EXHIBIT 4.4
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES 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 SECURED
BY SUCH SECURITIES.
GENEREX BIOTECHNOLOGY CORPORATION
ADDITIONAL INVESTMENT RIGHT
Date of Original Issuance: July 12, 2004
Generex Biotechnology Corporation, a Delaware corporation (the
"COMPANY"), hereby certifies that, for value received, [ ] or its registered
assigns (the "HOLDER"), is entitled to purchase from the Company up to a total
number Units (as defined in Section 1) as equals the quotient obtained by
dividing (a) $[ ] by (b) the Exercise Price (as defined in Section 1). This
Additional Investment Right ("ADDITIONAL INVESTMENT RIGHT") may be exercised
from time to time and at any time in whole or in part prior to the Expiration
Date and is subject to the terms and conditions set forth below.
1. Definitions. As used in this Additional Investment Right, the
following terms shall have the respective definitions set forth in this Section.
Capitalized terms that are used and not defined in this Additional Investment
Right that are defined in the Purchase Agreement (as defined below) shall have
the respective definitions set forth in the Purchase Agreement.
(a) "BUSINESS DAY" means any day except Saturday, Sunday and
any day which is a federal legal holiday in the United States or a day on which
banking institutions in the State of New York are authorized or required by law
or other government action to close.
(b) "CLOSING PRICE" means on any particular date: (a) the
closing sales price per share of Common Stock on such date on any of the New
York Stock Exchange, American Stock Exchange, NASDAQ National Market or NASDAQ
SmallCap Market on which the Common Stock is then listed or quoted (as reported
by Bloomberg L.P. for regular session trading on such day), or if there is no
such price on such date, then the closing sales price on such trading markets on
the date nearest preceding such date (as reported by Bloomberg L.P. for the
closing sales price for regular session trading on such day), or (b) if the
shares of Common Stock are not then listed or quoted on any of the New York
Stock Exchange, American Stock Exchange, NASDAQ National Market or NASDAQ
SmallCap Market, the closing sales price for a share of Common Stock on the OTC
Bulletin Board (as reported by Bloomberg L.P. for 5:00 P.M. (New York time), or
(c) if the shares of Common Stock are not then reported by the OTC Bulletin
Board or the National Quotation Bureau Incorporated (or similar organization or
agency succeeding to its functions of reporting prices), then the average of the
"Pink Sheet" quotes for the relevant conversion period, as determined in good
faith by the Holder, or (d) if the shares of Common Stock are not then publicly
traded the fair market value of a share of Common Stock as determined by an
appraiser selected in good faith by the Holders of this Additional Investment
Right.
(c) "COMMON STOCK" means the common stock of the Company,
$.001 par value per share, and any securities into which such common stock may
be hereafter reclassified.
(d) "EXPIRATION DATE" means the 120th Trading Day after the
Effective Date for the initial Registration Statement.
(e) "EXERCISE PRICE" means $1.22; provided, that if the
Company's auditors issue a report containing a "going concern qualification"
within the Company's Annual Report on Form 10-K for the Company's fiscal year
ended July 31, 2004, then the Exercise Price shall equal the lesser of (i) $1.22
and (ii) the greater of (x) the average Closing Price for the five Trading Days
immediately after public announcement of such report and (y) 70% of the Per Unit
Purchase Price (as defined under the Purchase Agreement).
(f) "EXERCISE SHARES" means the shares of Common Stock
issuable upon exercise of this Additional Investment Right.
(g) "EXERCISE WARRANT" means the Common Stock Purchase
Warrant, in the form of Exhibit A, pursuant to which, upon each delivery of an
Exercise Notice hereunder, the Holder will have the right to acquire Warrant
Shares in such number as described in Section 5(a).
(h) "PURCHASE AGREEMENT" means the Securities Purchase
Agreement, dated June 23, 2004, to which the Company and the original Holder are
parties.
(i) "TRADING DAY" means (i) a day on which the Common Stock is
traded on a Trading Market (other than the OTC Bulletin Board), or (ii) if the
Common Stock is not listed on a Trading Market, a day on which the Common Stock
is traded in the over-the-counter market, as reported by the OTC Bulletin Board,
or (iii) if the Common Stock is not quoted on the OTC Bulletin Board, a day on
which the Common Stock is quoted in the over-the-counter market as reported by
the National Quotation Bureau Incorporated (or any similar organization or
agency succeeding to its functions of reporting prices); provided, that in the
event that the Common Stock is not listed or quoted as set forth in (i), (ii)
and (iii) hereof, then Trading Day shall mean a Business Day.
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(j) "UNIT" means (i) one Exercise Share; and (ii) the right to
purchase Warrant Shares under the Exercise Warrant equal to eighty (80) percent
of an Exercise Share.
(k) "WARRANT SHARES" means the shares of Common Stock issuable
upon exercise of the Exercise Warrants.
2. Registration of Additional Investment Right. The Company shall
register this Additional Investment Right, upon records to be maintained by the
Company for that purpose (the "ADDITIONAL INVESTMENT RIGHT REGISTER"), in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Additional Investment Right 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.
3. Registration of Transfers. The Company shall register the transfer
of any portion of this Additional Investment Right in the Additional Investment
Right Register, upon surrender of this Additional Investment Right, with the
Form of Assignment attached hereto duly completed and signed, to the Company at
its address specified herein. Upon any such registration or transfer, a new
Additional Investment Right to purchase Common Stock, in substantially the form
of this Additional Investment Right (any such new Additional Investment Right, a
"NEW ADDITIONAL INVESTMENT RIGHT"), evidencing the portion of this Additional
Investment Right so transferred shall be issued to the transferee and a New
Additional Investment Right evidencing the remaining portion of this Additional
Investment Right not so transferred, if any, shall be issued to the transferring
Holder. The acceptance of the New Additional Investment Right by the transferee
thereof shall be deemed the acceptance by such transferee of all of the rights
and obligations of a holder of an Additional Investment Right.
4. Exercise and Duration of Additional Investment Rights. Subject to
the terms and conditions hereof, this Additional Investment Right shall be
exercisable by the registered Holder at any time and from time to time on or
after the date hereof to and including 6:30 p.m. New York City time, on the
Expiration Date. At 6:30 p.m., New York City time on the Expiration Date, the
portion of this Additional Investment Right not exercised prior thereto shall be
and become void and of no value. The Company may not call or redeem any portion
of this Additional Investment Right without the consent of the Holder.
5. Delivery of Units.
(a) To acquire Units under this Additional Investment Right,
the Holder shall not be required to physically surrender this Additional
Investment Right unless the aggregate Units then represented by this Additional
Investment Right is being exercised. Upon delivery of a written notice, in the
form of the Exercise Notice attached hereto (the "EXERCISE NOTICE") to the
Company (together with the Additional Investment Right Exercise Log attached
thereto (the "ADDITIONAL INVESTMENT RIGHT EXERCISE LOG")) at its address for
notice set forth herein and upon payment of an amount equal to the Exercise
Price multiplied by the number of Units that the Holder intends to purchase
hereunder, the Company shall promptly (but in no event later than three Trading
Days after the Date of Exercise) issue and deliver to the Holder, (1) a
certificate representing the number of Exercise Shares to which such exercise
pertains (the dollar amount of the exercise at issue divided by the Exercise
Price), which, unless otherwise required by the Purchase Agreement, shall be
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free of restrictive legends, and (2) Exercise Warrants in such number as would
give the Holder the right to acquire a number of Warrant Shares equal to eighty
(80) percent of the number of Exercise Shares issuable in respect of such
Exercise Notice in accordance with clause (1) of this sentence. The Company
shall, upon request of the Holder and subsequent to the date on which a
registration statement covering the resale of the Exercise Shares has been
declared effective by the Securities and Exchange Commission, use commercially
reasonable efforts to deliver the Exercise Shares hereunder electronically
through the Depository Trust Corporation or another established clearing
corporation performing similar functions, if available, provided, that, the
Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Exercise Shares electronically through the
Depository Trust Corporation. A "DATE OF EXERCISE" means the date on which the
Holder shall have delivered to Company: (i) the Exercise Notice (with the
Additional Investment Right Exercise Log attached to it), appropriately
completed and duly signed and (ii) the Exercise Price for the number of Units so
indicated by the Holder to be purchased.
(b) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Units in the manner required
pursuant to Section 5(a), then the Holder will have the right to rescind such
exercise.
(c) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Units in the manner required
pursuant to Section 5(a), and if after such third Trading Day and prior to the
receipt of such Units, the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the Exercise Shares which the Holder anticipated receiving upon such
exercise (a "BUY-IN"), then the Company shall (1) pay in cash to the Holder the
amount by which (x) the Holder's total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased exceeds (y) the
amount obtained by multiplying (A) the number of Exercise Shares that the
Company was required to deliver to the Holder in connection with the exercise at
issue by (B) the closing bid price of the Common Stock at the time of the
obligation giving rise to such purchase obligation and (2) at the option of the
Holder, either reinstate the portion of the Additional Investment Right and
equivalent number of Units for which such exercise was not honored or deliver to
the Holder the number of Exercise Warrants that would have been issued had the
Company timely complied with its exercise and delivery obligations hereunder.
The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In.
(d) Provided that the Holder has satisfied its obligations
hereunder, the Company's obligations to issue and deliver Units in accordance
with the terms hereof are absolute and unconditional, irrespective of any action
or inaction by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any violation or alleged violation of law by the
Holder or any other Person, and irrespective of any other circumstance which
might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Units. Nothing herein shall limit a Holder's right to
pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company's failure to timely deliver
certificates representing Exercise Shares upon exercise of the Additional
Investment Right as required pursuant to the terms hereof.
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6. Charges, Taxes and Expenses. Issuance and delivery of Units
(including Exercise Shares) upon exercise of this Additional Investment Right
shall be made without charge to the Holder for any issue or transfer tax,
withholding tax, transfer agent fee or other incidental tax or expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificates for Exercise Shares or Exercise Warrants
in a name other than that of the Holder. The Holder shall be responsible for all
other tax liability that may arise as a result of holding or transferring this
Additional Investment Right or receiving Units upon exercise hereof.
7. Replacement of Additional Investment Right. If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Additional
Investment Right, a New Additional Investment Right, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity (which shall not include a
surety bond), if requested. Applicants for a New Additional Investment Right
under such circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable third-party costs as
the Company may prescribe. If a New Additional Investment Right is requested as
a result of a mutilation of this Additional Investment Right, then the Holder
shall deliver such mutilated Additional Investment Right to the Company as a
condition precedent to the Company's obligation to issue the New Additional
Investment Right.
8. Reservation of Shares. The Company covenants that it will at all
times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Units upon exercise of this Additional Investment Right as
herein provided, the number of Exercise Shares which are then issuable and
deliverable upon the exercise of this entire Additional Investment Right and the
number of Warrant Shares that are issuable under any Exercise Warrants, free
from preemptive rights or any other contingent purchase rights of persons other
than the Holder (taking into account the adjustments and restrictions of Section
9). The Company covenants that all Exercise Shares and Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable.
9. Certain Adjustments. The Exercise Price and number of Units issuable
upon exercise of this Additional Investment Right are subject to adjustment from
time to time as set forth in this Section 9.
(a) Stock Dividends and Splits. If the Company, at any time
while this Additional Investment Right is outstanding, (i) pays a stock dividend
on its Common Stock or otherwise makes a distribution on any class of capital
stock that is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii) combines
outstanding shares of Common Stock into a smaller number of shares, then in each
5
such case the Exercise Price shall be adjusted to equal the product obtained by
multiplying the Exercise Price by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately before such event and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made pursuant to clause
(i) of this paragraph shall become effective immediately after the record date
for the determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such
subdivision or combination. If any event requiring an adjustment under this
paragraph occurs during the period that an Exercise Price is calculated
hereunder, then the calculation of such Exercise Price shall be adjusted
appropriately to reflect such event.
(b) Fundamental Transactions. If, at any time while this
Additional Investment Right is outstanding, (1) the Company effects any merger
or consolidation of the Company with or into another Person, (2) the Company
effects any sale of all or substantially all of its assets in one or a series of
related transactions, (3) 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 (4) 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 the Holder shall have the
right thereafter to receive, upon exercise of this Additional Investment Right,
the same amount and kind of securities, cash or property as it would have been
entitled to receive upon the occurrence of such Fundamental Transaction if it
had been, immediately prior to such Fundamental Transaction, the holder of the
number of Exercise Shares then issuable upon exercise in full of this Additional
Investment Right and the number of Warrant Shares then issuable upon exercise in
full of the Exercise Warrants issuable hereunder (the "ALTERNATE
CONSIDERATION"). For purposes of any such exercise, the determination of the
Exercise 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 Exercise 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 exercise of this Additional Investment Right following such
Fundamental Transaction. At the Holder's option and request, any successor to
the Company or surviving entity in such Fundamental Transaction shall, either
(1) issue to the Holder a new Additional Investment Right substantially in the
form of this Additional Investment Right and consistent with the foregoing
provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof, or (2)
purchase the Additional Investment Right from the Holder for a purchase price,
payable in cash within five Trading Days after such request (or, if later, on
the effective date of the Fundamental Transaction), equal to the Black Scholes
value of the remaining unexercised portion of this Additional Investment Right
on the date of such request. 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
(c) and insuring that the Additional Investment Right (or any such replacement
security) will be similarly adjusted upon any subsequent transaction analogous
to a Fundamental Transaction.
6
(c) Number of Units. Simultaneously with any adjustment to the
Exercise Price pursuant to paragraph (a) of this Section, the number of Units
that may be purchased upon exercise of this Additional Investment Right shall be
increased or decreased proportionately, so that after such adjustment the
aggregate Exercise Price payable hereunder for the adjusted number of Units
shall be the same as the aggregate Exercise Price in effect immediately prior to
such adjustment.
(d) Calculations. All calculations under this Section 9 shall
be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of Common
Stock.
(e) Notice of Adjustments. Upon the occurrence of each
adjustment pursuant to this Section 9, the Company at its expense will promptly
compute such adjustment in accordance with the terms of this Additional
Investment Right and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or type
of Units or other securities issuable upon exercise of this Additional
Investment Right (as applicable), describing the transactions giving rise to
such adjustments and showing in detail the facts upon which such adjustment is
based. Upon written request, the Company will promptly deliver a copy of each
such certificate to the Holder and to the Company's Transfer Agent.
(f) Notice of Corporate Events. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including without limitation any granting of rights
or warrants to subscribe for or purchase any capital stock of the Company or any
Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating
or solicits stockholder approval for any Fundamental Transaction or (iii)
authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then the Company shall deliver to the Holder a notice describing
the material terms and conditions of such transaction, at least 20 calendar days
prior to the applicable record or effective date on which a Person would need to
hold Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order
to insure that the Holder is given the practical opportunity to exercise this
Additional Investment Right prior to such time so as to participate in or vote
with respect to such transaction; provided, however, that the failure to deliver
such notice or any defect therein shall not affect the validity of the corporate
action required to be described in such notice.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price
in immediately available funds or certified or official bank check or checks.
11. Limitation on Exercise. Notwithstanding anything to the contrary
contained herein, the number of Exercise Shares and Warrant Shares that may be
acquired by the Holder upon any exercise of this Additional Investment Right (or
otherwise in respect hereof) shall be limited to the extent necessary to insure
that, following such exercise (or other issuance), the total number of shares of
7
Common Stock then beneficially owned by such Holder and its Affiliates and any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 9.999% of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon such
exercise). For such purposes, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. This provision shall not restrict the number of shares
of Common Stock which a Holder may receive or beneficially own in order to
determine the amount of securities or other consideration that such Holder may
receive in the event of a Fundamental Transaction as contemplated in Section 9
of this Additional Investment Right. This restriction may not be waived.
12. No Fractional Shares. No fractional shares of Units will be issued
in connection with any exercise of this Additional Investment Right. In lieu of
any fractional shares which would, otherwise be issuable, the Company shall pay
cash equal to the product of such fraction multiplied by the closing price of
one Share as reported on the over-the-counter market, as reported by the OTC
Bulletin Board on the date of exercise.
13. Notices. Any and all notices or other communications or deliveries
hereunder (including, without limitation, any Exercise Notice) shall be in
writing and shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The addresses for such communications shall be:
If to the Company: Generex Biotechnology Corporation
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy (other than as to Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
Exercise Notices) to: 0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Xxxxxxx
Xxxxxxxxx: (000) 000-0000
If to the Holder: To the address or facsimile number
appearing on the Warrant Register
or such other address or facsimile
number as the Holder may provide to
the Company in accordance with this
Section.
8
14. Additional Investment Right Agent. The Company shall serve as
Additional Investment Right agent under this Additional Investment Right. Upon
30 days' notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged or any
corporation resulting from any consolidation to which the Company or any new
warrant agent shall be a party or any corporation to which the Company or any
new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this
Additional Investment Right without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Additional Investment Right Register.
15. Miscellaneous.
(a) This Additional Investment Right shall be binding on and
inure to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Additional
Investment Right shall be construed to give to any Person other than the Company
and the Holder any legal or equitable right, remedy or cause of action under
this Additional Investment Right. This Additional Investment Right may be
amended only in writing signed by the Company and the Holder and their
successors and assigns.
(b) All questions concerning the construction, validity,
enforcement and interpretation of this Additional Investment Right shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of this Additional Investment Right and
the transactions herein contemplated ("PROCEEDINGS") (whether brought against a
party hereto or its respective Affiliates, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New
York, Borough of Manhattan (the "NEW YORK COURTS"). Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Additional
Investment Right and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Additional Investment Right or the
transactions contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions of this Additional Investment Right, then the prevailing
party in such Proceeding shall be reimbursed by the other party for its
attorney's fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
9
(c) The headings herein are for convenience only, do not
constitute a part of this Additional Investment Right and shall not be deemed to
limit or affect any of the provisions hereof.
(d) In case any one or more of the provisions of this
Additional Investment Right shall be invalid or unenforceable in any respect,
the validity and enforceability of the remaining terms and provisions of this
Additional Investment Right shall not in any way be affected or impaired thereby
and the parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Additional
Investment Right.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be duly executed by its authorized officer as of the date first
indicated above.
GENEREX BIOTECHNOLOGY CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice-President,
General Counsel
11
EXERCISE NOTICE
To [ ]:
The undersigned hereby irrevocably elects to purchase _____________
Units of Generex Biotechnology Corporation, pursuant to the Additional
Investment Right, originally issued [ ], 2004 (the "ADDITIONAL INVESTMENT
RIGHT"), and the Holder encloses herewith $________ in cash, certified or
official bank check or checks or other immediately available funds, which sum
represents the aggregate Exercise Price (as defined in the Additional Investment
Right) for the number of Units to which this Exercise Notice relates, together
with any applicable taxes payable by the undersigned pursuant to the Additional
Investment Right.
By its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that in giving effect to the exercise evidenced hereby
the Holder will not beneficially own in excess of the number of shares of Common
Stock (determined in accordance with Section 13(d) of the Securities Exchange
Act of 1934) permitted to be owned under Section 11 of this Additional
Investment Right to which this notice relates.
The undersigned requests that certificates for the Exercise Shares
issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
The undersigned requests that the Exercise Warrants issuable upon this
exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
12
Additional Investment Right Exercise Log
----------------------------- ----------------------------- ---------------------------------- ---------------------
Date Number of Units Available Number of Units Exercised Number of Units
to be Exercised Remaining to be
Exercised
----------------------------- ----------------------------- ---------------------------------- ---------------------
----------------------------- ----------------------------- ---------------------------------- ---------------------
13
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Additional Investment Right]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Additional Investment Right to purchase ____________ Units of Generex
Biotechnology Corporation to which the within Additional Investment Right
relates and appoints ________________ attorney to transfer said right on the
books of the Company with full power of substitution in the premises.
Dated: _______________, ____
_______________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Additional
Investment Right)
_______________________________________
Address of Transferee
_______________________________________
_______________________________________
In the presence of:
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14
EXHIBIT A
15
