UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 22, 2021
ADVAXIS,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-36138
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02-0563870
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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9
Deer Park Drive, Suite K-1,
Monmouth
Junction, New Jersey
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08852
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (609) 452-9813
(Former
name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
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☒
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
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Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
stock, par value $0.001 per share
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ADXS
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Nasdaq
Capital Market
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Preferred
Stock Purchase Rights
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-
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Nasdaq
Capital Market
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Indicate
by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
8.01 Other Events
As
previously disclosed on its Current Report on Form 8-K filed on April 10, 2020, Advaxis, Inc. (“Advaxis” or the “Company”)
received written notice from the staff (the “Staff”) of the Listing Qualifications Department of The Nasdaq Stock Market
(“Nasdaq”) indicating that Advaxis was not in compliance with Nasdaq Listing Rule 5450(a)(1) because the closing bid price
for Advaxis’ common stock had closed below $1.00 per share for the previous 30 consecutive business days (the “bid-price
requirement”). As also disclosed on its Current Report on Form 8-K filed on June 25, 2020, Advaxis received a letter (“New
Notice”) from the Staff of the Nasdaq on April 17, 2020 indicating that, due to extraordinary market conditions, Nasdaq has tolled
the compliance period for the bid-price requirement. In accordance with the April 17, 2020 notice from Nasdaq, Advaxis had until December
21, 2020 to regain compliance with the bid price requirement.
As
of December 21, 2020, Advaxis was yet to be in compliance with the bid-price requirement as discussed above. On December 22, 2020, Advaxis
received notification from Nasdaq that its application to transfer the listing of its common stock from the Nasdaq Global Select Market
to the Nasdaq Capital Market had been approved. Advaxis’s securities were transferred to the Nasdaq Capital Market at the opening
of business on December 24, 2020, and it will have an additional 180 days, or until June 21, 2021, to regain compliance with the bid-price
requirement.
On
June 22, 2021, Advaxis received notification from Nasdaq that the Company had not regained compliance with the bid-price requirement.
The notification indicated that the Company’s common stock would be subject to delisting unless the Company timely requests a hearing
before a Nasdaq Hearing Panel (“Panel”). The Company timely requested a hearing and the hearing was held on July 29, 2021.
On
August 11, 2021, Advaxis issued a press release announcing that it had received a letter indicating that following the Company’s
hearing before the Panel, the Panel determined to grant the Company an extension through November 22, 2021, to evidence compliance with
Nasdaq’s $1.00 Minimum Bid Price Rule and complete its previously announced merger transaction (the “Merger”) with
Biosight, Ltd. (“Biosight”). Pursuant to the Nasdaq Listing Rules, the combined company will be required to meet all applicable
initial listing requirements upon the closing of the merger, including the $4 per share price requirement as disclosed on its Current
Report on Form 8-K filed on August 11, 2021.
On
November 22, 2021, Advaxis issued a press release announcing that it has received a letter on November 19, 2021 indicating that the Panel
had granted an extension to the original November 22, 2021 deadline to demonstrate compliance for Nasdaq listing standards. The extension
is subject to the condition that on or before December 20, 2021, Advaxis will have completed its business combination and satisfied all
Nasdaq initial listing requirements. A copy of the press release is attached hereto as Exhibit 99.1.
Forward-Looking
Statements
Certain
of the statements made in this Form 8-K are forward looking for purposes of the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995, including, but not limited to, those relating to the Merger and the completion thereof. In some cases, you can identify
these statements by forward-looking words such as “may,” “will,” “continue,” “anticipate,”
“intend,” “could,” “project,” “expect” or the negative or plural of these words or similar
expressions. Forward-looking statements are not guarantees of future performance and are subject to risks and uncertainties that could
cause actual results and events to differ materially from those anticipated, including, but not limited to, the risk that the proposed
transaction may not be completed in a timely manner or at all, which may adversely affect the Company’s business and the price
of the common stock of the Company; the failure of either party to satisfy any of the conditions to the consummation of the proposed
transaction, including the adoption of the Merger Agreement by the Company’s stockholders and the receipt of certain governmental
and regulatory approvals; uncertainties as to the timing of the consummation of the proposed transaction; the occurrence of any event,
change or other circumstance that could give rise to the termination of the Merger Agreement; the effect of the announcement or pendency
of the proposed transaction on the Company’s business relationships, operating results and business generally; risks that the proposed
transaction disrupts current plans and operations and the potential difficulties in employee retention as a result of the proposed transaction;
risks related to diverting management’s attention from the Company’s ongoing business operations; the outcome of any legal
proceedings that may be instituted against the Company related to the Merger Agreement or the proposed transaction; unexpected costs,
charges or expenses resulting from the proposed transaction; the Company’s history of net operating losses and uncertainty regarding
its ability to achieve profitability; the Company’s ability to develop and commercialize product candidates; the Company’s
ability to use and expand technology platforms to build a pipeline of product candidates; the Company’s ability to obtain and maintain
regulatory approval of product candidates; the Company’s ability to operate in a competitive industry and compete successfully
against competitors that have greater resources; the Company’s reliance on third parties; the Company’s ability to obtain
and adequately protect intellectual property rights for product candidates; and the effects of COVID-19 on clinical programs and business
operations. The Company’s discusses many of these risks in greater detail under the heading “Risk Factors” contained
in quarterly report on Form 10-Q for the quarter ended July 31, 2021, filed with the SEC on September 10, 2021, the registration statement
on Form S-4 filed by the Company, the proxy statement of the Company with respect to the vote of its stockholders to approve the transactions,
and its other filings with the SEC. Any forward-looking statements in this Form 8-K speak only as of the date of this Form 8-K. However,
while the Company and Biosight may elect to update these forward-looking statements at some point in the future, the Company and Biosight
specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing the Company’s
and Biosight’s assessments as of any date subsequent to the date of this Form 8-K. Accordingly, undue reliance should not be placed
upon the forward-looking statements.
Additional
Information
This
Current Report on Form 8-K may be deemed to be solicitation material in respect of the proposed transaction. In connection with the proposed
transaction, the Company filed with the Securities and Exchange Commission (“SEC”) a registration statement on Form S-4,
declared effective on October 20, 2021, that includes a document that serves as a prospectus of the Company and a proxy statement of
the Company (the “proxy statement/prospectus/information statement”), and the Company has filed and may hereafter file other
documents regarding the proposed transaction with the SEC. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS/INFORMATION
STATEMENT AND ANY OTHER RELEVANT DOCUMENTS THAT HAVE BEEN OR ARE HEREAFTER FILED WITH THE SEC BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT
INFORMATION.
The
proxy statement/prospectus/information statement and other documents relating to the proposed transaction can be obtained free of charge
from the SEC’s website or from the Company. The documents filed by the Company with the SEC may be obtained free of charge at the
Company’s website at www.advaxis.com or at the SEC’s website at www.sec.gov. These documents may also be obtained free of
charge from the Company by contacting the Company’s external Investor Relations firm, LifeSci Advisors, LLC, at tim@lifesciadvisors.com.
This
document shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of
securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements
of the Securities Act of 1933, as amended.
Participants
in the Solicitation
The
Company and its respective directors and executive officers and other members of management and employees may be deemed to be participants
in the solicitation of proxies in respect of the Merger. Information about the directors and executive officers of the Company is available
in the Company’s Form 10-K/A filed with the SEC on February 26, 2021. Other information regarding the participants in the proxy
solicitation and a description of their direct and indirect interests, by security holdings or otherwise, are contained in the proxy
statement/prospectus/information statement and other relevant materials to be filed with the SEC regarding the Merger when they become
available. Investors should read the proxy statement/prospectus/information statement carefully when it becomes available before making
any voting or investment decisions. You may obtain free copies of these documents from the Company as indicated above.
Item
9.01 Exhibits.
(d)
Exhibits
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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November
22, 2021
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ADVAXIS,
INC.
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By:
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/s/
Kenneth A. Berlin
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Name:
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Kenneth
A. Berlin
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Title:
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President
and Chief Executive Officer, Interim Chief Financial Officer
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