SECURITIES PURCHASE AGREEMENT
Exhibit
4.2
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of November 20, 2005, by and among Oragenics, Inc, a Florida
corporation (the “Company)
and
Xxxxx XxXxxxxxx and Xxxxxx Xxxxx and their 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.
“Disclosure
Schedules”
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.
1
“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 3,000,000 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 3,000,000 Common Stock purchase warrants, in the form
of
Exhibit
B,
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 $1.20
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 3,000,000 shares of Common Stock
and Warrants to purchase up to 3,000,000 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 $1,200,000 US. The Closing shall occur on or before
December 8, 2005 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.
2
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.
(c) 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.
(e) At
the
Closing, Xxxxx X. Xxxxxxx shall have resigned from the Company’s Board of
Directors and Xxxxxx Xxxxx shall have been appointed as a replacement to fill
such vacancy.
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.
3
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.
4
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.
5
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.
6
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.
7
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.
Except
for the fees described on Schedule
3.1(r),
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.
8
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:
9
(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.
10
(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.
11
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.
12
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.
13
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.
|
14
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.
15
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.
16
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]
17
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.
By:/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
President and Chief Executive Officer
PURCHASERS
/s/
Xxxxx XxXxxxxxx
Name:
Xxxxx XxXxxxxxx
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:
_____________________________
|
18
|
/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:
_____________________________
|
19
Schedule
3.1(r) - Certain Fees
This
schedule details fees payable to Westrock Advisors, Inc.
| Placement Agent Cash Consideration: | 3% Commission (the “Commission”), on those entities that Organics has a previous relationship with (except for any investment made by those parties listed below), and 8% on all others of the amount raised payable at each closing. | |
| Placement Agent Warrant Consideration: | At each closing, the Placement Agent will also receive warrants equal to 10% of the amount raised plus a one time warrant for 60,000 shares exercisable at the same price paid by the investor(s). |
There
shall be no commission due for an investment made by those individuals listed
below and any financing provided by those individuals shall not be construed
as
a violation of the Six-Month exclusivity arrangement of the placement agent
as
described on page 2.
Xxxxx
XxXxxxxxx
Xxx
Xxxxxxxx
Albion
Xxxxxxxxxx
Xxxxxx
Xxxxx
Xxxxx
Xxxxxx
Xxx
Gautreu
Xxxxx
Xxxxxxx
Xxxx
Xxxxx
Xxxxx
XxXxx
Xxxxx
Xxxxxxxx
Xxxx
Xxxxxxx
White
Oak
Finance
Xxxxxxx
Xxxxx
Xxxx
Xxxxxxx
Xxxx
Xxxxxx
Startech
Inc.
20
