Unassociated Document


    Exhibit
10.1

    FIRST
AMENDMENT TO

     

    COMMON
STOCK PURCHASE AGREEMENT

     

    This
First Amendment to Common Stock Purchase Agreement (this “First Amendment”) is
dated as of April 28, 2010, by and between Generex Biotechnology Corporation, a
Delaware corporation (the “Company”), and
Seaside 88, LP, a Florida limited partnership (such investor, including its
successors and assigns, “Seaside”).

     

    WHEREAS,
the parties entered into that certain Common Stock Purchase Agreement dated as
of April 7, 2010 (the “Agreement”;
capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Agreement), which Agreement provided for the sale
by the Company to Seaside, and the purchase by Seaside from the Company, of up
to 49,455,130 shares of Common Stock of the Company on certain Closing Dates as
set forth in the Agreement; and

     

    WHEREAS, the parties now desire to
amend the Agreement to modify the timing of the Closings pursuant to the
Agreement and certain other provisions of the Agreement, as more specifically
set forth herein.

     

    NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and Seaside agree as follows:

     

    1.           The
first Whereas clause of the Agreement shall be amended hereby by deleting such
clause in its entirety and substituting therefor the following:

     

    “WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Company
desires to issue and sell to Seaside, and Seaside desires to purchase from the
Company, up to 49,455,130 shares of Common Stock (as the same may be
proportionately adjusted in respect of any stock split, stock dividend,
combination, recapitalization or the like) on the Closing Dates;”

     

    2.           The
following definition as set forth in Section 1.1 of the Agreement shall be
amended hereby by deleting such definition in its entirety and substituting
therefor the following:

     

    “Subsequent Closing
Date” means (i) April 22, 2010, (ii) April 30, 2010 and (iii) thereafter,
the day two weeks subsequent to the prior Closing Date (or, if such day is not a
Trading Day, then the first day thereafter that is a Trading Day), or such later
dates when all conditions precedent to Seaside’s obligations to purchase the
Shares, and the Company’s obligations to issue and deliver the Shares, have been
satisfied or waived, in each event with respect to such Subsequent Closing,
unless this Agreement is earlier terminated pursuant to the terms
hereof.”

     

    3.           Section
2.2 of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:

     

    “2.2           Subsequent
Closings.  On each Subsequent Closing Date, subject to Section
2.6 and the Cap (as defined herein), Seaside shall purchase from the Company,
and the Company shall issue and sell to Seaside, 2,000,000 Shares (as the same
may be proportionately adjusted in respect of any stock split, stock dividend,
combination, recapitalization or the like) at the Per Share Purchase Price,
provided, however, that in no
event shall the Company issue and sell more than 49,455,130 Shares (as the same
may be proportionately adjusted in respect of any stock split, stock dividend,
combination, recapitalization or the like) (the “Cap”) pursuant to
this Agreement without first obtaining stockholder approval of the issuance, or
potential issuance, of such excess Shares.  Upon satisfaction or
waiver of the conditions set forth in Sections 2.3, 2.4, 2.5 and 2.6, each
Subsequent Closing shall occur at the offices of White White & Van Etten PC,
55 Cambridge Parkway, Cambridge, MA 02142, or such other location as the parties
shall mutually agree.”

     

    4.           Section
2.3(a) of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    “(a)           subject
to Section 2.6(b) and the Cap, 2,000,000 Shares (as the same may be
proportionately adjusted in respect of any stock split, stock dividend,
combination, recapitalization or the like), registered in the name of Seaside,
via the DTC DWAC system, as specified on the signature pages
hereto;”

     

    5.           Section
2.4 of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:

     

    “2.4           Deliveries by
Seaside.  On each Closing Date, Seaside shall deliver or cause
to be delivered to the Company an amount equal to the Per Share Purchase Price
for each such Closing multiplied by the number of Shares purchased on such
Closing Date, subject to Section 2.6(b) and the Cap, in each case by wire
transfer of immediately available funds to the account as specified in writing
by the Company, and in each case less the amount due Seaside for reimbursement
of its expenses pursuant to Section 5.2 hereof.”

     

    6.           Section
2.6(a) of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:

     

    “(a)           In
the event that the Per Share Purchase Price does not equal or exceed the Floor,
as calculated with respect to any Subsequent Closing Date, then such Subsequent
Closing will not occur.  In each such event, there will be one fewer
Subsequent Closing pursuant to this Agreement and the aggregate number of Shares
to be purchased hereunder shall be reduced by 2,000,000 Shares (as the same may
be proportionately adjusted in respect of any stock split, stock dividend,
combination, recapitalization or the like, and subject to Section 2.6(c) and the
Cap) for each such Subsequent Closing that does not occur because the Floor has
not been reached.

     

    7.           Except
as otherwise expressly provided in this First Amendment, all provisions of the
Agreement are hereby ratified and agreed to be in full force and effect, and are
incorporated herein by reference.  This First Amendment may be
executed in separate counterparts, each of which shall be deemed an original,
and all of which taken together shall constitute one and the same
instrument.

     

    8.           This
First Amendment and the Agreement constitute the entire agreement between the
parties with respect to the subject matter hereof, and supersede all prior
written agreements and negotiations and oral understandings, if any, with
respect to such subject matter.

     

    


     

    (Signatures
Follow)

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to Common
Stock Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.

     

    
      
        
          
            
              
                
                  
                    
                      	
                              Generex
      Biotechnology Corporation

                               

                               

                            
	
                              By: 
      /s/ Anna E. Gluskin

                                   Name:  Anna
      E. Gluskin

                                   Title:    President
      and Chief Executive Officer

                               

                               

                            
	
                              By: /s/ Rose
      Perri

                                   Name:  Rose
      Perri

                                   Title:   Chief
      Operating Officer and

                                               Chief
      Financial Officer

                               

                            
	
                              Seaside
      88, LP

                               

                              By:  Seaside
      88 Advisors, LLC

                            
	
                               

                               

                              By:  /s/
      William J. Ritger

                                     Name:
      William J. Ritger

                                     Title:  Manager