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Item
1.01
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Entry
into a Material Definitive Agreement.
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Registered
Direct Offering
On
April 12, 2021, Advaxis, Inc., a Delaware corporation (the “Company”) entered into a securities purchase agreement
(the “Purchase Agreement”) with certain investors. The Purchase Agreement provides for the sale and issuance by the
Company of an aggregate of 17,577,400 shares (the “Shares”) of the Company’s common stock, $0.001 par
value (the “Common Stock”), at an offering price of $0.7921 per Share and 7,671,937 pre-funded warrants
to certain purchasers whose purchase of additional Shares would otherwise result in the purchaser, together with its affiliates
and certain related parties, beneficially owning more than 9.99% of the Company’s outstanding Common Stock immediately
following the consummation of the offering (the “Pre-Funded Warrants”). The Shares and Pre-Funded Warrants
are being sold together with warrants to purchase up to 11,244,135 shares of Common Stock (the “Accompanying
Warrants” and together with the Shares and the Pre-Funded Warrants, the “Securities”). The Pre-Funded Warrants
are being sold for a purchase price of $0.7911 per share and will have an exercise price of $0.001 per share. The
Pre-Funded Warrants are immediately exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised
in full. Each Accompanying Warrant has an exercise price per share of $0.70, will be exercisable immediately and will expire on
the fifth anniversary of the original issuance date.
The
Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification
obligations of the Company, other obligations of the parties and termination provisions.
On
April 12, 2021, the Company also entered into a placement agent agreement (the “Placement Agent Agreement”) with A.G.P./Alliance
Global Partners (the “Placement Agent”). Pursuant to the terms of the Placement Agent Agreement, the Placement Agent agreed
to use its reasonable best efforts to arrange for the sale of the Securities and the Private Placement Warrants (as defined below).
The Company will pay the Placement Agent a cash fee equal to 6.5% of the gross proceeds generated from the sale of the Shares and Pre-Funded
Warrants, excluding gross proceeds of any sale of Shares or Pre-Funded Warrants to Lincoln Park Capital Fund, LLC, and will reimburse
the Placement Agent for certain of its expenses in an amount not to exceed $50,000.
The
Placement Agent Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company and the Placement Agent, including for liabilities under the Securities Act of 1933, as amended,
other obligations of the parties and termination provisions.
Pursuant
to the Purchase Agreement and the Placement Agent Agreement, the Company has agreed that (i) it will not conduct any issuances of Common
Stock for a period of 60 days following closing of the offering and that (ii) it will not conduct any sales of Common Stock under its
at-the-market facility or under its existing equity line with Lincoln Park Capital Fund, LLC, in each case for a period of 90 days following
the closing of the offering. However, if the Company files a registration statement with the Securities and Exchange Commission (the
“SEC”) with respect to the Private Placement Warrants (as defined below) and the shares of Common Stock issuable upon the
exercise of such Private Placement Warrants, then such restrictions will expire on the date that is 30 days following the effectiveness
of such registration statement (if such date is otherwise earlier than the expiration of the restrictions described above).
The
issuance and sale of the Shares, the Pre-Funded Warrants and the Accompanying Warrants (the “Registered Offering”) will be
made pursuant to a Registration Statement (No. 333-226988) on Form S-3, which was filed by the Company with the SEC on August 23, 2018,
and declared effective on August 30, 2018, as supplemented by a prospectus supplement dated April 12, 2021.
Private
Placement
The Purchase Agreement
also provides for a concurrent private placement (the “Private Placement”) of 14,005,202 warrants to purchase
the Company’s Common Stock (the “Private Placement Warrants”) with the purchasers in the Registered Offering.
The Private Placement Warrants will be exercisable for an aggregate of 14,005,202 shares of Common Stock at any time on
or after such date, if ever, that is fourteen (14) days after the Company files an amendment (the “Authorized Shares
Amendment”) to the Company’s Amended and Restated Certificate of Incorporation to increase the number of authorized
shares of Common Stock, $0.001 par value per share from 170,000,000 shares to 300,000,000 shares with the Delaware Secretary of
State and on or prior to the date that is five years after such date. The Private Placement Warrants will have an exercise price
of $0.70 per share.
The
Company has agreed to use commercially reasonable best efforts to file a registration statement on Form S-3 (or other appropriate form)
providing for the resale by the purchasers of the Private Placement Warrants and the shares of Common Stock issuable upon exercise of
the Private Placement Warrants as soon as practicable (and in any event within 60 calendar days) of the such date, if ever, that the
Company file the Authorized Shares Amendment.
Investor
Agreement
In
connection with the Registered Offering and Private Placement, on April 12, 2021, the Company entered into an investor agreement (the
“Investor Agreement”) with the Placement Agent and the investors in the Registered Offering and Private Placement. Pursuant
to the Investor Agreement, any investor that purchases Securities in the offering, as a condition to such purchase, agrees to vote the
shares of the Company’s Common Stock that such purchaser owns or controls on the record date of the Company’s 2021 annual
meeting of stockholders (or any postponement, adjournment or reconvening thereof) (the “2021 Annual Meeting”) in a manner
that is consistent with the recommendations of the Company’s Board of Directors on each proposal being presented for stockholder
vote at the 2021 Annual Meeting. The record date for the 2021 Annual Meeting is April 15, 2021.
In
addition, the Investor Agreement also provides that the purchasers in the Registered Offering will be restricted from selling any shares
of the Company’s Common Stock purchased in the Registered Offering through April 15, 2021.
The
Placement Agent Agreement, Purchase Agreement, the Form of Investor Agreement, form of Pre-Funded Warrant, form of Accompanying
Warrant, and form of Private Placement Warrant are filed as Exhibits 1.1, 10.1, 10.2, 4.1, 4.2 and 4.3, respectively, to this Current
Report on Form 8-K and are incorporated herein by reference. The above descriptions of the terms of the Placement Agent Agreement, Purchase
Agreement, the Investor Agreement, form of Pre-Funded Warrant, form of Accompanying Warrant, and form of Private Placement Warrant are
qualified in their entirety by reference to such exhibits.