UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of
The
Securities Exchange Act of 1934
Date
of
Report (Date of earliest event reported) August 21, 2007
|
Advaxis,
Inc.
|
|
(Exact
name of registrant as specified in its
charter)
|
|
Delaware
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00028489
|
02-0563870
|
||
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
Technology
Center of New Jersey,
675
Rt. 1, Suite B113
North
Brunswick, New Jersey
|
08902
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|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Registrant’s
telephone number, including area code (732)
545-1590
__________________________________________
(Former
name or former address, if changed since last report.)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
IItem
2.03. Creation
of a Direct Financial Obligation
Item
3.02. Unregistered
Sales of Equity Securities
On
August
24, 2007, we issued and sold an aggregate of $600,000 principal amount
promissory notes bearing interest at a rate of 12% per annum and warrants to
purchase and an aggregate of 150,000 shares of our common stock to three
investors including Thomas Moore, our Chief Executive Officer. Mr. Moore
invested $400,000 and received warrants for the purchase of 100,000 shares
of
Common Stock.
The
promissory note and accrued but unpaid interest thereon are convertible at
the
option of the holder into shares of our common stock upon the closing by the
Company of a sale of its equity securities aggregating $3,000,000 or more in
gross proceeds to the Company at a conversion rate which shall be the greater
of
a price at which such equity securities we sold or the price per share of the
last reported trade of our Common Stock on the market on which the Common Stock
is then listed, as quoted by Bloomberg LP. At any time prior to conversion,
we
have the right to prepay the promissory notes and accrued but unpaid interest
thereon.
The
warrant is exercisable for a five-year period commencing on issuance and
expiring on August 31, 2012, at a price of $0.287 per share. Provided, however,
that if (i) the average of the closing prices for any consecutive 30 Trading
Days period is at least $1.00, (ii) the average daily trading volume of the
Common Stock during such 30-Trading Day period is at least 100,000 shares,
and
(iii) a registration statement covering the resale of the shares underlying
the
warrant is at such time effective (the first date upon which the conditions
set
forth in (i), (ii) and (iii) are satisfied, being referred to as the “Early
Expiration Triggering Event”), then the warrant shall be canceled and shall be
of no further force and effect (to the extent not previously exercised) as
of
the 45th
day
following the Early Expiration Triggering Event
Item
5.02. Departure
of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers
On
August
21, 2007, Advaxis, Inc. (the “Company”) and Mr. Thomas A. Moore, its Chief
Executive, completed execution of employment agreement memorializing
the terms previously disclosed of his employment since his initial engagement
and election on December 15, 2006. Mr. Moore is to receive an annual salary
of
$250,000 to increase to $350,000, subject to a successful sale by the Company
of
its securities for at least $4,000,000. He is to receive 750,000 shares upon
the
completion of sales or a sale of securities for gross proceeds of an additional
$6,000,000. (Mr. Moore had been granted on December 15, 2006, 2,400,000 options
at the price of $0.143 per share to vest monthly over 2 years). Mr. Moore is
eligible to receive an additional grant of 1,500,000 shares of the Company’s
common stock, if the Company’s stock share price is at least $0.40 per share or
higher, over 40 consecutive days. He is to receive health care benefits at
no
cost to him. In the event of a change of control or a sale of the Company while
Mr. Moore is employed, all options will be awarded and vested. In the event
of
termination of Mr. Moore’s employment by the Company following a $4,000,000
security sale, he will also receive a severance payment equal to one year of
salary at his then compensation level. In the definitive agreement the Board
abandoned its original proposal to terminate Mr. Moore’s employment and the
return of all options or shares of common stock granted without severance or
other terminating compensation, if the Company did not successfully compete
by
June 2007 a financing of at least $4,000,000.
-2-
Item
9.01. Financial
Statements and Exhibits
Exhibit
10.1 Form
of
Warrant of Advaxis, Inc.
Exhibit
10.2 Form
of
Note of Advaxis, Inc.
Exhibit
10.3 Employment Agreement between Thomas Moore and Advaxis Inc. executed August
21, 2007.
-3-
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Dated: August 24, 2007 | ||
| ADVAXIS, INC. | ||
| |
|
|
| By: | /s/ Thomas Moore | |
|
Name: Thomas Moore |
||
|
Title:
Chief Executive Officer
|
||
-4-
EXHIBIT
10.1
FORM
OF WARRANT OF ADVAXIS, INC.
NEITHER
THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY SUCH SECURITIES.
ADVAXIS,
INC.
BRIDGE
WARRANT A
| Bridge Warrant No. A-1 |
Date
of Original Issuance: August [__],
2007
|
Advaxis,
Inc., a Delaware corporation (the “Company”),
hereby
certifies that, for value received, [________________] or his, her, or its
registered assigns (the “Holder”),
is
entitled to purchase from the Company up to a total of [_______] thousand
(__,___) shares of common stock, par value $0.001 (the “Common
Stock”),
of the
Company (each such share, a “Warrant
Share”
and all
such shares, the “Warrant
Shares”)
at an
exercise price equal to $0.287 per share (as adjusted from time to time as
provided in Section 9, the “Exercise
Price”),
at any
time and from time to time from and after the date hereof and through and
including August 31, 2012 (the “Expiration
Date”),
and
subject to the following terms and conditions:
1. Definitions.
This
warrant (the “Warrant”) is one of a series of similar warrants issued in
connection with the sale of 12% Convertible Promissory Notes of the Company
in
August, 2007. All such warrants are collectively referred to herein as the
“Warrants”.
2. Registration
of Warrant; Transfers.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant
Register”),
in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary. The Holders are entitled
to the benefits of the Registration Rights Agreement which provides, among
other
things, for certain registration rights and certain restrictions on the transfer
of the Warrants and the Warrant Shares, and each Holder, by acceptance of a
Warrant, accepts the restrictions and other provisions of the Registration
Rights Agreement.
-1-
3. Registration
of Transfers.
The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Company at its address
specified herein. Upon any such registration or transfer, a new Warrant to
purchase Common Stock, in substantially the form of this Warrant (any such
new
Warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
4. Exercise
and Duration of Warrants.
(a)
This Warrant shall be exercisable by the registered Holder at any time and
from
time to time on or after the date hereof to and including the Expiration Date;
provided, that if (i) the average of the Closing Prices for any consecutive
30
Trading Days period is at least $1.00, (ii) the average daily trading volume
of
the Common Stock during such 30-Trading Day period is at least 100,000 shares,
and (iii) a Registration Statement covering the resale of the Warrant Shares
is
at such time effective (the first date upon which the conditions set forth
in
(i), (ii) and (iii) are satisfied, being referred to as the “Early
Expiration Triggering Event”),
then
the Warrant shall be canceled and shall be of no further force and effect (to
the extent not previously exercised) as of the 45th
day
following the Early Expiration Triggering Event; provided, that, and only if,
the Company gives written notice to the Holder of same within five days
following the Early Expiration Triggering Event it being understood that such
notice and 45-day period is intended to give the Holder a reasonable opportunity
to exercise this Warrant prior to such cancellation. As used herein, the term
“Closing
Price”
means,
for any date, the price determined by the first of the following clauses that
applies: (A) if the Common Stock is then listed or quoted on New York Stock
Exchange, the American Stock Exchange, the NASDAQ
National
Market, the NASDAQ
Small
Cap Market or the OTC Bulletin Board or any successor to any of the foregoing,
the closing price per share of the Common Stock for such date (or the nearest
preceding date) on the primary market or exchange on which the Common Stock
is
then listed or quoted; (B) if prices for the Common Stock are then reported
in the “Pink Sheets” published by the National Quotation Bureau Incorporated (or
a similar organization or agency succeeding to its functions of reporting
prices), the most recent closing bid price per share of the Common Stock so
reported; or (C) in all other cases, the fair market value of a share of Common
Stock as determined by an independent appraiser selected in good faith by the
Investors and the Company.
(b)
A
Holder may exercise this Warrant by delivering to the Company (i) an exercise
notice, in the form attached hereto (the “Exercise
Notice”),
and
(ii) payment of the Exercise Price for the number of Warrant Shares as to which
this Warrant is being exercised and the date such items are delivered to the
Company (as determined in accordance with the notice provisions hereof) is
the
“Date
of Exercise.”
-2-
(c)
The
Company may not call or redeem all or any portion of this Warrant without the
prior written consent of the Holder.
5. Delivery
of Warrant Shares.
(a) Upon
delivery to the Company of an exercise notice in the form attached hereto (the
“Exercise
Notice”)
at the
Company’s address for notice set forth herein and upon payment of the Exercise
Price multiplied by the number of Warrant Shares that the Holder intends to
purchase hereunder, the Company shall promptly (but in no event later than
three
Trading Days after the Date of Exercise (as defined herein) issue and deliver
to
the Holder, a certificate for the Warrant Shares issuable upon such exercise,
which, unless otherwise required by the Securities Purchase Agreement, shall
be
free of restrictive legends. The Company shall, upon request of the Holder
and
subsequent to the date on which a registration statement covering the resale
of
the Warrant Shares has been declared effective by the Securities and Exchange
Commission, use its best efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions, if available, provided,
that,
the Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Warrant Shares electronically through
the
Depository Trust Corporation. A “Date
of Exercise”
means
the date on which the Holder shall have delivered to Company: the Exercise
Notice, appropriately completed and duly signed, and payment of the Exercise
Price for the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) To
effect
exercises hereunder, the Holder shall be required to physically surrender this
Warrant. Execution and delivery of the Exercise Notice shall have the same
effect as cancellation of the original Warrant and issuance of a New Warrant
evidencing the right to purchase the remaining number of Warrant Shares. This
Warrant is exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this Warrant
following one or more partial exercises, the Company shall issue or cause to
be
issued, at its expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c) The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or
any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein shall
limit a Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise
of
the Warrant as required pursuant to the terms hereof.
-3-
6. Charges,
Taxes and Expenses.
Issuance and delivery of certificates for shares of Common Stock upon exercise
of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of which taxes
and
expenses shall be paid by the Company; provided, however, that the Company
shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares or Warrants
in a name other than that of the Holder. The Holder shall be responsible for
all
other tax liability that may arise as a result of holding or transferring this
Warrant or receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which shall not
include a surety bond), if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of persons other
than the Holder (taking into account the adjustments and restrictions of Section
9). The Company covenants that all Warrant Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in
accordance with the terms hereof, shall be duly and validly authorized, issued
and fully paid and nonassessable.
9. Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination. If any event requiring an
adjustment under this Section 9(a) occurs during the period that an Exercise
Price is calculated hereunder, then the calculation of such Exercise Price
shall
be adjusted appropriately to reflect such event.
-4-
(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding, (1) the Company effects any merger
or consolidation of the Company with or into another Person, (2) the Company
effects any sale of all or substantially all of its assets in one or a series
of
related transactions, (3) any tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (4) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental
Transaction”),
then
the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property as it would
have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant (the “Alternate
Consideration”).
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder’s option and request, any successor to the Company or
surviving entity in such Fundamental Transaction shall issue to the Holder
a new
warrant substantially in the form of this Warrant and consistent with the
foregoing provisions and evidencing the Holder’s right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The terms
of any agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this Section 9(b) and insuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
(c) In
case
the Company shall issue shares of Common Stock or rights, options, warrants
or
other securities to subscribe for or purchase Common Stock, or securities
convertible or exercisable into or exchangeable for Common Stock (“Common
Stock Equivalents”)
(excluding shares, rights, options, warrants, or convertible or exchangeable
securities, issued or issuable (i) in any of the transactions with respect
to
which an adjustment of the Exercise Price is provided pursuant to Sections
9(a)
or 9(b) above, (ii) upon exercise of the Warrants, (iii) pursuant to stock
option plans, stock bonus plans, stock incentive plans, programs or agreements
providing for the grant of shares, options for shares or stock appreciation
rights to employees (including officers), directors, consultants, advisors,
agents, lessors, lenders, customers, vendors and suppliers, or (iv) in
connection with transactions which are not for the principal purpose of raising
money (i.e., strategic alliance, corporate partnering, licensing of technology,
mergers, acquisition of assets)), at a price per share lower than the Base
Price
(as hereinafter defined) per share of Common Stock in effect immediately prior
to such issuance, then the Exercise Price shall be reduced on the date of such
issuance to a price (calculated to the nearest cent) determined by multiplying
the Exercise Price in effect immediately prior to such issuance by a fraction,
(1) the numerator of which shall be an amount equal to the sum of (A) the number
of shares of Common Stock outstanding immediately prior to such issuance plus
(B) the quotient obtained by dividing the consideration received by the Company
upon such issuance by the Base Price, and (2) the denominator of which shall
be
the total number of shares of Common Stock outstanding immediately after such
issuance. For the purposes of such adjustments, the maximum number of shares
which the holders of any such Common Stock Equivalents, shall be entitled to
subscribe for or purchase or convert or exchange such securities into shall
be
deemed to be issued and outstanding as of the date of such issuance (whether
or
not such Common Stock Equivalent is then exercisable, convertible or
exchangeable), and the consideration received by the Company therefore shall
be
deemed to be the consideration received by the Company for such Common Stock
Equivalents, plus the minimum aggregate consideration or premiums stated in
such
Common Stock Equivalents, to be paid for the shares covered thereby. No further
adjustment of the Exercise Price shall be made as a result of the actual
issuance of shares of Common Stock on exercise of such Common Stock Equivalents.
On the expiration or the termination of such Common Stock Equivalents, or the
termination of such right to convert or exchange, the Exercise Price shall
forthwith be readjusted (but only with respect to that portion of the Warrants
which has not yet been exercised) to such Exercise Price as would have obtained
had the adjustments made upon the issuance of such Common Stock Equivalents,
been made upon the basis of the delivery of only the number of shares of Common
Stock actually delivered upon the exercise of such Common Stock Equivalents;
and
on any change of the number of shares of Common Stock deliverable upon the
exercise of any such Common Stock Equivalents, or any change in the
consideration to be received by the Company upon such exercise, conversion,
or
exchange, including, but not limited to, a change resulting from the
anti-dilution provisions thereof, the Exercise Price, as then in effect, shall
forthwith be readjusted (but only with respect to that portion of the Warrants
which has not yet been exercised or converted after such change) to such
Exercise Price as would have been obtained had an adjustment been made upon
the
issuance of such Common Stock Equivalents not exercised prior to such change,
or
securities not converted or exchanged prior to such change, on the basis of
such
change. In case the Company shall issue shares of Common Stock or any such
Common Stock Equivalents, for a consideration consisting, in whole or in part,
of property other than cash or its equivalent, then the “price per share” and
the “consideration received by the Company” for purposes of the first sentence
of this Section 9(c) shall be as determined in good faith by the Board of
Directors of the Company. Shares of Common Stock owned by or held for the
account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any such computation. For the purposes of this
Agreement “Base
Price”
shall
mean $0.287 (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like).
-5-
(d) Pro
Rata Distributions.
If the
Company, at any time while this Warrant is outstanding, distributes to holders
of Common Stock (i) evidences of its indebtedness, (ii) any security (other
than
a distribution of Common Stock covered by Section 9(a)), (iii) rights or
warrants to subscribe for or purchase any security (other than Common Stock
Equivalents which are covered by Section 9(c)), or (iv) any other asset (in
each
case, “Distributed
Property”),
then
in each such case the Exercise Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such
distribution shall be adjusted (effective on such record date) to equal the
product of such Exercise Price times a fraction of which the denominator shall
be the average of the Closing Prices for the five Trading Days immediately
prior
to (but not including) such record date and of which the numerator shall be
such
average less the then fair market value of the Distributed Property distributed
in respect of one outstanding share of Common Stock, as determined by the
Company's independent certified public accountants that regularly examine the
financial statements of the Company (an “Appraiser”).
In
such event, the Holder, after receipt of the determination by the Appraiser,
shall have the right to select an additional appraiser (which shall be a
nationally recognized accounting firm), in which case such fair market value
shall be deemed to equal the average of the values determined by each of the
Appraiser and such appraiser. As an alternative to the foregoing adjustment
to
the Exercise Price, at the request of the Holder delivered before the 90th
day
after such record date, the Company will deliver to such Holder, within five
Trading Days after such request (or, if later, on the effective date of such
distribution), the Distributed Property that such Holder would have been
entitled to receive in respect of the Warrant Shares for which this Warrant
could have been exercised immediately prior to such record date. If a Holder
has
elected to receive Distributed Property and such Distributed Property is not
delivered to a Holder pursuant to the preceding sentence, then upon expiration
of or any exercise of the Warrant that occurs after such record date, such
Holder shall remain entitled to receive, in addition to the Warrant Shares
otherwise issuable upon such exercise (if applicable), such Distributed
Property. This Section 9(d) is only applicable if the Holder exercises the
Warrant concurrently with the distribution to the Holder of the Distributed
Property.
-6-
(e) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to Sections
9(a), 9(c) or 9(d), the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately, so
that after such adjustment the aggregate Exercise Price payable hereunder for
the adjusted number of Warrant Shares shall be the same as the aggregate
Exercise Price in effect immediately prior to such adjustment.
(f) Calculations.
All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(g) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section 9, the Company at
its
expense will promptly compute such adjustment in accordance with the terms
of
this Warrant and prepare a certificate setting forth such adjustment, including
a statement of the adjusted Exercise Price and adjusted number or type of
Warrant Shares or other securities issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments and
showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate
to
the Holder and to the Company’s Transfer Agent.
-7-
(h) Notices
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company or any Subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes a repurchase of Common Stock or the voluntary
dissolution, liquidation or winding up of the affairs of the Company, then
the
Company shall deliver to the Holder a notice describing the material terms
and
conditions of such transaction, at least 10 calendar days prior to the
applicable record or effective date on which a Person would need to hold Common
Stock in order to participate in or vote with respect to such transaction,
and
the Company will take all steps reasonably necessary in order to insure that
the
Holder is given the practical opportunity to exercise this Warrant prior to
such
time so as to participate in or vote with respect to such transaction; provided,
however, that the failure to deliver such notice or any defect therein shall
not
affect the validity of the corporate action required to be described in such
notice.
(i) Successive
Adjustments and Changes.
The
provisions of Section 9 shall similarly apply to successive dividends,
subdivisions, combinations, and distributions, to successive consolidations,
mergers, sales, leases, or conveyances, and to successive reclassifications,
changes of shares of Common Stock and issuances of Common Stock, warrants,
options or other rights to subscribe for or purchase Common Stock, or securities
convertible into Common Stock. If applicable, appropriate adjustment, as
determined in good faith by the Company’s Board of Directors, shall be made in
the application of the provisions herein set forth with respect to the rights
and interests of the Holder so that the provisions of Section 9 shall thereafter
be applicable, as nearly as possible, in relation to any shares or other
property thereafter deliverable upon exercise of this Warrant.
10. Payment
of Exercise Price.
The
Holder must pay the Exercise Price by delivery of immediately
available funds or, subject to the first sentence of the immediately following
paragraph, if the Holder so elects, the Holder may satisfy its obligation to
pay
the Exercise Price through a “cashless exercise,” in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X
= Y* (
(A-B) /A)
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
Common Stock Market Price.
B
= the
Exercise Price.
As
used
herein, the term "COMMON STOCK MARKET PRICE" means the greater of: (i) the
Closing Price of the Trading Day immediately preceding (but not including)
the
Date of Exercise, (ii) the average of the Closing Prices for the 10 Trading
Days
immediately preceding (but not including) the Date of Exercise, and (iii) if
applicable, the average of the Closing Prices for the 90 Trading Days
immediately following the date on which a Registration Statement covering the
resale of the Warrant Shares is declared effective (or, if the Date of Exercise
is less than 90 Trading Days following such effective date, then such shorter
period). For purposes of Rule 144 promulgated under the Securities Act, it
is
intended, understood and acknowledged that the Warrant Shares issued in a
cashless exercise transaction shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be deemed to have
commenced, on the date this Warrant was originally issued pursuant to the
Securities Purchase Agreement. As used herein, the term "CLOSING PRICE" means,
for any date, the price determined by the first of the following clauses that
applies: (A] if the Common Stock is then listed or quoted on New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market, the Nasdaq
Small Cap Market or the OTC Bulletin Board or any successor to any of the
foregoing, the closing price per share of the Common Stock for such date (or
the
nearest preceding date) on the primary market or exchange on which the Common
Stock is then Listed or quoted: (B) if prices for the Common Stock are then
reported in the "Pink Sheets" published by the National Quotation Bureau
Incorporated (or a similar organization or agency succeeding to its functions
of
reporting prices), the most recent closing bid price per share of the Common
Stock so reported; or (C) in all other cases, the fair market value of a share
of Common Stock as determined by an independent appraiser selected in good
faith
by the Investors and the Company.
-8-
11. Limitations
on Exercise.
(a) Notwithstanding
anything to the contrary contained herein, the number of shares of Common Stock
that may be acquired by the Holder upon any exercise of this Warrant (or
otherwise in respect hereof) shall be limited to the extent necessary to insure
that, following such exercise (or other issuance), the total number of shares
of
Common Stock then beneficially owned by such Holder and its Affiliates and
any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 4.999% (the "5%
Maximum Percentage")
of the
total number of issued and outstanding shares of Common Stock (including for
such purpose the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
The Company shall, instead of issuing shares of Common Stock in excess of the
limitation referred to in this Section 11(a), suspend its obligation to issue
shares in excess of the foregoing limitation until such time, if any, as such
shares of Common Stock may be issued in compliance with such limitation.
Additionally, by written
notice
to the Company, the Holder may waive the provisions of this Section 11(a) or
increase or decrease the 5% Maximum Percentage to any other percentage specified
in such notice; provided, that (i) any such waiver or increase or decrease
will
not be effective until the 61st
day
after such notice is delivered to the Company, and (ii) any such waiver or
increase or decrease will apply only to the Holder and not to any other holder
of Warrants.
(b) Notwithstanding
anything to the contrary contained herein and regardless of whether the
restrictions contained in Section 11(a) are waived as provided therein, the
number of shares of Common Stock that may be acquired by the Holder upon any
exercise of this Warrant (or otherwise in respect hereof) shall be limited
to
the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned
by
such Holder and its Affiliates and any other Persons whose beneficial ownership
of Common Stock would be aggregated with the Holder's for purposes of Section
13(d) of the Exchange Act, does not exceed 9.999% (the "10%
Maximum Percentage")
of the
total number of issued and outstanding shares of Common Stock (including for
such purpose the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
The Company shall, instead of issuing shares of Common Stock in excess of the
limitation referred to in this Section 11(b), suspend its obligation to issue
shares in excess of the foregoing limitation until such time, if any, as such
shares of Common Stock may be issued in compliance with such limitation. The
provisions of this Section 11(b) may not be waived.
-9-
(c)
This
Section 11 shall not restrict the number of shares of Common Stock which a
Holder may receive or beneficially own in order to determine the amount of
securities or other consideration that such Holder may receive in the event
of a
Fundamental Transaction as contemplated in Section 9(b) this Warrant or the
amount of Distributed Property to which the Holder may become entitled pursuant
to Section 9(d) of this Warrant. In addition, this provision shall not in any
way limit any other adjustment to be made pursuant to Section 9
hereof.
12. No
Fractional Shares.
If any
fraction of a Warrant Share would, except for the provisions of this Section,
be
issuable upon exercise of this Warrant, the number of Warrant Shares to be
issued will be rounded up to the nearest whole share.
13. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via confirmed facsimile at the facsimile number
specified in this Section prior to 4:00 p.m. (New York City time) on a Trading
Day, (ii) the next Trading Day after the date of transmission, if such notice
or
communication is delivered via confirmed facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than
4:00
p.m. (New York City time) on any Trading Day, (iii) the Trading Day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to
be
given. The addresses for such communications shall be: (i) if to the Company,
to
Advaxis, Inc., Technology Center of New Jersey, 675 Route 1, Suite 113, North
Brunswick, New Jersey 08902, Attention: Chief Executive Officer, or (ii) if
to
the Holder, to the address or facsimile number appearing on the Warrant Register
or such other address or facsimile number as the Holder may provide to the
Company in accordance with this Section.
14. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 10 days’ notice to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder’s last address as shown on the Warrant
Register.
-10-
15. Miscellaneous.
(a) Subject
to the restrictions on transfer set forth on the first page hereof, this Warrant
may be assigned by the Holder upon delivery to the Company of a properly
completed notice of assignment, substantially in the form attached hereto.
This
Warrant may not be assigned by the Company except to a successor in the event
of
a Fundamental Transaction. This Warrant shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
Subject to the preceding sentence, nothing in this Warrant shall be construed
to
give to any Person other than the Company and the Holder any legal or equitable
right, remedy or cause of action under this Warrant. This Warrant may be amended
only in writing signed by the Company and the Holder and their successors and
assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of this
Warrant and the transactions herein contemplated (“Proceedings”)
(whether brought against a party hereto or its respective Affiliates, employees
or agents) may be commenced non-exclusively in the state and federal courts
sitting in the City of New York, Borough of Manhattan (the “New
York Courts”).
Each
party hereto hereby irrevocably submits to the non-exclusive jurisdiction of
the
New York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any Proceeding, any
claim
that it is not personally subject to the jurisdiction of any New York Court,
or
that such Proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. IF EITHER PARTY SHALL COMMENCE A PROCEEDING TO ENFORCE ANY PROVISIONS
OF
THIS WARRANT, THEN THE PREVAILING PARTY IN SUCH PROCEEDING SHALL BE REIMBURSED
BY THE OTHER PARTY FOR ITS ATTORNEY’S FEES AND OTHER COSTS AND EXPENSES INCURRED
WITH THE INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH
PROCEEDING.
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
-11-
(d) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) The
Company will not, by amendment of its governing documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at
all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality
of
the foregoing, the Company (i) will not increase the par value of any Warrant
Shares above the amount payable therefore on such exercise, (ii) will take
all
such action as may be reasonably necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares on the exercise of this Warrant, and (iii) will not close its stockholder
books or records in any manner which interferes with the timely exercise of
this
Warrant.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
-12-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
|
ADVAXIS,
INC.
|
||
| |
|
|
| By: | ||
|
Name: Thomas
Moore
|
||
| Title: Chief Executive Officer | ||
-13-
ADVAXIS,
INC. —
EXERCISE NOTICE
Exercise
Notice for Warrant No: ________
The
undersigned hereby irrevocably elects to purchase ________________ shares of
Common Stock of Advaxis, Inc. (the “Company”),
pursuant to the above captioned Warrant. Capitalized terms used herein and
not
otherwise defined herein shall have the meanings ascribed to such terms in
the
above captioned Warrant. The Holder intends that payment of the Exercise Price
shall be made as (check one):
____
“Cash Exercise” with respect to _________________ of shares
____
“Cashless Exercise” with respect to _________________ of shares
If
the
holder has elected a Cash Exercise, the holder shall pay the sum of
$_____________ to the Company in accordance with the terms of the
Warrant.
Pursuant
to this exercise, the Company shall deliver to the holder __________ Warrant
Shares in accordance with the terms of the Warrant. Following this exercise,
the
Warrant will reflect the right to purchase a total of ___________ Warrant
Shares.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
____________________________________
____________________________________
_____________________________________
(Print
Name, Address and Social Security
or
Tax
Identification Number)
and,
if
such number of Warrant Shares shall not be all the Warrant Shares covered by
the
within Warrant, that a new Warrant for the balance of the Warrant Shares covered
by within Warrant be registered in the name of, and delivered to, the
undersigned at the address stated below.
| Dated: | ||
|
|
||
| By: | ||
|
Print Name: |
||
| Signature: | ||
|
|
||
-14-
Address:
__________________________
__________________________
__________________________
ADVAXIS,
INC.
FORM
OF ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
Warrant
No: ____________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the above-captioned
Warrant to purchase ____________ shares of Common Stock of Advaxis, Inc. to
which such Warrant relates and appoints ________________ attorney to transfer
said right on the books of the Company with full power of substitution in the
premises.
Dated: _______________,
____
_______________________________________
(Signature
must conform in all respects to name
of
holder
as specified on the face of the Warrant)
_______________________________________
Address
of Transferee
_______________________________________
_______________________________________
In
the
presence of:
__________________________
-15-
EXHIBIT
10.2
FORM
OF NOTE OF ADVAXIS, INC.
THIS
NOTE
AND THE COMMON STOCK REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAS BEEN ACQUIRED
BY THE
REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON STATUTORY
EXEMPTIONS UNDER THE 1933 ACT, AND UNDER ANY APPLICABLE
STATE SECURITIES LAWS. NEITHER
THE NOTE NOR THE COMMON STOCK MAY BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED
EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT
TO AN
EFFECTIVE REGISTRATION STATEMENT; AND IN THE CASE OF AN EXEMPTION, ONLY IF
THE
COMPANY
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION OF THIS NOTE.
This
note
is one of a series issued August 2007 in the aggregate principal amount of
$_________.
ADVAXIS,
INC.
| ___________ __, 2007 |
$_________________
|
12%
CONVERTIBLE PROMISSORY NOTE
Advaxis,
Inc., a Delaware company (the “Company”), for value received, hereby promises to
pay to _________________ or registered assigns (the “Holder”) on [August 31],
2008, the “Maturity Date”), at the principal offices of the Holder, the
principal sum of
[FIFTY] THOUSAND DOLLARS ($___,___)
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and
to pay interest on the outstanding principal sum hereof at the rate of twelve
percent (12%) per annum. Any principal payment or interest payment on the unpaid
principal amount of this Note not paid when due, whether at the Maturity Date,
on the effective date of an Early Termination Event, by acceleration or
otherwise, shall bear interest at twelve percent (15%) or the maximum rate
permissible by law, whichever is less. Payment of Principal and accrued
interest, if any, shall be payable on the Maturity Date in like coin or currency
to the Holder hereof at the address of the Holder designated above or at such
other place as the Holder shall have notified the Company in writing at least
five (5) days before the Maturity Date, provided that any payment otherwise
due
on a Saturday, Sunday or legal Bank holiday may be paid on the following
business day.
1
1. Transfers
of Note to Comply with the 1933 Act
The
Holder agrees that this Note may not be sold, transferred, pledged, hypothecated
or otherwise disposed of except as follows: (1) to a person whom the Note may
legally be transferred without registration and without delivery of a current
prospectus under the 1933 Act with respect thereto and then only against receipt
of an agreement of such person to comply with the provisions of this Section
1
with respect to any resale or other disposition of the Note; or (2) to any
person upon delivery of a prospectus then meeting the requirements of the 1933
Act relating to such securities and the offering thereof for such sale or
disposition, and thereafter to all successive assignees.
2. Prepayment;
Repayment Upon Consolidation or Merger
(a) The
principal amount of this Note may be prepaid by the Company, in whole or in
part
without premium or penalty, at any time. Upon any prepayment of the entire
principal amount of this Note, all accrued, but unpaid, interest shall be paid
to the Holder on the date of prepayment. The date upon which the Company prepays
the principal plus all accrued and unpaid interest due on this Note shall be
hereinafter referred to as the "Prepayment Date."
(b) This
Note
shall be paid in full, without premium, in the event the Company consolidates
or
merges with another corporation, unless (i) the Company shall be the surviving
corporation in such consolidation or merger or (ii) the other corporation
controls, is under common control with or is controlled by the Company
immediately prior to the consolidation or merger whether or not the Company
shall be the surviving corporation in such consolidation or merger, in which
event this Note shall remain outstanding as an obligation of the consolidated
or
surviving corporation.
2
3. Conversion
of Note
(a)
At
the sole option of the Holder, this Note may be converted into shares of Common
Stock par value $0.001 of the Company upon the closing by the Company of a
sale
of its equity securities aggregating $3,000,000 or more in gross proceeds to
the
Company at the conversion rate which shall be the greater of the price at which
such equity securities are sold or the Closing Bid Price, and upon such
conversion the entirety of the debt shall be applied to purchase of Common
Stock
at such price.
(b)
The
Holder shall have the right from time to time, and at any time on or prior
to
the Maturity Date, to convert all or any part of the entirety of the debt then
outstanding under this Note into fully paid and non-assessable shares of Common
Stock, as such Common Stock exists on the issue date, or any shares of capital
stock or other securities of the Company into which such Common Stock shall
hereafter be changed or reclassified at a conversion price equal to or the
Closing Bid Price per share;
(c)
Notwithstanding the foregoing, in the event that any sums due under this Note
are not repaid on the Maturity Date, the Holder will have the option to convert
the entirety of the debt then outstanding under this Note into fully paid and
non-assessable shares of Common Stock, as such Common Stock exists on the issue
date, or any shares of capital stock or other securities of the Company into
which such Common Stock shall hereafter be changed or reclassified at a
conversion price equal to the number of shares derived by dividing the sum
of
such debt and accrued and unpaid interest by the Closing Bid Price.
(d)
As
used herein, “Closing Bid Price” means the price per share of the last reported
trade of the Common Stock on the market on which the Common Stock is then
listed, as quoted by Bloomberg, LP.
4. Covenants
of Company
The
Company covenants and agrees that, so long as any principal of, or interest
on,
this Note shall remain unpaid, unless the Holder shall otherwise consent in
writing, it will comply with the following terms:
(a)
Reporting
Requirements.
The
Company will furnish to the Holder:
(i)
as
soon as possible, and in any event within ten (10) days after obtaining
knowledge of the occurrence of (A) an Event of Default, as hereinafter defined,
(B) an event which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default, or (C) a material adverse change in the
condition or operations, financial or otherwise, of the Company, taken as whole,
the written statement of the Chief Executive Officer or the Chief Financial
Officer of the Company, setting forth the details of such Event of Default,
event or material adverse change and the action which the Company proposes
to
take with respect thereto;
3
(ii)
promptly after the sending or filing thereof, copies of all financial
statements, reports, certificates of its Chief Executive Officer, Chief
Financial Officer or accountants and other information which the Company or
any
subsidiary sends to any holders (other than the Notes) of its
securities;
(iii)
promptly after the commencement thereof, notice of each action, suit or
proceeding before any court or other governmental authority or other regulatory
body or any arbitrator as to which there is a reasonable possibility of a
determination that would (A) materially impact the ability of the Company or
any
subsidiary to conduct its business, (B) materially and adversely affect the
business, operations or financial condition of the Company taken as a whole,
or
(C) impair the validity or enforceability of the Notes or the ability of the
Company to perform its obligations under the Notes;
(iv)
promptly upon request, such other information concerning the condition or
operations, financial or otherwise, of the Company as the Holder from time
to
time may reasonably request.
(b) Taxes.
The
Company has filed or will file all federal, state and local tax returns required
to be filed or sent or has obtained extensions thereof. Except as otherwise
disclosed, the Company has timely paid or made provision for all taxes shown
as
due and payable on its tax returns required to be filed prior to the date hereof
and all assessments received by the Company and will timely pay all taxes that
will be shown as due and payable on its tax returns required to be filed after
the date hereof, except to the extent that the Company shall be contesting
such
taxes and assessments in good faith by appropriate proceedings.
(c) Compliance
with Laws. The
Company will comply, in all material respects with all applicable laws, rules,
regulations and orders, except to the extent that noncompliance would not have
a
material adverse effect upon the business, operations or financial condition
of
the Company taken as a whole.
(d) Keeping
of Records and Books of Account.
The
Company will keep adequate records and books of account, with complete entries
made in accordance with generally accepted accounting principles, reflecting
all
of its financial and other business transactions.
(e) Negative
Covenants. The
Company covenants and agrees that while this Note is outstanding it will not
directly or indirectly:
| (i) |
Guaranty
or otherwise in any way become or be responsible for indebtedness
for
borrowed money, or for obligations, in either case of any of its
officers,
directors or principal stockholders or any of their affiliates,
contingently or otherwise, other than such guaranties existing as
of the
date hereof, or in any way fail to comply with the provisions of
the
Sarbanes-Oxley Act of 2002;
|
4
| (ii) |
Declare
or pay cash dividends;
|
| (iii) |
Sell,
transfer or dispose of, any of its assets other than in the ordinary
course of its business and for fair
value;
|
| (iv) |
Purchase,
redeem, retire or otherwise acquire for value any of its capital
stock now
or hereafter outstanding; or
|
5. Events
of Default and Remedies
(a)
Any
one or more of the following events which shall have occurred and be continuing
shall constitute an event of default (Event of Default):
(i)
Default in the payment of the principal or accrued interest on this Note or
upon
any other indebtedness of the Company after the date hereof that is greater
than
$100,000, as and when the same shall become due, whether by default or
otherwise, which Event of Default shall have continued for a period of five
(5)
business days; or
(ii)
Any
representation or warranty made by the Company or any officer of the Company
in
the Notes, or in any agreement, report, certificate or other document delivered
to the Holder pursuant to the Notes shall have been incorrect in any material
respect when made which shall not have been remedied ten (10) days after written
notice thereof shall have been given by the Holder; or
(iii)
The
Company shall fail to perform or observe any affirmative covenant contained
in
Section 4 of this Note or any of the Notes and such Default, if capable of
being
remedied, shall not have been remedied ten (10) days after written notice
thereof shall have been given by the Holder; or
(iv)
The
Company or any subsidiary (A) shall institute any proceeding or voluntary case
seeking to adjudicate it bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
any
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for such the Company or any subsidiary or for any substantial
part of its property, or shall consent to the commencement against it of such
a
proceeding or case, or shall file an answer in any such case or proceeding
commenced against it consenting to or acquiescing in the commencement of such
case or proceeding, or shall consent to or acquiesce in the appointment of
such
a receiver, trustee, custodian or similar official; (B) shall be unable to
pay
its debts as such debts become due, or shall admit in writing its inability
to
apply its debts generally; (C) shall make a general assignment for the benefit
of creditors; or (D) shall take any action to authorize or effect any of the
actions set forth above in this subsection 5(a)(iv); or
5
(v)
Any
proceeding shall be instituted against the Company seeking to adjudicate it
a
bankrupt or insolvent, or seeking dissolution, liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for the Company or for any
substantial part of its property, and either such proceeding shall not have
been
dismissed or shall not have been stayed for a period of sixty (60) days or
any
of the actions sought in such proceeding (including, without limitation, the
entry of any order for relief against it or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial
part
of its property) shall occur; or
(vi)
One
or more final judgments, arbitration awards or orders for the payment of money
in excess of $100,000 in the aggregate shall be rendered against the Company,
which judgment remains unsatisfied for thirty (30) days after the date of such
entry.
(vii)
Delisting of the Common Stock from the principal market or exchange on which
the
Common Stock is listed for trading; Company’s failure to comply with the
conditions for listing; or notification that the Company is not in compliance
with the conditions for such continued listing.
(viii)
The issuance of an SEC stop trade order or an order suspending trading of the
Common Stock from the principal market or exchange on which the Common Stock
is
listed for trading for longer than five (5) trading days.
(ix)
The
failure by the Company to issue
shares of Common Stock to the Holder upon exercise by the Holder of the
conversion rights of the Holder in accordance with the terms of this Note,
or
the failure to transfer or cause its transfer agent to transfer (electronically
or in certificated form) any certificate for shares of Common Stock issued
to
the Holder upon conversion of or otherwise pursuant to this Note as and when
required by this Note, or the failure to remove any restrictive legend (or
to
withdraw any stop transfer instructions in respect thereof) on any certificate
for any shares of Common Stock issued to the Holder upon conversion of or
otherwise pursuant to this Note as and when required by this Note, and any
such
failure shall continue uncured for ten (10) days after the Company shall have
been notified thereof in writing by the Holder;
6
(x)
A
default by the Company of a material term, covenant, warranty or undertaking
of
any other agreement to which the Company and Holder are parties, or the
occurrence of an event of default under any such other agreement;
or
(b) In
the
event of and immediately upon the occurrence of an Event of Default, the Note
shall become immediately due and payable without any action by the Holder and
the Note shall bear interest until paid at the rate of 15% per annum or such
amount as shall be allowed by law (the “Default Interest Rate”). If an Event of
Default occurs and is continuing, Holder may pursue any available remedy to
collect the payment of all amounts due under the Note or to enforce the
performance of any provision of the Note. No waiver of any default under the
Note shall be construed as a waiver of any subsequent default, and the failure
to exercise any right or remedy thereunder shall not waive the right to exercise
such right or remedy thereafter.
(c) The
Company covenants that in case the principal of, and accrued interest on, the
Note becomes due and payable by declaration or otherwise, then the Company
will
pay in cash to the Holder of this Note, the whole amount that then shall have
become due and payable on this Note for principal or interest, as the case
may
be, and in addition thereto, such further amount as shall be sufficient to
cover
the costs and expenses of collection, including reasonable fees and
disbursements of the Holder's legal counsel. In case the Company shall fail
forthwith to pay such amount, the Holder may commence an action or proceeding
at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree against
Company or other obligor upon this Note, wherever situated, the monies
adjudicated or decreed to be payable.
(d) The
Company agrees that it shall give notice to the Holder at its registered address
by facsimile, confirmed by certified mail, of the occurrence of any Event of
Default within ten (10) days after such Event of Default shall have
occurred.
6. Waiver
of Automatic Stay
The
Company acknowledges and agrees that should a proceeding under any bankruptcy
or
insolvency law be commenced by or against the Company, or if any of the
Collateral (as defined in the Security Agreement) should become the subject
of
any bankruptcy or insolvency proceeding, then the Holder should be entitled
to,
among other relief to which the Holder may be entitled under the Note,
Subscription Agreement and any other agreement to which the Company and Holder
are parties, (collectively "Loan Documents") and/or applicable law, an order
from the court granting immediate relief from the automatic stay pursuant to
11
U.S.C. Section 362 to permit the Holder to exercise all of its rights and
remedies pursuant to the Loan Documents and/or applicable law. THE COMPANY
EXPRESSLY WAIVES THE BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION
362. FURTHERMORE, THE COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER
11
U.S.C. SECTION 362 NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE
OR RULE (INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY,
INTERDICT, CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE HOLDER
TO
ENFORCE ANY OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR
APPLICABLE LAW. The Company hereby consents to any motion for relief from stay
which may be filed by the Holder in any bankruptcy or insolvency proceeding
initiated by or against the Company and, further, agrees not to file any
opposition to any motion for relief from stay filed by the Holder. The Company
represents, acknowledges and agrees that this provision is a specific and
material aspect of the loan hereunder, and that the Holder would not agree
to
the terms of this Note if this waiver were not a part of this Note. The Company
further represents, acknowledges and agrees that this waiver is knowingly,
intelligently and voluntarily made, that neither the Holder nor any person
acting on behalf of the Holder has made any representations to induce this
waiver, that the Company has been represented (or has had the opportunity to
be
represented) in the signing of this Note and in the making of this waiver by
independent legal counsel selected by the Company and that the Company has
had
the opportunity to discuss this waiver with counsel. The Company further agrees
that any bankruptcy or insolvency proceeding initiated by the Company will
only
be brought in courts within the geographic boundaries of State of New
Jersey.
7
7. Failure
to Pay Upon Maturity
In
the
event that the sum due under the Note is not repaid on the Maturity Date, the
Holder will have the option to either have the Note accrue interest at 15%
or
such amount as legally allowed until paid, or to convert the entirety of the
debt then outstanding under the Note into the number of Shares derived by
dividing the sum of such debt by the dollar value equal to 80% of the closing
[ask] price of the Common Stock on the last trading day immediately preceding
the Maturity Date as reported on the market upon which the Shares shall then
be
trading, provided, however, that the conversion price shall never be less than
Closing Bid Price per share. Any Shares acquired thereby shall carry with them
the piggy back registration rights granted to the Holder hereby.
8
8. Unconditional
Obligation; Fees, Waivers, Other
(a) The
obligations to make the payments provided for in this Note are absolute and
unconditional and not subject to any defense, set-off, counterclaim, rescission,
recoupment or adjustment whatsoever.
(b) If,
following the occurrence of an Event of Default, Holder shall seek to enforce
the collection of any amount of principal of and/or interest on this Note,
there
shall be immediately due and payable from the Company, in addition to the then
unpaid principal of, and accrued unpaid interest on, this Note, all costs and
expenses incurred by Holder in connection therewith, including, without
limitation, reasonable attorneys' fees and disbursements.
(c) No
forbearance, indulgence, delay or failure to exercise any right or remedy with
respect to this Note shall operate as a waiver or as an acquiescence in any
default, nor shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
(d) This
Note
may not be modified or discharged (other than by payment or conversion) except
by a writing duly executed by the Company and Holder.
(e) Holder
hereby expressly waives demand and presentment for payment, notice of
nonpayment, notice of dishonor, protest, notice of protest, bringing of suit,
and diligence in taking any action to collect amounts called for hereunder,
and
shall be directly and primarily liable for the payment of all sums owing and
to
be owing hereon, regardless of and without any notice, diligence, act or
omission with respect to the collection of any amount called for hereunder
or in
connection with any right, lien, interest or property at any and all times
which
the Company had or is existing as security for any amount called for hereunder.
9. Miscellaneous
(a) The
headings of the various paragraphs of this Note are for convenience of reference
only and shall in no way modify any of the terms or provisions of this
Note.
(b) This
Note
has been issued by the Company pursuant to authorization of the Board of
Directors of the Company.
All
notices required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
registered or certified mail (return receipt requested, postage prepaid),
facsimile transmission or overnight courier to the address of the intended
recipient as set forth in the preamble to this Note or at such other address
as
the intended recipient shall have hereafter given to the other party hereto
pursuant to the provisions of this Note.
9
(c) The
Company may consider and treat the entity in whose name this Note shall be
registered as the absolute owner thereof for all purposes whatsoever (whether
or
not this Note shall be overdue) and the Company shall not be affected by any
notice to the contrary. Subject to the limitations herein stated, the registered
owner of this Note shall have the right to transfer this Note by assignment,
and
the transferee thereof shall, upon his registration as owner of this Note,
become vested with all the powers and rights of the transferor. Registration
of
any new owners shall take place upon presentation of this Note to the Company at
its principal offices, together with a duly authenticated assignment. In case
of
transfer by operation of law, the transferee agrees to notify the Company of
such transfer and of his address, and to submit appropriate evidence regarding
the transfer so that this Note may be registered in the name of the transferee.
This Note is transferable only on the books of the Company by the holder hereof,
in person or by attorney, on the surrender hereof, duly endorsed. Communications
sent to any registered owner shall be effective as against all holders or
transferees of the Note not registered at the time of sending the
communication.
(d) Payments
of principal and interest shall be made as specified above to the registered
owner of this Note. No interest shall be due on this Note for such period of
time that may elapse between the maturity of this Note and its presentation
for
payment.
(e) The
Holder shall not, by virtue, hereof, be entitled to any rights of a shareholder
in the Company, whether at law or in equity, and the rights of the Holder are
limited to those expressed in this Note.
(f) Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Note, and (in the case of loss, theft
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Note, if mutilated, the Company shall execute and
deliver a new Note of like tenor and date.
(g) This
Note
shall be construed and enforced in accordance with the laws of the State of
New
York, without giving effect to the conflicts of law principles thereof or the
actual domiciles of the parties. The Company and the Holder hereby consent
to
the jurisdiction of the Courts of the State of New York and the United States
District Courts situated therein in connection with any action concerning the
provisions of this Note instituted by the Holder against the
Company.
FURTHER,
THE COMPANY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION TO ENFORCE THIS NOTE
AND
IN CONNECTION WITH ANY DEFENSE, COUNTERCLAIM OR CROSSCLAIM ASSERTED IN ANY
SUCH
ACTION.
10
(h) No
recourse shall be had for the payment of the principal or interest of this
Note
against any incorporator or any past, present or future stockholder officer,
director, agent or attorney of the Company, or of any successor corporation,
either directly or through the Company or any successor corporation, otherwise,
all such liability of the incorporators, stockholders, officers, directors,
attorneys and agents being waived, released and surrendered by the Holder hereof
by the acceptance of this Note.
(i) This
Note
shall bind the Company and its successors and assigns.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
11
IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Note
as of
the day and year first above written.
| ADVAXIS, INC. | ||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
12
EXHIBIT
10.3
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT was executed on August 21, 2007, by and between Advaxis,
Inc., a Delaware corporation (the “Company”).
and
Thomas Moore (“Executive”).
WITNESSETH:
WHEREAS,
Executive and the Company desire to set forth in this Agreement the terms and
conditions of Executive’s employment with the Company;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
promises contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:
16. Agreement
to Employ; No Conflicts
Upon
the
terms and subject to the conditions of this Agreement, the Company hereby agrees
to employ Executive, and Executive hereby accepts employment with the Company.
Executive represents that (a)
Executive is entering into this Agreement voluntarily and that Executive’s
employment hereunder and compliance with the terms and conditions hereof will
not conflict with or result in the breach by Executive of any agreement to
which
Executive is a party or by which Executive is bound, (b)
Executive has not, and in connection with Executive’s employment with the
Company will not, violate any non-solicitation, non-competition or other similar
restrictive covenant by which Executive is bound, and (c)
in
connection with Executive’s employment with the Company Executive will not use
any confidential or proprietary information Executive may have obtained in
connection with employment with any prior employer in violation of any
nondisclosure covenant or agreement by which Executive is bound.
17. Term;
Position and Responsibilities
(a) Term
of Employment.
Unless
Executive’s employment shall sooner terminate pursuant to Section 4, the Company
shall employ Executive for a term commencing as of December 15, 2006 (the
“Commencement
Date”)
and
ending on the second anniversary thereof (the “Initial
Term”).
Effective upon the expiration of the Initial Term and of each Additional Term
(as defined below), Executive’s employment hereunder shall be deemed to be
automatically extended, upon the same terms and conditions (subject to any
adjustment made pursuant to the terms hereof), for an additional 12-month period
(each, an “Additional
Term”),
in
each such case, commencing upon the expiration of the Initial Term or the then
current Additional Term, as the case may be, unless, at least 90 days prior
to
the expiration of the Initial Term or such Additional Term, either party shall
give written notice to the other (a “Non-Extension
Notice”)
of
such party’s intention not to extend the term hereof. A Non-Extension Notice
shall not constitute a notice of the termination of Executive’s employment by
the Company unless such notice specifically provides for such termination of
employment and the specific date thereof. The period during which Executive
is
employed pursuant to this Agreement shall be referred to as the “Employment
Period”.
1
(b) Position
and Responsibilities.
During
the Employment Period, Executive shall serve as Chairman of the Board and Chief
Executive Officer of the Company, shall
be
a member of the Board of Directors of the Company and shall have such duties
and
responsibilities as are customarily assigned to individuals serving in such
positions and such other duties consistent with Executive’s titles and positions
as the Company’s Board of Directors (the “Board”)
specifies from time to time. Executive shall report directly to the Board.
Executive shall devote all of Executive’s skill, knowledge and working time to
the conscientious performance of the duties and responsibilities of such
positions, all in a manner consistent with Executive’s position as a senior
executive of the Company, except for authorized vacation or personal time,
absence for sickness or similar disability, time spent as a Board member on
private or public companies, as agreed with the Compensation Committee of the
Board, and time spent performing services for any charitable, religious or
community organizations so long as such services do not materially interfere
with the performance of Executive’s duties hereunder.
The
Board has agreed to allow the Executive to serve on the following Boards:
Alteon, MD Offices, Opt-e-scrip, Healogix, and Mayan Pigments (as
Chairman).
(c) Additional
Board Nominee.
Executive may nominate one additional Board Member of his choice, and subject
to
Board agreement, which will not be unreasonably withheld, and subject to the
bylaws of the Company and subject to the vote of shareholders in the annual
election of members of the, such nominee shall join as a Board member. The
right
to nominate such additional Board member shall end when employee's employment
term ends.
(d) Capital
Investment.
Employee will invest up to $500,000 personally in the Company, of which up
to
$300,000 shall be funded in year 2006 and up to $200,000 shall be invested
by
July 2007.
18. Compensation.
(a) Base
Salary.
As
compensation for the services to be performed by Executive during the Employment
Period, the Company shall pay Executive a base salary at an annualized rate
of
two hundred fifty thousand dollars ($250,000), payable in installments on the
Company’s regular payroll dates, but no less frequently than monthly (as the
same may be adjusted from time to time as provided below, the “Base
Salary”).
Such
Base Salary will be increased to $350,000 per annum upon the successful raise
of
$4,000,000 by the Company. The Board shall review Executive’s Base Salary
annually to determine, in its sole discretion, whether and by what amount,
if
any, such Base Salary should be increased.
2
(b) Stock
Grants and Stock Options.
Company
shall grant Executive 1,500,000 common shares of which 750,000 common shares
shall be granted upon the successful raise of $4,000,000 and 750,000 shares
shall be granted upon a successful raise of an additional $6,000,000.
Company
shall grant Executive 2,400,000 options priced at the day price as of December
15, 2006, to be vested at 100,000 shares per month over two years.
The
Company will grant Employee an additional grant of 1,500,000 shares if the
Company stock price (adjusted for any splits) is $.40 or higher for 40
consecutive business days.
In
the
event of merger of the Company which is a change of control or a sale of the
company while Executive is employed, all options will be awarded and
vested..
(c) Employee
Benefits.
During
the Employment Period, Executive shall be entitled to participate in the
pension, retirement, savings, medical, disability and other welfare benefit
plans maintained by the Company for its senior executives in accordance with
the
terms thereof, as the same may be amended and in effect from time to time.
Family health insurance will be provided at no cost to the
Executive.
(d) Expenses.
The
Company shall reimburse Executive for reasonable travel, lodging, meal and
other
reasonable expenses incurred by Executive in connection with Executive’s
performance of services hereunder, upon submission of evidence, reasonably
satisfactory to the Company, of the incurrence and purpose of each such expense
and otherwise in accordance with the Company’s business travel and expense
reimbursement policy applicable to its senior executives as in effect from
time
to time.
(e) Vacation.
During
the Employment Period, Executive shall be entitled to four weeks of paid
vacation on an annualized basis, in accordance with the Company’s vacation
policy for senior executives.
19. Termination
of Employment.
(a) Termination
Due to Death or Disability.
Executive’s employment hereunder may be terminated by the Company in the event
of Executive’s Disability (as defined below) and shall terminate upon
Executive’s death. For purposes of this Agreement, “Disability” shall mean a
physical or mental disability that prevents the performance by Executive of
Executive’s duties hereunder for a period of 90 consecutive days or longer or
for 180 days or more in any period of 24 consecutive months.
3
(b) Termination
by the Company for Cause.
The
Company may terminate Executive’s employment hereunder for Cause (as defined
below) at any time. “Cause” shall mean (i)
Executive having been convicted of, or entering a plea of guilty or nolo
contendere to, a crime that constitutes a felony or a misdemeanor involving
moral turpitude (or comparable crime in any jurisdiction that uses a different
nomenclature), (ii)
gross
negligence or willful misconduct on the part of Executive in the performance
of
Executive’s duties hereunder, (iii)
material breach by Executive of this Agreement, (iv)
a
material violation by Executive of a Company policy, (v)
failure
by Executive to timely comply in all material respects with a lawful direction
or instruction given to Executive by the Board, or (vi)
any
other action that is willful on the part of Executive and materially detrimental
to the Company or any of its affiliates;
provided
that, in
the case of clauses (ii) through and including (vi) above, the Company shall
have given Executive written notice of such event, which notice shall specify
in
reasonable detail the basis for such termination, and, if such event is
reasonably capable of being cured, Executive shall not have cured such event
to
the reasonable satisfaction of the Company within 30 days from Executive’s
receipt of such notice.
(c) Termination
by Company Without Cause.
The
Company may terminate Executive’s employment hereunder Without Cause at any time
by written notice to Executive. A termination “Without Cause” shall mean a
termination of Executive’s employment by the Company other than as a result of
Executive’s Disability or for Cause. A Non-Extension Notice delivered by the
Company or Termination pursuant to Section 4(a) shall not constitute a
termination of Executive’s employment hereunder by the Company Without Cause
unless such notice specifically provides for such termination of employment
and
the specific date thereof.
(d) Termination
by Executive.
Executive may terminate Executive’s employment hereunder with or without “Good
Reason” (as defined below); provided
that
Executive shall have given Company written notice, which notice shall, in the
event of a termination with Good Reason, specify in reasonable detail the basis
for, such termination. “Good Reason” shall mean the occurrence of any of the
following events, without Executive’s consent, and the failure of the Company to
correct any such event set forth in Executive’s notice of termination
contemplated above within 30 days of the Company’s receipt of such notice:
(i)
the
assignment to Executive of duties that are significantly different from, and
that result in a material diminution of, the duties provided for in Section
2(b), (ii)
a
breach by the Company of its obligations to pay compensation due to Executive
under this Agreement, (iii)
the
Company’s ceasing to provide Executive with the title of Chief Executive
Officer, (iv) the Company’s ceasing to provide Executive with the title of
President unless the person then serving as President shall be obligated to
report directly to Executive, (v) the Company’s requiring Executive to report to
any person in the Company other than the Board, or (v) a relocation of
Executive’s principal place of business to a place that is more than 50 miles
from the greater New York City metropolitan area.
4
(e) Notice
of Termination.
Any
termination of Executive’s employment by Company pursuant to Section 4(b), 4(c)
or 4(d), or by Executive pursuant to Section 4(e) shall be communicated by
a
written Notice of Termination addressed to the other party to this Agreement.
A
“Notice of Termination” shall mean a notice stating that Executive’s employment
with Company has been or will (subject to any applicable cure period) be
terminated and the specific provisions of this Section 4 under which such
termination is being effected.
(f) Date
of Termination.
As used
in this Agreement, the term “Date of Termination” shall mean (i)
if
Executive’s employment is terminated by Executive’s death, the date of
Executive’s death, (ii)
if
Executive’s employment is terminated by the Company, the latest of (A)
the
date on which Notice of Termination is given as contemplated by Section 4(e),
(B)
the
date of termination specified in such notice and (C)
the
date any applicable cure period ends (if such matter is not cured within such
period), (iii) if Executive’s employment is terminated by Executive without Good
Reason, the date on which Notice of Termination is given as contemplated by
Section 4(e), and (iv)
if
Executive’s employment is terminated by Executive for Good Reason, the date the
cure period ends (if such matter is not cured within such period).
(g) Resignation
upon Termination.
Effective as of any Date of Termination, Executive shall resign, in writing,
from all Board of Director memberships and other positions then held by
Executive with the Company and its affiliates.
(h) Cessation
of Professional Activity.
Upon
delivery of a Notice of Termination by any party, the Company may relieve
Executive of Executive’s responsibilities and require Executive to immediately
cease all professional activity on behalf of the Company. In addition, in the
event that the Board reasonably believes that Executive has engaged in improper
conduct that has or would cause substantial harm to the Company, the Board
may
relieve Executive of Executive’s responsibilities during the pendency of any
investigation (but in no event more than 30 days) it commissions to determine
whether Executive’s employment may be terminated for Cause. Prior to the
relevant Date of Termination, the Company shall compensate the Executive in
accordance with this Agreement during any period of cessation of the Executive’s
professional activity in accordance with this Section 4(h), as if no such
cessation occurred.
5
20. Payments
Upon Certain Terminations.
(a) General.
If,
during the Employment Period, the Executive's employment terminates for any
reason, the Executive (or Executive’s estate, beneficiaries or legal
representative) shall be entitled to receive (i)
any
earned or accrued but unpaid Base Salary through the Date of Termination
(including with respect to unused vacation time, other than in the case of
a
termination for Cause), (ii)
(A)
any
earned but unpaid annual bonus with respect to any fiscal year of the Company
ending prior to the Date of Termination, and (B)
with
respect to the fiscal year of the Company in which the Date of Termination
occurs. Except as provided in paragraph (b) below, no other compensation shall
be paid to Executive upon Termination.
(b) Limited
Severance Payment.
In the
event of termination of Executive’s Employment hereunder by the Company
following the $4 million raise, Employee will also receive 1 year's severance
at
his then payment level.
(c) No
Duplication of Benefits.
In the
event of Executive’s termination of employment during the Employment Period for
any reason, the sole payments or obligations of the Company are provided for
in
this Section 5. In the event that Executive is entitled to payment under any
plan, policy, program or practice of the Company relating to severance, any
such
payment shall reduce the amounts otherwise payable hereunder.
21. Restrictive
Covenants
(a) Restrictive
Covenants.
Executive acknowledges and agrees that the Company has a legitimate interest
in
being protected from Executive’s being employed by, or providing services to, an
entity that competes with the Company or its affiliates. Executive and the
Company have considered carefully how best to protect the legitimate interests
of the Company and its affiliates without unreasonably restricting the economic
interests of Executive, and hereby agree to the following restrictions as the
most reasonable and equitable under the circumstances. During the Employment
Period and for a period of twelve (12) months following the date of termination
or expiration of the Employment Period, or, if Executive’s employment is
terminated by the Company for Cause or for Executive’s Disability, or by
Executive without Good Reason or if Executive provides a Non-Extension Notice
in
accordance with the terms of Section 2(a), twelve (12) months following the
date
of termination or expiration of the Employment Period (the “Restriction
Period”), Executive will not anywhere in the United States of America or
anywhere else the Company or any of its affiliates does business, directly
or
indirectly (whether as sole proprietor, partner or venturer, stockholder,
director, officer, employee or consultant or in any other capacity as principal
or agent or through any person, subsidiary or employee acting as nominee or
agent):
6
(i) Engage
in, or have any interest in any person, firm, corporation, business or other
entity other than the Company (as an officer, director, employee, agent,
stockholder, or other security holder, creditor, consultant or otherwise) that
that are competitive with those being developed by or is otherwise engaged
in
the development and/or marketing of listeria based cancer vaccines, or other
products offered by the Company or its affiliates on or prior to the date of
termination or expiration of the Employment Period.
(ii) Solicit
or hire employees of the Company or its affiliates (or persons who at any time
within the six months preceding the date of termination or expiration of the
Employment Period were employees of the Company or its affiliates), or solicit
employees of the Company or its affiliates to terminate their employment with
the Company or its affiliates. In entering into this agreement, the parties
recognize and agree that it is necessary to maintain a stable workforce to
enable the Company to maintain its business.
Notwithstanding
anything to the contrary contained herein, (i) Executive, directly or
indirectly, may own publicly traded stock constituting less than one percent
(1%) of the outstanding shares of such class of stock of any corporation that
engages in any business activity that is the same as, similar to or competitive
with, the business of the Company or its affiliates, if, and as long as,
Executive is not an officer, director, employee or agent of, or consultant
or
advisor to, or has any other relationship or agreement with such corporation,
(ii) the Restriction Period shall end at any time, after the date of termination
or expiration of the Employment Period, that (A) the Company shall have breached
its obligation to make cash payments to Executive pursuant to the provisions
of
Section 5(a) or Section 5(b)(i) and such breach shall not have been cured by
the
Company within fifteen (15) days after the Company shall have received from
Executive written notice of such breach (which notice shall specify the basis
of
such breach in reasonable detail) or (B) the Company is in breach in any
material respect of any of its other obligations under Section 5, (iii) if
the
Company provides a Non-Extension Notice in accordance with the terms of Section
2(a), the Restriction Period shall end on the last day of the Employment Period
unless, at any time, the Company terminates Executive’s employment hereunder for
Cause, and (iv) no provision contained in this Section 6(a) shall be interpreted
in such a manner as would prohibit Executive from performing Executive’s duties
(as an officer, director, employee, consultant or agent of the Company) owed
to
the Company during or after the Employment Period.
(b) Confidential
Information.
Executive acknowledges and agrees that all nonpublic information concerning
the
business of the Company or any of its affiliates including without limitation,
nonpublic information relating to its or its affiliates’ products, customer
lists, pricing, trade secrets, patents, business methods and cost data, business
plans, strategies, drawings, designs, nonpublic information regarding product
development, marketing plans, sales plans, manufacturing plans, management
organization (including but not limited to nonpublic data and other information
relating to members of the Board, the Company or any of their affiliates or
to
management of the Company or any of its affiliates), operating policies or
manuals, financial records, design or other nonpublic financial, commercial,
business or technical information (i)
relating to the Company or any of its affiliates or (ii)
that
the Company or any of its affiliates may receive belonging to suppliers,
customers or others who do business with the Company or any of its affiliates
(collectively, the “Confidential
Information”))
is
and shall remain the property of the Company. Executive recognizes and agrees
that all of the Confidential Information, whether developed by Executive or
made
available to Executive, other than (i) information that is generally known
to
the public, (ii) information already properly in Executive’s possession on a
non-confidential basis from a source other than the Company or its affiliates,
which source to Executive’s knowledge is not prohibited from disclosing such
information by a legal, contractual or other obligation of confidentiality
to
the Company or its affiliates, or (iii) information that can be demonstrated
by
Executive to have been independently developed by Executive without the benefit
of Confidential Information from the Company or its affiliates, is a unique
asset of the business of the Company, the disclosure of which would be damaging
to the Company. Accordingly, Executive agrees to use such Confidential
Information only for the benefit of the Company. Executive agrees that during
the Employment Period and until the sixth anniversary of the date of termination
or expiration Executive’s employment with the Company or its affiliates,
Executive will not directly or indirectly, disclose to any person or entity
any
Confidential Information, other than information described in clauses (i),
(ii)
and (iii) above, except as may be required in the ordinary course of business
of
the Company or as may be required by law or government authority. If disclosure
of any Confidential Information is requested or required by legal process,
civil
investigative demand, formal or informal governmental investigation or
otherwise, Executive agrees (i) to notify the Company promptly in writing so
that the Company may seek a protective order or other appropriate remedy, and
to
cooperate fully, as may be reasonably requested by the Company, in the Company’s
efforts to obtain such a protective order or other appropriate remedy, and
(ii)
shall comply with any such protective order or other remedy if obtained.
Information concerning the business of the Company or any of its affiliates
that
becomes public as a result of Executive’s breach of this Section 6(b) shall be
treated as Confidential Information under this Section 6(b).
Notwithstanding any provision herein to the contrary, Executive may disclose
the
terms of this Agreement to the extent necessary to enforce its rights under
this
Agreement.
7
(c) Ownership
of Developments.
Executive agrees that the Company shall own all right, title and interest
(including patent rights, copyrights, trade secret rights, mask work rights
and
other rights throughout the world) in any inventions, works of authorship,
mask
works, ideas or information made or conceived or reduced to practice, in whole
or in part, by Executive (either alone or with others) during the Employment
Period (collectively “Developments”); provided, however, that the Company shall
not own any right, title and/or interest in any Developments for which no
equipment, supplies, facility or trade secret information of the Company or
its
affiliates was used and which were developed entirely on Executive’s time, and
(A) which do not relate (I) to the business of the Company or its affiliates
or
(II) to the Company’s or its affiliates’ actual or demonstrably anticipated
research or development, or (B) which do not result from any work performed
by
Executive for the Company or its affiliates. Subject to the foregoing, Executive
will promptly and fully disclose to the Company, or any persons designated
by
it, any and all Developments made or conceived or reduced to practice or learned
by Executive, either alone or jointly with others during the Employment Period.
Executive hereby assigns all right, title and interest in and to any and all
of
these Developments owned by the Company in accordance with this paragraph to
the
Company. Executive shall further assist the Company, as reasonably requested
by
Company and at Company’s sole expense, to further evidence, record and perfect
such assignments, and to perfect, obtain, maintain, enforce, and defend any
rights specified to be so owned or assigned. Executive hereby irrevocably
designates and appoints the Company and its agents as attorneys-in-fact to
act
for and on the Executive’s behalf to execute and file any document and to do all
other lawfully permitted acts to further the purposes of the foregoing terms
of
this Section 6(c) with the same legal force and effect as if executed by the
Executive. In addition, and not in contravention of any of the foregoing, the
Executive acknowledges that all original works of authorship which are made
by
Executive (solely or jointly with others) for business use specifically by
the
Company or its affiliates during the Employment Period and which are protectable
by copyright are “works made for hire,” as that term is defined in the United
States Copyright Act (17 USCA, § 101).
8
(d) Return
of Documents.
In the
event of the termination of Executive’s employment for any reason, Executive
shall deliver to the Company (i) all of the property of each of the Company
and
its affiliates received at any time by Executive (to the extent not previously
returned to the Company) and (ii)
all the
documents and data of any nature and in whatever medium of each of the Company
and its affiliates received at any time by Executive (to the extent not
previously returned to the Company), and Executive shall not take any such
property, documents or data or any reproduction thereof, or any documents
containing or pertaining to any Confidential Information; provided,
however,
the
foregoing shall not limit any rights or obligations with respect to any such
property, documents, data or reproductions thereof that Executive may have
as a
shareholder, creditor, consultant and/or director of the Company.
(e) Notification.
Executive will inform any prospective subsequent employer during the Restriction
Period of the substance of the terms and conditions of the restrictive covenants
set forth in this Section 6.
9
(f) Affiliates.
Notwithstanding anything to the contrary in this Section 6, for the purposes
of
this Section 6, no stockholder of the Company, other than a stockholder that
is
a holding company of the Company, shall be deemed to be an “affiliate” of the
Company.
22. Injunctive
Relief with Respect to Covenants; Certain Acknowledgments; Etc.
(a) Injunctive
Relief.
Executive acknowledges and agrees that the covenants, obligations and agreements
of Executive contained in Section 6 of this Agreement relate to special, unique
and extraordinary matters and that a violation on the Executive’s part of any of
the terms of such covenants, obligations or agreements will cause immeasurable
and irreparable injury to the Company for which adequate remedies are not
available at law. Therefore, Executive agrees that the Company shall be entitled
to an injunction, restraining order or such other equitable relief (without
the
requirement to post bond unless required by applicable law) as a court of
competent jurisdiction may deem necessary or appropriate to restrain Executive
from committing any violation of such covenants, obligations or agreements.
These injunctive remedies are cumulative and in addition to any other rights
and
remedies the Company may have.
(b) Blue
Pencil.
Executive agrees that in the event that any court of competent jurisdiction
shall finally hold that any provision of Section 6 hereof is void or constitutes
an unreasonable restriction against Executive, the provisions of such Section
6
shall not be rendered void but shall apply to such extent as such court may
determine constitutes a reasonable restriction under the
circumstances.
(c) Certain
Acknowledgements.
Executive acknowledges and agrees that Executive will have a prominent role
in
the management of the business, and the development of the goodwill, of the
Company and its affiliates and will establish and develop relations and contacts
with the principal customers and suppliers of the Company and its affiliates
in
the United States of America and the rest of the world, all of which constitute
valuable goodwill of, and could be used by Executive to compete unfairly with,
the Company and its affiliates and that (i)
in the
course of Executive’s employment with the Company, Executive will obtain
confidential and proprietary information and trade secrets concerning the
business and operations of the Company and its affiliates in the United States
and the rest of the world that could be used to compete unfairly with the
Company and its affiliates; (ii)
the
covenants and restrictions contained in Section 6 are intended to protect the
legitimate interests of the Company and its affiliates in their respective
goodwill, trade secrets and other confidential and proprietary information;
(iii)
Executive desires and agrees to be bound by such covenants and restrictions;
and
(iv)
the
compensation to be provided to Executive are adequate consideration for the
restrictive covenants provided in Section 6.
10
23. Miscellaneous
(a) Binding
Effect; Assignment.
This
Agreement shall be binding on and inure to the benefit of the Company, and
its
respective successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and Executive’s heirs,
executors, administrators and legal representatives. This Agreement shall not
be
assignable by any party hereto without the prior written consent of the other
parties hereto, except as provided pursuant to this Section 8(a). The Company
may effect such an assignment without prior written approval of Executive upon
the transfer of all or substantially all of its business and/or assets (by
whatever means), provided
that the
successor to the Company shall expressly assume and agree in writing to perform
this Agreement.
(b) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. All prior correspondence and proposals (including
but not limited to summaries of proposed terms) and all prior promises,
representations, understandings, arrangements and agreements relating to such
subject matter (including but not limited to those made to or with Executive
by
any other person) are merged herein and superseded hereby.
(c) GOVERNING
LAW, JURISDICTION.
(i) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED
UNDER, THE LAW OF THE STATE OF NEW JERSEY APPLICABLE TO AGREEMENTS OR
INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.
(ii) EACH
PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE
OF
NEW JERSEY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW
JERSEY IN NEWARK, NEW JERSEY AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL
JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY
WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT THE SUCH COURTS ARE AN
INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 8(h) HEREOF, SUCH SERVICE
TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
11
(iii) EACH
OF
THE PARTIES WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH
OF
THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS
AND
(II) ACKNOWLEDGES THAT EACH SUCH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO
THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS PARTY BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(d) Taxes.
Notwithstanding any provision to the contrary, the Company shall have the power
to withhold from (and thereby reduce) any payments due to the Executive under
this Agreement, or (to the extent that taxes are under-withheld on amounts
previously paid by the Company to the Executive or taxes are due on income
taxable to the Executive without the receipt of sufficient cash) require
Executive to remit to the Company promptly upon notification of the amount
due,
an amount, determined within the Company’s reasonable discretion and upon
written notice (including pay stubs) to Executive, in each case as necessary
to
satisfy all of the Company’s obligations regarding Federal, state, local and
foreign withholding tax requirements (including, without limitation, social
security, employment and similar payroll deductions) with respect to the
Executive’s compensation pursuant to this Agreement and/or with respect to any
payment of cash, or issuance or delivery of any other property hereunder to
Executive or any third party, for the account or benefit of the Executive,
and
the Company may defer any such payment of cash or issuance or delivery of such
other property for a reasonable period until such requirements are satisfied,
at
which time all deferred payments shall be promptly remitted to the
Executive.
(e) Amendments.
No
provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is approved by the Board or a person
authorized thereby and is agreed to in writing by Executive and, in the case
of
any such modification, waiver or discharge affecting the rights or obligations
the Company, is approved by the Board or a person authorized thereby. No waiver
by any party hereto at any time of any breach by any other party hereto of,
or
compliance with, any condition or provision of this Agreement to be performed
by
such other party shall be deemed a waiver of similar or dissimilar provisions
or
conditions at the same or at any prior or subsequent time. No waiver of any
provision of this Agreement shall be implied from any course of dealing between
or among the parties hereto or from any failure by any party hereto to assert
its rights hereunder on any occasion or series of occasions.
12
(f) Insurance.
(i) The
Company may at its discretion and at any time apply for and procure as owner
and
for its own benefit and at its own expense, insurance on the life of Executive
in such amounts and in such form or forms as the Company may choose. Executive
shall cooperate with the reasonable requests of the Company in procuring such
insurance and shall, at the reasonable request of the Company, submit to such
medical examinations, supply such information and execute such documents as
may
be required by the insurance company or companies to whom the Company has
applied for such insurance. Executive shall have no interest whatsoever in
any
such policy or policies.
(ii) Beginning
on the Commencement Date and thereafter through the remainder of the Employment
Period, the Company shall provide Directors and Officers liability insurance
coverage for the Executive similar to that provided to officers and directors
of
other portfolio companies of North Castle Partners III, L.P.
(g) Severability.
In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
(h) Notices.
Any
notice or other communication required or permitted to be delivered under this
Agreement shall be (i)
in
writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii)
deemed
to have been received on the date of delivery or, if so mailed, on the third
business day after the mailing thereof, and (iv)
addressed as follows (or to such other address as the party entitled to notice
shall hereafter designate in accordance with the terms hereof):
(i) If
to the
Company, to it at its then current headquarters, Attention: Chairman of the
Board.
(ii) if
to
Executive, to Executive at Executive’s residential address as then on file with
the Company, with a copy to :
Tel:
Fax:
Attn:
13
Copies
of
any notices or other communications given under this Agreement shall also be
given to:
Tel:
Fax:
Attn:
and
to:
Fax:
Attn:
(i) Headings.
The
section and other headings contained in this Agreement are for the convenience
of the parties only and are not intended to be a part hereof or to affect the
meaning or interpretation hereof.
(j) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
14
IN
WITNESS HEREOF, the parties have executed this Agreement as of the date and
year
first above written.
|
ADVAXIS,
INC.
|
||
| |
|
|
| By: | /s/ Richard Berman | |
|
Name: Richard Berman |
||
|
Title:
Chairman of Compensation Committee
|
||
|
EXECUTIVE
|
||
|
/s/
Thomas Moore
|
||
|
Thomas Moore |
||
|
Chief
Executive Officer and Chairman of the
Board
|
||
15
[SIGNATURE
PAGE TO EMPLOYMENT AGREEMENT]
16