$1,000,000.00
|
Alachua,
Florida
June
29, 2009
|
1.
|
Interest. The
unpaid principal balance under this Secured Promissory Note shall bear
interest from the date hereof at an annual rate equal to the Prime Rate
(as defined below) plus four percent (4%) (the “Applicable
Rate”), compounded quarterly. The term “Prime Rate”
shall mean the “prime rate” of interest (base rate on corporate loans
quoted by the nation’s thirty (30) largest banks) described in the “Money
Rates” column of the Money & Investing Section of The Wall Street
Journal, Eastern Edition, or any successor definition of “prime
rate” contained therein. The initial Applicable Rate is 7.25%.
The Applicable Rate shall be adjusted quarterly on the first day of each
calendar quarter while any principal balance hereunder remains unpaid,
based on the Prime Rate in effect on the business day immediately
preceding such adjustment date. Interest shall be calculated on
the daily unpaid principal balance of this Secured Promissory Note based
on thirty (30) day months, over a year of three hundred sixty (360)
days. Accrued interest on the unpaid balance of this Secured
Promissory Note shall be due and payable on the last day of each and every
calendar quarter during which any principal balance hereunder remains
unpaid.
|
2.
|
Payment of
Principal. The principal of this Secured Promissory
Note, together with all accrued interest thereon, shall be due and payable
upon the earlier of (a) a Change of Control of Borrower (as defined
below); or (b) June 30, 2014. The term “Change of Control of
Borrower” shall mean (i) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of Borrower; (ii) any transaction or
series of transactions (including, but not limited to, any tender offer,
exchange offer, merger or other business combination, or other similar
transaction), the result of which is that more than fifty percent (50%) of
the voting stock of Borrower, or any successor to Borrower resulting from
such transaction or series of related transactions, is acquired by
individuals or entities other than Lender and its affiliates that were not
owners of voting stock of Borrower immediately prior to such
transaction(s), or (iii) the dissolution or liquidation of
Borrower. Any portion of the principal of this Secured
Promissory Note may be prepaid, together with the accrued interest with
respect to such principal payment, prior to maturity, without
penalty. Any payment made under this Secured Promissory Note
shall be applied first to accrued interest and then to
principal. Payment of principal and interest shall be made in
such coin or currency of the United States of America that, at the time of
payment, constitutes legal tender for the payment of public and private
debt.
|
3.
|
Security. The
obligations of Borrower under this Secured Promissory Note are secured
pursuant a Security Agreement of even date herewith (the “Security
Agreement”). The terms and conditions of the Security
Agreement are incorporated herein by this
reference.
|
4.
|
Events of
Default. The occurrence of any one or more of the
following events shall constitute an “Event of
Default” under this Secured Promissory
Note:
|
|
4.1
|
the
failure of Borrower to pay all or any portion of the principal and
interest due and payable under this Secured Promissory Note and such
failure continues for five (5) business days after the Lender notifies
Borrower in writing of such failure;
or
|
|
4.2
|
an
Event of Default under the Security
Agreement.
|
5.
|
Rights and Remedies
Upon Default. Upon the occurrence of an Event of
Default, the principal and all accrued but unpaid interest due under this
Secured Promissory Note shall, at the option of Lender, become immediately
due and payable and may be collected forthwith without notice to Borrower,
regardless of the stipulated date of maturity and, in that event, Borrower
promises to pay, in addition to the unpaid principal and interest
hereunder, all costs, including reasonable attorneys’ fees, paralegals’
fees and expenses for any primary, appellate, bankruptcy and post-judgment
proceedings, that Lender may incur or be put to in the collection of such
amounts. Any overdue payment of principal or interest due under
this Secured Promissory Note shall bear interest from the due date at the
maximum rate permissible under the laws of the State of
Florida.
|
6.
|
Waiver. Borrower
hereby waives protest, demand, presentment and notice of dishonor, notice
of the maturity, nonpayment, and all requirements necessary to hold it
liable as the maker of this Secured Promissory Note, and agrees that this
Secured Promissory Note may be extended in whole or in part without limit
as to the number of such extensions or the period or periods thereof, and
without notice to it and without affecting its liability hereunder.
Failure to accelerate the debt in the event of any default hereunder, or
other indulgence granted from time to time, shall not be construed as a
novation of this Secured Promissory Note or a waiver of the right of
Lender to thereafter insist upon strict compliance with the terms of this
Secured Promissory Note without previous written notice of such intention
being given to Borrower.
|
7.
|
Compliance With Usury
Laws. All agreements between Borrower and Lender are
hereby expressly limited so that in no event shall the amount paid or
agreed to be paid to Lender for the use, forbearance, or detention of the
money loaned under this Secured Promissory Note exceed the maximum amount
permissible under the laws of the State of Florida. If, at the
time of any interest payment, the payment amount due under this Secured
Promissory Note is in excess of the legal limit, the obligation shall be
reduced to the legal limit. If Borrower should ever receive, as
interest, an amount that exceeds the highest lawful rate, the amount that
would be excessive as interest shall be applied to the reduction of the
principal amount owing under this Secured Promissory Note, and not to the
payment of interest.
|
8.
|
Waiver of Jury
Trial. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION
WITH, THIS SECURED PROMISSORY NOTE AND ANY OTHER AGREEMENT CONTEMPLATED TO
BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY.
|
9.
|
Choice of Law;
Venue. The laws of the State of Florida, excluding its
choice of law provisions if such laws would result in the application of
laws other than the laws of the State of Florida, shall govern any
disputes with respect to this Secured Promissory Note, the validity of
this Secured Promissory Note, the construction of its terms, and the
interpretation of the rights and duties of Borrower and Lender
hereunder. The forum selected for any proceeding or suit
related to a dispute between Borrower and Lender related to this Secured
Promissory Note shall be in a federal or state court of competent
jurisdiction located in Hillsborough County, Florida. Borrower
consents to said courts’ personal jurisdiction over it and waives any
defense, whether asserted by motion or pleading, that Hillsborough County,
Florida is an improper or inconvenient
venue.
|
10.
|
Notice. Any
notice, demand or other communication to Borrower that is permitted or
required hereunder shall be given in writing, and shall be deemed to have
been duly delivered (i) when delivered by personal delivery, (ii) three
(3) days after being deposited with the United States Postal Service for
mailing by first class mail, postage prepaid, certified mail, with return
receipt requested (regardless of whether the return receipt is
subsequently received), or (iii) one business day after being deposited
with a nationally recognized courier service for overnight delivery; and
in each case addressed by Lender to Borrower at the address for Borrower
first listed above, or to such other address as Borrower may notify Lender
in writing in conformity with the provisions of this
Section.
|
11.
|
Documentary Stamp
Taxes. Borrower shall pay all documentary stamp taxes
due on the obligation evidenced by this Secured Promissory
Note.
|
12.
|
Assignment. Lender
may assign all or any portion of this Secured Promissory Note and Lender’s
rights hereunder
|
13.
|
Binding
Effect. This Secured Promissory Note shall be binding
upon Borrower and its successors and assigns, and shall inure to the
benefit of Lender and its successors and
assigns.
|
14.
|
Computation of
Time. Whenever the last day for payment of any amount
due hereunder shall fall upon Saturday, Sunday or any public or legal
holiday, whether federal or of the State of Florida, Borrower shall have
until 5:00 p.m. on the next succeeding regular business day to make such
payment.
|
ORAGENICS,
INC.
|
||
By:
|
/s/David
B. Hirsch
|
|
Name:
|
David
B. Hirsch
|
|
Title:
|
President
|
|
Date:
|