EXHIBIT 10
ASSISTANCE AGREEMENT
THIS ASSISTANCE AGREEMENT is made as of the 30th day of March, 2005, by
and between GENEREX BIOTECHNOLOGY CORPORATION ("Generex"), a Delaware
Corporation and XXXXXX XXXXXXX XXXXXX & XXXXXXX, LLC ("Xxxxxx Xxxxxxx"), a
Pennsylvania limited liability company.
RECITALS
1. In accordance with a Securities Purchase Agreement executed by
Generex as of November 10, 2004, Generex issued 6% Secured Convertible
Debentures (the "Debentures").
2. Xxxxxx Xxxxxxx represented Generex in connection with the Debentures
and related steps such as Generex shareholder approval of the Debentures
transaction and registration of Generex Common Stock on the NASDAQ's exchange
and with the Security and Exchange Commission (SEC).
3. Under the Debentures, Generex is required to make certain interest
and monthly redemption payments in cash. However, under the Debentures, Generex
could make such payments in the form of Generex Common Stock provided that
certain conditions were met at the time the payments are due, as more fully
described in the Debentures.
4. One of the conditions required to be fulfilled before Generex could
make such payments in its Common Stock is shareholder approval of the Debentures
transaction, as more fully described in the Debentures.
5. The Generex shareholders meeting for that purpose was originally
planned for March 24, 2005 but was postponed to April 5, 2005 because of a
problem that developed with the filing with the SEC of the proxy statement with
respect to the meeting.
6. The later date of the Shareholders Meeting on April 5th has the
effect that Generex is not entitled to make payments for interest due on March
31, 2005 and the Monthly Redemption Amount due on April 1, 2005 in the form of
its Common Stock and instead is required to make cash payments on March 31, 2005
and April 1, 2005.
7. Generex requested assistance from Xxxxxx Xxxxxxx in making cash
payments due on March 31, 2005 and April 1, 2005 by Xxxxxx Xxxxxxx advancing
funds for that purpose which would later be repaid by Generex to Xxxxxx Xxxxxxx.
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8. The parties have agreed that Xxxxxx Xxxxxxx will advance up to
$325,179.48 to make the Debentures interest payment due on March 31, 2005 and
the Monthly Redemption Amount payment due on April 1, 2005 and Generex will
repay Xxxxxx Xxxxxxx for those advances without interest as provided in this
Agreement. Generex has also agreed to provide Xxxxxx Xxxxxxx with a release as
described in this Agreement.
9. This Agreement (including the attached Release) was agreed upon
after arms length discussions between the General Counsel of Generex and the
General Counsel of Xxxxxx Xxxxxxx. Although Xxxxxx Xxxxxxx has and does
represent Generex with respect to the Debentures and related matters, as well as
other matters, it did not represent Generex with respect to this Agreement and
Release and gave no counsel or advice or made any representation to Generex or
its General Counsel with respect to this Agreement and Release. Generex and its
General Counsel were free to seek advice relating to this Agreement or Release
and the circumstances leading to this Agreement and Release (as well as any
other matters) from any other counsel they chose.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Xxxxxx Xxxxxxx and Generex, each intending to be legally bound, agree
as follows:
1. RECITALS. The parties agree to the Recitals which are part of this
Agreement.
2. ADVANCES AND THEIR REPAYMENT. Xxxxxx Xxxxxxx will provide to Generex
one or more advances, up to an aggregate amount of $325,179.48, for the purpose
of assisting Generex in satisfying its obligations to pay interest due on the
Debentures on March 31, 2005 and to pay the Monthly Redemption Amount (as
defined in the Debentures) due on April 1, 2005. Such advances by Xxxxxx Xxxxxxx
shall be made as provided in paragraph 4 of this Agreement. Generex agrees to
repay the aggregate amount of such advances without interest in three equal
installments on October 1, 2005, on November 1, 2005 and on December 1, 2005.
Upon failure of Generex to pay any such installment when due, all amounts owed
to Xxxxxx Xxxxxxx by Generex shall thereafter be payable on demand, and interest
on such unpaid amounts will accrue at the rate of 8% per annum.
3. RELEASE. Simultaneously with the delivery of this Agreement, Generex
shall deliver to Xxxxxx Xxxxxxx its executed Release in the form set forth in
Exhibit "A" to this Agreement.
4. MECHANICS OF ADVANCES. Xxxxxx Xxxxxxx shall wire transfer the
advances hereunder in the aggregate amount of $325,179.48 to Generex's account
at X.X. Xxxxxx Chase in accordance with wire transfer instructions provided by
Generex. Generex has represented to Xxxxxx Xxxxxxx that the debenture holders
are each entitled to payment of $81,294.87 for payment of interest due on March
31, 2005 and a Monthly Redemption Amount due on April 1, 2005 and that there are
four indenture holders identified as follows: Cranshire Capital, L.P.; Iroquois
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Capital L.P.; Omicron Master Trust; and Smithfield Fiduciary, LLC. Generex
represents and agrees that it will immediately wire transfer the proceeds of the
advances from Xxxxxx Xxxxxxx from its account at X.X. Xxxxxx Chase to the
debenture holders and in the amounts identified in the preceding sentence for
payment of the March 31, 2005 interest and the April 1, 2005 Monthly Redemption
Amount for each such debenture holder. By the close of business on Monday, April
4, 2005 Generex will provide to Xxxxxx Xxxxxxx a certificate from and executed
by its General Counsel and its Chief Financial Officer certifying and
representing that the proceeds of the advances hereunder by Xxxxxx Xxxxxxx have
been remitted to the four debenture holders in accordance with this paragraph 4.
5. NO THIRD PARTY BENEFICIARY. There are no third party beneficiaries
of this Agreement or the Release delivered pursuant to this Agreement. Without
limiting the foregoing, the four debenture holders identified in paragraph 4
hereof are not intended to be and are not third party beneficiaries of this
Agreement or the Release. No party other than Xxxxxx Xxxxxxx and Generex shall
have any rights under or pursuant to this Agreement and the Release.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Generex, its successors and assigns, and shall bind and
inure to the benefit of Xxxxxx Xxxxxxx, its successors and assigns.
7. ENTIRE AGREEMENT. This Agreement, including Exhibit A, constitutes
the entire Agreement of the Parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous communications, agreements,
representations and understandings between Xxxxxx Xxxxxxx and Generex. This
Agreement including Exhibit A may not be changed except in a writing signed by
the parties hereto.
8. GOVERNING LAW. This Agreement and the attached Exhibit A shall in
all respects be interpreted, enforced and governed by and under the laws of the
Commonwealth of Pennsylvania, except for its choice of law rules.
9. NO ADMISSION OF LIABILITY. This Agreement and Release do not
constitute an admission of liability by either Party to this Agreement.
10. RELIANCE ON COUNSEL. Each party has relied upon its own General
Counsel, and not on the other party, in entering into this Agreement and
Release.
11. COUNTERPARTS, FACSIMILE SIGNATURES. This Agreement and Release may
be executed in original counterparts by facsimile or email. If so executed, the
parties will provide executed hard copies in a reasonable time thereafter.
12. TITLES. The titles to paragraphs in this Agreement are for
convenience only and shall not be considered or used in the interpretation of
the Agreement.
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IN WITNESS WHEREOF, Xxxxxx Xxxxxxx and Generex have entered into this
Agreement as of the date first above written.
ATTEST: XXXXXX XXXXXXX XXXXXX & XXXXXXX, LLC
/s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxx X. XxXxxxxx, Xx. (SEAL)
------------------------- --------------------------------
Member
Approved: /s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------
General Counsel
ATTEST: GENEREX BIOTECHNOLOGY CORPORATION
/s/ Xxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx (SEAL)
------------------------- --------------------------------
Secretary Xxxx Xxxxxxx, Chief Executive Officer
Approved: /s/ Xxxx Xxxxxxxx (SEAL)
--------------------------
Xxxx Xxxxxxxx, General Counsel
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EXHIBIT "A"
RELEASE
FOR AND IN CONSIDERATION of the advances and other consideration
provided for in the Assistance Agreement between XXXXXX XXXXXXX XXXXXX &
XXXXXXX, LLC and GENEREX BIOTECHNOLOGY CORPORATION, to which this Release is
attached as Exhibit A (the "Agreement") executed contemporaneously herewith,
Generex Biotechnology Corporation, ("Generex"), for itself, and its
predecessors, successors and assigns (collectively and separately referred to
hereinafter as "Releasors"), does hereby finally and forever waive, release and
discharge Xxxx X. Xxxxxx, Esq., Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC, ("Xxxxxx
Xxxxxxx"), its members, officers, directors, Executive Committee, management
members and personnel, Executive Director, General Counsel, and their heirs,
executors, administrators, predecessors, successors and assigns (collectively
and separately referred to hereinafter as "Releasees") of and from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
damages, actions, causes of action, suits, rights, demands, losses, debts,
covenants, contracts, judgments, fees (specifically including attorneys' fees),
costs and expenses, both known and unknown, whether herein named or referred to
or not (hereinafter collectively referred to as "Claims") of every kind and
nature whatsoever, civil and criminal, in law and in equity, known and unknown,
foreseen and unforeseen, in contract, in tort, and under any statute, rule,
regulation, decision, order, or ordinance enacted, promulgated, or issued by any
local, state, or federal authority, in connection with, related to, based upon
or growing out of any act, omission, transaction, occurrence or circumstance
existing or occurring before the date of this Release including, without
limitation, the Debentures described in the Agreement, the shareholders approval
provided for in the Debentures, the proxy for the shareholders meeting, the
registration of Generex Common Stock, the inability under the Debentures of
Generex to make the March 31, 2005 interest payments or the April 1, 2005
Monthly Redemption Amounts in the form of Common Stock as provided in the
Debentures and related documents and/or the inability under the Debentures of
Generex to make future payment of interest or payments of Monthly Redemption
Amounts in the form of Common Stock as a result of any act, omission,
transaction, occurrence or circumstance existing or occurring before the date of
this Release; provided, however, that Generex does not release any claim under
or arising out of nonperformance by Xxxxxx Xxxxxxx or Releasees of any of the
terms of the Agreement.
Generex understands and acknowledges that neither Xxxxxx Xxxxxxx nor
any other Releasee has admitted to or admits to any liability whatsoever.
Generex has relied upon its General Counsel in connection with agreeing to,
executing and delivering this Release and Xxxxxx Xxxxxxx has relied upon its
General Counsel in agreeing to and accepting this Release.
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If Generex or any Releasor commences any litigation or arbitration
against Xxxxxx Xxxxxxx or any Releasee on a claim which is held or adjudicated
to be barred by this Release, Generex and Releasors shall be obligated to pay
Xxxxxx Xxxxxxx or other Releasees reasonable attorney's fees and costs with
respect to defense of such claim.
This Release shall in all respects be interpreted, enforced and
governed by and under the laws of the Commonwealth of Pennsylvania, except for
its choice of law rules.
This Release may be executed and delivered in original counterparts by
facsimile or email. If so executed, Generex will provide to Xxxxxx Xxxxxxx an
executed hard copy in a reasonable time thereafter.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned, on behalf of Generex, sets their hand and seal as of March 30,
2005, as Generex's own free act and deed.
ATTEST: GENEREX BIOTECHNOLOGY CORPORATION
/s/ Xxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx (SEAL)
----------------------- -------------------------------------
Secretary Xxxx Xxxxxxx, Chief Executive Officer
Approved: /s/ Xxxx Xxxxxxxx (SEAL)
-------------------------------
Xxxx Xxxxxxxx, General Counsel
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