WARRANT AMENDMENT AGREEMENT
Exhibit
4.5
This
Warrant Amendment Agreement (the “Agreement”) is entered into effective May 31,
2005 by and between Oragenics, Inc., a Florida corporation (the “Company”) and
the Living Trust of Xxxxxx Xxxxxxx Xxxxxxx (the “Trust”), The Arbitrage Fund
(the “Fund”), Xxxx X. Xxxxxxxx (“Xxxxxxxx”), and Westminster Securities Corp.
(“Westminster”). The Company, Trust, Fund, Xxxxxxxx, and Westminster are
together referred to herein as the Parties.
Recitals:
WHEREAS,
the Company entered into a private placement agent agreement with Westminster
whereby, Westminster, as the placement agent, was entitled to receive placement
agent warrants in connection with the Company’s private placement offering to
acquire 25,000 shares of common stock at $2.75 and warrants to acquire 12,500
shares of common stock at $3.50 (together the “Westminster Warrants”);
WHEREAS,
pursuant to the private placement the Company entered into subscription
agreements (the “Subscription Agreements”) with the Trust, the Fund and Xxxxxxxx
(the “Investors”) to purchase units consisting of Company common stock and
warrants to acquire common stock at an exercise price of $3.50 (the “Investor
Warrants”) which also provided the Investors and Westminster with registration
rights (the “Registration Rights”), which included penalties that the Company
had to pay to the Investors and Westminster if a registration statement was not
filed within a designated time period (the “Penalty Provisions”);
WHEREAS,
the Investor Warrants and the Westminster Warrants, (other than the exercise
price of $2.75 on 12,500 shares of Westminster Warrants), were to be issued
under the same terms and conditions and the form of warrant to be issued by the
Company provided the Investors and Westminster with adjustment rights in the
event of the issuance by the Company of shares of common stock below a certain
amount per share, (the “Warrant Anti-dilution Adjustment
Provision”);
WHEREAS,
the Company has entered into a stock purchase agreement with Fusion Capital Fund
II, LLC (“Fusion Capital”) and is contemplating filing a registration statement
on Form SB-2 with the U.S. Securities and Exchange Commission (the “SEC”) to
register certain shares of its common stock for resale by Fusion Capital and the
Investors and Westminster (the “SB-2 Registration Statement”).
WHEREAS,
prior to filing the Registration Statement the Parties desire to resolve any and
all issues with respect to its registration obligations, the registration rights
penalty provision and the Warrant Anti-dilution Adjustment Provision;
WHEREAS,
the Parties desire, subject to the terms and conditions of this Agreement, to
(i) amend the Investor Warrants and Westminster Warrants to eliminate the
Warrant Anti-dilution Adjustment Provision, (ii) to eliminate and terminate the
Registration Rights obligations of the Company, (iii) to eliminate and terminate
the Penalty Provisions under the Registration Rights, all in exchange for a one
time adjustment to the exercise prices of the Investor Warrants and Westminster
Warrants, to be issued in the form of a replacement warrant.
NOW
THEREFORE, in
consideration of the mutual agreements set forth herein and other good and
valuable consideration, the Parties agree as follows:
1. Termination
of Registration Rights. The
Parties agree that any registration obligations the Company had under the
Subscription Agreement are terminated and of no force or effect, provided
however, that such termination shall not take effect until the Form SB-2
Registration Statement is declared effective by the SEC. To the extent the SEC
declares the Form SB-2 Registration Statement effective there shall be no
further action required by any of the Parties for the Company’s registration
obligations under the Subscription Agreements to be terminated.
2. Termination
of Warrant Anti-dilution Adjustment Provision. Upon
the issuance of the Replacement Warrants (as defined below), the Warrant
Anti-dilution Provision originally to be contained in the warrants to be issued
to the Investors and Westminster is hereby terminated and of no force or effect
and it is agreed that no amounts shall be owed to any Party hereto by reason of
the Warrant Anti-dilution Provision.
3. Registration
Rights Penalty Amounts. Upon
the issuance of the Replacement Warrants (as defined below), the Investors and
Westminster hereby waive any right to receive any payments under Penalty
Provisions contained in the Subscription Agreements and such Penalty Provisions
are hereby terminated and of no force of effect.
4. Issuance
of Replacement Warrants. In
consideration for the mutual covenants, releases and agreements contained
herein, the Company agrees to issue warrants to the Investors and Westminster,
in the form attached hereto as Exhibit
A, (the
“Replacement Warrants”), which shall replace the original Investor Warrants and
Westminster Warrants. The Replacement Warrants to the Investors will be for the
same number of shares as in the private placement except that the exercise price
will be revised from $3.50 to $2.75 per share. The Replacement Warrants to
Westminster will be for the same number of shares as provided in the placement
agent agreement, except that the exercise prices will be revised from $3.50 to
$2.75 per share and from $2.75 to $2.25 per share for the respective warrants
Westminster was entitled to receive.
5. Release
of Claimants.
Effective upon the execution of this Agreement, each of the Parties to this
Agreement, on behalf of themselves and their respective subsidiaries,
affiliates, officers, directors, shareholders, agents, employees, servants,
attorneys, accountants, heirs, successors, assigns, and representatives, as well
as the respective heirs, personal representatives, successors and assigns of any
or all of them, (hereinafter collectively referred in this Paragraph as the
“Releasing Party”) fully, finally and forever release, acquit and forever
discharge the Company and its respective past and present subsidiaries,
affiliates, franchisees, officers, directors, shareholders, agents, employees,
servants, attorneys, accountants, heirs, successors, assigns and
representatives, as well as their respective personal representatives,
successors and assigns, of any and all of them (hereinafter collectively
referred in this Paragraph as the “Released Party”) from any and all claims,
demands, debts, actions, causes of action, suits, contracts, agreements,
obligations, accounts, defenses and liabilities of any kind or character
whatsoever, known or unknown, suspected or unsuspected, in contract or in tort,
at law or in equity, including without implied limitation, such claims and
defenses as incapacity, fraud, mistake, and duress, which the Releasing Party
ever had, now has, or might hereafter have against the Released Party arising
out of facts or circumstances in existence as of the date of this Agreement, for
or by reason of any matter, cause or thing whatsoever, including, without
limitation, any claim in contract, tort, violation or statute, or otherwise,
which relates in whole or in part, directly or indirectly, to the transaction(s)
described in this Agreement; EXCEPTING ONLY the obligations of the Released
Parties to perform the terms and conditions of this Agreement. Each party to
this Agreement expressly represents and warrants to the other Parties to this
Agreement: (i) that they are relying solely on their own judgment and belief as
to the adequacy of the consideration paid; (ii) that the Release contemplated by
this Paragraph is being executed without reliance upon any statement or
representation made by any other party to this Agreement or anyone acting on
behalf of a party to this Agreement; and (iii) that they understand and
acknowledge that there may exist facts and circumstances which are material to
this transaction that have not been disclosed to it by the other Parties to this
Agreement and warrant to the other Parties to this Agreement that they are
executing this Release and shall be bound thereby notwithstanding said
nondisclosures.
6. The
Company Covenants. The
Company hereby covenants to promptly issue the Replacement Warrants to the
Investors and Westminster.
7. No
Admissions. Each of
the Parties understands and acknowledges that this Agreement constitutes a
compromise and settlement. This Agreement shall not in any way be construed as
an admission by any party of the truth or falsity of any claims, an admission by
any party of the breach of any agreement with any other party or an
acknowledgment or admission by any party of any fault or liability whatsoever to
any other party.
8. Binding
Nature. This
Agreement is binding on and for the benefit of the Parties hereto and their
respective heirs, executors, administrators, successors and assigns and their
parents, subsidiary and affiliated corporations, companies, divisions,
partnerships and associations and their respective officers, directors, agents,
employees, partners, members, and representatives and their respective
predecessors and assigns.
-2-
9. Voluntary
Agreement. Each of
the Parties to this Agreement represents and warrants to the other Parties to
this Agreement that he/she/it is represented by legal counsel of his/her/its
choice, is fully aware of the terms contained in this Agreement, and have
voluntarily executed the same without coercion or duress of any kind and without
reliance upon any statement or representation made by any other party to this
Agreement, except as set forth herein. The Parties further expressly acknowledge
and agree that they are not relying on any statement, representation, omission,
rumor, publicly-filed document, news media account, or any other information (or
omission) of any type or description in connection with their execution of this
Agreement. The Parties further expressly represent and warrant to the other
Parties that they understand and acknowledge that there may exist facts and
circumstances which are material to the transactions contemplated by this
Agreement that have not been disclosed to him/her/it and warrant to the other
Parties to this Agreement that they are executing this Agreement and shall be
bound thereby notwithstanding said material nondisclosures.
10. Investigation
of Facts. Each of
the Parties hereto has made such investigation of the facts pertaining to this
Agreement as each deems necessary and in entering into this Agreement each party
hereto assumes the risk of mistake with respect to such facts. This Agreement is
intended to be final and binding upon each of the Parties hereto regardless of
any claims of mistake.
11. Confidentiality. This
Agreement and its terms shall be maintained in strict confidence and shall not
be disclosed directly or indirectly by the Parties to any other person or entity
except as otherwise required by law. Each of the Parties hereto acknowledges and
agrees that this provision is essential and material term of the Agreement
without which the consideration relating hereto would not have been delivered.
Each of
the Parties agree to refrain from any negative, critical or disparaging comments
or statements about any of the Parties hereto, or their respective officers,
directors, employees or agents. This provision shall be interpreted broadly to
include all verbal, written or other communication whether personal, published,
recorded, magnetic, electronic, etc., however produced or reproduced. The
Parties hereby agree they will refrain form discussing the provisions of this
Agreement or any of the details of their prior business (financial or
otherwise).
12. Costs
and Attorneys’ Fees. Each
party agrees to bear its own attorneys’ fees and costs and other fees incurred
in connection with the negotiation, drafting, execution and delivery of this
Agreement. If any legal or equitable action is necessary to enforce the terms of
this Agreement, the prevailing party shall be entitled to a reasonable sum for
its attorneys’ fees and costs incurred and paid in connection with prosecuting
or defending such action, in addition to any other relief to which it is
entitled.
13. Termination/Rescission. The
signatories to this Agreement understand and acknowledge that the facts in
respect of which this Agreement is made may hereafter prove to be other than, or
different from, the facts in that connection now known by one or more of them or
believed by one or more of them to be true, and they agree that all of terms of
this Agreement shall be in all respects effective and not subject to termination
or rescission by any such difference in facts.
14. Entire
Agreement; Modification by Writing Only. This
Agreement including the recitals described above in the “WHEREAS” clauses which
are true and correct and are incorporated into this Agreement by reference
(together with any ancillary documents attached to the Agreement as exhibits)
incorporates, embodies, expresses, and supersedes all prior and contemporaneous
agreements and representations or understandings between or among its
signatories, or any subset group of signatories hereto, and neither this
Agreement (nor any ancillary documents attached to this Agreement as exhibits)
may be altered or modified except in writing duly executed by its signatories.
This Agreement and the exhibits attached hereto constitute an integration of the
entire understanding and Agreement among the Parties with respect to the subject
matter hereof. Any representation, promise or condition, whether written or
oral, not specifically incorporated herein, shall not be binding. The Parties
acknowledge that they have not relied, in entering into this Agreement, upon any
representation, promises and covenants between the Parties with respect to the
subject matter hereof other than the terms and provisions set forth
herein
15. Authority/Approval. Each
Party represents and warrants that they each have full power and corporate or
other authority and the necessary corporate or other approvals to enter into and
to perform this Agreement in accordance with its terms, and agrees that the
terms and provisions of this Agreement, including the terms and provisions of
any ancillary documents attached to this Agreement as exhibits, shall apply to
all affiliates, parents, subsidiaries, and divisions of each.
16. Warranty
of Title and Right to Settle. Each of
the Parties hereto represent and warrant to the other Parties to this Agreement
that they have the full right to take the actions contemplated by this Agreement
and have good and absolute title to the causes of action, and the potential
causes of action which could be asserted by them, that are the subject of the
release set forth in this Agreement. The Parties hereto further represent and
warrant to the other Parties to this Agreement that the before-mentioned causes
of actions potential causes of action are free and clear of any claims of
creditors or other third Parties arising from any applicable fraudulent transfer
laws or the provisions of 11 U.S.C. § 101 et seq.
-3-
17. Liability for Breach of Warranty of Title and Right to Settle. Each of the Parties hereto represent and warrant to the other Parties to this Agreement agree that if they breach the warranty of title and right to settle granted pursuant to Paragraph 21 of this Agreement, the party shall indemnify the other Parties to this Agreement against any liability or damage arising from such breach, including all costs, expenses, and attorneys’ fees incurred by the damaged party in defense of any actions brought against the party by reason of any alleged lien, claim, or encumbrance.
18. Headings. The
headings in this Agreement are intended solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
19. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and which together shall constitute a single agreement. A facsimile
signature shall be considered the same as an original.
20. Severability. If any
provision or any portion of this Agreement shall be held unlawful or
unenforceable, the balance of this Agreement shall nonetheless in all respects
remain binding and effective, and shall be construed in full force and effect to
the extent lawfully permissible.
21. Further
Assurances. The
parties hereto shall execute and deliver all documents, provide all information
and take or forbear from all such action as may be necessary or appropriate to
achieve the purposes of the Agreement.
22. Parties
In Interest. Nothing
herein shall be construed to be to the benefit of any third party, nor is it
intended that any provision shall be for the benefit of any third
party.
23. Execution
In Counterparts. This
Agreement may be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
24. Florida
Contract; Florida Law. This
Agreement (together with any applicable ancillary documents attached to the
Agreement as exhibits) shall be deemed to constitute a contract made and entered
into under the laws of the State of Florida, and for all purposes this Agreement
and its ancillary documents shall be construed and governed in accordance with
the laws of the State of Florida without regard to such state’s rules concerning
conflicts of laws.
25. Waiver
of Jury. The
Parties to this Agreement, and each of them, agree that any legal action in
connection with, arising out of, or in any way related to this Agreement
including, without limitation, any cause of action sounding in contract, tort,
or violation of statute, shall be tried to the court, sitting without a jury,
notwithstanding any state or federal constitutional rights, and the Parties
waive any right to have any such actions tried by a jury.
26. Forum
Selection and Consent to Jurisdiction. The
Parties to this Agreement, and each of them, agree that the exclusive venue for
any legal action in connection with, arising out of, or in any way related to
this Agreement including, without limitation, any cause of action sounding in
contract, tort, or violation of statute, shall be the United States District
Court for the Middle District of Florida, Tampa Division, or the Sixth Judicial
Circuit Court in and for Pinellas County, Florida. The Parties to this
Agreement, and each of them, further consent to the personal jurisdiction of the
courts located in the State of Florida regarding any legal action in connection
with, arising out of, or in any way related to this Agreement including, without
limitation, any cause of action sounding in contract, tort, or violation of
statute.
-4-
27. Agreement Drafted. All parties to this Agreement have negotiated it at length, and have had the opportunity to consult with and be represented by their own competent counsel. This Agreement is therefore deemed to have been jointly prepared by the parties, and any uncertainty or ambiguity existing in it shall not be interpreted against any party, but rather shall be interpreted according to the rules generally governing the interpretation of contracts.
IN
WITNESS WHEREOF, the
Parties hereto have executed this Agreement as of the date set forth
above.
ORAGENICS,
INC.
By:
Xxxxx X.
Xxxxxxx, President
WESTMINSTER
SECURITIES CORP.
By:
its
President
Living
Trust of Xxxxxx Xxxxxxx Xxxxxxx
By:
_____________________As Trustee
The
Arbitrage Fund
By:
Xxxx X.
Xxxxxxxx, Individually
-5-
Exhibit A
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES
ACT, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN
RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES
ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST
OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR
OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH
REGISTRATION IS NOT REQUIRED PURSUANT TO A VALID EXEMPTION THEREFROM UNDER THE
SECURITIES ACT.
Warrant
No.__________
REPLACEMENT
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
ORAGENICS,
INC.
THIS
CERTIFIES that, for value received, [ ] is
entitled to purchase from
Oragenics, Inc., a Florida corporation (the "Corporation"), subject to the terms
and conditions hereof, [ ] shares
(the "Warrant Shares") of common stock, $0.001 par value (the "Common Stock").
This warrant,
together with all warrants hereafter issued in exchange or substitution for this
warrant, is referred to as the "Warrant" and the holder of this Warrant is
referred to as the "Holder." The number of Warrant Shares is subject to
adjustment
as hereinafter provided. Notwithstanding anything to the contrary contained
herein, this Warrant shall expire and no
longer be exercisable at 5:00 p.m. Eastern Standard Time (EST) on [Four
years from the closing at which issued] (the
"Termination Date") provided however, that in the event the Corporation's Common
Stock trades on the American Stock Exchange at or above $4.75 per share for a
period of fifteen (15) consecutive days during the term of this Warrant
the
corporation may accelerate the expiration date of this Warrant upon written
notice to the Holder, giving the Holder thirty
(30) days to exercise this warrant after which thirty-day period this Warrant
shall expire and no longer be exercisable.
1. Exercise
of Warrants.
(a) The
Holder may, at any time prior to the Termination Date, exercise this Warrant in
whole or in part
at an exercise price per share equal to [$2.75] per
share, subject to adjustment as provided herein (the "Warrant Price"),
by the surrender of this Warrant (properly endorsed) at the principal office of
the Corporation, or at such other agency or
office of the Corporation in the United States of America as the Corporation may
designate by notice in writing to the
Holder at the address of such Holder appearing on the books of the Corporation,
and by payment to the Corporation
of the Warrant Price in lawful money of the United States by check or wire
transfer for each share of Common
Stock being purchased. Upon any partial exercise of this Warrant, there shall be
executed and issued to the Holder a
new Warrant in respect of the shares of Common Stock as to which this Warrant
shall not have been exercised. In the
event of the exercise of the rights represented by this Warrant, a certificate
or certificates for the Warrant Shares so purchased,
as applicable, registered in the name of the Holder, shall be delivered to the
Holder hereof as soon as practicable
after the rights represented by this Warrant shall have been so
exercised.
(b) If, but
only if, at any time after one year from the date of issuance of this Warrant
there is no effective
registration statement registering the resale of the Common Stock underlying
this Warrant by the Holder, this Warrant
may also be exercised at such time by means of a "cashless exercise" in which,
at any time prior to the Termination
Date, the Holder of this Warrant may, at its option, exchange this Warrant, in
whole or in part (a "Warrant Exchange"),
into Warrant Shares by surrendering this Warrant at the principal office of the
Corporation, accompanied by a notice
stating such Holder's intent to effect such exchange, the number of Warrant
Shares to be exchanged and the date on which
the Holder requests that such Warrant Exchange occur (the "Notice of Exchange").
The Warrant Exchange
A-1
shall
take place on the date specified in the Notice of Exchange or, if later, within
five (5) days of the date the Notice of Exchange
is received by the Corporation (the "Exchange Date"). Certificates for the
Warrant Shares issuable upon such Warrant
Exchange and, if applicable, a new Warrant of like tenor evidencing the balance
of the Warrant Shares remaining
subject to this Warrant, shall be issued as of the Exchange Date and delivered
to the Holder within three (3) business
days following the Exchange Date. In connection with any Warrant Exchange, this
Warrant shall represent the right to
subscribe for and acquire the number of Warrant Shares (rounded to the next
highest integer) equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
(A) = the
Closing Bid Price (as hereinafter defined) on the trading day preceding the date
on which the Company
receives the Exercise Documentation;
(B) = the
exercise price of this Warrant, as adjusted; and
(X) = the
number of shares of Common Stock issuable upon exercise of this Warrant in
accordance with the
terms of this Warrant.
2. Reservation
of Warrant Shares. The
Corporation agrees that, prior to the expiration of this Warrant, it will at
all times
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant,
the number of Warrant Shares as from time to time shall be issuable by the
Corporation upon the exercise of this Warrant.
3. No
Shareholder Rights. This
Warrant shall not entitle the holder hereof to any voting rights or other rights
as a
shareholder of the Corporation.
4. Transferability
of Warrant. Prior to
the Termination Date and subject to compliance with applicable laws,
this
Warrant and all rights hereunder are transferable, in whole or in part, at the
office or agency of the Company by the Holder in
person or by duly authorized attorney, upon surrender of this Warrant together
with the Assignment Form annexed
hereto properly endorsed for transfer.
5. Certain
Adjustments. With
respect to any rights that Holder has to exercise this Warrant and convert into
shares of
Common Stock, Holder shall be entitled to the following
adjustments:
(a) Merger
or Consolidation. If at
any time there shall be a merger or a consolidation of the Corporation
with or into another corporation when the Corporation is not the surviving
corporation, then, as part of such merger or
consolidation, lawful provision shall be made so that the holder hereof shall
thereafter be entitled to receive upon
exercise of this Warrant, during the period specified herein and upon payment of
the aggregate Warrant Price then in
effect, the number of shares of stock or other securities or property (including
cash) of the successor corporation resulting
from such merger or consolidation, to which the holder hereof as the holder of
the stock deliverable upon exercise
of this Warrant would have been entitled in such merger or consolidation if this
Warrant had been exercised immediately
before such merger or consolidation. In any such case, appropriate adjustment
shall be made in the application
of the provisions of this Warrant with respect to the rights and interests of
the holder hereof as the holder of this
Warrant after the merger or consolidation.
(b) Reclassification.
Recapitalization, etc. If the
Corporation at any time shall, by subdivision, combination
or reclassification of securities, recapitalization, automatic conversion, or
other similar event affecting the number or
character of outstanding shares of Common Stock, or otherwise, change any of the
securities as to which purchase
rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant
shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the
result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately
prior to such subdivision, combination, reclassification or other
change.
(c) Split
or Combination of Common Stock and Stock Dividend. In case
the Corporation shall at any time
subdivide, redivide, recapitalize, split (forward or reverse) or change its
outstanding shares of Common Stock into a
greater number of shares or declare a dividend upon its Common Stock payable
solely in shares of Common Stock, the
Warrant Price shall be proportionately reduced and the number of Warrant Shares
proportionately increased. Conversely,
in case the outstanding shares of Common Stock of the Corporation shall be
combined into a smaller number of
shares, the Warrant Price shall be proportionately increased and the number of
Warrant Shares proportionately reduced.
Notwithstanding the foregoing, in no event will the Warrant Price be reduced
below the par value of the Common
Stock.
A-2
6. Legend
and Stop Transfer Orders. Unless
the Warrant Shares have been registered under the Securities Act, upon
exercise of any part of the Warrant, the Corporation shall instruct its transfer
agent to enter stop transfer orders with respect
to such Warrant Shares, and all certificates or instruments representing the
Warrant Shares shall bear on the face thereof
substantially the following legend:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE
BEEN ISSUED IN
RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES
ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST
OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR
OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION
THAT SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO A VALID EXEMPTION
THEREFROM
UNDER THE SECURITIES ACT.
7. Redemption. The
Corporation shall have the right, upon 30 days' written notice to the Holder
("Redemption Notice"),
to redeem all or any portion of this Warrant at a price equal to $.01 per
Warrant Share, provided that (i) the Warrant
Shares have been registered for resale pursuant to the Securities Act, and have
been freely tradable without restriction
or legend for at least the 30-day period preceding such notice and will continue
to be freely tradeable for at least 30 days following such redemption date and
(ii) the Closing Bid Price (as hereinafter defined) for the Common Stock has
been at least $4.75 (subject to adjustment to reflect forward or reverse stock
splits, stock dividends, recapitalizations
and the like) for the 15-trading day period immediately preceding the date of
the Redemption Notice from the
Corporation to the Holder. As used herein, "Closing Bid Price", shall mean the
closing bid price of the Common
Stock as reported by the American Stock Exchange on the date in question (based
on a trading day from 9:30 a.m. EST
to 4:02 p.m. EST (and, if no closing bid price is reported, the closing price as
so reported, and if neither the closing
bid price nor the closing price is so reported, the last reported price of the
Common Stock as determined by an independent
evaluator mutually agreed to by the Holder and the Corporation).
8. Miscellaneous. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Florida. All the covenants and provisions of this Warrant by or for the
benefit of the Corporation shall bind and inure to the
benefit of its successors and assigns hereunder. Nothing in this Warrant shall
be construed to give to any person or corporation
other than the Corporation and the holder of this Warrant any legal or equitable
right, remedy or claim under this Warrant. This Warrant shall be for the sole
and exclusive benefit of the Corporation and the holder of this Warrant.
The
section headings herein are for convenience only and are not part of this
Warrant and shall not affect the interpretation
hereof. Upon receipt of evidence satisfactory to the Corporation of the loss,
theft, destruction or mutilation of this
Warrant, and of indemnity reasonably satisfactory to the Corporation, if lost,
stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, the Corporation shall execute
and deliver to the Holder a new Warrant
of like date, tenor and denomination.
IN
WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by its
duly authorized officers
under its seal, this_____ day
of________________,
2005.
ORAGENICS,
INC.
By:
Name:
Title:
A-3
WARRANT EXERCISE FORM
To
Be Executed by the Holder in Order to Exercise Warrant
| To: | Oragenics, Inc. |
| 00000 Xxxxxxxx Xxxx Dated:______________ |
| Xxxxxxx, Xxxxxxx 00000 |
| Attn: Xxxx Xxxxxx, Principal Financial Officer |
The
undersigned, pursuant to the provisions set forth in the attached Warrant
No. , hereby
irrevocably elects to purchase
(check
applicable box):
| o |
shares
of the Common Stock of Oragenics, Inc. covered by such Warrant;
or |
| o |
the
maximum number of shares of Common Stock covered by such Warrant pursuant
to the cashless exercise procedure
set forth in subsection l(b) (if
applicable). |
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such
Warrant. Such payment takes the form of (check
applicable box or boxes):
| o |
$______
in
lawful money of the United States; and/or |
| o |
if
the provisions of subsection l(b) of this Warrant are in effect, the
cancellation of such portion of the attached Warrant
as is exercisable for a total ofWarrant
Shares (using a Fair Market Value of $per
share for
purposes of this calculation); and/or |
| o |
if
the provisions of subsection l(b) of this Warrant are in effect, the
cancellation of such number of Warrant Shares as
is necessary, in accordance with the formula set forth in subsection l(b),
to exercise this Warrant with respect to the maximum number of Warrant
Shares purchasable pursuant to the cashless exercise procedure set forth
in subsection
l(b). |
The
undersigned hereby requests that certificates for the Warrant Shares purchased
hereby be issued in the name of:
(please
print or type name and address)
(please
insert social security or other identifying number) and be delivered as
follows:
(please
print or type name and address)
(please
insert social security or other identifying number)
and if
such number of shares of Common Stock shall not be all the shares evidenced by
this Warrant Certificate, that a new Warrant
for the balance of such shares be registered in the name of, and delivered to,
Holder.
Signature
of Holder SIGNATURE
GUARANTEE:
A-4
ASSIGNMENT FORM
(To
assign the foregoing warrant, execute this
form. Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
__________________________________________________________________________________
Whose address is
________________________________________________________________________________________________
________________________________________________________________________________________________
Dated:
Holder's
Signature:
Holder's
Address:
Signature
Guaranteed:
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank or trust Corporation. Officers of corporations and those acting in a
fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.
S-1
