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EXHIBIT 4.4
NEITHER THESE SECURITIES NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL
BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
GENEREX BIOTECHNOLOGY CORPORATION
ADDITIONAL INVESTMENT RIGHT
Date of Original Issuance: July 12, 2004
Generex Biotechnology Corporation, a Delaware corporation (the
"COMPANY"), hereby certifies that, for
value received, [ ] or its registered
assigns (the "HOLDER"), is entitled to
purchase from the Company up to a total
number Units (as defined in Section 1) as
equals the quotient obtained by
dividing (a) $[ ] by (b) the Exercise Price
(as defined in Section 1). This
Additional Investment Right ("ADDITIONAL
INVESTMENT RIGHT") may be exercised
from time to time and at any time in whole
or in part prior to the Expiration
Date and is subject to the terms and
conditions set forth below.
1. Definitions. As used in this Additional Investment Right,
the
following terms shall have the respective
definitions set forth in this Section.
Capitalized terms that are used and not
defined in this Additional Investment
Right that are defined in the Purchase
Agreement (as defined below) shall have
the respective definitions set forth in the
Purchase Agreement.
(a) "BUSINESS DAY" means any day except Saturday, Sunday and
any day which is a federal legal holiday in
the United States or a day on which
banking institutions in the State of New
York are authorized or required by law
or other government action to close.
(b) "CLOSING PRICE" means on any particular date: (a) the
closing sales price per share of Common
Stock on such date on any of the New
York Stock Exchange, American Stock
Exchange, NASDAQ National Market or NASDAQ
SmallCap Market on which the Common Stock
is then listed or quoted (as reported
by Bloomberg L.P. for regular session
trading on such day), or if there is no
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such price on such date, then the closing
sales price on such trading markets on
the date nearest preceding such date (as
reported by Bloomberg L.P. for the
closing sales price for regular session
trading on such day), or (b) if the
shares of Common Stock are not then listed
or quoted on any of the New York
Stock Exchange, American Stock Exchange,
NASDAQ National Market or NASDAQ
SmallCap Market, the closing sales price
for a share of Common Stock on the OTC
Bulletin Board (as reported by Bloomberg
L.P. for 5:00 P.M. (New York time), or
(c) if the shares of Common Stock are not
then reported by the OTC Bulletin
Board or the National Quotation Bureau
Incorporated (or similar organization or
agency succeeding to its functions of
reporting prices), then the average of the
"Pink Sheet" quotes for the relevant
conversion period, as determined in good
faith by the Holder, or (d) if the shares
of Common Stock are not then publicly
traded the fair market value of a share of
Common Stock as determined by an
appraiser selected in good faith by the
Holders of this Additional Investment
Right.
(c) "COMMON STOCK" means the common stock of the Company,
$.001 par value per share, and any
securities into which such common stock may
be hereafter reclassified.
(d) "EXPIRATION DATE" means the 120th Trading Day after the
Effective Date for the initial Registration
Statement.
(e) "EXERCISE PRICE" means $1.22; provided, that if the
Company's auditors issue a report
containing a "going concern qualification"
within the Company's Annual Report on Form
10-K for the Company's fiscal year
ended July 31, 2004, then the Exercise
Price shall equal the lesser of (i) $1.22
and (ii) the greater of (x) the average
Closing Price for the five Trading Days
immediately after public announcement of
such report and (y) 70% of the Per Unit
Purchase Price (as defined under the
Purchase Agreement).
(f) "EXERCISE SHARES" means the shares of Common Stock
issuable upon exercise of this Additional
Investment Right.
(g) "EXERCISE WARRANT" means the Common Stock Purchase
Warrant, in the form of Exhibit A, pursuant
to which, upon each delivery of an
Exercise Notice hereunder, the Holder will
have the right to acquire Warrant
Shares in such number as described in
Section 5(a).
(h) "PURCHASE AGREEMENT" means the Securities Purchase
Agreement, dated June 23, 2004, to which
the Company and the original Holder are
parties.
(i) "TRADING DAY" means (i) a day on which the Common Stock is
traded on a Trading Market (other than the
OTC Bulletin Board), or (ii) if the
Common Stock is not listed on a Trading
Market, a day on which the Common Stock
is traded in the over-the-counter market,
as reported by the OTC Bulletin Board,
or (iii) if the Common Stock is not quoted
on the OTC Bulletin Board, a day on
which the Common Stock is quoted in the
over-the-counter market as reported by
the National Quotation Bureau Incorporated
(or any similar organization or
agency succeeding to its functions of
reporting prices); provided, that in the
event that the Common Stock is not listed
or quoted as set forth in (i), (ii)
and (iii) hereof, then Trading Day shall
mean a Business Day.
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(j) "UNIT" means (i) one Exercise Share; and (ii) the right to
purchase Warrant Shares under the Exercise
Warrant equal to eighty (80) percent
of an Exercise Share.
(k) "WARRANT SHARES" means the shares of Common Stock issuable
upon exercise of the Exercise Warrants.
2. Registration of Additional Investment Right. The Company
shall
register this Additional Investment Right,
upon records to be maintained by the
Company for that purpose (the "ADDITIONAL
INVESTMENT RIGHT REGISTER"), in the
name of the record Holder hereof from time
to time. The Company may deem and
treat the registered Holder of this
Additional Investment Right as the absolute
owner hereof for the purpose of any
exercise hereof or any distribution to the
Holder, and for all other purposes, absent
actual notice to the contrary.
3. Registration of Transfers. The Company shall register the
transfer
of any portion of this Additional
Investment Right in the Additional Investment
Right Register, upon surrender of this
Additional Investment Right, with the
Form of Assignment attached hereto duly
completed and signed, to the Company at
its address specified herein. Upon any such
registration or transfer, a new
Additional Investment Right to purchase
Common Stock, in substantially the form
of this Additional Investment Right (any
such new Additional Investment Right, a
"NEW ADDITIONAL INVESTMENT RIGHT"),
evidencing the portion of this Additional
Investment Right so transferred shall be
issued to the transferee and a New
Additional Investment Right evidencing the
remaining portion of this Additional
Investment Right not so transferred, if
any, shall be issued to the transferring
Holder. The acceptance of the New
Additional Investment Right by the transferee
thereof shall be deemed the acceptance by
such transferee of all of the rights
and obligations of a holder of an
Additional Investment Right.
4. Exercise and Duration of Additional Investment Rights. Subject
to
the terms and conditions hereof, this
Additional Investment Right shall be
exercisable by the registered Holder at any
time and from time to time on or
after the date hereof to and including 6:30
p.m. New York City time, on the
Expiration Date. At 6:30 p.m., New York
City time on the Expiration Date, the
portion of this Additional Investment Right
not exercised prior thereto shall be
and become void and of no value. The
Company may not call or redeem any portion
of this Additional Investment Right without
the consent of the Holder.
5. Delivery of Units.
(a) To acquire Units under this Additional Investment Right,
the Holder shall not be required to
physically surrender this Additional
Investment Right unless the aggregate Units
then represented by this Additional
Investment Right is being exercised. Upon
delivery of a written notice, in the
form of the Exercise Notice attached hereto
(the "EXERCISE NOTICE") to the
Company (together with the Additional
Investment Right Exercise Log attached
thereto (the "ADDITIONAL INVESTMENT RIGHT
EXERCISE LOG")) at its address for
notice set forth herein and upon payment of
an amount equal to the Exercise
Price multiplied by the number of Units
that the Holder intends to purchase
hereunder, the Company shall promptly (but
in no event later than three Trading
Days after the Date of Exercise) issue and
deliver to the Holder, (1) a
certificate representing the number of
Exercise Shares to which such exercise
pertains (the dollar amount of the exercise
at issue divided by the Exercise
Price), which, unless otherwise required by
the Purchase Agreement, shall be
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free of restrictive legends, and (2)
Exercise Warrants in such number as would
give the Holder the right to acquire a
number of Warrant Shares equal to eighty
(80) percent of the number of Exercise
Shares issuable in respect of such
Exercise Notice in accordance with clause
(1) of this sentence. The Company
shall, upon request of the Holder and
subsequent to the date on which a
registration statement covering the resale
of the Exercise Shares has been
declared effective by the Securities and
Exchange Commission, use commercially
reasonable efforts to deliver the Exercise
Shares hereunder electronically
through the Depository Trust Corporation or
another established clearing
corporation performing similar functions,
if available, provided, that, the
Company may, but will not be required to
change its transfer agent if its
current transfer agent cannot deliver
Exercise Shares electronically through the
Depository Trust Corporation. A "DATE OF
EXERCISE" means the date on which the
Holder shall have delivered to Company: (i)
the Exercise Notice (with the
Additional Investment Right Exercise Log
attached to it), appropriately
completed and duly signed and (ii) the
Exercise Price for the number of Units so
indicated by the Holder to be
purchased.
(b) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required
number of Units in the manner required
pursuant to Section 5(a), then the Holder
will have the right to rescind such
exercise.
(c) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required
number of Units in the manner required
pursuant to Section 5(a), and if after such
third Trading Day and prior to the
receipt of such Units, the Holder purchases
(in an open market transaction or
otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the
Holder of the Exercise Shares which the
Holder anticipated receiving upon such
exercise (a "BUY-IN"), then the Company
shall (1) pay in cash to the Holder the
amount by which (x) the Holder's total
purchase price (including brokerage
commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the
amount obtained by multiplying (A) the
number of Exercise Shares that the
Company was required to deliver to the
Holder in connection with the exercise at
issue by (B) the closing bid price of the
Common Stock at the time of the
obligation giving rise to such purchase
obligation and (2) at the option of the
Holder, either reinstate the portion of the
Additional Investment Right and
equivalent number of Units for which such
exercise was not honored or deliver to
the Holder the number of Exercise Warrants
that would have been issued had the
Company timely complied with its exercise
and delivery obligations hereunder.
The Holder shall provide the Company
written notice indicating the amounts
payable to the Holder in respect of the
Buy-In.
(d) Provided that the Holder has satisfied its obligations
hereunder, the Company's obligations to
issue and deliver Units in accordance
with the terms hereof are absolute and
unconditional, irrespective of any action
or inaction by the Holder to enforce the
same, any waiver or consent with
respect to any provision hereof, the
recovery of any judgment against any Person
or any action to enforce the same, or any
setoff, counterclaim, recoupment,
limitation or termination, or any violation
or alleged violation of law by the
Holder or any other Person, and
irrespective of any other circumstance which
might otherwise limit such obligation of
the Company to the Holder in connection
with the issuance of Units. Nothing herein
shall limit a Holder's right to
pursue any other remedies available to it
hereunder, at law or in equity
including, without limitation, a decree of
specific performance and/or
injunctive relief with respect to the
Company's failure to timely deliver
certificates representing Exercise Shares
upon exercise of the Additional
Investment Right as required pursuant to
the terms hereof.
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6. Charges, Taxes and Expenses. Issuance and delivery of Units
(including Exercise Shares) upon exercise
of this Additional Investment Right
shall be made without charge to the Holder
for any issue or transfer tax,
withholding tax, transfer agent fee or
other incidental tax or expense in
respect of the issuance of such
certificates, all of which taxes and expenses
shall be paid by the Company; provided,
however, that the Company shall not be
required to pay any tax which may be
payable in respect of any transfer involved
in the registration of any certificates for
Exercise Shares or Exercise Warrants
in a name other than that of the Holder.
The Holder shall be responsible for all
other tax liability that may arise as a
result of holding or transferring this
Additi
