Unassociated Document


    Exhibit
      10.1

    


    CONSENT
      AND WAIVER

    


    This
      Consent and Waiver (this “Agreement”),
      dated
      as of July ___, 2008, is entered by and between Generex Biotechnology
      Corporation, a Delaware corporation (the “Company”),
      and
      Smithfield Fiduciary LLC (the “Holder”).

    


    RECITALS

    


    A. Pursuant
      to that certain Securities Purchase Agreement (the “Purchase
      Agreement”),
      dated
      as of March 31, 2008, by and among the Company, the Holder and the other
      investors listed on the Schedule of Buyers attached thereto (together with
      the
      Holder, the “Investors”),
      the
      Holder purchased the Company’s 8% Senior Secured Convertible Note in the
      principal amount of $7,000,000.00 (the “Note”).
      Capitalized terms used in this Agreement that are not otherwise defined have
      the
      meaning set forth in the Note.

    


    B. The
      Note
      requires the Company to pay the Holder on each applicable Installment Date
      the
      Installment Amount due on such date by electing (i) a Company Conversion if
      various conditions are satisfied and/or (ii) a Company Redemption. 

    


    C. In
      connection with the Purchase Agreement, the Company and the Investors entered
      into that certain Registration Rights Agreement, dated as of March 31, 2008
      (the
“Registration
      Rights Agreement”),
      pursuant to which, among other things, the Company is obligated to have a
      registration statement for the resale of the Registrable Securities (as defined
      in the Registration Rights Agreement) (the “Registration
      Statement”)
      declared effective on or before July 29, 2008.

    


    D. As
      of the
      date hereof, certain Equity Conditions have not been satisfied, including (i)
      that the Registration Statement has not yet been declared effective for the
      resale of all of the Registrable Securities (the “Registration
      Statement Equity Condition”)
      and
      (ii) that the Company received notice from The Nasdaq Stock Market of its
      failure to comply with the minimum bid price requirement of Marketplace Rule
      4310(c)(4) and has 180 calendar days to regain compliance with such rule (the
      “Listing
      Maintenance Equity Condition”).

    


    AGREEMENTS

    


    NOW,
      THEREFORE, in consideration of the premises and the mutual covenants contained
      herein and for other good and valuable consideration, the receipt and
      sufficiency of which are hereby acknowledged, the Company and the Holder hereby
      agree as follows:

    


    1. Waiver.
      The
      Holder hereby waives satisfaction of only the following: (a) the Registration
      Statement Equity Condition solely with respect to the Installment Notice Due
      Date applicable to the Installment Date that is September 1, 2008 and (b) the
      Listing Maintenance Equity Condition solely with respect to the Installment
      Dates that are September 1, 2008 and October 1, 2008 (the “Applicable
      Installment Dates”).

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    2. Consent
      to Deferral of Installment Amount due on August 1, 2008.
      Notwithstanding the Company’s election set forth in any applicable Company
      Installment Notice delivered to the Holder prior to the date hereof, the Holder
      hereby consents to the Company converting (provided that there is then no Equity
      Conditions Failure (other than the Equity Conditions Failures expressly waived
      in Section 1 above) and provided that all other conditions necessary for the
      Company to effect a Company Conversion are then satisfied) and/or redeeming
      the
      Installment Amount due on August 1, 2008 as follows:

    


    
      	 	
              (i)

            	
              50%
                of the Installment Amount due on August 1, 2008 shall be so converted
                and/or redeemed at the time of, and in the same manner as (i.e.,
                through a
                Company Conversion and/or a Company Redemption), the Company’s conversion
                and/or redemption (in accordance with the terms or the Note) of the
                Installment Amount due on September 1, 2008, provided that (1) the
                Holder
                may require a Company Conversion with respect to such portion of
                the
                Installment Amount due on August 1, 2008 notwithstanding whether
                the
                Company elected, or is required to effect, a Company Redemption thereof
                and (2) the Pre-Installment Conversion Price and the Company Conversion
                Price with respect to such portion of the Installment Amount due
                on August
                1, 2008 shall be as set forth in Section 3 below to the extent the
                Company
                is permitted to effect a Company Conversion with respect thereto
                or the
                Holder requires a Company Conversion with respect thereto in accordance
                with clause (1) above.

            


    

    


    
      	 	
              (ii)

            	
              the
                other 50% of the Installment Amount due on August 1, 2008 shall be
                so
                converted and/or redeemed at the time of, and in the same manner
                as (i.e.,
                through a Company Conversion and/or a Company Redemption), the Company’s
                conversion and/or redemption (in accordance with the terms or the
                Note) of
                the Installment Amount due on October 1, 2008, provided that (1)
                the
                Holder may require a Company Conversion with respect to such portion
                of
                the Installment Amount due on August 1, 2008 notwithstanding whether
                the
                Company elected, or is required to effect, a Company Redemption thereof
                and (2) the Pre-Installment Conversion Price and the Company Conversion
                Price with respect to such portion of the Installment Amount due
                on August
                1, 2008 shall be as set forth in Section 3 below to the extent the
                Company
                is permitted to effect a Company Conversion with respect thereto
                or the
                Holder requires a Company Conversion with respect thereto in accordance
                with clause (1) above.

            


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    3. Calculation
      of Company Conversion Price and Pre-Installment Conversion Price.
      To the
      extent any portion of the Installment Amount due on August 1, 2008 is converted
      as provided above pursuant to a Company Conversion in connection with the
      Installment Amounts due on either September 1, 2008 or October 1,
      2008:

    


    (i) notwithstanding
      the Pre-Installment Conversion Price set forth in the Note, the Pre-Installment
      Conversion Price with respect to such portion of the Installment Amount due
      on
      August 1, 2008 to be so converted shall be equal to the lowest of (i) the then
      applicable Conversion Price, (ii) the price which shall be computed as 90%
      of
      the arithmetic average of the VWAP of the Common Stock on each of the twenty
      (20) consecutive Trading Days immediately preceding August 1, 2008 and (iii)
      the
      price which shall be computed as 90% of the arithmetic average of the VWAP
      of
      the Common Stock on each of the twenty (20) consecutive Trading Days immediately
      preceding the delivery or deemed delivery of the Company Installment Notice
      with
      respect to the Installment Amount due on September 1, 2008 or October 1, 2008
      (as the case may be). All such determinations to be appropriately adjusted
      for
      any stock split, stock dividend, stock combination or other similar transaction
      during such measuring periods.

    


    (ii) notwithstanding
      the Company Conversion Price set forth in the Note, the Company Conversion
      Price
      with respect to such portion of the Installment Amount due on August 1, 2008
      to
      be so converted shall be equal to the lowest of (i) the then applicable
      Conversion Price, (ii) the price which shall be computed as 90% of the
      arithmetic average of the VWAP of the Common Stock on each of the twenty (20)
      consecutive Trading Days immediately preceding August 1, 2008 and (iii) the
      price which shall be computed as 90% of the arithmetic average of the VWAP
      of
      the Common Stock on each of the twenty (20) consecutive Trading Days immediately
      preceding September 1, 2008 or October 1, 2008 (as the case may be). All such
      determinations to be appropriately adjusted for any stock split, stock dividend,
      stock combination or other similar transaction during such measuring
      periods.

    


    Other
      than as expressly set forth in this Agreement, the Company shall deliver
      Pre-Installment Conversion Shares and Conversion Shares in accordance with
      the
      terms of the Note. 

    


    4. Payment
      of Interest.
      Notwithstanding anything contained in this Agreement to the contrary, the
      Company shall pay to the Holder in cash on August 1, 2008 the portion of the
      Installment Amount due on August 1, 2008 that constitutes accrued and unpaid
      Interest through such date. 

    


    5. Effectiveness
      of Registration Statement.
      The
      Company acknowledges and agrees that the Holder’s waivers and consents set forth
      herein are expressly conditioned on and subject to the Registration Statement
      in
      the form filed by the Company with the Securities and Exchange Commission on
      July 24, 2008 being declared effective no later than July 29, 2008. If the
      foregoing condition is not satisfied, then this Agreement shall be null and
      void
      ab inito at the election of the Holder, which option may be exercised by the
      Holder delivering written notice to the Company pursuant to the Purchase
      Agreement electing that this Agreement be null and void ab
      inito.


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    6. Effect
      of this Agreement.
      Except
      as otherwise expressly provided herein, the Note is, and shall continue to
      be,
      in full force and effect and is hereby ratified and confirmed in all respects.
      

    


    [signature
      page follows]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    IN
      WITNESS WHEREOF,
      the
      Company and the Holder have caused their respective signature page to this
      Agreement to be duly executed as of the date first written above.

     

    


    
      	
              COMPANY:

            
	
               

            	
               

            	
               

            
	
              GENEREX
                BIOTECHNOLOGY

              CORPORATION

            
	
               

            
	
              By:

            	 
	
               

            	
              Name:     

            	
              Anna
                E. Gluskin

            
	
               

            	
              Title:     

            	
              Chief
                Executive Officer

            
	
               

            	
               

            	
               

            


    

    


    
      	
              HOLDER:

            
	
               

            	
               

            
	
              SMITHFIELD
                FIDUCIARY LLC

            
	
               

            	
               

            
	
              By:

            	 
	
               

            	
              Adam
                J. Chill, Authorized Signatory