ADVAXIS, INC. (NASDAQ:ADXS) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry into a Material Definitive Agreement.
On July 30, 2020, Advaxis, Inc. (the “Company”) entered into a Purchase Agreement (the “Purchase Agreement”) and a Registration Rights Agreement (the “Registration Rights Agreement”) with Lincoln Park Capital Fund, LLC (“Lincoln Park”), to which, upon the terms and subject to the conditions and limitations set forth therein, the Company has the right to sell to Lincoln Park up to $20 million of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at our discretion as described below (the “Offering”).
Over the 36-month term of the Purchase Agreement, up to an aggregate amount of $20,000,000 (subject to certain limitations) of shares of Common Stock, we have the right, but not the obligation, from time to time, in our sole discretion and subject to certain conditions, including that the closing price of our Common Stock is not below $0.10 per share, to direct Lincoln Park to purchase up to 1,000,000 shares (the “Regular Purchase Share Limit”) of our Common Stock (each such purchase, a “Regular Purchase”). Lincoln Park’s maximum obligation under any single Regular Purchase will not exceed $1,000,000, unless we mutually agree to increase the maximum amount of such Regular Purchase. The purchase price for shares of Common Stock to be purchased by Lincoln Park under a Regular Purchase will be the equal to the lower of (in each case, subject to the adjustments described in the Purchase Agreement): (i) the lowest sale price for our Common Stock on the applicable purchase date, and (ii) the arithmetic average of the three lowest sale prices for our Common Stock during the ten trading days prior to the purchase date.
If we direct Lincoln Park to purchase the maximum number of shares of Common Stock we then may sell in a Regular Purchase, then in addition to such Regular Purchase, and subject to certain conditions and limitations in the Purchase Agreement, we may direct Lincoln Park to make an “accelerated purchase” of an additional amount of Common Stock that may not exceed the lesser of (i) 300% of the number of shares purchased to the corresponding Regular Purchase and (ii) 30% of the total number of shares of our Common Stock traded during a specified period on the applicable purchase date as set forth in the Purchase Agreement. Under certain circumstances and in accordance with the Purchase Agreement, the Company may direct Lincoln Park to purchase shares in multiple accelerated purchases on the same trading day.
The Purchase Agreement prohibits us from issuing or selling to Lincoln Park under the Purchase Agreement (i) in excess of 12,326,314 shares of our Common Stock (the “Exchange Cap”), unless we obtain stockholder approval to issue shares in excess of the Exchange Cap or the average price of all applicable sales of our Common Stock to Lincoln Park under the Purchase Agreement equal or exceed the lower of (i) the Nasdaq Official Closing Price immediately preceding the execution of this Agreement or (ii) the average of the five Nasdaq Official Closing Prices for the Common Stock immediately preceding the execution of this Agreement, as adjusted in accordance with the rules of the Principal Market, and (ii) any shares of our Common Stock if those shares, when aggregated with all other shares of our Common Stock then beneficially owned by Lincoln Park and its affiliates would result in Lincoln Park and its affiliates having beneficial ownership of more than 9.99% of the then total outstanding shares of our Common Stock.
The Purchase Agreement does not limit our ability to raise capital from other sources at our sole discretion, except that we may not enter into any equity line or similar transaction for 36 months, other than an “at-the-market” offering. The Purchase Agreement and the Registration Rights Agreement contain customary representations, warranties and agreements of us and Lincoln Park, indemnification rights and other obligations of the parties. We have the right to terminate the Purchase Agreement at any time, at no cost to us.
As consideration for entering into the Purchase Agreement, we issued 1,084,266 shares of our Common Stock to Lincoln Park as a commitment fee (the “Commitment Shares”). We will not receive any cash proceeds from the issuance of the Commitment Shares. Also to the Purchase Agreement, Lincoln Park has agreed to an initial purchase of 3,510,527 shares of our Common Stock for an aggregate purchase price of $1,999,999.89. Lincoln Park has covenanted not to cause or engage in any manner whatsoever, any direct or indirect short selling or hedging of our shares of Common Stock.
The Offering is being made to our effective Registration Statement on Form S-3 (File No. 333-226988) (the “Registration Statement”), which was previously filed with the SEC on August 23, 2018, and declared effective by the SEC on August 30, 2018, and the prospectus supplement related to the Offering to be filed with the SEC on August 3, 2020. to the Registration Rights Agreement, under certain circumstances, if the Registration Statement is no longer available for use with respect to the Offering, we will be required to file additional registration statement(s).
We expect to use the proceeds from the Offering for continued research and development initiatives in connection with our product pipeline including, but not limited to, investment in our ADXS-HOT program and for general corporate purposes.
The foregoing description of the Purchase Agreement and the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement and the Registration Rights Agreement, which are attached hereto as Exhibit 10.1 and 4.1, respectively, and incorporated by reference herein.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the shares, nor shall there be any offer, solicitation or sale of the shares in any state or country in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or country.
Item 7.01 Regulation FD.
On August 3, 2020, the Company issued a press release announcing the entry into the Purchase Agreement. The full text of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference. The information in this report (including Exhibit 99.1) that is being furnished to Item 7.01 shall not be deemed to be “filed” for purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act.
Item 9.01 Financial Statements and Exhibits.
(d)
| Exhibit No. | Exhibit Name |
| 4.1 | Registration Rights Agreement, dated July 30, 2020, by and between Advaxis, Inc. and Lincoln Park Capital Fund, LLC |
| 5.1 | Opinion of Morgan, Lewis & Bockius LLP |
| 10.1 | Purchase Agreement, dated July 30, 2020, by and between Advaxis, Inc. and Lincoln Park Capital Fund, LLC |
| 23.1 | Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1) |
| 99.1 | Press release, dated August 3, 2020 |
Advaxis, Inc. Exhibit
EX-4.1 2 ex4-1.htm Exhibit 4.1 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”),…
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About ADVAXIS, INC. (NASDAQ:ADXS)
Advaxis, Inc. is a clinical-stage biotechnology company. The Company’s immunotherapies are based on a platform technology that utilizes live attenuated Listeria monocytogenes (Lm or Listeria) bioengineered to secrete antigen/adjuvant fusion proteins. It is focused on the discovery, development and commercialization of Lm-LLO cancer immunotherapies. The Company’s immunotherapy candidates include Axalimogene filolisbac, ADXS-PSA and ADXS-HER2. Axalimogene filolisbac (ADXS-HPV) is a lead Lm-LLO immunotherapy product candidate for the treatment of human papilloma virus (HPV) associated cancers. ADXS-PSA is an Lm-LLO immunotherapy product candidate designed to target the Prostate Specific Antigen (PSA) associated with prostate cancer. ADXS-HER2 is an Lm-LLO immunotherapy product candidate designed for the treatment of Human Epidermal Growth Factor Receptor 2 (HER2) expressing cancers, including human and canine osteosarcoma, breast, gastric and other cancers.