Contract
EXHIBIT
4.9
Generex
Biotechnology Corporation
00
Xxxxxxx Xxxxxx, Xxxxx 000
Toronto,
Ontario
Canada
M5J 2G2
April
·,
2005
[·
insert name of creditor]
[·
insert address of creditor]
Dear
Sirs:
| Re: |
Issuance
of Generex Biotechnology Corporation Common Shares
in
satisfaction of
indebtedness
|
This
letter will serve to confirm the agreement between Generex Biotechnology
Corporation (“GNBT”),
Generex Pharmaceuticals Inc. (“GPI”)
(a
wholly owned subsidiary of GNBT) and · [insert
name of creditor]
(the
“Creditor”)
regarding the issuance by GNBT of shares of restricted GNBT common stock
(the
“Shares”)
to the
Creditor in satisfaction of certain indebtedness of GNBT and/or GPI to the
Creditor (the “Indebtedness”).
| 1. |
GNBT,
GPI and the Creditor hereby acknowledge and agree that the aggregate
amount of the Indebtedness as at ·,
2005 is USD$·.
|
| 2. |
GNBT,
GPI and the Creditor hereby acknowledge that GNBT will issue to the
Creditor (or as the Creditor may otherwise direct in writing) an
aggregate
of ·
Shares in full and final satisfaction of the Indebtedness (being
an
effective per Share price of USD$0.82).
|
| 3. |
On
the Closing Date (as hereinafter defined), GNBT will issue the Shares
to
the Creditor and will deliver or cause to be delivered to the Creditor
one
or more share certificates evidencing the Shares. GNBT hereby represents
and warrants to the Creditor that the Shares will be issued as fully
paid,
non-assessable shares, free and clear of any and all
encumbrances.
|
| 4. |
On
the Closing Date, the Creditor will:
|
| a. |
execute
and deliver to GNBT and/or GPI, as applicable, a full and final release
in
respect of the Indebtedness;
|
| b. |
execute
and deliver full and final releases of any and all guarantees given
to the
Creditor in respect of the Indebtedness;
|
| c. |
deliver
to GNBT and/or GPI, as applicable, any and all original promissory
notes
and guarantees in respect of the Indebtedness;
and
|
| d. |
at
its own expense, take all requisite steps to discharge any and all
security held by the Creditor in respect of the
Indebtedness.
|
| 5. |
The
date for the completion of the transactions herein envisaged (the
“Closing
Date”)
will be April 28, 2005.
|
| 6. |
The
Creditor understands that the Shares are “restricted securities” and have
not been registered under the Securities
Act of 1933
(the “Securities
Act”)
or any state securities laws. The Creditor hereby represents and
warrants
to GNBT that the Creditor is acquiring the Shares as principal for
its own
account and not with a view to or for distributing or reselling such
Shares or any part thereof, has no present intention of distributing
any
of such Shares and has no arrangement or understanding with any other
persons regarding the distribution of such Shares (this representation
and
warranty not limiting the Creditor’s right to sell the Shares pursuant to
a registration statement or otherwise in compliance with applicable
federal and state securities laws). The does not have any agreement
or
understanding, directly or indirectly, with any person to distribute
any
of the Shares.
|
| 7. |
At
the time the Creditor was offered the Shares, it was, and at the
date
hereof it is, an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act.
|
| 8. |
The
Creditor, either alone or together with its representatives, has
such
knowledge, sophistication and experience in business and financial
matters
so as to be capable of evaluating the merits and risks of the prospective
investment in the Shares, and has so evaluated the merits and risks
of
such investment. The Creditor is able to bear the economic risk of
an
investment in the Shares and, at the present time, is able to afford
a
complete loss of such investment.
|
| 9. |
The
Creditor is not acquiring the Shares as a result of any advertisement,
article, notice or other communication regarding the Shares published
in
any newspaper, magazine or similar media or broadcast over television
or
radio or presented at any seminar or any other general solicitation
or
general advertisement. The Creditor acknowledges that all of GNBT’s
filings with the Securities and Exchange Commission (SEC) are available
for review on the SEC’s website, or by obtaining copies directly from
GNBT. The Creditor has reviewed such of these filings as it deems
necessary to make an informed investment decision and has relied
primarily
on the information contained in those materials in making the decision
to
exchange Indebtedness for Shares. The Creditor acknowledges it has
been
afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of GNBT
concerning the terms and conditions of the issuance of the Shares
in
satisfaction of the Indebtedness; (ii) access to other non-confidential
information about GNBT and GPI and their respective financial condition,
results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional non-confidential information
that
GNBT possesses or can acquire without unreasonable effort or expense
that
is necessary to make an informed investment decision with respect
to the
investment.
|
2
| 10. |
The
Creditor has independently evaluated the merits of its decision to
acquire
the Shares pursuant to this agreement, such decision has been
independently made by the Creditor and the Creditor confirms that
it has
only relied on the advice of its own business and/or legal counsel
in
making such decision. The Creditor understands that its investment
in the
Shares involves a high degree of risk. The Creditor has sought such
accounting, legal and tax advice as it has considered necessary to
make an
informed investment decision with respect to its acquisition of the
Shares.
|
| 11. |
The
Creditor understands that the Shares are being offered and sold to
it in
reliance on Regulation D and that GNBT is relying upon the truth
and
accuracy of, and the Creditor’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the
Creditor
set forth herein in order to determine the availability of Regulation
D
and the eligibility of the Creditor to acquire the
Shares.
|
| 12. |
The
Creditor understands that no United States federal or state agency
or any
other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares or the fairness of suitability
of the investment in the Shares nor have such authorities passed
upon or
endorsed the merits of any offering of the
Shares.
|
| 13. |
The
Shares may only be disposed of in compliance with federal and state
securities laws. In connection with any transfer of Shares other
than
pursuant to an effective registration statement or Rule 144, GNBT
may
require the transferor thereof to provide to GNBT an opinion of counsel
selected by the transferor and reasonably acceptable to GNBT, the
form and
substance of which opinion shall be reasonably satisfactory to GNBT,
to
the effect that such transfer does not require registration of such
transferred Shares under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms
of
this agreement
|
| 14. |
The
Creditor agrees to the imprinting of a legend on any of the Shares
in the
following form:
|
[NEITHER]
THESE SECURITIES [NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
[EXERCISABLE] [CONVERTIBLE]] HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
3
| 15. |
This
agreement contains the entire understanding of the parties with respect
to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters, which
the
parties acknowledge have been merged
hereinto.
|
| 16. |
Each
of the parties will execute and deliver such further documents and
perform
or cause to be performed such further acts as may be required to
give full
effect to the provisions of this
agreement.
|
| 17. |
This
agreement shall not be assigned by either party without the prior
written
consent of the other party. This agreement shall enure to the benefit
of
and be binding upon the parties hereto and their respective successors
and
permitted assigns.
|
| 18. |
All
questions concerning the construction, validity, enforcement and
interpretation of this agreement shall be governed by and construed
and
enforced in accordance with the internal laws of the State of Pennsylvania
without regard to the principles of conflicts of law
thereof.
|
If
the
foregoing accurately sets out the terms of our agreement with respect to
the
issuance of the Shares in satisfaction of the Indebtedness, kindly execute
the
enclosed duplicate copy of this letter and return it to us. Once executed
by
both parties, this letter is intended to be and shall be a legally binding
obligation of each of the signing parties in accordance with the foregoing
terms.
| GENEREX BIOTECHNOLOGY CORPORATION | ||
| |
|
|
| By: | /s/ | |
|
|
||
|
Name:
Xxxx X. Xxxxx
Title: Chief Operating Officer
I have authority to bind the
corporation.
|
||
AGREED
THIS ·
DAY OF APRIL, 2005.
|
· [name
of creditor]
|
||
| |
|
|
| By: | /s/ | |
|
|
||
|
Name:
·
Title:
·
I have authority to bind the
corporation.
|
||
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