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): February 1, 2010
ADVAXIS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State or
other jurisdiction of incorporation)
|
00028489
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02-0563870
|
|
(Commission
File Number)
|
(IRS
Employer Identification Number)
|
Technology
Centre of New Jersey
675
Rt. 1, Suite B113
North
Brunswick, N.J. 08902
(Address
of principal executive offices)
Registrant’s
telephone number, including area code: (732) 545-1590
Not
applicable
(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:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
On
February 1, 2010, Advaxis, Inc. (the “Company”) and Gem
Partners L.P. (the “Holder”) entered into
an amendment (the “Amendment”) to a
Senior Promissory Note in the original principal face amount of $588,235 (the
“Note”). The
Note was issued with an original issue discount of 15%. The Amendment provides,
among other things, that: (a) the maturity date of the Note is to be extended to
February 16, 2010; (b) on the maturity date, the Company will pay the Holder an
amount equal to five percent (5%) of the principal amount outstanding under the
Note on the date of the Amendment; (c) the Company will pay down the principal
face amount of the Note by an amount in cash equal to the original issue
discount amount of 15%; (d) upon the maturity date or the occurrence of an event
of default, the Holder has the option to convert the outstanding amounts under
the Note into the Company’s common stock, $0.001 par value (the “Common Stock”), based
on a conversion prices equal to the lesser of (i) 50% of the average volume
weighted average price (“VWAP”) per share for
the five consecutive trading days immediately preceding December 28, 2009 and
(ii) 50% of the VWAP per share of the Common Stock on the five consecutive
trading days immediately preceding the date of the notice of conversion; and (e)
the terms of existing warrants to purchase 1,470,588 shares of our Common Stock
issued with the Note (the “Existing Warrants”)
are amended to provide additional anti-dilution protections to the Holder. In
connection with the Amendment, the Company issued the Holder new warrants to
purchase an additional 588,235 shares of Common Stock (the “New Warrants”) at an
exercise price of $0.17 per share, on terms that are substantially similar to
the Existing Warrants. Further, the Company has agreed that the net proceeds of
any sale of securities pursuant to the Company’s Preferred Stock Purchase
Agreement dated September 24, 2009 with Optimus Capital Partners, LLC (or any
other equity line of credit entered into while the Note is outstanding) will be
applied on the maturity date to repay amounts outstanding under the
Note.
In
addition, Thomas A. Moore, the Company’s Chief Executive Officer, has agreed
that the Company will not make any payments to him on any indebtedness owed by
the Company to him for so long as any amounts due under the Note are
outstanding; however, the Company will be permitted to pay any deferred salary
currently owed to Mr. Moore (approximately $55,000) and any future salary or
other amounts payable to Mr. Moore relating to his employment by the
Company.
The form
of Amendment is attached hereto as Exhibit 4.1, the amended and restated form of
the Existing Warrants is attached hereto as Exhibit 4.2 and the form of the New
Warrants is attached hereto as Exhibit 4.3.
Item
3.02. Unregistered Sales of Securities.
The
information provided in Item 1.01 is hereby incorporated by reference to this
Item 3.02.
Item
9.01 Financial Statements and Exhibits.
(c) Exhibits
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4.1
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Form
of Amendment to Senior Promissory
Note.
|
|
4.2
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Form
of Amended and Restated Common Stock Purchase
Warrant.
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4.3
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Form
of Common Stock Purchase Warrant.
|
SIGNATURES
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: February 5, 2010 | Advaxis, Inc. | ||
|
By:
|
/S/ THOMAS A. MOORE | ||
| Thomas A. Moore, Chief Executive Officer | |||
EXHIBIT
INDEX
|
Exhibit
No.
|
Document
Description
|
|
4.1
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Form
of Amendment to Senior Promissory Note.
|
|
4.2
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Form
of Amended and Restated Common Stock Purchase Warrant.
|
|
4.3
|
Form
of Common Stock Purchase Warrant.
|
Exhibit
4.1
AMENDMENT
TO
SENIOR
SECURED CONVERTIBLE NOTE
This
AMENDMENT TO SENIOR SECURED CONVERTIBLE NOTE (this “Amendment”), is dated
as of ____________ and effective as of December 31, 2009, to the Senior Secured
Convertible Note, dated June 18, 2009 (the “Note”), from Advaxis,
Inc., a Delaware corporation (the “Borrower”), to
_______________ (the “Holder”), is made by
and between the Borrower and the Holder, and, for purposes of Section 2 hereof,
Thomas A. Moore. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Note.
WITNESSETH:
WHEREAS,
the Borrower has issued the Note to the Holder in the initial principal amount
of $____________;
WHEREAS,
the Note is due and payable on December 31, 2009, subject to the grace periods
set forth in the Note;
WHEREAS,
the Borrower has requested that the Holder agree, together with other holders of
the Borrower’s indebtedness issued pursuant to the Note Purchase Agreement,
dated as of June 18, 2009 (the “Other Notes”), to extend the maturity date of
the Notes (and in the case of such other holders, the Other Notes);
and
WHEREAS,
the Holder has agreed to such amendment, subject to the terms and conditions set
forth in this Amendment.
NOW,
THEREFORE, in consideration of the rights and obligations contained herein, and
for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties agree as follows:
Section
1. Amendments to
Note. Subject to the effectiveness of this Amendment, the Note
is amended as follows:
(a) The
term “Maturity Date” in the Note is hereby amended to mean
____________.
(b) In
consideration for the amendments set forth herein, the Borrower has agreed to
pay to the Holder a fee equal to 5% of the principal amount outstanding under
the Note on the date hereof ($_________), which payment is to be made upon
payment in full of the Note. To evidence such obligation, a new
Section 1.5 is hereby added to the Note as follows:
“1.5 Fee on
Maturity. On the Maturity Date, or if earlier, the date of
payment in full of this Note, the Borrower shall pay to the Holder an additional
amount equal to $___________.”
(c) A
new Section 1.6 is hereby added to the Note as follows:
1
“1.6 Mandatory Pre-Payment of
Certain Principal. Within (1) business day of the execution
and effectiveness hereof, the Borrower shall pay to the Holder or order, without
demand, the sum of $________, which amount constitutes the Original Issue
Discount on the Note. Failure to pay such amounts shall be deemed an
immediate Event of Default hereunder, permitting immediate acceleration of all
amounts hereunder, subject to no grace period under Section 1.1 hereof, and no
notice requirements or other cure periods hereunder. Upon payment of
such Original Issue Discount amount, the principal outstanding under this Note
shall consist of the original $___________ plus the fee set
forth in Section 1.5 hereof.”
(d) A
new Section 1.7 is hereby added to the Note as follows:
“1.7 Interest upon Failure to
Pay. If Borrower fails to pay the full amount of all sums due
under this Note (including the fee set forth in Section 1.5 hereof) on or prior
to the Maturity Date, then interest (“Default Interest”) shall accrue on the
unpaid portion of any such amount at the Default Rate until all such amounts,
plus Default Interest, are paid in full. “Default Rate” means the
lower of (A) 24.99% per annum or (B) the highest amount of interest permitted
under applicable law.”
(e) A
new Section 2.4 is hereby added to the Note as follows:
“2.4 Conversion on an Event of
Default. Upon the Maturity Date or the occurrence of an Event
of Default, the Holder shall have the option, but shall not be required, at any
time and from time to time thereafter, to convert all or a portion of the Note
into that number of fully paid and non-assessable shares of Common Stock equal
to a fraction (A) the numerator of which is the unpaid Principal Amount of the
Note plus all accrued and unpaid interest thereon and the fee referred to in
Section 1.5 above that the Holder elects to convert and (B) the denominator of
which is the lesser of (i) 50% of the average VWAP per share for the 5
consecutive Trading Days immediately preceding December 28, 2009 and (ii) 50% of the VWAP
per share of the Common Stock on the five (5) consecutive Trading Days
immediately preceding the date of the notice of conversion. The
Company shall use its commercially reasonable efforts to ensure the availability
of Rule 144 to the Investors with regard to the Underlying Securities, including
compliance with Rule 144(c)(1) if such requirement is applicable to sales
pursuant to Rule 144 at the time of such sales. Any conversion of the
Note shall be governed by the terms and conditions set forth on Annex A
hereto. For the avoidance of doubt, in the event that this Note is
repaid prior to the Maturity Date, this Section 2.4 shall not be applicable.
”
(f) A
new Annex A shall be added to the Note substantially in the form attached hereto
as Annex A.
(g) Section
1.4 of the Note is hereby amended and restated in its entirety as
follows:
“1.4
No Senior Debt;
Issuance of Other Notes So long as any portion of this
Note is outstanding, the Borrower will not directly or indirectly enter into,
create, incur, assume or suffer to exist any indebtedness or liens of any kind
(other than indebtedness and liens in favor of the Holder), on or with respect
to any of its property or assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom, other than the Other Notes issued on
or about June 18, 2009, as amended, unless (i) such indebtedness is not senior
to or pari passu with, in any respect, the Company's obligations under this Note
or the Other Notes, (ii) such indebtedness does not permit any payment in
respect thereof, whether interest, principal, or fees, whether upon
acceleration, scheduled payment or otherwise, until the prior payment in full of
the Notes and the Other Notes and (iii) any such liens are expressly subordinate
to the liens securing the Notes and the Other Notes. Further, the net
proceeds (after giving effect to any costs and expenses incurred in connection
with any such transaction) of any sale of securities pursuant to Preferred Stock
Purchase Agreement dated September 24, 2009 by and between Optimus Capital
Partners, LLC and the Borrower or any other equity line of credit entered into
while this Note is outstanding shall be applied on the Maturity Date to repay
amounts outstanding under this Note and the Other Notes on a pro rata basis
(based on the amount then due and owing thereunder).
2
(h) A
new Section 1.5 is hereby added to the Note as follows:
1.5 No Payments on Insider
Indebtedness. For so long as any amounts due and owing under
this Note are outstanding, the Borrower shall make no payment in respect of any
indebtedness originally issued to or held by Thomas A. Moore and/or any
affiliate or family member of Thomas A. Moore (the “Insider Debt”), whether
principal, interest, fees or charges, whether upon regularly scheduled payments,
acceleration, maturity or otherwise. The Borrower covenants that all
such indebtedness has been amended to set forth on the face thereof a reference
to the terms of this Section 1.5 and that any subsequent holder of such
indebtedness shall take such indebtedness on notice of the payment limitations
set forth in this Section 1.5. The limitations set forth in this
Section 1.5 are in addition to any limitations on payment of the Insider Debt
set forth in the Subordination Agreement, dated as of June 18, 2009, and that no
“Permitted Payments” shall be made or accepted, notwithstanding the provisions
of such Subordination Agreement, until payment in full of the Notes and the
Other Notes. To the extent there exists any conflict between the
terms of this Section 1.5 and said Subordination Agreement, the terms of this
Section 1.5 shall control. Notwithstanding the foregoing, the
foregoing limitations shall not prohibit (and the Company shall be permitted to
pay to) any deferred salary currently owed to Thomas A. Moore (approximately
$55,000) and any future salary or other amounts payable to Thomas A. Moore
relating to his employment by the Company at a salary previously disclosed in
filings with the Securities and Exchange Commission and in a manner consistent
with past practice.
(i) Section
2.1(b) of the Note is hereby deleted in its entirety.
Section
2. Acknowledgement of
Subordination. Thomas A. Moore, by executing below, hereby
acknowledges, agrees and consents to the provisions set forth in 1(h) above, and
agrees that any payment received by him in respect of the Insider Debt shall, at
all times when the Note is outstanding, by held by him in trust for the benefit
of the Holder and the holders of the Other Notes, and promptly remitted by him
to the Holder and the holders of the Other Notes for application (on a pro rata
basis, based on the amounts then outstanding) to amounts due under the Notes and
the Other Notes. Since the date of original issuance of the Note, no
Insider Debt has been sold or otherwise transferred by Moore, and he hereby
covenants not to transfer the same unless the transferee shall have acknowledged
the limitations on payment set forth herein, in the Note and it the
Subordination Agreement.
3
Section
3. Fees;
Warrants. The Borrower hereby agrees to issue to the Holder
the warrant to purchase _______ shares of Common Stock of the Borrower in
substantially the form attached hereto as Exhibit A and to
amend and restate the Common Stock Purchase Warrant entered into in connection
with the Note into substantially the form attached hereto as Exhibit
B. On signing, and prior to the effectiveness hereof, the
Borrower has transferred to the account identified on Exhibit C hereto,
$______ as payment for legal fees and expenses incurred by the Holder in
connection with this Amendment.
Section
4. Effectiveness. This
Amendment shall become effective upon satisfaction of each of the following
conditions: (a) the signatures of the parties hereto, (b) the Borrower’s
compliance with the provisions of Section 3 hereof, and (c) the Borrower
providing evidence, in form and substance satisfactory to the Holder, that the
holders of at least 80% of the principal amount of the Notes and the Other Notes
have executed amendment documents in form and substance substantially similar to
this Amendment (with appropriate and pro rata adjustments to warrant numbers and
dollar amounts). Upon the effectiveness hereof, and by amending the
Note hereby, the Holder acknowledges that no Event of Default exists or is
continuing as a result of the Borrower’s to failure to pay the principal amount
at the original Maturity Date.
Section
5. Equal
Treatment. It is the intention of the parties that the Holder
and the holders of the Other Notes be treated on an equivalent
basis. Consequently, the Borrower covenants and agrees not to make
any payment or extend any consideration to any holder of the Other Notes unless
the equivalent payment or consideration is extended to the Holder on a pro rata
basis based on the amount of Notes and other Notes then outstanding (except in
connection with any non-pro rata payment of the Note or the Other Notes
resulting from the respective differing maturities thereof, it being understood
and agreed that certain Other Notes may mature on _________ and certain Other
Notes may mature on ________). The Holder acknowledges that the
holders of Other Notes have been offered to amend their notes on substantially
similar terms with the following material modifications and the Holder
acknowledges that such a transaction would constitute treatment on an equivalent
basis and not violate this Section 5: (a) a maturity date of ________; (b) a fee
on Maturity similar to Section 1 of this Amendment (with appropriate pro rata
adjustment based on principal amounts); and (c) warrants to purchase 2 shares of
common stock for each dollar of principal amount extended on a form of warrant
otherwise substantially similar to the form set forth herein (to the extent the
maturity date of such Other Note is extended to __________).
Section
6. Entire
Agreement. This Amendment constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, between the Borrower
and the Holder with respect to the subject matter hereof. Except as
amended by this Amendment, the Note shall continue in full force and effect and
the collateral and other security granted to secure the Company’s obligations
under the Note shall continue to secure such obligations under the Note as
amended hereby.
Section
7. Counterparts. This
Amendment may be executed and delivered (including by facsimile and portable
document format (pdf) transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
4
Section
8. Governing
Law. This Amendment shall be governed by and construed in
accordance with, the laws of the State of New York.
[SIGNATURES
ON THE FOLLOWING PAGE]
5
IN
WITNESS WHEREOF, the Borrower and the Holder have caused this Amendment to be
executed by as of the date first written above by their respective officers
thereunto duly authorized.
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ADVAXIS,
INC.
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By:
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Name:
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Title:
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[_______________]
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|||
| By: | |||
| Name: | |||
| Title: | |||
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For
purposes of Section 2 hereof:
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| Thomas A. Moore | |||
6
Annex A:
Conversion
Terms
Conversions
of this Note pursuant to Section 2.4 hereof are subject to the following terms
and conditions:
Section
1.1 Conversion
Option. At any time and from time to time on or after
the date hereof (the “Issuance Date”), upon and after the occurrence of an Event
of Default, and/or on and after the Maturity Date, this Note shall be
convertible (in whole or in part), at the option of the Holder (the “Conversion
Option”), into such number of fully paid and non-assessable shares of Common
Stock (the “Conversion Rate”) as is determined by dividing (x) that portion of
the outstanding principal balance plus any accrued but unpaid interest under
this Note as of such date that the Holder elects to convert by (y) the
Conversion Price (as defined in Section 1.2 hereof) then in effect on the date
on which the Holder faxes a notice of conversion (the “Conversion Notice”), duly
executed, to the Borrower (facsimile number 732-545-1590, Attn.: Thomas A.
Moore) (the “Voluntary Conversion Date” or “Conversion Date”), in the form
attached hereto, provided, however, that the fixed Conversion Price set forth in
Section 1.2 below shall be subject to adjustment as described in Section 1.5
below. The Holder shall deliver this Note to the Borrower at the
address set forth in this Note at such time that this Note is fully
converted. With respect to partial conversions of this Note, the
Borrower shall keep written records of the amount of this Note converted as of
each Conversion Date.
Section
1.2 Conversion
Price. The term “Conversion Price” shall mean the lesser of
(i) 50% of the average VWAP per share for the 5
consecutive Trading Days immediately preceding December 28, 2009, and (ii) 50%
of the average of the five Trading Day trailing VWAP preceding the Conversion
Date. “Trading Day” means a business day on which it is reported that
the Common Stock is traded on the OTC Bulletin Board or the “pink
sheets.” “VWAP” means, for any date, (i) the daily volume weighted
average price of the Common Stock for such date on the OTC Bulletin Board as
reported by Bloomberg Financial L.P. (based on a Trading Day from 9:30 a.m.
Eastern Time to 4:02 p.m. Eastern Time); (ii) if the Common Stock is not then
listed or quoted on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by the Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or (iii) 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 Holder and reasonably
acceptable to the Borrower.
Section
1.3 Mechanics of
Conversion.
(a) Not
later than three (3) Trading Days after any Conversion Date, the Borrower or its
designated transfer agent, as applicable, shall issue and deliver to the
Depository Trust Company (“DTC”) account on the
Holder’s behalf via the Deposit Withdrawal Agent Commission System (“DWAC”) as specified
in the Conversion Notice, registered in the name of the Holder or its designee,
for the number of shares of Common Stock to which the Holder shall be
entitled. In the alternative, not later than three (3) Trading Days
after any Conversion Date, the Borrower shall deliver to the applicable Holder
by express courier a certificate or certificates representing the number of
shares of Common Stock being acquired upon the conversion of this Note (the
“Delivery
Date”). Notwithstanding the foregoing to the contrary, the
Borrower or its transfer agent shall only be obligated to issue and deliver the
shares to the DTC on the Holder’s behalf via DWAC (or certificates free of
restrictive legends) if such conversion is in connection with a sale and the
Holder has complied with the applicable prospectus delivery requirements (as
evidenced by documentation furnished to and reasonably satisfactory to the
Borrower). If in the case of any Conversion Notice such certificate
or certificates are not delivered to or as directed by the applicable Holder by
the Delivery Date, the Holder shall be entitled by written notice to the
Borrower at any time on or before its receipt of such certificate or
certificates thereafter, to rescind such conversion, in which event the Borrower
shall immediately return this Note tendered for conversion, whereupon the
Borrower and the Holder shall each be restored to their respective positions
immediately prior to the delivery of such notice of revocation, except that any
amounts described in Sections 1.3(b) and (c) shall be payable through the date
notice of rescission is given to the Borrower. The Company shall use
its commercially reasonable efforts to ensure the availability of Rule 144 to
the Investors with regard to the Underlying Securities, including compliance
with Rule 144(c)(1) if such requirement is applicable to sales pursuant to Rule
144 at the time of such sales.
A-1
(b) The
Borrower understands that a delay in the delivery of the shares of Common Stock
upon conversion of this Note beyond the Delivery Date could result in economic
loss to the Holder. If the Borrower fails to deliver to the Holder
such shares via DWAC (or, if applicable, certificates) by the Delivery Date, the
Borrower shall pay to such Holder, in cash, an amount per Trading Day for each
Trading Day until such shares are delivered via DWAC or certificates are
delivered (if applicable), together with interest on such amount at a rate of
10% per annum, accruing until such amount and any accrued interest thereon is
paid in full, equal to the greater of (A) (i) 1% of the aggregate principal
amount of the Notes requested to be converted for the first five (5) Trading
Days after the Delivery Date and (ii) 2% of the aggregate principal amount of
the Notes requested to be converted for each Trading Day thereafter and (B)
$2,000 per day (which amount shall be paid as liquidated damages and not as a
penalty). Nothing herein shall limit a Holder’s right to pursue
actual damages for the Borrower’s failure to deliver certificates representing
shares of Common Stock upon conversion within the period specified herein and
such Holder shall have the right to pursue all remedies available to it at law
or in equity (including, without limitation, a decree of specific performance
and/or injunctive relief). Notwithstanding anything to the contrary
contained herein, the Holder shall be entitled to withdraw a Conversion Notice,
and upon such withdrawal the Borrower shall only be obligated to pay the
liquidated damages accrued in accordance with this Section 1.3(b) through the
date the Conversion Notice is withdrawn.
(c) In
addition to any other rights available to the Holder, if the Borrower fails to
cause its transfer agent to transmit via DWAC or transmit to the Holder a
certificate or certificates representing the shares of Common Stock issuable
upon conversion of this Note on or before the Delivery Date, and if after such
date the Holder is required by its broker to purchase (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of the shares of Common Stock issuable upon conversion of
this Note which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the
Borrower shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of shares of Common Stock issuable upon conversion of
this Note that the Borrower was required to deliver to the Holder in connection
with the conversion at issue times (B) the price at which the sell order giving
rise to such purchase obligation was executed, and (2) at the option of the
Holder, either reinstate the portion of the Note and equivalent number of shares
of Common Stock for which such conversion was not honored or deliver to the
Holder the number of shares of Common Stock that would have been issued had the
Borrower timely complied with its conversion and delivery obligations
hereunder. For example, if the Holder purchases Common Stock having a
total purchase price of $11,000 to cover a Buy-In with respect to an attempted
conversion of shares of Common Stock with an aggregate sale price giving rise to
such purchase obligation of $10,000, under clause (1) of the immediately
preceding sentence the Borrower shall be required to pay the Holder $1,000. The
Holder shall provide the Borrower written notice indicating the amounts payable
to the Holder in respect of the Buy-In, together with applicable confirmations
and other evidence reasonably requested by the Borrower. 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 Borrower’s
failure to timely deliver certificates representing shares of Common Stock upon
conversion of this Note as required pursuant to the terms hereof.
A-2
Section
1.4 Ownership Cap and Certain
Conversion Restrictions.
Notwithstanding
anything to the contrary set forth herein, at no time may the Holder convert all
or a portion of this Note if the number of shares of Common Stock to be issued
pursuant to such conversion would exceed, when aggregated with all other shares
of Common Stock owned by the Holder at such time, the number of shares of Common
Stock which would result in the Holder beneficially owning (as determined in
accordance with Section 13(d) of the Exchange Act and the rules thereunder) more
than 4.9% of all of the Common Stock outstanding at such time; provided, however, that upon
the Holder providing the Borrower with sixty-one (61) days notice (the “Waiver Notice”) that
the Holder would like to waive this Section 1.4(a) with regard to any or all
shares of Common Stock issuable upon conversion of this Note, this Section
1.4(a) will be of no force or effect with regard to all or a portion of the Note
referenced in the Waiver Notice.
Section
1.5 Adjustment of Conversion
Price.
(a) No
Impairment. The Borrower shall not, by amendment of its
Articles of Incorporation 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 to be observed or performed hereunder by the Borrower, but will at all
times in good faith, assist in the carrying out of all the provisions of this
Section 1.5 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the Holder against
impairment. In the event a Holder shall elect to convert any Notes as
provided herein, the Borrower cannot refuse conversion based on any claim that
such Holder or any one associated or affiliated with such Holder has been
engaged in any violation of law, violation of an agreement to which such Holder
is a party or for any reason whatsoever, unless, an injunction from a court, or
notice, restraining and or adjoining conversion of all or of said Notes shall
have issued and the Borrower posts a surety bond for the benefit of such Holder
in an amount equal to one hundred thirty percent (130%) of the amount of the
Notes the Holder has elected to convert, which bond shall remain in effect until
the completion of arbitration/litigation of the dispute and the proceeds of
which shall be payable to such Holder (as liquidated damages) in the event it
obtains judgment.
A-3
(b) Issue
Taxes. The Borrower shall pay any and all issue and other
taxes, excluding federal, state or local income taxes, that may be payable in
respect of any issue or delivery of shares of Common Stock on conversion of this
Note pursuant thereto; provided, however, that the
Borrower shall not be obligated to pay any transfer taxes resulting from any
transfer requested by the Holder in connection with any such
conversion.
(c) Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of this Note. In lieu of any fractional shares to
which the Holder would otherwise be entitled, the Borrower shall pay cash equal
to the product of such fraction multiplied by the average of the Closing Bid
Prices of the Common Stock for the five (5) consecutive Trading Days immediately
preceding the Conversion Date.
(d) Reservation of Common
Stock. The Borrower shall at all times when this Note shall be
outstanding, reserve and keep available out of its authorized but unissued
Common Stock at least one hundred twenty percent (120%) of the number of shares
of Common Stock for which this Note and all interest accrued thereon are at any
time convertible. The Borrower shall, from time to time in accordance
with Delaware law, increase the authorized number of shares of Common Stock if
at any time the unissued number of authorized shares shall not be sufficient to
satisfy the Borrower’s obligations under this Section 1.5(d).
(e) Regulatory
Compliance. If any shares of Common Stock to be reserved for
the purpose of conversion of this Note or any interest accrued thereon require
registration or listing with or approval of any governmental authority, stock
exchange or other regulatory body under any federal or state law or regulation
or otherwise before such shares may be validly issued or delivered upon
conversion, the Borrower shall, at its sole cost and expense, in good faith and
as expeditiously as possible, endeavor to secure such registration, listing or
approval, as the case may be. The Borrower will provide, at the
Borrower’s expense, such legal opinions in the future as are reasonably
necessary for the issuance and resale of the Common Stock issuable upon
conversion of the Note and exercise of any warrants issued to the Holder
pursuant to an effective registration statement, Rule 144 under the 1933 Act or
an exemption from registration. In the event that Common Stock is
sold in a manner that complies with an exemption from registration, the Borrower
will promptly instruct its counsel (at its expense) to issue to the transfer
agent an opinion permitting removal of the legend.
Section
1.6 No Rights as
Shareholder. Nothing contained in this Note shall be construed
as conferring upon the Holder, prior to the conversion of this Note, the right
to vote or to receive dividends or to consent or to receive notice as a
shareholder in respect of any meeting of shareholders for the election of
directors of the Borrower or of any other matter, or any other rights as a
shareholder of the Borrower.
A-4
FORM
OF
NOTICE OF
CONVERSION
(To be
Executed by the Registered Holder in order to Convert the Note)
The
undersigned hereby irrevocably elects to convert $ ________________ of the
principal amount of the above Note No. ___ into shares of Common Stock of
Advaxis, Inc. (the “Borrower”) according to the conditions hereof, as of the
date written below.
Date of
Conversion
_________________________________________________________
Applicable
Conversion Price __________________________________________________
Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the Date of
Conversion:
_________________________
Signature___________________________________________________________________
[Name]
Address:__________________________________________________________________
_______________________________________________________________________
Exhibit
A
Form of Common Stock
Purchase Warrant
Exhibit
B
Form of Amended and
Restated
Common Stock Purchase
Warrant
Exhibit
C
Trust Wire
Instructions
Bank Name
& Address:
____________
ABA
Routing Number: __________
A/C: _____________
Name: ____________
Reference: ______________
For
International Wires: ________________
Exhibit
4.2
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT.
Right to
Purchase ________ shares of Common Stock of Advaxis, Inc. (subject to adjustment
as provided herein)
AMENDED
AND RESTATED
COMMON
STOCK PURCHASE WARRANT
No. __________
Issue
Date: ___________
This Amended and Restated Common Stock
Purchase Warrant hereby amends, restates, supersedes and replaces that certain
Common Stock Purchase Warrant (the “Original Warrant”),
dated as of June 19, 2009, by and between the Company and the Holder and the
date of the payment in full for the purchase price hereof shall, for purposes of
Rule 144 under the Securities Act, be deemed to be June 19, 2009.
ADVAXIS,
INC., a corporation organized under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, ____________, or its assigns (the
“Holder”), is
entitled, subject to the terms set forth below, to purchase from the Company at
any time after the Issue Date until 5:00 p.m., E.S.T on the fifth anniversary of
the Issue Date (the “Expiration Date”), up
to _________ fully paid and nonassessable shares of Common Stock at a per share
purchase price of $0.17. The aforedescribed purchase price per share, as
adjusted from time to time as herein provided, is referred to herein as the
“Exercise
Price.” The number and character of such shares of Common
Stock and the Exercise Price are subject to adjustment as provided
herein. The Company may reduce the Exercise Price for some or all of
the Warrants, temporarily or permanently. Capitalized terms used and
not otherwise defined herein shall have the meanings set forth in that certain
Note Purchase Agreement (the “Purchase Agreement”),
dated as of June 19, 2009 entered into by the Company and the
Holder.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term “Company”
shall include Advaxis, Inc. and any corporation which shall succeed or assume
the obligations of Advaxis, Inc. hereunder.
(b) The
term “Common
Stock” means (a) the Company’s Common Stock, $0.001 par value per share,
as authorized on the date of the Purchase Agreement and (b) any other securities
into which or for which any of the securities described in (a) may be converted
or exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise.
(c) The
term “Common Stock
Deemed Outstanding” means, at any given time, the number of shares of
Common Stock actually outstanding at such time, plus the number of shares of
Common Stock issuable upon the exercise of all options or securities convertible
into Common Stock.
(d) The
term “Exempt
Issuances” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose by a majority of the non-employee members of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any securities issued under the
Purchase Agreement and/or other securities exercisable or exchangeable for or
convertible into shares of Common Stock issued and outstanding on the date
hereof, provided that such securities have not been amended since the date
hereof to increase the number of such securities or to decrease the exercise,
exchange or conversion price of such securities, (c) securities pursuant to
acquisitions or strategic transactions approved by a majority of the
disinterested directors of the Company, provided that any such issuance shall
only be to a person which is, itself or through its subsidiaries, an operating
company in a business synergistic with the business of the Company and in which
the Company receives benefits in addition to the investment of funds, but shall
not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is
investing in securities and (d) shares of Common Stock with an aggregate value
of no more than $150,000 issued to vendors of the Company valued based on the
VWAP at the time of issuance; provided, however, that from
and after October 17, 2012 this subclause (d) of the definition of “Exempt
Issuances” shall be deemed to be amended to provide that any shares of Common
Stock issued to vendors of the Company in consideration of goods provided or to
be provided to the Company, or services rendered or to be rendered to the
Company, shall constitute an Exempt Issuance.
(e) The
term “Other
Securities” refers to any shares of capital stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the Holder of the Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of the Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
(f) The
term “Subsidiary” means any
direct or indirect subsidiary of the Company and shall, where applicable,
include any direct or indirect subsidiary of the Company formed or acquired
after the date hereof.
(g) The
term “Trading
Day” means any day on which the New York Stock Exchange is open for
trading.
2
(h) The
term “Warrant
Shares” shall mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise of
Warrant.
1.1. Number of Shares Issuable
upon Exercise. From
and after the Issue Date through and including the Expiration Date, the Holder
hereof shall be entitled to receive, upon exercise of this Warrant in whole in
accordance with the terms of subsection 1.2 or upon exercise of this
Warrant in part in accordance with subsection 1.3, shares of Common Stock
of the Company, subject to adjustment pursuant to Section 4.
1.2. Full
Exercise. This
Warrant may be exercised in whole by the Holder hereof by delivery of an
original or facsimile copy of the form of subscription attached as Exhibit A hereto
(the “Subscription
Form”) duly executed by such Holder and delivery of payment, in cash,
wire transfer or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then exercisable by the Exercise Price then in
effect. The original Warrant is not required to be surrendered to the
Company until it has been fully exercised.
1.3. Partial
Exercise
. This
Warrant may be exercised in part (but not for a fractional share) by delivery of
a Subscription Form in the manner and at the place provided in
subsection 1.2 except that the amount payable by the Holder on such partial
exercise shall be the amount obtained by multiplying (a) the number of
whole shares of Common Stock designated by the Holder in the Subscription Form
by (b) the Exercise Price then in effect. On any such partial
exercise, provided the Holder has surrendered the original Warrant, the Company,
at its expense, will forthwith issue and deliver to or upon the order of the
Holder hereof a new Warrant of like tenor, in the name of the Holder hereof or
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may request, the whole number of shares of Common Stock for which such Warrant
may still be exercised for the balance of.
1.4. Fair Market
Value. Fair
Market Value of a share of Common Stock as of a particular date (the “Determination Date”)
shall mean:
(a) If the
Company’s Common Stock is listed on a national securities exchange, then the
average of the closing or last sale prices, respectively, reported for the five
trading days immediately preceding (but not including) the Determination
Date;
(b) If the
Company’s Common Stock is not listed on a national securities exchange, but is
quoted in the over-the-counter market or the “pink-sheets”, then the average of
the closing bid prices reported for the five trading days immediately preceding
(but not including) the Determination Date;
(c) Except as
provided in clause (d) below and Section 3.1, if the Company’s Common Stock
is not publicly traded, then as the Holder and the Company agree, or in the
absence of such an agreement, by arbitration in accordance with the rules then
standing of the American Arbitration Association, before a single arbitrator to
be chosen from a panel of persons qualified by education and training to pass on
the matter to be decided; or
3
(d) If the
Determination Date is the date of a liquidation, dissolution or winding up, or
any event deemed to be a liquidation, dissolution or winding up pursuant to the
Company’s certificate of incorporation (as amended and/or restated from time to
time, the “Charter”), then all
amounts to be payable per share to holders of the Common Stock pursuant to the
Charter in the event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common Stock in
liquidation under the Charter, assuming for the purposes of this clause
(d) that all of the shares of Common Stock then issuable upon exercise of
all of the Warrants are outstanding at the Determination Date.
1.5. Company
Acknowledgment. The
Company will, at the time of the exercise of the Warrant, upon the request of
the Holder hereof acknowledge in writing its continuing obligation to afford to
such Holder any rights to which such Holder shall continue to be entitled after
such exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
1.6. Trustee for Warrant
Holders. In the
event that a bank or trust company shall have been appointed as trustee for the
Holder of the Warrants pursuant to Subsection 3.2, such bank or trust
company shall have all the powers and duties of a warrant agent (as hereinafter
described) and shall accept, in its own name for the account of the Company or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.7. Delivery of Stock
Certificates, etc. on Exercise. The
Company agrees that the shares of Common Stock purchased upon exercise of this
Warrant shall be deemed to be issued to the Holder hereof as the record owner of
such shares as of the close of business on the date on which delivery of a
Subscription Form shall have occurred and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in whole or
in part, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder hereof, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct in compliance with applicable securities
laws, a certificate or certificates for the number of duly and validly issued,
fully paid and non-assessable shares of Common Stock (or Other Securities) to
which such Holder shall be entitled on such exercise, plus, in lieu of any
fractional share to which such Holder would otherwise be entitled, cash equal to
such fraction multiplied by the then Fair Market Value of one full share of
Common Stock, together with any other stock or other securities and property
(including cash, where applicable) to which such Holder is entitled upon such
exercise pursuant to Section 1 or otherwise.
2. Cashless
Exercise.
(a) Payment
upon exercise may be made at the option of the Holder either (i) in cash, wire
transfer or by certified or official bank check payable to the order of the
Company equal to the applicable aggregate Exercise Price, (ii) by delivery of
Common Stock issuable upon exercise of the Warrants in accordance with
Section (b) below or (iii) by a combination of any of the
foregoing methods, for the number of shares of Common Stock specified in such
form (as such exercise number shall be adjusted to reflect any adjustment in the
total number of shares of Common Stock issuable to the Holder per the terms of
this Warrant) and the Holder shall thereupon be entitled to receive the number
of duly authorized, validly issued, fully-paid and non-assessable shares of
Common Stock (or Other Securities) determined as provided herein.
4
(b) Subject
to the provisions herein to the contrary, if the Fair Market Value of one share
of Common Stock is greater than the Exercise Price (at the date of calculation
as set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares of Common Stock equal to the value (as determined below)
of this Warrant (or the portion thereof being cancelled) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Subscription Form, in which event the Company shall issue to the Holder
a number of shares of Common Stock computed using the following
formula:
|
X
=
|
Y
(A-B)
|
|
|
A
|
|
Where
|
X=
|
the
number of shares of Common Stock to be issued to the
Holder
|
|
|
Y=
|
the
number of shares of Common Stock purchasable under the Warrant or, if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such
calculation)
|
|
|
A=
|
the
Fair Market Value of the Common Stock (determined as of the trading day
immediately prior to, but not including, the Exercise
Date)
|
|
|
B=
|
Exercise
Price (as adjusted to the date of such
calculation)
|
(c) The
Holder may employ the cashless exercise feature described in Section (b) above
at any time.
For
purposes of Rule 144 promulgated under the Securities Act of 1933, as amended,
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 the Original Warrant was originally issued pursuant to
the Purchase Agreement. In connection with sales pursuant to said
Rule 144, the Company covenants to use commercially reasonable efforts to cause
its counsel (or other counsel) to provide, at the Company’s expense, the
necessary legal opinions require by the Company’s transfer agent to effectuate
such sales pursuant to Rule 144.
3. Adjustment for
Reorganization, Consolidation, Merger, etc.
3.1. Fundamental
Transaction. If, at
any time while this Warrant is outstanding,
5
(A) the
Company effects any merger or consolidation of the Company with or into another
entity, (B) the Company effects any sale of all or substantially all of its
assets in one or a series of related transactions, (C) any tender offer or
exchange offer (whether by the Company or another entity) is completed pursuant
to which holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (D) 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 (each, a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate
Consideration”) receivable upon or as a result of such merger,
consolidation or disposition of assets by a Holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such
event. 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. To the extent necessary to effectuate the foregoing provisions, any
successor to the Company or surviving entity in such Fundamental Transaction
shall issue to the Holder a new warrant consistent with the foregoing provisions
and evidencing the Holder’s right to exercise such warrant into Alternate
Consideration. 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 3.1 and insuring
that this Warrant (or any such replacement security) will be similarly adjusted
upon any subsequent transaction analogous to a Fundamental Transaction.
Notwithstanding anything to the contrary in this Warrant, in the event of a
Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule 13e-3
transaction” as defined in Rule 13e-3 under the Securities Exchange Act of
1934(as amended, the “Exchange Act”) or (3)
a Fundamental Transaction involving a person or entity not traded on a national
securities exchange, the Company or any successor entity shall pay at the
Holder’s option, exercisable at any time concurrently with or within 30 days
after the consummation of the Fundamental Transaction, an amount of cash equal
to the value of this Warrant as determined in accordance with the Black Scholes
Option Pricing Model obtained from the “OV” function on Bloomberg L.P. using (i)
a price per share of Common Stock equal to the volume weighted average price of
the Common Stock for the trading day immediately preceding the date of
consummation of the applicable Fundamental Transaction, (ii) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the
remaining term of this Warrant as of the date of consummation of the applicable
Fundamental Transaction and (iii) an expected volatility equal to the 100 day
volatility obtained from the “HVT” function on Bloomberg L.P. determined as of
the trading day immediately following the public announcement of the applicable
Fundamental Transaction.
3.2. Dissolution. In
the event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock and
other securities and property (including cash, where applicable) receivable by
the Holder of the Warrants after the effective date of such dissolution pursuant
to this Section 3 to a bank or trust company (a “Trustee”) having its
principal office in New York, NY, as trustee for the Holder of the
Warrants. Such property shall be delivered only upon payment of the
Warrant exercise price.
6
3.3. Continuation of
Terms. Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 3, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable to
the Other Securities and property receivable on the exercise of this Warrant
after the consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may be,
and shall be binding upon the issuer of any Other Securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in
Section 4. In the event this Warrant does not continue in full
force and effect after the consummation of the transaction described in this
Section 3, then only in such event will the Company’s securities and
property (including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by
Section 3.2.
3.4. Subsequent Equity
Sales. If the
Company or any Subsidiary thereof, as applicable, at any time after the date
hereof while this Warrant is outstanding, shall sell or grant any option to
purchase, or sell or grant any right to reprice, or otherwise dispose of or
issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Common Stock entitling any Person to acquire shares of Common
Stock, at an effective price per share less than the then Exercise Price (such
lower price, the “Base
Share Price” and such issuances collectively, a “Dilutive Issuance”)
(if the holder of the Common Stock so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options or rights
per share which are issued in connection with such issuance, be entitled to
receive shares of Common Stock at an effective price per share which is less
than the Exercise Price, such issuance shall be deemed to have occurred for less
than the Exercise Price on such date of the Dilutive Issuance), then the
Exercise Price shall be reduced and only reduced to equal the Base Share Price
and the number of Warrant Shares issuable hereunder shall be increased such that
the aggregate Exercise Price payable hereunder, after taking into account the
decrease in the Exercise Price, shall be equal to the aggregate Exercise Price
prior to such adjustment. Such adjustment shall be made whenever such Common
Stock are issued. Notwithstanding the foregoing, no adjustments shall
be made, paid or issued under this Section 3.4 in
respect of an Exempt Issuance. The Company shall notify the Holder in writing,
no later than the Trading Day following the issuance of any Common Stock subject
to this Section 3.4, indicating therein the
applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the Company
provides a Dilutive Issuance Notice pursuant to this Section 3.4, upon the occurrence of any Dilutive Issuance,
after the date of such Dilutive Issuance the Holder is entitled to receive a
number of Warrant Shares based upon the Base Share Price regardless of whether
the Holder accurately refers to the Base Share Price in the Notice of
Exercise.
3.5. Subsequent Rights
Offerings. If the
Company, at any time after the date hereof while the Warrant is outstanding,
shall issue rights, options or warrants to all holders of Common Stock (and not
to Holders) entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the Exercise Price (such lower price, the “Base Rights Price”
and such issuances collectively, a “Dilutive Rights
Issuance”), then the Exercise Price shall be reduced and only reduced to
equal the Base Rights Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price payable hereunder,
after taking into account the decrease in the Exercise Price, shall be equal to
the aggregate Exercise Price prior to such adjustment. Such adjustment shall be
made whenever such rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
Notwithstanding the foregoing, no adjustments shall be made, paid or issued
under this Section 3.5 in respect of an Exempt
Issuance. The Company shall issue a Dilutive Issuance Notice to the Holder in
writing, no later than the Trading Day following the issuance of any rights,
options or warrants subject to this Section 3.5,
indicating therein the applicable exchange price or conversion price and other
pricing terms. For purposes of clarification, whether or not the Company
provides a Dilutive Issuance Notice pursuant to this Section 3.5, upon the occurrence of any Dilutive Rights
Issuance, after the date of such Dilutive Rights Issuance the Holder is entitled
to receive a number of Warrant Shares based upon the Base Rights Price
regardless of whether the Holder accurately refers to the Base Rights Price in
the Notice of Exercise.
7
3.6. Adjustments for Adjustments
under Prior Warrants.
Notwithstanding anything to the contrary contained herein, including the
definition of “Exempt Issuance,” (i) any issuance, sale or grant, occurring on
or after June 19, 2009 and on or prior to October 17, 2012 that caused, causes
or would cause a reduction to the “Exercise Price” or increase in the “Warrant
Shares” number under any Common Stock Purchase Warrant issued by the Company
pursuant to the Securities Purchase Agreement dated October 17, 2007, as such
Warrant is in effect on the date hereof and without giving effect to any waiver
or amendment of the same after June 19, 2009, shall cause an immediate and
corresponding reduction to the Exercise Price hereunder (to the extent such
reduced Exercise Price is lower than the exercise price in effect under this
Warrant at such time) and cause an increase in the Warrant Share number pursuant
to the provisions hereof (calculated pursuant to Sections 3.4 and/or 3.5 by
using such reduced Exercise Price); provided that there shall be no duplicative
adjustment in the event that such the Exercise Price and Warrant Shares are
adjusted for such transaction pursuant to Sections 3.4 and 3.5.
4. Extraordinary Events
Regarding Common Stock. In
the event that the Company shall (a) issue additional shares of the Common
Stock as a dividend or other distribution on outstanding Common Stock,
(b) subdivide its outstanding shares of Common Stock, or (c) combine
its outstanding shares of the Common Stock into a smaller number of shares of
the Common Stock, then, in each such event, the Exercise Price shall,
simultaneously with the happening of such event, be adjusted by multiplying the
then Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event, and the product so obtained shall thereafter be
the Exercise Price then in effect. The Exercise Price, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive event or
events described herein in this Section 4. The number of shares of Common
Stock that the Holder of this Warrant shall thereafter, on the exercise hereof,
be entitled to receive shall be adjusted to a number determined by multiplying
the number of shares of Common Stock that would otherwise (but for the
provisions of this Section 4 be issuable on such exercise by a fraction of which
(a) the numerator is the Exercise Price that would otherwise (but for the
provisions of this Section 4 be in effect, and (b) the denominator is the
Exercise Price in effect on the date of such exercise.
8
5. Certificate as to
Adjustments. In
each case of any adjustment or readjustment in the shares of Common Stock (or
Other Securities) issuable on the exercise of the Warrants, the Company at its
expense will promptly cause its Chief Financial Officer or other appropriate
designee to compute such adjustment or readjustment in accordance with the terms
of the Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration
received or receivable by the Company for any additional shares of Common Stock
(or Other Securities) issued or sold or deemed to have been issued or sold,
(b) the number of shares of Common Stock (or Other Securities) outstanding
or deemed to be outstanding, and (c) the Exercise Price and the number of
shares of Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Company will forthwith mail a copy
of each such certificate to the Holder of the Warrant and any Warrant Agent of
the Company (appointed pursuant to Section 10 hereof).
6. Reservation of Stock,
etc. Issuable on Exercise of
Warrant; Financial Statements. The Company will at all
times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrants, sufficient shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the
Warrant. This Warrant entitles the Holder hereof to receive copies of
all financial and other information distributed or required to be distributed to
the holders of the Company’s Common Stock.
7. Assignment; Exchange of
Warrant. Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”). On the
surrender for exchange of this Warrant, with the Transferor’s endorsement in the
form of Exhibit B
attached hereto (the “Transferor Endorsement
Form”) and together with an opinion of counsel reasonably satisfactory to
the Company that the transfer of this Warrant will be in compliance with
applicable securities laws, the Company will issue and deliver to or on the
order of the Transferor thereof a new Warrant or Warrants of like tenor, in the
name of the Transferor and/or the transferee(s) specified in such Transferor
Endorsement Form (each a “Transferee”), calling
in the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement of
Warrant. On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement or
security reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, on surrender and cancellation of this Warrant, the
Company at its expense, twice only, will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
9
9. Maximum
Exercise. The
Holder shall not be entitled to exercise this Warrant on an exercise date, in
connection with that number of shares of Common Stock which would be in excess
of the sum of (i) the number of shares of Common Stock beneficially owned
by the Holder and its affiliates on an exercise date, and (ii) the number
of shares of Common Stock issuable upon the exercise of this Warrant with
respect to which the determination of this limitation is being made on an
exercise date, which would result in beneficial ownership by the Holder and its
affiliates of more than 9.99% of the outstanding shares of Common Stock on such
date. For the purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and Rule 13d-3
thereunder. The Holder shall have the authority and obligation to
determine whether the restriction contained in this Section 9 will limit any
conversion hereunder and to the extent that the Holder determines that the
limitation contained in this Section applies, the determination of which portion
of the Notes are convertible shall be the responsibility and obligation of the
Holder.
10. Warrant
Agent. The
Company may, by written notice to the Holder of the Warrant, appoint an agent (a
“Warrant
Agent”) for the purpose of issuing Common Stock (or Other Securities) on
the exercise of this Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 7, and replacing this Warrant pursuant to
Section 8, or any of the foregoing, and thereafter any such issuance,
exchange or replacement, as the case may be, shall be made at such office by
such Warrant Agent.
11. Transfer on the Company’s
Books. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
12. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be as set forth in the Purchase
Agreement or such other address as a party designates to the other party in
writing.
10
13. Law Governing This
Warrant. This
Warrant shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
laws. Any action brought by either party against the other concerning
the transactions contemplated by this Warrant shall be brought only in the state
courts of New York or in the federal courts located in the state and county of
New York. The parties to this Warrant hereby irrevocably waive any
objection to jurisdiction and venue of any action instituted hereunder and shall
not assert any defense based on lack of jurisdiction or venue or based upon
forum non
conveniens. The Company and Holder waive trial by
jury. In the event that any provision of this Warrant or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement. Each party hereby irrevocably waives personal
service of process and consents to process being served in any suit, action or
proceeding in connection with this Warrant 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 other manner permitted by
law. The Original Warrant is hereby amended, restated, superseded and
replaced hereby and such Original Warrant shall be of no further force and
effect.
[SIGNATURES
ON THE FOLLOWING PAGE]
11
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
|
ADVAXIS,
INC.
|
|||
|
|
By:
|
||
|
Name:
|
|||
12
Exhibit A
FORM OF
SUBSCRIPTION
(to be
signed only on exercise of Warrant)
TO: ADVAXIS,
INC.
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
|
___
|
________
shares of the Common Stock covered by such Warrant;
or
|
|
___
|
the
maximum number of shares of Common Stock covered by such Warrant pursuant
to the cashless exercise procedure set forth in
Section 2.
|
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is
$______. Such payment takes the form of (check applicable box or
boxes):
|
___
|
$__________
in lawful money of the United States;
and/or
|
|
___
|
the
cancellation of such portion of the attached Warrant as is exercisable for
a total of _______ shares of Common Stock (using a Fair Market Value of
$_______ per share for purposes of this calculation);
and/or
|
|
___
|
the
cancellation of such number of shares of Common Stock as is necessary, in
accordance with the formula set forth in Section 2, to exercise this
Warrant with respect to the maximum number of shares of Common Stock
purchasable pursuant to the cashless exercise procedure set forth in
Section 2.
|
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to _________________________________ whose address is
_____________________________________________
______________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities Act”), or
pursuant to an exemption from registration under the Securities
Act.
|
Dated:
|
__________________________________________
(Signature
must conform to name of Holder as
specified
on the face of the Warrant)
__________________________________________
__________________________________________
__________________________________________
(Address)
|
Exhibit B
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of ADVAXIS, INC. to which the within Warrant relates specified under the
headings “Percentage Transferred” and “Number Transferred,” respectively,
opposite the name(s) of such person(s) and appoints each such person Attorney to
transfer its respective right on the books of ADVAXIS, INC. with full power of
substitution in the premises.
|
Transferees
|
Percentage
Transferred
|
Number
Transferred
|
|
Dated: ______________,
___________
Signed
in the presence of:
___________________________________
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
__________________________________
(Name)
|
_____________________________________
(Signature
must conform to name of Holder
as
specified on the face of the warrant)
_____________________________________
_____________________________________
(address)
_____________________________________
_____________________________________
(address)
|
Exhibit
4.3
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT.
Right to
Purchase ________ shares of Common Stock of Advaxis, Inc. (subject to adjustment
as provided herein)
COMMON
STOCK PURCHASE WARRANT
No. _________
Issue
Date: _____________
ADVAXIS,
INC., a corporation organized under the laws of the State of Delaware (the
“Company”),
hereby certifies that, for value received, ________________, or its assigns (the
“Holder”), is
entitled, subject to the terms set forth below, to purchase from the Company at
any time after the Issue Date until 5:00 p.m., E.S.T on the fifth anniversary of
the Issue Date (the “Expiration Date”), up
to ____________ fully paid and nonassessable shares of Common Stock at a per
share purchase price of $0.17. The aforedescribed purchase price per
share, as adjusted from time to time as herein provided, is referred to herein
as the “Exercise
Price.” The number and character of such shares of Common
Stock and the Exercise Price are subject to adjustment as provided
herein. The Company may reduce the Exercise Price for some or all of
the Warrants, temporarily or permanently. Capitalized terms used and
not otherwise defined herein shall have the meanings set forth in that certain
Note Purchase Agreement (the “Purchase Agreement”),
dated as of June 19, 2009 entered into by the Company and the
Holder.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term “Company”
shall include Advaxis, Inc. and any corporation which shall succeed or assume
the obligations of Advaxis, Inc. hereunder.
(b) The
term “Common
Stock” means (a) the Company’s Common Stock, $0.001 par value per share,
as authorized on the date of the Purchase Agreement and (b) any other securities
into which or for which any of the securities described in (a) may be converted
or exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise.
(c) The
term “Common Stock
Deemed Outstanding” means, at any given time, the number of shares of
Common Stock actually outstanding at such time, plus the number of shares of
Common Stock issuable upon the exercise of all options or securities convertible
into Common Stock.
(d) The
term “Exempt
Issuances” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose by a majority of the non-employee members of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any securities issued under the
Purchase Agreement and/or other securities exercisable or exchangeable for or
convertible into shares of Common Stock issued and outstanding on the date
hereof, provided that such securities have not been amended since the date
hereof to increase the number of such securities or to decrease the exercise,
exchange or conversion price of such securities, (c) securities pursuant to
acquisitions or strategic transactions approved by a majority of the
disinterested directors of the Company, provided that any such issuance shall
only be to a person which is, itself or through its subsidiaries, an operating
company in a business synergistic with the business of the Company and in which
the Company receives benefits in addition to the investment of funds, but shall
not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is
investing in securities and (d) shares of Common Stock with an aggregate value
of no more than $150,000 issued to vendors of the Company valued based on the
VWAP at the time of issuance; provided, however, that from
and after October 17, 2012 this subclause (d) of the definition of “Exempt
Issuances” shall be deemed to be amended to provide that any shares of Common
Stock issued to vendors of the Company in consideration of goods provided or to
be provided to the Company, or services rendered or to be rendered to the
Company, shall constitute an Exempt Issuance.
(e) The
term “Other
Securities” refers to any shares of capital stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the Holder of the Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of the Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
(f) The
term “Subsidiary” means any
direct or indirect subsidiary of the Company and shall, where applicable,
include any direct or indirect subsidiary of the Company formed or acquired
after the date hereof.
(g) The
term “Trading
Day” means any day on which the New York Stock Exchange is open for
trading.
(h) The
term “Warrant
Shares” shall mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise of
Warrant.
1.1. Number of Shares Issuable
upon Exercise. From
and after the Issue Date through and including the Expiration Date, the Holder
hereof shall be entitled to receive, upon exercise of this Warrant in whole in
accordance with the terms of subsection 1.2 or upon exercise of this
Warrant in part in accordance with subsection 1.3, shares of Common Stock
of the Company, subject to adjustment pursuant to Section 4.
2
1.2. Full
Exercise. This
Warrant may be exercised in whole by the Holder hereof by delivery of an
original or facsimile copy of the form of subscription attached as Exhibit A hereto
(the “Subscription
Form”) duly executed by such Holder and delivery of payment, in cash,
wire transfer or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then exercisable by the Exercise Price then in
effect. The original Warrant is not required to be surrendered to the
Company until it has been fully exercised.
1.3. Partial
Exercise. This
Warrant may be exercised in part (but not for a fractional share) by delivery of
a Subscription Form in the manner and at the place provided in
subsection 1.2 except that the amount payable by the Holder on such partial
exercise shall be the amount obtained by multiplying (a) the number of
whole shares of Common Stock designated by the Holder in the Subscription Form
by (b) the Exercise Price then in effect. On any such partial
exercise, provided the Holder has surrendered the original Warrant, the Company,
at its expense, will forthwith issue and deliver to or upon the order of the
Holder hereof a new Warrant of like tenor, in the name of the Holder hereof or
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may request, the whole number of shares of Common Stock for which such Warrant
may still be exercised for the balance of.
1.4. Fair Market
Value. Fair
Market Value of a share of Common Stock as of a particular date (the “Determination Date”)
shall mean:
(a) If the
Company’s Common Stock is listed on a national securities exchange, then the
average of the closing or last sale prices, respectively, reported for the five
trading days immediately preceding (but not including) the Determination
Date;
(b) If the
Company’s Common Stock is not listed on a national securities exchange, but is
quoted in the over-the-counter market or the “pink-sheets”, then the average of
the closing bid prices reported for the five trading days immediately preceding
(but not including) the Determination Date;
(c) Except as
provided in clause (d) below and Section 3.1, if the Company’s Common Stock
is not publicly traded, then as the Holder and the Company agree, or in the
absence of such an agreement, by arbitration in accordance with the rules then
standing of the American Arbitration Association, before a single arbitrator to
be chosen from a panel of persons qualified by education and training to pass on
the matter to be decided; or
3
(d) If the
Determination Date is the date of a liquidation, dissolution or winding up, or
any event deemed to be a liquidation, dissolution or winding up pursuant to the
Company’s certificate of incorporation (as amended and/or restated from time to
time, the “Charter”), then all
amounts to be payable per share to holders of the Common Stock pursuant to the
Charter in the event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common Stock in
liquidation under the Charter, assuming for the purposes of this clause
(d) that all of the shares of Common Stock then issuable upon exercise of
all of the Warrants are outstanding at the Determination Date.
1.5. Company
Acknowledgment. The
Company will, at the time of the exercise of the Warrant, upon the request of
the Holder hereof acknowledge in writing its continuing obligation to afford to
such Holder any rights to which such Holder shall continue to be entitled after
such exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
1.6. Trustee for Warrant
Holders. In the
event that a bank or trust company shall have been appointed as trustee for the
Holder of the Warrants pursuant to Subsection 3.2, such bank or trust
company shall have all the powers and duties of a warrant agent (as hereinafter
described) and shall accept, in its own name for the account of the Company or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.7. Delivery of Stock
Certificates, etc. on Exercise. The
Company agrees that the shares of Common Stock purchased upon exercise of this
Warrant shall be deemed to be issued to the Holder hereof as the record owner of
such shares as of the close of business on the date on which delivery of a
Subscription Form shall have occurred and payment made for such shares as
aforesaid. As soon as practicable after the exercise of this Warrant in whole or
in part, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder hereof, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct in compliance with applicable securities
laws, a certificate or certificates for the number of duly and validly issued,
fully paid and non-assessable shares of Common Stock (or Other Securities) to
which such Holder shall be entitled on such exercise, plus, in lieu of any
fractional share to which such Holder would otherwise be entitled, cash equal to
such fraction multiplied by the then Fair Market Value of one full share of
Common Stock, together with any other stock or other securities and property
(including cash, where applicable) to which such Holder is entitled upon such
exercise pursuant to Section 1 or otherwise.
2. Cashless
Exercise.
(a) Payment
upon exercise may be made at the option of the Holder either (i) in cash, wire
transfer or by certified or official bank check payable to the order of the
Company equal to the applicable aggregate Exercise Price, (ii) by delivery of
Common Stock issuable upon exercise of the Warrants in accordance with
Section (b) below or (iii) by a combination of any of the
foregoing methods, for the number of shares of Common Stock specified in such
form (as such exercise number shall be adjusted to reflect any adjustment in the
total number of shares of Common Stock issuable to the Holder per the terms of
this Warrant) and the Holder shall thereupon be entitled to receive the number
of duly authorized, validly issued, fully-paid and non-assessable shares of
Common Stock (or Other Securities) determined as provided herein.
(b) Subject
to the provisions herein to the contrary, if the Fair Market Value of one share
of Common Stock is greater than the Exercise Price (at the date of calculation
as set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares of Common Stock equal to the value (as determined below)
of this Warrant (or the portion thereof being cancelled) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Subscription Form, in which event the Company shall issue to the Holder
a number of shares of Common Stock computed using the following
formula:
|
X
=
|
Y
(A-B)
|
|
|
A
|
|
Where
|
X=
|
the
number of shares of Common Stock to be issued to the
Holder
|
|
|
Y=
|
the
number of shares of Common Stock purchasable under the Warrant or, if only
a portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such
calculation)
|
|
|
A=
|
the
Fair Market Value of the Common Stock (determined as of the trading day
immediately prior to, but not including, the Exercise
Date)
|
|
|
B=
|
Exercise
Price (as adjusted to the date of such
calculation)
|
(c) The
Holder may employ the cashless exercise feature described in Section (b) above
at any time.
For
purposes of Rule 144 promulgated under the Securities Act of 1933, as amended,
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
Purchase Agreement. In connection with sales pursuant to
said Rule 144, the Company covenants to use commercially reasonable efforts to
cause its counsel (or other counsel) to provide, at the Company’s expense, the
necessary legal opinions require by the Company’s transfer agent to effectuate
such sales pursuant to Rule 144.
3. Adjustment for
Reorganization, Consolidation, Merger, etc.
3.1. Fundamental
Transaction. If, at
any time while this Warrant is outstanding,
4
(A) the
Company effects any merger or consolidation of the Company with or into another
entity, (B) the Company effects any sale of all or substantially all of its
assets in one or a series of related transactions, (C) any tender offer or
exchange offer (whether by the Company or another entity) is completed pursuant
to which holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (D) 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 (each, a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate
Consideration”) receivable upon or as a result of such merger,
consolidation or disposition of assets by a Holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such
event. 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. To the extent necessary to effectuate the foregoing provisions, any
successor to the Company or surviving entity in such Fundamental Transaction
shall issue to the Holder a new warrant consistent with the foregoing provisions
and evidencing the Holder’s right to exercise such warrant into Alternate
Consideration. 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 3.1 and insuring
that this Warrant (or any such replacement security) will be similarly adjusted
upon any subsequent transaction analogous to a Fundamental Transaction.
Notwithstanding anything to the contrary in this Warrant, in the event of a
Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule 13e-3
transaction” as defined in Rule 13e-3 under the Securities Exchange Act of
1934(as amended, the “Exchange Act”) or (3)
a Fundamental Transaction involving a person or entity not traded on a national
securities exchange, the Company or any successor entity shall pay at the
Holder’s option, exercisable at any time concurrently with or within 30 days
after the consummation of the Fundamental Transaction, an amount of cash equal
to the value of this Warrant as determined in accordance with the Black Scholes
Option Pricing Model obtained from the “OV” function on Bloomberg L.P. using (i)
a price per share of Common Stock equal to the volume weighted average price of
the Common Stock for the trading day immediately preceding the date of
consummation of the applicable Fundamental Transaction, (ii) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the
remaining term of this Warrant as of the date of consummation of the applicable
Fundamental Transaction and (iii) an expected volatility equal to the 100 day
volatility obtained from the “HVT” function on Bloomberg L.P. determined as of
the trading day immediately following the public announcement of the applicable
Fundamental Transaction.
3.2. Dissolution. In
the event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock and
other securities and property (including cash, where applicable) receivable by
the Holder of the Warrants after the effective date of such dissolution pursuant
to this Section 3 to a bank or trust company (a “Trustee”) having its
principal office in New York, NY, as trustee for the Holder of the
Warrants. Such property shall be delivered only upon payment of the
Warrant exercise price.
5
3.3. Continuation of
Terms. Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 3, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable to
the Other Securities and property receivable on the exercise of this Warrant
after the consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may be,
and shall be binding upon the issuer of any Other Securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in
Section 4. In the event this Warrant does not continue in full
force and effect after the consummation of the transaction described in this
Section 3, then only in such event will the Company’s securities and
property (including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by
Section 3.2.
3.4. Subsequent Equity
Sales. If the
Company or any Subsidiary thereof, as applicable, at any time after the date
hereof while this Warrant is outstanding, shall sell or grant any option to
purchase, or sell or grant any right to reprice, or otherwise dispose of or
issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Common Stock entitling any Person to acquire shares of Common
Stock, at an effective price per share less than the then Exercise Price (such
lower price, the “Base
Share Price” and such issuances collectively, a “Dilutive Issuance”)
(if the holder of the Common Stock so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options or rights
per share which are issued in connection with such issuance, be entitled to
receive shares of Common Stock at an effective price per share which is less
than the Exercise Price, such issuance shall be deemed to have occurred for less
than the Exercise Price on such date of the Dilutive Issuance), then the
Exercise Price shall be reduced and only reduced to equal the Base Share Price
and the number of Warrant Shares issuable hereunder shall be increased such that
the aggregate Exercise Price payable hereunder, after taking into account the
decrease in the Exercise Price, shall be equal to the aggregate Exercise Price
prior to such adjustment. Such adjustment shall be made whenever such Common
Stock are issued. Notwithstanding the foregoing, no adjustments shall
be made, paid or issued under this Section 3.4 in
respect of an Exempt Issuance. The Company shall notify the Holder in writing,
no later than the Trading Day following the issuance of any Common Stock subject
to this Section 3.4, indicating therein the
applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the Company
provides a Dilutive Issuance Notice pursuant to this Section 3.4, upon the occurrence of any Dilutive Issuance,
after the date of such Dilutive Issuance the Holder is entitled to receive a
number of Warrant Shares based upon the Base Share Price regardless of whether
the Holder accurately refers to the Base Share Price in the Notice of
Exercise.
3.5. Subsequent Rights
Offerings. If the
Company, at any time after the date hereof while the Warrant is outstanding,
shall issue rights, options or warrants to all holders of Common Stock (and not
to Holders) entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the Exercise Price (such lower price, the “Base Rights Price”
and such issuances collectively, a “Dilutive Rights
Issuance”), then the Exercise Price shall be reduced and only reduced to
equal the Base Rights Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price payable hereunder,
after taking into account the decrease in the Exercise Price, shall be equal to
the aggregate Exercise Price prior to such adjustment. Such adjustment shall be
made whenever such rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
Notwithstanding the foregoing, no adjustments shall be made, paid or issued
under this Section 3.5 in respect of an Exempt
Issuance. The Company shall issue a Dilutive Issuance Notice to the Holder in
writing, no later than the Trading Day following the issuance of any rights,
options or warrants subject to this Section 3.5,
indicating therein the applicable exchange price or conversion price and other
pricing terms. For purposes of clarification, whether or not the Company
provides a Dilutive Issuance Notice pursuant to this Section 3.5, upon the occurrence of any Dilutive Rights
Issuance, after the date of such Dilutive Rights Issuance the Holder is entitled
to receive a number of Warrant Shares based upon the Base Rights Price
regardless of whether the Holder accurately refers to the Base Rights Price in
the Notice of Exercise.
6
3.6. Adjustments for Adjustments
under Prior Warrants. Notwithstanding anything to the contrary contained
herein, including the definition of “Exempt Issuance,” (i) any issuance, sale or
grant, occurring on or after June 19, 2009 and on or prior to October 17, 2012
that caused, causes or would cause a reduction to the “Exercise Price” or
increase in the “Warrant Shares” number under any Common Stock Purchase Warrant
issued by the Company pursuant to the Securities Purchase Agreement dated
October 17, 2007, as such Warrant is in effect on the date hereof and without
giving effect to any waiver or amendment of the same after June 19, 2009, shall
cause an immediate and corresponding reduction to the Exercise Price hereunder
(to the extent such reduced Exercise Price is lower than the exercise price in
effect under this Warrant at such time) and cause an increase in the Warrant
Share number pursuant to the provisions hereof (calculated pursuant to Sections
3.4 and/or 3.5 by using such reduced Exercise Price); provided that there shall
be no duplicative adjustment in the event that such the Exercise Price and
Warrant Shares are adjusted for such transaction pursuant to Sections 3.4 and
3.5.
4. Extraordinary Events
Regarding Common Stock. In
the event that the Company shall (a) issue additional shares of the Common
Stock as a dividend or other distribution on outstanding Common Stock,
(b) subdivide its outstanding shares of Common Stock, or (c) combine
its outstanding shares of the Common Stock into a smaller number of shares of
the Common Stock, then, in each such event, the Exercise Price shall,
simultaneously with the happening of such event, be adjusted by multiplying the
then Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event, and the product so obtained shall thereafter be
the Exercise Price then in effect. The Exercise Price, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive event or
events described herein in this Section 4. The number of shares of Common
Stock that the Holder of this Warrant shall thereafter, on the exercise hereof,
be entitled to receive shall be adjusted to a number determined by multiplying
the number of shares of Common Stock that would otherwise (but for the
provisions of this Section 4 be issuable on such exercise by a fraction of which
(a) the numerator is the Exercise Price that would otherwise (but for the
provisions of this Section 4 be in effect, and (b) the denominator is the
Exercise Price in effect on the date of such exercise.
7
5. Certificate as to
Adjustments. In
each case of any adjustment or readjustment in the shares of Common Stock (or
Other Securities) issuable on the exercise of the Warrants, the Company at its
expense will promptly cause its Chief Financial Officer or other appropriate
designee to compute such adjustment or readjustment in accordance with the terms
of the Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration
received or receivable by the Company for any additional shares of Common Stock
(or Other Securities) issued or sold or deemed to have been issued or sold,
(b) the number of shares of Common Stock (or Other Securities) outstanding
or deemed to be outstanding, and (c) the Exercise Price and the number of
shares of Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Company will forthwith mail a copy
of each such certificate to the Holder of the Warrant and any Warrant Agent of
the Company (appointed pursuant to Section 10 hereof).
6. Reservation of Stock,
etc. Issuable on Exercise of
Warrant; Financial Statements. The Company will at all
times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrants, sufficient shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the
Warrant. This Warrant entitles the Holder hereof to receive copies of
all financial and other information distributed or required to be distributed to
the holders of the Company’s Common Stock.
7. Assignment; Exchange of
Warrant. Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”). On the
surrender for exchange of this Warrant, with the Transferor’s endorsement in the
form of Exhibit B
attached hereto (the “Transferor Endorsement
Form”) and together with an opinion of counsel reasonably satisfactory to
the Company that the transfer of this Warrant will be in compliance with
applicable securities laws, the Company will issue and deliver to or on the
order of the Transferor thereof a new Warrant or Warrants of like tenor, in the
name of the Transferor and/or the transferee(s) specified in such Transferor
Endorsement Form (each a “Transferee”), calling
in the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement of
Warrant. On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement or
security reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, on surrender and cancellation of this Warrant, the
Company at its expense, twice only, will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
8
9. Maximum
Exercise. The
Holder shall not be entitled to exercise this Warrant on an exercise date, in
connection with that number of shares of Common Stock which would be in excess
of the sum of (i) the number of shares of Common Stock beneficially owned
by the Holder and its affiliates on an exercise date, and (ii) the number
of shares of Common Stock issuable upon the exercise of this Warrant with
respect to which the determination of this limitation is being made on an
exercise date, which would result in beneficial ownership by the Holder and its
affiliates of more than 9.99% of the outstanding shares of Common Stock on such
date. For the purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and Rule 13d-3
thereunder. The Holder shall have the authority and obligation to
determine whether the restriction contained in this Section 9 will limit any
conversion hereunder and to the extent that the Holder determines that the
limitation contained in this Section applies, the determination of which portion
of the Notes are convertible shall be the responsibility and obligation of the
Holder.
10. Warrant
Agent. The
Company may, by written notice to the Holder of the Warrant, appoint an agent (a
“Warrant
Agent”) for the purpose of issuing Common Stock (or Other Securities) on
the exercise of this Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 7, and replacing this Warrant pursuant to
Section 8, or any of the foregoing, and thereafter any such issuance,
exchange or replacement, as the case may be, shall be made at such office by
such Warrant Agent.
11. Transfer on the Company’s
Books. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
12. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be as set forth in the Purchase
Agreement or such other address as a party designates to the other party in
writing.
9
13. Law Governing This
Warrant. This
Warrant shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
laws. Any action brought by either party against the other concerning
the transactions contemplated by this Warrant shall be brought only in the state
courts of New York or in the federal courts located in the state and county of
New York. The parties to this Warrant hereby irrevocably waive any
objection to jurisdiction and venue of any action instituted hereunder and shall
not assert any defense based on lack of jurisdiction or venue or based upon
forum non
conveniens. The Company and Holder waive trial by
jury. In the event that any provision of this Warrant or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement. Each party hereby irrevocably waives personal
service of process and consents to process being served in any suit, action or
proceeding in connection with this Warrant 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 other manner permitted by
law.
[SIGNATURES
ON THE FOLLOWING PAGE]
10
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
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ADVAXIS,
INC.
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By:
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Name:
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11
Exhibit A
FORM OF
SUBSCRIPTION
(to be
signed only on exercise of Warrant)
TO: ADVAXIS,
INC.
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
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___
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________
shares of the Common Stock covered by such Warrant;
or
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___
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the
maximum number of shares of Common Stock covered by such Warrant pursuant
to the cashless exercise procedure set forth in
Section 2.
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The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is
$______. Such payment takes the form of (check applicable box or
boxes):
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___
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$__________
in lawful money of the United States;
and/or
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___
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the
cancellation of such portion of the attached Warrant as is exercisable for
a total of _______ shares of Common Stock (using a Fair Market Value of
$_______ per share for purposes of this calculation);
and/or
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___
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the
cancellation of such number of shares of Common Stock as is necessary, in
accordance with the formula set forth in Section 2, to exercise this
Warrant with respect to the maximum number of shares of Common Stock
purchasable pursuant to the cashless exercise procedure set forth in
Section 2.
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The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to _________________________________ whose address is
_____________________________________________
______________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities Act”), or
pursuant to an exemption from registration under the Securities
Act.
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Dated:
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__________________________________________
(Signature
must conform to name of Holder as
specified
on the face of the Warrant)
__________________________________________
__________________________________________
__________________________________________
(Address)
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Exhibit B
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of ADVAXIS, INC. to which the within Warrant relates specified under the
headings “Percentage Transferred” and “Number Transferred,” respectively,
opposite the name(s) of such person(s) and appoints each such person Attorney to
transfer its respective right on the books of ADVAXIS, INC. with full power of
substitution in the premises.
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Transferees
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Percentage
Transferred
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Number
Transferred
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Dated: ______________,
___________
Signed
in the presence of:
___________________________________
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
__________________________________
(Name)
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_____________________________________
(Signature
must conform to name of Holder
as
specified on the face of the warrant)
_____________________________________
_____________________________________
(address)
_____________________________________
_____________________________________
(address)
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