EXHIBIT 4.5
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
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. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
ADDITIONAL INVESTMENT RIGHT
To Purchase $________ Principal Amount of 6% Convertible
Debentures and Warrants
GENEREX BIOTECHNOLOGY CORPORATION
THIS ADDITIONAL INVESTMENT RIGHT (the "AIR") certifies that,
for value received, _____________ (the "Holder"), is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the 181st day following the date hereof (the
"Initial Exercise Date") and on or prior to the earlier of the close of business
on the 12 month anniversary of the Effective Date and the two year anniversary
of the date hereof (the "Termination Date") but not thereafter, to subscribe for
and purchase from Generex Biotechnology Corporation, a Nevada corporation (the
"Company"), up to $_____________ principal amount of 6% Convertible Debentures
(the "AIR Debenture") and warrants to purchase shares of Common Stock of the
Company as described herein at an exercise price of $0.91 per share (the "AIR
Warrant Exercise Price") (subject to adjustment hereunder and thereunder) (the
"AIR Warrant"). Subject to the terms and conditions hereof, upon the purchase
hereunder of AIR Debenture, the Holder shall receive a warrant to purchase a
number of shares of Common Stock equal to 100% of the shares of Common Stock
underlying such AIR Debenture when issued. The initial conversion price of the
Debenture shall be equal to $0.82, subject to adjustment thereunder and
hereunder ("AIR Debenture Conversion Price"). The AIR Debenture and AIR Warrant
shall be in the form of the Debentures and Warrants (with the same rights,
privileges and preferences set forth in the Transaction Documents) issued
pursuant to the Purchase Agreement, mutatis mutandis. The AIR Debentures and the
AIR Warrant shall be collectively referred to as the "AIR Securities." The AIR
Warrant Exercise Price and the AIR Debenture Conversion Price shall be
collectively referred to herein as the "AIR Conversion Price."
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Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the "Purchase Agreement"), dated November 9, 2004, among the
Company and the purchasers signatory thereto.
Section 2. Exercise.
a) Exercise of AIR. Subject to the terms and conditions
contained herein, exercise of the purchase rights represented by this
AIR may be made at any time or times on or after the Initial Exercise
Date and on or before the Termination Date by delivery to the Company
of a duly executed facsimile copy of the Notice of Exercise Form
annexed hereto (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the address
of such Holder appearing on the books of the Company) and the payment
of the Stated Value thereby purchased by wire transfer or cashier's
check drawn on a United States bank. Subject to the terms and
conditions contained herein, upon exercise of the AIR, the Company
shall issue AIR Debentures with a Stated Value equal to the amount paid
by the Holder and the AIR Warrant to purchase a number of shares of
Common Stock equal to 50% of the shares of Common Stock issuable upon
conversion of such AIR Debenture.
b) Mechanics of Exercise.
i. Authorization of AIR Debenture and the AIR
Warrant. The Company covenants that during the period the AIR
is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide
for the issuance of all of the shares of Common Stock
underlying the AIR Debenture and AIR Warrant (the
collectively, "AIR Conversion Shares"). The Company further
covenants that its issuance of this AIR shall constitute full
authority to its officers who are charged with the duty of
executing certificates to execute and issue the necessary
certificates for the AIR Securities upon the exercise of the
purchase rights under this AIR and certificates upon
conversion and exercise of the AIR Securities. The Company
covenants that the AIR Securities which may be issued upon the
exercise of the purchase rights represented by this AIR and
the AIR Conversion Shares issuable thereunder will, upon
exercise of the purchase rights represented by this AIR, be
duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges in respect of the
issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue). The Company will
take all such reasonable action as may be necessary to assure
that the AIR Securities and AIR Conversion Shares may be
issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed.
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ii. Delivery of Certificates Upon Exercise.
Certificates for the AIR Securities purchased hereunder shall
be delivered to the Holder within 3 Trading Days from the
delivery to the Company of the Notice of Exercise Form,
surrender of this AIR and payment of the Stated Value as set
forth above ("AIR Security Delivery Date"). This AIR shall be
deemed to have been exercised on the date the payment of the
principal amount is received by the Company. The AIR
Securities shall be deemed to have been issued, and Holder or
any other person so designated to be named therein shall be
deemed to have become a holder of record of such security for
all purposes, as of the date the AIR has been exercised by
payment to the Company of the principal amount and all taxes
required to be paid by the Holder, if any, pursuant to Section
2(e)(vii) prior to the issuance of such security, have been
paid.
iii. Delivery of New AIRs Upon Exercise. If this AIR
shall have been exercised in part, the Company shall, at the
time of delivery of the certificate or certificates
representing the AIR Securities, deliver to Holder a new AIR
evidencing the rights of Holder to purchase the unpurchased
AIR Securities called for by this AIR, which new AIR shall in
all other respects be identical with this AIR.
iv. Rescission Rights. If the Company fails to
deliver to the Holder a certificate or certificates
representing the AIR Securities pursuant to this Section
2(e)(iv) by the AIR Security Delivery Date, then the Holder
will have the right to rescind such exercise.
v. Charges, Taxes and Expenses. Issuance of
certificates for AIR Securities shall be made without charge
to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name
of the Holder or in such name or names as may be directed by
the Holder; provided, however, that in the event certificates
for AIR Securities are to be issued in a name other than the
name of the Holder, this AIR when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto
duly executed by the Holder; and the Company may require, as a
condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
vi. Closing of Books. The Company will not close its
records in any manner which prevents the timely exercise of
this AIR, pursuant to the terms hereof or the conversion of
the AIR Securities pursuant to the terms hereof.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time
while this AIR is outstanding: (A) pays a stock dividend or otherwise
make a distribution or distributions on shares of its Common Stock or
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any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any
shares of Common Stock issued by the Company pursuant to the AIR
Securities), (B) subdivides outstanding shares of Common Stock into a
larger number of shares, (C) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number
of shares, or (D) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the
AIR Conversion Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock outstanding
after such event. Any adjustment made pursuant to this Section 3(a)
shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) Subsequent Equity Sales. At any time after Shareholder
Approval has been obtained, if the Company or any Subsidiary thereof,
as applicable, at any time while this AIR is outstanding, shall offer,
sell, grant any option to purchase or offer, sell or grant any right to
reprice its securities, or otherwise dispose of or issue (or announce
any offer, sale, grant or any option to purchase or other disposition)
any Common Stock or Common Stock Equivalents entitling any Person to
acquire shares of Common Stock, at an effective price per share less
than the then AIR Conversion Price (such lower price, the "Base Share
Price" and such issuances collectively, a "Dilutive Issuance"), as
adjusted hereunder (if the holder of the Common Stock or Common Stock
Equivalents so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options
or rights per share which is issued in connection with such issuance,
be entitled to receive shares of Common Stock at an effective price per
share which is less than the AIR Conversion Price, such issuance shall
be deemed to have occurred for less than the AIR Conversion Price),
then the AIR Conversion Prices shall be reduced to equal to the Base
Share Price. Such adjustment shall be made whenever such Common Stock
or Common Stock Equivalents are issued. The Company shall notify the
Holder in writing, no later than the Trading Day following the issuance
of any Common Stock or Common Stock Equivalents subject to this
section, indicating therein the applicable issuance price, or of
applicable reset price, exchange price, conversion price and other
pricing terms (such notice the "Dilutive Issuance Notice"). For
purposes of clarification, whether or not the Company provides a
Dilutive Issuance Notice pursuant to this Section 3(b), upon the
occurrence of any Dilutive Issuance, after the date of such Dilutive
Issuance the Holder is entitled to receive a number of securities based
upon the Base Share Price regardless of whether the Holder accurately
refers to the Base Share Price in the Notice of Exercise.
c) Pro Rata Distributions. If the Company, at any time while
this AIR is outstanding, distributes to all holders of Common Stock
(and not to Holders) evidences of its indebtedness or assets or rights
or warrants to subscribe for or purchase any security other than the
Common Stock (which shall be subject to Section 3(b), then in each such
case the AIR Conversion Price shall be determined by multiplying such
AIR Conversion Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the
Closing Price determined as of the record date mentioned above, and of
which the numerator shall be such Closing Price on such record date
less the then fair market value at such record date of the portion of
such assets or evidence of indebtedness so distributed applicable to
one outstanding share of the Common Stock as determined by the Board of
Directors in good faith. In either case the adjustments shall be
described in a statement provided to the Holder of the portion of
assets or evidences of indebtedness so distributed or such subscription
rights applicable to one share of Common Stock. Such adjustment shall
be made whenever any such distribution is made and shall become
effective immediately after the record date mentioned above.
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d) Calculations. All calculations and adjustments to the AIR
Conversion Price under this Section 3 shall be made to the nearest cent
or the nearest 1/100th of a share, as the case may be. For purposes of
this Section 3, the number of shares of Common Stock outstanding as of
a given date shall be the sum of the number of shares of Common Stock
(excluding treasury shares, if any) outstanding.
e) Notice to Holders.
i. Adjustment to AIR Conversion Price. Whenever the
AIR Conversion Price is adjusted pursuant to this Section 3,
the Company shall promptly mail to each Holder a notice
setting forth the AIR Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring
such adjustment.
ii. Notice to Allow Exercise by Xxxxxx. If (A) the
Company shall declare a dividend (or any other distribution)
on the Common Stock; (B) the Company shall declare a special
nonrecurring cash dividend on or a redemption of the Common
Stock; (C) the Company shall authorize the granting to all
holders of the Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of
any rights; (D) the approval of any stockholders of the
Company shall be required in connection with any
reclassification of the Common Stock, any consolidation or
merger to which the Company is a party, any sale or transfer
of all or substantially all of the assets of the Company, of
any compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; (E) the
Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Company; then, in each case, the Company shall cause to be
mailed to the Holder at its last addresses as it shall appear
upon the AIR Register of the Company, at least 20 calendar
days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the
Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is
expected to become effective or close, and the date as of
which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the
Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided, that the failure
to mail such notice or any defect therein or in the mailing
thereof shall not affect the validity of the corporate action
required to be specified in such notice. The Holder is
entitled to exercise this AIR during the 20-day period
commencing the date of such notice to the effective date of
the event triggering such notice.
5
f) Fundamental Transaction. If, at any time while this AIR is
outstanding, (A) the Company effects any merger or consolidation of the
Company with or into another Person, (B) the Company effects any sale
of all or substantially all of its assets in one or a series of related
transactions, (C) any tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of
Common Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (D) the Company effects any
reclassification of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property (in any such case, a
"Fundamental Transaction"), then, upon any subsequent exercise of this
AIR the Holder shall have the right to receive upon conversion or
exercise of the AIR Securities, as applicable, for each AIR Conversion
Share that would have been issuable upon such exercise and then
subsequent conversion absent such Fundamental Transaction, at the
option of the Holder, (a) upon conversion or exercise of the AIR
Securities, shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and
Alternate Consideration receivable upon or as a result of such
reorganization, reclassification, merger, consolidation or disposition
of assets by a Holder of the number of shares of Common Stock for which
the underlying AIR Securities are convertible immediately prior to such
event or (b) cash equal to the value of this AIR as determined in
accordance with the Black-Scholes option pricing formula (the
"Alternate Consideration"). For purposes of any such deemed conversion,
the determination of the AIR Conversion Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount
of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion
the AIR Conversion Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common Stock
are given any choice as to the securities, cash or property to be
received in a Fundamental Transaction, then the Holder shall be given
the same choice as to the Alternate Consideration it receives upon any
conversion or exercise of the AIR Securities underlying this AIR
following such Fundamental Transaction. To the extent necessary to
effectuate the foregoing provisions, any successor to the Company or
surviving entity in such Fundamental Transaction shall issue to the
Holder a new additional investment right consistent with the foregoing
provisions and evidencing the Holder's right to exercise such
additional investment right ultimately into Alternate Consideration.
The terms of any agreement pursuant to which a Fundamental Transaction
is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this paragraph (f)
and insuring that this AIR (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
6
g) Exempt Issuance. Notwithstanding the foregoing, no
adjustments, Alternate Consideration nor notices shall be made, paid or
issued under this Section 3 in respect of an Exempt Issuance other than
an Exempt Issuance that involves an MFN Transaction or a Variable Rate
Transaction for which the adjustment, Alternate Consideration and
notice provision Section 3 shall be applicable.
h) Voluntary Adjustment By Company. The Company may at any
time during the term of this AIR reduce the then current AIR Conversion
Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.
Section 4. Transfer of AIR.
a) Transferability. Subject to compliance with any applicable
securities laws and the conditions set forth in Sections 5(a) and 4(e)
hereof and to the provisions of Section 4.1 of the Purchase Agreement,
this AIR and all rights hereunder are transferable, in whole or in
part, upon surrender of this AIR at the principal office of the
Company, together with a written assignment of this AIR substantially
in the form attached hereto duly executed by the Holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new AIR or AIRs in the
name of the assignee or assignees and in the denomination or
denominations specified in such instrument of assignment, and shall
issue to the assignor a new AIR evidencing the portion of this AIR not
so assigned, and this AIR shall promptly be cancelled. An AIR, if
properly assigned, may be exercised by a new holder for the purchase of
AIR Securities without having a new AIR issued.
b) New AIRs. This AIR may be divided or combined with other
AIRs upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations
in which new AIRs are to be issued, signed by the Holder or its agent
or attorney. Subject to compliance with Section 4(a), as to any
transfer which may be involved in such division or combination, the
Company shall execute and deliver a new AIR or AIRs in exchange for the
AIR or AIRs to be divided or combined in accordance with such notice.
c) AIR Register. The Company shall register this AIR, upon
records to be maintained by the Company for that purpose (the "AIR
Register"), in the name of the record Holder hereof from time to time.
The Company may deem and treat the registered Holder of this AIR as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
7
d) Transfer Restrictions. If, at the time of the surrender of
this AIR in connection with any transfer of this AIR, the transfer of
this AIR shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this AIR,
as the case may be, furnish to the Company a written opinion of counsel
(which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that such
transfer may be made without registration under the Securities Act and
under applicable state securities or blue sky laws, (ii) that the
holder or transferee execute and deliver to the Company an investment
letter in form and substance acceptable to the Company and (iii) that
the transferee be an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) promulgated under the
Securities Act or a qualified institutional buyer as defined in Rule
144A(a) under the Securities Act.
Section 5. Miscellaneous.
a) Title to the Additional Investment Right. Prior to the
Termination Date and subject to compliance with applicable laws and
Section 4 of this AIR, this AIR and all rights hereunder are
transferable, in whole or in part, at the office or agency of the
Company by the Holder in person or by duly authorized attorney, upon
surrender of this AIR together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in
form and substance reasonably satisfactory to the Company.
b) No Rights as Shareholder Until Exercise. This AIR does not
entitle the Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the
surrender of this AIR and the payment of the aggregate principal, the
AIR Securities so purchased shall be and be deemed to be issued to such
Holder as the record owner of such shares as of the close of business
on the later of the date of such surrender or payment.
c) Loss, Theft, Destruction or Mutilation of AIR. The Company
covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of
this AIR or any certificate relating to the AIR Securities, and in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the AIR, shall not include
the posting of any bond), and upon surrender and cancellation of such
AIR or certificate, if mutilated, the Company will make and deliver a
new AIR or certificate of like tenor and dated as of such cancellation,
in lieu of such AIR or certificate.
d) Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal
holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a Saturday, Sunday or legal holiday.
e) Authorized Shares.
8
The Company covenants that during the period the AIR
is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide
for the issuance of the shares of Common Stock issuable upon
conversion and exercise, as applicable, of the AIR Securities.
The Company further covenants that its issuance of this AIR
shall constitute full authority to its officers who are
charged with the duty of executing certificates to execute and
issue the necessary certificates for the AIR Securities upon
the exercise of the purchase rights under this AIR. The
Company will take all such reasonable action as may be
necessary to assure that such AIR Securities and AIR
Conversion Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any
requirements of the Trading Market upon which the Common Stock
may be listed.
Except and to the extent as waived or consented to by
the Holder, the Company shall not by any action, including,
without limitation, amending its certificate of incorporation
or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of
this AIR or the AIR Securities, but will at all times in good
faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this AIR and
the AIR Securities against impairment. Without limiting the
generality of the foregoing, the Company will (a) take all
such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and
nonassessable AIR Securities upon the exercise of this AIR and
AIR Conversion Shares upon conversion and exercise of the AIR
Securities, and (b) use commercially reasonable efforts to
obtain all such authorizations, exemptions or consents from
any public regulatory body having jurisdiction thereof as may
be necessary to enable the Company to perform its obligations
under this AIR and the AIR Securities.
Before taking any action which would result in an
adjustment in the AIR Securities for which this AIR is
exercisable or in the AIR Conversion Price, the Company shall
obtain all such authorizations or exemptions thereof, or
consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
f) Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this AIR shall be
determined in accordance with the provisions of the Purchase Agreement.
g) Restrictions. The Holder acknowledges that the AIR
Securities acquired upon the exercise of this AIR, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
h) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Xxxxxx's
rights, powers or remedies, notwithstanding the fact that all rights
hereunder terminate on the Termination Date. If the Company willfully
and knowingly fails to comply with any provision of this AIR, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
9
i) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement.
j) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this AIR or
purchase AIR Securities, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
k) Remedies. Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this AIR. The
Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this AIR and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
l) Successors and Assigns. Subject to applicable securities
laws, this AIR and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this AIR are intended to be for the benefit of all
Holders from time to time of this AIR and shall be enforceable by any
such Holder or holder of AIR Securities.
m) Amendment. This AIR may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
n) Severability. Wherever possible, each provision of this AIR
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this AIR shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this AIR.
o) Headings. The headings used in this AIR are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this AIR.
********************
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IN WITNESS WHEREOF, the Company has caused this AIR to be
executed by its officer thereunto duly authorized.
Dated: November 10, 2004
GENEREX BIOTECHNOLOGY CORPORATION
By: _____________________________
Name:
Title:
11
NOTICE OF EXERCISE
To: Generex Biotechnology Corporation
(1) The undersigned hereby elects to purchase $________ Principal
Amount of AIR Debenture and Warrants to purchase _____ shares of Common Stock of
Generex Biotechnology Corporation pursuant to the terms of the attached AIR and
tenders herewith payment of the principal in full, together with all applicable
transfer taxes, if any.
(2) Payment shall take the form of (check applicable box) in lawful
money of the United States; or
(3) Please issue a certificate or certificates representing said AIR
Securities in the name of the undersigned or in such other name as is specified
below:
_________________________________________________
The AIR Securities shall be delivered to the following:
_________________________________________________
_________________________________________________
_________________________________________________
(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: ______________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________
Name of Authorized Signatory: __________________________________________________
Title of Authorized Signatory: _________________________________________________
Date: __________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing AIR and all rights evidenced thereby
are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature: ___________________________
Holder's Address: ___________________________
___________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the AIR, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing AIR.
