ADVAXIS, INC. NOTE PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
NOTE
PURCHASE AGREEMENT
(this “Agreement”)
is
made as of the 22 day of September, 2008, by and between Advaxis, Inc., a
Delaware corporation (the “Company”),
and
Xxxxxx X. Xxxxx, an individual (the “Investor”).
Recitals
The
Investor is the Chief Executive Officer and a member of the Board of Directors
of the Company.
The
Company desires to issue and sell, and the Investor desires to purchase, upon
the Company’s demand upon 10 business days’ notice, one or more senior
promissory notes with an aggregate principal amount of up to eight hundred
thousand dollars ($800,000.00) in substantially the form attached to this
Agreement as Exhibit
4.1
(each, a
“Note”).
The
Company and the Investor desire that, upon the consummation of a future equity
financing by the Company, the Company issue to the Investor warrants to purchase
the Company’s common stock as described herein.
The
Company and the Investor desire to set forth certain agreements and certain
terms and conditions regarding the sale and purchase of the Notes.
Agreement
NOW,
THEREFORE,
in
consideration of the foregoing premises, the respective representations,
warranties and covenants contained herein, and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
1. PURCHASE
AND SALE OF THE NOTES.
1.1 Purchase
and Sale of the Notes.
Subject
to the terms and conditions of this Agreement and in reliance on the
representations and warranties set forth in this Agreement, following the
delivery by the Company to the Investor of a written notice (each, a
“Demand
Notice”)
in
accordance with Section 6.7, the Company agrees to issue, sell and deliver
to
the Investor at the Closing (as defined below), and the Investor agrees to
purchase from the Company at the Closing, a Note in the principal amount set
forth in the Demand Notice. The Company shall be entitled to deliver one or
more
Demand Notices to the Investor for an aggregate principal amount of no more
than
eight hundred thousand dollars ($800,000.00).
1.2 Closing.
The
closing and funding of the purchase and sale of each Note (each, a “Closing”)
shall
take place at the offices of Xxxxxxxxx Traurig, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 no more than ten (10) business days following the date of each
Demand Notice as determined in accordance with Section 6.7, or at such other
time and place as the Company and the Investor mutually agree upon in
writing.
2. WARRANTS.
In
consideration of the Investor’s agreement to purchase Notes, the Company agrees
that, concurrently with the consummation of the Company’s next equity financing
resulting in gross proceeds to the Company of at least $5,000,000, the Company
shall issue to the Investor a warrant to purchase the Company’s common stock
(the “Warrant”).
The
Warrant shall entitle the Investor to purchase a number of shares of the
Company’s common stock equal to one share per $1.00 invested by the Investor in
the purchase of one or more Notes, which share amount shall be subject to
appropriate adjustment for stock splits, stock dividends and similar events.
The
Warrant shall otherwise be on the same terms, including but not limited to
exercise price, mechanics of execution and registration rights, applicable
to
warrants issued to the new investors in such equity financing. In the event
that
such equity financing does not involve the issuance of warrants, then the
Warrant shall have an exercise price equal to the effective purchase price
per
share paid by investors in such equity financing, and the Investor shall receive
registration rights with respect to shares of the Company’s common stock
underlying the Warrant on the same terms as securities purchased by such
investors.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
As
of
each Closing, the Company hereby represents and warrants to the Investor as
follows:
3.1 Organization
and Standing.
The
Company is a corporation duly organized and validly existing under, and by
virtue of, the laws of the State of Delaware and is in good standing under
such
laws. The Company has requisite corporate power and authority to own and operate
its properties and assets, and to carry on its business as presently conducted.
The Company is duly qualified to do business in each jurisdiction in which
the
failure to be so qualified would have a material adverse effect on the Company’s
business.
3.2 Corporate
Power.
The
Company has all requisite legal and corporate power and authority to execute
and
deliver this Agreement and each Note to be dated the date of each Closing
(collectively, the “Transaction
Agreements”)
and to
carry out and perform its obligations under the terms of each of the Transaction
Agreements.
3.3 Authorization.
All
corporate action on the part of the Company, its officers and directors
necessary for the authorization, execution, delivery and performance of the
Transaction Agreements and the performance of all obligations of the Company
hereunder and thereunder has been taken or will be taken prior to each Closing.
Each Transaction Agreement, when executed and delivered by the Company, shall
constitute a valid and binding obligation of the Company, enforceable in
accordance with its respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally and as limited
by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies.
3.4 Offering.
Subject
to truth and accuracy of the Investor’s representations in Section
4
hereof,
the offer, sale and issuance of the Notes constitute transactions exempt from
the registration requirements of Section 5 of the Securities Act of 1933,
as amended (the “Securities
Act”),
and
in compliance with applicable state securities laws.
4. REPRESENTATIONS
AND WARRANTIES OF THE INVESTOR.
The
Investor represents and warrants to the Company as of the time of each Closing
as follows:
4.1 Authorization.
This
Agreement, when executed and delivered by the Investor shall constitute a valid
and binding obligation of the Investor, enforceable in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally and as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable
remedies.
4.2 Purchase
Entirely for Own Account.
This
Agreement is made with the Investor in reliance upon the Investor’s
representation to the Company, which by the Investor’s execution of this
Agreement the Investor hereby confirms, that each Note will be acquired for
investment for the Investor’s own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that the
Investor has no present intention of selling, granting any participation in,
or
otherwise distributing the same. By executing this Agreement, the Investor
further represents that the Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person with respect to any
Note.
4.3 Disclosure
of Information.
The
Investor believes he has received all the information he considers necessary
or
appropriate for deciding whether to purchase Notes. The Investor further
represents that he has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Notes
and the business, properties, prospects and financial condition of the
Company.
4.4 Accredited
Investor.
The
Investor is an “accredited investor” within the meaning of Rule 501 of
Regulation D of the Securities Act.
4.5 Restricted
Securities.
The
Investor acknowledges that the Notes may have to be held indefinitely, and
may
not be sold or transferred, unless subsequently registered under the Securities
Act or unless an exemption from such registration is available. The Investor
is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permits limited resale of securities purchased in a private placement subject
to
the satisfaction of certain conditions.
5. LEGENDS.
The
certificates representing each Note shall be endorsed with a legend
substantially as follows:
THIS
SENIOR PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933,
AS AMENDED (THE “SECURITIES
ACT”),
OR
ANY STATE SECURITIES LAW. NO SALE, TRANSFER, PLEDGE OR ASSIGNMENT OF THIS SENIOR
PROMISSORY NOTE SHALL BE VALID OR EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAW, OR (B) SUCH TRANSFER IS
MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAW.
6. MISCELLANEOUS.
6.1 Waivers
and Amendments.
With
the written consent of the Company and the Investor, the obligations of the
Company and the rights of the Investor under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely) or
this
Agreement may be amended. Neither this Agreement nor any provisions hereof
may
be changed, waived, discharged or terminated orally, but only by a signed
statement in writing.
6.2 Governing
Law.
This
agreement shall be governed in all respects by the laws of the State of
Delaware, without regard to conflict of laws rules.
6.3 Survival.
The
representations, warranties, covenants and agreements made herein shall survive
each Closing.
6.4 Titles
and Subtitles.
The
titles of the sections of this Agreement are for convenience of reference only
and are not to be considered in construing this Agreement.
6.5 Assignment.
This
Agreement shall be binding upon the Company, the Investor and their respective
heirs, executors, administrators, assigns and legal
representatives.
6.6 Entire
Agreement.
This
Agreement contains the entire understanding of the parties hereto with respect
to the subject matter hereof, and supersedes all other agreements between or
among any of the parties with respect to the subject matter hereof.
6.7 Notices.
All
notices and other communications required or permitted hereunder shall be in
writing and may be delivered in person or by facsimile, electronic mail, courier
or U.S. mail, in which event it may be mailed by first-class, certified or
registered, postage prepaid, addressed (a) if to the Investor, at the address
set forth on the signature page of this Agreement, or at such other address
as
the Investor shall, from time to time, designate to the Company in writing
or
(b) if to the Company, at such address set forth on the signature page of this
Agreement, or at such other address as the Company shall have furnished to
the
Investor in writing. All such notices and other communications shall be deemed
given upon personal delivery, upon confirmation of facsimile transfer, upon
confirmation of electronic mail transmission, upon delivery by courier or three
business days after deposit in the United States mail. Notwithstanding the
foregoing, all notices and communications to addresses outside the United States
shall be given by facsimile and confirmed in writing sent by overnight or
two-day courier service.
6.8 Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
6.9 Expenses.
The
Company and the Investor shall each bear their own expenses incurred with
respect to this transaction.
6.10 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.
6.11 Telecopy
Execution and Delivery.
A
facsimile, telecopy or other reproduction of this Agreement may be executed
by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto,
all
parties hereto agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month
and
year first set forth above.
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COMPANY:
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By:
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Name:
Xxxx Xxxx
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Title:
Vice President Finance
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Address:
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Technology
Centre of New Jersey
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000
Xx. 0, Xxxxx X000
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Xxxxx
Xxxxxxxxx, X.X. 00000
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Fax:
000-000-0000
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e-mail:xxxx@Xxxxxxx.xxx
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INVESTOR:
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Xxxxxx
X. Xxxxx
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Address:
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Technology
Centre of New Jersey
000
Xx. 0, Xxxxx X000
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Xxxxx
Xxxxxxxxx, X.X. 00000
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Fax:
000-000-0000
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e-mail:
xxxxx@xxxxxxx.xxx
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