Exhibit
10.1
NOTE PURCHASE
AGREEMENT
THIS NOTE PURCHASE AGREEMENT
(the “ Agreement
”) is made as of the __ day of June, 2009, by and between
Advaxis, Inc., a Delaware corporation (the “
Company ”), and each purchaser listed on
Schedule A hereto (individually, an “
Investor ” and collectively, the “
Investors ”).
WHEREAS, the Investors are willing to lend the
Company the amounts set forth on Schedule A hereto pursuant
to the terms of this Agreement and a promissory note (a “
Note ”) convertible into shares of the
Company’s common stock, $0.001 par value (the “
Common Stock ”), all as more particularly
described in the form of Note attached hereto as Exhibit A
and for warrants, in substantially the form attached hereto as
Exhibit B (the “ Warrants ”);
and
WHEREAS, the parties have agreed that the
obligation to repay the Notes shall be secured by a pledge of
substantially all of the assets of the Company pursuant to the
terms of a Security Agreement (the “Security
Agreement”) in the form attached hereto as Exhibit
C.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the premises and the mutual
agreements, representations and warranties, provisions and
covenants contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1.
Purchase and Sale of Notes and Warrants . On the
Closing Date (as hereinafter defined), subject to the terms and
conditions of this Agreement, each Investor hereby agrees to
purchase and the Company hereby agrees to sell and issue (a) a Note
in the principal amount set forth opposite such Investor’s
name on Schedule A hereto and (b) a Warrant to acquire that
number of shares of Common Stock as is set forth opposite such
Investors name on Schedule A hereto (the “
Warrant Shares ”).
2.
Purchase Price . The purchase price for each Investor of the
Notes and the Warrants to be purchased by each such Investor at the
Closing shall be the amount set forth opposite such
Investor’s name on Schedule A hereto (the “
Purchase Price ”). The Notes will be issued
with an original issue discount of fifteen percent
(15%). Each Investor shall pay $0.85 for each $1.00 of
principal amount of Notes and Warrants to be purchased at the
Closing. The Investors and the Company agree that the
Notes and the Warrants constitute an “investment unit”
for purposes of Section 1273(c)(2) of the Internal Revenue Code of
1986, as amended (the “ Code
”). At the Closing each Investor shall fund the
Purchase Price by wire transfer of immediately available funds (to
an account designated by the Company).
3.
The Closing(s) . Subject to the conditions set
forth below, the initial purchase and sale of the Notes and the
Warrants shall take place at the offices of Greenberg Traurig, LLP,
The MetLife Building, 200 Park Avenue, New York, New York 10166, on
the date hereof or at such other time and place as the Company and
the Investors mutually agree (the “ Closing
” and the “ Closing Date
”). The Company may effect one or more Closings
with the Investors. At the Closing, the Company shall
deliver to each Investor: (i) an executed counterpart of
the Security Agreement; (ii) such Investor’s original Note in
the principal amount set forth opposite such Investor’s name
on Schedule A ; (iii) a warrant certificate representing the
Warrants issuable to such Investor in the amount set forth opposite
such Investor’s name on Schedule A ; and (iv) an
executed counterpart of the Subordination Agreement. At
the Closing, the Investor shall deliver to the Company: (i) an
executed counterpart of the Security Agreement; (ii) an executed
counterpart of the Subordination Agreement; and (iii) an executed
IRS Form W-9.
4.1
Condition’s to Investor’s Obligations
. The obligation of each Investor to purchase and fund
its Note at the applicable Closing is subject to the fulfillment,
to the Investor’s reasonable satisfaction, prior to or at the
Closing in question, of each of the following
conditions:
(a)
Representations and Warranties . The
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on the
date hereof and on and as of the Closing Date as if made on and as
of such date.
(b)
Notes, Warrant Certificates . At the Closing, the
Company shall have tendered to the Investor the appropriate Note
and Warrants and other deliverables set forth herein.
(c)
No Actions . No action, proceeding,
investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental
agency or authority or legislative body to enjoin, restrain,
prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated by
this Agreement.
(d)
Proceedings and Documents . All proceedings in
connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be
satisfactory in substance and form to the Investor, and the
Invesotr shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably
request.
(e)
Subordination Agreement . Thomas Moore shall have
executed a subordination agreement (the “ Subordination
Agreement ”) in substantially the form attached
hereto as Exhibit D .
(f)
Moore Agreement . The Company and Thomas Moore
shall have entered into an amendment of that certain promissory
note in the principal amount of Nine Hundred and Fifty
Thousand Dollars ($950,000) issued by the Company in favor of
Thomas Moore, such that the maturity date for that obligation shall
be extended until the earlier of (1) January 1, 2010 or (2) the
closing of a Qualified Equity Financing (as defined in the Note)
which results in gross proceeds of at least six million dollars
($6,000,000) to the Company (the “ Moore
Agreement ”).
4.2
Condition’s to the Company’s Obligations
. The obligation of the Company to sell and issue a Note
at the applicable Closing is subject to the fulfillment, to the
Company’s reasonable satisfaction, prior to or at the Closing
in question, of each of the following conditions:
(a)
Representations and Warranties . The
representations and warranties of the Investor contained in this
Agreement (other than Section 6.2 and 6.3) shall be true and
correct in all material respects on the date hereof and on and as
of the Closing Date as if made on and as of such
date. The representations of the Investor contained in
Sections 6.2 and 6.3 shall be true and correct in all respects on
the date hereof and on and as of the Closing Date as if made on and
as of such date.
(b)
Purchase Price . At the Closing, the Investor
shall have tendered to the Company the Purchase Price.
(c)
Deliverables . At the Closing, the Investor shall
have tendered to the Company the appropriate deliverables set forth
herein.
(d)
No Actions . No action, proceeding,
investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental
agency or authority or legislative body to enjoin, restrain,
prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated by
this Agreement.
(e)
Proceedings and Documents . All proceedings in
connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be
satisfactory in substance and form to the Company and
the Company shall have received all such counterpart originals or
certified or other copies of such documents as the Company may
reasonably request.
(f)
Subordination Agreement . The Investor and Thomas
Moore shall have executed the Subordination Agreement.
(g)
Moore Agreement . The Company and Thomas Moore
shall have executed the Moore Agreement.
5.
Representations and Warranties of the Company
. The Company hereby represents and warrants to Investor
that:
5.1
Organization, Good Standing and Qualification
. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its
business or properties.
5.2
Capitalization and Voting Rights . The authorized
capital of the Company as of the date hereof consists
of:
(a)
Preferred Stock . 5,000,000 shares of Preferred
Stock, par value $0.001 per share (the “ Preferred
Stock ”), of which none are presently issued and
outstanding.
(b)
Common Stock . 500,000,000 shares of common
stock, par value $0.001 per share (“ Common
Stock ”), of which 112,338,244 shares were issued and
outstanding as of March 11, 2009.
5.3
Authorization . All corporate action on the part
of the Company, its officers, directors and stockholders necessary
for the authorization, execution and delivery of this Agreement,
the Security Agreement, the Warrant and the performance of all
obligations of the Company hereunder and thereunder, and the
authorization (or reservation for issuance), sale and issuance of
the Notes and the Warrants, and the Common Stock into which the
Notes and Warrants are convertible or exercisable (the “
Underlying Securities ” and together with the
Notes and the Warrants, the “ Securities
”), have been taken on or prior to the date
hereof.
5.4
Valid Issuance of the Underlying Securities . The
Underlying Securities when issued and delivered in accordance with
the terms of this Agreement, the Notes and the Warrants, as
applicable, for the consideration expressed herein and therein,
will be duly and validly issued, fully paid and nonassessable and
will be free of restrictions on transfer, other than restrictions
on transfer under this Agreement and under applicable state and
federal securities laws.
5.5
Offering . Subject to the truth and accuracy of
each Investor’s representations set forth in Section 5 of
this Agreement, the offer and issuance of the Notes and Warrants,
together with the Underlying Securities, as contemplated by this
Agreement are exempt from the registration requirements of the
Securities Act of 1933, as amended (the “ 1933
Act ”) and the qualification or registration
requirements of state securities laws or other applicable blue sky
laws. Neither the Company nor any authorized agent
acting on its behalf will take any action hereafter that would
cause the loss of such exemptions.
5.6
Public Reports . The Company is current in its
filing obligations under the Securities Act of 1934, as amended
(the “ 1934 Act ”), including without
limitation as to its filings of Annual Reports on Form 10-K (or
10-KSB, as applicable) and Quarterly Reports on Form 10-Q (or
10-QSB, as applicable)(collectively, the “ Public
Reports ”). The Public Reports do not
contain any untrue statement of a material fact or omit to state
any fact necessary to make any statement therein not
misleading. The financial statements included within the
Public Reports for the fiscal year ended October 31, 2007, for the
fiscal year ended October 31, 2008, and for each quarterly period
thereafter (the “ Financial Statements ”)
have been prepared in accordance with generally accepted accounting
principles (“ GAAP ”) applied on a
consistent basis throughout the periods indicated and with each
other, except that unaudited Financial Statements may not contain
all footnotes required by generally accepted accounting
principles. The Financial Statements fairly present, in
all material respects, the financial condition and operating
results of the Company as of the dates, and for the periods,
indicated therein, subject in the case of unaudited Financial
Statements to normal year-end audit adjustments.
5.7
Compliance With Laws . The Company has not
violated any law or any governmental regulation or requirement
which violation has had or would reasonably be expected to have a
material adverse effect on its business, and the Company has not
received written notice of any such violation.
5.8
Violations . The consummation of the transactions
contemplated by this Agreement and all other documents and
instruments required to be delivered in connection herewith and
therewith, including without limitation, the Security Agreement,
the Notes and Warrants, will not result in or constitute any of the
following: (a) a violation of any provision of the
certificate of incorporation, bylaws or other governing documents
of the Company; (b) a violation of any provisions of any applicable
law or of any writ or decree of any court or governmental
instrumentality; (c) a default or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of
a lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, or other agreement,
instrument, or arrangement to which the Company is a party or by
which the Company or its property is bound; (d) an event that would
permit any party to terminate any agreement or to accelerate the
maturity of any indebtedness or other obligation of the Company; or
(e) the creation or imposition of any lien, pledge, option,
security agreement, equity, claim, charge, encumbrance or other
restriction or limitation on the capital stock or on any of the
properties or assets of the Company.
5.9
Consents; Waivers . No consent, waiver, approval
or authority of any nature, or other formal action, by any person,
firm or corporation, or any agency, bureau or department of any
government or any subdivision thereof, not already obtained, is
required in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the
transactions provided for herein and therein.
5.10
Acknowledgment Regarding Investor’s Purchase of
Securities . The Company acknowledges and agrees that each
Investor is acting solely in the capacity of arm’s length
purchaser with respect to the this Agreement, the Security
Agreement, the Note, the Warrant and the other documents entered
into in connection herewith (collectively, the “
Transaction Documents ”) and the transactions
contemplated hereby and thereby and that no Investor is (i) an
officer or director of the Company, (ii) an “affiliate”
of the Company (as defined in Rule 144) or (iii) to the knowledge
of the Company, a “beneficial owner” of more than 10%
of the shares of Common Stock (as defined for purposes of Rule
13d-3 of the 1934 Act). The Company further acknowledges that no
Investor is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated hereby and
thereby, and any advice given by a Investor or any of its
representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is
merely incidental to such Investor’s purchase of the
Securities. The Company further represents to each
Investor that the Company’s decision to enter into the
Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives.
5.11
Sarbanes-Oxley Act . The Company is in compliance with any
and all applicable requirements of the Sarbanes-Oxley Act of 2002
that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the Securities and
Exchange Commission thereunder that are effective as of the date
hereof.
5.12
Absence of Litigation . There is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or
affecting the Company, the Common Stock or any of the
Company’s officers or directors in their capacities as
such.
6.
Representations and Warranties of the Investors
. Each Investor hereby represents, warrants and
covenants, severally and not jointly, that:
6.1
Authorization . Such Investor has full power and
authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated
h
