NOTE PURCHASE AGREEMENT
Exhibit
10.1
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 Xxxxxxxxx Xxxxxxx, LLP, The
MetLife Building, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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. Closing
Conditions.
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. Xxxxxx
Xxxxx shall have executed a subordination agreement (the “Subordination
Agreement”) in substantially the form attached hereto as Exhibit
D.
(f) Xxxxx
Agreement. The
Company and Xxxxxx Xxxxx 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 Xxxxxx Xxxxx, 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 “Xxxxx
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:
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(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 Xxxxxx Xxxxx shall have executed the Subordination
Agreement.
(g) Xxxxx
Agreement. The
Company and Xxxxxx Xxxxx shall have executed the Xxxxx 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.
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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.
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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 Xxxxxxxx-Xxxxx
Act. The
Company is in compliance with any and all applicable requirements of the
Xxxxxxxx-Xxxxx 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:
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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 hereby
and has taken all action necessary to authorize the execution and delivery of
this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
6.2 No Public Sale or
Distribution. Such
Investor is (i) acquiring the Notes and the Warrants and (ii) upon conversion of
the Notes and exercise of the Warrants (other than pursuant to a Cashless
Exercise (as defined in the Warrants)) will acquire the Underlying Securities
for its own account, not as a nominee or agent, and not with a view towards, or
for resale in connection with, the public sale or distribution of any part
thereof, except pursuant to sales registered or exempted under the 1933
Act. Such Investor is acquiring the Securities hereunder in the
ordinary course of its business. Such Investor does not presently
have any contract, agreement, undertaking, arrangement or understanding,
directly or indirectly, with any individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof (a “Person”)
to sell, transfer, pledge, assign or otherwise distribute any of the
Securities.
6.3 Accredited Investor Status;
Investment Experience. Such
Investor is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D. Such Investor can bear the economic risk of its investment in the
Securities, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Securities.
6.4 Reliance on
Exemptions. Such
Investor understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and such Investor’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
such Investor set forth herein in order to determine the availability of such
exemptions and the eligibility of such Investor to acquire the
Securities.
6.5 Information. Such
Investor and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested by
such Investor. Such Investor and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Neither such inquiries nor any
other due diligence investigations conducted by such Investor or its advisors,
if any, or its representatives shall modify, amend or affect such Investor’s
right to rely on the Company’s representations and warranties contained herein.
Such Investor understands that its investment in the Securities involves a high
degree of risk. Such Investor has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Securities. Such Investor is relying solely on
its own accounting, legal and tax advisors, and not on any statements of the
Company or any of its agents or representatives, for such accounting, legal and
tax advice with respect to its acquisition of the Securities and the
transactions contemplated by this Agreement.
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6.6 No Governmental
Review. Such
Investor understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
6.7 Transfer or
Resale. Such
Investor understands that: (i) the Securities have not been and are not being
registered under the 1933 Act or any state securities or “blue sky” laws, the
Securities constitute “restricted securities” as such term is defined in Rule
144(a)(3) under the 1933 Act, and the Securities may not be offered for sale,
sold, transferred, assigned, pledged or otherwise distributed unless (A)
subsequently registered thereunder, (B) such Investor shall have delivered to
the Company an opinion of counsel, in a form generally acceptable to the
Company’s legal counsel, to the effect that such Securities to be sold, assigned
or transferred may be sold, assigned or transferred pursuant to an exemption
from such registration, or (C) such Investor provides the Company and its legal
counsel with reasonable assurance that such Securities can be sold, assigned or
transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act (or
a successor rule thereto) (collectively, “Rule
144”); (ii) any sale of the Securities made in reliance on Rule 144 may
be made only in accordance with the terms of Rule 144 and further, if Rule 144
is not applicable, any resale of the Securities under circumstances in which the
seller (or the Person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the
SEC thereunder; and (iii) neither the Company nor any other Person is under any
obligation to register the Securities under the 1933 Act or any state securities
laws or to comply with the terms and conditions of any exemption
thereunder.
6.8 Legends. Such
Investor understands that the certificates or other instruments representing the
Notes and the Warrants and, the stock certificates representing the Underlying
Securities, except as set forth below, shall bear any legends as required by
applicable state securities or “blue sky” laws in addition to a restrictive
legend in substantially the following form (and a stop-transfer order may be
placed against transfer of such stock certificates):
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE [CONVERTIBLE] [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, IN A FORM GENERALLY ACCEPTABLE TO THE COMPANY’S LEGAL COUNSEL, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT.
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The
Company shall use its reasonable best efforts to cause its transfer agent to
remove the legend set forth above and to issue a certificate without such legend
to the holder of the Securities upon which it is stamped, or to issue to such
holder by electronic delivery at the applicable balance account at the
Depository Trust Company, unless otherwise required by state securities or “blue
sky” laws, at such time as (i) such Securities are registered for resale under
the 1933 Act, (ii) in connection with a sale, assignment or other transfer, such
holder provides the Company with an opinion of counsel, in a form generally
acceptable to the Company’s legal counsel, to the effect that such sale,
assignment or transfer of the Securities may be made without registration under
the 1933 Act, or (iii) such holder provides the Company and its legal counsel
with reasonable assurance in writing that the Securities can be sold, assigned
or transferred pursuant to Rule 144 or Rule 144A.
6.9 Validity; Enforcement; No
Conflicts. This
Agreement and each Transaction Document to which such Investor is a party have
been duly and validly authorized, executed and delivered on behalf of such
Investor and shall constitute the legal, valid and binding obligations of such
Investor enforceable against such Investor in accordance with their respective
terms, except as such enforceability may be limited by general principles of
equity or to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and remedies. The
execution, delivery and performance by such Investor of this Agreement and each
Transaction Document to which such Investor is a party and the consummation by
such Investor of the transactions contemplated hereby and thereby will not (i)
result in a violation of the organizational documents of such Investor or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Investor is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities or “blue sky” laws) applicable to such Investor,
except in the case of clause (ii) above, for such conflicts, defaults or rights
which would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the ability of such Investor to perform its
obligations hereunder.
6.10 Residency. Such
Investor is a resident of that jurisdiction specified below its address on the
Schedule of Investors.
7. Use of Proceeds; Repayment
of Deferred Compensation to Xxxxx. Each
Investor acknowledges that the Company will use the proceeds received from the
purchase of the Notes and Warrants for, among other things, (i) costs and
expenses relating to the Company’s Phase II Clinical Studies in cervical cancer
and CIN, (ii) costs and expenses relating to the sale of the Notes and Warrants
(iii) costs and expenses relating to obtaining one or more follow-on financings
and (iv) general working capital purposes. Each Investor acknowledges
that the Company owes Xxxxxx Xxxxx approximately one hundred eighty five
thousand six hundred ninety two dollars and thirty four cents ($185,692.34) in
deferred salary and that the Company intends to pay the deferred salary out of
the proceeds of the offering as follows: (a) in the event that the sale of the
Notes and Warrants results in total gross proceeds of at least one million
dollars ($1,000,000), then the Company shall pay Xxxxx one hundred thousand
dollars ($100,000) in deferred salary, (b) in the event that the sale of the
Notes and Warrants results in total gross proceeds of at least one million five
hundred thousand dollars ($1,500,000), then the Company shall pay Xxxxx an
additional fifty thousand dollars ($50,000), for a total of one hundred and
fifty thousand dollars ($150,000) in deferred salary, and (c) in the event that
the sale of the Notes and Warrants results in gross proceeds of at least two
million dollars ($2,000,000), then the Company shall pay Xxxxx an additional
thirty five thousand six hundred ninety two dollars and thirty four cents, for a
total of one hundred eighty five thousand six hundred ninety two dollars and
thirty four cents ($185,692.34) in deferred salary.
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8. Rule 144
Availability. At
all times during the period commencing on the six (6) month anniversary of the
Closing Date and ending at such time that all of the Securities can be sold
without the requirement to be in compliance with Rule 144(c)(1) and otherwise
without restriction or limitation pursuant to Rule 144, 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).
9. Collateral
Agent.
9.1 Appointment. In
the event that there shall be more than one Investor who executes this
Agreement, then the Company may designate a collateral agent hereunder and under
the Security Agreement (in such capacity, the “Collateral
Agent”), and, in such case, each Investor hereby authorizes the
Collateral Agent (and its officers, directors, employees and agents) to take
such action on such Investor’s behalf in accordance with the terms hereof and
thereof. The Collateral Agent shall not have, by reason hereof or the
Security Agreement, a fiduciary relationship in respect of any Investor. Neither
the Collateral Agent nor any of its officers, directors, employees and agents
shall have any liability to any Investor for any action taken or omitted to be
taken in connection hereof or the Security Agreement except to the extent caused
by its own gross negligence or willful misconduct, and each Investor agrees to
defend, protect, indemnify and hold harmless the Collateral Agent and all of its
officers, directors, employees and agents (collectively, the “Indemnitees”)
from and against any losses, damages, liabilities, obligations, penalties,
actions, judgments, suits, fees, costs and expenses (including, without
limitation, reasonable attorneys’ fees, costs and expenses) incurred by such
Indemnitee, whether direct, indirect or consequential, arising from or in
connection with the performance by such Indemnitee of the duties and obligations
of Collateral Agent pursuant hereto or the Security Agreement.
9.2 Reliance. The
Collateral Agent shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents or any telephone message believed by it
in good faith to be genuine and correct and to have been signed, sent or made by
the proper person, and with respect to all matters pertaining to this Agreement
or any of the other Transaction Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it.
9.3 Resignation. The
Collateral Agent may resign from the performance of all its functions and duties
hereunder and under the Notes and the Agreement at any time by giving at least
ten (10) Business Days prior written notice to the Company and each holder
of the Notes. Such resignation shall take effect upon the acceptance by a
successor Collateral Agent of appointment as provided below. Upon any such
notice of resignation, the holders of a majority of the outstanding principal
under the Notes shall appoint a successor Collateral Agent. Upon the acceptance
of the appointment as Collateral Agent, such successor Collateral Agent shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement, the Notes and
the Security Agreement. After any Collateral Agent’s resignation hereunder, the
provisions of this Section 9.11 shall inure to its benefit. If a successor
Collateral Agent shall not have been so appointed within said ten
(10) Business Day period, the retiring Collateral Agent shall then appoint
a successor Collateral Agent who shall serve until such time, if any, as the
holders of a majority of the outstanding principal under the Notes appoint a
successor Collateral Agent as provided above.
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10. Indemnification.
10.1 Indemnification by the
Company. The
Company agrees to indemnify, hold harmless, reimburse and defend each Investor,
and its officers, directors, agents, affiliates, members, managers, control
persons, and principal shareholders, against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of any
nature, incurred by or imposed upon the Investor or any such person which
results, arises out of or is based upon (i) any material misrepresentation by
Company or breach of any representation or warranty by Company in this Agreement
or in any exhibits or schedules attached hereto, or other agreement delivered
pursuant hereto; or (ii) after any applicable notice and/or cure periods, any
breach or default in performance by the Company of any covenant or undertaking
to be performed by the Company hereunder, or any other agreement entered into by
the Company and Investor relating hereto. Notwithstanding anything
herein to the contrary, in no event shall the Company be liable to the Investors
(in the aggregate) for more than the Purchase Price paid by the
Investors.
10.2 Indemnification by the
Investor. Each
Investor, severally but not jointly, agrees to indemnify, hold harmless,
reimburse and defend the Company, each other Investor, and any of their
officers, directors, agents, affiliates, members, managers, control persons, and
principal shareholders, against any claim, cost, expense, liability, obligation,
loss or damage (including reasonable legal fees) of any nature, incurred by or
imposed upon the Investor or any such person which results, arises out of or is
based upon (i) any material misrepresentation by the Investor or breach of any
representation or warranty by the Investor in this Agreement or in any exhibits
or schedules attached hereto, or other agreement delivered pursuant hereto; or
(ii) after any applicable notice and/or cure periods, any breach or default in
performance by the Company of any covenant or undertaking to be performed by the
Investor hereunder, or any other agreement entered into by the Company and the
Investor relating hereto.
11. Miscellaneous
11.1 Successors and
Assigns. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of the
Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
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11.2 Governing Law; Jurisdiction;
Jury Trial. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of
New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
11.3 Titles and
Subtitles. The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
11.4 Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient; if not, then on the next business day, (c) five
(5) business days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to
(a) in the case of the Company to Advaxis, Inc., Technology Centre of New
Jersey, 000 Xx. 0, Xxxxx X000, Xxxxx Xxxxxxxxx, X.X. 00000, Attention: Chief
Executive Officer, with a copy (which shall not constitute notice) to Xxxxxxxxx
Xxxxxxx, LLP, The MetLife Building, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxxx, Esq.; Fax#: (000) 000-0000 or (b) in the case of the
Investor, to the address as set forth on the signature page or exhibit pages
hereof or, in either case, at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
11.5 Finder’s
Fees. Except
for fees payable by the Company to persons designated by the Company, each party
represents that it neither is nor will be obligated for any finders’ fee or
commission in connection with this transaction. Each Investor,
severally and not jointly, shall indemnify and hold harmless the Company from
any liability for any commission or compensation in the nature of a finders’ fee
(and the costs and expenses of defending against such liability or asserted
liability) for which Investor or any of its officers, partners, employees or
representatives is responsible. The Company shall indemnify and hold
harmless each Investor from any liability for any commission or compensation in
the nature of a finders’ fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
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11.6 Amendments and
Waivers. Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investor. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon Investor, each future holder of the
Securities and the Company, provided that no such amendment shall be binding on
a holder that does not consent thereto to the extent such amendment treats such
party differently than any party that does consent thereto.
11.7 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
11.8 Entire
Agreement. This
Agreement and the documents referred to herein constitute the entire agreement
among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
11.9 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
11.10 Interpretation. Unless
the context of this Agreement clearly requires otherwise, (a) references to the
plural include the singular, the singular the plural, the part the whole, (b)
references to any gender include all genders, (c) “including” has the inclusive
meaning frequently identified with the phrase “but not limited to” and (d)
references to “hereunder” or “herein” relate to this Agreement.
[SIGNATURES
ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed and delivered as of the
date provided above.
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THE COMPANY
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By:
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Name:
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Title:
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INVESTOR:
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[______________________]
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By:
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Name:
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Title:
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Address
for Notices:
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Fax#:
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Tax
ID#:
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Schedule
A
Investors
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Name and
Address of
Purchaser
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Aggregate
Purchase Price
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Issue Price of
Note
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Principal
Amount of Note
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Number of
Warrant Shares
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EXHIBIT
A
Form
of Convertible Promissory Note
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EXHIBIT
B
Form
of Warrant
16
EXHIBIT
C
Form
of Security Agreement
17
EXHIBIT
C
Form
of Subordination Agreement
18
