Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K Current Report HTML 46K
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 34K
3: EX-10.1 Material Contract HTML 431K
4: EX-99.1 Miscellaneous Exhibit HTML 16K
EX-4.1 — Instrument Defining the Rights of Security Holders
1. He
is the Chief Financial Officer, Senior Vice President and Secretary of Advaxis, Inc., a
Delaware corporation (the “Corporation”).
2. The
Corporation is authorized to issue 5,000,000 shares of preferred stock, of which
500 shares of Series A Preferred Stock, $0.001 par value per share (the “Series A Preferred
Stock”) are issued or outstanding.
3. The
following resolutions were duly adopted by the Board of Directors:
WHEREAS,
the Certificate of Incorporation of the Corporation provides for a class of its
authorized stock known as preferred stock, comprised of 5,000,000 shares, $0.001
par value per share (the Preferred Stock”),
issuable from time to time in one or more series;
WHEREAS,
the Board of Directors of the Corporation is authorized to fix the dividend
rights, dividend rate, voting rights, conversion rights, rights and terms of
redemption and liquidation preferences of any wholly unissued series of
Preferred Stock and the number of shares constituting any series and the
designation thereof, of any of them; and
WHEREAS,
it is the desire of the Board of Directors of the Corporation, pursuant to its
authority as aforesaid, to fix the rights, preferences, restrictions and other
matters relating to a series of Preferred Stock, which shall consist of up to
2,500 shares of the Preferred Stock which the Corporation has the authority to
issue, as follows:
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for
the issuance of a series of Preferred Stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to such series of Preferred
Stock as follows:
TERMS OF
PREFERRED STOCK
1. Designation, Amount and Par
Value. The series of Preferred Stock shall be designated as
the Corporation’s Series B Preferred Stock (the “Series B Preferred
Stock”) and the number of shares so designated shall be 2,500 (which
shall not be subject to increase without the consent of all of the holders of
the Series B Preferred Stock (each a “Holder” and
collectively, the “Holders”). Each
share of Series B Preferred Stock shall have a par value of $0.001 per
share.
2. Ranking. The
Series B Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, winding-up or dissolution, rank:
a. senior
to the Corporation’s common stock, par value $0.001 per share (“Common Stock”), and
any other class or series of Preferred Stock of the Corporation other than the
Series A Preferred Stock (if any shares of Series A Preferred Stock are
outstanding) or a class or series of Preferred Stock of the Corporation that the
Corporation intends to cause to be listed for trading or quoted on any one of
the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global Select
Market, the NYSE Amex, or the New York Stock Exchange (collectively, together
with any warrants, rights, calls or options exercisable for or convertible into
such Preferred Stock, the “Junior
Shares”);
b. pari passu to the
Corporation’s Series A Preferred Stock (if any shares of Series A Preferred
Stock are outstanding);
c. junior
to all existing and future indebtedness of the Corporation and any class or
series of Preferred Stock of the Corporation that the Corporation intends to
cause to be listed for trading or quoted on any one of the NASDAQ Capital
Market, the NASDAQ Global Market, the NASDAQ Global Select Market, the NYSE
Amex, or the New York Stock Exchange (collectively, together with any warrants,
rights, calls or options exercisable for or convertible into such Preferred
Stock, the “Senior
Shares”).
3. Dividends and Other
Distributions. Commencing on the date of the issuance of any
share of Series B Preferred Stock, except with respect to any share of Series B
Preferred Stock issued by the Corporation upon exchange of a share of Series A
Preferred Stock, which shall be deemed to have been issued upon the original
date of issuance of such share of Series A Preferred Stock (in each case, the
“Issuance
Date”), Holders of Series B Preferred Stock shall be entitled to receive
dividends on each outstanding share of Series B Preferred Stock (“Dividends”), which
shall accrue in shares of Series B Preferred Stock at a rate equal to 10.0% per
annum.
a. Any
calculation of the amount of such Dividends payable pursuant to the provisions
of this Section 3 shall be made based on a 365-day year and on the number of
days actually elapsed during the applicable calendar quarter, compounded
annually.
b. So
long as any shares of Series B Preferred Stock are outstanding, no dividends or
other distributions will be paid, declared or set apart with respect to any
Junior Shares. The Common Stock shall not be redeemed while the
Series B Preferred Stock is outstanding.
4. Protective
Provision. So long as any shares of Series B Preferred Stock
are outstanding, the Corporation shall not, without the affirmative approval of
the Holders of a majority of the shares of the Series B Preferred Stock then
outstanding, (a) alter or change adversely the powers, preferences or rights
given to the Series B Preferred Stock or alter or amend this Certificate of
Designations, (b) authorize or create any class of stock ranking as to
distribution of assets upon a liquidation senior to or otherwise pari passu with
the Series B Preferred Stock (other than Senior Shares), (c) amend its
certificate or articles of incorporation or other charter documents in breach of
any of the provisions hereof, (d) increase the authorized number of shares of
Series B Preferred Stock, (e) liquidate, dissolve or wind-up the business and
affairs of the Corporation, or effect any Deemed Liquidation Event
(as defined below), or (f) enter into any agreement with respect to the
foregoing.
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a. A
“Deemed Liquidation
Event” shall mean: (i) a merger or consolidation in which the
Corporation is a constituent party or a subsidiary of the Corporation is a
constituent party and the Corporation issues shares of its capital stock
pursuant to such merger or consolidation, except any such merger or
consolidation involving the Corporation or a subsidiary in which the shares of
capital stock of the Corporation outstanding immediately prior to such merger or
consolidation continue to represent, or are converted into or exchanged for
shares of capital stock that represent, immediately following such merger or
consolidation, at least a majority, by voting power, of the capital stock of the
surviving or resulting corporation or if the surviving or resulting corporation
is a wholly owned subsidiary of another corporation immediately following such
merger or consolidation, the parent corporation of such surviving or resulting
corporation; or (ii) the sale, lease, transfer, exclusive license or other
disposition, in a single transaction or series of related transactions, by the
Corporation or any subsidiary of the Corporation of all or substantially all the
assets of the Corporation and its subsidiaries taken as a whole, or
the sale or disposition (whether by merger or otherwise) of one or more
subsidiaries of the Corporation if substantially all of the assets of the
Corporation and its subsidiaries taken as a whole are held by such subsidiary or
subsidiaries, except where such sale, lease, transfer, exclusive license or
other disposition is to a wholly owned subsidiary of the
Corporation.
b. The
Corporation shall not have the power to effect a Deemed Liquidation Event
referred to in Section 4(a) unless the agreement or plan of merger or
consolidation for such transaction provides that the consideration payable to
the stockholders of the Corporation shall be allocated among the holders of
capital stock of the Corporation in accordance with Section
5.
5. Liquidation.
a. Upon
any liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of debts and other
liabilities of the Corporation, before any distribution or payment shall be made
to the holders of any Junior Shares by reason of their ownership thereof, but
after any distribution or payment to be made to the holders of any Senior Shares
and simultaneous with any distribution or payment to be made to the holders of
any pari passu shares,
the Holders of Series B Preferred Stock shall be entitled to be paid out of the
assets of the Corporation available for distribution to its stockholders an
amount with respect to each share of Series B Preferred Stock equal to $10,000.00 (the
“Original Series B
Issue Price”), plus any accrued but unpaid Dividends thereon
(collectively, the “Series B Liquidation
Value”). If, upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, and after any distribution
or payment to be made to the holders of any Senior Shares, the amounts payable
with respect to the shares of Series B Preferred Stock are not paid in full, the
holders of shares of Series B Preferred Stock shall share equally and ratably in
any distribution of assets of the Corporation in proportion to the liquidation
preference and an amount equal to all accumulated and unpaid Dividends, if any,
to which each such holder is entitled.
b. After
payment has been made to the Holders of the Series B Preferred Stock of the full
amount of the Series B Liquidation Value, any remaining assets of the
Corporation shall be distributed among the holders of the Corporation’s Junior
Shares in accordance with the Corporation’s Certificates of Designation and
Certificate of Incorporation.
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c. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation shall be insufficient to make payment in full to all Holders,
then such assets shall be distributed among the Holders at the time outstanding,
ratably in proportion to the full amounts to which they would otherwise be
respectively entitled.
6. Redemption.
a. Corporation’s Redemption
Option. Upon or after the fourth anniversary of the applicable
Issuance Date, the Corporation shall have the right, at the Corporation’s
option, to redeem all or a portion of the shares of Series B Preferred Stock, at
a price per share of Series B Preferred Stock equal to the Series B Liquidation
Value (the “Corporation Redemption
Price”).
b. Early
Redemption. Prior to redemption pursuant to Section 6(a) hereof,
the Corporation shall have the right, at the Corporation's option, to redeem all
or a portion of the shares of Series B Preferred Stock, at a price per share
equal to: (i) 136% of the Series B Liquidation Value if redeemed on or after the
applicable Issuance Date but prior to the first anniversary of the applicable
Issuance Date, (ii) 127% of the Series B Liquidation Value if redeemed on or
after the first anniversary but prior to the second anniversary of the
applicable Issuance Date, (iii) 118% of the Series B Liquidation Value if
redeemed on or after the second anniversary but prior to the third anniversary
of the applicable Issuance Date, and (iv) 109% of the Series B Liquidation Value
if redeemed on or after the third anniversary but prior to the fourth
anniversary of the applicable Issuance Date.
c. Mechanics of
Redemption. If the Corporation elects to redeem any of the
Holders’ Series B Preferred Stock then outstanding, it shall deliver written
notice thereof via facsimile and overnight courier (“Notice of Redemption at
Option of Corporation”) to each Holder, which Notice of Redemption at
Option of Corporation shall indicate (A) the number of shares of Series B
Preferred Stock that the Corporation is electing to redeem and (B) the
Corporation Redemption Price.
d. Payment of Redemption
Price. Upon receipt by any Holder of a Notice of Redemption at
Option of Corporation, such Holder shall promptly submit to the Corporation such
Holder’s Series B Preferred Stock certificates. Upon receipt of such
Holder’s Series B Preferred Stock certificates, the Corporation shall pay the
Corporation Redemption Price in cash to such Holder.
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7. Transferability.
a. The
Series B Preferred Stock constitutes “restricted securities” as such term is
defined in Rule 144(a)(3) under the Act and may only be disposed of in
compliance with U.S. federal securities laws and applicable state securities or
“blue sky” laws. Without limiting the generality of the foregoing,
the Series B Preferred Stock may not be offered for sale, sold, transferred,
assigned, pledged or otherwise distributed unless (A) subsequently registered
thereunder, (B) Holder shall have delivered to the Corporation an opinion of
counsel reasonably acceptable to the Corporation, in a form generally acceptable
to the Corporation, to the effect that such Series B Preferred Stock to be
offered for sale, sold, transferred, assigned, pledged or otherwise distributed
may be offered for sale, sold, transferred, assigned, pledged or otherwise
distributed pursuant to an exemption from such registration, or (C) Holder
provides the Corporation and its legal counsel with reasonable assurance that
such Series B Preferred Stock can be offered for sale, sold, transferred,
assigned, pledged or otherwise distributed pursuant to Rule 144A promulgated
under the Act;
b. So
long as is required by this Section 7, the certificates or other instruments
representing the Series B Preferred Stock shall bear any legends as required by
applicable state securities or “blue sky” laws, in addition to the following
restrictive legend (and that a stop-transfer order shall be placed against
transfer of such certificates):
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 SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
c. The
Corporation shall keep at its principal office, or at the offices of the
Transfer Agent, a register of the Series B Preferred Stock. Upon the
surrender of any certificate representing Series B Preferred Stock at such
place, the Corporation, at the request of the record Holder of such certificate,
shall execute and deliver (at the Corporation’s expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
shares as is requested by the Holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate.
8. Miscellaneous.
a. Notices. Any
and all notices to the Corporation shall be addressed to the Corporation’s
President or Chief Executive Officer at the Corporation’s principal place of
business on file with the Secretary of State of the State of
Delaware. Any and all notices or other communications or deliveries
to be provided by the Corporation to any Holder hereunder shall be in writing
and delivered personally, by facsimile, sent by a nationally recognized
overnight courier service addressed to each Holder at the facsimile telephone
number or address of such Holder appearing on the books of the Corporation, or
if no such facsimile telephone number or address appears, at the principal place
of business of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this section prior to 5:30 p.m. Eastern
time, (ii) the date after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this section later than 5:30 p.m. but prior to 11:59 p.m. Eastern
time on such date, (iii) the second business day following the date of mailing,
if sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be
given.
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b. Lost or Mutilated Preferred
Stock Certificate. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing shares of Series B Preferred Stock, and in the case
of any such loss, theft or destruction upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the Holder is a financial
institution or other institutional investor its own agreement shall be
satisfactory) or in the case of any such mutilation upon surrender of such
certificate, the Corporation shall, at its expense, execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
c. Headings. The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designations and shall not be deemed to limit or affect any
of the provisions hereof.
RESOLVED,
FURTHER, that the chairman, chief executive officer, president or any
vice-president, and the secretary or any assistant secretary, of the Corporation
be and they hereby are authorized and directed to prepare and file a Certificate
of Designation of Preferences, Rights and Limitations of Series B Preferred
Stock in accordance with the foregoing resolution and the provisions of Delaware
law.
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IN
WITNESS WHEREOF, the undersigned have executed and acknowledged this Certificate
this 19th day of July 2010.