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FORM S-3MEF

 

As filed with the Securities and Exchange Commission on February 18, 2015

Registration No. 333-             

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

ADVAXIS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   02-0563870
(State or Other Jurisdiction of
Incorporation or Organization)		   (I.R.S. Employer
Identification No.)

 

305 College Road East
Princeton, New Jersey 08540
(609) 452-9813

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 


 

 

Mr. Daniel J. O’Connor
Chief Executive Officer
305 College Road East
Princeton, New Jersey 08540
(609) 452-9813

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

 

 

 

The Commission is requested to send copies of all communications to:

Mark F. McElreath

Matthew W. Mamak

Alston & Bird LLP

90 Park Avenue

New York, New York 10016-1387

Telephone: (212) 210-9400

 

 

 

Approximate date of commencement of proposed sale to the public: As soon as possible after the registration statement becomes effective.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [  ]

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [  ]

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X] (File No. 333-194009)

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the state offering. [  ] ______

 

If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [X]

 

If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [  ]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934.

 

Large accelerated filer [  ]   Accelerated filer [  ]
Non-accelerated filer [  ] (Do not check if a smaller reporting company)   Smaller reporting company [X]

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of
Each Class Of
Securities To
Be Registered		  Amount to
be Registered		  Proposed Maximum
Offering Price
Per Share (1)		   Proposed Maximum
Aggregate Offering
Price (1)		   Amount of
Registration Fee		 
Common Stock, $0.001 par value per share  N/A   N/A   $3,835,119.15   $445.64 

 

(1)The $3,835,119.15 proposed maximum aggregate offering price is in addition to the remaining proposed maximum aggregate offering price registered pursuant to the Registrant’s Registration Statement on Form S-3 (File No. 333-194009).

 

 

 

THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE 462(B) UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

 

 

 

 
 

 

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE OF
EARLIER REGISTRATION STATEMENT

 

This Registration Statement is being filed with respect to the registration of additional securities pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), and General Instruction IV of Form S-3. The contents of the Registration Statement on Form S-3 (Registration No. 333-194009) initially filed by Advaxis, Inc. with the Securities and Exchange Commission (the “Commission”) on February 18, 2014, including certain exhibits thereto, and declared effective by the Commission on March 4, 2014, are incorporated herein by reference.

 

 
 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Princeton, State of New Jersey, on February 18, 2015.

 

  Advaxis, Inc.
   
  By: /s/ Daniel J. O’Connor
    Daniel J. O’Connor
Chief Executive Officer and President

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated as of February 18, 2015.

 

Signatures   Title
     

/s/ Daniel J. O’Connor

   Chief Executive Officer and President
Daniel J. O’Connor   (Principal Executive Officer) and Director
     

/s/ Sara Bonstein*

   Chief Financial Officer and Senior Vice President
Sara Bonstein   (Principal Financial and Accounting Officer)
     

/s/ Dr. James P. Patton*

   Chairman of the Board of Directors
Dr. James P. Patton    
     

/s/ Roni A. Appel*

   Director
Roni A. Appel    
     

/s/ Richard Berman*

   Director
Richard Berman    
     

/s/ Dr. Thomas McKearn*

   Director
Dr. Thomas McKearn    
     

/s/ Dr. Samir Khleif *

   Director
Dr. Samir Khleif    
     

/s/ Dr. David Sidransky*

   Director
Dr. David Sidransky    

  

*By: /s/ Daniel J. O’Connor  
  Daniel J. O’Connor  
  Attorney-in-Fact  

 

 
 

 

EXHIBIT INDEX

 

Exhibit Number

  

Description

     
5.1   Opinion of Alston & Bird LLP.
     
23.1   Consent of Marcum, LLP.
     
23.2   Consent of Alston & Bird LLP (included in Exhibit 5.1).
     
24.1   Power of Attorney (included on the signature page to this Registration Statement).

 

 
 

 

Alston&Bird llp

90 Park Avenue

New York, NY 10016

 

212-210-9400

Fax:212-210-9444

www.alston.com

 

Matthew W. Mamak Direct Dial: 212-210-1256 Email: matthew.mamak@alston.com

 

February 18, 2015

 

Advaxis, Inc.

305 College Road East

Princeton, New Jersey 08540

 

  Re: Registration Statement on Form S-3MEF

 

Gentlemen:

 

We have acted as counsel to Advaxis, Inc., a Delaware corporation (the “Company”), in connection with the registration statement (the “Registration Statement”) on Form S-3MEF filed today by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), covering $3,835,119.15 worth of shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), to be issued and sold from time to time pursuant to Rule 415 under the Securities Act. This opinion letter is being rendered pursuant to Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K.

 

We have examined the Amended and Restated Certificate of Incorporation of the Company, the Amended and Restated Bylaws of the Company, records of proceedings of the Board of Directors, or committees thereof, and records of proceedings of the stockholders, deemed by us to be relevant to this opinion letter and the Registration Statement. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein.

 

As to certain factual matters relevant to this opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, documents and instruments, including certificates or comparable documents of officers of the Company and of public officials, as we have deemed appropriate as a basis for the opinion hereinafter set forth. Except to the extent expressly set forth herein, we have made no independent investigations with regard to matters of fact, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification. We assume no obligation to revise or supplement this opinion in the event of future changes in such facts.

 

 

 
 

 

February 18, 2015

Page 2

 

Based on the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that the Common Stock will be validly issued, fully paid and non-assessable. This opinion is conditioned upon the Board of Directors of the Company or a duly authorized committee thereof (the “Board of Directors”) having validly authorized and approved the filing of the Registration Statement, so as not to violate any applicable law, rule or regulation or result in a default under or a breach of any agreement binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. Furthermore, this opinion is contingent upon the proper execution, authentication, issuance and delivery of such Common Stock, as the case may be, as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with any underwriting agreement or securities purchase agreement in exchange for the consideration fixed therefor by the Board of Directors or a duly authorized committee thereof (provided that the consideration paid is not less than the par value thereof).

 

The opinion set forth herein is limited to the General Corporation Law and Constitution of the State of Delaware and reported judicial decisions interpreting the foregoing, and federal laws of the United States of America to the extent referred to specifically herein. We do not express any opinion herein concerning any other laws. We are not engaged in the practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as currently in effect and have made such inquiries as we consider necessary to render the opinion contained herein. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations thereof.

 

The opinion set forth above is subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors generally, including the effect of statutory or other laws regarding fraudulent or preferential transfers, and (ii) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law. We express no opinion regarding the effectiveness of (i) any waiver of stay, extension or usury laws or of unknown future rights; or (ii) provisions may be held unenforceable as contrary to federal or state securities laws.

 

No opinion may be implied or inferred beyond the opinion expressly stated in the paragraph above. Our opinion expressed herein is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinion expressed herein.

 

We consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

  Very truly yours,
     
  ALSTON & BIRD LLP
   
  By: /s/ Matthew W. Mamak
    Matthew W. Mamak
    Partner

 

 
 

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Advaxis, Inc. on Form S-3 of our report dated January 5, 2015, which was previously incorporated by reference into the Registration Statement on Form S-3 (Registration No. 333-194009) with respect to our audits of the financial statements of Advaxis, Inc. as of October 31, 2014 and 2013 and for the years then ended appearing in the Annual Report on Form 10-K of Advaxis, Inc. for the year ended October 31, 2014. We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which was included in such Registration Statement.

 

/s/ Marcum llp  
   
Marcum llp  
New York, NY  
February 18, 2015