based upon the
omission to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that (i) the Company shall
have no obligation to Optionee in respect of any such loss, claim, damage or
liability arising out of or based upon an untrue statement or liability
arising out of or based upon an untrue statement or omission made in a
Registration Statement, preliminary prospectus, prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished by Optionee specifically for use in the preparation
thereof; and (ii) the Company shall not be liable for any loss, liability or
damage incurred by Optionee to the extent that the aggregate net proceeds
realized by Optionee upon sale of such Shares after deduction of such loss,
liability or damage exceeds the aggregate Exercise Price paid by Optionee in
respect of such Shares.
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(b) Optionee will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 20 of
the Exchange Act against any losses, claims, damages or liabilities (which
shall include, but not be limited to, all costs of defense and investigation
and all attorneys' fees) to which the indemnified party may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liability (or actions in respect thereof) arise out of or are
based upon (i) an untrue statement or omission made in a Registration
Statement, preliminary prospectus, prospectus, preliminary offering circular
or offering circular, or any amendment or supplement, in reliance upon and in
conformity with written information furnished by Optionee for use by the
Company in the preparation thereof, or (ii) actions or omissions by Optionee
or persons acting on his behalf in the sale of the Shares which are unrelated
to the content of the Registration Statement but which violate the Act, the
Exchange Act or regulations thereunder.
14 (a) Notwithstanding any other term of this Warrant, unless the
Company shall have prepared, filed and processed to effectiveness a
Registration Statement under the Act with respect to all of the Shares on or
before December 31, 2001, and such Registration Statement has remained
effective for a period of at least ninety (90) days prior to the Expiration
Date (one hundred eighty [180] days if the Registration Statement is on Form
S-3), the Optionee shall have the right at any time after December 31, 2000,
to convert this Warrant into that number of Shares (hereinafter referred to
as the "Conversion Shares") which shall equal the product obtained by
multiplying all Shares then issuable upon exercise of the Warrant pursuant to
paragraph 2 above by a fraction, the denominator of which is the Market Price
of the Company's Common Stock, as defined below, and the numerator of which
is the difference between the Market Price and the Exercise price. Where the
number of Conversion Shares equals "CS", the number of Shares equals "S", the
Exercise Price equals "EP" and the Market Price equals "MP", the following
formula shall determine the number of Conversion Shares at any time issuable
upon conversion of this Warrant to Common Stock pursuant to this paragraph
15(a):
CS = S (MP - EP)
-----------
MP
(b) For purposes of paragraph 15(a) above, the term "Market Price" of
the Company's Common Stock shall mean: (i) if the Common Stock is listed on a
national securities exchange, the average closing prices for the Common Stock
reported on such exchange for the five (5) trading days immediately preceding
the date of exercise of the rights of conversion set forth in paragraph 15(a)
(the "Conversion Rights"); or (ii) if the Common Stock is not listed on a
national securities exchange but is quoted on the Nasdaq Stock Market (Small
Cap or National Market System), the average closing prices for the Common
Stock on the Nasdaq Stock Market for the five (5) trading days immediately
preceding the date of exercise of Conversion Rights; or (iii) if neither (i)
nor (ii) above applies, and "bid" and "asked" prices for the Common Stock are
quoted on the National Association of Securities Dealers, Inc. ("NASD") OTC
Bulletin Board and the average weekly trading volume for the Common Stock as
reported on the NASD Bulletin Board has averaged at least one (1%) percent of
the total number of shares of Common Stock outstanding during the four
calendar weeks immediately preceding the exercise of Conversion Rights, the
average of the mean between the closing "bid" and "asked" prices reported on
the OTC Bulletin Board for the five (5) trading days immediately preceding
the date of exercise of Conversion Rights; or (iv), if none of subsections
(i), (ii) or (iii) apply, as determined by the Board of Directors of the
Company.
(c) The Conversion Rights shall be exercised in the same manner as
provided in paragraph 2 above, except that payment of the Shares Purchase
Price shall not be tendered.
15. Notwithstanding any other term of this Option Agreement, in the
event of a Change in Control (as defined below), the Company may take
whatever action with respect to the Option it deems necessary or desirable,
including, without limitation, accelerating the vesting, expiration or
termination dates to a date no earlier than forty-five (45) days after notice
of such action is given to Xxxxx. A Change of Control shall be deemed to have
occurred upon the earliest to occur of the following events:
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(a) the date the stockholders of the Company (or the Board of Directors,
if stockholder action is not required) approve a plan or other arrangement
pursuant to which the Company will be dissolved or liquidated;
(b) the date the stockholders of the Company (or the Board of Directors,
if stockholder action is not required) approve a definitive agreement to sell
or otherwise dispose of substantially all of the assets of the Company;
(c) the date the stockholders of the Company (or the Board of Directors,
if stockholder action is not required) and the stockholders of the other
constituent corporation (or its board of directors if stockholder action is
not required) have approved a definitive agreement to merge or consolidate
the Company with or into such other corporation, other than, in either case,
a merger or consolidation of the Company in which holders of shares of the
Common Stock immediately prior to the merger or consolidation will hold at
least a majority of the ownership of common stock of the surviving
corporation (and, if one class of common stock is not the only class of
voting securities entitled to vote on the election of directors of the
surviving corporation, a majority of the voting power of the surviving
corporation's voting securities) immediately after the merger or
consolidation, which common stock (and, if applicable, voting securities) is
to be held in the same proportion as such holders' ownership of Common Stock
immediately before the merger or consolidation; or
(d) the date any entity, person or group, (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as
amended), other than (i) the Company or any of its subsidiaries or any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any of its subsidiaries or (ii) any person who, on the date the
Plan is effective, shall have been the beneficial owner of at least twenty
percent (20%) of the outstanding Common Stock, shall have become the
beneficial owner of, or shall have obtained voting control over, more than
fifty percent (50%) of the outstanding shares of the Common Stock.
16. This Option Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
GENEREX BIOTECHNOLOGY CORPORATION
[SEAL]
By: /s/ E. Xxxx Xxxxx
-----------------------------
E. Xxxx Xxxxx, Chairman
XXXXX XXXXXXX XXXXXXXXXX ASSOCIATES
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Managing Partner
