SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") is among GREAT
EXPECTATIONS AND ASSOCIATES, INC., a Colorado corporation, which as soon as
possible following the closing of the Share Exchange and Reorganization
Agreement (as defined below) intends to change its name to Advaxis, Inc. (the
"COMPANY"), and the Investors (as defined below) signatory hereto, and dated,
with respect to the Company, as of September 14, 2004 and, with respect to each
Investor, as of such Investor's date of execution set forth on such Investor's
signature page hereto.
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act (as defined below) and Rule
506 promulgated thereunder, the Company desires to issue and sell to each
Investor, and each Investor, severally and not jointly, desires to purchase from
the Company certain securities of the Company, as more fully described in this
Agreement; and
WHEREAS, pursuant to that certain Escrow Agreement, dated as of the date
hereof, among the Company, Continental Stock Transfer & Trust Company (the
"ESCROW AGENT") as escrow agent, and Sunrise Securities Corp. (the "PLACEMENT
AGENT"), all subscriptions for the Company's securities pursuant to this
Agreement will be held in escrow (the "ESCROW") by the Escrow Agent in a
non-interest bearing account entitled "CST&T Advaxis Escrow Account" until
accepted and until the Closing at which such subscription monies will be
delivered as payment for securities purchased hereunder.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Investors agree
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms shall have
the meanings indicated in this Section 1.1:
"ACTION" means any action, claim, suit, inquiry, notice of
violation, proceeding (including any partial proceeding such as a deposition) or
investigation pending or threatened in writing against or affecting the Company,
any Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency, regulatory authority
(federal, state, county, local or foreign), stock market, stock exchange or
trading facility.
"ADVAXIS" means Advaxis, Inc., a Delaware corporation.
"AFFILIATE" means any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144.
"BUSINESS DAY" means any day except Saturday, Sunday and any day
which shall be a federal legal holiday or a day on which banking institutions in
the State of New York are authorized or required by law or other governmental
action to close.
"CLOSING" means the closing of the purchase and sale of the
Securities on the Initial Closing Date or any Subsequent Closing Date pursuant
to Section 2.1.
"CLOSING DATE" shall mean any of the Initial Closing Date or any
Subsequent Closing Date.
"COMBINED COMPANY" means the Company after the closing of the Share
Exchange and Reorganization Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, no par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"COMPANY COUNSEL" means Reitler Xxxxx & Xxxxxxxxxx LLC.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"GXPT" means Great Expectations and Associates, Inc., a Colorado
corporation, prior to the closing of the Share Exchange and Reorganization
Agreement.
"INITIAL CLOSING" means the initial closing of the purchase and sale
of the Securities pursuant to Section 2.1(a).
"INITIAL CLOSING DATE" means the date of the Initial Closing.
"INVESTMENT AMOUNT" means, with respect to each Investor, the
investment amount indicated below such Investor's name on the signature page of
this Agreement.
"INVESTORS" means collectively, each Person who shall subscribe for
Securities hereunder and execute an Investor Counterpart to this Agreement, each
individually being an "Investor".
"LIEN" means any lien, charge, encumbrance, security interest, right
of first refusal or other restrictions of any kind.
"MAJORITY OF INVESTORS" means, at the time of determination,
Investors who have subscribed for or purchased at least 50.1% of the Shares
which have, at such time, been subscribed for and/or purchased, pursuant to this
Agreement.
"PENN" means The Trustees of the University of Pennsylvania.
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"PENN LICENSE" means the License Agreement, effective as of June 17,
2002 between the Company and Penn, as amended.
"PER SHARE PURCHASE PRICE" equals $0.287.
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"PPM" means the private placement offering memorandum dated as of
September 15, 2004, of Units of the Company whereby each Unit consists of 87,108
shares of Common Stock and a Warrant to purchase 87,108 shares of Common Stock
at a price of $25,000 per Unit.
"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.
"REGISTRATION STATEMENT" means a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering the
resale by the Investors of the Shares.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company and the
Investors, in the form of Exhibit A hereto.
"RULE 144" means Rule 144 promulgated by the Commission 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 Commission having
substantially the same effect as such Rule.
"SECURITIES" means the Shares and the Warrants.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARE EXCHANGE AND REORGANIZATION AGREEMENT" means the Share
Exchange and Reorganization Agreement, dated as of August 25, 2004, among the
Company, Advaxis and the shareholders of Advaxis.
"SHARES" means the shares of Common Stock issued or issuable to the
Investors pursuant to this Agreement, including without limitation, the Shares
issuable to the Investors upon exercise of the Warrants.
"SUBSEQUENT CLOSING" means the closing of the purchase and sale of
the Securities pursuant to Section 2.1(b).
"SUBSEQUENT CLOSING DATE" means the date of a Subsequent Closing.
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"SUBSIDIARY" means any "significant subsidiary" of the Company as
defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission under
the Exchange Act.
"TERMINATION DATE" has the meaning set forth in Section 6.1(a)
hereof.
"TRADING DAY" means (i) a day on which the Common Stock is traded on
a Trading Market, or (ii) if the Common Stock is not listed on a Trading Market,
a day on which the Common Stock is traded in the over-the-counter market is
quoted in the over-the-counter market as reported by the National Quotation
Bureau Incorporated (or any similar organization or agency succeeding to its
functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i) or (ii) hereof, then Trading
Day shall mean a Business Day.
"TRADING MARKET" means whichever of the New York Stock Exchange, the
American Stock Exchange, the NASDAQ National Market, the NASDAQ SmallCap Market,
the Over-The-Counter Bulletin Board or the "Pink Sheets" published by the
National Quotation Bureau Incorporated Sheets on which the Common Stock is
listed or quoted for trading on the date in question.
"TRANSACTION DOCUMENTS" means this Agreement, the Registration
Rights Agreement, Warrants and any other documents or agreements executed in
connection with the transactions contemplated hereunder.
"WARRANTS" means the five year warrants to purchase up to an
aggregate of 87,108 shares of Common Stock at exercise price of $0.40 per share
in the form attached hereto as Exhibit B, which Warrants are subject to early
cancellation if the average Closing Prices (as defined in the Warrant) of the
Company's Common Stock for any 30 Trading Days is at least $1.00, the average
daily trading volume of the Common Stock during such 30-Trading Day period is at
least 100,000 shares and a registration statement covering the resale of the
shares of Common Stock issuable upon exercise is then effective.
ARTICLE II.
PURCHASE AND SALE
2.1 Closings.
(a) Initial Closing. Subject to the terms and conditions set forth
in this Agreement, at the initial closing of the sale and purchase of Securities
under this Agreement (the "INITIAL CLOSING") to and by the Investors thereat,
the Company shall issue and sell to each such Investor, and each such Investor
shall, severally and not jointly, purchase from the Company Securities for the
consideration equal to such Investor's Investment Amount. The Initial Closing
shall take place at the offices of Reitler Xxxxx & Xxxxxxxxxx LLC, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at such time that an aggregate of
at least $1,500,000 is held in Escrow for the purchase of Securities (the
"INITIAL CLOSING DATE") or at such other location or time as the Company and the
Placement Agent may agree.
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(b) Subsequent Closings. The subsequent closings of the sale and
purchase of Securities under this Agreement to and by Investors (each, a
"SUBSEQUENT CLOSING" and together with the Initial Closing, the "CLOSINGS" and
each, a "CLOSING"), shall take place at the offices of Reitler Xxxxx &
Xxxxxxxxxx LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 on any
date between the Initial Closing Date and the Termination Date as the Company
and the Placement Agent may mutually agree (each such date is hereinafter
referred to as a "SUBSEQUENT CLOSING DATE") or at such other location or time as
the Company and the Placement Agent may agree. Notwithstanding anything herein
to the contrary, the aggregate Investment Amount of the Investors shall not
exceed $7,000,000 without the prior written consent of the Placement Agent, the
Issuer and a Majority of the Investors; provided, however, the Issuer, in its
sole discretion, shall have the option to increase the Investment Amount to up
to $10,000,000 without the consent of a Majority of the Investors or the
Placement Agent.
2.2 Closing Deliveries. (a) At each Closing, the Company shall deliver or
cause to be delivered to each Investor who or which is purchasing Securities at
such Closing the following:
(i) a stock certificate evidencing such number of Shares as is
equal to such Investor's Investment Amount divided by the Per Share Purchase
Price, registered in the name of such Investor;
(ii) a Warrant to purchase such number of Shares as is equal
to such Investor's Investment Amount divided by the Per Share Purchase Price,
registered in the name of such Investor;
(iii) the legal opinion of Company Counsel, in form and
substance reasonably acceptable to the Placement Agent and its counsel; and
(iv) the Registration Rights Agreement, duly executed by the
Company.
(b) At each Closing, each Investor who or which is purchasing
Securities at such Closing shall deliver or cause to be delivered to the Company
the following:
(i) his, her or its Investment Amount, in United States
dollars and in immediately available funds, by wire transfer to an account
designated in writing by the Company for such purpose; and
(ii) the Registration Rights Agreement, duly executed by such
Investor.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor with respect to GXPT as of the date of
this Agreement and with respect to the Combined Company as of each Closing Date
as follows, except as set forth on the Schedules attached hereto, which
Schedules may be updated (as contemplated by Section 5.1(a)) with respect to the
representations and warranties made by the Company as of any Subsequent Closing,
but which such amendments shall only be applicable to the purchase of Securities
at such Subsequent Closing:
(a) Subsidiaries. The Company has no direct or indirect Subsidiaries
other than those listed in Schedule 3.1(a). Except as disclosed in Schedule
3.1(a), the Company owns, directly or indirectly, all of the capital stock of
each Subsidiary free and clear of any and all Liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights.
(b) Organization and Qualification. Each of the Company and each
Subsidiary is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and each Subsidiary is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not, individually or in the aggregate, have
or reasonably be expected to result in (i) an adverse effect on the legality,
validity or enforceability of any Transaction Document, (ii) a material and
adverse effect on the results of operations, assets, prospects, business or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (iii) an adverse impairment to the Company's ability to perform on a
timely basis its obligations under any Transaction Document (any of (i), (ii) or
(iii), a "MATERIAL ADVERSE EFFECT").
(c) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and its stockholders and no further action is required by
the Company in connection therewith. Each Transaction Document has been (or upon
delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
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(d) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company's or any Subsidiary's certificate or
articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings, Consents and Approvals. Except as set forth in Schedule
3.1(e), the Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than (i) the filing with the Commission of
(A) one or more Registration Statements in accordance with the requirements of
the Registration Rights Agreement and (B) a Notice of Sale of Securities on Form
D within 15 days of the relevant Closing Date, (ii) filings required by state
securities laws, which the Company will promptly, and in any event prior to (A)
the due date prescribed by applicable law and (B) the Effectiveness Date (as
such term is defined in the Registration Rights Agreement) under the
Registration Statement, make (at the sole expense of the Company) in order to
permit the holders of the Securities to resell Shares to Persons in each State
in the U.S.A., and (iii) those that have been made or obtained prior to the date
of this Agreement.
(f) Issuance of the Securities. The Securities have been duly
authorized and, when issued and paid for in accordance with the Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens. The Company has reserved from its duly authorized
capital stock all of the Shares issuable pursuant to this Agreement and pursuant
to the Warrants.
(g) Capitalization.
(i) The number of shares and type of all authorized, issued
and outstanding capital stock, options and other securities of the Company
(whether or not presently convertible into or exchangeable for or exercisable
into shares of capital stock of the Company), and all shares of Common Stock
reserved for issuance under the Company's various option and incentive plans, is
set forth in Schedule 3.1(g). All outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and non-assesable and
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have been issued in compliance with all applicable securities laws. Except as
set forth in Schedule 3.1(g), no securities of the Company are entitled to
preemptive or similar rights, and no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by the Transaction Documents. Except as a result
of the purchase and sale of the Securities and except as disclosed in Schedule
3.1(g), there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exchangeable for, or giving any Person
any right to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
Except as set forth in Schedule 3.1(g), there are no anti-dilution or price
adjustment provisions contained in any security issued by the Company or other
agreement and the issue and sale of the Securities will not, immediately or with
the passage of time, obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Investors) and will not result in
a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities. Except as set forth on Schedule
3.1(g) attached hereto, to the knowledge of the Company, no Person or group of
related Persons beneficially owns (as determined pursuant to Rule 13d-3 under
the Exchange Act) or has the right to acquire, by agreement with or by
obligation binding upon the Company, beneficial ownership of in excess of 5% of
the outstanding Common Stock, ignoring for such purposes any limitation on the
number of shares that may be owned at any one time.
(ii) Immediately following the Closing, the Company's issued
and outstanding shares of capital stock, on a fully diluted basis, shall be
allocated as set forth on Schedule 3.1(g)(ii).
(h) Commission Reports; Financial Statements. The Common Stock of
the Company has been registered under Section 12 of the Exchange Act and the
Company is subject to the periodic reporting requirements of Section 13 of the
Exchange Act. The financial statements of the Company to be provided to the
Investors prior to the relevant Closing comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with U.S. generally
accepted accounting principles applied on a consistent basis during the periods
involved ("GAAP"), except as may be otherwise specified in such financial
statements or the notes thereto, or in the case of unaudited interim financial
statements, to the extent they may exclude footnotes or may be condensed or
summary statements and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. The financial statements referred to in this Section
3.1(h) contain all certifications and statements required by the SEC's Order,
dated June 27, 2002, pursuant to Section 21(a)(1) of the Exchange Act (File No.
4-460), Rule 13a-14 or 15d-14 under the Exchange Act, or 18 U.S.C. Section 1350
(Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002) with respect to the
report relating thereto. The financial statements referred to in this Section
3.1(h) comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission with
respect thereto, have been prepared in accordance with GAAP (except as may be
indicated in the notes thereto or, in the case of unaudited financial
statements, as permitted by the rules and regulations of the Commission) and
fairly present, subject in the case of the unaudited financial statements, to
customary year end audit adjustments, the financial position of the Company as
at the dates thereof and the results of its operations and cash flows.
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(i) Press Releases. The press releases disseminated by the Company
during the two (2) years preceding the date of this Agreement taken as a whole
do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under they they were made, not
misleading.
(j) Material Changes. Since the date of the latest audited financial
statements except as set forth on Schedule 3.1(j) attached hereto, (i) there has
been no event, occurrence or development that has had or that could reasonably
be expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent in
nature and amount with past practice and (B) liabilities not required to be
reflected in the Company's financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock, and (v) the Company has not
issued any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does not have
pending before the Commission any request for confidential treatment of
information.
(k) Litigation. There is no Action which (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or could, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect. Except as set
forth in Schedule 3.1(k) attached hereto, neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of
any Action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. There has not been, and
to the best knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former
director or officer of the Company. The Commission has not issued any stop order
or other order suspending the effectiveness of any registration statement filed
by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(l) Labor Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees of
the Company.
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(m) Compliance. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by
the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in
violation of any order of any court, arbitrator or governmental body, or (iii)
is or has been in violation of any statute, rule or regulation of any
governmental authority, including, without limitation, all foreign, federal,
state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters,
except in each case as could not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect. The Company is in
compliance with the applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002,
as amended, and the rules and regulations thereunder, except where such
noncompliance could not have or reasonably be expected to result in a Material
Adverse Effect.
(n) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in Schedule 3.1(n) attached hereto, except
where the failure to possess such permits would not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse Effect
("MATERIAL PERMITS"), and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any
Material Permit.
(o) Title to Assets. The Company and the Subsidiaries have good and
marketable title to all real property owned by them that is material to their
respective businesses and good and marketable title in all personal property
owned by them that is material to their respective businesses, in each case free
and clear of all Liens, except for Liens as do not materially affect the value
of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and the Subsidiaries. Any real
property and facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases of which the Company
and the Subsidiaries are in compliance, except as could not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
(p) Patents and Trademarks. (i) The PPM accurately describes (i) all
issued Patents and registrations and applications for all Patents, Trademarks
and Copyrights owned by or licensed to the Company or any Subsidiary relating to
Intellectual Property, and (iii) all material contracts, agreements and
arrangements relating to Intellectual Property (whether in writing or oral) to
which the Company or any Subsidiary is a party, by which any of their respective
assets or properties are bound or which are used or useful in the business of
the Company and/or any Subsidiary as currently conducted or as proposed to be
conducted. As used herein, the term "INTELLECTUAL PROPERTY" means (i) all
compounds and inventions (whether patentable or unpatentable and whether or not
reduced to practice) and all improvements thereon, (ii) all patents, patent
applications and patent disclosures, together with all reissuances,
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continuations, continuations-in-part, revisions, extensions and reexaminations
thereof (collectively, "PATENTS"), (iii) all trademarks, service marks, trade
dress, logos, trade names and corporate names (collectively, "TRADEMARKS"),
including all goodwill associated therewith, and all applications, registrations
and renewals in connection therewith, (iv) all copyrightable works, all
copyrights and all applications, registrations and renewals in connection
therewith (collectively, "COPYRIGHTS"), (v) all mask works and all applications,
registrations and renewals in connection therewith, (vi) all trade secrets and
confidential business information (including, without limitation, ideas,
research and development, data, results, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (vii) all computer
software (including data and related documentation) and (viii) all other
proprietary rights.
(ii) The Company or its Subsidiary, as applicable, owns, is
licensed to use, or otherwise has the right to use all Company Intellectual
Property and all such Company Intellectual Property will be owned or available
for use by the Company and/or the Subsidiary, as applicable, following the
relevant Closing. The Company and the Subsidiaries have taken all necessary and
commercially reasonable actions to maintain and protect their material owned or
licensed Company Intellectual Property. As used herein, "COMPANY INTELLECTUAL
PROPERTY" means all Intellectual Property used or held for use by the Company or
any Subsidiary in the conduct of the business of the Company or any Subsidiary
as currently conducted or as proposed to be conducted.
(iii) To the best knowledge of the Company, neither the
Company nor any Subsidiary has infringed upon or misappropriated any
Intellectual Property rights of third parties, and the continued operation of
the Company and the Subsidiaries as currently conducted and as proposed to be
conducted does not infringe upon or misappropriate or otherwise violate any
Intellectual Property rights of third parties. To the Company's best knowledge,
no Person has infringed upon or misappropriated or otherwise violated any
Company Intellectual Property.
(iv) Except as disclosed in the PPM or as set forth on
Schedule 3.1(p) attached hereto, with respect to each item of Company
Intellectual Property: (i) the Company or a Subsidiary possesses all right,
title (if owned) and interest in and to the item, free and clear of any Lien
(other than, in the case of licensed Intellectual Property, restrictions created
by the licenses themselves); (ii) the item of Company Intellectual Property is
not subject to any outstanding order, injunction, judgment, decree or ruling of
any Regulatory Authority (other than the applicable patent and trademark
prosecution protection proceedings themselves); (iii) all of the issued Patents
are valid and enforceable; and (iv) none of the Patents have been abandoned. As
used herein, the term "Regulatory Authority" means any applicable government
regulatory authority, domestic or foreign, involved in granting approvals for
the manufacturing, marketing, reimbursement and/or pricing of any Product of the
Company or any Subsidiary: the term "Product" means preparations in final form
for sale by prescription, over-the-counter or any other method that contains
Compound or one or more active ingredients; the term "Compound" means compound
or compounds described in the PPM as belonging to the Company or any Subsidiary
or claimed by the Company or a Subsidiary in one or more of Patents.
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(v) The rights to all inventions of any of the Company's or
any Subsidiary's employees or consultants, former employees or consultants made
while either not employed or retained by the Company or Subsidiary, as
applicable, which are utilized by the Company in the conduct of the Company's or
any Subsidiary's business as presently conducted or as proposed to be conducted
have been fully assigned or licensed to the Company or the Subsidiary, as
applicable. The rights to all inventions of any of the Company's or any
Subsidiary's employees or consultants, former employees or consultants made
while employed or retained by the Company or any Subsidiary, which are utilized
by the Company in the conduct of the Company's or any Subsidiary's business as
presently conducted or as proposed to be conducted have been fully assigned or
licensed to the Company or the Subsidiary, as applicable.
(q) Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the
Company and the Subsidiaries are engaged. The Company has no reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant increase in cost.
(r) Transactions With Affiliates and Employees. Except as set forth
on Schedule 3.1(r) attached hereto, none of the officers or directors of the
Company and, to the knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
(s) Internal Accounting Controls. The Company is subject to the
periodic reporting requirements of Section 13 of the Exchange Act. Except as set
forth on Schedule 3.1(s), the Company maintains disclosure controls and
procedures required by Rule 13a-15 or 15d-15 under the Exchange Act; such
controls and procedures are effective to ensure that all material information
concerning the Company is made known on a timely basis to the individuals
responsible for the preparation of the Company's financial statements.
(t) Solvency. Following the consummation of the transactions
contemplated hereby, (i) the Company's fair saleable value of its assets in an
orderly liquidation exceeds the amount that will be required to be paid on or in
respect of the Company's existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company's assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof; (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid; and (iv) the Company's total indebtedness shall not
exceed $1,1000,000 (exclusive of approximately $580,000 of notes to be converted
upon the Initial Closing and amounts owing to Penn under the Penn License of up
to $485,000 through December 15, 2007). The Company does not intend to incur
debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt).
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(u) Certain Fees. Except as described in Schedule 3.1(u), no
brokerage or finder's fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement. The Investors shall have no obligation with
respect to any fees or with respect to any claims (other than such fees or
commissions owed by an Investor pursuant to written agreements executed by such
Investor which fees or commissions shall be the sole responsibility of such
Investor) made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by this Agreement.
(v) Certain Registration Matters. Assuming the accuracy of the
Investors' representations and warranties set forth in Section 3.3(b)-(e), no
registration under the Securities Act is required for the offer and sale of the
Securities by the Company to the Investors under the Transaction Documents.
Except for the Registration Rights Agreement and/or as described in Schedule
3.1(v), the Company has not granted or agreed to grant to any Person any rights
(including "piggy-back" registration rights) to have any securities of the
Company registered with the Commission or any other governmental authority that
have not been satisfied.
(w) Listing and Maintenance Requirements. Except as specified on
Schedule 3.1(w) attached hereto, the Company has not, in the two years preceding
the date hereof, received notice from any Trading Market to the effect that the
Company is not in compliance with the listing or maintenance requirements
thereof. The Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with the listing and
maintenance requirements for continued listing of the Common Stock on the
Trading Market on which the Common Stock is currently listed or quoted,
including the applicable eligibility rules thereunder. The issuance and sale of
the Securities under the Transaction Documents does not contravene the rules and
regulations of the Trading Market on which the Common Stock is currently listed
or quoted, and no approval of the shareholders of the Company thereunder is
required for the Company to issue and deliver to the Investors the Securities
contemplated by Transaction Documents.
(x) Investment Company. The Company is not, and is not an Affiliate
of, an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(y) Application of Takeover Protections. There is no control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company's
Certificate of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Investors as a
result of the Investors and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation the Company's issuance of the Securities and the Investors' ownership
of the Securities.
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(z) No Additional Agreements. The Company does not have any
agreement or understanding with any Investor with respect to the transactions
contemplated by the Transaction Documents other than as specified in this
Agreement.
(aa) Private Placement. Neither the Company nor any Person acting on
the Company's behalf has sold or offered to sell or solicited any offer to buy
the Securities by means of any form of general solicitation or advertising.
Other than as set forth on Schedule 3.1(aa) attached hereto, neither the Company
nor any of its Affiliates nor any Person acting on the Company's behalf has,
directly or indirectly, at any time within the past six months, made any offer
or sale of any security or solicitation of any offer to buy any security under
the circumstances that would eliminate the availability of the exemption from
registration under Regulation D under the Securities Act in connection with the
offer and sale of the Securities contemplated hereby.
(bb) Form SB-2 Eligibility. The Company is eligible to register its
Common Stock for resale by the Investors using Form SB-2 promulgated under the
Securities Act.
(cc) Going Concern. Following consummation of the transactions
contemplated hereby (after taking into account the proceeds received by the
Company from the sale of the Securities) the Company has no knowledge or reason
to believe that the Company's independent public accountants will issue an audit
letter containing a "going concern" opinion in connection with the Company's
quarterly report on Form 10-QSB pursuant to Section 13 or 15(d) under the
Exchange Act for the period ended July 31, 2004 or otherwise.
(dd) Foreign Corrupt Practice. Neither the Company no any director,
officer, agent, employee or other person acting on behalf of the Company has, in
the course of his actions for, or on behalf of, the Company used any corporate
funds for any unlawful contribution, gift entertainment or other unlawful
expenses relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate fund; violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
(ee) Share Exchange and Reorganization Agreement. Each of the
representations and warranties of GXPT and Advaxis contained in the Share
Exchange and Reorganization Agreement is true and correct as of the date of such
agreement and (except as modified by the closing of the transactions
contemplated hereby and thereby) as of the relevant Closing.
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(ff) Disclosure. The Company understands and confirms that the
Investors will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. All disclosure provided to the
Investors regarding the Company, its business and the transactions contemplated
hereby, furnished by or on behalf of the Company (including, without limitation,
the Company's representations and warranties set forth in this Agreement and the
disclosure contained in the PPM) are true and correct and do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. No event or circumstance has
occurred or information exists with respect to the Company or any of its
Subsidiaries or its or their business, properties, prospects, operations or
financial conditions, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company which has not been so publicly
announced or disclosed. The Company acknowledges and agrees that no Investor
makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in
Section 3.2.
3.2 Representations and Warranties of the Investors. Each Investor hereby,
for itself and for no other Investor, represents and warrants to the Company as
follows:
(a) Organization; Authority. Such Investor, if an entity, is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the applicable Transaction Documents and otherwise to carry out
its obligations thereunder. Such Investor, if a natural person, has the legal
capacity and has the power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents and otherwise
to carry out his or her obligations thereunder. The execution, delivery and
performance by such Investor, if an entity, of the transactions contemplated by
this Agreement has been duly authorized by all necessary corporate or, if such
Investor is not a corporation, such partnership, limited liability company or
other applicable like action, on the part of such Investor. Each of this
Agreement and the Registration Rights Agreement has been duly executed by such
Investor, and when delivered by such Investor in accordance with terms hereof,
will constitute the valid and legally binding obligation of such Investor,
enforceable against him, her or it in accordance with its terms.
(b) Investment Intent. Such Investor is acquiring the Securities as
principal for its own account for investment purposes only and not with a view
to or for distributing or reselling such Securities or any part thereof, without
prejudice, however, to such Investor's right at all times to sell or otherwise
dispose of all or any part of such Securities in compliance with applicable
federal and state securities laws. Subject to the immediately preceding
sentence, nothing contained herein shall be deemed a representation or warranty
by such Investor to hold the Securities for any period of time. Such Investor
does not have any agreement or understanding, directly or indirectly, with any
Person to distribute any of the Securities.
15
(c) Investor Status/Residence. At the time such Investor was offered
the Securities, he, she or it was, and at the date hereof he, she or it is, an
"accredited investor" as defined in Rule 501(a) under the Securities Act. Such
Investor is not a registered broker-dealer under Section 15 of the Exchange Act.
Each Investor represents that, to the extent that he or she is an individual,
that he or she is a resident of the state set forth opposite his or her name on
signature page, and, to the extent that it is an organizational entity, they it
has been organized under the laws of the state or country set forth opposite its
name on signature page.
(d) General Solicitation. Such Investor is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(e) Access to Information. Such Investor acknowledges that it has
reviewed this Agreement, the Disclosure Schedules and the PPM and has been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the
terms and conditions of the offering of the Securities and the merits and risks
of investing in the Securities; (ii) access to information about the Company and
the Subsidiaries and their respective financial condition, results of
operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of such Investor or its representatives
or counsel shall modify, amend or affect such Investor's right to rely on the
truth, accuracy and completeness of this Agreement, the Disclosure Schedules and
the PPM and the Company's representations and warranties contained in the
Transaction Documents. The Transaction Documents, the Disclosure Schedules and
the PPM supersede any other documents separately provided to the Investor by the
Company or the Placement Agent.
(f) Independent Investment Decision. Such Investor has independently
evaluated the merits of its decision to purchase Securities pursuant to this
Agreement, such decision has been independently made by such Investor and such
Investor confirms that it has only relied on the advice of its own business
and/or legal counsel and not on the advice of any other Investor's business
and/or legal counsel in making such decision.
The Company acknowledges and agrees that each Investor does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Restrictive Legends.
(a) Securities may only be disposed of in compliance with state and
federal securities laws. In connection with any transfer of the Securities other
than pursuant to an effective registration statement, to the Company, to an
Affiliate of an Investor or in connection with a pledge as contemplated in the
legend contained in Section 4.1(b), the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act.
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(b) Certificates evidencing the Securities will contain the
following legend, until such time as they are not required under Section 4.1(c):
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT SECURED BY SUCH SECURITIES.
(c) Certificates evidencing the Shares shall not contain any legend
(including the legend set forth in Section 4.1(b)): (i) while a Registration
Statement covering the resale of such securities is effective under the
Securities Act, or (ii) following a sale of such Securities pursuant to Rule
144, or (iii) while such Securities are eligible for sale under Rule 144(k), or
(iv) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by
the Staff of the Commission) provided in the case of (iv), however, that the
beneficial owner of the Securities is not an Affiliate of the Company. Following
such time as restrictive legends are not required to be placed on certificates
representing Securities, the Company will, not later than five Trading Days
following the delivery by an Investor to the Company or the Company's transfer
agent of a certificate representing such Securities containing a restrictive
legend, deliver or cause to be delivered to such Investor a certificate
representing such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give
instructions to any transfer agent of the Company that enlarge the restrictions
on transfer set forth in this Section.
4.2 Furnishing of Information. As long as any Investor owns the Securities
and the Company is subject thereto, the Company covenants to timely file (or
obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. As long as any Investor owns Securities, if the
Company is not required to file reports pursuant to such laws, it will prepare
and furnish to the Investors and make publicly available in accordance with Rule
144(c) such information as is required for the Investors to sell such Securities
under Rule 144. The Company further covenants that it will take such further
action as any holder of Securities may reasonably request, all to the extent
required from time to time to enable such Person to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144.
17
4.3 Securities Laws Disclosure; Publicity. On the Initial Closing Date,
the Company shall issue a press release reasonably acceptable to a Majority of
the Investors disclosing the transactions contemplated hereby and file with the
Commission a Current Report on Form 8-K (reasonably acceptable to a Majority of
the Investors by written consent or telephonic conference call as the Company
may determine in its sole discretion) disclosing the material terms of the
transactions contemplated hereby. In addition, the Company will make such other
filings and notices in the manner and time required by the Commission and the
Trading Market on which the Common Stock is listed. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Investor, or
include the name of any Investor in any filing with the Commission (other than
the Registration Statement filed pursuant to the Registration Rights Agreement
and any exhibits to filings made in respect of this transaction in accordance
with periodic filing requirements under the Exchange Act) or any regulatory
agency or Trading Market, without the prior written consent of such Investor,
except to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Investors with prior
notice of such disclosure.
4.4 Blue Sky Filings. The Company shall file all applicable federal and
state securities laws filings required in connection with the sale of the
Securities.
4.5 Indemnification of Investors. In addition to the indemnity provided in
the Registration Rights Agreement, the Company will indemnify and hold the
Investors and their respective directors, officers, managers, shareholders,
partners, members, employees and agents (each, an "INVESTOR PARTY") harmless
from any and all losses, liabilities, obligations, claims, contingencies,
damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys' fees and costs of
investigation (collectively, "LOSSES") that any such Investor Party may suffer
or incur as a result of or relating to any misrepresentation, breach or
inaccuracy of any representation, warranty, covenant or agreement made by the
Company in any Transaction Document. In addition to the indemnity contained
herein, the Company will reimburse each Investor Party for its reasonable legal
and other expenses (including the cost of any investigation, preparation and
travel in connection therewith) incurred in connection therewith, as such
expenses are incurred.
4.6 Non-Public Information. The Company covenants and agrees that neither
it nor any other Person acting on its behalf will provide any Investor or its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Investor shall have
executed a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Investor shall be
relying on the foregoing representations in effecting transactions in securities
of the Company.
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4.7 Use of Proceeds. The Company shall use the net proceeds from the sale
of the Securities hereunder as set forth in the PPM; provided, however, the
Company agrees that it shall use no more than $300,000 of the proceeds from the
Initial Closing to satisfy Company indebtedness outstanding as of the Initial
Closing Date (including without limitation a maximum of $178,000 that may be
paid to Penn under the Penn License out of such proceeds).
4.8 Integration. The Company shall not, and shall use its best efforts to
ensure that no Affiliate of the Company shall sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security of the Company
that would be intergrated with the offer or sale of the Securities in a manner
that would require the registration under the Securities Act of the sale of the
Securities to the Investors.
4.9 Reservation of Listing of Securities. The Company shall maintain a
reserve from its duly authorized shares of Common Stock for issuance pursuant to
the Transaction Documents in such amount as may be required to fulfill its
obligations in full under the Transaction Documents. In the event that at any
time the then authorized shares of Common Stock are insufficient for the Company
to satisfy its obligations in full under the Transaction Documents, the Company
shall promptly take such actions as may be required to increase the number of
authorized shares.
4.10 Trading Market. The Company shall use its best efforts to apply, as
soon as practicable, to have the Common Stock (including, without limitation,
the Shares) listed upon the American Stock Exchange or included for quotation on
the Nasdaq National Stock Market.
4.11 Conduct of Business by the Company Pending the Termination Date. The
Company covenants and agrees that, between the date hereof and the Termination
Date, the Company shall not conduct any business or take any action other than
in connection with the maintenance and preservation of its corporate existence,
the compliance with applicable laws (including federal and state securities
laws) or as expressly required or permitted by this Agreement or as contemplated
or required by the Share Exchange and Reorganization Agreement or as disclosed
in the PPM, unless a Majority of the Investors shall otherwise agree by written
consent or by telephonic conference call. By way of amplification and not
limitation, except as expressly permitted by this Agreement or as contemplated
by the Share Exchange and Reorganization Agreement, the Company shall not and
shall not permit or cause any Subsidiary to, between the date hereof and the
Termination Date, directly or indirectly do, or propose to do, any of the
following with the prior written consent of a Majority of the Investors:
(a) amend or otherwise change the Certificate of Incorporation or
By-laws or alter through merger, liquidation, reorganization, restructuring or
in any other fashion the corporate structure or ownership of the Company;
19
(b) issue, sell, transfer, pledge, dispose of or encumber, or
authorize the issuance, sale, transfer, pledge, disposition or encumbrance of,
any shares of capital stock of any class, or any options, warrants, convertible
securities or other rights of any kind to acquire any shares of capital stock,
other than with respect to the incurrence of indebtedness pursuant to the
issuance of convertible promissory notes and the issuance of warrants related
thereto (which convertible promissory notes and warrants shall be exchanged for
Units on the same terms as the Advaxis Notes), or any other ownership interest
of the Company; or sell, transfer, pledge, dispose of or encumber, or authorize
the sale, transfer, pledge, disposition or encumbrance of any assets of the
Company or redeem, purchase or otherwise acquire, directly or indirectly, any of
the capital stock of the Company other than pursuant to a stock option plan
approved by the Company's board of directors or other agreement or arrangement
approved by the Company's board of directors;
(c) declare, set aside or pay any dividend or other distribution
(whether in cash, stock or other securities or property or any combination
thereof, other than the payment in kind of accrued but unpaid dividends to
holders of preferred stock of the Subsidiary prior to the Termination Date) in
respect of any of its capital stock or other equity interests, split, combine or
reclassify any of its capital stock or other securities or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock or amend the terms of, repurchase,
redeem or otherwise acquire any of its securities, or propose to do any of the
foregoing;
(d) sell, transfer, lease, license, sublicense, mortgage, pledge,
dispose of, encumber, grant or otherwise dispose of any material properties or
assets, or amend or modify in any way any existing agreements with respect to
any material properties or assets other than in the ordinary course of business;
(e) purchase, acquire (by merger, consolidation, acquisition of
stock or other securities or assets or otherwise), lease, license, sublicense or
otherwise obtain any interest in any properties or assets other than in the
ordinary course of business and consistent with past practice; incur any
indebtedness for borrowed money or issue any debt securities or assume,
guarantee or endorse or otherwise as an accommodation become responsible for,
the obligations of any Person, or make any loans, advances or enter into any
financial commitments, in each case other than in the ordinary course of
business and consistent with past practice;
(f) change any accounting policies or procedures (including
procedures with respect to reserves, revenue recognition, payments of accounts
payable and collection of accounts receivable) unless required by statutory
accounting principles or U.S. generally acceptable accounting principles;
(g) create, incur, suffer to exist or assume any liability or
obligation (absolute, accrued, contingent or otherwise) other than up to an
aggregate of $100,000 in indebtedness incurred for the purposes of undertaking
actions permitted under the first sentence of this Section 4.11, or with respect
to the incurrence of indebtedness pursuant to the issuance of convertible
promissory notes and the issuance of warrants related thereto (which convertible
promissory notes and warrants shall be exchanged for Units on the same terms as
the Advaxis Notes), or in the ordinary course or business and consistent with
past practice or any lien on any of its material assets;
20
(h) engage in any transaction, or enter into any agreement,
arrangement, or understanding with, directly or indirectly, any related party,
other than those existing as of the date hereof;
(i) fail to maintain in full force and effect all self-insurance and
insurance, as the case may be, currently in effect;
(j) hire or terminate any senior level or key employee or
consultant; increase the compensation (including, without limitation, bonus)
payable or to become payable to its officers or employees, or grant any
severance or termination pay or stock options to, or enter into any employment
or severance agreement with any director, officer or other senior level or key
employee of the Company, or establish, adopt, enter into or amend any collective
bargaining, bonus, profit sharing, thrift, compensation, stock or other equity
option, restricted stock or other restricted security, pension, retirement,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any current or
former directors, officers or employees;
(k) (A) enter into any material agreement, contract or commitment of
any kind or nature whatsoever, (B) modify, amend or transfer or terminate any
material agreement other than in the ordinary course of business to which the
Company is a party, including, without limitation, the Share Exchange and
Reorganization Agreement, or waive, release or assign any material rights or
claims thereunder that adversely the rights of the Investors or (C) enter into
any lease with respect to real property with any third party other than as
approved by the Company's board of directors;
(l) pay, discharge, satisfy or settle any litigation or waive,
assign or release any rights or claims, or pay, discharge or satisfy any
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), except in an amount or value not exceeding $25,000 in
any instance or series of related instances or $50,000 in the aggregate or in
connection with any amounts owed Penn pursuant to the Penn License;
(m) issue any press release or make any public announcement which
has not been approved by a Majority of the Investors, provided that a Majority
of the Investors may not unreasonably withhold consent for any press release or
announcement required by applicable law; or
(n) authorize, recommend, propose or announce an intention to do any
of the foregoing, or agree or enter into any agreement, contract commitment or
arrangement to do any of the foregoing.
21
4.12 Notification. Between the date of this Agreement and the Termination
Date, the Company will promptly notify the Investors and Advaxis in writing of
the following:
(a) any fact or any condition that causes any of the Company's
representations and warranties in this Agreement to be materially inaccurate as
of the date of this Agreement, or if the Company becomes aware of the occurrence
after the date of this Agreement of any fact or condition that would cause any
such representation or warranty to be materially inaccurate had such
representation and warranty been made as of the time of the occurrence or
discovery of such fact or condition;
(b) any fact or any condition that causes any of the Company's or
Advaxis' representations and warranties in the Share Exchange and Reorganization
Agreement to be materially inaccurate as of the date of such agreement, or if
the Company becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would cause any such representation or warranty to be
materially inaccurate had such representation and warranty been made as of the
time of the occurrence or discovery of such fact or condition;
(c) any breach by the Company or by Advaxis of the Share Exchange
and Reorganization Agreement; or
(d) any fact or circumstance which might reasonably be expected to
delay or prevent the closing of the transactions contemplated by the Share
Exchange and Reorganization Agreement or this Agreement.
4.13 Best Efforts. Between the date of this Agreement and the Closing
Date, the Company will use its best efforts to comply with the provisions of the
Share Exchange and Reorganization Agreement and to consummate the transactions
contemplated thereby and to cause the conditions in Sections 5.1 and 5.2 to be
satisfied.
4.14 Additional Covenants. After the Initial Closing Date and until the
earlier to occur of the eighteenth month anniversary of the Termination Date and
the date which is 90 days following the date on which a Registration Statement
covering the resale of the Shares is declared effective by the Commission:
(a) the Company shall not, and shall not permit or cause any
Subsidiary to, directly or indirectly do, or propose to take any action which
could have or reasonably be expected to result in a material and adverse effect
on the results of operations, assets, prospects, business or condition
(financial or otherwise) of the Company and its Subsidiaries;
(b) unless otherwise approved by a Majority of Investors, the
Company shall not cause or permit (i) the issuance, sale, transfer, pledge,
disposition or encumbrance of any shares of the Subsidiary's capital stock
(other than the issuance of shares of capital stock of the Company) other than
as disclosed in the PPM, (ii) the sale, transfer, lease, license, sublicense,
mortgage, pledge, disposition or encumbrance of any of the Subsidiary's assets,
other than in the ordinary course of the Subsidiary's business consistent with
past practice or as otherwise disclosed in the PPM, or (iii) the merger,
consolidation or similar transaction involving the Subsidiary, as a result of
which the Company is no longer the sole equity holder of the Subsidiary or the
company surviving the transaction; as used in this Section 4.14(b), the term
"Subsidiary" refers only to the Company's sole Subsidiary as of the Initial
Closing;
22
(c) the Company shall comply with all applicable laws, including,
without limitation, federal and state securities laws and the Xxxxxxxx-Xxxxx Act
of 2002, except where such noncompliance could not have or reasonably be
expected to result in a Material Adverse Effect;
(d) the Company shall use its best efforts to file, as soon as
practicable following the final Closing Date, a Schedule 14C Information
Statement (in form and substance reasonably satisfactory to the Placement Agent
and its counsel) with the Commission relating to an amended and restated
certificate of incorporation with the Secretary of State of the State of
Colorado, to effect (i) a change in the par value of its Common Stock to $0.001
per share, (ii) creation of "blank check" preferred stock, and (iii) changing
the name of the Company to Advaxis, Inc.;
(e) the Company shall use its best efforts to file, within 30 days
following the Initial Closing Date, with the National Association of Securities
Dealers, Inc., or its affiliates, all information required by Rule 15c2-11 under
the Exchange Act, if required to enable a market maker to begin trading in the
Company's Common Stock; and
(f) as soon as practicable after the Initial Closing, the Company
shall change its transfer agent to Continental Stock Transfer & Trust, American
Stock Transfer or such other agent as the Company and the Placement Agent may
agree.
ARTICLE V.
CONDITIONS TO CLOSINGS
5.1 Conditions to Investors' Obligations at the Closings. With respect to
each Closing, the obligation of each Investor to purchase Securities at such
Closing is subject to the satisfaction or waiver by such Investor, at or prior
to such Closing Date, of the following conditions:
(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Company in Section 3.1 hereof
shall be true and correct as of such Closing Date and with respect to the
Combined Company with the same force and effect as if they had been made as of
such Closing Date, and with respect to Subsequent Closings, the Company shall
have updated the Schedules to this Agreement setting forth exceptions to such
representations and warranties up through the relevant Subsequent Closing, and
the Company shall have performed all obligations and conditions herein required
to be performed or observed by it on or prior to such Closing. The Company shall
have delivered to the Investors a certificate, duly executed by its Chief
Executive Officer, attesting to the satisfaction of the foregoing conditions.
23
(b) Legal Investment. On such Closing Date, the sale and issuance of
the Securities shall be legally permitted by all laws and regulations to which
the Investors and the Company are subject.
(c) Consents, Permits, and Waivers. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and made all
necessary or appropriate filings under applicable "blue sky" laws or otherwise
(except for such as may be properly obtained subsequent to such Closing).
(d) Share Exchange and Reorganization Agreement. The closing of the
Share Exchange and Reorganization Agreement shall have occurred and the
Investors shall have received satisfactory evidence of the same.
(e) Minimum Investment. The aggregate Investment Amount of all
Investors shall be at least $1,500,000.
(f) Reverse Split. On or prior to the Initial Closing Date, the
Company shall have effected a recapitalization having the same effect as a 1 for
200 reverse stock split (whether through a reverse split or a contribution of
shares for cancellation) (the "REVERSE SPLIT") and, if effected through a
contribution of shares of Common Stock for cancellation, certificates
representing such surrendered shares shall have been received in proper form and
shall have been cancelled by the Company giving effect to the Reverse Split.
(g) Secretary's Certificate. The Company shall have delivered to the
Investors, a certificate having attached thereto (i) the Company's Charter,
certified by the Secretary of State of the State of Colorado, as in effect at
the time of such Closing, (ii) the Company's By-Laws as in effect at the time of
such Closing, (iii) resolutions approved by the Board of Directors of the
Company authorizing the transactions contemplated hereby, (iv) resolutions
approved by the Company's stockholders authorizing the filing of the Charter,
and (v) good standing certificates (including tax good standing) with respect to
the Company from the applicable authority(ies) in Colorado and any other
jurisdiction in which the Company is qualified to do business, dated a recent
date before such Closing.
(h) Conversion of Advaxis Notes. On the Initial Closing Date, the
outstanding bridge notes of Advaxis set forth on Schedule 5.1(h) (the "ADVAXIS
NOTES"), shall have been converted into Units pursuant to an agreement among the
holders of the Advaxis Notes and Advaxis.
(i) Plan. The Company's 2004 Stock Option and Incentive Plan shall
have been adopted by the Board of Directors and the stockholders of the Company
and 2,381,525 shares of Common Stock shall have been reserved for issuance under
the Plan.
24
(j) Exchange of Options and Warrants. On or prior to the Initial
Closing, (i) all of the issued and outstanding warrants to purchase shares of
Advaxis capital stock shall be exchanged for warrants to purchase 584,885 shares
of Common Stock and (ii) all of the issued and outstanding options to purchase
shares of Advaxis capital stock shall be exchanged for options to purchase an
aggregate of 2,381,525 shares of Common Stock.
(k) Standstill Agreement. On or prior to the Initial Closing, the
shareholders of Advaxis immediately prior to the closing of the transactions
contemplated by the Share Exchange and Reorganization Agreement shall have
agreed in writing not to sell any of their interests in the Combined Company
until such time as there shall have been filed with and declared effective by
the Commission, a registration statement in respect of the Shares purchased by
the Investors hereunder.
(l) No Material Adverse Change. From the date of this Agreement to
the Initial Closing Date, there shall have been no material adverse change in
the business, operations or financial condition of the Company.
(m) Other Documents. All other documents, instruments and writing
required by the Investors, to be delivered to them pursuant to this Agreement,
in form and substance satisfactory to the Investors.
5.2 Conditions to Obligations of the Company. With respect to each
Closing, the Company's obligation to issue and sell the Shares at such Closing
is subject to the satisfaction, on or prior to such Closing, of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties in Section 3.2 made by the Investors who or which are purchasing
Securities at such Closing shall be true and correct at the date of such
Closing, with the same force and effect as if they had been made on and as of
said date.
(b) Performance of Obligations. The Investors who or which are
purchasing Securities at such Closing shall have performed and complied with all
agreements and conditions herein required to be performed or complied with by
such Investors on or before such Closing.
(c) Consents, Permits, and Waivers. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement (except for such
as may be properly obtained subsequent to such Closing).
(d) Share Exchange and Reorganization Agreement. The closing of the
Share Exchange and Reorganization Agreement shall have occurred and the
Investors shall have received satisfactory evidence of the same.
(e) Minimum Investment. The aggregate Investment Amount of all
Investors shall be at least $1,500,000.
25
(f) Reverse Split. On or prior to the Initial Closing Date, the
Company shall have effected the Reverse Split.
(g) Conversion of Advaxis Notes. On the Initial Closing Date, the
Advaxis Notes shall have been converted into Units pursuant to an agreement
among the holders of the Advaxis Notes and Advaxis.
(h) Plan. The Company's Plan shall have been adopted by the Board of
Directors and the stockholders of the Company and 2,381,525 shares of Common
Stock shall have been reserved for issuance under the Plan.
(i) Exchange of Options and Warrants. On or prior to the Initial
Closing, (i) all of the issued and outstanding warrants to purchase shares of
Advaxis capital stock shall be exchanged for warrants to purchase 584,885 shares
of Common Stock and (ii) all of the issued and outstanding options to purchase
shares of Advaxis capital stock shall be exchanged for options to purchase an
aggregate of 2,381,525 shares of Common Stock.
(j) Release of Escrow. On such Closing Date, the Investment Amount
payable by each Investor who or which are purchasing Securities at such Closing
shall be released from Escrow and delivered to the Company.
ARTICLE VI.
TERMINATION
6.1 (a) This Agreement shall terminate on the earliest to occur of any of
the following events (such date of termination, the "TERMINATION DATE"):
(i) termination or rescission of the Share Exchange and
Reorganization Agreement;
(ii) the mutual written agreement of a Majority of the Investors and
the Company; or
(iii) the close of business on October 15, 2004, or such later date
as may be agreed upon by the Company and the Placement Agent, provided, that, if
any Closings under this Agreement have occurred prior to such October 15th or
later date, then this Agreement shall terminate only as to provisions relating
to Subsequent Closings following such date and the representations, warranties,
agreements, covenants and obligations of the parties hereto pursuant to this
Agreement, as they shall relate to any Closings which have so occurred, will
survive.
(b) If the Agreement is terminated pursuant to Section 6.1(a), the
funds held in Escrow shall be released and delivered to the applicable
Investors.
26
ARTICLE VII.
MISCELLANEOUS
7.1 Fees and Expenses. The Company shall pay the fees and expenses of its
own advisors, counsel, accountants and other experts, and up to $50,000 of the
fees and expenses of the Placement Agent's advisors, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of the
Transaction Documents. The Company shall pay all stamp and other taxes and
duties levied in connection with the issuance of the Securities under this
Agreement.
7.2 Entire Agreement. The Transaction Documents, together with the
Exhibits and Schedules 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.
7.3 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 (a) the date of transmission, if
such notice or communication is delivered via confirmed facsimile at the
facsimile number specified in this Section prior to 4:00 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via confirmed facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 4:00 p.m. (New York City time) on any Trading Day, (c) the Trading
Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) 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
or Advaxis: Great Expectations and Associates, Inc.
c/o Advaxis, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: J. Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
With a copy to: Reitler Xxxxx & Xxxxxxxxxx LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
If to an Investor: To the address set forth under such Investor's name
on the signature pages hereof;
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
27
7.4 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed by (a) the Company, (b) Advaxis
and (c) the relevant Investor(s) if such amendment or waiver relates only to
certain Investors, or a Majority of the Investors. 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.
7.5 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party. This Agreement
shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or any of the Transaction
Documents.
7.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of a Majority of the Investors. Any Investor
may assign any or all of its rights under this Agreement to any Person to whom
such Investor assigns or transfers any Securities.
7.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.5 as to each
Investor Party.
7.8 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 and any other
Transaction Documents (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
28
hereby or discussed herein (including with respect to the enforcement of the any
of the Transaction Documents), 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 such 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 LEGAL 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 A TRANSACTION DOCUMENT, 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.
7.9 Survival. The representations, warranties, agreements and covenants
contained herein shall survive each Closing and the delivery of the Securities.
7.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
7.11 Severability. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
7.12 Rescission and Withdrawal Right. Notwithstanding anything to the
contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Investor exercises a right, election, demand
or option under a Transaction Document and the Company does not timely perform
its related obligations within the periods therein provided, then such Investor
may rescind or withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in whole or in
part without prejudice to its future actions and rights.
29
7.13 Replacement of Securities. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities. If a replacement
certificate or instrument evidencing any Securities is requested due to a
mutilation thereof, the Company may require delivery of such mutilated
certificate or instrument as a condition precedent to any issuance of a
replacement.
7.14 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Investors and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
7.15 Payment Set Aside. To the extent that the Company makes a payment or
payments to any Investor pursuant to any Transaction Document or an Investor
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
7.16 Independent Nature of Investors' Obligations and Rights. The
obligations of each Investor under any Transaction Document are several and not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. The decision of each Investor to
purchase Securities pursuant to the Transaction Documents has been made by such
Investor independently of any other Investor. Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant 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 or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. 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 independently protect and enforce
its rights, including without limitation the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose.
30
7.17 Limitation of Liability. Notwithstanding anything herein to the
contrary, the Company acknowledges and agrees that the liability of an Investor
arising directly or indirectly, under any Transaction Document of any and every
nature whatsoever shall be satisfied solely out of the assets of such Investor,
and that no trustee, officer, other investment vehicle or any other Affiliate of
such Investor or any investor, shareholder or holder of shares of beneficial
interest of such a Investor shall be personally liable for any liabilities of
such Investor.
7.18 Adjustments in Share Numbers and Prices. In the event of any stock
split (other than the Reverse Split), subdivision, dividend or distribution
payable in shares of Common Stock (or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly shares
of Common Stock (other than conversion of the Advaxis Notes)), combination or
other similar recapitalization or event occurring after the date hereof, each
reference in the Transaction Document to a number of shares or a price per share
shall be amended to appropriately account for such event.
7.19 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
31
COMPANY COUNTERPART TO
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
GREAT EXPECTATIONS AND ASSOCIATES, INC.
---------------------------------------
Name:
Title:
Acknowledged and Agreed this __ day of September, 2004
ADVAXIS, INC.
---------------------------------------
Name:
Title:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOR INVESTORS FOLLOW]
32
INVESTOR COUNTERPART TO
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Securities Purchase
Agreement as of this _____ day of _________________________, 2004.
------------------------------
Number of Units subscribed for
INDIVIDUAL:
------------------------------ ----------------------------------
Investment Amount Name:
SS#
-------------------------------
NON-INDIVIDUAL:
----------------------------------
Name of Entity
By:
-------------------------------
Name:
Title:
Tax ID #:
-------------------------
ADDRESS*:
----------------------------------
----------------------------------
----------------------------------
Attention:
------------------------
Facsimile:
------------------------
* INDIVIDUALS SHOULD LIST THEIR PRIMARY RESIDENCE; COMPANIES AND OTHER
NON-NATURAL PERSONS SHOULD LIST THEIR PRINCIPAL PLACE OF BUSINESS.
33
