COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
This
Common Stock Purchase Agreement (this “Agreement”) is dated
as of July 5, 2010, by and among ORAGENICS, INC., a Florida
corporation (the “Company) and THE XXXXX FAMILY LIMITED
PARTNERSHIP, a Texas limited partnership, the (“Purchaser”).
WHEREAS, the Company desires
to raise $1,000,000.00 in cash in a private placement of shares of Common Stock
of the Company solely to accredited investors and convert an existing
$1,000,000.00 promissory note into common stock pursuant to the terms
below.
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to applicable exemptions
from registration under the Securities Act of 1933, the Company desires to issue
and sell to the Purchaser, and the Purchaser desires to purchase from the
Company shares of Common Stock of the Company in the private placement as 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 parties agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings indicated in this Section
1.1:
“Action” shall have
the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 144. With respect to a Purchaser,
any investment fund or managed account that is managed on a discretionary basis
by the same investment manager as Purchaser will be deemed to be an Affiliate of
Purchaser.
“Business Day” means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday or a day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to
close.
“Closing” means the
closing of the purchase and sale of the Shares pursuant to Section
2.1.
“Closing Date” means
the date of the Closing.
“Commission” means the
Securities and Exchange Commission.
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“Common Stock” means
the common stock of the Company, $0.001 par value per share, and any securities
into which such common stock may hereafter be reclassified.
“Disclosures” means
the Disclosure Schedules, if any, attached as Annex I
hereto.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section
3.1(o).
“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal or other
restriction.
“Material Adverse
Effect” shall have the meaning ascribed to such term in Section
3.1(b).
“Material Permits”
shall have the meaning ascribed to such term in Section 3.1(m).
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Purchase Price”
means, as to the Purchaser and the Closing, the amounts set forth below
Purchaser’s signature block on the signature page hereto, in United States
dollars and in immediately available funds. This amount is $0.40 per share of
Common Stock.
“SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the
Shares.
“Securities Act” means
the Securities Act of 1933, as amended.
“Shares” means the
shares of Common Stock, of which are being issued and sold by the Company to the
Purchaser at the Closing.
“Trading Market” means
the following markets or exchanges on which the Common Stock may be listed or
quoted for trading on the date in question: the Nasdaq Capital Market, the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market
or the OTC Bulletin Board (“OTC-BB”).
“Transaction
Documents” means this Agreement and any other documents or written
agreements executed by the Company and the Purchaser in connection with the
transactions contemplated hereunder.
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ARTICLE
II
PURCHASE
AND SALE
Section
2.1. Purchase and Sale of Common
Stock and Closing. At the Closing, the Purchaser shall
purchase, severally and not jointly, and the Company shall issue and sell to the
Purchaser an aggregate of 5,000,000 shares of company stock. The
Closing shall occur on or before July, 31, 2010 at the offices of Xxxxxxxx, Loop
& Xxxxxxxx, LLP, 000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, or
such other time and/or location as the parties shall mutually
agree.
Section
2.2. Closing Deliveries and
Conditions.
(a) At
the Closing, the Company shall be obligated to deliver or cause to be delivered
to the Purchaser:
(i) Instructions
to the transfer agent of the Company to issue stock certificates in the name of
the Purchaser evidencing 5,000,000.00 Shares of Common Stock being sold to the
Purchaser; and
(ii)
And a duly executed signature page to
this Agreement.
(b) At
the Closing, the Purchaser shall deliver or cause to be delivered to the Company
the following:
(i) $1,000,000.00
by wire transfer to the trust account of the Company’ legal counsel, Xxxxxxxx,
Loop & Xxxxxxxx, LLP;
(ii) A
duly executed signature page to this Agreement; and
(iii) Purchaser
shall have surrendered that certain $1,000,000.00 Secured Promissory Note dated
May 25, 2010 to the Company.
(c) At
the Closing, the Company and Purchaser shall execute the Revolving Credit
Agreement in the form attached hereto as Exhibit 2.2(c).
(d) All
representations and warranties of the other party contained herein shall be true
and correct as of the Closing Date (except for representations and warranties
that speak as of a specific date, which representations and warranties must be
correct as of such date), all necessary consents and waivers of third parties
shall have been obtained and each party shall have performed and complied in all
material respects with the covenants and conditions required by this Agreement
to be performed or complied with by the party at or prior to the
Closing.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1. Representations and
Warranties of the Company. Except as set forth in the SEC
Reports or under the corresponding section of the Annex I Disclosure Schedules
delivered concurrently herewith, the Company makes the following representations
and warranties as of the date hereof to the Purchaser:
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(a) Subsidiaries. Except
for one direct Subsidiary in Mexico, ONIBIOTEC SAPI de C.V., the Company has no
direct or indirect Subsidiaries.
(b) Organization and
Qualification. The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite corporate power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Company is
not in violation of any of the provisions of its certificate or articles of
incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or enforceability of
any Transaction Document, (ii) a material adverse effect on the results of
operations, assets, prospects, business or condition (financial or otherwise) of
the Company, taken as a whole, or (iii) adversely impair the Company’s ability
to perform fully on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”).
(c) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further consent or action is
required by the Company, its Board of Directors or its
stockholders. Each Transaction Document has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Company’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not have or reasonably be expected to result in a Material
Adverse Effect.
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(e) Filings, Consents and
Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other than
(a) any applicable Blue Sky filings, (b) such as have already been obtained or
such exemptive filings as are required to be made under applicable securities
laws, and (c) such other filings as may be required following the Closing Date
under the Securities Act, the Exchange Act and corporate law.
(f) Issuance of the
Securities. The Shares are duly authorized and, the Shares,
when issued and paid for in accordance with the Transaction Documents, will be
duly and validly issued, fully paid and nonassessable, free and clear of all
Liens and shall not be subject to preemptive rights or similar rights of
stockholders. The Company has reserved from its duly authorized
capital stock the number of Shares issuable pursuant to this
Agreement.
(g) Capitalization. The
number of shares and type of all authorized, issued and outstanding capital
stock, options and other securities of the Company (whether or not presently
convertible into or exercisable or exchangeable for shares of capital stock of
the Company) is as set forth in the SEC Reports. All outstanding
shares of capital stock are duly authorized, validly issued, fully paid and
nonassessable and have been issued in compliance with all applicable securities
laws. Except as disclosed in the SEC Reports, there are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company is
or may become bound to issue additional shares of Common Stock, or securities or
rights convertible or exchangeable into shares of Common
Stock. Except as set forth in the SEC Reports, there are no
anti-dilution or price adjustment provisions contained in any security issued by
the Company (or in any agreement providing rights to security holders) and the
issue and sale of the Company Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the
Purchaser) and will not result in a right of any holder of Company securities to
adjust the exercise, conversion, exchange or reset price under such
securities.
(h) SEC Reports; Financial
Statements.
(i) The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) of the
Exchange Act, for the two years preceding the date hereof (or such shorter
period as the Company was required by law to file such material) (the foregoing
materials, including the exhibits thereto (together with any materials filed by
the Company under the Exchange Act, whether or not required), being collectively
referred to herein as the “SEC Reports” and,
together with this Agreement and (the “Disclosure
Materials”) on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. True and complete copies of the SEC Reports are
available at xxx.xxx.xxx.
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(ii) As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, as applicable, and
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP or may be condensed or summary statements, and fairly present
in all material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit
adjustments.
(iv) All
material agreements to which the Company is a party or to which the property or
assets of the Company are subject are included as part of or specifically
identified in the SEC Reports. Other than the material contracts
listed in the SEC Reports, as otherwise provided to the Purchaser, the Company
has no material contracts. Except as set forth in the SEC Reports,
the Company is not in breach or violation of any material contract, which breach
or violation would have a Material Adverse Effect.
(i) Absence of Material
Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as disclosed in the SEC
Reports, (i) there has been no event, occurrence or development that has had or
that could reasonably be expected to result in a Material Adverse Effect, (ii)
the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) the Company has not
issued any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans and agreements.
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(j)
Litigation. Except
as disclosed in the SEC Reports, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, or its properties before
or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Transaction Documents or the Securities or (ii) could, if there were an
unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect.
(k) Labor
Relations. The Company is not involved in any material union
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened. The Company believes that their relations with their
employees are good. No executive officer (as defined in Rule 501(f)
of the Securities Act) has notified the Company that such officer intends to
leave the Company or otherwise terminate such officer’s employment with the
Company. The Company is in compliance with all federal, state, local
and foreign laws and regulations respecting employment and employment practices,
terms and conditions of employment and wages and hours, except where failure to
be in compliance would not, either individually or in the aggregate, result in a
Material Adverse Effect.
(l) Compliance. Except
as disclosed in the SEC Reports, the Company (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is not in violation of any order of any court,
arbitrator or governmental body, or (iii) is not or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its
business, except in the case of clauses (i), (ii) and (iii) as would not have or
reasonably be expected to result in a Material Adverse Effect.
(m) Regulatory
Permits. The Company possesses all certificates,
authorizations and permits issued by the appropriate federal, state, local or
foreign regulatory authorities necessary to conduct its current business as
described in the SEC Reports, except where the failure to possess such permits
would not have or reasonably be expected to result in a Material Adverse Effect
(“Material
Permits”), and the Company has not received any notice of proceedings
relating to the revocation or modification of any Material Permit.
(n) Title to
Assets. The Company has good and marketable title in fee
simple to all real property owned by it and good and marketable title in all
personal property owned by it, in each case free and clear of all Liens, except
for Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and Liens for the payment of federal, state or other taxes, the
payment of which is neither delinquent nor subject to penalties. To
the knowledge of the Company, any real property and facilities held under lease
by the Company are held by it under valid, subsisting and enforceable leases
with which the Company is in material compliance.
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(o) Patents and
Trademarks. The Company has, or has rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, copyrights, licenses and other similar rights that are necessary or
material for use in connection with their respective businesses as described in
the SEC Reports and which the failure to so have could have or reasonably be
expected to result in a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Except as disclosed in its SEC Reports, the Company
has not received a written notice that the Intellectual Property Rights used by
the Company violates or infringes the rights of any Person. To the
knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the
Intellectual Property Rights.
(p) Insurance. The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
businesses in which the Company is engaged. The Company has no reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business.
(q) Transactions with Affiliates
and Employees. Except as set forth in the SEC Reports, none of
the officers or directors of the Company and, to the knowledge of the Company,
none of the employees of the Company is presently a party to any transaction
with the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
(r) Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by this Agreement, the Company has not taken any
action that would cause any of the Purchaser to be liable for any such fees or
commissions and the Company agrees to indemnify the Purchaser for any such fees
or commissions.
(s) Private
Placement. Assuming the accuracy of Purchaser’s
representations and warranties set forth in Section 3.2 and assuming no unlawful
distribution of the Securities by the Purchaser, no registration under the
Securities Act is required for the offer and sale of the Securities by the
Company to the Purchaser as contemplated hereby. The issuance and
sale of the Securities hereunder does not contravene the rules and regulations
of the OTC-BB. Neither the Company nor any Person acting on the
Company’s behalf has sold or offered to sell or solicited any offer to buy the
Securities by means of any form of general solicitation or
advertising. The Company has offered the Shares for sale only to such
Persons it believes to be an accredited investor.
(t) Registration
Rights. Except as described in the SEC Reports, no Person has
any right to cause the Company to effect the registration under the Securities
Act of any securities of the Company.
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(u) Exchange
Act. The Company’s Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and trades on the OTC-BB.
(v) Disclosure. All
disclosure provided to the Purchaser regarding the Company, its business and the
transactions contemplated hereby, including the Disclosure Schedules to this
Agreement, furnished by or on behalf of the Company are true and correct and do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not
misleading. No event or circumstance has occurred or information
exists with respect to the Company or its business, properties, prospects,
operations or condition (financial or otherwise), which, under applicable law,
rule or regulation, requires public disclosure or announcement by the Company
but which has not been so publicly announced or disclosed.
(w) Taxes. Except
for matters that would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect, the Company has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of a tax deficiency which has been asserted or threatened against the
Company.
Purchaser
acknowledges and agrees that the Company does not make or has not made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 3.1.
Section
3.2 Representations and
Warranties of the Purchaser. Purchaser severally and not
jointly represents and warrants as of the date hereof to the Company as
follows:
(a) Organization;
Authority. The Purchaser is either a person or an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership power
and authority to enter into and to consummate the transactions contemplated by
the Transaction Documents and otherwise to carry out its obligations
thereunder. The execution, delivery and performance by such Purchaser
of the transactions contemplated by this Agreement have been duly authorized by
all necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b) Purchase for Own
Account. The Purchaser is acquiring the Shares as principal
for its own account and not with a view to or for distributing or reselling such
Shares or any part thereof, without prejudice, however, to Purchaser’s right,
subject to the provisions of this Agreement, at all times to sell or otherwise
dispose of all or any part of such Shares pursuant to an effective registration
statement under the Securities Act or under an exemption from such registration
and in compliance with applicable federal and state securities
laws. The Purchaser is acquiring the Shares hereunder in the ordinary
course of its business. Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Shares.
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(c) Purchaser
Status. At the time the Purchaser was offered the Shares, it
was, and at the date hereof it is an “accredited investor” as defined in Rule
501(a) under the Securities Act. The Purchaser is not required to be
registered as a broker-dealer under Section 15 of the Exchange Act.
(d) Experience of
Purchaser. The Purchaser has such knowledge, sophistication
and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. The
Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such
investment.
(e) Reliance on
Exemptions. The Purchaser understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Securities.
(f) Information. The
Purchaser and its advisors, if any, have had access to all materials relating to
the business, finances and operations of the Company including, without
limitation, the Company’s most recent SEC Reports, that have been requested by
the Purchaser or its advisors, if any. The Purchaser has been
afforded the opportunity to ask questions of the Company and receive answers
from the Company. The Purchaser has requested, received and
considered all information it deems relevant to make an informed decision to
purchase the Securities. The Purchaser acknowledges and understands
that its investment in the Securities involves a significant degree of
risk.
(g) Governmental
Review. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities or an
investment therein.
(h) Residency. The
Purchaser is a resident of (or, if an entity, has its principal place of
business in) the jurisdiction set forth by the Purchaser’s name on the signature
of this Agreement.
(i) Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by the Purchaser to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by this Agreement, the Purchaser has not taken any
action that would cause the Company or any other Purchaser to be liable for any
such fees or commissions and Purchaser agrees to indemnify the Company for any
such fees or commissions.
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(j) Short
Sales. The Purchaser has not directly or indirectly, nor has
any Person acting on behalf of or pursuant to any understanding with such
Purchaser, executed any Short Sales or granted any option for the purchase of or
entered into any hedging or similar transaction with the same economic effect as
a Short Sale, in the securities of the Company since the time period beginning
two weeks prior to the time that such Purchaser was first contacted regarding an
investment in the Company (“Discussion Time”)
through the date hereof. During such period, neither Purchaser nor
any Person acting on behalf of or pursuant to any understanding with Purchaser,
has taken, directly or indirectly, any actions to trade in the Company’s
Securities that might reasonably be expected to cause or result, under the
Securities Act or Exchange Act, or otherwise, or that has constituted,
stabilization or manipulation of the price of the Common
Stock. Additionally, Purchaser is familiar with and agrees to comply
with Regulation M under the Exchange Act.
(k) No General
Solicitation. The Purchaser is not purchasing the Securities
as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or other media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or advertisement.
(l) Confidentiality. Other
than to other Persons party to this Agreement, the Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
(m) Acknowledgement of
Communication by the Company of 3 Day Voidability
Privilege. The Purchaser acknowledges and understands that
Section 517.061 (11)(a)5 of the Florida Statutes provides that "When sales are
made to five or more persons in this state, any sale in this state made pursuant
to this subsection is voidable by the purchaser in such sale either within 3
days after the first tender of consideration is made by such purchaser to the
issuer, an agent of the issuer, or an escrow agent or within 3 days after the
availability of that privilege is communicated to such purchaser, whichever
occurs later” and that this Section 3.2(m) is intended to constitute the
required communication under Section 517.061(11)(a)5 of the Florida
Statutes.
The
Company acknowledges and agrees that the Purchaser do not make or has not made
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 3.2.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of pursuant to an effective registration
statement under the Securities Act or pursuant to an available exemption from
the registration requirements of the Securities Act, and in compliance with any
applicable state securities laws. The Securities shall contain a restrictive
legend in the following form:
11
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
(b) Purchaser
agrees that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is expressly predicated upon the
Purchaser’s covenant and agreement in this Section 4.1(b) that the Purchaser
shall in all cases sell or otherwise transfer the Securities pursuant
to: (i) an effective registration statement under the Securities Act,
in full compliance with all prospectus delivery requirements under the
Securities Act and in accordance with the plan of distribution described in the
prospectus delivered by Purchaser, or (ii) an available exemption from
registration under the Securities Act.
Section
4.2 Furnishing of
Information.
(a) For
such period as the Purchaser continues to own the Shares, the Company covenants
to use its reasonable efforts to timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be
filed by the Company after the date hereof pursuant to the Exchange
Act. In addition, the Company shall use its reasonable efforts to
take all actions necessary to meet the “registrant eligibility” requirements set
forth in the general instructions to Form S-3 or any successor form thereto, to
continue to be eligible to register the resale of its Common Stock on a
registration statement on Form S-3 under the Securities Act.
(b) For
such period as the Purchaser continues to own the Shares, if the Company is not
required to file reports pursuant to the Exchange Act, it will prepare and
furnish to the Purchaser and make publicly available in accordance with Rule 144
such information as is required for the Purchaser to sell the Securities under
Rule 144 and the Company further covenants that it will take such further action
as any holder of Securities may reasonably request, all to the extent required
from time to time to enable such Person to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144.
(c) For
such period as the Purchaser continues to own the Shares, the Company shall
ensure that each of the following reports are available at xxx.xxx.xxx:
(i) within ten days after the filing thereof with the SEC, a copy of its Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q, its proxy statements
and any Current Reports on Form 8-K; and (ii) within one day after release,
copies of all press releases issued by the Company or any of its
Subsidiaries.
12
Section
4.3 Trading Market of
Common Stock. The Company hereby agrees to use its reasonable
efforts to maintain the eligibility for trading of the Common Stock on the
Trading Market. The Company further agrees, if the Company applies to
have the Common Stock traded on any other trading market, it will include in
such application the Shares, and will take such other action as is necessary or
desirable in the opinion of the Purchaser to cause the Shares to be listed on
such other trading market as promptly as possible. The Company will
take all action reasonably necessary to continue the listing and trading of its
Common Stock on a trading market and will comply in all respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of
the trading market.
Section
4.4 Sales
by Purchaser. Purchaser covenants to sell any Securities sold by it in
compliance with applicable prospectus delivery requirements, if any, or
otherwise in compliance with the requirements for an exemption from registration
under the Securities Act. Purchaser will not make any sale, transfer
or other disposition of the Securities in violation of federal or state
securities laws.
ARTICLE
V
MISCELLANEOUS
Section
5.1. Entire
Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the Securities and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.2. Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Purchaser or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such
right.
Section
5.3. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser;
provided, however, that no consent shall be required in connection with a
merger, consolidation or sale of substantially all of the Company’s
assets. Any Purchaser may assign any or all of its rights under this
Agreement to any Person in connection with the transfer of the Securities,
provided such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions hereof that apply to the
“Purchaser”.
Section
5.4. No
Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
13
Section
5.5. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Florida, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the United States federal
courts and the state courts located in the County of Hillsborough, State of
Florida. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the County of
Hillsborough, State of Florida for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of the Transaction
Documents), 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
improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by delivering a copy thereof via overnight delivery (with evidence
of delivery) 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. Each party hereto (including its affiliates, agents,
officers, directors and employees) hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an
action or proceeding to enforce any provisions of a Transaction Document, then
the prevailing party in such action or proceeding shall be reimbursed by the
other party for its attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
Section
5.6. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile or other electronic transmission, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and affect as if such facsimile or other
electronically transmitted signature page were an original thereof.
Section
5.7. Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
Section
5.8. Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The parties agree that each of them and/or their respective
counsel has reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of the Transaction Documents or any amendments
hereto.
14
Section
5.9. Legal
Counsel. The Company and KFLP acknowledge that the law firm Xxxxxxxx,
Loop & Xxxxxxxx, LLP ("Xxxxxxxx") currently represents the Company and KFLP
on unrelated matters. The Company and KFLP hereby waive any potential
conflict of interest arising from the representation by Xxxxxxxx and
consents to the continued representation by Xxxxxxxx of the Company in
connection with the matters covered by this Agreement. The KFLP further
acknowledges and represents that it has had an opportunity to retain its own
separate legal counsel to represent it in this matter.
Section
5.10. Notice of Three-Day Right of
Rescission. PURSUANT TO
SECTION 517.061(11)(a)5 OF THE FLORIDA STATUTES, PURCHASER HAS A THREE-DAY RIGHT
OF RESCISSION. IF A PURCHASER HAS EXECUTED THIS AGREEMENT AND TENDERED THE
PURCHASE PRICE FOR THE PURCHASE OF SHARES, THE PURCHASER MAY ELECT, WITHIN THREE
BUSINESS DAYS AFTER SIGNING THIS AGREEMENT OR BEING FIRST NOTIFIED OF THIS
RIGHT, WHICHEVER IS LATER, TO WITHDRAW FROM THIS AGREEMENT AND RECEIVE A FULL
REFUND AND RETURN (WITHOUT INTEREST) OF ANY MONEY PAID BY PURCHASER. THE
PURCHASER'S WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO ANY PERSON. TO
ACCOMPLISH SUCH WITHDRAWAL, THE PURCHASER NEED ONLY SEND A LETTER OR E-MAIL
TO THE COMPANY AT 0000 XXXXXXX XXXXX, XXXXX 000, XXXXX, XXXXXXX ATTN: XXXXX X.
XXXXXX, PRESIDENT AND CHIEF EXECUTIVE OFFICER (xxxxxx@xxxxxxxxx.xxx), INDICATING
THE INTENTION TO WITHDRAW. SUCH LETTER OR E-MAIL MUST BE SENT AND POSTMARKED
PRIOR TO THE END OF THE AFOREMENTIONED THIRD BUSINESS DAY. IF A
PURCHASER SENDS A LETTER, IT IS PRUDENT TO SEND IT BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO ENSURE THAT IT IS RECEIVED AND ALSO TO EVIDENCE THE
TIME AND DATE WHEN IT IS MAILED. SHOULD A PURCHASER MAKE THIS REQUEST ORALLY,
THE PURCHASER SHOULD ASK FOR WRITTEN CONFIRMATION THAT HIS REQUEST HAS BEEN
RECEIVED. THE FOREGOING IS INTENDED TO CONSTITUTE THE NOTICE REQUIRED UNDER THE
FLORIDA STATUTES. ACCORDINGLY, THE PURCHASER WILL HAVE THREE DAYS AFTER THE
FIRST TENDER OF THE PURCHASE PRICE IS MADE BY THE PURCHASER TO VOID THEIR
PURCHASE OF THESE SECURITIES.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
AND
SIGNATURE PAGES FOLLOW]
15
IN WITNESS WHEREOF, the
parties hereto have caused this Common Stock Purchase Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
COMPANY
ORAGENICS,
INC.
|
By:
|
/s/Xxxxx Xxxxxx
|
|
|
Xxxxx
Xxxxxx, President and Chief Executive
Officer
|
||
PURCHASER
THE
XXXXX FAMILY LIMITED PARTNERSHIP
|
By:
|
/s/Xxxxxxxxx X. Koksi
|
|
|
Xxxxxxxxx
X. Xxxxx, Managing General Partner
|
||
Address:
0000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxx 00-X
Xxxxxx,
Xxxxx 00000
16
Annex
I
Disclosure
Schedules
None
17
