As
Filed with the Securities and Exchange Commission on January 10, 2024
Registration
No. 333-________
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 |
|
(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 Plans)
Kimberly
Murphy,
Chief
Executive 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” and “smaller reporting 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. ☐
REGISTRATION
OF ADDITIONAL SECURITIES
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 of Oragenics, Inc. (the “Company”) is being filed to register 1,000,000 additional shares
of Company common stock authorized for issuance under the 2021 Equity Incentive Plan (the “2021 Plan”) (which is an amendment
and restatement of the Company’s 2012 Equity Incentive Plan), pursuant to General Instruction E to Form S-8. The table below summarizes
the Plan, as amended to date and the registration statements previously filed to cover shares authorized for issuance under the Plan.
Summary
Plan Table
Plan
History | |
Date | |
Authorized Shares | | |
Post-Split Shares | | |
Registration Statement |
2021 Equity Incentive Plan | |
February 2022 | |
| 10,000,000 | * | |
| 166,667 | | |
333-263821 |
First Amendment to
2021 Plan | |
December 2023 | |
| 1,000,000 | | |
| 1,166,667 | | |
|
*On
January 20, 2023, the Company effected a 1 for 60 reverse stock split and the amounts reflected prior to the January 2023 reverse split
have been adjusted for such reverse split. On December 14, 2023, the Company’s shareholders approved an increase in the number
of authorized shares for issuance under the Plan from 166,667 shares to 1,166,667 shares or an additional 1,000,000 shares. This Registration
Statement registers the additional 1,000,000 shares approved by the Company’s shareholders.
Pursuant
to General Instruction E to Form S-8, the contents of the previously filed Registration Statement, on Form S-8 (No. 333-263821), on March
24, 2022 is incorporated herein by reference, except to the extent supplemented, amended or superseded by the information set forth herein.
Only those items of Form S-8 containing new information not contained in the earlier registration statements are presented herein.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities
Act Rule 428(b)(1).
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:
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● |
Registration
Statement on Form S-8 filed March 24, 2022 (File No. 333-263821); |
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the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on April 17, 2023; |
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● |
the
Registrant’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed
with the Commission on May 12, 2023, August 11, 2023 and November 9, 2023; and |
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● |
the
Registrant’s Current Reports on Form 8-K, filed with the Commission on each of January
23, 2023, February
3, 2023, February
24, 2023, March
1, 2023, March
8, 2023, March
14, 2023, April
3, 2023, April
10, 2023, June
5, 2023, August
7, 2023, August
10, 2023, August
18, 2023, September
15, 2023, September
29, 2023, October 5, 2023, October 5, 2023, November
2, 2023, November
20, 2023, December
8, 2023, December
15, 2023, December
29, 2023 and January
2, 2024. |
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
8. Exhibits.
See
the Exhibit Index immediately following the signature page which is incorporated herein by reference.
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 10th day of January, 2024.
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Oragenics,
Inc. |
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By: |
/s/
Kimberly Murphy |
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Kimberly
Murphy |
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Chief
Executive Officer and
Principal
Executive Officer |
POWER
OF ATTORNEY
Each
of the undersigned officers and directors of Oragenics, Inc., hereby constitutes and appoints Kimberly Murphy and Janet Huffman, each
their true and lawful attorneys-in-fact and agents, 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 |
|
Date |
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/s/
Kimberly Murphy
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Chief
Executive Officer, Principal Executive
| |
January
10, 2024 |
Kimberly
Murphy |
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Officer and Director |
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/s/
Janet Huffman
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Chief
Financial Officer and Principal |
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January
10, 2024 |
Janet
Huffman |
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Accounting
Officer |
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/s/
Charles Pope
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Chairman
of the Board and Director |
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January
10, 2024 |
Charles
L. Pope |
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/s/
Frederick W. Telling
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Director |
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January
10, 2024 |
Frederick
W. Telling |
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/s/
Robert C. Koski
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Director |
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January
10, 2024 |
Robert
C. Koski |
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/s/
Alan W. Dunton
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Director |
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January
10, 2024 |
Alan
W. Dunton |
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/s/
John Gandolfo
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Director |
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January
10, 2024 |
John
Gandolfo |
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/s/
Bruce Cassidy
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Director |
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January
10, 2024 |
Bruce
Cassidy |
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EXHIBIT
INDEX
Exhibit
Number |
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Exhibit
Description |
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4.1 |
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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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4.2 |
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First Amendment to Equity Incentive Plan (incorporated by reference to Exhibit 4.2 to Form 8-K filed on December 15, 2023) |
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4.3 |
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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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4.4 |
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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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4.5 |
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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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4.6 |
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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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4.7 |
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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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4.8 |
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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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4.9 |
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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 April 17, 2023). |
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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. |
Exhibit
5.1
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Bank
of America Plaza
101
East Kennedy Boulevard
Suite
2800
Tampa,
Florida 33602 |
813.229.7600
813.229.1660
fax |
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January
10, 2024
Oragenics,
Inc.
4902
Eisenhower Boulevard, Suite 125
Tampa,
Florida 33634
Re:
Registration Statement on Form S-8
Ladies
and Gentlemen:
We
have assisted Oragenics, Inc., a Florida corporation (the “Company”) in connection with the preparation and filing of its
Registration Statement on Form S-8 with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of
1933, as amended (the “Act”), for the registration of an additional 1,000,000 shares of the common stock of the Company,
par value $.001 per share (the “Shares”), issuable under the Company’s 2021 Equity Incentive Plan (the “Plan”).
In
connection with the following opinion, we have examined and have relied upon such documents, records, certificates, statements and instruments
as we have deemed necessary and appropriate to render the opinion herein set forth.
On
the basis of such examination and our consideration of those questions of law we considered relevant, and subject to the limitations
and qualifications in this opinion, we are of the opinion that: (1) the Shares have been duly authorized by all necessary corporate action
on the part of the Company; and (2) when issued in accordance with such authorization, the provisions of the Plan and relevant agreements
duly authorized by and in accordance with the terms of the Plan, and upon payment for and delivery of the Shares as contemplated in accordance
with the Plan, and either (a) the countersigning of the certificate or certificates representing the Shares by a duly authorized signatory
of the registrar for the Company’s Common Stock, or (b) the book-entry of the Shares by the transfer agent for the Company’s
Common Stock in the name of The Depository Trust Company or its nominee, the Shares will be validly issued, fully paid and non-assessable.
We
are admitted to practice in the State of Florida. This opinion letter is limited to the laws of the State of Florida, and the federal
laws of the United States of America as such laws presently exist and to the facts as they presently exist. We express no opinion with
respect to the effect or applicability of the laws of any other jurisdiction. We assume no obligation to revise or supplement this opinion
letter should the laws of such jurisdictions be changed after the date hereof by legislative action, judicial decision or otherwise.
The
undersigned hereby consents to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 and to the use of
its name in the Registration Statement. In giving such consent we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
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Very
truly yours, |
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/s/
Shumaker, Loop & Kendrick, LLP |
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SHUMAKER,
LOOP & KENDRICK, LLP |
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 17, 2023, with respect
to the consolidated financial statements of Oragenics, Inc. as of December 31, 2022 and 2021 and for each of the two years in the period
ended December 31, 2022 (which report includes an explanatory paragraph regarding the existence of substantial doubt about the Company’s
ability to continue as a going concern), included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/
Mayer Hoffman McCann P.C. |
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San
Diego, California |
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January 10, 2024 |
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Exhibit
107
CALCULATION
OF REGISTRATION FEE
Form
S-8
(Form
Type)
Oragenics,
Inc.
(Exact
name of registrant as specified in its charter)
Table
1 – Newly Registered Securities
Security Type | |
Security
Class Title | |
Fee
Calculation Rule | |
Amount
Registered(1) | |
Proposed Maximum Offering Price
Per Unit | |
Maximum Aggregate Offering
Price | |
Fee Rate | |
Amount
Of Registration Fee |
Equity | |
Common Stock, par value $0.001 per share | |
Rule 457(c) and (h) | |
| 1,000,000 | | |
$ | 5.95 | | |
$ | 5,950,000 | | |
$ | 147.60
per $1,000,000 | | |
$ | 878.22 | (2) |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
$ | 878.22 | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| N/A | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 878.22 | |
(1) |
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of the Registrant’s Common Stock (“Common Stock”) that become issuable under the
Oragenics, Inc. 2021 Equity Incentive Plan (the “2021 Plan”) by reason of any stock dividend, stock split, recapitalization
or other similar transaction. |
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(2) |
This
estimate is made solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act. The price per share and
aggregate offering price are based upon the average of the high and low prices of Registrant’s
Common Stock on January 5, 2024 as reported on NYSE American. |
Oragenics (AMEX:OGEN)
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