-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Vq2MuXzLamwhbH51vWUnT0TKANvsC2E00wrTDxPx9dTN77d3aYsZmSBIwQiRcH19 mZzKz/ix/8v7Lwp7vLQFLw== 0000950116-03-004509.txt : 20031114 0000950116-03-004509.hdr.sgml : 20031114 20031114110242 ACCESSION NUMBER: 0000950116-03-004509 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20031114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENEREX BIOTECHNOLOGY CORP CENTRAL INDEX KEY: 0001059784 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 820490211 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-110493 FILM NUMBER: 031001232 BUSINESS ADDRESS: STREET 1: 33 HARBOUR SQ STREET 2: STE 202 CITY: TORONTO ONTARIO CANADA STATE: A1 ZIP: M5J 2G2 BUSINESS PHONE: 4163642551 MAIL ADDRESS: STREET 1: 33 HARBOUR SQ STREET 2: STE 202 CITY: TORONTO ONTARIO CA STATE: A1 ZIP: M5J 2G2 S-3 1 s3.txt FORM S-3 REGISTRATION NO. 333- ========================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 GENEREX BIOTECHNOLOGY CORPORATION (Exact name of registrant as specified in its charter) Delaware 98-0178636 ------------- ------------- (State or other jurisdiction of (IRS Employer Identification No.) incorporation or organization) 33 HARBOUR SQUARE, SUITE 202 TORONTO, ONTARIO CANADA M5J 2G2 416/364-2551 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) Mark Fletcher, Esquire Executive Vice President and General Counsel 33 Harbor Square, Suite 202 Toronto, Ontario Canada M5J 2G2 416/364-2551 copies to: Gary A. Miller, Esquire Eckert Seamans Cherin & Mellott, LLC 1515 Market Street - 9th Floor Philadelphia, PA 19102 215/851-8472 (Name, address, including zip code, and telephone number, including area code, of agent for service) Approximate Date of Commencement of Proposed Sale to the Public: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_| If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X| If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. |_|
Calculation of Registration Fee Title of Each Proposed Maximum Proposed Maximum Class of Securities To Amount To Be Offering Price Per Aggregate Offering Amount of Be Registered* Registered Share (1) Price (1) Registration Fee -------------- ---------- --------- --------- ---------------- Common Stock, $.001 par value 2,989,974(2) $1.71(3) $5,112,855 $664.67 Common Stock $.001 par value 250,000(4) $1.71(3) $ 427,500 $55.57 Common Stock $.001 par value 620,000(5) $1.71(3) $1,060,200 $137.82 Totals 3,859,974 $6,600,555 $858.07 - ------------------------
* This registration statement also includes an indeterminate number of additional shares of common stock as may from time to time become issuable as a result of any stock split, stock dividend and other similar transactions; which shares are registered hereunder pursuant to Rule 416 under the Securities Act of 1933, as amended. (1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933, as amended. (2) These shares are outstanding shares being offered for resale by certain of our shareholders. (3) Based on the average of the high and low prices of our common stock reported on the NASDAQ SmallCap Market for November 11, 2003. (4) These shares are issuable upon the exercise of outstanding options to purchase shares of our common stock and are registered for resale. (5) These shares are issuable upon the exercise of warrants to purchase shares of our common stock and are registered for resale. WE HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL WE FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. Subject to completion, dated November 13, 2003 The information in this prospectus is not complete and may change. The selling shareholders may not sell these securities (except pursuant to a transaction exempt from the registration requirements of the Securities Act of 1933) until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. PROSPECTUS GENEREX BIOTECHNOLOGY CORPORATION 3,859,974 Shares of Common Stock We are registering 3,859,974 shares of our common stock for resale by the selling shareholders listed on pages 10-12. o 1,989,974 of these shares are currently outstanding; o 1,000,000 of these shares are to be issued to certain selling shareholders on January 31, 2004; o 250,000 of these shares are issuable upon exercise of outstanding options; and o 620,000 of these shares are issuable upon exercise of outstanding warrants. The prices at which the selling shareholders may sell shares of our common stock will be determined by the prevailing market price for such shares or in negotiated transactions. Our common stock is quoted on the NASDAQ SmallCap Market under the symbol "GNBT." The last sale price of our common stock on November 11, 2003, as reported by NASDAQ, was $1.71 per share. Investing in our common stock involves a high degree of risk. See "Risk Factors" beginning on page 2 to read about the factors you should consider before investing. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is November __, 2003
TABLE OF CONTENTS PROSPECTUS SUMMARY........................................................................................ 1 RISK FACTORS.............................................................................................. 2 NOTE ABOUT FORWARD-LOOKING STATEMENTS..................................................................... 8 AVAILABILITY OF ADDITIONAL INFORMATION.................................................................... 9 DILUTION.................................................................................................. 10 USE OF PROCEEDS........................................................................................... 10 SELLING SHAREHOLDERS...................................................................................... 10 PLAN OF DISTRIBUTION...................................................................................... 13 LEGAL MATTERS............................................................................................. 14 EXPERTS................................................................................................... 15
PROSPECTUS SUMMARY About Generex Generex Biotechnology Corporation is a Delaware corporation engaged in the research and development of injection-free methods for delivery of large molecule drugs. We are a development stage company. To date, we have focused most of our efforts and resources on a platform technology to orally administer large molecule drugs by absorption through the walls of the mouth cavity. The mouth cavity is also known as the "buccal" cavity. Large molecule drugs include proteins, hormones, peptides and vaccines. Large molecule drugs, such as synthetic insulin, are presently administered almost exclusively by injection. The initial product that we have been trying to develop is an oral insulin formulation for use in the treatment of diabetes. The formulation is sprayed into the mouth using our RapidMist(TM) device, a small and lightweight aerosol applicator that administers a metered dose for absorption. Absorption occurs through the mucous membranes in the buccal cavity. We have also pursued the application of our technology for the buccal delivery of pharmaceutical products in addition to insulin, such as the buccal delivery of morphine, fentanyl citrate and low molecular weight heparin. In August 2003, after the end of our most recent fiscal year, we acquired Antigen Express, Inc. (Antigen). Antigen is engaged in the research and development of technologies for the treatment of malignant, infectious, autoimmune and allergic diseases. Our principal offices are located at 33 Harbour Square, Suite 202, Toronto, Ontario, Canada M5J 2G2 and our telephone number is (416) 364-2551. About This Prospectus We are registering our common stock for resale by selling shareholders. The selling shareholders and the specific number of shares that they each may resell through this prospectus are listed on pages 10-12. The shares offered for resale by this prospectus include the following: o 2,989,974 shares of Common Stock; o 250,000 options to purchase shares of Common Stock; and o 620,000 warrants to purchase shares of Common Stock. We issued or became obligated to issue an aggregate of 2,839,974 of these shares of our common stock to certain selling shareholders in connection with an Agreement and Plan of Merger (the "Merger"), dated as of August 8, 2003, among Generex, Antigen Express, Inc. ("Antigen"), and AGEXP Acquisition, Inc., our wholly owned subsidiary, in exchange for the outstanding capital stock of Antigen. We issued to certain selling shareholders an additional 150,000 shares of our common stock pursuant to service agreements between Generex and such shareholders. We are obligated to sell to a certain selling shareholder an additional 250,000 shares of our common stock upon such selling shareholder's exercise of options to purchase such shares. Lastly, we issued to certain selling shareholders warrants to purchase an aggregate 620,000 shares of our common stock. This prospectus may only be used where it is legal to offer and sell the shares covered by this prospectus. We have not taken any action to register or obtain permission for this offering or the distribution of this prospectus in any country other than the United States. 1 Information on Outstanding Shares The number of shares outstanding before and after this offering are set forth below:
o Common stock outstanding before the offering................ 27,672,260 shares of Common Stock o Common stock to be outstanding after the offering........... 29,467,260 shares of Common Stock
The number set forth above for the shares of common stock outstanding before this offering is the number of shares outstanding on October 30, 2003. The number of shares of common stock outstanding after this offering is based on the number of shares outstanding before the offering plus 1,000,000 shares issuable to Antigen shareholders without condition on January 31, 2004, which are included in this registration statement but have not been issued, and 870,000 shares - the maximum number of shares issuable upon the exercise of options and warrants that may be resold pursuant to this prospectus. The numbers set forth above do not include 11,957,594 shares of our common stock that, as of the date of this prospectus, are issuable upon the exercise of outstanding options and warrants other than those covered by this prospectus. These additional options and warrants are exercisable at prices ranging from $1.00 to $25.15 per share, with a weighted average exercise price of $4.88 per share. The numbers set forth above also do not include shares of common stock that, as of the date of this prospectus, are issuable upon conversion of outstanding shares of our Series A Preferred Stock. RISK FACTORS Investment in our shares involves a high degree of risk. You should carefully consider the following discussion of risks as well as the other information in this prospectus before purchasing our stock. You should also consider the information in our other reports filed (and to be filed after the date of this prospectus) with the Securities and Exchange Commission before purchasing our stock. Each of these risk factors could adversely affect our business, prospects, operating results and financial condition, as well as adversely affect the value of an investment in our common stock. RISKS RELATED TO OUR FINANCIAL CONDITION We have a history of losses, and will incur additional losses. We are a development stage company with a limited history of operations, and do not expect ongoing revenues from operation in the immediately foreseeable future. To date, we have not been profitable and our accumulated net loss before preferred stock dividend was approximately $76,000,000 as of July 31, 2003. Our losses have resulted principally from costs incurred in research and development, including clinical trials, and from general and administrative costs associated with our operations. While we seek to attain profitability, we cannot be sure that we will ever achieve product and other revenue sufficient for us to attain this objective. Our product candidates are in research or early stages of pre-clinical and clinical development. We will need to conduct substantial additional research, development and clinical trials. We will also need to receive necessary regulatory clearances both in the United States and foreign countries and obtain meaningful patent protection for and establish freedom to commercialize each of our product candidates. We cannot be sure that we will obtain required regulatory approvals, or successfully develop, commercialize, manufacture and market any product candidates. We expect that these activities, together with future general and administrative activities, will result in significant expenses in the foreseeable future. 2 To progress in product development or marketing, we will need additional capital which may not be available to us. This may delay our progress in product development or market. We will require funds in excess of our existing cash resources: o to proceed under our joint venture with Elan, which requires us to fund 80.1% of initial product development costs; o to develop our buccal insulin product; o to develop new products based on our buccal delivery technology, including clinical testing relating to new products; o to develop or acquire other delivery technologies or other lines of business; o to establish and expand our manufacturing capabilities; o to finance general and administrative and research activities that are not related to specific products under development; and o To finance the research and development activities of Antigen, our new subsidiary. We have agreed to fund at least $2,000,000 of Antigen expenditures during the first two years from the acquisition. In the past, we have funded most of our development and other costs through equity financing. We anticipate that our existing capital resources will enable us to maintain currently planned operations through the next twelve months. However, this expectation is based on our current operating plan, which could change as a result of many factors, and we may need additional funding sooner than anticipated. To the extent operating and capital resources are insufficient to meet future requirements, we will have to raise additional funds to continue the development and commercialization of our products. Unforeseen problems, including materially negative developments in our joint venture with Elan, in our clinical trials or in general economic conditions could interfere with our ability to raise additional equity capital or materially adversely affect the terms upon which such funding is available. It is possible that we will be unable to obtain additional funding as and when we need it. If we were unable to obtain additional funding as and when needed, we could be forced to delay the progress of certain development efforts. Such a scenario poses risks. For example, our ability to bring a product to market and obtain revenues could be delayed, our competitors could develop products ahead of us, and/or we could be forced to relinquish rights to technologies, products or potential products. New equity financing could dilute current shareholders. If we raise funds through equity financing to meet the needs discussed above, it will have a dilutive effect on existing holders of our shares by reducing their percentage ownership. The shares may be sold at a time when the market price is low because we need the funds. This will dilute existing holders more than if our stock price was higher. In addition, equity financings normally involve shares sold at a discount to the current market price. Our research and development and marketing efforts are highly dependent at present on corporate collaborators and other third parties who may not devote sufficient time, resources and attention to our programs, which may limit our efforts to successfully develop and market potential products. 3 Because we have limited resources, we have sought to enter into collaboration agreements with other pharmaceutical companies that will assist us in developing, testing, obtaining governmental approval for and commercializing products using our platform technology. Any collaborator with whom we may enter into such collaboration agreements may not support fully our research and commercial interests since our program may compete for time, attention and resources with such collaborator's internal programs. Therefore, these collaborators may not commit sufficient resources to our program to move it forward effectively, or our program may not advance as rapidly as it might if we had retained complete control of all research, development, regulatory and commercialization decisions. RISKS RELATED TO OUR TECHNOLOGY Because our technologies and products are at an early stage of development, we cannot expect revenues in the foreseeable future. We have no products approved for commercial sale at the present time. To be profitable, we must successfully research, develop, obtain regulatory approval for, manufacture, introduce, market and distribute our products under development. We may not be successful in one or more of these stages of the development of our products, and/or any of the products we develop may not be commercially viable. While over 750 patients with diabetes have been dosed with our oral insulin formulation at approved facilities in seven countries, our clinical program has not reached a point where we are prepared to apply for regulatory approvals to market the product in any country. Until we have developed a commercially viable product which receives regulatory approval, we will not receive revenues from ongoing operations. We will not receive revenues from operations until we receive regulatory approval to sell our products. Many factors impact our ability to obtain approvals for commercially viable products. We have no products approved for commercial sale by drug regulatory authorities. We have begun the regulatory approval process for our oral insulin formulation, buccal morphine and fentanyl products. Pre-clinical and clinical trials of our products, and the manufacturing and marketing of our technology, are subject to extensive, costly and rigorous regulation by governmental authorities in the United States, Canada and other countries. The process of obtaining required regulatory approvals from the FDA and other regulatory authorities often takes many years, is expensive and can vary significantly based on the type, complexity and novelty of the product candidates. For these reasons, it is possible we will never receive approval for one or more product candidates. Delays in obtaining United States or foreign approvals for our products could result in substantial additional costs to us, and, therefore, could adversely affect our ability to compete with other companies. If regulatory approval is ultimately granted, the approval may place limitations on the intended use of the product we wish to commercialize, and may restrict the way in which we are permitted to market the product. Due to legal and factual uncertainties regarding the scope and protection afforded by patents and other proprietary rights, we may not have meaningful protection from competition. Our long-term success will substantially depend upon our ability to protect our proprietary technology from infringement, misappropriation, discovery and duplication and avoid infringing the proprietary rights of others. Our patent rights, and the patent rights of biotechnology and pharmaceutical companies in general, are highly uncertain and include complex legal and factual issues. Because of this, our pending patent applications may not be granted. These uncertainties also mean that any patents that we own or will obtain in the future could be subject to challenge, and even if not challenged, may not provide us with meaningful protection from competition. Due to our financial uncertainties, we may not possess the financial resources necessary to enforce our patents. Patents already issued to us or our pending applications may become subject to dispute, and any dispute could be resolved against us. 4 Because a substantial number of patents have been issued in the field of alternative drug delivery and because patent positions can be highly uncertain and frequently involve complex legal and factual questions, the breadth of claims obtained in any application or the enforceability of our patents cannot be predicted. Consequently, we do not know whether any of our pending or future patent applications will result in the issuance of patents or, to the extent patents have been issued or will be issued, whether these patents will be subject to further proceedings limiting their scope, will provide significant proprietary protection or competitive advantage, or will be circumvented or invalidated. Also because of these legal and factual uncertainties, and because pending patent applications are held in secrecy for varying periods in the US and other countries, even after reasonable investigation we may not know with certainty whether any products that we (or a licensee) may develop will infringe upon any patent or other intellectual property right of a third party. For example, we are aware of certain patents owned by third parties which such parties could attempt to use in the future in efforts to affect our freedom to practice some of the patents that we own or have applied for. Based upon the science and scope of these third party patents, we believe that the patents that we own or have applied for do not infringe any such third party patents, however, these uncertainties mean that we cannot know for certain whether we could successfully defend our position, if challenged. We may incur substantial costs if we are required to defend ourselves in patent suits brought by third parties. These legal actions could seek damages and seek to enjoin testing, manufacturing and marketing of the accused product or process. In addition to potential liability for significant damages, we could be required to obtain a license to continue to manufacture or market the accused product or process. RISKS RELATED TO MARKETING OF OUR POTENTIAL PRODUCTS We may not become, or stay, profitable even if our products are approved for sale. Even if we obtain regulatory approval to market our oral insulin product or any other product candidate, many factors may prevent the product from ever being sold in commercial quantities. Some of these factors are beyond our control, such as: o acceptance of the formulation by health care professionals and diabetic patients; o the availability, effectiveness and relative cost of alternative diabetes treatments that may be developed by competitors; and o the availability of third-party (i.e., insurer and governmental agency) reimbursements. We may not be able to compete with diabetes treatments now being developed and marketed, or which may be developed and marketed in the future by other companies. Our oral insulin product will compete with existing and new therapies for treating diabetes, including administration of insulin by injection. We are aware of a number of companies currently seeking to develop alternative means of delivering insulin, as well as new drugs intended to replace insulin therapy at least in part. In the longer term, we also face competition from companies that seek to develop cures for diabetes through techniques for correcting the genetic deficiencies that underlie diseases such as diabetes. We will have to depend upon others for marketing and distribution of our products, and we may be forced to enter into contracts limiting the benefits we may receive from, and the control we have over, our products. We intend to rely on collaborative arrangements with one or more other companies that possess strong marketing and distribution resources to perform these functions for us. We may not be able to enter into beneficial contracts, and we may be forced to enter into contracts for the marketing and distribution of our products that substantially limit the potential benefits to us from commercializing these products. In addition, we will not have the same control over marketing and distribution that we would have if we conducted these functions ourselves. 5 Numerous pharmaceutical, biotechnology and drug delivery companies, hospitals, research organizations, individual scientists and nonprofit organizations are engaged in the development of alternative drug delivery systems or new drug research and testing including oral delivery systems, intranasal delivery systems, transdermal systems, and colonic absorption systems. Many of these companies have greater research and development, experience, manufacturing, marketing, financial and managerial resources than we do. Accordingly, our competitors may succeed in developing competing technologies, obtaining FDA approval for products or gaining market acceptance more rapidly than we can. If government programs and insurance companies do not agree to pay for or reimburse patients for our products, we will not be successful. Sales of our potential products depend in part on the availability of reimbursement by third-party payors such as government health administration authorities, private health insurers and other organizations. Third-party payors often challenge the price and cost-effectiveness of medical products and services. FDA approval of health care products does not guarantee that these third party payors will pay for the products. Even if third party payors do accept our product, the amounts they pay may not be adequate to enable us to realize a profit. Legislation and regulations affecting the pricing of pharmaceuticals may change before our products are approved for marketing and any such changes could further limit reimbursement. RISKS RELATING TO POTENTIAL LIABILITIES We face significant product liability risks, which may have a negative effect on our financial condition. The administration of drugs to humans, whether in clinical trials or commercially, can result in product liability claims whether or not the drugs are actually at fault for causing an injury. Furthermore, our products may cause, or may appear to cause, serious adverse side effects (including death) or potentially dangerous drug interactions that we may not learn about or understand fully until the drug has been administered to patients for some time. Product liability claims can be expensive to defend and may result in large judgments or settlements against us, which could have a severe negative effect on our financial condition. We maintain product liability insurance in amounts we believe to be commercially reasonable for our current level of activity and exposure, but claims could exceed our coverage limits. Furthermore, due to factors in the insurance market generally and our own experience, we may not always be able to purchase sufficient insurance at an affordable price. Even if a product liability claim is not successful, the adverse publicity and time and expense of defending such a claim may interfere with our business. Outcome of an arbitration proceeding with Sands Brothers may result in adverse effects upon Generex. On October 2, 1998, Sands Brothers & Co. Ltd., a New York City-based investment banking and brokerage firm, initiated an arbitration against us under New York Stock Exchange rules. Sands alleged that it had the right to receive, for nominal consideration, approximately 1.5 million shares of our common stock. Sands based its claim upon an October 1997 letter agreement that was purported by Sands to confirm an agreement appointing Sands as the exclusive financial advisor to Generex Pharmaceuticals, Inc., a subsidiary that we acquired in late 1997. In exchange therefor, the letter agreement purported to grant Sands the right to acquire 17% of Generex Pharmaceuticals' common stock for nominal consideration. Sands claimed that its right to receive shares of Generex Pharmaceuticals' common stock applies to Generex Biotechnology common stock since outstanding shares of Generex Pharmaceuticals' common stock were converted into shares of Generex Biotechnology common stock in the acquisition. Sands' claims also included additional shares allegedly due as a fee related to that acquisition, and $144,000 in monthly fees allegedly due under the terms of the purported agreement. 6 After several arbitration and court proceedings, on October 29, 2002, the Appellate Division of the New York Supreme Court issued a decision remanding the issue of damages to a new panel of arbitrators and limiting the issue of damages before the new panel to reliance damages which is not to include an award of lost profits. Reliance damages are out-of-pocket damages incurred by Sands. On November 27, 2002, Sands filed with the Appellate Division a motion to reargue the appeal, or, in the alternative, for leave to appeal to the Court of Appeals of New York from the order of the Appellate Division. On March 18, 2003, the Appellate Division denied Sands' motion. Despite the recent favorable decisions, the case is still ongoing and our ultimate liability cannot yet be determined with certainty. Our financial condition would be materially adversely affected to the extent that Sands receives shares of our common stock for little or no consideration or substantial monetary damages as a result of this legal proceeding. We are not able to estimate an amount or range of potential loss from this legal proceeding at the present time. RISKS RELATED TO THE MARKET FOR OUR STOCK If our stock is delisted from the NASDAQ SmallCap Market and/or becomes subject to Penny Stock regulations, the market price for our stock may be reduced and it may be more difficult for you to sell our stock. On June 5, 2003, our common stock was delisted from the NASDAQ National Market because of our failure to maintain a minimum of $10,000,000 in stockholders' equity. On June 5, 2003, our stock began trading on the NASDAQ SmallCap Market. NASDAQ SmallCap has its own standards for continued listing, including a minimum of $2.5 million stockholders' equity. As of July 31, 2003, our stockholders' equity was $5,856,965. In addition, for continued listing on the NASDAQ SmallCap Market, our stock price must be at least $1.00. During periods in fiscal 2002 and the beginning of fiscal 2003, our share price dropped to close to $1.00 per share. If we do not meet this requirement in the future, we may be subject to delisting by NASDAQ. If our stock is delisted from NASDAQ, there will be less interest for our stock in the market. This may result in lower prices for our stock and make it more difficult for you to sell your shares. If our stock is not listed on NASDAQ and fails to maintain a price of $5.00 or more per share, our stock would become subject to the SEC's "Penny Stock" rules. These rules require a broker to deliver, prior to any transaction involving a Penny Stock, a disclosure schedule explaining the Penny Stock Market and its risks. Additionally, broker/dealers who recommend Penny Stocks to persons other than established customers and accredited investors must make a special written suitability determination and receive the purchaser's written agreement to a transaction prior to the sale. In the event our stock becomes subject to these rules, it will become more difficult for broker/dealers to sell our common stock. Therefore shareholders may have more difficulty selling our common stock in the public market. The price of our shares may be volatile. 7 There may be wide fluctuation in the price of our shares. These fluctuations may be caused by several factors including: o announcements of research activities and technology innovations or new products by us or our competitors; o changes in market valuation of companies in our industry generally; o variations in operating results; o changes in governmental regulations; o developments in patent and other proprietary rights; o public concern as to the safety of drugs developed by us or others; o results of clinical trials of our products or our competitors' products; and o regulatory action or inaction on our products or our competitors' products. From time to time, we may hire companies to assist us in pursuing investor relations strategies to generate increased volumes of investment in our shares. Such activities may result, among other things, in causing the price of our shares to increase on a short-term basis. Furthermore, the stock market generally and the market for stocks of companies with lower market capitalizations and small biopharmaceutical companies, like us, have from time to time experienced, and likely will again experience significant price and volume fluctuations that are unrelated to the operating performance of a particular company. Our outstanding Special Voting Rights Preferred Stock and provisions of our Certificate of Incorporation could delay or prevent the acquisition or sale of Generex. Holders of our Special Voting Rights Preferred Stock have the ability to prevent any change of control of Generex. Our Vice President of Research and Development, Dr. Pankaj Modi, owns all of our Special Voting Rights Preferred Stock. In addition, our Certificate of Incorporation permits our Board of Directors to designate new series of preferred stock and issue those shares without any vote or action by the shareholders. Such newly authorized and issued shares of preferred stock could contain terms that grant special voting rights to the holders of such shares that make it more difficult to obtain shareholder approval for an acquisition of Generex or increase the cost of any such acquisition. NOTE ABOUT FORWARD-LOOKING STATEMENTS We have made statements in this prospectus that are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. This Act limits our liability in any lawsuit based on forward-looking statements we have made. All statements, other than statements of historical facts, included in this prospectus that address activities, events or developments that we expect or anticipate will or may occur in the future, including such matters as our projections, future capital expenditures, business strategy, competitive strengths, goals, expansion, market and industry developments and the growth of our businesses and operations, are forward-looking statements. These statements can be identified by introductory words such as "expects", "plans", "intends", "believes", "will", "estimates", "forecasts", "projects" or words of similar meaning, and by the fact that they do not relate strictly to historical or current facts. 8 Our forward-looking statements address, among other things: o our expectations concerning product candidates for our technology; o our expectations concerning existing or potential development and license agreements for third-party collaborations and joint ventures; o our expectations of when different phases of clinical activity may commence; and o our expectations of when regulatory submissions may be filed or when regulatory approvals may be received. Any or all of our forward-looking statements may turn out to be wrong. They may be affected by inaccurate assumptions that we might make or by known or unknown risks and uncertainties. Actual outcomes and results may differ materially from what is expressed or implied in our forward-looking statements. Among the factors that could affect future results are: o the inherent uncertainties of product development based on a new and as yet not fully proven drug delivery technology; o the risks and uncertainties regarding the actual effect on humans of seemingly safe and efficacious formulations when tested clinically; o the inherent uncertainties associated with clinical trials of product candidates; o the inherent uncertainties associated with the process of obtaining regulatory approval to market product candidates; and o adverse developments in our joint venture with a subsidiary of Elan Corporation, plc regarding buccal morphine. Additional factors that we think could cause our actual outcomes and results to differ materially from the forward-looking statements also include those discussed above under the caption "Risk Factors." Because of the risks and uncertainties associated with forward-looking statements, you should not place undue reliance on them. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. AVAILABILITY OF ADDITIONAL INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission ("SEC"). Our filings are available to the public over the internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file at the SEC's Public Reference Rooms in Washington, D.C. and Chicago, Illinois. The Public Reference Room in Washington, D.C. is located at 450 Fifth Street, N.W. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Rooms. The SEC allows us to "incorporate by reference" in this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. Information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until all shares offered by this prospectus are sold: 9 o Annual Report on Form 10-K for the fiscal year ended July 31, 2003, as amended. o Current Reports on Form 8-K filed on August 15, 2003 and 8-K/A filed on September 9, 2003. o Definitive Proxy Statement on Schedule 14A filed on October 14, 2003. o Preliminary Proxy Statements on Schedule 14A filed on filed on October 3, 2003 and October 7, 2003. o The description of our common stock contained in our registration statement on Form 10 filed on December 14, 1998, as amended by a Form 10/A filed on February 24, 1999, and including any amendment or report subsequently filed for the purpose of updating the description. You may request a copy of these filings at no cost. Please direct your requests to Mark Fletcher, Executive Vice President and General Counsel, 33 Harbour Square, Suite 202, Toronto, Ontario, Canada M5J 2G2 (telephone 416/364-2551). You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front page of those documents. This prospectus is part of a registration statement on Form S-3 (Registration No. 333- ) filed with the SEC under the Securities Act of 1933. This prospectus does not contain all of the information set forth in the registration statement. You should read the entire registration statement for further information about us and our common stock. DILUTION Purchasers of common stock offered pursuant to this prospectus will incur dilution in their investment that is approximately equal to the difference between the price which they pay for the shares and stockholders' equity per share of the shares. As of July 31, 2003, the book value of our stockholders' equity was approximately $0.23 per share of common stock. USE OF PROCEEDS We will not receive any proceeds from the resale of shares covered by this prospectus. SELLING SHAREHOLDERS The following table lists each person who may resell shares pursuant to this prospectus and, in addition, sets forth: o the number of shares of outstanding common stock registered for sale and beneficially owned by each prior to the offering; o the number of shares of outstanding common stock registered for sale by each in the offering and issuable on January 31, 2004; 10 o the number of shares registered for sale by each in the offering and issuable upon exercise of options or warrants; o the total number of shares registered for sale by each in the offering; and o the number of shares of common stock owned by each after the offering, assuming each sells all of the shares registered for his or her benefit.
Registered Shares Total Outstanding Issuable Upon Shares Shares Outstanding Exercise of Options Registered Owned After Name Shares (1) or Warrants (2) for Sale (3) Offering (4) - ----- ----------- -------------------- ------------ ------------- ARE-ONE Innovations Drive, LLC 2293 2293 0 Klaus & Janet Boese 4587 4587 0 David Brook 56063 56063 0 Nigel & Freydis Campbell 15290 15290 0 Cantab Holdings, Ltd. 21406 21406 0 David Chella 317 317 0 Leonard Chess 317 317 0 R.S. DuFresne, Jr. 15290 15290 0 Alvin Greenberg 4587 4587 0 Adele Gulfo 96790 96790 0 Sun America, as Custodian fbo Adele Gulfo 50966 50966 0 Joseph V. Gulfo 447996 447996 0 Sun America, as Custodian fbo Joseph V. Gulfo 18754 18754 0 Vincent J. Gulfo 50966 50966 0 Tony & Judith Hugli 1846 1846 0 Barbara Humphreys 149842 149842 0 Daniel Humphreys 140624 140624 0 David Humphreys 140624 140624 0 Harvey Humphreys 132513 132513 0 Robert Humphreys 319614 319614 0 Rosalie Humphreys 270123 270123 0 Jack T. Johansen 125887 125887 0 Thomas R. Johnson 21406 21406 0 Brian Leyland-Jones 317 317 0 Jacky Knopp, Jr. 9174 9174 0 Edward J. Lary 19877 19877 0 Patricia Livingston as Trustee of the Philip O. Livingston 12/01/89 Trust 25483 25483 0 Philip O. Livingston 25483 25483 0 Massachusetts Biomedical Initiatives 117675 117675 0 George S. Mennen, William G. Mennen, IV, Trustee 76450 76450 0 William G. Mennen, IV 31600 31600 0 Richard Morningstar 58611 58611 0 James Mule 317 317 0 James W. & Susan Ogilvie 12691 12691 0 Nicholas M. Passarelli 9938 9938 0
11
Registered Shares Total Outstanding Issuable Upon Shares Shares Outstanding Exercise of Options Registered Owned After Name Shares (1) or Warrants (2) for Sale (3) Offering (4) - ----- ----------- -------------------- ------------ ------------- Name Susan Pierce 317 317 0 Saul M. Reck 5097 5097 0 Ralph Reisfield 317 317 0 Frederic M. Richards 7198 7198 0 Stephen Saltzman 13761 13761 0 Marvin G. Schorr 35677 35677 0 Eli Secarz 317 317 0 Robert K. Snider (estate) 15290 15290 0 David K. Stone 61160 61160 0 Turnstone Ventures, LP 76450 76450 0 University of Massachusetts Medical Center 63707 63707 0 Salvatore & Grace Vinciguerra 15290 15290 0 Jeptha Wade 38226 38226 0 Per H. Wickstrom 7645 7645 0 Minzhen Xu 23805 23805 0 Global Advisory Services, LLC 300000 150000 150000 Mark A. Fletcher 13360 250000 250000 13360 Gunn Allen Financial, Inc. 0 600000 600000 0 Bristol Investment Group, Inc. 0 20000 20000 0 TOTAL STOCK 3,153,334 870,000 3,859,974 163,360 - ----------------------------
(1) Includes all (x) outstanding shares beneficially owned by the shareholder as of the date hereof and (y) outstanding shares owned by the shareholder, held by the company and issuable to the shareholder on January 31, 2004. (2) Includes all options owned by the shareholder which are exercisable within 60 days of the date hereof, with the exception of warrants to purchase 300,000 shares of our common stock issuable to Gunn Allen Financial, Inc., which are exercisable on January 1, 2004. (3) See (1) and (2). (4) Assumes sale of all shares offered by this prospectus. No selling shareholder owns more than 1% of our common stock. No selling shareholder has held a position as a director or executive officer nor has a material employment relationship with us or any of our affiliates within the past 3 years, other than Joseph V. Gulfo, M.D., Robert E. Humphreys, M.D., Minzhen Xu, M.D. and Mark A. Fletcher. Following the Merger, Dr. Gulfo has remained Chief Executive Officer and President of Antigen, our wholly-owned subsidiary. Following the Merger, Dr. Humphreys has the positions of Executive Vice President and Chief Operating Officer of Antigen, and following the Merger, Dr. Xu is the Vice President - Biology of Antigen. Mr. Fletcher has been our Vice President and General Counsel since March 19, 2003. 12 PLAN OF DISTRIBUTION We are registering the shares of common stock covered by this prospectus on behalf of the selling shareholders. The selling shareholders may offer and sell shares from time to time. In addition, a selling shareholder's donees, pledgees, transferees and other successors in interest may sell shares received from a named selling shareholder after the date of this prospectus. In that case, the term "selling shareholders" as used in this prospectus includes such donees, pledgees, transferees and other successors in interest. The selling shareholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. Sales may be made over the NASDAQ SmallCap Market or otherwise, at then prevailing market prices, at prices related to prevailing market prices or at negotiated prices. The shares may be sold by way of any legally available means, including in one or more of the following transactions: o block trade in which a broker-dealer engaged by a selling shareholder attempts to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker-dealer as principal and resale by the broker-dealer for its account pursuant to this prospectus; o and ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers. Transactions under this prospectus may or may not involve brokers or dealers. The selling shareholders may sell shares directly to purchasers or to or through broker-dealers, who may act as agents or principals. Broker-dealers engaged by the selling shareholders may arrange for other broker-dealers to participate in selling shares. Broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from the selling shareholders in amounts to be negotiated in connection with the sale. Broker-dealers or agents also may receive compensation in the form of discounts, concessions or commissions from the purchasers of shares for whom the broker-dealers may act as agents or to whom they sell as principal, or both. This compensation as to a particular broker-dealer might exceed customary commissions. The selling shareholders have advised us that they have not, as of the date of this prospectus, entered into any agreements, understandings or arrangements with any underwriters or broker-dealers for the sale of shares, nor is there an underwriter or coordinating broker acting in connection with the proposed sale of shares by the selling shareholders. To our knowledge, the selling shareholders have not entered into any agreements, understandings or arrangements with any particular broker or market maker with respect to the sale of the shares covered by this prospectus. In connection with distributions of the shares or otherwise, the selling shareholders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with these transactions, broker-dealers or financial institutions may engage in short sales of the shares in the course of hedging the positions they assume with selling shareholders. The selling shareholders may also: o sell shares short and redeliver the shares to close out these short positions; o enter into option or other transactions with broker-dealers or other financial institutions that require the delivery to the broker-dealer or financial institution of the shares, which the broker-dealer or financial institution may resell or otherwise transfer under this prospectus; o loan or pledge the shares to a broker-dealer or other financial institution that may sell the shares so loaned or pledged under this prospectus upon a default; or 13 o sell shares covered by this prospectus that qualify for sale under Rule 144 under the Securities Act of 1933 pursuant to that Rule rather than under this prospectus. The selling shareholders and any broker-dealers participating in the sale of shares covered by this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act of 1933 in connection with sales of such shares. Any commission, discount or concession received by a broker-dealer and any profit on the resale of shares sold by them while acting as principals might be deemed to be underwriting discounts or commissions under the Securities Act of 1933. We have agreed to pay the expenses of registering the shares under the Securities Act of 1933, including registration and filing fees, printing expenses, administrative expenses and certain legal and accounting fees. The selling shareholders will bear all discounts, commissions or other amounts payable to underwriters, dealers or agents, as well as fees and disbursements for legal counsel retained by any selling shareholder. We have agreed with some of the selling shareholders to indemnify each other and other related parties against specified liabilities, including liabilities arising under the Securities Act of 1933. The selling shareholders also may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of shares against liabilities, including liabilities arising under the Securities Act of 1933. A supplement to this prospectus will be filed, if required, under Rule 424(b) under the Securities Act of 1933 to include additional disclosure before offers and sales of the securities in question are made. The selling shareholders and any other persons participating in a distribution of the shares will be subject to applicable provisions of the Securities Exchange Act of 1934 and the rules and regulations thereunder, including Regulation M, which may restrict certain activities of, and limit the timing of purchases and sales of the shares by the selling shareholders and other persons participating in a distribution of the shares. Furthermore, under Regulation M, persons engaged in a distribution of the shares are prohibited from simultaneously engaging in market making and certain other activities with respect to the shares for a specified period of time prior to the commencement of such distributions subject to specified exceptions or exemptions. All of the foregoing may affect the marketability of the shares offered hereby. We have notified the selling stockholders that they will be subject to applicable provisions of the Securities Exchange Act of 1934 and its rules and regulations, including, among others, Rule 102 under Regulation M. These provisions may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders. Rule 102 under Regulation M provides, with some exceptions, that it is unlawful for the selling stockholders or their affiliated purchasers to, directly or indirectly, bid for or purchase, or attempt to induce any person to bid for or purchase, for an account in which the selling stockholders or affiliated purchasers have a beneficial interest, any securities that are the subject of the distribution during the applicable restricted period under Regulation M. All of the above may affect the marketability of the shares of common stock. To the extent required by law, we may require the selling stockholders, and their brokers, if applicable, to provide a letter that acknowledges compliance with Regulation M under the Securities Exchange Act of 1934 before authorizing the transfer of the selling stockholders' shares of common stock. LEGAL MATTERS The validity of the issuance of the shares of common stock offered in this prospectus will be passed upon for us by Eckert Seamans Cherin & Mellott, LLC, 1515 Market Street, 9th Floor, Philadelphia, PA 19102. The firm of Eckert Seamans Cherin & Mellott owns 128,172 shares of common stock which it received in payment of legal fees and expenses in 1998 (60,000 shares of which the firm currently owns 30,000 shares) and upon the exercise of warrants in June 1999 (98,172 shares). The firm also has been granted options exercisable for 30,000 shares at $7.56 per share under our 2000 Stock Option Plan. Members of the firm own additional shares (less than one percent in total) that they purchased from time to time for cash, either from us or in the public market. 14 EXPERTS The consolidated financial statements incorporated by reference in this prospectus have been audited by BDO Dunwoody LLP, independent auditors, to the extent and for the periods set forth in their report incorporated herein by reference, and are incorporated herein in reliance upon such report given upon the authority of said firm as experts in auditing and accounting. The consolidated financial statements incorporated by reference in this prospectus have been audited by Deloitte & Touche LLP, independent auditors, to the extent and for the periods set forth in their report incorporated herein by reference, and are incorporated herein in reliance upon such report given upon the authority of said firm as experts in auditing and accounting. 15 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. We will pay all reasonable expenses incident to the registration of shares other than any commissions and discounts of underwriters, dealers or agents. Such expenses are set forth in the following table. All of the amounts shown are estimates except the SEC registration fee. SEC registration fee $ 614.40 Legal fees and expenses $ 10,000.00 Accounting fees and expenses $ 10,000.00 Other $ 5,000.00 --------------- Total $ 25,614.40 --------------- ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law authorizes a corporation to indemnify its directors, officers, employees or other agents in terms sufficiently broad to permit indemnification (including reimbursement for expenses incurred) under certain circumstances for liabilities arising under the Securities Act. Our Restated Certificate of Incorporation (Exhibit 3.1 hereto) and Bylaws (Exhibit 3.2 hereto) provide indemnification of our directors and officers to the maximum extent permitted by the Delaware General Corporation Law. ITEM 16. EXHIBITS. Exhibit Number Description - ------- ----------- 3.1 Restated Certificate of Incorporation of Generex Biotechnology Corporation filed as Exhibit 3.1 to our Quarterly Report on Form 10-Q for the quarter ended April 30, 1999, filed June 14, 1999, is incorporated herein by reference. 3.2 Bylaws of Generex Biotechnology Corporation filed as Exhibit 3.2 to our Registration Statement on Form S-1 filed July 12, 1999 ("1999 S-1") is incorporated herein by reference. 4.1 Form of common stock certificate filed as Exhibit 4.2 to our 1999 S-1 is incorporated herein by reference. 4.2 Agreement and Plan of Merger among Generex Biotechnology Corporation, Antigen Express, Inc. and AGEXP Acquisition, Inc., filed as Exhibit 2.1 to our Current Report on Form 8-K filed August 15, 2003, is incorporated herein by reference. 4.3 Form of Option Agreement. 16 4.4 Service Agreement between Generex Biotechnology Corporation and Global Advisory Services, LLC, dated September 5, 2003. 4.5 Investment Banking Agreement between Generex Biotechnology Corporation and Gunn Allen Financial, Inc., dated October 1, 2003. 4.6 Agreement between Generex Biotechnology Corporation and Bristol Investment Group, Inc., dated July 10, 2003. 5. Opinion of Eckert Seamans Cherin & Mellott, LLC (included in Exhibit 23.1.3). 23.1.1 Consent of Deloitte & Touche LLP. 23.1.2 Consent of BDO Dunwoody, LLP. 23.1.3 Consent of Eckert Seamans Cherin & Mellott, LLC. - ---------------------------------- ITEM 17. UNDERTAKINGS. We hereby undertake: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by us pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. 2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. That, for the purpose of determining any liability under the Securities Act of 1933, each filing of our annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 17 5. To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. 6. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by our director, officer, or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 18 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Toronto, Province of Ontario, Canada, on the 12th day of November, 2003. GENEREX BIOTECHNOLOGY CORPORATION By: /s/ Anna E. Gluskin -------------------------------------------- Anna E. Gluskin, President Pursuant to the requirements of the Securities Act of 1933, this registration statement was signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Anna E. Gluskin President, Chief Executive Officer - ------------------------------------- Anna E. Gluskin and Director November 12, 2003 /s/ Rose C. Perri Chief Financial Officer, - ------------------------------------- Rose C. Perri Chief Operating Officer and Director November 12, 2003 /s/ Pankaj Modi, Ph.D. Vice President and Director November 12, 2003 - ------------------------------------- Pankaj Modi, Ph.D. /s/ Gerald Bernstein, M.D. Vice President, Director November 12, 2003 - ------------------------------------- Gerald Bernstein, M.D. /s/ Peter Levitch Director November 12, 2003 - ------------------------------------- Peter Levitch /s/ John Baratt Director November 12, 2003 - ------------------------------------- John Barratt /s/ Slava Jarnitskii Controller November 12, 2003 - ------------------------------------- Slava Jarnitskii
19 EX-4.3 3 ex4-3.txt EXHIBIT 4.3 OPTION AGREEMENT This Option Agreement evidences the grant of a stock option (the "Option") to purchase shares of common stock, par value $.001 (the "Company Stock"), of Generex Biotechnology Corporation (the "Company") granted to [[NAME]] (the "Optionee") pursuant to the Generex Biotechnology Corporation 2001 Stock Option Plan (the "Plan"), a copy of which is attached to this Option Agreement and incorporated into this Option Agreement by reference. The Option is subject to the terms, conditions, limitations and restrictions set forth in the Plan, including the following: a. The date of grant of the Option is [[DATE]] and the number of shares of Company Stock that may be purchased upon exercise of the Option is [[NUMBER]] ([[NUMBER]]). b. The purchase price (the "Exercise Price") of Company Stock subject to the Option is [[NUMBER]] per share. c. The Option is fully vested upon issuance. d. Unless sooner terminated pursuant to the Plan, the Option shall terminate on [[DATE]]. e. The Optionee shall pay the Exercise Price for the Option (i) in cash or (ii) by such other method as may be approved by the Compensation Committee of the Company's Board of Directors. The Optionee shall pay the amount of any withholding tax due at the time of exercise, as provided in the Plan. f. The rights and interests of the Optionee under this Option Agreement may not be sold, assigned, encumbered or otherwise transferred, except, in the event of the death of the Optionee, by will or by the laws of descent and distribution. g. Any notice to the Company, including notice of exercise of an Option, shall be addressed to the Company in care of Slava Jarnitskii at the Company's principal offices. IN WITNESS WHEREOF, this Option Agreement has been executed on behalf of the Company by a duly authorized officer and by the Optionee effective as of the date of grant of the Option. GENEREX BIOTECHNOLOGY CORPORATION ACCEPTED AND AGREED: By: ------------------------- --------------------------- ROSE C. PERRI [[NAME]] EX-4 4 ex4-4.txt EXHIBIT 4.4 EXHIBIT 4.4 SERVICES AGREEMENT ------------------ THIS SERVICES AGREEMENT (the "Agreement") is made as of the 5th day of September, 2003 by and between GENEREX BIOTECHNOLOGY CORPORATION (the "Company"), a Delaware corporation, with offices at 33 Harbour Square, Suite 202, Toronto, Canada M5J 2G2, and GLOBAL ADVISORY SERVICES, LLC (the "Service Provider"), with an address at 7000 Island Blvd., Suite 1609, Aventura, Florida, USA 33160. The parties hereto agree as follows: 1. Scope of Services The Company engages the Service Provider to provide the services described in Exhibit A (the "Services"). The Service Provider shall be responsible for ensuring that any individual retained by the Service Provider to assist the Service Provider complies fully with the terms and conditions of this Agreement, including all covenants set forth in this Agreement, and for ensuring that the representations set forth are true with respect to any such individual as of the date of this Agreement and during the Term (as defined below). The Service Provider will be responsible and liable for any actions or omissions of such individuals that give rise to a breach of any term or condition of this Agreement. The Services being performed by the Service Provider shall be performed at his offices, at the Company's offices or at such other location as the Service Provider and the Company shall jointly deem appropriate. The Service Provider shall report to the President and Chief Executive Officer of the Company. 2. Compensation In consideration for the Services, and under the terms and conditions of this Services Agreement, the Company will pay the Service Provider the fees specified in Exhibit B to this Agreement. 3. Expenses The Service Provider will bear any costs or expenses that he (or any of his employees or contractors) may incur in connection with performing the Services, except where the Company gives its explicit written consent to reimburse the Service Provider for an expense prior to the Service Provider incurring the expense. The Company will have no responsibility or liability for any such costs or expenses, except as provided in the previous sentence. 4. Term of Agreement (a) The term (the "Term") of this Agreement shall be one (1) year from the date hereof. The Term may be extended by mutual written agreement. (b) The obligations set forth in Sections 8 and 9 below will survive any termination of this Agreement. 5. Relationship The parties affirm that the relationship between the Company and the Service Provider established by this Agreement is that of independent contractors, and not of servant and master or agent and principal. Neither the Service Provider nor any of his employees or contractors will have any authority to act on behalf of the Company and will not hold themselves out as employees, agents, servants or partners of the Company. 6. Representations and Warranties The following representations are true and correct as of the date hereof and will continue to be true and correct during the Term, except as explicitly disclosed to the Company in writing by the Service Provider prior to execution of this agreement: (a) None of the Service Provider or his employees, agents and contractors (or any employee, affiliate or agent of such persons) is the subject of any judgment, injunction, order, sentence or other condition or requirement that would bar it or him, or otherwise constrain it or him, from conducting any activities necessary to perform the Services or otherwise contemplated by this Agreement. (b) None of the Service Provider or his employees, agents and contractors (or any employee, affiliate or agent of such persons) has ever been charged with or held liable, either criminally or civilly, for any violation of law or regulation relating to securities, commodities or financial improprieties. (c) None of the Service Provider or his employees, agents and contractors (or any affiliate or agent of such individual) has ever been sanctioned or suspended or otherwise penalized by the National Association of Securities Dealers or any similar regulatory body for any violation of such body's rules and regulations. (d) The Service Provider is duly authorized to execute this Agreement and provide the Services. 7. Covenants The Service Provider makes the following covenants (and agrees that he will be responsible for ensuring compliance with such covenants by any of his employees, agents or contractors who may assist the Service Provider in performing any of the Services): (a) The Service Provider will perform the Services in accordance with all applicable laws and regulations. The Service Provider will not undertake any activities in connection with performing the Services that violate any laws or regulations. The Service Provider will not undertake any activities in connection with performing the Services that induce, aid or abet any violation of any laws or regulations. The laws and regulations are intended to include, without limitation, applicable U.S. federal securities laws and regulations, state securities laws and regulations, and Nasdaq rules and regulations. (b) The Service Provider understands the prohibitions under U.S. federal securities laws and regulations against the misuse or miscommunication of material non-public information about the Company, including without limitation the prohibitions against trading on non-public information about the Company (or aiding and abetting any such violations), and will comply with all such laws and regulations. (c) The Service Provider will take no action direct or indirect, nor engage in any conduct, that could cause harm to the Company's public standing or image or that could interfere or detrimentally affect the Company's pursuit of its business interests in any way. (d) The Service Provider will not make any payments of any nature (whether in cash, by transfer of securities, or in kind) to any broker or dealer in connection with performing the Services, without first advising the Company of the circumstances under which the payment is proposed to be made and the scope of disclosure that any such broker or dealer intends to make to his employer and to his clients of any such payment. It is understood that no payments may be made unless consented in advance in writing by the Company. 8. Protection of Proprietary and Confidential Data The terms and provisions of the Confidential Disclosure Agreement executed by the Service Provider on September 5, 2003, are incorporated herein by reference. 9. Indemnity If the Company is made a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively, a "proceeding") arising out of or in any way relating to any violation by the Service Provider (or, for the avoidance of doubt, by any of his principals, directors, members, officers, employees, agents, contractors and affiliates) of any of provisions of this Agreement, the Service Provider shall indemnify the Company against all expenses, liability and loss actually and reasonably incurred or suffered by the Company in connection with such proceeding (including, without limitation, legal fees and expenses of the Company). 10. Waiver The failure by any party to object to any action or omission by the other that may constitute a violation of the provisions hereof shall not be deemed to constitute a waiver of such act or omission or any future action or omission. 11. Entire Agreement This Agreement constitutes the entire agreement and understanding of the parties, superseding any and all prior written and prior and contemporaneous oral agreement, understandings and letters of intent, and may not be modified or amended nor may nay right be waived except by a writing which expressly refers tot his Agreement, states that it is a modification, amendment or waiver and is signed by both parties in the case of a modification or amendment or the party to be charged in the case of a waiver. No course of conduct or dealing and not trade custom or usage shall be construed to modify or amend any of the provisions of this Agreement. 12. Applicable Law This Agreement shall be governed by the laws of the State of Delaware applicable to agreements made and to be performed within such jurisdiction. 13. Assignment Neither this Agreement nor any rights or benefits hereunder may be assigned by the either party (except that the Company may assign to an affiliate or a successor), and any purported assignment of this Agreement or any rights, obligations or benefits hereunder in violation of this Section will be void. 14. Counterparts This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same instrument. 15. Captions The captions of the paragraphs of this Agreement are for convenience of reference only and will not be deemed to constitute a part of this Agreement or to affect the meaning of any provision hereof. 16. Notices Any notice required or permitted hereunder shall be given by personal or hand delivery, or by certified or registered mail or overnight courier service to a party at his/its address set forth in the first paragraph of this Agreement or such other address as a party may specify by notice to the other. Notices shall be considered to have been effectively given (i) in the case of personal or hand delivery, on the date of such delivery, (ii) in the case of certified or registered mail, on the third business day following the day on which the notice was posted, and (iii) in the case of an overnight courier, on the business day following the day on which the notice was sent. IN WITNESS WHEREOF, the Company and the Service Provider have executed this Agreement on the day and year first written above. GENEREX BIOTECHNOLOGY CORPORATION By: -------------------------------------------------------- SERVICE PROVIDER: GLOBAL ADVISORY SERVICES, LLC -------------------------------------------------------- Exhibit A Description of Services to be Provided by the Service Provider The Service Provider will diligently pursue the following services, and review status with the Company on a regular basis: o Review and analyze the Company's business plan and financial and capital raising strategies, and propose specific improvements to those plans and strategies o Develop strategies for the Company's growth and standing in the business and financial communities o Analyze financial instruments on behalf of the Company. o Introduce the Company to financial professionals. The Service Provider shall not release any report or provide any written communication regarding the Company except in materials which have been approved by the Company. Materials which have been approved by the Company through communications with Service Provider may be released by Service Provider. The Company and Service Provider will develop reasonable measures of successful performance of these services from time to time. Exhibit B Description of Compensation 1. The fees payable to the Service Provider during the term of this Agreement for performance of the Services in accordance with the terms of this Agreement will be as follows: a. US$15,000 for the first month of the Term; b. thereafter, US$2,500 per month for each remaining month of the Term; and c. an aggregate of 150,000 unrestricted shares of the Company's common stock. EX-4 5 ex4-5.txt EXHIBIT 4.5 EXHIBIT 4.5 INVESTMENT BANKING AGREEMENT THIS AGREEMENT is made as of July 1, 2003, by and between Generex Biotechnology Corporation, a Delaware Corporation having its principal office at 33 Harbor Square, Suite 202, Toronto, ON M5J-2G2 (the "Company"), and Gunn Allen Financial, Inc., a Florida corporation having an office at 1715 N. Westshore Boulevard, Suite 700, Tampa, Florida 33607 ("GAF"). In consideration of the mutual premises contained herein and on the terms and conditions hereinafter set forth, the Company and GAF agree as follows: 1. PROVISION OF SERVICES. The Company hereby retains GAF to perform non-exclusive consulting services related to corporate finance and investment banking matters, and GAF hereby accepts such retention and shall undertake all reasonable efforts to perform for the Company the duties described herein. In this regard, GAF shall devote such time and attention to the business of the Company as shall be reasonably determined by GAF necessary to perform the duties described herein. (a) GAF agrees, to the extent reasonably required in the conduct of the business of the Company, and at the Company's written request to GAF's Senior Vice President of Corporate Finance (or such other person designated by GAF), to place at the disposal of the Company its judgment and experience and to provide business development services to the Company including the following: (i) advice with regard to stockholder relations and public relations matters, and (ii) evaluation of financial matters and assistance in financial arrangements and investment banking transactions, including assistance and advice with regard to maximization of shareholder value and merger and acquisition candidates. (b) [Intentionally omitted.] (c) At GAF's request, the Company will provide "due diligence" presentations to Registered Representatives of GAF and other brokerage firms. GAF agrees to use reasonable efforts to arrange such meetings. (d) Notwithstanding the foregoing, GAF shall provide general services to the Company in connection with mergers, acquisitions, consolidations, joint ventures, divestitures and similar corporate finance transactions; however, subject to paragraph 3(d) below, for each such specific transaction or transactions, GAF and the Company will formalize their arrangement in a separate agreement at the time specific service is provided. (e) GAF shall use reasonable efforts in furnishing advice and recommendations, and for this purpose GAF shall at all times maintain or keep and make available qualified personnel or a network of qualified outside professionals for the performance of its obligations under this Agreement, at its sole expense. To the extent reasonably practicable, GAF shall so use its own personnel rather than outside professionals. (f) If warranted and mutually agreed upon by and between the Company and GAF, the Company shall use reasonable efforts to invite a representative appointed by GAF to attend and participate in at least one meeting of its Board of Directors for every year that this Agreement is in effect. The Company shall provide notice of such meetings to GAF at least two (2) days prior to the date that the meeting is scheduled to occur. GAF will use its reasonable efforts to attend any other meetings of the Company's Board of Directors to which the Company requests GAF's attendance. Any expenses incurred by GAF in attending such meetings shall be borne by the Company. 2. TERM. Unless otherwise provided for in this Agreement, GAF's retention hereunder shall be for a term of two (2) years, commencing on the date hereof and expiring on the second anniversary date of this Agreement (the "Termination Date"). Except as provided for in paragraph 8 below, GAF may not terminate this Agreement without the written consent of the Company prior to the Termination Date. In the event that the Company desires to terminate this Agreement, without "cause", prior to the Termination Date, it shall provide GAF with at least sixty (60) days prior written notice of its intention to terminate this Agreement and this Agreement shall so terminate following the expiration of this sixty (60) day period, without any further responsibility for either party; provided, however, that GAF shall be entitled to receive all compensation and un-reimbursed expenses, if any, outstanding as of the date of termination. 3. COMPENSATION. In consideration for the services provided by GAF hereunder, the Company shall: (a) pay to GAF the sum of $120,000, payable in accordance with Schedule A of this Agreement. (b) pay all reasonable travel related expenses incurred by GAF in its performance of this Agreement. The Company shall make all necessary travel and lodging arrangements for GAF personnel, and shall prepay such expenditures relating to any travel and lodging required pursuant to GAF's duties hereunder. All other travel related expenditures in excess of $100 per month shall be approved, in writing, by the Company prior to any such expenditures. Subject to the above, the Company shall reimburse GAF for all expenses reasonably incurred by GAF immediately upon its receipt of an expense accounting from GAF. (c) issue to GAF a warrant (the "Warrant") to purchase up to 600,000 shares of the common stock of the Company (the "Underlying Common Stock") on the following terms at a per share price of $2.00 (the "Strike Price"). The Warrant, which will be issued upon execution and delivery of this Agreement, will vest as follows: 300,000 shares, the ("First Tranche") ninety (90) days from execution, and 300,000 shares, the ("Second Tranche") six (6) months from execution . Notwithstanding the foregoing, the Warrant shall immediately and completely vest, in favor of GAF, and shall become immediately exercisable, in the event of (i) a termination of this Agreement for any reason other than for "cause;" or (ii) the sale of the Company (or substantially all of the assets thereof) or the acquisition (or merger) transaction of the Company by or into another entity. The Warrant shall be issued to GAF in the form of a warrant agreement (the "Warrant Agreement"), which shall be in form and content satisfactory to GAF. The Warrant Agreement shall provide for, among other provisions, the above terms and the following: (i) subject to paragraph 3(c) (i) and (ii) above, that GAF may exercise the Warrant at any time after the first anniversary date of the Warrant Agreement. The Warrant shall expire six (6) years from the date that the Warrant Agreement is issued. (ii) [intentionally deleted] (iii) that, in lieu of any cash payment required by GAF in connection with the exercise of the Warrant, the holder(s) of the Warrant shall have the right at any time and from time to time, to exercise the Warrant in full or in part by surrendering the Warrant Agreement as payment of the aggregated Strike Price. The number of shares of Underlying Common Stock to be issued upon exercise shall be determined by multiplying the number of the shares of common stock within the Warrant to be exercised by an amount equal to the aggregate market price per share of common stock within the Warrant to be exercised less the Strike Price per share of common stock within the Warrant to be exercised, and then dividing the product thereof by the market price per share. Solely for the purposes of this paragraph, market price shall be calculated as the average of the market prices for each of the five (5) trading days preceding the date notice is given that the holder(s) intend(s) to exercise the Warrant. (iv) that the Company shall reserve, and at all times have available, a sufficient number of shares of its common stock to be issued upon the exercise of the Warrant. Furthermore, the Company shall accept, and shall so instruct its transfer agent to accept, an appropriate Rule 144 opinion letter from any qualified securities attorney (not just an opinion from the Company's counsel) representing GAF or any of its employees or agents that are holders of the Warrant. (v) that the Company shall, subject to the conditions listed below, grant "piggy back" registration rights to include the shares of the Underlying Common Stock in any registration statement (except for Form S-4 or S-8 filings, or any equivalent thereto) filed by the Company under the Securities Act of 1933 relating to an underwriting of the sale of shares of common stock or other security of the Company, subject to customary and reasonable underwriter imposed lock-up requirements. In the event that the Company grants registration rights to any other stockholder on terms and conditions that GAF deems to be more favorable than those granted hereunder, the Company shall grant the same rights to GAF. Furthermore, in the event that the Company grants registration rights to any other stockholder, the Company shall issue written notice thereof to GAF at least 10 business days prior to the date that the Company files any such registration statement. (d) if the Company shall, within two years from the date of this Agreement, enter into any agreement or understanding with any person or entity first introduced by GAF involving (i) the sale of all or substantially all of the assets and properties of the Company or the sale or acquisition by the Company of a subsidiary or other division thereof, (ii) the merger, divestiture, or consolidation of the Company (other than a merger or consolidation effected for the purpose of changing the Company's domicile), or any subsidiary or other division thereof, with or into another person or entity; or (iii) the acquisition by the Company of the assets or stock of another business entity, which agreement or understanding is consummated during such two year period or within one year of the expiration of such two year period, the Company, upon such consummation, shall pay to GAF an amount equal to the following percentages of the consideration paid by or to the Company in connection with such transaction: (i) 5% of the first $1,000,000 or portion thereof, of such consideration; (ii) 4% of the second $1,000,000 or portion thereof, of such consideration; (iii) 3% of the third $1,000,000, or portion thereof, of such consideration; (iv) 2% of the fourth $1,000,000, or portion thereof, of such consideration; and (v) 1% of such consideration in excess of first $4,000,000 or portion thereof, of such consideration. The fee payable to GAF will be in the form of cash consideration (unless otherwise agreed to in writing by GAF) in connection with any such transaction falling under this paragraph. It is understood that the designation of GAF to act as a finder is not exclusive and that the Representative shall not be entitled to the foregoing amounts unless it participates in the introduction, or is otherwise engaged by the Company to structure, facilitate or negotiate the transaction. 4. REPRESENTATIONS AND WARRANTIES OF GAF. GAF represents and warrants that: (a) it is a securities broker-dealer duly licensed and registered pursuant to federal and state securities laws rules and regulations; (b) it has the authority and ability to provide the services contemplated in this Agreement; and (c) it is a member in good standing with the NASD and is in good standing with all states within which it is registered to conduct securities business. 5. INDEMNIFICATION. The Company agrees to indemnify and hold harmless GAF and its affiliates, the respective directors, officers, partners, agents and employees and each other person, if any, controlling GAF or any of its affiliates (collectively the "GAF Parties") from all losses, claims, damages, liabilities and expenses incurred by them (including attorney's fees and disbursements) that result from any violations of securities laws or rules or any untrue statements made by the Company, its agents or employees, or any statements omitted to be made in connection with securities related matters by the Company, its agents or employees. GAF will indemnify and hold harmless the Company and the respective directors, officers, agents and employees of the Company (the "Company Parties") from and against all losses, claims, damages, liabilities and expenses that result from malfeasance, or gross negligence in the performance of GAF's duties hereunder (including attorney's fees and disbursements). Each person or entity seeking indemnification hereunder shall promptly notify the Company, or GAF as applicable, of any loss, claim, damage or expense for which the Company or GAF as applicable, may become liable pursuant to this Section 5. Neither party shall pay, settle or acknowledge liability under any such claim without the written consent of the party liable for indemnification, and shall permit the Company or GAF as applicable a reasonable opportunity to cure any underlying problem or to mitigate damages. The scope of this indemnification between GAF and the Company shall be limited to, and pertain only to certain transactions contemplated or entered into pursuant only to this Agreement. The Company or GAF, as applicable, shall have the opportunity to defend any claim for which it may be liable hereunder, provided it notifies the party claiming the right to indemnification within fifteen (I5) days of notice of the claim. 6. STATUS OF GAF. GAF shall at all times be an independent contractor of the Company and, except as expressly provided or authorized in this Agreement, shall have no authority to act for or represent the Company or bind it to any agreements. 7. OTHER ACTIVITIES OF GAF. The Company recognizes that GAF now renders and may continue to render financial consulting, management, investment banking and other services to other companies that may or may not conduct business and activities similar to those of the Company. GAF shall be free to render such advice and other services and the Company hereby consents thereto. GAF shall not be required to devote its full time and attention to the performance of its duties under this Agreement, but shall devote only so much of its time and attention as it deems reasonable or necessary for such purposes, in its sole discretion. 8. COVENANTS OF THE COMPANY. The Company covenants, promises and agrees that: (a) during the term of this Agreement, the Company shall provide GAF at least fourteen (14) days prior written notice of the proposed sale of any securities of the Company in a "Regulation S" or "Regulation D" offering. Such notice shall specify the type of securities to be offered, the purchase price thereof, the terms and conditions of the offering and the proposed offering date. GAF shall be entitled to immediately terminate this Agreement and retain all of the compensation set forth herein without offset and with no further liability to the Company, in the event that, during the term of this Agreement, the Company completes a sale of its securities pursuant to a Regulation D or S offering, without GAF's prior written consent thereto. (b) it shall immediately notify GAF in the event that it is de-listed from the NASDAQ Small Cap Market. The Company understands and acknowledges that, in the event of any such de-listing, GAF will be entitled to terminate this Agreement, in its sole and absolute discretion. All unpaid and unsecured compensation will be due up to the termination date. (c) during the term of this Agreement, the Company shall furnish GAF with copies of its annual, quarterly and proxy filings with the SEC, immediately upon the Company's filing thereof. 9. CONTROL. Nothing contained herein shall be deemed to require the Company to take any action contrary to its Certificate of Incorporation or By-Laws, or any applicable statute or regulation, or to deprive its Board of Directors of their responsibility for any control of the affairs of the Company. 10. PUBLIC DISCLOSURE REQUIREMENT. Within thirty (30) business days of the final execution of this Agreement, the Company shall cause the release of a public announcement which sets forth, in pertinent part, a description of this Agreement, including without limitation, the name of GAF, the nature of the services to be provided hereunder by GAF and the compensation paid to it in connection herewith. At least three (3) business days prior to the dissemination of any such public announcement or filing containing the above required description, the Company shall submit to GAF, for its review and comment, the proposed public announcement or description. GAF shall thereafter have three (3) business days within which to submit its editions or amendments to the public announcement and/or description for inclusion therein, which editions and amendments shall be incorporated in the final version disseminated by the Company, unless, in the reasonable judgment of counsel to the Company, such editions or amendments cannot be incorporated. Furthermore, during the term of this Agreement, the Company shall disclose in its quarterly and annual filings the nature and terms of this Agreement. 11. NOTICES. Any notices hereunder shall be sent to the Company and GAF at their respective addresses above set forth. Any notice shall be given by registered or certified mail, postage prepaid, and shall be deemed to have been given when deposited in the United States mail. Either party may designate any other address to which notice shall be given, by giving written notice to the other of such change of address in the manner herein provided. 12. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter and supersedes all prior discussion, agreements and understandings between them with respect thereto. This Agreement may not be modified except in a writing signed by the parties. 13. JURISDICTION AND VENUE. This Agreement has been made in the State of Florida and shall be governed by and construed in accordance with the laws thereof without regard to principles of conflict of laws. Any proceeding commenced by GAF to enforce or interpret any provision of this Agreement may be brought in the City of Tampa, State of Florida. The Company hereby submits to the jurisdiction of the courts of the Florida, including the federal courts, for such purposes. 14. NO ASSIGNMENT. Neither this Agreement nor the rights of either party hereunder shall be assigned by either party without the prior written consent of the other party. 15. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 16. NON-COMPLIANCE. If any provision of this Agreement conflicts with any law, rule or regulation of any federal, state or self-regulatory organization, including the Securities and Exchange Commission, the blue-sky laws of any state, the National Association of Securities Dealers, Inc., or any other governmental authority having jurisdiction over the activities or services described herein, then in that event, the Company and GAF shall amend this Agreement to bring any affected provision into compliance with such regulations. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. Gunn Allen Financial, Inc. Generex Biotechnology - ---------------------------- ---------------------------- By: Richard A. Frueh By: Anna E. Gluskin Its: Chief Executive Officer Its: Chief Executive Officer SCHEDULE A Date Amount Payable Execution of Agreement $15,000.00 October 1, 2003 $15,000.00 January 1, 2004 $15,000.00 April 1, 2004 $15,000.00 July 1, 2004 $15,000.00 October 1, 2004 $15,000.00 January 1, 2005 $15,000.00 April 1, 2003 $15,000.00 Total Payments $120,000.00 EX-4 6 ex4-6.txt EXHIBIT 4.6 EXHIBIT 4.6 BRISTOL INVESTMENT GROUP, INC. MEMBER NASD ~ SIPC 300 PARK AVENUE, 17TH FL. NEW YORK, NY 10022 -------------------------- ARTHUR B. WHITCOMB, JR. Managing Director Tel (212) 572-6293 Fax (212) 705-4292 www.BristolDirect.com July 10, 2003 Generex Biotechnology Corporation 33 Harbour Square, Suite 202 Toronto, ON M5J 2, Canada Attention: Anna Gluskin, President & CEO Dear Sirs: This letter sets forth the agreement ("Agreement") between Generex Biotechnology Corporation ("GNBT" or the "Company") and Bristol Investment Group, Inc. ("Bristol") with respect to the engagement of Bristol to act as the Company's non-exclusive advisor and finder of capital related to a financing expected to be approximately in the $4-6 million range. 1. Capital Finding Services and Term. Bristol will contact investors regarding their interest in providing capital to GNBT. Bristol agrees to discuss its capital finding activities with the Company and will otherwise coordinate its activities with the Company's efforts. The Company may complete a financing with an offering structure, terms and conditions that will be determined by the Company, in its sole discretion. The term of this Agreement (the "Term") shall commence upon its signing and shall expire July31, 2004 (the "Expiration Date"). Notwithstanding the Expiration Date, Bristol Contacts (as defined below) will be exclusive to Bristol and Bristol will be eligible for the fees, specified in later sections, if any of the Bristol Contacts participate in a financing prior to one (1) year after the Expiration Date. 2. Compensation The Company agrees to pay to Bristol for its capital finding services out of the closing proceeds at each full or incremental closing of any financing with a Bristol Contact a cash finders' fee in the amount of five (5%) of the amount raised. In addition, the Company shall sell to Bristol, and Bristol shall purchase from the Company, for $0.001 each, warrants ("Warrants") equal to nine percent (9%) of the number of shares purchased or purchasable by Bristol Contacts upon conversion of a convertible security. Each Warrant will be exercisable for one (1) share. The exercise price of the Warrant shall be equal to the price paid by Bristol Contacts in the applicable financing. The Warrants shall have a term of five (5) years. The Warrants shall include a cashless exercise provision. Bristol shall be entitled to "piggy back" registration rights, pursuant to which the Company agrees to register the shares underlying the Warrants detailed herein on any Form S-1 or S-3 registration statement filed by GNBT. An initial list of Bristol Contacts is attached as Exhibit A (collectively, the "Bristol Contacts"). From time to time during the Term, Bristol may submit a supplemented or amended written list of Bristol Contacts. The Company will have the right to exclude any such supplemented Bristol Contacts within three (3) business days of receipt of such written list from Bristol. Bristol Contacts shall be deemed to include the affiliates thereof and all third parties to which the Bristol Contacts may introduce the Company. 1 3. Warrant Purchase & Terms The Company shall sell to Bristol, and Bristol shall purchase from the Company, for $0.001 each, 20,000 warrants (the "Additional Warrants") for a total consideration of $20. Each Additional Warrant will be exercisable for one (1) share. The exercise price of the Additional Warrants shall be $2.50. The Additional Warrants shall be exercisable for a period of five (5) years commencing on November 1, 2003. The Additional Warrants shall include a cashless exercise provision. Bristol shall be entitled to "piggy back" registration rights, pursuant to which the Company agrees to register the shares underlying the Additional Warrants detailed herein on any Form S-1 or S-3 registration statement filed by GNBT. 4. Expenses The Company will reimburse Bristol for reasonable, documented costs and expenses (the "Expenses") directly incurred by Bristol in connection with Bristol's services, including, but not limited to, (a) the costs and expenses of contacting Bristol Contacts, including, mailing or overnight delivery of a memorandum and other documents, and (b) the costs and expenses of counsel for securities advice related to Bristol's services hereunder and its relationship with the Company and all investors and potential investors. Bristol shall receive a non-refundable deposit of $10,000 upon signing of this Agreement. 5. Indemnification The Company agrees that it shall indemnify and hold harmless, Bristol, its stockholders, directors, officers, employees, agents, affiliates and controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 and Section 15 of the Securities Act of 1933, each as amended (any and all of whom are referred to as an "Indemnified Party"), from and against any and all losses, claims, damages, liabilities, or expenses, and all actions in respect thereof (including, but not limited to, all legal or other expenses reasonably incurred by an Indemnified Party in connection with the investigation, preparation, defense or settlement of any claim, action or proceeding, whether or not resulting in any liability), incurred by an Indemnified Party: (a) arising out of, or in connection with, any actions taken or omitted to be taken by the Company, its affiliates, employees or agents, or any untrue statement or alleged untrue statement of a material fact contained in any of the financial or other information contained in any registration statement and/or final prospectus furnished to Bristol by or on behalf of the Company or the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (b) with respect to, caused by, or otherwise arising out of any transaction contemplated by the Agreement or Bristol's performing the services contemplated hereunder; PROVIDED, HOWEVER, the Company will not be liable under clause (b) hereof to the extent, and only to the extent, that any loss, claim, damage, liability or expense is finally judicially determined to have resulted primarily from Bristol's gross negligence, breach of agreement or bad faith in performing such services. 2 If the indemnification provided for herein is conclusively determined (by an entry of final judgment by a court of competent jurisdiction and the expiration of the time or denial of the right to appeal) to be unavailable or insufficient to hold any Indemnified Party harmless in respect to any losses, claims, damages, liabilities or expenses referred to therein, then the Company shall contribute to the amounts paid or payable by such Indemnified Party in such proportion as is appropriate and equitable under all circumstances taking into account the relative benefits received by the Company on the one hand and Bristol on the other, from the transaction or proposed transaction under the Agreement or, if allocation on that basis is not permitted under applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and Bristol on the other, but also the relative fault of the Company and Bristol; PROVIDED, HOWEVER, in no event shall the aggregate contribution of Bristol and/or any Indemnified Party be in excess of net compensation actually received by Bristol and/or such Indemnified Party pursuant to this Agreement. The Company shall not settle or compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action, claim, suit or proceeding in which any Indemnified Party is or could be a party and as to which Indemnification or contribution could have been sought by such Indemnified Party hereunder (whether or not such Indemnified Party is a party thereto), unless such consent or termination includes an express unconditional release of such Indemnified Party, reasonably satisfactory in form and substance to such Indemnified Party, from all losses, claims, damages, liabilities or expenses arising out of such action, claim, suit or proceeding. The foregoing indemnification and contribution provisions are not in lieu of, but in addition to, any rights which any Indemnified Party may have at common law hereunder or otherwise, and shall remain in full force and effect following the expiration or termination of Bristol's engagement and shall be binding on any successors or assigns of the Company and successors or assigns to all or substantially all of the Company's business or assets. 6. Disclosure (a) The Company represents and warrants that, as of the date of this Agreement and at all times thereafter during the term of this Agreement, the information and documentation provided by the Company and its affiliates to Bristol will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. The Company recognizes and confirms that Bristol in acting pursuant to this engagement will be using information in reports and other information provided by or on behalf of the Company, and that Bristol does not assume responsibility for and may rely, without independent verification, on the accuracy and the completeness of any such reports and information. The financial statements provided by the Company will present fairly the financial position of the Company as of the dates indicated and the results of its operations for the periods specified; and said financial statements will have been prepared in conformity with generally accepted accounting principles (as described therein), applied on a basis which is consistent during the periods involved. The Company agrees to provide Bristol with (i) prompt notice of any material development affecting the Company; (ii) such other information concerning the business and financial condition of the Company as Bristol may from time to time reasonably request provided that such information is maintained by Bristol pursuant to a confidentiality agreement. 3 (b) The Company agrees that any information or advice rendered by Bristol or its representatives in connection with this engagement is for the confidential use of the Company only and, except as otherwise required by law, the Company will not permit any third party to disclose or otherwise refer to such advice or information in any manner without Bristol's prior written consent, unless such information becomes part of the public domain through no fault of the Company. (c) Bristol agrees that any information, plans or data regarding the Company and its activities is for the confidential use of Bristol only and, except as otherwise required by law or otherwise in the public domain, Bristol will not disclose, refer to, use or act upon such information, plans or data without the Company's prior written consent. (d) Nothing contained in this Agreement shall be construed to place Bristol and the Company in the relationship of partners or a joint venture. Neither Bristol nor the Company shall represent itself as the agent or legal representative of the other for any purpose whatsoever nor shall either have the power to obligate or bind the other in any manner whatsoever. Bristol, in performing its services hereunder, shall at all times be an independent contractor. 7. Miscellaneous The Company has not taken, and will not take, any action, directly or indirectly, that would prevent the Company from utilizing any form of Registration Statement under the Securities Act of 1933 as amended or that would limit the availability of any federal or state exemption from the Registration. Bristol may, at its own expense, place announcements or advertisements in financial newspapers and journals describing its services hereunder, provided that the same shall comply with securities laws and shall be approved by the Company prior to dissemination. 8. Governing Law This Agreement (a) and any dispute, claim or controversy relating to or arising out of this Agreement shall be governed by and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts thereof, and the parties hereto hereby consent to the personal jurisdiction of the United States District Court for the Southern District of New York and the courts of the State of New York in any action suit or proceeding and shall be conducted in the County and State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof, (b) incorporates the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous agreements should they exist hereto, (c) may not be amended or modified except in writing executed by the Company and Bristol and (d) shall be binding upon and inure to the benefit of the Company, Bristol, and other indemnified Parties and their respective successors and assigns. 4 9. Best Efforts Services and Legal Relationship. The Company expressly acknowledges and agrees that Bristol's obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not constitute a commitment by Bristol to purchase any securities and does not ensure a successful financing or the success of Bristol with respect to finding any financing for the Company. Nothing contained in this Agreement shall be construed to place Bristol and the Company in the relationship of partners or a joint venture. Bristol is acting strictly as a finder of capital and not as an underwriter, broker, agent or dealer. Neither Bristol nor the Company shall represent itself as the legal representative of the other for any purpose whatsoever nor shall either have the power to obligate or bind the other in any manner whatsoever. Bristol, in performing its services hereunder, shall at all times be an independent contractor. If you are in agreement with the foregoing, please execute the enclosed counterpart of this letter in the space below provided for that purpose and deliver it to the undersigned, whereupon the terms hereof shall become a binding agreement between us. The investment banking staff of Bristol look forward to working with you. Very truly yours, BRISTOL INVESTMENT GROUP, INC. ------------------------------------ Arthur B. Whitcomb, Jr., Managing Director Agreed to and accepted this 10th day of July, 2003 Generex Biotechnology Corporation --------------------------------- By: Rose C. Perri, Chief Operating Officer 5 Exhibit A Bristol Contacts The following list of institutions shall be included as "Bristol Contacts" as described in Agreement: AIG Global Investments Amaranth Advisors Apax Collinson, Howe & Lennox Federated Investors, Inc. The Galleon Group Greenberg Healthcare Partners HealthVest Millennium Palo Alto Perceptive Life Sciences Redwood Grove SAC Capital Advisors Sprout Group S Squared Technology Corp Tourneaux Trinity 6 EX-23.1.1 7 ex23-11.txt EXHIBIT 23.1.1 EXHIBIT 23.1.1 Independent Auditors' Consent We consent to the incorporation by reference in this Registration Statement of Generex Biotechnology Corporation (the "Company") on Form S-3 of our report dated October 7, 2002 (which expresses an unqualified opinion and includes an explanatory paragraph referring to the restatement of 2001 financial statements) appearing in the Annual Report on Form 10-K of the Company for the year ended July 31, 2002 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche LLP - ----------------------------- Toronto, Ontario November 13, 2003 EX-23.1.2 8 ex23-12.txt EXHIBIT 23.1.2 EXHIBIT 23.1.2 Consent of Independent Auditors Generex Biotechnology Corporation 33 Harbour Square Suite 202 Toronto, Ontario M5J 2G2 We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement on Form S-3 of our report dated September 22, 2003 relating to the consolidated financial statements of Generex Biotechnology Corporation, appearing in the Company's Annual Report on Form 10-K for the year ended July 31, 2003. We also consent to the reference to us under the caption "Experts" in the Prospectus. /s/ BDO Dunwoody LLP - --------------------- Toronto, Ontario November 13, 2003 EX-23.1.3 9 ex23-13.txt EXHIBIT 23.1.3 EXHIBIT 23.1.3 [Letterhead of Eckert Seamans Cherin & Mellott, LLC] November 12, 2003 Generex Biotechnology Corporation 33 Harbour Square, Suite 202 Toronto, Ontario Canada M5J262 Re: Registration Statement on Form S-3 ---------------------------------- Gentlemen/Ladies: We have acted as counsel to Generex Biotechnology Corporation (the "Company") in connection with the preparation and filing of a Registration Statement on Form S-3 under the Securities Act of 1933 (the "Registration Statement") relating to a public offering of up to 3,859,974 shares of the Company's common stock (the "Common Stock") par value $.001 per share (the "Shares"). The Shares are proposed to be sold pursuant to the Registration Statement by certain shareholders and holders of options and warrants of the Company for their own accounts. Of the Shares, (i) 1,989,974 shares of Common Stock are presently outstanding (the "Initial Shares"), (ii) 1,000,000 shares represent Common Stock reserved for issuance, without condition, to the former shareholders of Antigen Express, Inc., on January 31, 2004 pursuant to the terms of the Agreement and Plan of Merger ("Merger Agreement") among the Company, Antigen Express, Inc. and AGEXP Acquisition Corp. (the "Additional Shares") and (iii) 870,000 shares represent Common Stock reserved for issuance upon the exercise of certain outstanding options and warrants (the "Underlying Shares"). We are familiar with the Registration Statement. We have reviewed the Company's Certificate of Incorporation and By-laws, each as amended to date. We also have examined such public and private corporate documents, certificates, instruments and corporate records, and have made such other and further investigation, as we have deemed necessary for the purpose of expressing an opinion on the matters set forth below. In all of our examinations we have assumed the genuineness of all signatures, the authenticity of all documents and instruments submitted to us as originals or copies, and the conformity of any copies to the originals. We have also made such investigations of law as we have considered necessary or appropriate to form a basis for this opinion. On the basis of the foregoing, we are of the opinion that (i) the Initial Shares have been duly authorized by the Company and are validly issued, fully paid and nonassessable, (ii) the Additional Shares, when issued on January 31, 2004 pursuant to the Merger Agreement, will be validly issued, fully paid and nonassessable, and (iii) the Underlying Shares, when issued and sold upon the exercise of options and warrants and in accordance with the terms of such options and warrants, will be validly issued, fully paid and nonassessable. We are members of the bar of the Commonwealth of Pennsylvania and our opinion herein is limited to the Delaware General Corporation Law and the federal laws of the United States of America, to the extent applicable. This opinion is limited to the facts and law as they may appear to us on the date hereof, and we assume no responsibility to update this opinion for changes in the law or new facts which may come to our attention. We consent to the filing of this opinion as an Exhibit to the Registration Statement and consent to the reference to us under the caption "Legal Matters" in the Prospectus included in the Registration Statement. Very truly yours, /s/ ECKERT SEAMANS CHERIN & MELLOTT, LLC gxm/jkh -----END PRIVACY-ENHANCED MESSAGE-----