8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 20, 2017

GENEREX BIOTECHNOLOGY CORPORATION

(Exact name of registrant as specified in its charter)

Delaware	000-29169	98-0178636
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S Employer Identification No.)

4145 North Service Road, Suite 200 Burlington, Ontario Canada	L7L 6A3
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (416) 364-2551

N/A

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

In our Current Report on Form 8-K, dated January 16, 2017, Generex Biotechnology Corporation (the “Company”) reported that the Company had entered into a letter of intent (“LOI”) with Emmaus Life Sciences, Inc. (“Emmaus”) contemplating that the Company will acquire a controlling interest in the outstanding capital stock of Emmaus for a total consideration of $225,000,000 in accordance with the terms and conditions therein (the "Proposed Acquisition").

Under the LOI, the Company was required to pay Emmaus the amount of $1,500,000 on or before February 6, 2017. As previously reported, on February 6, 2017, Emmaus granted Generex an extension of the payment date for these funds to February 16, 2017. Generex was unable to make the payment by that date, and, by a letter amendment dated February 16, 2017 (the “Amendment”) , Emmaus granted Generex an extension of the payment date to February 24, 2017. As of the filing of this Current report, Generex had not yet made the payment.

In addition, under the Letter Amendment, the date upon which Generex is obliged to make payment to Emmaus of a second deposit in the amount of Two Million Dollars ($2,000,000) pursuant to the LOI was extended to March 20, 2017. Also, the date of Closing was extended to the date that is five (5) trading days after the date upon which Generex files with the Delaware Secretary of State an Amendment to its Restated Certificate of Incorporation effecting an increase in its authorized capital, provided the filing date is no later than May 1, 2017 and the date of Closing is no later than May 8, 2017.

Generex is required to provide Emmaus proof of funds to make the $2,000,000 depots no later than March 15, 2017, and is required to provide Emmaus proof of funds to make the $6,000,000 closing payment no later than three business days prior to the date the Amendment to the Restated Certificate of Incorporation is filed.

As consideration for the foregoing waivers, extensions and amendments, Generex agreed to issue to Emmaus 24,414,063 of restricted common stock of Generex (the “Shares”), calculated prior to the reverse stock split Generex is planning, within three (3) trading days of the date the Amendment to the Restated Certificate of Incorporation is filed. Generex is required to register all of these shares under the Securities Act of 1933, as amended (the “Securities Act”), in the next registration statement filed by Generex, provided however that Generex shall at all events register the Shares within forty-five (45) days of the date the Amendment to the Restated Certificate of Incorporation is filed. In addition, Generex is required to register under the Securities Act all of the shares of Generex Common Stock issued to Emmaus pursuant to the transactions contemplated by the LOI within six months after the Closing.

Cautionary Statement Regarding Forward-Looking Statements

This Current Report on Form 8-K and documents attached hereto contain forward-looking information related to the Company, Emmaus and the Proposed Acquisition of Emmaus by the Company that involves substantial risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. These forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “plans,” “anticipates,” “expects,” “intends,” “future,” “may,” “will,” “could” or similar expressions. Forward-looking statements in this document include, among other things, statements about the conditions to be satisfied for the Proposed Acquisition to be consummated, Emmaus’ and the Company’s plans, objectives, expectations and intentions, the financial condition and business of Emmaus and the Company, Emmaus’ products, their development and anticipated approval in the U.S., and the anticipated timing of closing of the Proposed Acquisition. Risks and uncertainties include, among other things, risks related to the satisfaction of the conditions to closing the Proposed Acquisition in the anticipated timeframe or at all, including uncertainties as to the possibility that the Proposed Acquisition does not close; risks related to the ability to realize the anticipated benefits of the Proposed Acquisition, including the possibility that the expected benefits from the Proposed Acquisition will not be realized or will not be realized within the expected time period; the risk that the businesses will not be integrated successfully; disruption from the transaction making it more difficult to maintain business and operational relationships; negative effects of this announcement or the consummation of the Proposed Acquisition on the market price of Emmaus’ and/or the Company’s common stock; unknown liabilities; the risk of litigation and/or regulatory actions related to the Proposed Acquisition; other business effects, including the effects of industry, market, economic, political or regulatory conditions; future exchange and interest rates; changes in tax and other laws, regulations, rates and policies; future business combinations or disposals; the uncertainties inherent in research and development; whether and when any drug applications may be filed in any jurisdictions for any indications or any additional indications for Emmaus’ products; whether and when the FDA or any other applicable regulatory authorities may approve any such applications, which will depend on its assessment of the benefit-risk profile suggested by the totality of the efficacy and safety information submitted; decisions by the FDA or other regulatory authorities regarding labeling and other matters that could affect the availability or commercial potential of Emmaus’s products and pipeline assets; and competitive developments. Other factors that may cause actual results to differ materially include those set forth in the reports that the Company files from time to time with the SEC, including its annual report on Form 10-K for the fiscal year ended July 31, 2016 and quarterly and current reports on Form 10-Q and 8-K.

Many of these factors are beyond Emmaus’ and the Company’s control.  Unless otherwise required by applicable law, Emmaus and the Company disclaim any intention or obligation to update forward-looking statements contained in these documents as the result of new information or future events or developments.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits. 

Exhibit Number	Description
10.1	Letter Agreement between Emmaus Life Sciences, Inc. and Generex dated February 20, 2017

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	GENEREX BIOTECHNOLOGY CORPORATION.
Date: February 24, 2017	/s/ Joseph Moscato
	President and Chief Executive Officer

EXHIBIT INDEX

Exhibit Number	Description
10.1	Letter Agreement between Emmaus Life Sciences, Inc. and Generex dated February 20, 2017.

EX-10.1

February 20, 2017

Joseph Moscato

Generex Biotechnology Corporation

President & Chief Executive Officer

4145 North Service Road, Suite 200

Burlington, Ontario

Canada L7L 6A3

Re: Waiver of Breach Under Letter Of Intent dated January 16, 2017

Dear Mr. Moscato,

Reference is made to that binding Letter of Intent dated January 16, 2017 between Emmaus Life Sciences, Inc. (“Emmaus”) and Generex Biotechnology Corporation (“Generex”) (the “LOI”).

The LOI at section 1.c provides that Generex shall pay One Million Five Hundred Thousand Dollars ($1,500,000) to Emmaus within three (3) weeks of January 16, 2017, which was February 6, 2017. Generex missed the deadline and on February 6, 2017 Emmaus provided a one time waiver of the breach of the LOI provided that Generex make the payment on or prior to February 16, 2017.

Generex failed to make this payment by February 16, 2017, which constitutes a continuing breach of the LOI by Generex. Emmaus is willing to provide Generex with an additional one time waiver of the continuing breach of the LOI until February 24, 2017, on the terms set forth in this letter agreement.

In addition, the date upon which Generex is obliged to make payment to Emmaus of the Second Additional Deposit (as that term is defined in sub-section 1.e of the LOI), being the sum of Two Million Dollars ($2,000,000), shall be extended to March 20, 2017 (as shall the anticipated date of the execution and delivery of the formal Purchase Agreement). Furthermore, the date of Closing (as that term is defined in the LOI) shall be extended to the date that is five (5) trading days after the date (the “Filing Date”) upon which Generex files with the Delaware Secretary of State an Amendment to its Restated Certificate of Incorporation effecting an increase in its authorized capital, provided however that the Filing Date shall be no later than May 1, 2017 and the date of Closing shall be no later than May 8, 2017.

In addition, if the LOI is terminated for any reason or no reason and Emmaus is required to return the deposits under the LOI, Emmaus shall have a period of sixty (60) days from the date of termination to return the deposits.

In light of the foregoing, subsection 1.e, of the LOI shall be amended to read in its entirely as follows:

“e. Payment of Ten ($10,000,000) Million. Purchaser and Company acknowledge the payment and receipt of an initial deposit of five hundred thousand dollars ($500,000, the “Deposit”) at their meeting place on January 16, 2017. The Parties further agree that Purchaser shall provide an additional one million, five hundred thousand dollars ($1,500,000, the “Additional Deposit”) on or prior to February 24, 2017. In addition, upon signing of the formal Purchase Agreement, which the Parties anticipate to occur no later than March 20, 2017, Purchaser shall provide an additional two million dollars ($2,000,000, the “Second Additional Deposit”). Purchaser shall provide satisfactory proof of funds for the Second Additional Deposit to Company no later than March 15, 2017. The remaining six million dollars ($6,000,000) shall be paid at closing of the formal Purchase Agreement, which shall be done no later than the date that is five (5) trading days after the date (the “Filing Date”) upon which Purchaser files with the Delaware Secretary of State an Amendment to its Restated Certificate of Incorporation effecting an increase in its authorized capital, provided however that the Filing Date shall be no later than May 1, 2017 and the date of Closing shall be no later than May 8, 2017. Purchaser shall provide satisfactory proof of funds for the six million dollars ($6,000,000) no later than three (3) business days prior to the Filing Date. If the formal Purchase Agreement is not executed or the Closing does not occur within the time periods provided for above, all deposits then made to Company shall be refunded to Purchaser within sixty (60) days, plus a breakup fee equal to warrants to acquire Company capital stock with a market value of $500,000 with a strike price corresponding to the Closing valuation of Company at $450 million. The breakup fee shall be payable only if the failure to execute the Purchase Agreement or the close is not caused by the fault of or breach of obligations by Purchaser.”

As consideration for the foregoing waiver, extensions and amendments, Generex shall issue to Emmaus 24,414,063 pre-split shares of restricted common stock of Generex (the “Shares”) within three (3) trading days of the Filing Date. The foregoing number of Shares shall be equitably adjusted in the event of a stock split, reverse stock split, stock dividend or other similar recapitalization of Generex. Generex shall register all of the Shares under the Securities Act of 1933, as amended (the “Securities Act”), in the next registration statement filed by Generex, provided however that Generex shall at all events register the Shares within forty-five (45) days of the Filing Date. Generex agrees that the Shares shall be fully paid and non-assessable when issued to Emmaus, and shall not be refundable or returnable to Generex under any circumstances whatsoever, including upon the termination of the LOI for any reason or no reason. In addition, Generex shall register under the Securities Act all of the shares of Generex Common Stock issued to Company pursuant to the transactions contemplated by the LOI within six months after the Closing.

Notwithstanding any other provision of the LOI, Generex shall indemnify Emmaus for any liabilities, costs, expenses or damages (including reasonable attorneys’ fees) related to or arising out of any disputes regarding the subject matter of this waiver or the LOI.

The foregoing waiver shall expire at 5:00pm on February 24, 2017. The foregoing waiver shall not be deemed or constitute a waiver of any of the other provisions of the LOI, nor shall the foregoing waiver constitute a continuing waiver extending beyond 5:00pm on February 24, 2017.

If Generex is in agreement with the foregoing, please execute the agreement and acceptance below and return it to me.

Sincerely,

	EMMAUS LIFE SCIENCES, INC.
By:
	Yutaka Niihara, MD, MPH Chairman and Chief Executive Officer

Agreed and accepted:

	Generex Biotechnology Corporation
By:
	Joseph Moscato
	President & Chief Executive Officer