IRREVOCABLE TRANSFER AGENT INSTRUCTIONS February 2, 2006
IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS
February
2, 2006
Securities
Transfer Corporation
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Frisco,
Texas 75034
RE:
ADVAXIS,
INC.
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement (the “Securities
Purchase Agreement”)
of
even date herewith by and between Advaxis, Inc., a Colorado corporation
(the “Company”),
and
the Buyer set forth on Schedule I attached thereto (collectively the
“Buyer”)
of
even date herewith among the Company, the Buyer and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as escrow
agent (the “Escrow
Agent”).
Pursuant to the Securities Purchase Agreement, the Company shall sell to the
Buyer, an the Buyer shall purchase from the Company, convertible debentures
(collectively, the “Debentures”)
in the
aggregate principal amount of Three Million Dollars ($3,000,000), plus accrued
interest, which are convertible into shares of the Company’s common stock, par
value $.001 per share (the “Common
Stock”),
at
the Buyer discretion. The Company shall also issued to the Buyer five year
warrants to purchase 4,200,000 shares of Common Stock, at the Buyer’s discretion
(the “A
Warrants”)
and
five year warrants to purchase 300,000 shares of Common Stock at the Buyer’s
discretion (the “B
Warrants”,
along
with the A Warrants, the “Warrant”).
These
instructions relate to the following stock or proposed stock issuances or
transfers:
| 1. |
Shares
of Common Stock to be issued to the Buyer upon conversion of the
Debentures (“Conversion
Shares”)
plus the shares of Common Stock to be issued to the Buyer upon conversion
of accrued interest into Common Stock (the “Interest
Shares”).
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| 2. |
Up
to 4,200,000 shares of Common Stock to be issued to the Buyer upon
exercise of the A Warrant (the “A Warrant
Shares”).
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| 3. |
Up
to 300,000 shares of Common Stock to be issued to the Buyer upon
exercise
of the B Warrant (the “B Warrant
Shares”,
along with the A Warrant Shares, the “Warrant
Shares”).
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This
letter shall serve as our irrevocable authorization and direction to the
Securities Transfer Corporation (the “Transfer
Agent”)
to do
the following:
| 1. |
Conversion
Shares and Warrant Shares.
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| a. |
Instructions
Applicable to Transfer Agent.
With respect to the Conversion Shares, Warrant Shares and the Interest
Shares, the Transfer Agent shall issue to the Buyer from time to
time upon
delivery to the Transfer Agent of a properly completed and duly executed
Conversion Notice (the “Conversion
Notice”)
in the form attached as Exhibit A to the Debentures, the Conversion
Shares
and the Interest Shares, or a properly completed and duly executed
Exercise Notice (the “Exercise
Notice”)
in the form attached as Exhibit A to the A Warrant, and Exhibit A
to the B
Warrant delivered to the Transfer Agent by the Escrow Agent on behalf
of
the Company the Warrant Shares. Upon receipt of a Conversion Notice
or an
Exercise Notice, the Transfer Agent shall within three (3) Trading
Days
thereafter (i) issue and surrender to a common carrier for overnight
delivery to the address as specified in the Conversion Notice or
the
Exercise Notice, a certificate, registered in the name of the Buyer
or its
designees, for the number of shares of Common Stock to which the
Buyer
shall be entitled as set forth in the Conversion Notice or Exercise
Notice
or (ii) provided the Transfer Agent is participating in The Depository
Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the
Buyer,
credit such aggregate number of shares of Common Stock to which the
Buyer
shall be entitled to the Buyer’s or their designees’ balance account with
DTC through its Deposit Withdrawal At Custodian (“DWAC”)
system provided the Buyer causes its bank or broker to initiate the
DWAC
transaction. For purposes hereof “Trading
Day”
shall mean any day on which the Nasdaq Market is open for customary
trading.
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| b. |
The
Company hereby confirms to the Transfer Agent and the Buyer that
certificates representing the Conversion Shares, Interest Shares
or the
Warrant Shares shall not bear any legend restricting transfer and
should
not be subject to any stop-transfer restrictions and shall otherwise
be
freely transferable on the books and records of the Company; provided
that
counsel to the Company delivers (i) the Notice of Effectiveness set
forth
in Exhibit
I
attached hereto and (ii) an opinion of counsel in the form set forth
in
Exhibit
II
attached hereto, and that if the Conversion Shares, Warrant Shares
and the
Interest Shares are not registered for sale under the Securities
Act of
1933, as amended, then the certificates for the Conversion Shares,
Warrant
Shares and Interest Shares shall bear the following
legend:
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR
APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID
ACT.”
2
| c. |
In
the event that counsel to the Company fails or refuses to render
an
opinion as required to issue the Conversion Shares, Interest Shares
or the
Warrant Shares in accordance with the preceding paragraph (either
with or
without restrictive legends, as applicable), then the Company irrevocably
and expressly authorizes counsel to the Buyer to render such opinion.
The
Transfer Agent shall accept and be entitled to rely on such opinion
for
the purposes of issuing the Conversion Shares.
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| d. |
The
Transfer Agent shall reserve for issuance to the Buyer a minimum
of
37,003,485 Conversion Shares and 4,500,000 Warrant Shares. All such
shares
shall remain in reserve with the Transfer Agent until the Buyer provides
the Transfer Agent instructions that the shares or any part of them
shall
be taken out of reserve and shall no longer be subject to the terms
of
these instructions.
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| e. |
The
Company hereby irrevocably appoints the Escrow Agent as a duly authorized
agent of the Company for the purposes of authorizing the Transfer
Agent to
process issuances specifically contemplated herein. Upon the Escrow
Agent’s receipt of a properly completed Conversion Notice or Exercise
Notice and the Aggregate Exercise Price (as defined in the Warrant),
the
Escrow Agent shall, within one (1) Trading Day thereafter, send to
the
Transfer Agent the Conversion Notice or Exercise Notice, as the case
may
be, which shall constitute an irrevocable instruction to the Transfer
Agent to process such Conversion Notice or Exercise Notice in accordance
with the terms of these
instructions.
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| f. |
The
Transfer Agent shall rely exclusively on the Conversion Notice or
the
Exercise Notice and shall have no liability for relying on such
instructions. Any Conversion Notice, or Exercise Notice delivered
hereunder shall constitute an irrevocable instruction to the Transfer
Agent to process such notice or notices in accordance with the terms
thereof. Such notice or notices may be transmitted to the Transfer
Agent
by facsimile or any commercially reasonable
method.
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| g. |
The
Company hereby confirms to the Transfer Agent and the Buyer that
no
instructions other than as contemplated herein will be given to Transfer
Agent by the Company with respect to the matters referenced herein.
The
Company hereby authorizes the Transfer Agent, and the Transfer Agent
shall
be obligated, to disregard any contrary instructions received by
or on
behalf of the Company.
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3
Certain
Notice Regarding the Escrow Agent.
The
Company and the Transfer Agent hereby acknowledge that the Escrow Agent is
general counsel to the Buyer, a partner of the general partner of the Buyer
and
counsel to the Buyer in connection with the transactions contemplated and
referred herein. The Company and the Transfer Agent agree that in the event
of
any dispute arising in connection with this Agreement or otherwise in connection
with any transaction or agreement contemplated and referred herein, the Escrow
Agent shall be permitted to continue to represent the Buyer and neither the
Company nor the Transfer Agent will seek to disqualify such
counsel.
The
Company hereby agrees that it shall not replace the Transfer Agent as the
Company’s transfer agent without the prior written consent of the
Buyer.
Any
attempt by Transfer Agent to resign as the Company’s transfer agent hereunder
shall not be effective until such time as the Company provides to the Transfer
Agent written notice that a suitable replacement has agreed to serve as transfer
agent and to be bound by the terms and conditions of these Irrevocable Transfer
Agent Instructions.
The
Company and the Transfer Agent hereby acknowledge and confirm that complying
with the terms of this Agreement does not and shall not prohibit the Transfer
Agent from satisfying any and all fiduciary responsibilities and duties it
may
owe to the Company.
The
Company acknowledges that the Buyer is relying on the representations and
covenants made by the Company and the Transfer Agent hereunder and are a
material inducement to the Buyer purchasing the Convertible Debentures under
the
Securities Purchase Agreement. The Company further acknowledges that without
such representations and covenants of the Company and the Transfer Agent made
hereunder, the Buyer would not purchase the Debentures.
Each
party hereto specifically acknowledges and agrees that in the event of a breach
or threatened breach by a party hereto of any provision hereof, the Buyer will
be irreparably damaged and that damages at law would be an inadequate remedy
if
these Irrevocable Transfer Agent Instructions were not specifically enforced.
Therefore, in the event of a breach or threatened breach by a party hereto,
including, without limitation, the attempted termination of the agency
relationship created by this instrument, the Buyer shall be entitled, in
addition to all other rights or remedies, to an injunction restraining such
breach, without being required to show any actual damage or to post any bond
or
other security, and/or to a decree for specific performance of the provisions
of
these Irrevocable Transfer Agent Instructions.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
4
IN
WITNESS WHEREOF,
the
parties have caused this letter agreement regarding Irrevocable Transfer Agent
Instructions to be duly executed and delivered as of the date first written
above.
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COMPANY:
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| By: |
/s/ ▇▇▇▇
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Name: ▇▇▇▇
▇▇▇▇▇
Title: Chief
Executive Officer
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| By: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
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SECURITIES
TRANSFER CORPORATION
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| By: | /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||
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Name:
Title:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President
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5
SCHEDULE
I
SCHEDULE
OF BUYER
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Name
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Signature
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Address/Facsimile
Number
of Buyer
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Cornell
Capital Partners, LP
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By: Yorkville
Advisors, LLC
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▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
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Its: General
Partner
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Jersey
City, NJ 07303
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Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
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By: /s/
▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇
▇▇▇▇▇▇
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Its: Portfolio
Manager
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SCHEDULE
I-1
EXHIBIT
I
TO
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
_________,
2006
________
Attention:
RE: ADVAXIS,
INC.
Ladies
and Gentlemen:
We
are
counsel to Advaxis, Inc., (the “Company”),
and
have represented the Company in connection with that certain Securities Purchase
Agreement, dated as of January __, 2006 (the “Securities
Purchase Agreement”),
entered into by and among the Company and the Buyer set forth on Schedule I
attached thereto (collectively the “Buyer”)
pursuant to which the Company has agreed to sell to the Buyer $3,000,000 of
secured convertible debentures, which shall be convertible into shares (the
“Conversion
Shares”)
of the
Company’s common stock, par value $.001 per share (the “Common
Stock”),
in
accordance with the terms of the Securities Purchase Agreement. Pursuant to
the
Securities Purchase Agreement, the Company also has entered into a Registration
Rights Agreement, dated as of January ___, 2006, with the Buyer (the
“Investor
Registration Rights Agreement”)
pursuant to which the Company agreed, among other things, to register the
Conversion Shares under the Securities Act of 1933, as amended (the
“1933
Act”).
In
connection with the Company’s obligations under the Securities Purchase
Agreement and the Registration Rights Agreement, on _______, 2006, the Company
filed a Registration Statement (File No. ___-_________) (the “Registration
Statement”)
with
the Securities and Exchange Commission (the “SEC”)
relating to the sale of the Conversion Shares.
In
connection with the foregoing, we advise the Transfer Agent that a member of
the
SEC’s staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at ____ P.M.
on __________, 2006 and we have no knowledge, after telephonic inquiry of a
member of the SEC’s staff, that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC and the Conversion Shares are available for sale under
the 1933 Act pursuant to the Registration Statement.
EXHIBIT
I-1
The
Buyer
has confirmed it shall comply with all securities laws and regulations
applicable to it including applicable prospectus delivery requirements upon
sale
of the Conversion Shares.
Very
truly yours,
By:
_____________________________
EXHIBIT
I-2
EXHIBIT
II
TO
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM
OF OPINION
VIA
FACSIMILE AND REGULAR MAIL
________
Attention:
RE: ADVAXIS,
INC.
Ladies
and Gentlemen:
We
have
acted as special counsel to Advaxis, Inc. (the “Company”),
in
connection with the registration of ___________shares (the “Shares”)
of its
common stock with the Securities and Exchange Commission (the “SEC”).
We
have
not acted as your counsel. This opinion is given at the request and with the
consent of the Company.
In
rendering this opinion we have relied on the accuracy of the Company’s
Registration Statement on Form SB-2, as amended (the “Registration
Statement”),
filed
by the Company with the SEC on _________ ___, 2006. The Company filed the
Registration Statement on behalf of certain selling stockholders (the
“Selling
Stockholders”).
This
opinion relates solely
to the
Selling Shareholders listed on Exhibit
“A”
hereto
and number of Shares set forth opposite such Selling Stockholders’ names. The
SEC declared the Registration Statement effective on __________ ___,
2006.
We
understand that the Selling Stockholders acquired the Shares in a private
offering exempt from registration under the Securities Act of 1933, as amended.
Information regarding the Shares to be sold by the Selling Shareholders is
contained under the heading “Selling Stockholders” in the Registration
Statement, which information is incorporated herein by reference. This opinion
does not relate to the issuance of the Shares to the Selling Stockholders.
The
opinions set forth herein relate solely to the sale or transfer of the Shares
by
the Selling Stockholders pursuant to the Registration Statement under the
Federal laws of the United States of America. We do not express any opinion
concerning any law of any state or other jurisdiction.
In
rendering this opinion we have relied upon the accuracy of the foregoing
statements.
EXHIBIT
II
Based
on
the foregoing, it is our opinion that the Shares have been registered with
the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
The Company has authorized us to instruct you, the restrictive legends contained
on the Shares may be removed. This opinion relates solely
to the
number of Shares set forth opposite the Selling Stockholders listed on
Exhibit
“A”
hereto.
This
opinion is furnished to Transfer Agent specifically in connection with the
sale
or transfer of the Shares, and solely for your information and benefit. This
letter may not be relied upon by Transfer Agent in any other connection, and
it
may not be relied upon by any other person or entity for any purpose without
our
prior written consent. This opinion may not be assigned, quoted or used without
our prior written consent. The opinions set forth herein are rendered as of
the
date hereof and we will not supplement this opinion with respect to changes
in
the law or factual matters subsequent to the date hereof.
Very
truly yours,
EXHIBIT
II-2
EXHIBIT
A
(LIST
OF SELLING STOCKHOLDERS)
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Name:
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No.
of Shares:
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EXHIBIT
A