Exhibit 4.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of
January 6, 2006, by and among Oragenics, Inc, a Florida corporation (the
"Company) and Xxxxxx Xxxxx and his assignees (each a "Purchaser" and
collectively the "Purchasers").
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 each Purchaser, and each
Purchaser, severally and not jointly, desires to purchase from the Company
shares of Common Stock and Warrants to purchase shares of Common Stock 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:
DEFINITIONS
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 such Purchaser will
be deemed to be an Affiliate of such 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 and the
Warrants pursuant to Section 2.1.
"Closing Date" means the date of the Closing.
"Commission" means the Securities and Exchange Commission. ----------
"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 each Purchaser and the Closing, the amounts
set forth below such Purchaser's signature block on the signature page hereto,
in United States dollars and in immediately available funds.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date of this Agreement, among the Company and each Purchaser, in
the form of Exhibit A hereto.
"Registration Statement" means a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering the
resale by the Purchasers of the Shares and the Warrant Shares.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"SEC Reports" shall have the meaning ascribed to such term in Section
3.1(h).
"Securities" means the Shares, the Warrants and the Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the aggregate up to 1,500,000 shares of Common Stock, of
which are being issued and sold by the Company to the Purchasers at the Closing.
"Transaction Documents" means this Agreement, the Registration Rights
Agreement, the Warrant and any other documents or written agreements executed by
the Company and the Purchasers in connection with the transactions contemplated
hereunder.
"Warrants" means the aggregate of up to 1,500,000 Common Stock purchase
warrants, in the form of Exhibit A, to be issued to the Purchasers at Closing,
which warrants shall be exercisable immediately and have (i) an exercise price
equal to $0.60, (ii) a Company option to compel the exercise of the warrants or
call or redeem the warrants at $.001 per share upon the trading price of its
common stock equal or exceeding $1.60 after July 6, 2006 and (iii) a term of
exercise of two years.
"Warrant Shares" means the shares of Common Stock issuable upon exercise
of the Warrants.
PURCHASE AND SALE
Purchase and Sale of Securities and Closing. At the Closing,
Purchasers shall purchase, severally and not jointly, and the Company shall
issue and sell to the Purchasers up to 1,500,000 shares of Common Stock and
Warrants to purchase up to 1,500,000 shares of Common Stock as set forth
opposite such Purchaser's name on the signature page hereto for an aggregate
purchase price of up to $600,000 US. The Closing shall occur on or before
February 8, 2006 at the offices of Xxxxxxxx, Loop & Xxxxxxxx, LLP, 000 Xxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000-0000, or such other time and/or
location as the parties shall mutually agree.
Closing Conditions.
At the Closing the Company shall deliver or cause to be
delivered to each Purchaser:
one or more stock certificates in the name of such
Purchaser evidencing such number of Shares set forth opposite such Purchaser's
name on the signature page hereto;
a warrant certificate, registered in the name of such
Purchaser, pursuant to which such Purchaser shall have the right to acquire up
to the number of Warrant Shares set forth opposite such Purchaser's name on the
signature page hereto;
the Registration Rights Agreement duly executed by the
Company.
(b) At the Closing each Purchaser shall deliver or cause to be
delivered to the Company the following:
such Purchaser's portion of the Purchase Price by wire
transfer to the account of the Company as provided to the Purchasers in writing
prior to the Closing Date; and
the Registration Rights Agreement duly executed by such
Purchaser.
All representations and warranties of the other party
contained herein shall remain 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.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the Company. Except as set forth
in the SEC Reports or under the corresponding section of the Disclosure
Schedules delivered concurrently herewith, the Company makes the following
representations and warranties as of the date hereof and as of the Closing Date
to each Purchaser:
Subsidiaries. The Company has no direct or indirect
Subsidiaries.
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").
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.
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.
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) the filing with the Commission of the Registration Statement, the
application(s) to each Trading Market for the listing of the Shares and Warrant
Shares for trading thereon in the time and manner required thereby, and
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.
Issuance of the Securities. The Securities are duly authorized
and, the Shares and Warrant 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 maximum number of shares of Common
Stock issuable pursuant to this Agreement and the Warrants.
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 Purchasers) 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.
SEC Reports; Financial Statements.
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 Schedules to this Agreement, 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.
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.
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.
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, or as otherwise provided to the Purchasers,
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.
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.
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.
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.
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.
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.
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.
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"). 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.
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.
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.
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 Purchasers
shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by this
Agreement.
Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2 and assuming no unlawful
distribution of the Securities by the Purchasers, no registration under the
Securities Act is required for the offer and sale of the Securities by the
Company to the Purchasers as contemplated hereby. The issuance and sale of the
Securities hereunder does not contravene the rules and regulations of the
American Stock Exchange. 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 the Purchasers.
Registration Rights. Except as described in the SEC Reports
and the Purchasers, no Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.
Listing and Maintenance Requirements. The Company's Common
Stock is registered pursuant to Section 12(b) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common Stock under the
Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. The Company's Common Stock is
listed on The American Stock Exchange ("AMEX"), and the Company has taken no
action designed to, or likely to have the effect of de-listing the Common Stock
from the AMEX, nor to the Company's knowledge is the AMEX currently
contemplating terminating such listing. Giving affect to the transactions
contemplated herein, the Company is unaware of any facts or circumstances that
would cause it to believe that the Company and the Common Stock do not meet the
criteria for continued listing and trading on the AMEX. The Company has not, in
the two years preceding the date hereof, received notice from AMEX to the effect
that the Company is not in compliance with the listing or maintenance
requirements of AMEX.
Listing of the Shares. The Company shall comply with all
requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the AMEX. In
furtherance thereof, the Company shall use its best efforts to take such actions
as may be necessary and as soon as practicable and in no event later than 20
days after the Closing Date to file with the AMEX an application or other
document required by the AMEX and pay all applicable fees for the listing of the
Shares with the AMEX and shall provide evidence of such filing to the Investors.
Disclosure. All disclosure provided to the Purchasers
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.
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.
Each 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 Purchasers. Each
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as follows:
(a) Organization; Authority. Such Purchaser is 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 has 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. Such Purchaser is acquiring the
Securities as principal for its own account and not with a view to or for
distributing or reselling such Securities or any part thereof, without
prejudice, however, to such 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
Securities 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. Nothing contained herein shall be
deemed a representation or warranty by such Purchaser to hold Securities for any
period of time. Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Securities.
(c) Purchaser Status. At the time such Purchaser was offered
the Securities, it was, and at the date hereof it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act. Such Purchaser is not required
to be registered as a broker-dealer under Section 15 of the Exchange Act.
(d) Experience of Such Purchaser. Such 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.
Such 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. Such 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. Such Purchaser and its advisors, if any, have
been furnished with 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. Such 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. Such Purchaser is a resident of (or, if an
entity, has its principal place of business in) the jurisdiction set forth
immediately below such Purchaser's name on the signature pages hereto.
(i) 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, and the Company
has not taken any action that would cause any Purchaser to be liable for any
such fees or commissions.
(j) Short Sales. Such 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 such Purchaser nor any
Person acting on behalf of or pursuant to any understanding with such 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,
each Purchaser agrees to comply with Regulation M under the Exchange Act.
(k) No General Solicitation. Such 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, such Purchaser has maintained the confidentiality of all disclosures
made to it in connection with this transaction (including the existence and
terms of this transaction).
The Company acknowledges and agrees that each Purchaser 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 3.2.
OTHER AGREEMENTS OF THE PARTIES
Transfer Restrictions.
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:
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.
Each Purchaser, severally and not jointly, 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 such
Purchaser, or (ii) an available exemption from registration under the Securities
Act.
Furnishing of Information.
As long as any Purchaser owns Securities, the Company
covenants 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 and shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would
permit such termination. In addition, the Company shall 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. Upon the request of any such
holder of Securities, the Company shall deliver to such holder a written
certification of a duly authorized officer as to whether it has complied with
the preceding sentence.
As long as any Purchaser owns Securities, if the Company is
not required to file reports pursuant to the Exchange Act, it will prepare and
furnish to the Purchasers and make publicly available in accordance with Rule
144(c) such information as is required for the Purchasers to sell the Securities
under Rule 144. 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.
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-KSB, its Quarterly Reports on
Form 10-QSB, 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.
Integration. The Company shall not, and shall use its best efforts
to ensure that no Affiliate thereof shall, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require Shareholder
approval prior to the closing of such other transaction unless Shareholder
approval is obtained prior to the closing of such subsequent transaction.
Reservation of Common Stock. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue Shares pursuant to this
Agreement and Warrant Shares pursuant to the Warrants.
Listing of Common Stock. The Company hereby agrees to use its best
efforts to maintain the listing of the Common Stock on the Trading Market, and,
unless completed prior to the Closing, to list the applicable Shares and Warrant
Shares on AMEX as soon as reasonably practicable following the Closing (but not
later than the earlier of the Effective Date and the first anniversary of the
Closing Date). 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 Warrant Shares, and will take such other action as is
necessary or desirable in the opinion of the Purchasers to cause the Shares and
Warrant 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.
Sales by Purchaser. Each 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. No Purchaser will make any sale, transfer
or other disposition of the Securities in violation of federal or state
securities laws.
MISCELLANEOUS
Termination. This Agreement may be terminated by the Company or, as
to any Purchaser and the Company, any Purchaser, by written notice to the other
parties, if the Closing has not been consummated by the third Business Day
following the date of this Agreement; provided that no such termination will
affect the right of any party to xxx for any breach by the other party (or
parties).
Fees and Expenses. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all stamp and
other taxes and duties levied in connection with the sale of the Securities.
Entire Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof 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.
Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile (provided the sender
receives a machine-generated confirmation of successful transmission) at the
facsimile number specified in this Section prior to 6:30 p.m. (EST) on a
business day, (b) the next business day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a business day or later than 6:30
p.m. (EST) on any business day, (c) the business day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or (d)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as follows:
If to the Company: Oragenics, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
Facsimile No.: (000)000-0000
With a copy to: Xxxxxxxx, Loop & Xxxxxxxx, LLP
000 X. Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esquire
Facsimile No.: (000) 000-0000
If to a Purchaser: To the address set forth under such Purchaser's name on
the signature pages hereof; or such other address as may
be designated in writing hereafter, in the same manner,
by such Person.
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 Purchasers holding a majority of the Shares 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.
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 Purchasers holding a majority of the
Shares; 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 "Purchasers".
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.
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.
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 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 signature page
were an original thereof.
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.
Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. The decision of each Purchaser to
purchase Securities pursuant to this Agreement has been made by such Purchaser
independently of any other Purchaser and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or of the Subsidiary which may have been
made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser or any of its agents or employees shall have any
liability to any other Purchaser (or any other person) relating to or arising
from any such information, materials, statements or opinions. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser acknowledges that no other Purchaser has
acted as agent for such Purchaser in connection with making its investment
hereunder and that no other Purchaser will be acting as agent of such Purchaser
in connection with monitoring its investment hereunder. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose. Each
Purchaser has been represented by its own separate legal counsel in their review
and negotiation of the Transaction Documents.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
AND SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
COMPANY
ORAGENICS, INC.
/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
PURCHASER
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Investment Amount: up to $600,000US
Shares from Company: up to 1,500,000
Warrants from Company: up to 1,500,000
Address: _______________________________
City/State/Zip: ________________________
Tel: ___________________________________
Fax: ___________________________________
