$1,000,000.00
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TAMPA,
FLORIDA
MAY
28, 2010
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1.
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Interest. The
unpaid principal balance under this Unsecured Promissory Note with
Conversion Provisions (“Promissory
Note”) shall bear interest from the date the borrowed funds are
wired by Lender to Borrower at an annual rate equal to the London Interbank Offered Rate (LIBOR) plus
six percent (6%) (the “Applicable
Rate”). 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 LIBOR in effect on the business day
immediately preceding such adjustment
date.
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2.
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Payment of Principal
and Interest or Conversion. The principal of this
Promissory Note, together with all accrued interest thereon, shall be due
and payable on such date that is the earlier of: (a) the closing date of a
registered public offering of newly issued equity securities by the
Borrower resulting in cash proceeds to the Borrower (other than in
connection with employee option plans) or (b) May 27, 2011 (the “Due
Date”); provided,
however, that in the event the Borrower completes a private
offering of equity securities prior to such Due Date (a “Private
Placement”), the Borrower may at its option, upon five (5) days written
notice to Lender, elect to convert the principal of this Promissory Note,
together with all accrued interest thereon, into the same equity
securities being sold in the Private Placement at the same price and terms
(the “Conversion Securities”) and issue the Conversion Securities to
Lender. Lender is an “accredited investor” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act. The
Borrower covenants that any Conversion Securities which shall be so
issuable by the Borrower to the Lender shall be duly and validly issued
and fully paid and nonassessable. Upon issuance of the Conversion
Securities to Lender this Promissory Note shall be deemed cancelled and
paid in full. Any portion of the principal of this 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 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.
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3.
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Events of
Default. The occurrence of any of the following events
shall constitute an “Event of
Default”:
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4.
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Rights and Remedies
Upon Default. Upon the occurrence of an Event of
Default, the principal and all accrued but unpaid interest due under this
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 Promissory Note shall bear interest from the due date at
twelve percent (12%) per annum.
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5.
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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 Promissory Note, and agrees that this
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 Promissory Note or a waiver of the right of Lender to
thereafter insist upon strict compliance with the terms of this Promissory
Note without previous written notice of such intention being given to
Borrower.
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6.
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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 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 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 Promissory Note, and not to the payment of
interest.
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7.
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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 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.
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8.
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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 Promissory Note, the validity of this
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 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.
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9.
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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.
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10.
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Documentary Stamp
Taxes. Borrower shall pay all documentary stamp taxes
due on the obligation evidenced by this Promissory
Note.
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11.
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Assignment. Lender
may assign all or any portion of this Promissory Note and Lender’s rights
hereunder
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12.
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Binding
Effect. This 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.
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13.
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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.
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ORAGENICS,
INC.
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By:
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/s/
David Hirsch
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Name:
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David
Hirsch
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Title:
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President
and Chief Executive Officer
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Date:
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May
28, 2010
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