Exhibit
10.1

     

    At
Market Issuance Sales Agreement

     

    October
14, 2009

     

    Wm Smith
& Co.

    1700
Lincoln Street, Suite 2545

    Denver CO
80203

     

    Ladies
and Gentlemen:

     

    Generex
Biotechnology Corporation, a Delaware corporation (the “Company”), confirms
its agreement (this “Agreement”) with Wm
Smith & Co., a Colorado corporation (“Wm Smith”), as
follows:

     

    1.           Issuance and Sale of
Shares.  The Company agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth
herein, it may issue and sell through Wm Smith, acting as agent, up to
$20,000,000 of shares (the “Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common Stock”);
provided, however, that in no event shall the Company issue or sell through Wm
Smith such number of Shares that would cause the Company to not satisfy the
eligibility requirements for use of Form S-3 (including Instruction I.B.6.
thereof).  Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitations set forth in this
Section 1 on the number of Shares issued and sold under this Agreement shall be
the sole responsibility of the Company and that Wm Smith shall have no
obligation in connection with such compliance.  The issuance and sale
of Shares through Wm Smith will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company
to use the Registration Statement to issue Common Stock.

     

    The
Company has filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Securities
Act”), with the Commission a registration statement on Form S-3 (File No.
333-139637), including a base prospectus, with respect to equity and other
offerings, including the Shares, and which incorporates by reference documents
that the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange
Act”).  The Company will prepare a prospectus supplement (the
“Prospectus
Supplement”) to the base prospectus included as part of such registration
statement.  The Company will furnish to Wm Smith, for use by Wm Smith,
copies of the prospectus included as part of such registration statement, as
supplemented by the Prospectus Supplement, relating to the
Shares.  Except where the context otherwise requires, such
registration statement, as amended when it became effective, including all
documents filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the
Securities Act and also including any other registration statement filed
pursuant to Rule 462(b) under the Securities Act, collectively, are herein
called the “Registration
Statement,” and the base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be
supplemented by the Prospectus Supplement, in the form in which such prospectus
and/or Prospectus Supplement have most recently been filed by the Company with
the Commission pursuant to Rule 424(b) under the Securities Act is herein called
the “Prospectus.” Any
reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein.  For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement
thereto shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering Analysis and Retrieval System, or if
applicable, the Interactive Data Electronic Application system when used by the
Commission ( collectively, “EDGAR”).


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    2.           Placements.  Each
time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will
notify Wm Smith by email notice (or other method mutually agreed to in writing
by the Parties) of the number of Shares (the “Placement Shares”) to
be issued, the type of Shares, the time period during which sales are requested
to be made, any limitation on the number of Shares that may be sold in any one
day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1.  The Placement
Notice shall originate from any of the individuals from the Company set forth on
Schedule 3 (with a copy to each of the other individuals from the Company listed
on such schedule), and shall be addressed to each of the individuals from Wm
Smith set forth on Schedule 3, as such Schedule 3 may be amended from time to
time.  The Placement Notice shall be effective unless and until (i)
the entire amount of the Placement Shares have been sold, (ii) the Company
suspends or terminates the Placement Notice, (iii) the Agreement has been
terminated under the provisions of Section 12, (iv) Wm Smith determines
that the certificate delivered by the Company pursuant to Section 7(m) in
connection with the respective Placement Notice was incorrect, or (v) Wm
Smith notifies the Company that Wm Smith, in its reasonable and good faith
judgment, is unable to perform its obligations thereunder as a result of any
action taken against Wm Smith by a regulatory authority with jurisdiction over
Wm Smith and the types of offerings that would include the
Placement.  The amount of any discount, commission or other
compensation to be paid by the Company to Wm Smith in connection with the sale
of the Placement Shares shall be calculated in accordance with the terms set
forth in Schedule 2.  It is expressly acknowledged and agreed that
neither the Company nor Wm Smith will have any obligation whatsoever with
respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to Wm Smith and Wm Smith does not decline such
Placement Notice pursuant to the terms set forth above, and then only upon the
terms specified therein and herein.  In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the
terms of the Placement Notice will control.


    
      
         


      

      
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    3.           Sale of Placement Shares by
Wm Smith.  Subject to the terms and conditions herein set
forth, upon the Company’s issuance of a Placement Notice, and unless the sale of
the Placement Shares described therein has been declined, suspended, or
otherwise terminated in accordance with the terms of this Agreement, Wm Smith
will use its commercially reasonable efforts consistent with its normal trading
and sales practices to sell such Placement Shares up to the amount specified,
and otherwise in accordance with the terms of such Placement
Notice.  Wm Smith will provide written confirmation to the Company no
later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares
hereunder setting forth the number of Placement Shares sold on such day, the
compensation payable by the Company to Wm Smith pursuant to Section 2 with
respect to such sales, and the Net Proceeds (as defined below) payable to the
Company.  Wm Smith may sell Placement Shares by any method permitted
by law deemed to be an “at the market” offering as defined in Rule 415 of the
Securities Act, including without limitation sales made directly on NASDAQ
Capital Market (the “Exchange”), on any
other existing trading market for the Common Stock or to or through a market
maker.  Wm Smith may also sell Placement Shares in privately
negotiated transactions.  The Company acknowledges and agrees that
(i) there can be no assurance that Wm Smith will be successful in selling
Placement Shares, and (ii) Wm Smith will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement
Shares for any reason other than a failure by Wm Smith to use its commercially
reasonable efforts consistent with its normal trading and sales practices to
sell such Placement Shares as required under this Section 3.  For the
purposes hereof, “Trading Day” means
any day on which Common Stock is purchased and sold on the principal market on
which the Common Stock is listed or quoted.

     

    4.           Suspension of
Sales.  The Company may, upon notice to Wm Smith in writing
(including by email correspondence to each of the individuals set forth on
Schedule 3, if receipt of such correspondence is actually acknowledged by any of
the individuals to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile transmission or email
correspondence to each of the individuals of the other Party set forth on
Schedule 3), suspend any sale of Placement Shares; provided, however, that such
suspension shall not affect or impair either party’s obligations with respect to
any Placement Shares sold hereunder prior to the receipt of such
notice.  Each of the Parties agrees that no such notice under this
Section 4 shall be effective against the other unless it is made to one of the
individuals named on Schedule 3 hereto, as such Schedule may be amended from
time to time.

     

    5.           Settlement.

     

    (a)           Settlement of Placement
Shares.  Unless otherwise specified in the applicable Placement
Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Trading Day (or such earlier day as is industry practice for regular-way
trading) (each, a “Settlement Date”)
following the respective Point of Sale (as defined below).  The amount
of proceeds to be delivered to the Company on a Settlement Date against receipt
of the Placement Shares sold (the “Net Proceeds”) will
be equal to the aggregate sales price received by Wm Smith at which such
Placement Shares were sold, after deduction for (i) Wm Smith’s commission,
discount or other compensation for such sales payable by the Company pursuant to
Section 2 hereof, (ii) any other amounts due and payable by the Company to
Wm Smith hereunder pursuant to Section 7(g) (Expenses) hereof, and
(iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales (provided that any fees due and payable to
the Financial Industry Regulatory Authority (FINRA) in respect of this Agreement
or any transactions consummated hereunder shall be solely for the account of Wm
Smith).


    
      
         


      

      
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    (b)           Delivery of Placement
Shares.  On or before each Settlement Date, the Company will,
or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting Wm Smith’s or its designee’s account at The
Depository Trust Company through its Deposit and Withdrawal at Custodian System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto which in all cases shall be freely tradeable, transferable, registered
shares in good deliverable form.  On each Settlement Date, Wm Smith
will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date.  The Company
agrees that if the Company, or its transfer agent (if applicable), defaults in
its obligation to deliver Placement Shares on a Settlement Date, the Company
agrees that in addition to and in no way limiting the rights and obligations set
forth in Section 10(a) (Indemnification and Contribution) hereto, it will
(i) hold Wm Smith harmless against any loss, claim, damage, or expense
(including reasonable legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company and (ii) pay to Wm Smith any
commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.

     

    6.           Representations and
Warranties of the Company.  The Company represents and warrants
to, and agrees with, Wm Smith that as of the date of this Agreement and as of
each Representation Date (as defined in Section 7(m) below) on which a
certificate is required to be delivered pursuant to Section 7(m) of this
Agreement, as the case may be, except as may be disclosed in the Registration
Statement or a Disclosure Schedule delivered in connection
herewith:

     

    (a)           Registration Statement and
Prospectus.  The Company and, assuming no act or omission on
the part of Wm Smith that would make such statement untrue, the transactions
contemplated by this Agreement meet the requirements for and comply with the
conditions for the use of Form S-3 under the Securities Act.  The
Registration Statement has been filed with the Commission and has been declared
effective under the Securities Act.  The Prospectus Supplement will
name Wm Smith as an underwriter, acting as principal and/or agent, that the
Company might engage in the section entitled “Plan of Distribution.” The Company
has not received, and has no notice of, any order of the Commission preventing
or suspending the use of the Registration Statement, or threatening or
instituting proceedings for that purpose.  The Registration Statement
and the offer and sale of Shares as contemplated hereby meet the requirements of
Rule 415 under the Act and comply in all material respects with said
Rule.  Any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement have been so described or
filed.  Copies of the Registration Statement, the Prospectus, and any
such amendments or supplements and all documents incorporated by reference
therein that were filed with the Commission on or prior to the date of this
Agreement have been delivered, or are available through EDGAR, to Wm Smith and
their counsel.  The Company has not distributed and, prior to the
later to occur of each Settlement Date and completion of the distribution of the
Placement Shares, will not distribute any offering material in connection with
the offering or sale of the Placement Shares other than the Registration
Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined
below) to which Wm Smith has consented.  The Common Stock is currently
listed on the NASDAQ Capital Market under the trading symbol
“GNBT”.  Except as disclosed in the Registration Statement, the
Company has not, in the 12 months preceding the date hereof, received notice
from the Exchange to the effect that the Company is not in compliance with the
listing or maintenance requirements except that the Company has been notified of
its failure to comply with the $1 minimum bid listing maintenance requirement of
the NASDAQ Capital Market.  The Company has no reason to believe that
it will not in the foreseeable future continue to be in compliance with all such
listing and maintenance requirements save and except as
aforesaid.


    
      
         


      

      
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    (b)           No Misstatement or
Omission.  The Registration Statement, when it became or
becomes effective, and the Prospectus, and any amendment or supplement thereto,
on the date of such Prospectus or amendment or supplement, conformed or will
conform in all material respects with the requirements of the Securities
Act.  At each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects with the
requirements of the Act.  The Registration Statement, when it became
or becomes effective, did not, or will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.  The
Prospectus and any amendment or supplement thereto, on the date thereof and at
each Point of Sale, did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.  The documents incorporated by reference in the Prospectus
or any Prospectus Supplement did not, and any further documents filed and
incorporated by reference therein will not, when filed with the Commission,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated in such document or necessary to make the statements in
such document, in light of the circumstances under which they were made, not
misleading.  The foregoing shall not apply to statements in, or
omissions from, any such document made in reliance upon, and in conformity with,
information furnished to the Company by Wm Smith specifically for use in the
preparation thereof.  “Point of Sale” means,
for a Placement, the time at which an acquiror of Placement Shares entered into
a contract, binding upon such acquiror, to acquire such Shares.

     

    (c)           Conformity with Securities
Act and Exchange Act.  The documents incorporated by reference
in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the
Securities Act or the Exchange Act or became or become effective under the
Securities Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the Exchange Act, as
applicable.


    
      
         


      

      
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    (d)           Financial
Information.  The consolidated financial statements and the
related notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply with the applicable requirements of the Act
and the Exchange Act, as applicable, and present fairly, the financial position
of the Company and its Subsidiaries (as defined below) as of the dates indicated
and the results of their operations and the changes in their consolidated cash
flows for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or
(ii) in the case of unaudited interim financial statements, to the extent
that they may not include footnotes or may be condensed or summary statements),
and the other financial information included or incorporated by reference in the
Registration Statement and the Prospectus has been derived from the accounting
records of the Company and its Subsidiaries and presents fairly the information
shown thereby.  Any pro forma financial statements or data included or
incorporated by reference in the Registration Statement and the Prospectus
comply with the requirements of Regulation S-X of the Securities Act, including,
without limitation, Article 11 thereof, and the assumptions used in the
preparation of such pro forma financial statements and data are reasonable, the
pro forma adjustments used therein are appropriate to give effect to the
circumstances referred to therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements and data.  No other financial statements or schedules of
the Company or any other entity are required by the Act to be included in the
Registration Statement or the Prospectus.  All disclosures contained
in the Registration Statement, the Pricing Disclosure Materials and the
Prospectus regarding “non-GAAP financial measures” (as such term is defined by
Item 10 of Regulation S-K under the Act) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable.  The Company does not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations
and any “variable interest entities” within the meaning of Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the Registration
Statement, the Pricing Disclosure Materials and the Prospectus.

     

    (e)           Conformity with EDGAR
Filing.  The Prospectus delivered to Wm Smith for use in
connection with the sale of the Placement Shares pursuant to this Agreement will
be identical to the versions of the Prospectus created to be transmitted to the
Commission for filing via EDGAR, except to the extent permitted by Regulation
S-T.

     

    (f)           Organization.  The
Company and each of its Subsidiaries are, and will be, duly organized, validly
existing as a corporation and in good standing under the laws of their
respective jurisdictions of organization.  The Company and each of its
Subsidiaries are, and will be, duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under the laws of
each other jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such license or
qualification, and have all corporate power and authority necessary to own or
hold their respective properties and to conduct their respective businesses as
described in the Registration Statement and the Prospectus, except where the
failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect or
would reasonably be expected to have a material adverse effect on or affecting
the business, properties, management, consolidated financial position,
stockholders’ equity or results of operations of the Company and its
Subsidiaries taken as a whole (a “Material Adverse
Effect”).

     

    (g)           Subsidiaries.  Generex
Pharmaceuticals Inc., Generex (Bermuda), Inc., Antigen Express, Inc., Generex
Pharmaceuticals (USA) LLC, SIA “Generex Biotechology BALTIC” and Generex
Marketing & Distribution Inc. (collectively, the “Subsidiaries”), are
the Company’s only significant subsidiaries (as such term is defined in Rule
1-02 of Regulation S-X promulgated by the Commission).  Except as set
forth in the Registration Statement in and the Prospectus, the Company owns,
directly or indirectly, all of the membership interests of the Subsidiaries free
and clear of any lien, charge, security interest, encumbrance, right of first
refusal or other restriction, and all the membership interests of the
Subsidiaries are validly issued and are fully paid, nonassessable and free of
preemptive and similar rights.


    
      
         


      

      
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    (h)           No Violation or
Default.  Neither the Company nor any of its Subsidiaries are
(i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or its Subsidiaries are a party or by which the Company or its
Subsidiaries are bound or to which any of the property or assets of the Company
or its Subsidiaries are subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of each of clauses
(ii) and (iii) above, for any such violation or default that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  To the Company’s knowledge, no other party under any
material contract or other agreement to which it or a Subsidiary is a party is
in default in any respect thereunder where such default would have a Material
Adverse Effect.

     

    (i)           No Material Adverse
Change.  Except as set forth in or otherwise contemplated by
the Registration Statement (exclusive of any amendment thereof) or the
Prospectus (exclusive of any supplement thereto), since the date of the most
recent financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus and prior to each Settlement
Date, (i) there has not been and will not have been any change in the
capital stock of the Company (except for changes in the number of outstanding
shares of Common Stock of the Company due to the issuance of shares upon the
exercise or conversion of securities exercisable for, or convertible into,
shares of Common Stock outstanding on the date hereof) or long-term debt of the
Company or of its Subsidiaries or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of
capital stock, that has resulted in or that would reasonably be expected to
result in a Material Adverse Effect to the Company and its Subsidiaries taken as
a whole; (ii) other than this Agreement, neither the Company nor its
Subsidiaries have entered or will enter into any transaction or agreement, not
in the ordinary course of business, that is material to the Company and its
Subsidiaries taken as a whole or incurred or will incur any liability or
obligation, direct or contingent, not in the ordinary course of business, that
is material to the Company and its Subsidiaries taken as a whole; (iii) there
has not been any material adverse change in the business, properties,
management, financial position, stockholders’ equity, or results of operations
of the Company and its Subsidiaries, taken as a whole; and (iv) neither the
Company nor its Subsidiaries have sustained any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or regulatory
authority.


    
      
         


      

      
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    (j)           Capitalization.  The
issued and outstanding shares of capital stock of the Company have been validly
issued, are fully paid and nonassessable and, other than as disclosed in or
contemplated by the Registration Statement or the Prospectus, are not subject to
any preemptive rights, rights of first refusal or similar rights.  The
Company has an authorized, issued and outstanding capitalization as set forth in
the Registration Statement and the Prospectus as of the dates referred to
therein (other than the grant of additional options under the Company’s existing
stock option plans, or changes in the number of outstanding shares of Common
Stock of the Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into, shares of Common
Stock outstanding on the date hereof) and such authorized capital stock conforms
to the description thereof set forth in the Registration Statement and the
Prospectus.  The description of the securities of the Company in the
Registration Statement and the Prospectus is complete and accurate in all
material respects.  Except as disclosed in or contemplated by the
Registration Statement or the Prospectus, as of the date referred to therein,
the Company does not have outstanding any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or
exchangeable for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.

     

    (k)           Authorization;
Enforceability.  The Company has full legal right, power and
authority to enter into this Agreement and perform the transactions contemplated
hereby.  This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except to the extent that
(i) enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification and
contribution provisions of Section 10 hereof may be limited by federal or state
securities laws and public policy considerations in respect
thereof.

     

    (l)           Authorization of Placement
Shares.  The Placement Shares, when issued and delivered
pursuant to the terms approved by the Board of Directors or a duly designated
committee thereof, against payment therefor as provided herein, will be duly and
validly authorized and issued and fully paid and nonassessable, free and clear
of any pledge, lien, encumbrance, security interest or other claim, including
any statutory or contractual preemptive rights, resale rights, rights of first
refusal or other similar rights, and will be registered pursuant to Section 12
of the Exchange Act.  The Placement Shares, when issued, will conform
in all material respects to the description thereof set forth in or incorporated
into the Prospectus.

     

    (m)           No Consents
Required.  No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company this Agreement, the issuance and sale by the Company of the
Placement Shares, except for the registration of the Placement Shares under the
Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws or by
the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”) or the
Exchange in connection with the sale of the Placement Shares by Wm
Smith.

     

    (n)           No Preferential
Rights.  Except as set forth in the Registration Statement, the
Prospectus or in a separate disclosure letter delivered to Wm Smith concurrently
with the execution and delivery of this Agreement, (i) no person, as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the
right, contractual or otherwise, to cause the Company to issue or sell to such
Person any shares of Common Stock or shares of any other capital stock or other
securities of the Company, (ii) no Person has any preemptive rights, resale
rights, rights of first refusal, or any other rights (whether pursuant to a
“poison pill” provision or otherwise) to purchase any shares of Common Stock or
shares of any other capital stock or other securities of the Company,
(iii)  no Person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Shares, and
(iv) no Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any shares of Common Stock or
shares of any other capital stock or other securities of the Company, or to
include any such shares or other securities in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Placement Shares
as contemplated thereby or otherwise.


    
      
         


      

      
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    (o)           Independent Public
Accountant.  MSCM LLP (the “Accountant”), whose
report on the consolidated financial statements of the Company is filed with the
Commission as part of the Registration Statement and the Prospectus, are and,
during the periods covered by their report, were independent public accountants
within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States).  To the Company’s knowledge, after
due and careful inquiry, the Accountant is not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)
with respect to the Company.

     

    (p)           Enforceability of
Agreements.  To the knowledge of the Company, all agreements
between the Company and third parties expressly referenced in the Prospectus are
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general equitable principles
and (ii) the indemnification provisions of certain agreements may be
limited be federal or state securities laws or public policy considerations in
respect thereof and except for any unenforceability that, individually or in the
aggregate, would not unreasonably be expected to have a Material Adverse
Effect.

     

    (q)           No
Litigation.  Except as set forth in the Registration Statement
or the Prospectus, there are no legal, governmental or regulatory actions, suits
or proceedings pending, nor, to the Company’s knowledge, any legal, governmental
or regulatory investigations, to which the Company or a Subsidiary is a party or
to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company
or any of its Subsidiaries, would reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; to the Company’s knowledge, no
such actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory investigations,
actions, suits or proceedings that are required under the Act to be described in
the Prospectus that are not so described; and (ii) there are no contracts
or other documents that are required under the Act to be filed as exhibits to
the Registration Statement that are not so filed.


    (r)           Licenses and
Permits.  Except as set forth in the Registration Statement or
the Prospectus, the Company and each of its Subsidiaries possess or have
obtained, and at each Settlement Date will possess and will have obtained, all
licenses, certificates, consents, orders, approvals, permits and other
authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the
Registration Statement and the Prospectus (the “Permits”), except
where the failure to possess, obtain or make the same would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.  Except as disclosed in the Registration Statement or the
Prospectus, neither the Company nor any of its Subsidiaries have received
written notice of any proceeding relating to revocation or modification of any
such Permit or has any reason to believe that such Permit will not be renewed in
the ordinary course, except where the failure to obtain any such renewal would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.

     

    
      
         

      

      
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    (s)           Market
Capitalization.  As of the close of trading on the
Exchange on the Trading Day immediately prior to the date of this
Agreement, the aggregate market value of the outstanding voting and
non-voting common equity (as defined in Securities Act Rule 405) of the Company
held by persons other than affiliates of the Company (pursuant to Securities Act
Rule 144, those that directly, or indirectly through one or more intermediaries,
control, or are controlled by, or are under common control with, the
Company)  (the “Non-Affiliate
Shares”), was greater than $75 million (calculated by multiplying (x) the
price at which the common equity of the Company was last sold on the Exchange on
the Trading Day immediately prior to the date of this Agreement times (y) the
number of Non-Affiliate Shares).  The Company is not a shell company
(as defined in Rule 405 under the Securities Act) and has not been a shell
company for at least 12 calendar months previously and if it has been a shell
company at any time previously, has filed current Form 10 information (as
defined in Instruction I.B.6 of Form S-3) with the Commission at least 12
calendar months previously reflecting its status as an entity that is not a
shell company.

     

    (t)           No Material
Defaults.  Neither the Company nor any of the Subsidiaries has
defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.  The Company has not filed a report pursuant to Section 13(a)
or 15(d) of the Exchange Act since the filing of its last Annual Report on Form
10-K, indicating that it (i) has failed to pay any dividend or sinking fund
installment on preferred stock or (ii) has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.

     

    (u)           Certain Market
Activities.  Neither the Company, nor any of the Subsidiaries,
nor any of their respective directors, officers or controlling persons has
taken, directly or indirectly, any action designed, or that has constituted or
might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares.

     

    (v)           Broker/Dealer
Relationships.  Neither the Company nor any of the Subsidiaries
or any related entities (i) is required to register as a “broker” or
“dealer” in accordance with the provisions of the Exchange Act or
(ii) directly or indirectly through one or more intermediaries, controls or
is a “person associated with a member” or “associated person of a member”
(within the meaning of Article I of the NASD Manual administered by
FINRA).


    
      
         


      

      
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    (w)           No
Reliance.  The Company has not relied upon Wm Smith or legal
counsel for Wm Smith for any legal, tax or accounting advice in connection with
the offering and sale of the Placement Shares.

     

    (x)           Taxes.  The
Company and each of its Subsidiaries have filed all federal, state, local and
foreign tax returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such taxes have become
due and are not being contested in good faith.  Except as otherwise
disclosed in or contemplated by the Registration Statement or the Prospectus, no
tax deficiency has been determined adversely to the Company or any of its
Subsidiaries which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.  The
Company has no knowledge of any federal, state or other governmental tax
deficiency, penalty or assessment which has been or might be asserted or
threatened against it which could have a Material Adverse Effect.

     

    (y)           Title to Real and Personal
Property.  Except as set forth in the Registration Statement or
the Prospectus, the Company and its Subsidiaries have good and valid title in
fee simple to all items of real property and good and valid title to all
personal property described in the Registration Statement or Prospectus as being
owned by them that are material to the businesses of the Company or such
Subsidiary, in each case free and clear of all liens, encumbrances and claims,
except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries
or (ii) would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.  Any real property described in the
Registration Statement or Prospectus as being leased by the Company and any of
its Subsidiaries is held by them under valid, existing and enforceable leases,
except those that (A) do not materially interfere with the use made or
proposed to be made of such property by the Company or any of its Subsidiaries
or (B) would not be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect.

     

    (z)           Intellectual
Property.  Except as set forth in the Registration Statement or
the Prospectus, the Company and its Subsidiaries own or possess adequate
enforceable rights to use all patents, patent applications, trademarks (both
registered and unregistered), service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as
conducted as of the date hereof, except to the extent that the failure to own or
possess adequate rights to use such Intellectual Property would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; the Company and any of its Subsidiaries have not received any
written notice of any claim of infringement or conflict which asserted
Intellectual Property rights of others, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material Adverse Effect;
the Company has conducted searches of the United States patents of record and
published foreign patents issued to third parties that may interfere with any of
the Company’s or its Subsidiaries’ patents or patent applications and it has
determined that none of the Company’s or its Subsidiaries’ patents or patent
applications interfere with any other United States patents or United States
patent applications which correspond to published foreign patents; the Company
has conducted an infringement search and determined that no patent held by any
third party is infringed by the activities of the Company and its Subsidiaries;
there are no pending, or to the Company’s knowledge, threatened judicial
proceedings or interference proceedings challenging the Company’s or its
Subsidiaries’ rights in or to or the validity of the scope of any of the
Company’s or its Subsidiaries’ patents, patent applications or proprietary
information; no other entity or individual has any right or claim in any of the
Company’s or its Subsidiaries’ patents, patent applications or any patent to be
issued therefrom by virtue of any contract, license or other agreement entered
into between such entity or individual and the Company or by any non-contractual
obligation, other than by written licenses granted by the Company; the Company
and its Subsidiaries have not received any written notice of any claim
challenging the rights of the Company or a Subsidiary in or to any Intellectual
Property owned, licensed or optioned by the Company or such Subsidiary which
claim, if the subject of an unfavorable decision would result in an Material
Adverse Effect.


    
      
         


      

      
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    (aa)         Compliance
Program.  The Company has established and administers a
compliance program applicable to the Company, to assist the Company and the
directors, officers and employees of the Company in complying with applicable
regulatory guidelines.

     

    (bb)         Environmental
Laws.  Except as set forth in the Registration Statement or the
Prospectus, the Company and its Subsidiaries (i) are in compliance with any
and all applicable federal, state, local and foreign laws, rules, regulations,
decisions and orders relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, “Environmental Laws”);
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses as described in the Registration Statement and the
Prospectus; and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except, in
the case of any of clauses (i), (ii) or (iii) above, for any such failure to
comply or failure to receive required permits, licenses, other approvals or
liability as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.

     

    (cc)         Disclosure
Controls.  The Company and each of its Subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.  The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company
and designed such disclosure controls and procedures to ensure that material
information relating to the Company and each of its Subsidiaries is made known
to the certifying officers by others within those entities, particularly during
the period in which the Company’s Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, is being prepared.  The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls
and procedures as of a date within 90 days prior to the filing date of the Form
10-K for the fiscal year ended July 31, 2008 (such date, the “Evaluation
Date”).  The Company presented in its Form 10-K for the fiscal
year ended July 31, 2008 the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date.  Since the Evaluation Date,
there have been no significant changes in the Company’s internal controls (as
such term is defined in Item 307(b) of Regulation S-K under the Act) or, to the
Company’s knowledge, in other factors that could significantly affect the
Company’s internal controls.


    
      
         


      

      
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    (dd)         Sarbanes-Oxley.  To
the knowledge of the Company, there is and has been no failure on the part of
the Company and any of the Company’s directors or officers, in their capacities
as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and
the rules and regulations promulgated thereunder.  Each of the
principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former
principal financial officer of the Company as applicable) has made all
certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with
respect to all reports, schedules, forms, statements and other documents
required to be filed by it or furnished by it to the Commission.  For
purposes of the preceding sentence, “principal executive officer” and “principal
financial officer” shall have the meanings given to such terms in the
Sarbanes-Oxley Act.

     

    (ee)         Finder’s
Fees.  Neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s fees, brokerage commissions or similar
payments in connection with the transactions herein contemplated, except as may
otherwise exist with respect to Wm Smith pursuant to this
Agreement.

     

    (ff)           Labor
Disputes.  No labor disturbance by or dispute with employees of
the Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to result in a
Material Adverse Effect

     

    (gg)        Investment Company
Act.  Neither the Company nor any of the Subsidiaries is or,
after giving effect to the offering and sale of the Placement Shares, will be an
“investment company” or an entity “controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company
Act”).

     

    (hh)        Operations.  The
operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions to which the Company
or its Subsidiaries are subject, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering
Laws”), except as would not reasonably be expected to result in a
Material Adverse Effect; and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.


    
      
         


      

      
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    (ii)           Off-Balance Sheet
Arrangements.  There are no transactions, arrangements and
other relationships between and/or among the Company, and/or, to the knowledge
of the Company, any of its affiliates and any unconsolidated entity, including,
but not limited to, any structural finance, special purpose or limited purpose
entity (each, an “Off
Balance Sheet Transaction”) that could reasonably be expected to affect
materially the Company’s liquidity or the availability of or requirements for
its capital resources, including those Off Balance Sheet Transactions described
in the Commission’s Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.  33-8056;
34-45321; FR-61), required to be described in the Prospectus which have not been
described as required.

     

    (jj)           Underwriter
Agreements.  The Company is not a party to any agreement with
an agent or underwriter for any other “at-the-market” or continuous equity
transaction.

     

    (kk)         ERISA.  To
the knowledge of the Company, each material employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and any of its
Subsidiaries has been maintained in material compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the “Code”); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred which would result in a material liability to the Company
with respect to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption; and for each such plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA, no
“accumulated funding deficiency” as defined in Section 412 of the Code has been
incurred, whether or not waived, and the fair market value of the assets of each
such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions.

     

    (ll)           Forward Looking
Statements.  No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act) (a
“Forward Looking
Statement”) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.  The Forward Looking Statements incorporated
by reference in the Registration Statement and the Prospectus from the Company’s
Annual Report on Form 10-K for the fiscal year most recently ended (i) are
within the coverage of the safe harbor for forward looking statements set forth
in Section 27A of the Act, Rule 175(b) under the Act or Rule 3b-6 under the
Exchange Act, as applicable, (ii) were made by the Company with a
reasonable basis and in good faith and reflect the Company’s good faith
commercially reasonable best estimate of the matters described therein, and
(iii) have been prepared in accordance with Item 10 of Regulation S-K under
the Act.

     

    (mm)       Wm Smith
Purchases.  The Company acknowledges and agrees that Wm Smith
has informed the Company that Wm Smith may, to the extent permitted under the
Securities Act and the Exchange Act, purchase and sell shares of Common Stock
for its own account while this Agreement is in effect, provided, that
(i) no such purchase or sales shall take place while a Placement Notice is
in effect (except to the extent Wm Smith may engage in sales of Placement Shares
purchased or deemed purchased from the Company as a “riskless principal” or in a
similar capacity) and (ii) the Company shall not be deemed to have
authorized or consented to any such purchases or sales by Wm
Smith.


    
      
         


      

      
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    (nn)         Margin
Rules.  Neither the issuance, sale and delivery of the Shares
nor the application of the proceeds thereof by the Company as described in the
Registration Statement and the Prospectus will violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System or any other regulation of
such Board of Governors.

     

    (oo)         Insurance.  The
Company and each of its Subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as the Company and each of its Subsidiaries
reasonably believe are adequate for the conduct of their properties and as is
customary for companies engaged in similar businesses in similar
industries.

     

    (pp)         No Improper
Practices.  (i) Neither the Company nor, to the Company’s
knowledge, the Subsidiaries, nor to the Company’s knowledge, any of their
respective executive officers has, in the past five years, made any unlawful
contributions to any candidate for any political office (or failed fully to
disclose any contribution in violation of law) or made any contribution or other
payment to any official of, or candidate for, any federal, state, municipal, or
foreign office or other person charged with similar public or quasi-public duty
in violation of any law or of the character required to be disclosed in the
Prospectus; (ii) no relationship, direct or indirect, exists between or
among the Company or, to the Company’s knowledge, any Subsidiary or any
affiliate of any of them, on the one hand, and the directors, officers and
stockholders of the Company or, to the Company’s knowledge, any Subsidiary, on
the other hand, that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the
Company or any Subsidiary or any affiliate of them, on the one hand, and the
directors, officers, stockholders or directors of the Company or, to the
Company’s knowledge, any Subsidiary, on the other hand, that is required by the
rules of FINRA to be described in the Registration Statement and the Prospectus
that is not so described; and (iv) except as described in the Prospectus,
there are no material outstanding loans or advances or material guarantees of
indebtedness by the Company or, to the Company’s knowledge, any Subsidiary to or
for the benefit of any of their respective officers or directors or any of the
members of the families of any of them.

     

    (qq)         Status Under the Securities
Act.  The Company was not and is not an ineligible issuer as
defined in Rule 405 under the Securities Act at the times specified in Rules 164
and 433 under the Act in connection with the offering of the
Shares.

     

    (rr)           No Misstatement or Omission
in an Issuer Free Writing Prospectus.  Each issuer free writing
prospectus, as defined in Rule 405 under the Act (an “Issuer Free Writing
Prospectus,” and together with the Preliminary Prospectus the “Pricing Disclosure
Materials”), when considered together with the Pricing Disclosure
Materials as of the applicable Point of Sale, did not or will not contain an
untrue statement of a material fact or omit to state 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; provided, however,
that the Company makes no representation or warranty with respect to any
statement contained in any Issuer Free Writing Prospectus in reliance upon and
in conformity with information concerning Wm Smith and furnished by Wm Smith to
the Company expressly for use in the Issuer Free Writing
Prospectus.


    
      
         


      

      
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    (ss)         Conformity of Issuer Free
Writing Prospectus.  Each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the requirements of the
Act on the date of first use, and the Company has complied or will comply with
any filing requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Act.  Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public
offer and sale of the Shares, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any
document incorporated by reference therein that has not been superseded or
modified.  The Company has not made any offer relating to the Shares
that would constitute an Issuer Free Writing Prospectus without the prior
written consent of Wm Smith.  The Company has retained in accordance
with the Act all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Act.

     

    (tt)           Pricing Disclosure
Materials.  The Pricing Disclosure Materials did not, as of the
applicable Point of Sale contain an untrue statement of a material fact or omit
to state 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; provided, however, that the Company makes no representation or
warranty with respect to any statement contained in the Pricing Disclosure
Materials in reliance upon and in conformity with information concerning Wm
Smith and furnished in writing by Wm Smith to the Company expressly for use in
the Pricing Disclosure Materials.

     

    (uu)         No
Conflicts.  Neither the execution of this Agreement, nor the
issuance, offering or sale of the Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by the Company
with the terms and provisions hereof and thereof will conflict with, or will
result in a breach of, any of the terms and provisions of, or has constituted or
will constitute a default under, or has resulted in or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or other agreement
to which the Company may be bound or to which any of the property or assets of
the Company is subject, except (i) such conflicts, breaches or defaults as may
have been waived and (ii) such conflicts, breaches and defaults that would not
have a Material Adverse Effect; nor will such action result (x) in any violation
of the provisions of the organizational or governing documents of the Company,
or (y) in any material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or of any court or of any federal,
state or other regulatory authority or other government body having jurisdiction
over the Company.

     

    (vv)          Stock Transfer
Taxes.  On each Settlement Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold hereunder will be, or will have
been, fully paid or provided for by the Company and all laws imposing such taxes
will be or will have been fully complied with.

     

    
      
         

      

      
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    7.           Covenants of the
Company.  The Company covenants and agrees with Wm Smith
that:

     

    (a)           Registration Statement
Amendments.  After the date of this Agreement and during any
period in which a Prospectus relating to any Placement Shares is required to be
delivered by Wm Smith under the Securities Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the Securities
Act), (i) the Company will notify Wm Smith promptly of the time when any
subsequent amendment to the Registration Statement, other than documents
incorporated by reference, has been filed with the Commission and/or has become
effective or any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information,
(ii) the Company will prepare and file with the Commission, promptly upon
Wm Smith’s request, any amendments or supplements to the Registration Statement
or Prospectus that, in Wm Smith’s reasonable opinion, may be necessary or
advisable in connection with the distribution of the Placement Shares by Wm
Smith (provided, however, that the failure of Wm Smith to make such request
shall not relieve the Company of any obligation or liability hereunder, or
affect Wm Smith’s right to rely on the representations and warranties made by
the Company in this Agreement and provided, further, that the only remedy Wm
Smith shall have with respect to the failure to make such filing shall be to
cease making sales under this Agreement until such amendment or supplement is
filed); (iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement Shares or a
security convertible into the Placement Shares unless a copy thereof has been
submitted to Wm Smith within a reasonable period of time before the filing and
Wm Smith has not reasonably objected thereto (provided, however, that the
failure of Wm Smith to make such objection shall not relieve the Company of any
obligation or liability hereunder, or affect Wm Smith’s right to rely on the
representations and warranties made by the Company in this Agreement and
provided, further, that the only remedy Wm Smith shall have with respect to the
failure to by the Company to obtain such consent shall be to cease making sales
under this Agreement) and the Company will furnish to Wm Smith at the time of
filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement or Prospectus, except
for those documents available via EDGAR; and (iv) the Company will cause
each amendment or supplement to the Prospectus to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act or, in the case of any document to be incorporated therein by
reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed (the determination to file or not file
any amendment or supplement with the Commission under this Section 7(a), based
on the Company’s reasonable opinion or reasonable objections, shall be made
exclusively by the Company).

     

    (b)           Notice of Commission Stop
Orders.  The Company will advise Wm Smith, promptly after it
receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Placement
Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.  The
Company will advise Wm Smith promptly after it receives any request by the
Commission for any amendments to the Registration Statement or any amendment or
supplements to the Prospectus or any Issuer Free Writing Prospectus or for
additional information related to the offering of the Shares or for additional
information related to the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus.


    
      
         


      

      
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    (c)           Delivery of Prospectus;
Subsequent Changes.  During any period in which a Prospectus
relating to the Placement Shares is required to be delivered by Wm Smith under
the Securities Act with respect to the offer and sale of the Placement Shares,
(including in circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Securities Act), the Company will comply with all
requirements imposed upon it by the Securities Act, as from time to time in
force, and to file on or before their respective due dates all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other
provision of or under the Exchange Act.  If the Company has omitted
any information from the Registration Statement pursuant to Rule 430A under the
Act, it will use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to said Rule 430A and to notify
Wm Smith promptly of all such filings.  If during such period any
event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend
or supplement the Registration Statement or Prospectus to comply with the
Securities Act, the Company will promptly notify Wm Smith to suspend the
offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.

     

    (d)           Listing of Placement
Shares.  During any period in which the Prospectus relating to
the Placement Shares is required to be delivered by Wm Smith under the
Securities Act with respect to the offer and sale of the Placement Shares, the
Company will use its reasonable best efforts to cause the Placement Shares to be
listed on the Exchange and to qualify the Placement Shares for sale under the
securities laws of such jurisdictions as Wm Smith reasonably designates and to
continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Company shall not be
required in connection therewith to qualify as a foreign corporation or dealer
in securities or file a general consent to service of process in any
jurisdiction.

     

    (e)           Delivery of Registration
Statement and Prospectus.  The Company will furnish to Wm Smith
and its counsel (at the expense of the Company) copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and all amendments and supplements to the Registration Statement or
Prospectus that are filed with the Commission during any period in which a
Prospectus relating to the Placement Shares is required to be delivered under
the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each
case as soon as reasonably practicable and in such quantities as Wm Smith may
from time to time reasonably request and, at Wm Smith’s request, will also
furnish copies of the Prospectus to each exchange or market on which sales of
the Placement Shares may be made; provided, however, that the Company shall not
be required to furnish any document (other than the Prospectus) to Wm Smith to
the extent such document is available on EDGAR.


    
      
         


      

      
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    (f)           Earnings
Statement.  The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions of Section
11(a) and Rule 158 of the Securities Act.

     

    (g)          Expenses.  The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, in accordance with the provisions of Section 12
hereunder, will pay all expenses incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the
preparation, printing and filing of the Registration Statement and each
amendment and supplement thereto, of each Prospectus and of each amendment and
supplement thereto, (ii) the preparation, issuance and delivery of the
Placement Shares, (iii) the qualification of the Placement Shares under
securities laws in accordance with the provisions of Section 7(d) of this
Agreement, including filing fees, (iv) the printing and delivery to Wm
Smith of copies of the Prospectus and any amendments or supplements thereto, and
of this Agreement, (v) the fees and expenses incurred in connection with
the listing or qualification of the Placement Shares for trading on the
Exchange, and (vi) filing fees and expenses, if any, of the
Commission.  Any fees and expenses due and payable to the Financial
Industry Regulatory Authority (FINRA) or legal counsel for Wm Smith in respect
of this Agreement or any transactions consummated hereunder will be solely for
the account of Wm Smith.

     

    (h)          Use of
Proceeds.  The Company will use the Net Proceeds as described
in the Prospectus in the section entitled “Use of Proceeds.”

     

    (i)           Notice of Other
Sales.  Without the prior written consent of Wm Smith, the
Company will not, directly or indirectly, in any other continuous equity
transaction, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any shares of Common Stock (other than the Shares offered
pursuant to the provisions of this Agreement) or securities convertible into or
exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock prior to the termination of this Agreement.

     

    (j)           Change of
Circumstances.  The Company will, at any time during the
pendency of a Placement Notice advise Wm Smith promptly after it shall have
received notice or obtained knowledge thereof, of any information or fact that
would alter or affect in any material respect any opinion, certificate, letter
or other document required to be provided to Wm Smith pursuant to this
Agreement.

     

    (k)          Due Diligence
Cooperation.  The Company will cooperate with any reasonable
due diligence review conducted by Wm Smith or its agents in connection with the
transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during
regular business hours and at the Company’s principal offices, as Wm Smith may
reasonably request.


    
      
         


      

      
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    (l)           Required Filings Relating to
Placement of Placement Shares.  The Company agrees that on such
dates as the Securities Act shall require, the Company will (i) file a
prospectus supplement with the Commission under the applicable paragraph of Rule
424(b) under the Securities Act (each and every filing under Rule 424(b), a
“Filing Date”),
which prospectus supplement will set forth, within the relevant period, the
amount of Placement Shares sold through Wm Smith, the Net Proceeds to the
Company and the compensation payable by the Company to Wm Smith with respect to
such Placement Shares, and (ii) deliver such number of copies of each such
prospectus supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such exchange or
market.

     

    (m)         Representation Dates;
Certificate.  During the term of this Agreement, on the date of
each Placement Notice given hereunder and each time the Company (i) files
the Prospectus relating to the Placement Shares or amends or supplements the
Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(l) of this
Agreement) by means of a post-effective amendment, sticker, or supplement but
not by means of incorporation of document(s) by reference to the Registration
Statement or the Prospectus relating to the Placement Shares; (ii) files an
annual report on Form 10-K under the Exchange Act; (iii) files its
quarterly reports on Form 10-Q under the Exchange Act; (iv) files a report
on Form 8-K containing amended financial information (other than an earnings
release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or
to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the
reclassifications of certain properties as discontinued operations in accordance
with Statement of Financial Accounting Standards No. 144) under the Exchange Act
or (v) files a Form 8-K under the Exchange Act for any other purpose (other
than to “furnish” information pursuant to Items 2.02 or 7.01 of revised Form
8-K) (each date of filing of one or more of the documents referred to in clauses
(i) through (v) shall be a “Representation
Date”); the Company shall furnish Wm Smith (but in the case of clause (v)
above only if Wm Smith reasonably determines that the information contained in
such Form 8-K is material) with a certificate, in the form attached hereto as
Exhibit 7(m).  The requirement to provide a certificate under this
Section 7(m) shall be waived for any Representation Date occurring at a time at
which no Placement Notice is pending, which waiver shall continue until the
earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and
the next occurring Representation Date; provided, however, that such waiver
shall not apply for any Representation Date on which the Company files its
annual report on Form 10-K.  Notwithstanding the foregoing, if the
Company subsequently decides to sell Placement Shares following a Representation
Date when the Company relied on such waiver and did not provide Wm Smith with a
certificate under this Section 7(m), then before the Company delivers the
Placement Notice or Wm Smith sells any Placement Shares, the Company shall
provide Wm Smith with a certificate, in the form attached hereto as Exhibit
7(m), dated the date of the Placement Notice.

     

    (n)          Legal
Opinion.  Within ten days following the date of this Agreement
(but, in no event, later than the date of the initial Placement Notice given
hereunder) and, thereafter, within ten days following each date that the Company
files an annual report on Form 10-K under the Exchange Act or a quarterly report
on Form 10-Q under the Exchange Act during the term of this Agreement, the
Company shall cause to be furnished to Wm Smith a written opinion of Eckert
Seamans Cherin Mellott, LLC (“Company Counsel”) in
form and substance satisfactory to Wm Smith and its counsel, substantially
similar to the form attached hereto as Exhibit 7(n), modified, as necessary, to
relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, the Company shall be required to furnish to Wm
Smith no more than one opinion hereunder per calendar quarter; provided,
further, that in lieu of such opinions for subsequent periodic filings under the
Exchange Act, counsel may furnish Wm Smith with a letter (a “Reliance Letter”) to
the effect that Wm Smith may rely on a prior opinion delivered under this
Section 7(n) to the same extent as if it were dated the date of such letter
(except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented as of the
date of the Reliance Letter).


    
      
         


      

      
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    (o)          Comfort
Letter.  During the term of this Agreement, no later than ten
Trading Days following the date the Company files its annual report on Form 10-K
for the year ended July 31, 2009 and thereafter within ten Trading Days
following each subsequent date the Company files an annual report on Form 10-K
under the Exchange Act, during any period in which the Prospectus relating to
the Placement Shares is required to be delivered by Wm Smith (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under
the Act) and with respect to which the Company is obligated to deliver a
certificate in the form attached hereto as Exhibit 7(m) for which no waiver is
applicable, the Company shall cause its independent accountants to furnish Wm
Smith letters (the “Comfort Letters”),
dated the date the Comfort Letter is delivered; provided, that if requested by
Wm Smith, the Company shall cause a Comfort Letter to be furnished to Wm Smith
within ten Trading Days of the date of occurrence of any material transaction or
event, including the restatement of the Company’s financial
statements.  The Comfort Letter from the Company’s independent
accountants shall be in a form and substance reasonably satisfactory to Wm
Smith, (i) confirming that they are an independent public accounting firm within
the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date,
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings (the
first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any
information that would have been included in the Initial Comfort Letter had it
been given on such date and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such
letter.

     

    (p)          Market
Activities.  The Company will not, directly or indirectly,
(i) take any action designed to cause or result in, or that constitutes or
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares or (ii) sell, bid for, or purchase the Shares, or pay anyone any
compensation for soliciting purchases of the Shares other than Wm
Smith.

     

    (q)          Investment Company
Act.  The Company will conduct its affairs in such a manner so
as to reasonably ensure that neither it nor the Subsidiaries will be or become,
at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act, assuming no change in the
Commission’s current interpretation as to entities that are not considered an
investment company.

     

    (r)           No Offer to
Sell.  Other than an Issuer Free Writing Prospectus approved in
advance by the Company and Wm Smith in its capacity as principal or agent
hereunder, neither Wm Smith nor the Company (including its agents and
representatives, other than Wm Smith in its capacity as such) will make, use,
prepare, authorize, approve or refer to any written communication (as defined in
Rule 405 under the Act), required to be filed with the Commission, that
constitutes an offer to sell or solicitation of an offer to buy Shares
hereunder.


    
      
         


      

      
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    (s)          Sarbanes-Oxley
Act.  The Company and the Subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted
accounting principles and including those policies and procedures that
(i) pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of the assets of
the Company, (ii) provide reasonable assurance that transactions are
recorded as necessary to permit the preparation of the Company’s consolidated
financial statements in accordance with generally accepted accounting
principals, (iii) that receipts and expenditures of the Company are being
made only in accordance with management’s and the Company’s directors’
authorization, and (iv) provide reasonable assurance regarding prevention
or timely detection of unauthorized acquisition, use or disposition of the
Company’s assets that could have a material effect on its financial
statements.  The Company and the Subsidiaries will maintain such
controls and other procedures, including, without limitation, those required by
Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations
thereunder that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company’s management, including its Chief
Executive Officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required
disclosure and to ensure that material information relating to the Company or
the Subsidiaries is made known to them by others within those entities,
particularly during the period in which such periodic reports are being
prepared.

     

    8.           Covenants of Wm
Smith.  Wm Smith covenants and agrees that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the applicable
statutes and regulations of each state in which the Shares will be offered and
sold, except such states in which Wm Smith is exempt from registration or such
registration is not otherwise required.  Wm Smith shall continue, for
the term of this Agreement, to be duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations of each
state in which the Shares will be offered and sold, except such states in which
Wm Smith is exempt from registration or such registration is not otherwise
required, during the term of this Agreement.

     

    9.           Conditions to Wm Smith’s
Obligations.  The obligations of Wm Smith hereunder with
respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein,
to the due performance by the Company of its obligations hereunder, to the
completion by Wm Smith of a due diligence review satisfactory to Wm Smith in its
reasonable judgment, and to the continuing satisfaction (or waiver by Wm Smith
in its sole discretion) of the following additional conditions:

     

    (a)          Registration Statement
Effective.  The Registration Statement shall have become
effective and shall be available for the (i) resale of all Placement Shares
issued to Wm Smith and not yet sold by Wm Smith and (ii) the sale of all
Placement Shares contemplated to be issued by any Placement
Notice.


    
      
         


      

      
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    (b)          No Material
Notices.  None of the following events shall have occurred and
be continuing: (i) receipt by the Company of any request for additional
information from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement, the
response to which would require any post-effective amendments or supplements to
the Registration Statement or the Prospectus; (ii) the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (iii) receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
(other than the notification referred to in paragraph 6(a) hereof in respect of
NASDAQ’s $1 minimum bid requirement); or (iv) the occurrence of any event
that makes any material statement made in the Registration Statement or the
Prospectus or any material document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making
of any changes in the Registration Statement, related Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any
materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and, that in the case of the Prospectus, it will not contain any
materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.

     

    (c)          No Misstatement or Material
Omission.  Wm Smith shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact that in Wm Smith’s reasonable opinion is
material, or omits to state a fact that in Wm Smith’s opinion is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.

     

    (d)          Material
Changes.  Except as contemplated in the Prospectus, or
disclosed in the Company’s reports filed with the Commission, there shall not
have been any material adverse change, on a consolidated basis, in the
authorized capital stock of the Company or any Material Adverse Effect, or any
development that could reasonably be expected to cause a Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the
Company’s securities (other than asset backed securities) by any rating
organization or a public announcement by any rating organization that it has
under surveillance or review its rating of any of the Company’s securities
(other than asset backed securities), the effect of which, in the case of any
such action by a rating organization described above, in the reasonable judgment
of Wm Smith (without relieving the Company of any obligation or liability it may
otherwise have), is so material as to make it impracticable or inadvisable to
proceed with the offering of the Placement Shares on the terms and in the manner
contemplated in the Prospectus.

     

    (e)          Legal
Opinion.  Wm Smith shall have received the opinions of Company
Counsel required to be delivered pursuant Section 7(n) on or before the date on
which such delivery of such opinion is required pursuant to Section
7(n).


    
      
         


      

      
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    (f)           Comfort
Letter.  Wm Smith shall have received the Comfort Letter
required to be delivered pursuant Section 7(o) on or before the date on which
such delivery of such opinion is required pursuant to Section 7(o).

     

    (g)          Representation
Certificate.  Wm Smith shall have received the certificate
required to be delivered pursuant to Section 7(m) on or before the date on which
delivery of such certificate is required pursuant to Section 7(m).

     

    (h)          No
Suspension.  Trading in the Shares shall not have been
suspended on the Exchange.

     

    (i)           Other
Materials.  On each date on which the Company is required to
deliver a certificate pursuant to Section 7(m), the Company shall have furnished
to Wm Smith such appropriate further information, certificates and documents as
Wm Smith may reasonably request.  All such opinions, certificates,
letters and other documents will be in compliance with the provisions
hereof.  The Company will furnish Wm Smith with such conformed copies
of such opinions, certificates, letters and other documents as Wm Smith shall
reasonably request.

     

    (j)           Securities Act Filings
Made.  All filings with the Commission required by Rule 424
under the Securities Act to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the applicable time
period prescribed for such filing by Rule 424.

     

    (k)          Approval for
Listing.  The Placement Shares shall either have been approved
for listing on the Exchange, subject only to notice of issuance, or
(ii) the Company shall have filed an application for listing of the
Placement Shares on the Exchange at, or prior to, the issuance of any Placement
Notice.

     

    (l)           No Termination
Event.  There shall not have occurred any event that would
permit Wm Smith to terminate this Agreement pursuant to Section
12(a).

     

    10.           Indemnification and
Contribution.

     

    (a)          Company
Indemnification.  The Company agrees to indemnify and hold
harmless Wm Smith, the directors, officers, partners, employees and agents of Wm
Smith and each person, if any, who (i) controls Wm Smith within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, or
(ii) is controlled by or is under common control with Wm Smith (a “Wm Smith Affiliate”)
from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all reasonable investigative, legal and
other expenses incurred in connection with, and any and all amounts paid in
settlement (in accordance with Section 10(c)) of, any action, suit or proceeding
between any of the indemnified parties and any indemnifying parties or between
any indemnified party and any third party, or otherwise, or any claim asserted),
as and when incurred, to which Wm Smith, or any such person, may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based, directly or
indirectly, on (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus or in
any Issuer Free Writing Prospectus or in any application or other document
executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities laws thereof or filed with the
Commission, (ii) the omission or alleged omission to state in any such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading or (iii) any breach by any of the
indemnifying parties of any of their respective representations, warranties and
agreements contained in this Agreement; provided, however, that this indemnity
agreement shall not apply to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares pursuant to this
Agreement and is caused directly or indirectly by an untrue statement or
omission made in reliance on and in conformity with information relating to Wm
Smith.  This indemnity agreement will be in addition to any liability
that the Company might otherwise have.


    
      
         


      

      
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    (b)          Wm Smith
Indemnification.  Wm Smith agrees to indemnify and hold
harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who
(i) controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act or (ii) is controlled by or is under
common control with the Company (a “Company Affiliate”) against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 10(c), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information relating
to Wm Smith and furnished to the Company by Wm Smith.

     

    (c)          Procedure.  Any
party that proposes to assert the right to be indemnified under this Section 10
will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying
party or parties under this Section 10, notify each such indemnifying party of
the commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any indemnified party
otherwise than under this Section 10 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 10
unless, and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party.  If any such
action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written notice to
the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense.  The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing by
the indemnifying party, (2) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties.  It is understood that
the indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties.  All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are
incurred.  An indemnifying party will not, in any event, be liable for
any settlement of any action or claim effected without its written
consent.  No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 10 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or
proceeding.


    
      
         


      

      
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    (d)          Contribution.  In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in the foregoing paragraphs of this Section 10
is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or Wm Smith, the Company and Wm Smith will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than Wm Smith, such as persons who control the
Company within the meaning of the Securities Act, officers of the Company who
signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and Wm Smith may be subject in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and Wm Smith on the
other.  The relative benefits received by the Company on the one hand
and Wm Smith on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the sale of the Placement Shares (before deducting
expenses) received by the Company bear to the total compensation received by Wm
Smith (before deducting expenses) from the sale of Placement Shares on behalf of
the Company.  If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and Wm Smith, on the other, with
respect to the statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering.  Such
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or Wm Smith, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission.  The Company and Wm Smith agree that it would not be just
and equitable if contributions pursuant to this Section 10(d) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to
herein.  The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect
thereof, referred to above in this Section 10(d) shall be deemed to include, for
the purpose of this Section 10(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim to the extent consistent with Section 10(c)
hereof.  Notwithstanding the foregoing provisions of this Section
10(d), Wm Smith shall not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.  For purposes of this
Section 10(d), any person who controls a party to this Agreement within the
meaning of the Securities Act, and any officers, directors, partners, employees
or agents of Wm Smith, will have the same rights to contribution as that party,
and each officer of the Company who signed the Registration Statement will have
the same rights to contribution as the Company, subject in each case to the
provisions hereof.  Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made under this Section 10(d), will notify
any such party or parties from whom contribution may be sought, but the omission
to so notify will not relieve that party or parties from whom contribution may
be sought from any other obligation it or they may have under this Section 10(d)
except to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom
contribution is sought.  Except for a settlement entered into pursuant
to the last sentence of Section 10(c) hereof, no party will be liable for
contribution with respect to any action or claim settled without its written
consent if such consent is required pursuant to Section 10(c)
hereof.


    
      
         


      

      
        26

        
          

        

      

      
         


      

    


    11.           Representations and
Agreements to Survive Delivery.  The indemnity and contribution
agreements contained in Section 10 of this Agreement and all representations and
warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any
investigation made by or on behalf of Wm Smith, any controlling persons, or the
Company (or any of their respective officers, directors or controlling persons),
(ii) delivery and acceptance of the Placement Shares and payment therefor
or (iii) any termination of this Agreement.

     

    12.           Termination.

     

    (a)          Wm
Smith shall have the right by giving notice as hereinafter specified at any time
to terminate this Agreement if (i) any Material Adverse Effect, or any
development that has actually occurred and that is reasonably expected to cause
a Material Adverse Effect has occurred that, in the reasonable judgment of Wm
Smith, may materially impair the ability of Wm Smith to sell the Placement
Shares hereunder, (ii) the Company shall have failed, refused or been
unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another
person to deliver) any certification, opinion, or letter required under Sections
7(m), 7(n), or 7(o), Wm Smith’s right to terminate shall not arise unless such
failure to deliver (or cause to be delivered) continues for more than thirty
days from the date such delivery was required; or (iii) any other condition
of Wm Smith’s obligations hereunder is not fulfilled, or (iv), any suspension or
limitation of trading in the Placement Shares or in securities generally on the
Exchange shall have occurred.  Any such termination shall be without
liability of any party to any other party except that the provisions of Section
7(g) (Expenses), Section 9 (Indemnification), Section 11 (Survival of
Representations), Section 17 (Applicable Law; Consent to Jurisdiction) and
Section 18 (Waiver of Jury Trial) hereof shall remain in full force and effect
notwithstanding such termination.  If Wm Smith elects to terminate
this Agreement as provided in this Section 12(a), Wm Smith shall provide the
required notice as specified in Section 13 (Notices).


    
      
         


      

      
        27

        
          

        

      

      
         


      

    


    (b)          The
Company shall have the right, by giving ten days’ notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after
the date of this Agreement.  Any such termination shall be without
liability of any party to any other party except that the provisions of Section
7(g), Section 10, Section 11, Section 17 and Section 18 hereof shall remain in
full force and effect notwithstanding such termination.

     

    (c)          Wm
Smith shall have the right, by giving ten days notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of
this Agreement.  Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section
10, Section 11, Section 17 and Section 18 hereof shall remain in full force and
effect notwithstanding such termination.

     

    (d)          Unless
earlier terminated pursuant to this Section 12, this Agreement shall
automatically terminate upon the issuance and sale of all of the Placement
Shares through Wm Smith on the terms and subject to the conditions set forth
herein; provided that the provisions of Section 7(g), Section 10, Section 11,
Section 17 and Section 18 hereof shall remain in full force and effect
notwithstanding such termination.

     

    (e)          This
Agreement shall remain in full force and effect unless terminated pursuant to
Sections 12(a), (b), (c), or (d) above or otherwise by mutual agreement of the
parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 7(g), Section 10, Section 11,
Section 17 and Section 18 shall remain in full force and effect.

     

    (f)           Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided, however, that such termination shall not be
effective until the close of business on the date of receipt of such notice by
Wm Smith or the Company, as the case may be.  If such termination
shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this
Agreement.

     

    13.           Notices.  All
notices or other communications required or permitted to be given by any party
to any other party pursuant to the terms of this Agreement shall be in writing,
unless otherwise specified, and if sent to Wm Smith, shall be delivered
to:


    
      
         


      

      
        28

        
          

        

      

      
         


      

    


    Wm Smith & Co.

    1700 Lincoln Street, Suite
2545

    Denver,
CO  80203

    Attention:            William
S. Smith

    Facsimile:             303-831-0881

     

    with a
copy to:

     

    Holme
Roberts & Owen LLP

    1700
Lincoln Street, Suite 4100

    Denver,
CO  80203

    Attention:            Garth
B. Jensen

    Facsimile:             303-866-0200

     

    
      and if to
the Company, shall be delivered to:

    

     

    Generex
Biotechnology Corporation

    33
Harbour Square

    Suite
202

    Toronto,
Ontario

    Canada
M5J 2G2

    Attention:            Mark
A. Fletcher

    Facsimile:             416-364-9363

    


    Each
party to this Agreement may change such address for notices by sending to the
parties to this Agreement written notice of a new address for such
purpose.  Each such notice or other communication shall be deemed
given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on
a Business Day or, if such day is not a Business Day, on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day
actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid).  For purposes of this
Agreement, “Business
Day” shall mean any day on which the Exchange and commercial banks in the
City of New York are open for business.

     

    An
electronic communication (“Electronic Notice”)
shall be deemed written notice for purposes of this Section 13 if sent to the
electronic mail address specified by the receiving party under separate
cover.  Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives verification of receipt by the
receiving party.  Any party receiving Electronic Notice may request
and shall be entitled to receive the notice on paper, in a nonelectronic form
(“Nonelectronic
Notice”) which shall be sent to the requesting party within ten (10) days
of receipt of the written request for Nonelectronic Notice.


    
      
         


      

      
        29

        
          

        

      

      
         


      

    


    14.           Successors and
Assigns.  This Agreement shall inure to the benefit of and be
binding upon the Company and Wm Smith and their respective successors and the
affiliates, controlling persons, officers and directors referred to in Section
10 hereof.  References to any of the parties contained in this
Agreement shall be deemed to include the successors and permitted assigns of
such party.  Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.  Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party;
provided, however, that Wm Smith may assign its rights and obligations hereunder
to an affiliate of Wm Smith without obtaining the Company’s
consent.

     

    15.           Adjustments for Stock
Splits.  The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into
account any stock split, stock dividend or similar event effected with respect
to the Shares.

     

    16.           Entire Agreement; Amendment;
Severability.  This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant hereto)
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof.  Neither this
Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and Wm Smith.  In the event that
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable as written by a
court of competent jurisdiction, then such provision shall be given full force
and effect to the fullest possible extent that it is valid, legal and
enforceable, and the remainder of the terms and provisions herein shall be
construed as if such invalid, illegal or unenforceable term or provision was not
contained herein, but only to the extent that giving effect to such provision
and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.

     

    17.           Applicable Law; Consent to
Jurisdiction.  This Agreement shall be governed by, and
construed in accordance with, the internal laws of New York without regard to
the principles of conflicts of laws.  Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting in New York, New York, for the adjudication of any dispute hereunder or
in connection with any transaction contemplated hereby, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper.  Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
(certified or registered mail, return receipt requested) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.

     

    18.           Waiver of Jury
Trial.  The Company and Wm Smith each hereby irrevocably waives
any right it may have to a trial by jury in respect of any claim based upon or
arising out of this agreement or any transaction contemplated
hereby.


    
      
         


      

      
        30

        
          

        

      

      
         


      

    


    19.           Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.  Delivery of an executed Agreement by one party to the
other may be made by facsimile transmission.

     

    [Remainder
of Page Intentionally Blank]


    
      
         


      

      
        31

        
          

        

      

      
         


      

    


    If the
foregoing correctly sets forth the understanding between the Company and Wm
Smith, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and Wm Smith.

     

    


     

    
      
        	
                Very
      truly yours,

              
	 
      
	
                GENEREX
      BIOTECHNOLOGY CORPORATION

              
	 
      
	
                By:

              	
                /s/ Anna E. Gluskin

              
	 
      	
                Name:
      Anna E. Gluskin

              
	 
      	
                Title:
      President, Chief Executive Officer

              
	 
      	 
      
	
                By:

              	
                /s/ Rose C. Perri

              
	 
      	
                Name:  Rose
      C. Perri

              
	 
      	
                Title:
      Chief Financial Officer

              


      

    

     

    
      
        	
                ACCEPTED
      as of the date

                first-above
      written:

              
	 
      
	
                WM
      SMITH & CO.

              
	 
      
	
                By:

              	
                /s/ Patrice McNicoll

              
	 
      	
                Name:  Patrice
      McNicoll

              
	 
      	
                Title:  Managing
      Director

              
	 
      	 
      


      

    


    
      
         


      

      
        32

        
          

        

      

      
         


      

    


    SCHEDULE
1

    
       

      
        

      

       

    

    FORM
OF PLACEMENT NOTICE

     

    
      
        

      

    

     

    
      
        
          	
                  From:

                	
                  Rose
      C. Perri,

                
	 
      	
                  Chief
      Financial Officer,

                
	 
      	
                  Generex
      Biotechnology Corporation

                
	 
      	 
      
	
                  To:

                	
                  Wm
      Smith & Co.

                
	 
      	
                  Attention:  William
      Smith and Patrice McNicoll

                
	 	 
	
                  Subject:

                	
                  At
      Market Issuance—Placement
Notice

                


        

      

    

     

    Gentlemen:

     

    Pursuant
to the terms and subject to the conditions contained in the At Market Issuance
Sales Agreement between Generex Biotechnology Corporation, a Delaware
corporation (the “Company”), and Wm
Smith & Co., a Colorado corporation (“Wm Smith”) dated
October 14, 2009, the Company hereby requests that Wm Smith sell up to
____________ shares of the Company’s common stock, par value $0.001 per share,
at a minimum market price of $_______ per share, during the time period
beginning [month, day, time] and ending [month, day, time].

     

    The
aggregate market value of securities sold by or on behalf of the Company
pursuant to Instruction I.B.6. of Form S-3 during the 12 calendar month-period
immediately prior to the sale contemplated by the previous paragraph, together
with the aggregate market value of securities to be sold in the sale
contemplated by the previous paragraph, will not exceed one-third of the
aggregate market value of the voting and non-voting common equity held by
non-affiliates of the Company, as measured immediately prior to the sale
contemplated by the previous paragraph.


    
      
         


      

      
        33

        
          

        

      

      
         


      

    


    SCHEDULE
2

     

    
      
        

      

       

    

    Compensation

     

    
      
        

      

    

     

    The
Company shall pay to Wm Smith in cash, upon each sale of Shares pursuant to this
Agreement, an amount equal to no more than 3% of the gross proceeds from each
sale of Shares.


    
      
         


      

      
        34

        
          

        

      

      
         


      

    


    SCHEDULE
3

     

    Company:

    


    Rose C.
Perri

    Chief
Financial Officer

    t:           416.364.2551,
ext 234

    e:          rperri@generex.com

    


    Mark A.
Fletcher

    Executive
Vice-President, General Counsel

    t:           416.364.2551,
ext 235

    e:          mfletcher@generex.com

    


    Wm
Smith:

    


    Bill
Smith

    t:           303.861.9696

    e:          bsmith@wmsmith.com

     

    Patrice
McNicoll

    t:           212.769.1907

    e:          pMcNicoll@wmsmith.com


    
      
         


      

      
        35

        
          

        

      

      
         


      

    


    EXHIBIT
7(m)

     

    Form
of Representation Date Certificate

     

    This
Officers Certificate (this “Certificate”) is
executed and delivered in connection with Section 7(m) of the At Market Issuance
Sales Agreement (the “Agreement”), dated
October 14, 2009, and entered into between Generex Biotechnology
Corporation (the “Company”) and Wm
Smith & Co. (“Wm
Smith”).  All capitalized terms used but not defined herein
shall have the meanings given to such terms in the Agreement

     

    The
undersigned, a duly appointed and authorized officer of the Company, having made
all necessary inquiries to establish the accuracy of the statements below and
having been authorized by the Company to execute this certificate, hereby
certifies as follows:

     

    1.           As
of the date of this Certificate, (i) the Registration Statement does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) neither the Prospectus nor the Pricing
Disclosure Materials contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading and (iii) no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein not untrue or misleading.

     

    2.           Each
of the representations and warranties of the Company contained in the Agreement
were, when originally made, and are, as of the date of this Certificate, true
and correct in all material respects.  For the avoidance of doubt, the
market capitalization representation and warranty contained in Section 6(s)
shall be true and correct as of the close of trading on the Exchange on the
Trading Day immediately prior to the date of the Agreement.

     

    3.           Each
of the covenants required to be performed by the Company in the Agreement on or
prior to the date of the Agreement, this Representation Date, and each such
other date as set forth in the Agreement, has been duly, timely and fully
performed in all material respects and each condition required to be complied
with by the Company on or prior to the date of the Agreement, this
Representation Date, and each such other date as set forth in the Agreement or
in the Waivers has been duly, timely and fully complied with in all material
respects.

     

    4.           Subsequent
to the date of the most recent financial statements in the Prospectus, there has
been no material adverse change.

     

    5.           No
stop order suspending the effectiveness of the Registration Statement or of any
part thereof has been issued, and no proceedings for that purpose have been
instituted or are pending or threatened by any securities or other governmental
authority (including, without limitation, the Commission).


    
      
         


      

      
        36

        
          

        

      

      
         


      

    


    6.           No
order suspending the effectiveness of the Registration Statement or the
qualification or registration of the Shares under the securities or Blue Sky
laws of any jurisdiction are in effect and no proceeding for such purpose is
pending before, or threatened, to the Company's knowledge or in writing by, any
securities or other governmental authority (including, without limitation, the
Commission).

     

    7.           During
the 12 calendar months preceding the date hereof, the aggregate market value of
securities sold by or on behalf of the Company pursuant to Instruction I.B.6 of
Form S-3 is $_____________.  The aggregate market value
of  voting and non-voting common equity held by non-affiliates of the
Company as of the date hereof is $___________.

     

    The undersigned has executed this
Officer's Certificate as of the date first written above.

     

    
      
        	 
      
	 
      
	
                Name:  Rose
      C. Perri

              
	 
      
	
                Title:    Chief
      Financial Officer

              


      

    


    
      
         


      

      
        37

        
          

        

      

      
         


      

    


    EXHIBIT
7(n)

     

    Form
of Legal Opinion

    


    Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the At Market Issuance Sales Agreement.

     

    (i) The
authorized capital stock of the Company conforms in all material respects as to
legal matters to the descriptions thereof set forth in the Registration
Statement, Prospectus and the Prospectus Supplement. The Shares have been duly
authorized and, when issued and delivered pursuant to the terms of the
Agreement, will be validly issued, fully paid and non-assessable; and will not
have been issued in violation of any preemptive rights granted under the
Company’s Certificate of Incorporation or under the corporate laws of the State
of Delaware.

     

    (ii) The
Company is a validly existing corporation in good standing under the laws of the
State of Delaware, the jurisdiction of its organization.  The Company
has the corporate power to execute and deliver the Agreement and to issue, sell
and deliver the Shares.

     

    (iii) The
execution and delivery of the Agreement by the Company and the performance by
the Company of its obligations under the Agreement have been duly authorized by
all requisite corporate action on behalf of the Company.  The
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.

     

    (iv) The
sale and issuance by the Company of the Shares has been duly authorized by all
requisite corporate action on behalf of the Company.

     

    (v) The
Registration Statement, Prospectus and the Prospectus Supplement (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which we express no opinion), as of
their respective effective and issue dates, complied as to form in all material
respects with the requirements of the Securities Act and the rules and
regulations thereunder.

    


    The opinion of counsel will be
accompanied by a standard Rule 10b-5 negative assurance letter.


    
      
         


      

      
        38