Advaxis,
Inc.
Technology
Centre of New Jersey
675
Route 1
North
Brunswick, NJ 08902
September
1, 2010
VIA
EDGAR
Securities
and Exchange Commission
Attention: Jim
B. Rosenberg
Mail Stop
3010
Division
of Corporation Finance
100 F
Street, NE
Washington,
D.C. 20549
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Re:
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Advaxis,
Inc.
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Form
10-Q for Fiscal Quarter Ended April 30,
2010
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Filed
June 3, 2010
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File
No. 000-28489
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Dear Mr.
Rosenberg:
On behalf
of Advaxis, Inc., a Delaware corporation (the “Company”), this
letter responds to the comment letter from the Staff (the “Staff”) of the
Securities and Exchange Commission (the “Commission”) to Mark
J. Rosenblum of the Company dated August 19, 2010 (the “Comment
Letter”). For your convenience, the comment of the Staff is
reproduced below in bold type and italics and is followed by the Company’s
response.
Form 10-Q for Fiscal Quarter
Ended April 30, 2010
Financial
Statements
Notes to Financial
Statements
7. Shareholder’s
Equity
Preferred Equity Financing,
page 12
1. You classified
non-convertible, redeemable Series A Preferred Stock issued in 2010 as
shareholders’ equity. Since your Series A Preferred Stock is subject to
repurchase at the investor’s election under certain circumstances, or following
the consummation of certain fundamental transactions, at the option of a
majority of the preferred stock holders please tell us why you have classified
the preferred stock issuances as shareholders’ equity. Please refer to ASC
480-10-S99 and ASC 210-10-S99.
Response to Comment
1
1. The
Company classified its non-convertible, redeemable Series A Preferred Stock (the
“Series A Preferred
Stock”) issued in 2010 as shareholders’ equity because the redemption
feature contained in the Series A Preferred Stock was solely in the control of
the Company and the Series A Preferred Stock was not subject to repurchase at
the election of the Investor (as defined below) under any circumstances at any
time.
Securities
and Exchange Commission
September
1, 2010
Page
2
Section 6
of the Company’s Certificate of Designations of Preferences, Rights and
Limitations of Series A Preferred Stock (the “Series A Certificate of
Designations”), included as Exhibit 4.1 to, and incorporated by reference
into, the Company’s Current Report on Form 8-K dated September 25, 2009 (the
“Series A Current
Report”), provides in relevant part that upon or after the fifth
anniversary of the initial issuance date of the Series A Preferred Stock, the
Company shall have the right, at the
Company’s option, to redeem all or a portion of the shares of Series A
Preferred Stock at a price per share equal to the Series A Liquidation Value (as
defined in the Series A Certificate of Designations). Neither the
Series A Certificate of Designations, nor the Series A Preferred Stock Purchase
Agreement dated September 24, 2009 between the Company and the purchaser of the
Series A Preferred Stock (the “Investor”) (included
as Exhibit 10.1 to, and incorporated by reference into, the Series A
Current Report), provides for any other redemption or repurchase rights at the
option of either the Company or the Investor. Accordingly, and in
accordance with ASC 480-10-S99 and ASC 210-10-S99, the Company classified its
Series A Preferred Stock as shareholders’ equity.
On July
19, 2010, as reported in the Company’s Current Report on Form 8-K dated July 20,
2010 (the “Series B
Current Report”), the Company (i) entered into a Series B Preferred Stock
Purchase Agreement with the Investor (the “Series B Purchase
Agreement”) pursuant to which the Investor agreed to purchase, upon the
terms and subject to the conditions set forth therein, up to 750 shares of the
Company’s newly authorized, non-convertible, redeemable Series B Preferred Stock
(the “Series B
Preferred Stock”) and (ii) issued 500 shares of Series B Preferred Stock
to the Investor in exchange for the 500 shares of Series A Preferred Stock then
outstanding so that all shares of the Company’s preferred stock held or
subsequently purchased by the Investor under the Series B Purchase Agreement
would be redeemable upon substantially identical terms. Following the
consummation of such exchange, no shares of Series A Preferred Stock were issued
or outstanding.
Section 6
of the Company’s Certificate of Designations of Preferences, Rights and
Limitations of Series B Preferred Stock (the “Series B Certificate of
Designations”), included as Exhibit 4.1 to, and incorporated by reference
into, the Series B Current Report, similarly provides that the Series B
Preferred Stock is redeemable under the circumstances described in the Series B
Certificate of Designations solely at the option of the
Company. Except for such Company redemption rights described in the
previous sentence, neither the Series B Certificate of Designations, nor the
Series B Preferred Stock Purchase Agreement, provides for any other redemption
or repurchase rights at the option of either the Company or the
Investor.
Although
the narrative description of the Series B Preferred Stock contained in the
Series B Current Report does not provide or otherwise indicate that the Series B
Preferred Stock is redeemable at the option of the Investor under any
circumstances, such narrative description does state that the Series B Preferred
Stock is “subject to repurchase by the Company following the consummation of
certain fundamental transactions.” Therefore, the Company will amend
the Series B Current Report to state, and further clarify in its Quarterly
Report on Form 10-Q for the three months ended July 31, 2010 (the “Third Quarter Quarterly
Report”) (which is due no later than September 15, 2010), that the Series
B Preferred Stock is only redeemable at the option of the Company as set forth
in the Series B Certificate of Designations and not otherwise subject to
redemption or repurchase by the Company in any circumstances.
Securities
and Exchange Commission
September
1, 2010
Page
3
At the
Staff’s request, this letter constitutes an acknowledgement on behalf of the
Company that:
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the
Company is responsible for the adequacy and accuracy of the disclosure in
the filing;
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Staff
comments or changes to disclosure in response to Staff comments do not
foreclose the Commission from taking any action with respect to the
filing; and
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the
Company may not assert Staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
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Securities
and Exchange Commission
September
1, 2010
Page
4
If you
should have any questions about this letter or require any further information,
please call me at 732-545-1590, x3201.
| Sincerely, | |
| /S/ MARK J. ROSENBLUM | |
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Mark
J. Rosenblum
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cc: Robert
H. Cohen, Esq.