REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into by and among ADVAXIS, INC., a Colorado corporation (the "COMPANY"),
and the investors and other persons and entities signatory hereto (each a
"INVESTOR" and collectively, the "INVESTORS"), as of November 12, 2004.
This Agreement is made pursuant to and in connection with the
Securities Purchase Agreement, dated as of the date herewith among the Company
and certain of the Investors (the "PURCHASE AGREEMENT").
The Company and the Investors hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the respective meanings set forth in this Section 1:
"EFFECTIVE DATE" means the date that a Registration Statement filed
pursuant to Section 2(a) is first declared effective by the SEC.
"EFFECTIVENESS DATE" means: with respect to any Registration
Statement required to be filed to cover the resale by the Holders of the
Registrable Securities, the earlier of: (a) the 60th day following the
applicable Filing Date; provided, that, if the SEC reviews and has written
comments to the filed Registration Statement that would require the filing of a
pre-effective amendment thereto with the SEC, then the Effectiveness Date under
this clause (a)(i) shall be the 90th day following the applicable Filing Date,
and (b) the fifth Trading Day following the date on which the Company is
notified by the SEC that any such Registration Statement will not be reviewed or
is no longer subject to further review and comments
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FILING DATE" means (a) with respect to the initial Registration
Statement required to be filed to cover the resale by the Holders of the
Registrable Securities, the later of (i) the 30th day following the Initial
Closing Date (as defined in the Purchase Agreement); (ii) the 5th day following
the last Subsequent Closing (as defined in the Purchase Agreement) and (iii) the
5th day following the date referred to in Section 6.1(a)(iii) of the Purchase
Agreement, and (b) with respect to any additional Registration Statements that
may be required pursuant to Section 2(a), the 30th day following the date on
which the Company first knows, or reasonably should have known, that such
additional Registration Statement is required under such Section.
"HOLDER" or "HOLDERS" means the holder or holders, as the case may
be, from time to time of Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
5(c).
"LOSSES" shall have the meaning set forth in Section 5(a).
"PENALTY SHARES" SHALL have the meaning set forth in Section 2(b).
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in a Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"REGISTRABLE SECURITIES" means (a) the shares of Common Stock issued
or issuable to the Investors pursuant to the Purchase Agreement, (b) shares of
Common Stock issued or issuable upon exercise of the Warrants issued to the
Investors pursuant to the Purchase Agreement, (c) shares of Common Stock issued
to Sunrise Securities Corp. ("SUNRISE"), and/or its designee(s), (d) shares of
Common Stock issued or issuable upon exercise of warrants issued to Sunrise
and/or its designee(s), (e) shares of Common Stock issued or issuable to the
Persons identified on Schedule A attached hereto, (f) shares of Common Stock
issued or issuable upon exercise of warrants issued to the Persons identified on
Schedule A attached hereto, (g) Penalty Shares, and (h) all shares of Common
stock issued or issuable in respect of the shares referred to in subsection (a)
through (g) above by virtue of any stock split, stock dividend, recapitalization
or similar event.
"REGISTRATION STATEMENT" means the initial registration statement
required to be filed in accordance with Section 2(a) and any additional
registration statement(s) required to be filed under Section 2(b), including (in
each case) the Prospectus, amendments and supplements to such registration
statements or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statements.
"RULE 144" means Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
"RULE 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
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"RULE 424" means Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
2. Registration.
(a) On or prior to the applicable Filing Date, the Company shall
prepare and file with the SEC a Registration Statement covering the resale of
all Registrable Securities not already covered by an existing and effective
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415. If for any reason the SEC does not permit all of the Registrable
Securities to be included in such Registration Statement, then the Company shall
prepare and file with the SEC a separate Registration Statement with respect to
any such Registrable Securities not included in the initial Registration
Statement, as expeditiously as possible, but in no event later than the
applicable Filing Date. The Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the SEC upon a
review of such Registration Statement) the "Plan of Distribution" attached
hereto as Annex A. The Company shall cause each such Registration Statement to
be declared effective under the Securities Act as soon as possible but, in any
event, no later than the Effectiveness Date, and shall use its best efforts to
keep each such Registration Statement effective under the Securities Act until
the date which is three years after the Effectiveness Date for such Registration
Statement, or such earlier date as of which all of the Registrable Securities
registered for resale thereunder have been sold (the "EFFECTIVENESS PERIOD").
(b) If: a Registration Statement is not declared effective by the
SEC on or prior to its required Effectiveness Date, (any such failure or breach
being referred to as an "EVENT," and, the date on which such Event occurs,
"EVENT DATE"), then, in addition to any other rights available to the Holders
under this Agreement or under applicable law, until the applicable Event is
cured, with respect to each 30-day period, following such Event Date the Company
shall on the last business day of each 30-day period, issue to each Holder
shares of Common Stock as follows: (i) with respect to Holders who or which were
party to the Purchase Agreement and purchased Registrable Securities thereunder,
the Company shall issue to each such Holder such number of shares of Common
Stock as shall equal 2% of such Holder's Investment Amount under the Purchase
Agreement based on the per Share Purchase Price and (ii) with respect to Sunrise
and/or its designee(s), the Company shall issue to each such Holder such number
of shares of Common Stock as shall equal 2% of such Holder's Deemed Investment
Amount. As used herein, the term "Deemed Investment Amount" shall mean, with
respect to a particular Holder, the amount equal to the product of (A) the
number of Registrable Securities held by such Holder (other than Penalty
Shares), and (B) an amount equal to the Per Share Purchase Price. Any shares
issued to Holders under this Section 2(b) shall be referred to as "PENALTY
SHARES."
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(c) The Company shall not, prior to the Effective Date of the
initial Registration Statement filed under Section 2(a), prepare and file with
the SEC a registration statement relating to an offering for its own account or
the account of others (other than as contemplated in this Agreement) under the
Securities Act of any of its equity securities.
(d) Unless otherwise agreed to by Holders of no less than 50.1% of
the Registrable Securities, neither the Company nor any of its securities
holders (other than the Holders) may include securities of the Company in any
Registration Statement filed pursuant to Section 2(a) other than the Registrable
Securities, and that Company shall not after the date hereof enter into any
agreement in contravention of the foregoing.
(e) If at any time during the Effectiveness Period, there is not one
or more Registration Statements covering the resale of all Registrable
Securities and the Company shall determine to prepare and file with the SEC a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than of Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Holder written notice of such
determination and if, within 15 Trading Days after receipt of such notice any
such Holder shall so request in writing, the Company shall include in such
registration statement the Registrable Securities requested by the Holders to be
so included.
3. Registration Procedures
In connection with the Company's registration obligations hereunder,
the Company shall:
(a) Not less than five Trading Days prior to the filing of a
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall furnish to the Holders copies of the "Selling
Stockholders" section of such document, the "Plan of Distribution," any risk
factor contained in such document that addresses specifically this transaction
or the Selling Stockholders, as proposed to be filed which documents will be
subject to the review and comment of such Holders, together with a Selling
Holder Questionnaire (as defined below) and instructions to complete and return
the same to the Company within the time frame prescribed by Section 3(j). The
Company shall not file a Registration Statement or any such Prospectus or any
amendments or supplements thereto that does not contain the disclosure
containing such Holder as a "Selling Stockholder" as provided to the Company by
such Holder in connection therewith.
(b) (i) Prepare and file with the SEC pre- or post-effective
amendments to each Registration Statement and the Prospectus used in connection
therewith to include Registrable Securities issued to Investors pursuant to the
Purchase Agreement in a Subsequent Closing (as defined in the Purchase
Agreement); (ii) prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable Registrable Securities for
its Effectiveness Period and prepare and file with the SEC such additional
Registration Statements in order to register for resale under the Securities Act
all of the Registrable Securities; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably possible to any comments received from the SEC with
respect to each Registration Statement or any amendment thereto and, as promptly
as reasonably possible provide the Holders true and complete copies of all
correspondence from and to the SEC relating to such Registration Statement that
would not result in the disclosure to the Holders of material and non-public
information concerning the Company; and (iv) comply in all material respects
with the provisions of the Securities Act and the Exchange Act with respect to
the Registration Statements and the disposition of all Registrable Securities
covered by each Registration Statement.
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(c) Notify the Holders as promptly as reasonably possible (and, in
the case of (i)(A) below, not less than three Trading Days prior to such filing)
and (if requested by any such Person) confirm such notice in writing no later
than one Trading Day following the day: (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration Statement is
proposed to be filed; (B) when the SEC notifies the Company whether there will
be a "review" of such Registration Statement and whenever the SEC comments in
writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the Holders
that pertain to the Holders as a Selling Stockholder or to the Plan of
Distribution, but not information which the Company believes would constitute
material and non-public information); and (C) with respect to each Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement covering
any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and (v) of the
occurrence of any event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such Registration
Statement or the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto and all exhibits
to the extent requested by such Person (including those previously furnished)
promptly after the filing of such documents with the SEC.
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(f) Promptly deliver to each Holder, without charge, as many copies
of each Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request. The
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of all jurisdictions within the United States, to
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statements.
(h) Cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to the Registration Statements, which certificates
shall be free, to the extent permitted by the Purchase Agreement, of all
restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the affected Registration Statements or
a supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(j) Each Holder agrees to furnish to the Company a completed
Questionnaire in the form attached to this Agreement as Annex B (a "SELLING
HOLDER QUESTIONNAIRE"). The Company shall not be required to include in a
Registration Statement the Registrable Securities of a Holder and shall not be
required to pay any damages under Section 2(c) hereof to such Holder who fails
to furnish to the Company a fully completed Selling Holder Questionnaire at
least two Trading Days prior to the Filing Date (subject to the requirements set
forth in Section 3(a)).
(k) In the time and manner required by each Trading Market, (i)
prepare and file with such Trading Market an additional shares listing
application covering all the Registrable Securities, (ii) take all steps
necessary to cause such Registrable Securities to be approved for listing on
each Trading Market as soon as possible thereafter, (iii) if requested by any
Holder, provide to such Holder evidence of such listing and (iv) maintain the
listing of all such Registrable Securities on each such Trading Market.
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(l) Cooperate with any due diligence investigation undertaken by the
Holders in connection with the sale of the Registrable Securities, including,
without limitation, by making available any documents and information; provided,
that the Company will not deliver or make available to any Holder material,
nonpublic information unless such Holder specifically requests in writing to
receive such material, nonpublic information.
(m) Comply with all applicable rules and regulations of the SEC.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any Trading Market on which the Common Stock is then
listed for trading, and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, (vi) fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions
contemplated by this Agreement, and (vii) listing fees to be paid by the Company
to any Trading Market. In addition, the Company shall be responsible for all of
its internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. Notwithstanding the foregoing, the
fees and expenses shall not include underwriting discounts and selling fees
applicable to the sale.
5. Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, investment advisors, partners,
members, managers, stockholders, trustees and employees of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents, partners, members, managers, stockholders, trustees and employees of
each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and reasonable
attorneys' fees) and expenses (collectively, "LOSSES"), as incurred, arising out
of or relating to (i) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
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prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading or (ii) any violation or alleged violation by the Company of the
Securities Act, the Securities and Exchange Act of 1934, as amended, state
("blue sky") securities laws or any rule or regulation promulgated thereunder
and relating to action or inaction required of the Company in connection with
any such Registration Statement, Prospectus, amendment or supplement, except to
the extent, but only to the extent, that (A) such untrue statements or omissions
are based solely upon information regarding such Holder furnished in writing to
the Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto
(it being understood that the Holder has approved Annex A hereto for this
purpose) or (B) in the case of an occurrence of an event of the type specified
in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder of
Advice or an amended or supplemented Prospectus, but only if and to the extent
that following the receipt of Advice or the amended or supplemented Prospectus
the misstatement or omission giving rise to such Loss would have been corrected.
The Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon: (x) such Holder's failure
to comply with the prospectus delivery requirements of the Securities Act or (y)
any untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent that, (i) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement (it being understood that the Holder has approved
Annex A hereto for this purpose), such Prospectus or such form of Prospectus or
in any amendment or supplement thereto or (ii) in the case of an occurrence of
an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to the
receipt by such Holder of Advice or an amended or supplemented Prospectus, but
only if and to the extent that following the receipt of Advice or the amended or
supplemented Prospectus the misstatement or omission giving rise to such Loss
would have been corrected. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
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(c) Conduct of Indemnification Proceedings. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify the Person
from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with defense thereof; provided, that
the failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement requires only the payment of cash or other consideration by the
Indemnifying Party on behalf of the Indemnified Party and includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten Trading
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
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(d) Contribution. If a claim for indemnification under Section 5(a)
or 5(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
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(b) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as applicable to
it in connection with sales of Registrable Securities pursuant to the
Registration Statement.
(c) Discontinued Disposition. Each Holder agrees that, upon receipt
of a notice from the Company of the occurrence of any event of the kind
described in Section 3(c)(ii) - (v), such Holder will forthwith discontinue
disposition of such Registrable Securities under the Registration Statement
until such Holder's receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing ("ADVICE") by
the Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(d) Amendments and Waivers. No provision of this Agreement may be
waived or amended except in a written instrument signed by the Company and the
Holders of no less than 50.1% of the outstanding Registrable Securities. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
(e) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via confirmed
facsimile at the facsimile telephone number specified in this Section prior to
4:00 p.m. (New York City time) on a Trading Day, (ii) the Trading Day after the
date of transmission, if such notice or communication is delivered via confirmed
facsimile at the facsimile telephone number specified in this Agreement later
than 4:00 p.m. (New York City time) on any date and earlier than 11:59 p.m. (New
York City time) on such date, (iii) the Trading Day following the date of
mailing, if sent by nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as follows:
If to the Company: Advaxis, Inc.
212 Carnegie Center
Suite 206
Princeton, New Jersey 08540
Attn: J. Todd Derbin
If to the Company: Reitler Brown & Rosenblatt LLC
800 Third Avenue
21st Floor
New York, New York 10022
Attn: Gary Schonwald
11
If to an Investor: To the address set forth under such Investor's
name on the signature pages hereto.
If to any other Person who is then the registered Holder:
To the address of such Holder as it appears in the
stock transfer books of the Company
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
each Holder. Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Purchase Agreement.
(g) Execution and Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(h) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof. Each
party agrees that all Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective Affiliates, employees or agents) may be
commenced non-exclusively in the state and federal courts sitting in the City of
New York, Borough of Manhattan, (the "NEW YORK COURTS"). Each party hereto
hereby irrevocably submits to the non-exclusive jurisdiction of the New York
Courts 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 Proceeding, any claim that
it is not personally subject to the jurisdiction of any New York Court, or that
such Proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for 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
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IF EITHER
PARTY SHALL COMMENCE A PROCEEDING TO ENFORCE ANY PROVISIONS OF THIS AGREEMENT,
THEN THE PREVAILING PARTY IN SUCH PROCEEDING SHALL BE REIMBURSED BY THE OTHER
PARTY FOR ITS ATTORNEY'S FEES AND OTHER COSTS AND EXPENSES INCURRED WITH THE
INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH PROCEEDING.
12
(i) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) Independent Nature of Investors' Obligations and Rights. The
obligations of each Investor hereunder is several and not joint with the
obligations of any other Investor hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. The decision of each Investor to acquire Registrable
Securities pursuant to the Transaction Documents has been made independently of
any other Investor. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Investor pursuant
hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each
Investor acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and that no Investor
will be acting as agent of such Investor in connection with monitoring its
investment in the Securities or enforcing its rights under the Transaction
Documents. Each Investor shall be entitled to protect and enforce its rights,
including without limitation the rights arising out of this Agreement, and it
shall not be necessary for any other Investor to be joined as an additional
party in any Proceeding for such purpose.
(m) Further Assurances. Each party agrees to execute such other
documents, instruments, agreements and consents, and take such other actions as
may be reasonable requested by the other parties hereto to effectuate the
purposes of this Agreement.
(n) Entire Agreement. This Agreement and the Purchase Agreement,
together with the Exhibit, Annexes and Schedules hereto and thereto, contain the
entire understanding of the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.
13
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SIGNATURE PAGES TO FOLLOW]
14
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
ADVAXIS, INC.
By:
----------------------------------------
Name: J. Todd Derbin
Title: Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTOR TO FOLLOW]
15
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
INVESTOR
INDIVIDUAL:
--------------------------------------
Name:
NON-INDIVIDUAL:
--------------------------------------
Name of Entity
By:
-----------------------------------
Name:
Title:
ADDRESS*:
--------------------------------------
--------------------------------------
--------------------------------------
Attention:
----------------------------
Facsimile:
----------------------------
* INDIVIDUALS SHOULD LIST THEIR PRIMARY RESIDENCE; COMPANIES AND OTHER
NON-NATURAL PERSONS SHOULD LIST THEIR PRINCIPAL PLACE OF BUSINESS
16
Annex A
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits Investors;
o block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
o an exchange distribution in accordance with the rules of the applicable
exchange;
o privately negotiated transactions;
o short sales (other than short sales established prior to the effectiveness
of the Registration Statement to which this Prospectus is a part)
o broker-dealers may agree with the Selling Stockholders to sell a specified
number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security
interest in some or all of the Registrable Securities owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell shares of Common Stock from time to time under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
17
Upon the Company being notified in writing by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer for the sale
of Common Stock through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer, a supplement to
this prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a donee
or pledge intends to sell more than 500 shares of Common Stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.
The Selling Stockholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling Stockholders has
represented and warranted to the Company that it does not have any agreement or
understanding, directly or indirectly, with any person to distribute the Common
Stock.
The Company is required to pay all fees and expenses incident to the
registration of the shares. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
18
Schedule A
Open Ventures, LLC
University of Pennsylvania
Yvonne Paterson
Crestwood, LLC
Flamm Family Partners LP
James Patton
Roni Appel
William Kahn
Trinita LLC
Richard Yelovich
Charles Kwon
Tracy Yun
Thomas McKearn
Carmel Ventures, Inc.
Gene Mancino
Lilian Flamm
Marilyn Mendell
J. Todd Derbin
Scott Flamm
Jonas Grossman
Kerry Propper
19
Annex B
SELLING HOLDER QUESTIONNAIRE
A. GENERAL INFORMATION
1. Name:
Date:
2. Principal Office:
Address:
Telephone:
Telecopy:
B. BENEFICIAL OWNERSHIP OF EQUITY SECURITIES OF THE COMPANY
3. As of the date hereof:
(a) you,
(b) your spouse,*
(c) your minor children,*
(d) any other relative of yours or of your spouse who shares your
home (if applicable, please name each such relative),*
(e) any affiliate of yours, or
(f) any other associate of yours (if applicable, please name each
such associate)
owned beneficially, directly or indirectly, the following equity
securities of the Company and any subsidiary of the Company:
- --------
* Please refer to the definitions of beneficial ownership in Appendix A
regarding the views of the Securities and Exchange Commission and some courts
with respect to securities held by family members.
20
Number of Shares
Beneficially
Owned
Person Common Stock Warrants Stock Options
TOTAL:
4. Does any person other than you have the power to vote any of the
preceding shares, or the power to dispose of such shares, or does any person
share either of those powers with you?
If so, please describe.
C. TRANSACTIONS AND RELATIONSHIPS WITH THE COMPANY
5. The following describes any transaction within the past three years or
any proposed transaction to which the Company or any subsidiary was, is or is to
be a party (whether or not in the ordinary course of business) and in which
(a) you,
(b) any of your immediate family members,
(c) any firm, corporation, or other entity in which you or any of
your immediate family members had, have or will have a
position or relationship,
(d) any affiliate of yours, or
(e) any associate of yours
had, have or will have any direct or indirect interest:
21
6. Have you had, or propose to have, any position, office or other
relationship in the past three years with the Company, any subsidiary, or any
predecessor of the Company?
If so, please describe:
D. AFFILIATION WITH BROKER DEALERS
7. Are you a member of the NASD, an affiliate of a member, a person
associated with a member, an associated person of a member or do you have any
association or other affiliation through share ownership or otherwise with a
member of the NASD?
If so, please describe:
* * *
The statements supplied by the undersigned in this questionnaire are true,
complete and correct to the best knowledge of the undersigned after reasonable
inquiry as of the date hereof. The undersigned hereby confirms that he or it has
not entered into any arrangement with an agent or broker-dealer for the sale of
the securities held by the undersigned. The undersigned agrees promptly to
notify Gary Schonwald of Reitler Brown & Rosenblatt LLC, outside counsel to the
Company (212/209-3050), or J. Todd Derbin at the Company (609/497-7555), if any
event of which the undersigned becomes aware should occur between now and the
termination of the distribution of securities pursuant to the resales
contemplated by the Registration Statement that would cause the answer to any
question to change or cause the Registration Statement or any amendment to
contain a misrepresentation or omission of a material fact relating to the
undersigned.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
22
APPENDIX A
Affiliate - An "affiliate" of a specified person is a person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by or
is under common control with the person specified. For these purposes, "control"
(including the terms "controlling," "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
Associate - The term "associate" with respect to a person means (a) any
corporation or organization (except the Company and its Subsidiaries) of which a
person is an officer or partner, or of which such person is, directly or
indirectly, the owner beneficially of 10% or more of any class of equity
security and (b) any trust or other estate in which a person has a beneficial
interest or as to which such person serves as trustee or in a similar fiduciary
capacity.
Beneficially - The term "beneficially" as applied to an interest in securities
describes any interest in the securities in question which entitles a person to
any of the rights or benefits of ownership, even though such person is not the
holder or owner of record. Interests in securities held in an estate, trust or
partnership, or by a nominee, are examples of beneficial interests.
If a person has any contract, understanding, relationship, agreement or
other arrangement with any other person with respect to securities, pursuant to
which such first person obtains benefits substantially equivalent to the
ownership of securities, that person should consider such securities as
"beneficially owned" by it. For purposes of this questionnaire, a person will be
regarded as having benefits substantially equivalent to ownership of securities
if:
(a) directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise such person has or shares
(i) voting power, which includes the power to vote, or to direct
the voting of, the security; and/or
(ii) investment power, which includes the power to dispose of, or
to direct the disposition of, the security;
(b) such person has the right to acquire beneficial ownership of the
security, within 60 days, including, but not limited to, any right
to acquire
(i) through the exercise of any option, warrant or right;
(ii) through the conversion of a security;
(iii) pursuant to a power to revoke a trust, discretionary account
or similar arrangement; or
(iv) pursuant to the automatic termination of a trust,
discretionary account or similar arrangement; or
(c) such person can apply income from the securities to meet expenses
which such person otherwise would meet from other sources.
23
A person is also considered to be the beneficial owner of a security if
such person, directly or indirectly, creates or uses a trust, proxy, power of
attorney, pooling arrangement or any other contract, arrangement or device with
the purpose or effect of divesting such person of beneficial ownership of such
security or preventing the vesting of such beneficial ownership as part of a
plan or scheme to evade the reporting requirements of Section 13(d) or 13(g) of
the Securities Exchange Act.
If a person has any reason to believe that any interest such person has in
securities, however remote, might be described as a beneficial interest, such
interest should be described.
The Securities and Exchange Commission has taken the view, with which some
courts have agreed, that a person may be regarded as the beneficial owner of
securities held in the name of his spouse, minor children or other relatives of
his or his spouse who shares his home, if such relationship results in such
person obtaining benefits substantially equivalent to ownership of such
securities. We will assume, however, that you do not consider that you
beneficially own any securities you list in answer to Question 3 and 4 as being
owned by such persons. If you do consider that you are the beneficial owner of
such securities, please list them as being owned by you.
Conflict of interest - Presumed to exist when: (a) a member and/or its
associated persons, parent or affiliates in the aggregate beneficially own 10%
or more of the outstanding subordinated debt of a company; (b) a member and/or
its associated persons, parent or affiliates in the aggregate beneficially own
10% or more of the common equity of a company which is a corporation, or
beneficially own a general limited or special partnership interest in 10% or
more of the distributable profits or losses of a company; or (c) a member and/or
its associated persons, parent or affiliates in the aggregate beneficially own
10% or more of the preferred equity of a company.
Immediate Family Member - The term "immediate family member" includes a person's
spouse, parents, children, siblings, mothers and fathers-in-law, sons and
daughters-in-law, and brothers and sisters-in-law.
Issuer - The issuer of the securities offered to the public, any selling
security holder offering securities to the public, any affiliate of the issuer
or selling security holder, and the officers or general partners, directors,
employees and security holders thereof.
Member - any individual, partnership, corporation or other legal entity that is
a broker or dealer admitted to membership in the NASD.
An entity is deemed to have participated in a public offering where such entity
participates in the preparation of the offering or other documents, participates
in the distribution of the offering on an underwritten, non-underwritten, or any
other basis, furnishes customer and/or broker lists for solicitation, or
participates in an advisory or consulting capacity to the issuer related to the
offering.
Person - The term "person" refers both to natural persons as well as to business
entities such as corporations, partnerships, limited liability companies,
associations, joint stock companies, business trusts and unincorporated
organizations.
24
Person associated with a member or associated person of a member - Every sole
proprietor, general or limited partner, officer, director or branch manager of
any member, or any natural person occupying a similar status or performing
similar functions, or any natural person engaged in the investment banking or
securities business who is directly or indirectly controlling or controlled by
such member (for example, any employee), whether or not any such person is
registered or exempt from registration with the NASD. Thus, person associated
with a member or associated person of a member includes a sole proprietor,
general or limited partner, officer, director or branch manager of an
organization of any kind (whether a corporation, partnership or other business
entity) which itself is either a member or a person associated with a member or
associated person of a member. In addition, an organization of any kind is a
person associated with a member or associated person of a member if its sole
proprietor or any one of its general or limited partners, officers, directors or
branch managers is a member, person associated with a member or associated
person of a member.
Underwriter or related person - Underwriters, underwriter's counsel, financial
consultants and advisors, finders, members of the selling or distribution group,
any member (2) participating in the public offering and any and all other
persons associated with or related to, and members of the Immediate Family of,
any of such persons.
25