Securities Registration: Employee Benefit Plan (s-8)
24 Mars 2022 - 09:23PM
Edgar (US Regulatory)
As
Filed with the Securities and Exchange Commission on March 24, 2022
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ORAGENICS,
INC.
(Exact
name of registrant as specified in its charter)
FLORIDA |
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59-3410522 |
(State
or other jurisdiction of
incorporation
or organization |
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(I.R.S.
Employer
Identification
No.) |
4902
Eisenhower Boulevard, Suite 125
Tampa,
Florida 33634
813-286-7900
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
2021
EQUITY INCENTIVE PLAN
(Full
Title of the Plan)
Michael
Sullivan,
Interim
Principal Executive Officer and Chief Financial Officer
4902
Eisenhower Boulevard, Suite 125
Tampa,
Florida 33634
813-286-7900
(Name,
Address and Telephone number of Agent for Service)
Copies
to:
Mark
A. Catchur, Esquire
Shumaker,
Loop & Kendrick, LLP
101
E. Kennedy Blvd., Suite 2800
Tampa,
Florida 33602
(813)
229-7600
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
Accelerated Filer ☐ |
|
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒ |
|
|
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions
of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form
S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit
plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
This
Registration Statement on Form S-8 incorporates by reference the following documents we previously filed with the Securities and Exchange
Commission by Oragenics, Inc. (the “Company”):
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the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 24,
2022; |
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● |
the
description of the Company’s Common Stock contained in Exhibit 4.9 to the Registrant’s Annual Report on Form 10-K for
the fiscal year ended in December 31, 2021, including any amendment or report filed for the purpose of updating such description;
and |
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● |
the
Registrant’s Current Reports on Form 8-K, filed with the Commission on each of January 26, 2022, February 28, 2022, March 3,
2022 and March 15, 2022. |
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the effective date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. In no event, however,
will any information that the Registrant discloses under Item 2.02 or Item 7.01 (and any related exhibits) of any Current Report on Form
8-K that the Registrant may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part
of, this Registration Statement. Any statement contained in any document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement,
except as so modified or amended, to constitute a part of the Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Shumaker,
Loop & Kendrick, LLP (“Shumaker”) has opined as to the legality of the securities being offered by this Registration
Statement.
Item
6. Indemnification of Directors and Officers.
Section
607.0850 of the Florida Business Corporation Act (the “FBCA”) permits, in general, a Florida corporation to indemnify any
person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that
he or she is or was a director, officer, employee or agent of the corporation, or served another entity in any capacity at the request
of the corporation, against liability incurred in connection with such proceeding, including the estimated expenses of litigating the
proceeding to conclusion and the expenses actually and reasonably incurred in connection with the defense or settlement of such proceeding,
including any appeal thereof, if such person acted in good faith in a manner he or she reasonably believed to be in, or not opposed to
the best interests of the corporation and, in criminal actions or proceedings, additionally had no reasonable cause to believe that his
or her conduct was unlawful. Section 607.0850(6) of the FBCA permits the corporation to pay such costs or expenses in advance of a final
disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount
if he or she is ultimately found not to be entitled to indemnification under the FBCA. Section 607.0850 of the FBCA provides that the
indemnification and advancement of expense provisions contained in the FBCA shall not be deemed exclusive of any rights to which a director
or officer seeking indemnification or advancement of expenses may be entitled.
As
provided in our bylaws and under Florida law, our Directors shall not be personally liable to our company or any other person for monetary
damages for breach of duty of care or any other duty owed to our company as a Director, unless the breach of or failure to perform those
duties constitutes:
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● |
a
violation of criminal law, unless the Director had reasonable cause to believe his conduct was lawful, or had no reasonable cause
to believe his conduct was unlawful; |
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● |
a
transaction from which the Director received an improper personal benefit, directly or indirectly; |
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● |
in
a proceeding by or in the right of our company or a shareholder, an act or omission which involves a conscious disregard for the
best interests of our company or which involves willful misconduct; |
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● |
in
a proceeding by or in the right of someone other than our company or a shareholder, an act of recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights,
safety, or property; or |
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● |
a
distribution made in violation of Florida law. |
Our
bylaws provide that we are required to indemnify any Director, officer, employee or agent made a party to a proceeding because he is
or was our Director, officer, employee or agent against liability incurred in the proceeding if he acted in good faith and in a manner
the Director reasonably believed to be in or not opposed to our best interests and, in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
Our
bylaws and Florida law also provide that we shall indemnify a Director, officer, employee or agent who has been successful on the merits
or otherwise in the defense of any proceeding to which he was a party, or in defense of any claim, issue or matter therein, because he
is or was a Director, officer, employee or agent of our company against expenses actually and reasonably incurred by him in connection
with such defense.
The
FBCA also empowers a corporation to provide insurance for directors and officers against liability arising out of their positions, even
though the insurance coverage may be broader than the corporation’s power to indemnify. We maintain directors’ and officers’
liability insurance for the benefit of our directors and officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
the Exhibit Index immediately following the signature page which is incorporated herein by reference.
Item
9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities
Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement exhibit; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
provided,
however, that provisions (A)(1)(i) and (A)(1)(ii) of this undertaking are inapplicable if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Sections 13 or
15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant of expenses incurred or paid by a director, officer or controlling person in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tampa, State of Florida this 24th day of March, 2022.
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Oragenics,
Inc. |
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By: |
/s/
Michael Sullivan |
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Michael
Sullivan |
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Interim
Principal Executive Officer and Chief Financial Officer |
POWER
OF ATTORNEY
Each
of the undersigned officers and directors of Oragenics, Inc., hereby constitutes and appoints Michael Sullivan, as their true and lawful
attorney-in-fact and agent, for them and in their name, place and stead, in any and all capacities, to sign their names to any and all
amendments to this Registration Statement on Form S-8, including post-effective amendments and other related documents, and to cause
the same to be filed with the Securities and Exchange Commission, granting unto said attorneys, full power and authority to do and perform
any act and thing necessary and proper to be done in the premises, as fully to all intents and purposes as the undersigned could do if
personally present, and the undersigned for himself hereby ratifies and confirms all that said attorney shall lawfully do or cause to
be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this S-8 Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
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Title |
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Date |
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/s/
Michael Sullivan |
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Interim
Principal Executive Officer and |
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March
24, 2022 |
Michael
Sullivan |
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Chief
Financial Officer |
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/s/
Frederick W. Telling |
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Chairman
of the Board and Director |
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March
24, 2022 |
Frederick
W. Telling |
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/s/
Robert C. Koski |
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Director |
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March
24, 2022 |
Robert
C. Koski |
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/s/
Charles Pope |
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Director |
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March
24, 2022 |
Charles
L. Pope |
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/s/
Alan W. Dunton |
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Director |
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March
24, 2022 |
Alan
W. Dunton |
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/s/
Kim Murphy |
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Director |
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March
24, 2022 |
Kim
Murphy |
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EXHIBIT
INDEX
Exhibit
Number |
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Exhibit
Description |
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4.1 |
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2012 Equity Incentive Plan (incorporated by reference as Exhibit 4.1 to Form 8-K filed on October 25, 2012). |
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4.2 |
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First Amendment to 2012 Equity Incentive Plan (incorporated by reference as Exhibit 4.2 to Form 8-K filed on May 5, 2017). |
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4.3 |
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Second Amendment to 2012 Equity Incentive Plan (incorporated by reference as Exhibit 4.3 to Form 8-K filed on December 29, 2017). |
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4.4 |
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Third Amendment to 2012 Equity Incentive Plan (incorporated by reference as Exhibit 4.4 to Form 8-K filed on June 26, 2018). |
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4.5 |
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Fourth Amendment to 2012 Equity Incentive Plan (incorporated by reference as Exhibit 4.4 to Form 8-K filed on June 21, 2019). |
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4.6 |
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2021 Equity Incentive Plan (incorporated by reference as Exhibit 10.1 to Form 8-K filed on February 28, 2022). |
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4.7 |
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Amended and Restated Warrant Form (incorporated by reference as Exhibit 4.1 to Form 8-K filed on August 1, 2017). |
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4.8 |
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Form of Common Stock Warrant (incorporated by reference as Exhibit 4.1 to Form 8-K filed on November 9, 2017). |
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4.9 |
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Form of Investor Warrant (incorporated by reference as Exhibit 4.1 to Form 8-K filed on April 10, 2018). |
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4.10 |
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Form of Warrant to purchase shares of Common Stock (incorporated by reference as Exhibit 4.2 to Form S-1/A filed on July 9, 2018). |
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4.11 |
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Warrant Agency Agreement (incorporated by reference as Exhibit 4.2 to Form 8-K filed on July 17, 2018). |
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4.12 |
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Form of Series 2 Warrant (incorporated by reference as Exhibit 4.2 to Form 8-K filed on March 25, 2019). |
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4.13 |
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Warrant dated May 1, 2020 (incorporated by reference as Exhibit 4.1 to Form 8-K filed on May 4, 2020). |
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4.14 |
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Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (incorporated by reference as Exhibit 4.9 to Form 10-K filed on March 24, 2022). |
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5.1 |
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Opinion
of Shumaker, Loop & Kendrick, LLP, as to the legality of the securities being registered. |
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23.1 |
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Consent
of Independent Registered Public Accounting Firm, Mayer Hoffman McCann P.C. |
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23.2 |
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Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an Exhibit to this Registration Statement is included in their opinion filed herewith as Exhibit 5.1. |
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24.1 |
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Power of Attorney (included with the signature page to this Registration Statement). |
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107 |
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Filing
Fee Table. |
Oragenics (AMEX:OGEN)
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