CONSENT AND WAIVER
Exhibit
10.3
This
Consent and Waiver (this “Agreement”),
dated
as of July 31, 2008, is entered by and between Generex Biotechnology
Corporation, a Delaware corporation (the “Company”),
and
Iroquois Master Fund Ltd. (the “Holder”).
RECITALS
A. Pursuant
to that certain Securities Purchase Agreement (the “Purchase
Agreement”),
dated
as of March 31, 2008, by and among the Company, the Holder and the other
investors listed on the Schedule of Buyers attached thereto (together with
the
Holder, the “Investors”),
the
Holder purchased the Company’s 8% Senior Secured Convertible Note in the
principal amount of $3,650,000.00 (the “Note”).
Capitalized terms used in this Agreement that are not otherwise defined have
the
meaning set forth in the Note.
B. The
Note
requires the Company to pay the Holder on each applicable Installment Date
the
Installment Amount due on such date by electing (i) a Company Conversion if
various conditions are satisfied and/or (ii) a Company Redemption.
C. In
connection with the Purchase Agreement, the Company and the Investors entered
into that certain Registration Rights Agreement, dated as of March 31, 2008
(the
“Registration
Rights Agreement”),
pursuant to which, among other things, the Company is obligated to have a
registration statement for the resale of the Registrable Securities (as defined
in the Registration Rights Agreement) (the “Registration
Statement”)
declared effective on or before July 29, 2008, which Registration Statement
was
declared effective on July 29, 2008.
D. As
of the
date hereof, certain Equity Conditions have not been satisfied, including (i)
that the Registration Statement was not effective for the resale of all of
the
Registrable Securities for a period of thirty (30) days preceding the August
1,
2008 Company Installment Notice Date (the “Registration
Statement Equity Condition”),
and
(ii) that the Company received notice from The Nasdaq Stock Market of its
failure to comply with the minimum bid price requirement of Marketplace Rule
4310(c)(4) and has 180 calendar days to regain compliance with such rule (the
“Listing
Maintenance Equity Condition”).
AGREEMENTS
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Holder hereby
agree as follows:
1. Waiver.
The
Holder hereby waives satisfaction of only the following: (a) the Registration
Statement Equity Condition solely with respect to the Installment Notice Due
Date applicable to the Installment Date that is September 1, 2008 and (b) the
Listing Maintenance Equity Condition solely with respect to the Installment
Date
that is September 1, 2008 (the “Applicable
Installment Date”)
such
that the Company will be entitled to deliver a Company Installment Notice in
respect of the Applicable Installment Date confirming that the Installment
Amount in respect of the Applicable Installment Date will be converted in whole
pursuant to a Company Conversion (to be effected in accordance with the terms
of
the Note).
2. Effect
of this Agreement.
Except
as otherwise expressly provided herein, the Note is, and shall continue to
be,
in full force and effect and is hereby ratified and confirmed in all respects.
IN
WITNESS WHEREOF,
the
Company and the Holder have caused their respective signature page to this
Agreement to be duly executed as of the date first written above.
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COMPANY:
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GENEREX
BIOTECHNOLOGY CORPORATION
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By:
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Chief
Executive Officer
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HOLDER:
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IROQUOIS
MASTER FUND LTD.
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By:
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Xxxxxx
Xxxxxxxxx, Authorized Signatory
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