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ADVAXIS, INC.

Date Filed : Dec 07, 2012

S-11v329783_s1.htmFORM S-1

File No. 333-[___]

 

As filed with the Securities andExchange Commission on December 7, 2012

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-1

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

ADVAXIS, INC.

(Exact name of registrant as specifiedin its charter)

 

Delaware 2836 02-0563870

(State or other jurisdiction

of incorporation or organization)

(Primary Standard Industrial

Classification Code Number)

(I.R.S. Employer

Identification No.)

 

305 College Road East

Princeton, New Jersey 08540

(609) 452-9813

(Address, including zip code, and telephonenumber, including area code, of registrant’s principal executive office)

 

Mr. Thomas A. Moore

Chief Executive Officer

305 College Road East

Princeton, New Jersey 08540

(609) 452-9813

(Name, address, including zip code, andtelephone number, including area code, of agent for service)

 

Copies to:

 

Robert H. Cohen, Esq.

Greenberg Traurig, LLP

The MetLife Building

200 Park Avenue

New York, New York 10166

Phone: (212) 801-9200

Fax: (212) 801-6400

 

Approximate date of commencement ofproposed sale to the public.    From time to time after this Registration Statement becomes effective, as determinedby the selling stockholder named in the prospectus contained herein.

 

If any of the Securities being registeredon this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended,check the following box: x

 

If this Form is filed to register additionalsecurities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the SecuritiesAct Registration Statement number of the earlier effective Registration Statement for the same offering: ¨

 

If this Form is a post-effective amendmentfiled pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act RegistrationStatement number of the earlier effective Registration Statement for the same offering: ¨

 

If this Form is a post-effective amendmentfiled pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act Registration Statementnumber of the earlier effective Registration Statement for the same offering: ¨

 

 
 

 

Indicate by check mark whether the registrantis a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See thedefinitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ¨ Accelerated filer ¨
   
Non-accelerated filer ¨ (Do not check if smaller reporting company) Smaller reporting company x

 

CALCULATION OF REGISTRATION FEE

 

Title of each

class  of securities

to be  registered

  Amount
to be
registered(1)
   

Proposed

maximum

offering price

per  share

    Proposed
maximum
aggregate
offering price
   

Amount of

registration  fee

 
                         
Common Stock, par value $0.001 per share     115,000,000 shares (2)   $ 0.0451  (3)   $ 5,186,500.00      $ 707.44  (3)

 

  (1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall be deemed to cover the additional securities (i) to be offered or issued in connection with any provision of any securities purported to be registered hereby to be offered pursuant to terms which provide for a change in the amount of securities being offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions and (ii) of the same class as the securities covered by this Registration Statement issued or issuable prior to completion of the distribution of the securities covered by this Registration Statement as a result of a split of, or a stock dividend on, the registered securities.
  (2) Represents shares of the registrant’s issued and outstanding common stock being registered for resale.
  (3) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based on the average of the high and low prices of the common stock of the registrant as reported on the OTC Bulletin Board on December 6, 2012.

 

The registrant hereby amends this Registration Statementon such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment whichspecifically states that this Registration Statement shall thereafter become effective in accordance with section 8(a) of theSecurities Act of 1933 or until the Registration Statement shall become effective on such date as the commission, acting pursuantto section 8(a) may determine.

 

 
 

 

The information in this prospectus is not complete and maybe changed.  The selling stockholder may not sell these securities until the registration statement filed with the Securitiesand Exchange Commission is effective.  This prospectus is not an offer to sell these securities, and it is not solicitingoffers to buy these securities, in any state where the offer or sale of these securities is not permitted.

 

PROSPECTUS, SUBJECT TO COMPLETION,DATED DECEMBER 7, 2012

 

ADVAXIS, INC.

 

115,000,000 Shares

 

Common Stock

 

This prospectus relates to the dispositionfrom time to time of up to 115,000,000 shares of our common stock, which are held or may be held by the selling shareholder namedin this prospectus. We are not selling any common stock under this prospectus and will not receive any of the proceeds from thesale of shares by the selling shareholder.

 

The selling shareholder identified in thisprospectus, or its permitted transferees or other successors-in-interest, may offer the shares from time to time through publicor private transactions at prevailing market prices, at prices related to prevailing market prices, or at privately negotiatedprices. We provide more information about how the selling shareholder may sell its shares of common stock in the section entitled“Plan of Distribution” beginning on page 76 of this prospectus. We will not be paying any underwriting discountsor commissions in connection with any offering of common stock under this prospectus.

 

Our common stock is quoted on the Over-The-CounterBulletin Board, or OTC Bulletin Board, under the symbol ADXS.OB.  On December 6, 2012, the last reported saleprice per share for our common stock as reported by the OTC Bulletin Board was $0.04.

 

Investing in our common stock involvesa high degree of risk.  We urge you to carefully consider the ‘‘Risk Factors’’ beginning onpage 2.

 

Neither the Securities and ExchangeCommission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy oraccuracy of the prospectus.  Any representation to the contrary is a criminal offense.

 

The date of this prospectus is _____________.

 

 
 

 

TABLE OF CONTENTS

  

ABOUT THIS PROSPECTUS i
 
PROSPECTUS SUMMARY ii
   
THE OFFERING 1
   
RISK FACTORS 2
   
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS 16
   
USE OF PROCEEDS 17
   
EQUITY ENHANCEMENT PROGRAM 17
   
MARKET PRICE OF AND DIVIDENDS ON OUR COMMON STOCK AND RELATED STOCKHOLDER MATTERS 21
   
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 22
   
DESCRIPTION OF BUSINESS 37
   
MANAGEMENT 51
   
EXECUTIVE COMPENSATION 55
   
STOCK OWNERSHIP 64
   
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS 66
   
DESCRIPTION OF OUR CAPITAL STOCK 67
   
SHARES ELIGIBLE FOR FUTURE SALE 74
   
SELLING STOCKHOLDER 75
   
PLAN OF DISTRIBUTION 77
   
LEGAL MATTERS 79
   
EXPERTS 79
   
INTERESTS OF NAMED EXPERTS AND COUNSEL 79
   
WHERE YOU CAN FIND ADDITIONAL INFORMATION 79
   
INDEX TO FINANCIAL STATEMENTS F-1

 

 
 

 

ABOUT THIS PROSPECTUS

 

You should only rely on the informationcontained in this prospectus.  We have not authorized anyone to give any information or make any representation aboutthis offering that differs from, or adds to, the information in this prospectus or in its documents that are publicly filed withthe SEC.  Therefore, if anyone does give you different or additional information, you should not rely on it.  Thedelivery of this prospectus does not mean that there have not been any changes in our condition since the date of this prospectus.  Ifyou are in a jurisdiction where it is unlawful to offer the securities offered by this prospectus, or if you are a person to whomit is unlawful to direct such activities, then the offer presented by this prospectus does not extend to you.  Thisprospectus speaks only as of its date except where it indicates that another date applies.

 

Market data and certain industry forecastsused in this prospectus were obtained from market research, publicly available information and industry publications. We believethat these sources are generally reliable, but the accuracy and completeness of such information is not guaranteed. We have notindependently verified this information, and we do not make any representation as to the accuracy of such information.

 

In this prospectus, the terms “we”,“us”, “our” and “our company” refer to Advaxis, Inc., a Delaware corporation, resulting fromthe reincorporation of our company from Colorado to Delaware described elsewhere in this prospectus (unless the context referencessuch entity prior to the June 20, 2006 reincorporation from Colorado to Delaware, in which case it refers to the Colorado entity).

 

The name Advaxis is our trademark. Othertrademarks and product names appearing in this prospectus are the property of their respective owners.

  

 

i
 

 

PROSPECTUS SUMMARY

 

This summary highlights someimportant information from this prospectus, and it may not contain all of the information that is important to you.  Youshould read the following summary together with the more detailed information regarding us and our common stock being sold inthis offering, including “Risk Factors” and our financial statements and related notes, included elsewhere in thisprospectus.

 

Our Company

 

We are a development stage biotechnologycompany with the intent to develop safe and effective immunotherapies for cancer and infectious diseases. These immunotherapiesare based on a platform technology under exclusive license from the University of Pennsylvania, which we refer to as Penn, thatutilizes live attenuated Listeria monocytogenes, which we refer to as Listeria or Lm, bioengineered to secreteantigen/adjuvant fusion proteins. These Lm-LLO strains use a fragment of the protein listeriolysin (LLO), fused to a tumorassociated antigen (TAA) or other antigen of interest. We believe these Lm-LLO agents redirect the potent immune responseto Lm which is inherent in humans, to the TAA or antigen of interest. The immune response to a live, metabolically competentpathogen is much more complex than the response to a synthetic or organic molecule and may enable a more comprehensive therapeuticoutcome than current treatment modalities. We believe this to be a broadly enabling platform technology that can be applied tothe treatment of many types of cancers and infectious diseases.

 

The discoveries that underliethis innovative technology are based upon the work of Yvonne Paterson, Ph.D., Professor of Microbiology at Penn. Lm-LLObased immunotherapies stimulate the immune system to induce antigen-specific anti-tumor immune responses involving both innateand adaptive arms of the immune system. In addition, this technology facilitates the immune response by altering the microenvironmentof tumors to make them more susceptible to immune attack.

 

We have focused our initial developmentefforts on therapeutic immunotherapies targeting HPV-associated diseases: cervical intraepithelial neoplasia, which we refer toas CIN 2/3, recurrent or refractory cervical cancer, and head and neck cancer. In addition we have developed immunotherapies forprostate cancer, and HER2 expressing cancers (such as breast, gastric, bladder, brain, pancreatic and ovarian cancer). Our leaddrug candidates in clinical development are as follows:

 

Immunotherapy   Indication   Stage
ADXS-HPV   Cervical Cancer   Phase 1 Company sponsored & completed in 2007 with 15 patients.
         
    Cervical Intraepithelial Neoplasia   Phase 2 Company sponsored study, initiated in March 2010 in the US. The Company completed enrollment of the low-dose cohort in September 2011 (41 patients) and in June 2012 (40 patients) in the mid-dose cohort.
         
    Cervical Cancer   Phase 2 Company sponsored study initiated in November 2010 in India in 110 patients with recurrent or refractory cervical cancer. The Company completed enrollment (110 patients) in May 2012.
         
    Cervical Cancer   Phase 2 The Gynecologic Oncology Group (GOG) of the National Cancer Institute is conducting a study in 67 patients with recurrent or refractory cervical cancer which is currently open to enrollment. As of October 3, 2012, 6 out of 67 patients have been enrolled in the safety run-in phase.
         
    Head & Neck Cancer   Phase 1 The Cancer Research UK (CRUK) is funding a study of 27 patients with head & neck cancer at 3 UK sites. As of October 3, 2012, 6 patients have been enrolled.
         
ADXS-PSA   Prostate Cancer   Phase 1 Company sponsored (timing to be determined).
         
ADXS-HER2   HER2 Expressing Cancer   Phase 1 Company sponsored (timing to be determined).
         
ADXS-HER2   Canine Osteosarcoma   Phase 1 Company sponsored study, initiated in July 2011 in the US. As of October 3, 2012, 2 dogs have been dosed.

 

We have sustained losses fromoperations in each fiscal year since our inception, and we expect these losses to continue for the indefinite future, due to thesubstantial investment in research and development.  As of October 31, 2011 and July 31, 2012, we had an accumulateddeficit of $35,531,740 and $45,611,368, respectively and shareholders’ deficiency of $12,279,713 and $4,999,243, respectively.

  

ii
 

 

To date, we have outsourced manyfunctions of drug development including manufacturing and clinical trials management. Accordingly, the expenses of these outsourcedservices account for a significant amount of our accumulated loss. We cannot predict when, if ever, any of our immunotherapieswill become commercially viable or approved by the United States Food and Drug Administration, which we refer to as the FDA. Weexpect to spend substantial additional sums on the continued administration and research and development of proprietary productsand technologies, including conducting clinical trials for our immunotherapies, with no certainty that our immunotherapies willbecome commercially viable or profitable as a result of these expenditures.

 

We intend to continue devotinga substantial portion of our resources to the continued pre-clinical development and optimization of our platform technology soas to develop it to its full potential and to further identify appropriate new drug candidates. Specifically, we intend to conductresearch relating to developing the next generations of our Lm-LLO based immunotherapies using new antigens of interest;improving the Lm-LLO based platform technology by developing new strains of Listeria which may be more suitableas live vaccine vectors; and continuing to develop the use of the LLO as a component of a fusion protein based immunotherapy.These activities may require significant financial resources, as well as areas of expertise beyond those readily available. Inorder to provide additional resources and capital, we may enter into research, collaborative or commercial partnerships, jointventures, or other arrangements with competitive or complementary companies, including major international pharmaceutical companiesor universities.

 

Recent Developments

 

Equity Enhancement Program

 

On October 26, 2012, weentered into a Common Stock Purchase Agreement, which we refer to as the Purchase Agreement, with Hanover Holdings I, LLC, aNew York limited liability company, which we refer to as Hanover, whereby we may, subject to certain customary conditions,pursuant to a financing arrangement that is sometimes referred to as a committed equity line financing facility, which werefer to this prospectus as the Equity Enhancement Program, require Hanover to purchase up to $10.0 million of shares ofour common stock over the 24-month term following the effectiveness of the resale registration statement described below.Over the 24-month term following the effectiveness of the resale registration statement, we generally have the right, but notthe obligation, to direct Hanover to periodically purchase shares of our common stock in specific amounts undercertain conditions at our sole discretion. The purchase price for such shares of common stock will be the higher of (i) theminimum price, which we refer to as the Floor Price, set forth in our notice electing to effect such issuance, which we referto as the Draw Down Notice, and (ii) 90% of the arithmetic average of the five lowest closing sale prices of the commonstock during the applicable ten trading day pricing period (or, if less, the arithmetic average of all trading days withclosing sale prices in excess of the Floor Price), subject to adjustment upon an alternative transaction. Each trading daywith a closing sale price less than the Floor Price is excluded from the calculation of the purchase price and automaticallyreduces the number of trading days in the applicable pricing period.

 

In consideration for Hanover’s executionand delivery of the Purchase Agreement, in connection with the execution and delivery of the Purchase Agreement, we have issuedHanover 3,500,000 shares of our common stock, which we refer to as the Commitment Fee Shares. We have also agreed to issue Hanoverup to 1,800,000 additional shares of our common stock, which we refer to as the Maintenance Fee Shares, during any full calendarquarter during the term of the Purchase Agreement, if no shares of common stock have been purchased or sold because we did notdeliver a Draw Down Notice to Hanover. The number of Maintenance Fee Shares to be delivered to Hanover, from time to time, withrespect to any calendar quarter, will be equal to approximately $15,000 worth of shares of common stock at a 10% discount to market.

 

The Purchase Agreement provides for indemnificationof Hanover and its affiliates in the event that Hanover incurs losses, liabilities, obligations, claims, contingencies, damages,costs and expenses related to a breach by us of any of our representations and warranties under the Purchase Agreement or the otherrelated transaction documents or any action instituted against Hanover or its affiliates due to the transactions contemplated bythe Purchase Agreement or other transaction documents, subject to certain limitations.

 

In connection with the Purchase Agreement,on October 26, 2012, we entered into a registration rights agreement with Hanover, which we refer to as the Registration RightsAgreement, pursuant to which we granted to Hanover certain registration rights related to the Commitment Fee Shares, the MaintenanceFee Shares, and the shares issuable under the Purchase Agreement, which we refer to as the Registrable Securities. Under the RegistrationRights Agreement, we agreed to prepare and file with the SEC one or more registration statements for the purpose of registeringthe resale of the Registrable Securities. We agreed to file the initial registration statement with the SEC within 12 calendardays of the Purchase Agreement and to use our commercially reasonable efforts to cause such registration statement to be declaredeffective within 90 calendar days of the Purchase Agreement (120 calendar days if the registration statement is reviewed by theSEC).

 

We also agreed, among other things, to indemnifyHanover from certain liabilities and fees and expenses of Hanover incident to our obligations under the Registration Rights Agreement,including certain liabilities under the Securities Act. Hanover has agreed to indemnify us and hold harmless each of our directors,officers and persons who control us against certain liabilities that may be based upon written information furnished by Hanoverto us for inclusion in a registration statement pursuant to the Registration Rights Agreement, including certain liabilities underthe Securities Act of 1933, as amended.

 

For a more detailed description of theEquity Enhancement Program see “Equity Enhancement Program” on page 17 below.

 

iii
 

 

Private Placements of Convertible Notes to Hanover

 

On September 19, 2012, ina private placement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregate principalamount of $132,500 for a purchase price of $132,500, which we refer to as the September 2012 Hanover PIPE Note. On October 19,2012, in a private placement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregateprincipal amount of $132,500, for a purchase price of $132,500, which we refer to as the October 2012 Hanover PIPE Note, which,together with the September 2012 Hanover PIPE Note we refer to as the Initial Hanover PIPE Notes.

 

On December 6, 2012, in aprivate placement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregate principalamount of $100,000 for a purchase price of $100,000, which we refer to as the Hanover December 2012 Note. The Hanover December2012 Note bears interest at a rate of 12% per annum, which interest accrues, but does not become payable until maturity or accelerationof the principal of such Hanover December 2012 Note. The Hanover December 2012 Note is convertible into shares of our common stockat a conversion price of $0.03 per share. On December 5, Hanover exchanged the Initial Hanover PIPE Notes for convertible notesin the form of the Hanover December 2012 Note in all material respects (other than date of issuance, exchange date, the maturitydate of May 19, 2012 solely with respect to the Exchanged Hanover PIPE Note issued in exchange for the Hanover September 2012PIPE Note and the maturity date of June 19, 2013 solely with respect to the Exchanged Hanover PIPE Note issued in exchange forthe Hanover October 2012 PIPE Note) that also are convertible into shares of our common stock at a conversion price of $0.03 pershare, which we refer to as the Exchanged Hanover PIPE Notes. Each of the Hanover December 2012 Note and the Exchanged HanoverPIPE Notes are subject to limitations on conversion if after giving effect to such conversion Hanover would beneficially own morethan 4.99% of our common stock.

 

Other Hanover Related Transactions

 

In October 2012, pursuantto the terms of various Assignment Agreements, which we refer to as the Assignment Agreements, Magna Group, LLC, an affiliateof Hanover, which we refer to as Magna, acquired $400,075.88 in aggregate principal amount of our outstanding convertible notesfrom certain third parties and entered into agreements to acquire an additional $340,522.90 in aggregate principal amount of ouroutstanding convertible notes from other third parties. Pursuant to the terms of such Assignment Agreements, we delivered twoconvertible notes to Magna in an aggregate principal amount of $740,598.74, in anticipation of the closing of all of the transactionscontemplated by such Assignment Agreements. On October 25, 2012, the convertible note in the aggregate principal amount of $617,722.92previously delivered to Magna was exchanged for a new convertible note in the aggregate principal amount of $400,075.77, convertibleinto shares of common stock, which we refer to as the First Magna Exchange Note, to reflect such portion of the convertible notesactually issued as of October 25, 2012 pursuant to the Assignment Agreements, and the remaining convertible note in the aggregateprincipal amount of $122,875.82 previously delivered to Magna was returned to us and cancelled. Prior to the date of this filing,the First Magna Exchange Note has been converted in full into shares of our common stock in accordance with its terms and no longerremains outstanding.  

 

On November 14, 2012, pursuantto the terms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $58,823.53,convertible into shares of common stock, which we refer to as the Second Magna Exchange Note. The Second Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Second Magna Exchange Note. Prior to the date of this filing, the Second Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding

 

On November 23, 2012, pursuantto the terms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $111,111.11,convertible into shares of common stock, which we refer to as the Third Magna Exchange Note. The Third Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Third Magna Exchange Note. Prior to the date of this filing, the Third Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

On December 6, 2012, pursuantto the terms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $170,588.22,convertible into shares of common stock, which we refer to as the Fourth Magna Exchange Note. The Fourth Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Fourth Magna Exchange Note. Prior to the date of this filing, the Fourth Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

iv
 

  

Warrants – 2007 Private Placement

 

On October 17, 2012, warrantsto purchase 15,869,507 shares of our common stock expired unexercised. As of December 6, 2012, we have warrants to purchase 164,896,321shares of our common stock outstanding.

 

French Note

 

On September 27, 2012, ina private placement pursuant to a note purchase agreement, we issued our employee Christine French a convertible promissory notein the aggregate principal amount of $25,000 for a purchase price of $25,000, which we refer to as the French Note. The FrenchNote bears interest at a rate of 12% per annum, compounding annually. The French Note is convertible into shares of our commonstock at a conversion price equal to the arithmetic average of the five lowest closing trading prices for the common stock duringthe 10 trading day period ending on the latest complete trading day prior to the applicable conversion date. The French Note maturesone month from its issuance date. Additionally, Ms. French will receive a warrant, which we refer to as the French Warrant, topurchase such number of shares of our common stock equal to 50% of such number of shares of our common stock issuable upon conversionof the French Note at an exercise price equal to the conversion price then in effect. These warrants have not yet been issued.The French Warrant may be exercised on a cashless basis under certain circumstances. The French Note and the French Warrant eachinclude a limitation on conversion or exercise, as applicable, which provides that at no time will Ms. French be entitled to convertany portion of the French Note or French Warrant to the extent that after such conversion or exercise, as applicable, Ms. French(together with her affiliates) would beneficially own more than 4.99% of the outstanding shares of the common stock as of suchdate. On December 7, 2012, Ms. French agreed to extend the maturity date of the French Note to December 31, 2012.

 

Paterson Note

 

On September 25, 2012, ina private placement pursuant to a note purchase agreement, we issued our affiliate Dr. Yvonne Paterson a convertible promissorynote in the aggregate principal amount of $100,000 for a purchase price of $100,000, which we refer to as the Paterson Note. ThePaterson Note bears interest at a rate of 12% per annum, compounding annually. The Paterson Note is convertible into shares ofour common stock at a conversion price equal to the arithmetic average of the five lowest closing trading prices for the commonstock during the 10 trading day period ending on the latest complete trading day prior to the applicable conversion date. ThePaterson Note matures one month from its issuance date. Additionally, Dr. Paterson will receive a warrant, which we refer to asthe Paterson Warrant, to purchase such number of shares of our common stock equal to 50% of such number of shares of our commonstock issuable upon conversion of the Patterson Note at an exercise price equal to the conversion price then in effect. Thesewarrants have not yet been issued. The Paterson Warrant may be exercised on a cashless basis under certain circumstances. ThePaterson Note and the Paterson Warrant each include a limitation on conversion or exercise, as applicable, which provides thatat no time will Dr. Paterson be entitled to convert any portion of the Paterson Note or Paterson Warrant to the extent that aftersuch conversion or exercise, as applicable, Dr. Paterson (together with her affiliates) would beneficially own more than 4.99%of the outstanding shares of the common stock as of such date. On December 7, 2012, Dr. Paterson agreed to extend the maturitydate of the Paterson Note to December 31, 2012.

 

v
 

 

Asher Notes

 

On September 11, 2012, in aprivate placement pursuant to a note purchase agreement, we issued Asher Enterprises, Inc, which we refer to as Asher, aconvertible promissory note in the aggregate principal amount of $103,500 for a purchase price of $100,000, which we referto as the September Asher Note. The September Asher Note bears interest at a rate of 8% per annum, which interest accrues,but does not become payable until maturity or acceleration of the principal of the September Asher Note. The September AsherNote is convertible into shares of our common stock at a conversion price equal to 61% of the arithmetic average of the fivelowest closing trading prices for the common stock during the 10 trading day period ending on the latest complete trading dayprior to the applicable conversion date. The September Asher Note matures on June 13, 2013, nine months from its issuancedate. The September Asher Note may be converted by Asher, at its option, in whole or in part. The September Asher Noteincludes a limitation on conversion, which provides that at no time will Asher be entitled to convert any portion of theSeptember Asher Note to the extent that after such conversion Asher (together with its affiliates) would beneficially ownmore than 4.99% of the outstanding shares of the common stock as of such date.

 

On November 12, 2012, in a private placementpursuant to a note purchase agreement, we issued Asher a convertible promissory note in the aggregate principal amount of $153,500for a purchase price of $153,500, which we refer to as the November Asher Note. The November Asher Note bears interest at a rateof 8% per annum, which interest accrues, but does not become payable until maturity or acceleration of the principal of the NovemberAsher Note. The November Asher Note is convertible into shares of our common stock at a conversion price equal to 65% of the arithmeticaverage of the four lowest closing trading prices for the common stock during the 20 trading day period ending on the latest completetrading day prior to the applicable conversion date. The November Asher Note matures on August 14, 2013, nine months from itsissuance date. The November Asher Note may be converted by Asher, at its option, in whole or in part. The November Asher Noteincludes a limitation on conversion, which provides that at no time will Asher be entitled to convert any portion of the NovemberAsher Note to the extent that after such conversion Asher (together with its affiliates) would beneficially own more than 4.99%of the outstanding shares of the common stock as of such date.

 

August 2012 Note

 

On August 27, 2012, in a private placementpursuant to a note purchase agreement, we issued JMJ Financial a convertible promissory note in the aggregate principal amountof $100,000 for a purchase price of $100,000, which we refer to as the August 2012 Note. The August 2012 Note is initially convertibleat a per share conversion price equal to $0.15. In addition, if the August 2012 Note is converted after November 30, 2012 and themarket price of our common stock is less than $0.16 per share on the date of conversion, then the conversion price shall equal95% of the arithmetic average of the three lowest closing trading prices for the common stock during the 15 trading day periodending on the latest complete trading day prior to the applicable conversion date. The August 2012 Note matures on August 29, 2013.To the extent JMJ Financial does not elect to convert the August 2012 Note as described above, the principal amount and interestof such note shall be payable in cash at maturity. The August 2012 Note may be converted by JMJ Financial, at its option, in wholeor in part. The August 2012 Note includes a limitation on conversion, which provides that at no time will JMJ Financial be entitledto convert any portion of the August 2012 Note to the extent that after such conversion JMJ Financial (together with its affiliates)would beneficially own more than 4.99% of the outstanding shares of the common stock as of such date. Pursuant to the terms ofthe August 2012 Note, we agreed to register up to 3,250,000 shares of our common stock which may be issuable upon conversion ofthe August 2012 Note with the SEC. These shares were registered on August 31, 2012.

 

JMJ August 2012 Settlement Agreement

 

On August 27, 2012, we entered into a settlementagreement with JMJ Financial pursuant to which we issued to JMJ Financial 4,076,923 shares of our common stock for the mutual releaseof any claims held by our company or JMJ Financial relating to our failure to file the registration statement related to the May2012 issuance of 4,000,000 shares of our common stock to JMJ Financial and have the registration statement declared effective bycertain prescribed deadlines.

 

Amendment to Certificate of Incorporation

 

On August 16, 2012, we filed a certificateof amendment to our amended and restated certificate of incorporation with the Delaware Secretary of State to increase the totalnumber of authorized shares of capital stock available for issuance from 505,000,000, consisting of 500,000,000 shares of our commonstock and 5,000,000 shares of “blank check” preferred stock, to 1,005,000,000, consisting of 1,000,000,000 shares ofour common stock and 5,000,000 shares of “blank check” preferred stock. The certificate of amendment became effectiveupon filing.

 

vi
 

 

Patton Note

 

On August 2, 2012, in a privateplacement pursuant to a note purchase agreement, we issued Dr. James Patton, a member of our board of directors, a convertiblepromissory note, which we refer to as the Patton Note, in the principal amount of $66,667 for a purchase price of $50,000. ThePatton Note was issued with an original issue discount of 25%. Dr. Patton paid $0.75 for each $1.00 of principal amount of thePatton Note purchased. The Patton Note is convertible into shares of our common stock at a per share conversion price equal to$0.025287. Additionally, Dr. Patton received a warrant, which we refer to as the Patton Warrant, to purchase such number of sharesof our common stock equal to 50% of such number of shares of our common stock issuable upon conversion of the Patton Note at anexercise price of $0.025287 per share. The Patton Note matures on August 2, 2013. We may redeem the Patton Note under certaincircumstances. The Patton Warrant is exercisable at any time on or before August 2, 2017. The Patton Warrant may be exercisedon a cashless basis under certain circumstances. The Patton Note and the Patton Warrant each include a limitation on conversionor exercise, as applicable, which provides that at no time will Dr. Patton be entitled to convert any portion of the Patton Noteor Patton Warrant to the extent that after such conversion or exercise, as applicable, Dr. Patton (together with his affiliates)would beneficially own more than 4.99% of the outstanding shares of the common stock as of such date.

  

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Our History

 

We were originally incorporatedin the State of Colorado on June 5, 1987 under the name Great Expectations, Inc.  We were administratively dissolvedon January 1, 1997 and reinstated on June 18, 1998 under the name Great Expectations and Associates, Inc.  In 1999,we became a reporting company under the Securities Exchange Act of 1934, as amended.  We were a publicly-traded “shell”company without any business until November 12, 2004 when we acquired Advaxis, Inc., a Delaware corporation, through a Share Exchangeand Reorganization Agreement, dated as of August 25, 2004, which we refer to as the Share Exchange, by and among Advaxis, thestockholders of Advaxis and us.  As a result of the Share Exchange, Advaxis became our wholly-owned subsidiary and oursole operating company.  On December 23, 2004, we amended and restated our articles of incorporation and changed ourname to Advaxis, Inc.  On June 6, 2006, our shareholders approved the reincorporation of our company from Colorado toDelaware by merging the Colorado entity into our wholly-owned Delaware subsidiary. Our date of inception, for financial statementpurposes, is March 1, 2002. Our statements of income and cash flows disclose our accumulated losses and net cash increases (decreases),respectively since inception.

  

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Principal Executive Offices

 

Our principal executive officesare located at 305 College Road East, Princeton, New Jersey 08540 and our telephone number is (609) 452-9813.  We maintaina website at www.advaxis.com which contains descriptions of our technology, our drugs and the trial status of each drug.  Theinformation on our website is not incorporated into this prospectus.

 

 

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THE OFFERING

 

Shares of common stock offered by us   None
     

Shares of common stock which may be sold by

the selling stockholder

  The selling shareholder named in this prospectus may offer and sell up to 115,000,000 shares of our common stock (1).
     
Use of proceeds   We will not receive any proceeds from the resale of the shares of common stock offered by the selling stockholder as all of such proceeds will be paid to the selling stockholder.  
     
Risk factors   The purchase of our common stock involves a high degree of risk.  You should carefully review and consider the “Risk Factors” section of this prospectus for a discussion of factors to consider before deciding to invest in shares of our common stock.
     
OTC Bulletin Board market symbol   ADXS.OB
     
       

 

(1) These shares represent approximately27.1% of our currently outstanding shares of common stock (based on 423,827,618 shares of common stock outstanding as of December6, 2012). These shares also represent approximately 16.3% of our currently outstanding shares of common stock (based on 706,730,213shares of common stock outstanding as of December 6, 2012) on a fully diluted basis.

  

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RISK FACTORS

 

An investment in our common stock ishighly speculative, involves a high degree of risk and should be made only by investors who can afford a complete loss of theirinvestment.  You should carefully consider, together with the other matters referred to in this prospectus, the followingrisk factors before you decide whether to buy our common stock.

 

Risks Related to our Business

 

We are a development stage company.

 

We are an early development stage biotechnologycompany with a history of losses and can provide no assurance as to future operating results.  As a result of losseswhich will continue throughout our development stage, we may exhaust our financial resources and be unable to complete the developmentof our production.  Our deficit will continue to grow during our drug development period.

 

We have sustained losses from operationsin each fiscal year since our inception, and we expect losses to continue for the indefinite future, due to the substantial investmentin research and development.  As of October 31, 2011 and July 31, 2012, we had an accumulated deficit of $35,531,740and $45,611,368, respectively and shareholders’ deficiency of $12,279,713 and $4,999,243, respectively.  We expectto spend substantial additional sums on the continued administration and research and development of proprietary products andtechnologies with no certainty that our immunotherapies will become commercially viable or profitable as a result of these expenditures.

 

As a result of our current lack of financial liquidityand negative stockholders equity, our auditors have expressed substantial concern about our ability to continue as a “goingconcern” .

 

Our limited capital resources and operationsto date have been funded primarily with the proceeds from public and private equity and debt financings, NOL and Research taxcredits and income earned on investments and grants. Based on our currently available cash, we do not have adequate cash on handto cover our anticipated expenses for the next 12 months. If we fail to raise a significant amount of capital, we may need tosignificantly curtail operations, cease operations or seek federal bankruptcy protection in the near future. These conditionshave caused our auditors to raise substantial doubt about our ability to continue as a going concern.  Consequently,the audit report prepared by our independent public accounting firm relating to our financial statements for the year ended October31, 2011 included a going concern explanatory paragraph.

 

There can be no assurance that we will receive fundingfrom Optimus in connection with the Series B preferred equity financing and if the average closing sale price of our common stockon each tranche notice date is less than $0.15 per share, we may not be able to require Optimus to purchase the entire $7.5 millionof Series B preferred stock issuable under the Series B purchase agreement, as amended.

 

On July 19, 2010, we entered into aSeries B preferred stock purchase agreement, which we refer to as the Series B purchase agreement, with Optimus Capital Partners,LLC, which we refer to as Optimus, which was subsequently amended on April 4, 2011. Pursuant to the Series B purchase agreement,Optimus remains obligated to purchase $2.84 million of our non-convertible, redeemable Series B preferred stock, which we referto as our Series B preferred stock, at a price of $10,000 per share from time to time, subject to our ability to effect and maintainan effective registration statement for the remaining 25,610,038 shares underlying the warrants issued to an affiliate of Optimusin connection with the transaction.  As of December 6, 2012, Optimus had purchased an aggregate of 466 shares of SeriesB preferred stock and remains obligated, from time to time until July 19, 2013, to purchase up to an additional 284 shares ofSeries B preferred stock, for an aggregate purchase price of $2,840,000, upon notice from us to Optimus, if certain conditionsset forth in the Series B purchase agreement, as amended, are satisfied, including among other things that: (i) we must bein compliance with our SEC reporting obligations, (ii) our common stock must be quoted on an eligible trading market, (iii) amaterial adverse effect relating to, among other things, our results of operations, assets, business or financial condition mustnot have occurred since July 19, 2010, other than losses incurred in the ordinary course of business, (iv) we must not be in defaultunder any material agreement, (v) Optimus and its affiliates must not own more than 9.99% of our outstanding common stock, and(vi) we must comply with certain other requirements set forth in the Series B purchase agreement, as amended.  If wefail to comply with any of these requirements, Optimus will not be obligated to purchase our Series B preferred stock and we willnot receive any funding from Optimus. Moreover, if we exercise our option to require Optimus to purchase our Series B preferredstock, and our common stock has a closing price of less than $0.15 per share on the trading day immediately preceding our deliveryof the exercise notice, we may trigger at closing certain anti-dilution protection provisions in certain outstanding warrantsthat would result in an adjustment to the number and price of certain outstanding warrants.

  

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In connection with our Series B preferredequity financing, we originally issued to an affiliate of Optimus a three-year warrant to purchase up to 40,500,000 shares ofour common stock, at an initial exercise price of $0.25 per share, of which no shares of our common stock remain available topurchase.  In connection with the amendment to the Series B purchase agreement, we subsequently issued to an affiliateof Optimus a three-year warrant to purchase up to an additional 25,560,000 shares of our common stock, at an initial exerciseprice of $0.15 per share.  The warrants provide that on each tranche notice date under the Series B purchase agreement,as amended, (i) that portion of the warrants, in the aggregate, equal to 135% of the tranche amount will vest and become exercisable(and such vested portion may be exercised at any time during the exercise period on or after such tranche notice date) and (ii)the exercise price will be adjusted to the closing sale price of a share of our common stock on such tranche notice date.  Weare not permitted to deliver a tranche notice under the Series B purchase agreement, as amended, and require Optimus to purchaseshares of Series B preferred stock if the number of registered shares underlying the warrant issued to the affiliate of Optimusis insufficient to cover the portion of the warrant that will vest and become exercisable in connection with such tranche notice.  Ifthe average closing sale price of our common stock on each tranche notice date is less than $0.15 per share, we may not be ableto require Optimus to purchase the remaining $2.84 million of Series B preferred stock issuable under the Series B purchase agreement,as amended, without issuing additional warrant shares.  We cannot assure you that we will be able to timely effect andmaintain a registration statement for the remaining 25,560,000 warrant shares  (or any additional warrant shares that maybe necessary) so as to permit us to require Optimus to purchase the remaining $2,840,000 of Series B preferred stock under theSeries B purchase agreement, as amended.

 

Our business will require substantial additional investmentthat we have not yet secured, and our failure to raise capital and/or pursue partnering opportunities will materially adverselyaffect our business, financial condition and results of operations.

 

We expect to continue to spend substantialamounts on research and development, including conducting clinical trials for our immunotherapies. However, we will not have sufficientresources to develop fully any new products or technologies unless we are able to raise substantial additional financing on acceptableterms, secure funds from new partners or consummate a preferred equity financing under the Series B purchase agreement, as amended.We cannot be assured that financing will be available at all.  Our failure to raise a significant amount of capitalin the near future will materially adversely affect our business, financial condition and results of operations, and we may needto significantly curtail operations, cease operations or seek federal bankruptcy protection in the near future.  Anyadditional investments or resources required would be approached, to the extent appropriate in the circumstances, in an incrementalfashion to attempt to cause minimal disruption or dilution.  Any additional capital raised through the sale of equityor convertible debt securities will result in dilution to our existing stockholders.  No assurances can be given, however,that we will be able to achieve these goals or that we will be able to continue as a going concern.

 

We have significant indebtedness which may restrict ourbusiness and operations, adversely affect our cash flow and restrict our future access to sufficient funding to finance desiredgrowth.

 

As of December 6, 2012, our total outstandingindebtedness was approximately $2.5 million, which included the face value of all our outstanding junior bridge notes in the amountof approximately $0.06 million, a note outstanding to our chief executive officer in the amount of approximately $0.3 million,debt acquired in May 2012 with a remaining aggregate principal amount of approximately $0.9 million, debt acquired in July andAugust 2012 with a remaining aggregate principal balance at approximately $0.4 million, debt acquired in September and October2012 with a remaining aggregate principal amount of approximately $0.5 million and debt acquired in November and December 2012with a remaining aggregate principal balance of approximately $0.3 million. Maturity dates for the remaining $2.5 million rangebetween October 2011 and on or about September 30, 2014. Certain of our indebtedness contain restrictive covenants that limitour ability to issue certain types of indebtedness, which may prevent us from obtaining additional indebtedness on commerciallyreasonable terms, or at all.  We dedicate a substantial portion of our cash to pay interest and principal on our debt. Ifwe are not able to service our debt, we would need to refinance all or part of that debt, sell assets, borrow more money or sellsecurities, which we may not be able to do on commercially reasonable terms, or at all.  In addition, our failure totimely repay (or extend) amounts due and owing under our outstanding junior bridge notes issued in October 2009 may trigger theanti-dilution protection provisions in certain of our warrants, in which case holders of our common stock will experience significantadditional dilution.

 

The terms of our notes include customaryevents of default and covenants that restrict our ability to incur additional indebtedness. These restrictions and covenants mayprevent us from engaging in transactions that might otherwise be considered beneficial to us. A breach of the provisions of ourindebtedness could result in an event of default under our outstanding notes.  If an event of default occurs under ournotes (after any applicable notice and cure periods), the holders would be entitled to accelerate the repayment of amounts outstanding,plus accrued and unpaid interest.   In the event of a default under our senior indebtedness, the holders couldalso foreclose against the assets securing such obligations.  In the event of a foreclosure on all or substantiallyall of our assets, we may not be able to continue to operate as a going concern.

 

Our limited operating history does not afford investorsa sufficient history on which to base an investment decision.

 

We commenced our Lm-LLO based immunotherapydevelopment business in February 2002 and have existed as a development stage company since such time.  Prior theretowe conducted no business.  Accordingly, we have a limited operating history.  Investors must consider therisks and difficulties we have encountered in the rapidly evolving vaccine and therapeutic biopharmaceutical industry.  Suchrisks include the following:

 

  · competition from companies that have substantially greater assets and financial resources than we have;

 

  · need for acceptance of our immunotherapies;

 

  · ability to anticipate and adapt to a competitive market and rapid technological developments;

  

3
 

 

  · amount and timing of operating costs and capital expenditures relating to expansion of our business, operations and infrastructure;

 

  · need to rely on multiple levels of complex financing agreements with outside funding due to the length of drug development cycles and governmental approved protocols associated with the pharmaceutical industry; and

 

  · dependence upon key personnel including key independent consultants and advisors.

 

We cannot be certain that our strategywill be successful or that we will successfully address these risks.  In the event that we do not successfully addressthese risks, our business, prospects, financial condition and results of operations could be materially and adversely affected.  Wemay be required to reduce our staff, discontinue certain research or development programs of our future products and cease tooperate.

 

We can provide no assurance of the successful and timelydevelopment of new products.

 

Our immunotherapies are at various stagesof research and development. Further development and extensive testing will be required to determine their technical feasibilityand commercial viability. Our success will depend on our ability to achieve scientific and technological advances and to translatesuch advances into licensable, FDA-approvable, commercially competitive products on a timely basis. Immunotherapies and vaccinesthat we may develop are not likely to be commercially available until five to ten or more years. The proposed development schedulesfor our immunotherapies may be affected by a variety of factors, including technological difficulties, clinical trial failures,regulatory hurdles, competitive products, intellectual property challenges and/or changes in governmental regulation, many ofwhich will not be within our control. Any delay in the development, introduction or marketing of our products could result eitherin such products being marketed at a time when their cost and performance characteristics would not be competitive in the marketplaceor in the shortening of their commercial lives. In light of the long-term nature of our projects, the unproven technology involvedand the other factors described elsewhere in “Risk Factors,” there can be no assurance that we will be able to successfullycomplete the development or marketing of any new products.

 

Our research and development expensesare subject to uncertainty.

 

Factors affecting our research and developmentexpenses include, but are not limited to:

 

  · competition from companies that have substantially greater assets and financial resources than we have;

 

  · need for acceptance of our immunotherapies;

 

  · ability to anticipate and adapt to a competitive market and rapid technological developments;

 

  · amount and timing of operating costs and capital expenditures relating to expansion of our business, operations and infrastructure;

 

  · need to rely on multiple levels of outside funding due to the length of drug development cycles and governmental approved protocols associated with the pharmaceutical industry; and

 

  · dependence upon key personnel including key independent consultants and advisors.

 

We are subject to numerous risks inherent in conductingclinical trials.

 

We outsource the management of our clinicaltrials to third parties. Agreements with clinical investigators and medical institutions for clinical testing and with other thirdparties for data management services, place substantial responsibilities on these parties which, if unmet, could result in delaysin, or termination of, our clinical trials. For example, if any of our clinical trial sites fail to comply with FDA-approved goodclinical practices, we may be unable to use the data gathered at those sites. If these clinical investigators, medical institutionsor other third parties do not carry out their contractual duties or obligations or fail to meet expected deadlines, or if thequality or accuracy of the clinical data they obtain is compromised due to their failure to adhere to our clinical protocols orfor other reasons, our clinical trials may be extended, delayed or terminated, and we may be unable to obtain regulatory approvalfor or successfully commercialize agents such as ADXS-HPV. We are not certain that we will successfully recruit enough patientsto complete our clinical trials nor that we will reach our primary endpoints. Delays in recruitment, lack of clinical benefitor unacceptable side effects would delay or prevent the initiation of the Phase 3 trials of ADXS-HPV.

 

We or our regulators may suspend or terminateour clinical trials for a number of reasons.  We may voluntarily suspend or terminate our clinical trials if at anytime we believe they present an unacceptable risk to the patients enrolled in our clinical trials or do not demonstrate clinicalbenefit.  In addition, regulatory agencies may order the temporary or permanent discontinuation of our clinical trialsat any time if they believe that the clinical trials are not being conducted in accordance with applicable regulatory requirementsor that they present an unacceptable safety risk to the patients enrolled in our clinical trials.

  

4
 

 

Our clinical trial operations are subjectto regulatory inspections at any time.  If regulatory inspectors conclude that we or our clinical trial sites are notin compliance with applicable regulatory requirements for conducting clinical trials, we may receive reports of observations orwarning letters detailing deficiencies, and we will be required to implement corrective actions.  If regulatory agenciesdeem our responses to be inadequate, or are dissatisfied with the corrective actions we or our clinical trial sites have implemented,our clinical trials may be temporarily or permanently discontinued, we may be fined, we or our investigators may be precludedfrom conducting any ongoing or any future clinical trials, the government may refuse to approve our marketing applications orallow us to manufacture or market our products, and we may be criminally prosecuted.

 

The successful development of biopharmaceuticals is highlyuncertain.

 

Successful development of biopharmaceuticalsis highly uncertain and is dependent on numerous factors, many of which are beyond our control.  Immunotherapies thatappear promising in the early phases of development may fail to reach the market for several reasons including:

 

  · Preclinical study results that may show the immunotherapy to be less effective than desired (e.g., the study failed to meet its primary objectives) or to have harmful or problematic side effects;

 

  · Clinical study results that may show the immunotherapy to be less effective than expected (e.g., the study failed to meet its primary endpoint) or to have unacceptable side effects;

 

  · Failure to receive the necessary regulatory approvals or a delay in receiving such approvals. Among other things, such delays may be caused by slow enrollment in clinical studies, length of time to achieve study endpoints, additional time requirements for data analysis, or Biologics License Application preparation, discussions with the FDA, an FDA request for additional preclinical or clinical data, or unexpected safety or manufacturing issues;

 

  · Manufacturing costs, formulation issues, pricing or reimbursement issues, or other factors that make the immunotherapy uneconomical; and

 

  · The proprietary rights of others and their competing products and technologies that may prevent the immunotherapy from being commercialized.

 

Success in preclinical and early clinicalstudies does not ensure that large-scale clinical studies will be successful.  Clinical results are frequently susceptibleto varying interpretations that may delay, limit or prevent regulatory approvals. The length of time necessary to complete clinicalstudies and to submit an application for marketing approval for a final decision by a regulatory authority varies significantlyfrom one immunotherapy to the next, and may be difficult to predict.

 

We must comply with significant government regulations.

 

The research and development, manufactureand marketing of human therapeutic and diagnostic products are subject to regulation, primarily by the FDA in the U.S. and bycomparable authorities in other countries.  These national agencies and other federal, state, local and foreign entitiesregulate, among other things, research and development activities (including testing in animals and in humans) and the testing,manufacturing, handling, labeling, storage, record keeping, approval, advertising and promotion of the products that we are developing.  Noncompliancewith applicable requirements can result in various adverse consequences, including delay in approving or refusal to approve productlicenses or other applications, suspension or termination of clinical investigations, revocation of approvals previously granted,fines, criminal prosecution, recall or seizure of products, injunctions against shipping products and total or partial suspensionof production and/or refusal to allow a company to enter into governmental supply contracts.

 

The process of obtaining requisite FDAapproval has historically been costly and time-consuming. Current FDA requirements for a new human biological product to be marketedin the U.S. include: (1) the successful conclusion of preclinical laboratory and animal tests, if appropriate, to gain preliminaryinformation on the product’s safety; (2) filing with the FDA of an Investigational New Drug Application, which we referto as an IND, to conduct human clinical trials for drugs or biologics; (3) the successful completion of adequate and well-controlledhuman clinical trials to establish the safety and efficacy of the investigational new drug for its recommended use; and (4) filingby a company and acceptance and approval by the FDA of a Biologic License Application, which we refer to as a BLA, for a biologicalinvestigational new drug, to allow commercial distribution of a biologic product. A delay in one or more of the procedural stepsoutlined above could be harmful to us in terms of getting our immunotherapies through clinical testing and to market.

  

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We can provide no assurance that our investigationalnew drugs will obtain regulatory approval or that the results of clinical studies will be favorable.

 

In February 2006, we received permissionfrom the appropriate governmental/regulatory agencies in Israel, Mexico and Serbia to conduct a Phase 1 clinical study of ADXS-HPV,our first Lm-LLO based immunotherapy targeting HPV16-E7 to determine safety and the maximum tolerated dose in patientswith recurrent or refractory cervical cancer. The study was completed in the fiscal quarter ended January 31, 2008. The next stepwas to test ADXS-HPV in the U.S. which required the filing of an IND with the FDA. The filing included the required preclinicalanimal pharmacology and toxicology studies, manufacturing information, proposed clinical protocol and investigator informationas well as the data generated from the Phase 1 study. Unlike the Phase 2 study patient population of late stage cervical cancerpatients, the clinical protocol submitted in the IND proposed to evaluate the safety and efficacy of ADXS-HPV in healthy youngpatients with CIN 2/3, the pre-neoplastic stage of cervical cancer. On January 6, 2009 we received permission from the FDA toconduct the Phase 2 clinical trial and the trial was initiated in March 2010. However, even though we were allowed to initiatethis trial, as with any investigational new drug under an IND, we are always at risk of a clinical hold. There can be delays inobtaining FDA or any other necessary regulatory approvals of any investigational new drug and failure to receive such approvalswould have an adverse effect on the investigational new drug’s potential commercial success and on our business, prospects,financial condition and results of operations. In addition, it is possible that an approved product may be found to be ineffectiveor unsafe due to conditions or facts which arise after development has been completed and regulatory approvals have been obtained.In this event, we may be required to withdraw such product from the market. To the extent that our success will depend on anyregulatory approvals from governmental authorities outside of the U.S. that perform roles similar to that of the FDA, uncertaintiessimilar to those stated above will also exist.

 

We rely upon patents to protect our technology.  Wemay be unable to protect our intellectual property rights and we may be liable for infringing the intellectual property rightsof others.

 

Our ability to compete effectively willdepend on our ability to maintain the proprietary nature of our technologies, including the Lm-LLO based immunotherapyplatform technology, and the proprietary technology of others with whom we have entered into collaboration and licensing agreements.

 

As of December 6, 2012 we have 39 patentsthat have been issued and licenses for 39 patent applications that are pending (including the 23 patent applications obtainedin May 2010 and 2 patent applications obtained in November 2011).  We have licensed most of these patents and applicationsfrom Penn and we have obtained the rights to all future patent applications originating in the laboratories of Dr. Yvonne Patersonand Dr. Fred Frankel.  Further, we rely on a combination of trade secrets and nondisclosure, and other contractual agreementsand technical measures to protect our rights in the technology.  We depend upon confidentiality agreements with ourofficers, employees, consultants, and subcontractors to maintain the proprietary nature of the technology. These measures maynot afford us sufficient or complete protection, and others may independently develop technology similar to ours, otherwise avoidthe confidentiality agreements, or produce patents that would materially and adversely affect our business, prospects, financialcondition, and results of operations.  Such competitive events, technologies and patents may limit our ability to raisefunds, prevent other companies from collaborating with us, and in certain cases prevent us from further developing our technologydue to third party patent blocking rights.

 

We are aware of Aduro Biotech, a companycomprised in part of former Cerus and Anza (two former biotech companies) employees that is investigating Listeria vaccines.We believe that through our exclusive worldwide license with Penn we have the earliest known and dominant patent positions inthe U.S. and rest of world for the use of recombinant Listeria monocytogenes expressing fusion proteins or tumor antigensas an immunotherapy for the treatment of infectious diseases and cancer.  We successfully defended our intellectualproperty by contesting a challenge made by Anza to our patent position in Europe on a claim not available in the U.S.  TheEuropean Patent Office, which we refer to as the EPO, Board of Appeals in Munich, Germany has ruled in favor of The Trustees ofPenn and its exclusive licensee Advaxis and reversed a patent ruling that revoked a technology patent that had resulted from anopposition filed by Anza.  The ruling of the EPO Board of Appeals is final and cannot be appealed.  The grantedclaims, the subject matter of which was discovered by Dr. Yvonne Paterson, scientific founder of Advaxis, are directed to themethod of preparation and composition of matter of recombinant bacteria expressing tumor antigens for treatment of patients withcancer.  Based on searches of publicly available databases, we do not believe that Anza, Aduro or any other third partyowns any published Listeria patents or has any issued patent claims that might materially and adversely affect our abilityto operate our business as currently contemplated in the field of recombinant Listeria monocytogenes.  Additionally,our proprietary position is that the issued patents and licenses for pending applications restricts anyone from using plasmidbased Listeria constructs, or those that are bioengineered to deliver antigens fused to LLO, ActA, or fragments of LLOor ActA.

 

We are dependent upon our license agreement with Penn;if we fail to make payments due and owing to Penn under our license agreement, our business will be materially and adversely affected.

 

Pursuant to the terms of our Secondand Third Amendment Agreements with Penn, as amended, we have acquired exclusive worldwide licenses for an additional 25 patentapplications related to our proprietary Listeria vaccine technology. As of December 6, 2012, we owed Penn approximately$510,000 in patent expenses (including licensing fees).  We can provide no assurance that we will be able to make all paymentsdue and owing thereunder, that such licenses will not be terminated or expire during critical periods, that we will be able toobtain licenses for other rights which may be important to us, or, if obtained, that such licenses will be obtained on commerciallyreasonable terms.

  

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If we are unable to maintain and/or obtainlicenses, we may have to develop alternatives to avoid infringing on the patents of others, potentially causing increased costsand delays in drug development and introduction or precluding the development, manufacture, or sale of planned products. Someof our licenses provide for limited periods of exclusivity that require minimum license fees and payments and/or may be extendedonly with the consent of the licensor. We can provide no assurance that we will be able to meet these minimum license fees inthe future or that these third parties will grant extensions on any or all such licenses. This same restriction may be containedin licenses obtained in the future. Additionally, we can provide no assurance that the patents underlying any licenses will bevalid and enforceable. To the extent any products developed by us are based on licensed technology, royalty payments on the licenseswill reduce our gross profit from such product sales and may render the sales of such products uneconomical.

 

We have no manufacturing, sales, marketing or distributioncapability and we must rely upon third parties for such.

 

We do not intend to create facilities tomanufacture our products and therefore are dependent upon third parties to do so. We currently have agreements with RecipharmCobra Biologics Limited, which we refer to as Recipharm Cobra, and Vibalogics GmbH for production of our immunotherapies for researchand development and testing purposes. Our reliance on third parties for the manufacture of our drug substance, investigationalnew drugs and approved products creates a dependency that could severely disrupt our research and development, our clinical testing,and ultimately our sales and marketing efforts if the source of such supply proves to be unreliable or unavailable. If the contractedmanufacturing source is unreliable or unavailable, we may not be able to manufacture clinical drug supplies of our immunotherapies,and our preclinical and clinical testing programs may not be able to move forward and our entire business plan could fail.

 

 If we are unable to establish or manage strategiccollaborations in the future, our revenue and drug development may be limited.

 

Our strategy includes eventual substantialreliance upon strategic collaborations for marketing and commercialization of ADXS-HPV, and we may rely even more on strategiccollaborations for research, development, marketing and commercialization of our other immunotherapies. To date, we have not enteredinto any strategic collaborations with third parties capable of providing these services although we have been heavily reliantupon third party outsourcing for our clinical trials execution and production of drug supplies for use in clinical trials. Inaddition, we have not yet licensed, marketed or sold any of our immunotherapies or entered into successful collaborations forthese services in order to ultimately commercialize our immunotherapies. Establishing strategic collaborations is difficult andtime-consuming. Our discussion with potential collaborators may not lead to the establishment of collaborations on favorable terms,if at all. For example, potential collaborators may reject collaborations based upon their assessment of our financial, clinical,regulatory or intellectual property position. If we successfully establish new collaborations, these relationships may never resultin the successful development or commercialization of our immunotherapies or the generation of sales revenue. To the extent thatwe enter into co-promotion or other collaborative arrangements, our product revenues are likely to be lower than if we directlymarketed and sold any products that we may develop.

 

Management of our relationships with ourcollaborators will require:

 

  · significant time and effort from our management team;

 

  · coordination of our research and development programs with the research and development priorities of our collaborators; and

 

  · effective allocation of our resources to multiple projects.

 

If we continue to enter into research anddevelopment collaborations at the early phases of drug development, our success will in part depend on the performance of ourcorporate collaborators. We will not directly control the amount or timing of resources devoted by our corporate collaboratorsto activities related to our immunotherapies. Our corporate collaborators may not commit sufficient resources to our researchand development programs or the commercialization, marketing or distribution of our immunotherapies. If any corporate collaboratorfails to commit sufficient resources, our preclinical or clinical development programs related to this collaboration could bedelayed or terminated. Also, our collaborators may pursue existing or other development-stage products or alternative technologiesin preference to those being developed in collaboration with us. Finally, if we fail to make required milestone or royalty paymentsto our collaborators or to observe other obligations in our agreements with them, our collaborators may have the right to terminatethose agreements.

 

We may incur substantial liabilities from any productliability claims if our insurance coverage for those claims is inadequate.

 

We face an inherent risk of product liabilityexposure related to the testing of our immunotherapies in human clinical trials, and will face an even greater risk if the approvedproducts are sold commercially. An individual may bring a liability claim against us if one of the immunotherapies causes, ormerely appears to have caused, an injury. If we cannot successfully defend ourselves against the product liability claim, we willincur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:

 

  · decreased demand for our immunotherapies;

 

  · damage to our reputation;

  

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  · withdrawal of clinical trial participants;

 

  · costs of related litigation;

 

  · substantial monetary awards to patients or other claimants;

 

  · loss of revenues;

 

  · the inability to commercialize immunotherapies; and

 

  · increased difficulty in raising required additional funds in the private and public capital markets.

 

We have insurance coverage on our clinicaltrials for each clinical trial site. We do not have product liability insurance because we do not have products on the market.We currently are in the process of obtaining insurance coverage and to expand such coverage to include the sale of commercialproducts if marketing approval is obtained for any of our immunotherapies. However, insurance coverage is increasingly expensiveand we may not be able to maintain insurance coverage at a reasonable cost and we may not be able to obtain insurance coveragethat will be adequate to satisfy any liability that may arise.

 

We may incur significant costs complying with environmentallaws and regulations.

 

We and our contracted third parties willuse hazardous materials, including chemicals and biological agents and compounds that could be dangerous to human health and safetyor the environment.  As appropriate, we will store these materials and wastes resulting from their use at our or ouroutsourced laboratory facility pending their ultimate use or disposal.  We will contract with a third party to properlydispose of these materials and wastes.  We will be subject to a variety of federal, state and local laws and regulationsgoverning the use, generation, manufacture, storage, handling and disposal of these materials and wastes.  We may alsoincur significant costs complying with environmental laws and regulations adopted in the future.

 

If we use biological and hazardous materials in a mannerthat causes injury, we may be liable for damages.

 

Our research and development and manufacturingactivities will involve the use of biological and hazardous materials.  Although we believe our safety procedures forhandling and disposing of these materials will comply with federal, state and local laws and regulations, we cannot entirely eliminatethe risk of accidental injury or contamination from the use, storage, handling or disposal of these materials.  We donot carry specific biological or hazardous waste insurance coverage, workers compensation or property and casualty and generalliability insurance policies which include coverage for damages and fines arising from biological or hazardous waste exposureor contamination.  Accordingly, in the event of contamination or injury, we could be held liable for damages or penalizedwith fines in an amount exceeding our resources, and our clinical trials or regulatory approvals could be suspended or terminated.

 

We need to attract and retain highly skilled personnel;we may be unable to effectively manage growth with our limited resources.

 

As of December 6, 2012, we had 11 employees,all of which were full time employees.  We do not intend to significantly expand our operations and staff unless weget adequate financing.  If we receive such funding then our new employees may include key managerial, technical, financial,research and development and operations personnel who will not have been fully integrated into our operations.  We willbe required to expand our operational and financial systems significantly and to expand, train and manage our work force in orderto manage the expansion of our operations.  Our failure to fully integrate any new employees into our operations couldhave a material adverse effect on our business, prospects, financial condition and results of operations.

 

We operate under an agreement with AlphaStaff,a professional employment organization that provides us with payroll and human resources services.  Our ability to attractand retain highly skilled personnel is critical to our operations and expansion.  We face competition for these typesof personnel from other technology companies and more established organizations, many of which have significantly larger operationsand greater financial, technical, human and other resources than we have.  We may not be successful in attracting andretaining qualified personnel on a timely basis, on competitive terms, or at all.  If we are not successful in attractingand retaining these personnel, our business, prospects, financial condition and results of operations will be materially adverselyaffected.  In such circumstances we may be unable to conduct certain research and development programs, unable to adequatelymanage our clinical trials  and other products, and unable to adequately address our management needs.  Inaddition, from time to time, we are unable to make payroll due to our lack of cash.

  

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We depend upon our senior management and key consultantsand their loss or unavailability could put us at a competitive disadvantage.

 

We depend upon the efforts and abilitiesof our senior executives, as well as the services of several key consultants, including Yvonne Paterson, Ph.D.  Theloss or unavailability of the services of any of these individuals for any significant period of time could have a material adverseeffect on our business, prospects, financial condition and results of operations.  We have not obtained, do not own,nor are we the beneficiary of, key-person life insurance.

 

Risks Related to the Biotechnology / Biopharmaceutical Industry

 

The biotechnology and biopharmaceutical industries arecharacterized by rapid technological developments and a high degree of competition.  We may be unable to compete withmore substantial enterprises.

 

The biotechnology and biopharmaceuticalindustries are characterized by rapid technological developments and a high degree of competition.  Competition in thebiopharmaceutical industry is based significantly on scientific and technological factors.  These factors include theavailability of patent and other protection for technology and products, the ability to commercialize technological developmentsand the ability to obtain governmental approval for testing, manufacturing and marketing.  We compete with specializedbiopharmaceutical firms in the U.S., Europe and elsewhere, as well as a growing number of large pharmaceutical companies thatare applying biotechnology to their operations.  Many biopharmaceutical companies have focused their development effortsin the human therapeutics area, including cancer.  Many major pharmaceutical companies have developed or acquired internalbiotechnology capabilities or made commercial arrangements with other biopharmaceutical companies.  These companies,as well as academic institutions and governmental agencies and private research organizations, also compete with us in recruitingand retaining highly qualified scientific personnel and consultants.  Our ability to compete successfully with othercompanies in the pharmaceutical field will also depend to a considerable degree on the continuing availability of capital to us.

 

We are aware of certain investigationalnew drugs under development or approved products by competitors that are used for the prevention, diagnosis, or treatment of certaindiseases we have targeted for drug development. Various companies are developing biopharmaceutical products that have the potentialto directly compete with our immunotherapies even though their approach to may be different. The biotechnology and biopharmaceuticalindustries are highly competitive, and this competition comes from both biotechnology firms and from major pharmaceutical companies,including companies like: Aduro Biotech, Agenus Inc., Bionovo Inc., Bristol-Myers Squibb, Celgene Corporation, Celldex Therapeutics,Dendreon Corporation, Inovio Pharmaceutical Inc., Oncolytics Biotech Inc., Oncothyreon Inc., et al.

 

We believe that our immunotherapies underdevelopment and in clinical trials will address unmet medical needs in the treatment of cancer. Our competition will be determinedin part by the potential indications for which drugs are developed and ultimately approved by regulatory authorities. Additionally,the timing of market introduction of some of our potential products or of competitors’ products may be an important competitivefactor. Accordingly, the relative speed with which we can develop immunotherapies, complete preclinical testing, clinical trialsand approval processes and supply commercial quantities to market is expected to be important competitive factors. We expect thatcompetition among products approved for sale will be based on various factors, including product efficacy, safety, reliability,availability, price and patent position.

 

Risks Related to the Securities Markets and Investmentsin our Common Stock

 

The price of our common stock may be volatile.

 

The trading price of our common stock mayfluctuate substantially.  The price of our common stock that will prevail in the market after the sale of the sharesof common stock by a selling stockholder may be higher or lower than the price you have paid, depending on many factors, someof which are beyond our control and may not be related to our operating performance.  These fluctuations could causeyou to lose part or all of your investment in our common stock.  Those factors that could cause fluctuations include,but are not limited to, the following:

 

  · price and volume fluctuations in the overall stock market from time to time;

 

  · fluctuations in stock market prices and trading volumes of similar companies;

 

  · actual or anticipated changes in our net loss or fluctuations in our operating results or in the expectations of securities analysts;

 

  · the issuance of new equity securities pursuant to a future offering, including issuances of preferred stock pursuant to the Series B purchase agreement, as amended;

 

  · general economic conditions and trends;

 

  · major catastrophic events;

 

  · sales of large blocks of our stock;

 

  · significant dilution caused by the anti-dilutive clauses in our financial agreements;

  

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  · departures of key personnel;

 

  · changes in the regulatory status of our immunotherapies, including results of our clinical trials;

 

  · events affecting Penn or any future collaborators;

 

  · announcements of new products or technologies, commercial relationships or other events by us or our competitors;

 

  · regulatory developments in the U.S. and other countries;

 

  · failure of our common stock to be listed or quoted on the Nasdaq Stock Market, NYSE Amex Equities or other national market system;

 

  · changes in accounting principles; and

 

  · discussion of us or our stock price by the financial and scientific press and in online investor communities.

 

In the past, following periods of volatilityin the market price of a company’s securities, securities class action litigation has often been brought against that company.  Dueto the potential volatility of our stock price, we may therefore be the target of securities litigation in the future.  Securitieslitigation could result in substantial costs and divert management’s attention and resources from our business.

 

You may have difficulty selling our shares because theyare deemed “penny stocks.”

 

Our common stock is deemed to be “pennystock” as that term is defined in Rule 3a51-1, promulgated under the Exchange Act.  Penny stocks are, generally,stocks:

 

  · with a price of less than $5.00 per share;

 

  · that are neither traded on a “recognized” national exchange nor listed on an automated quotation system sponsored by a registered national securities association meeting certain minimum initial listing standards; and

 

  · of issuers with net tangible assets less than $2.0 million (if the issuer has been in continuous operation for at least three years) or $5.0 million (if in continuous operation for less than three years), or with average revenue of less than $6.0 million for the last three years.

 

Section 15(g) of the Exchange Act and Rule15g-2 promulgated thereunder require broker-dealers dealing in penny stocks to provide potential investors with a document disclosingthe risks of penny stocks and to obtain a manually signed and dated written receipt of the document before effecting any transactionin a “penny stock” for the investor’s account.  We urge potential investors to obtain and read thisdisclosure carefully before purchasing any shares that are deemed to be “penny stock.”

 

Rule 15g-9 promulgated under the ExchangeAct requires broker-dealers in penny stocks to approve the account of any investor for transactions in such stocks before sellingany “penny stock” to that investor.  This procedure requires the broker-dealer to:

 

  · obtain from the investor information about his or her financial situation, investment experience and investment objectives;

 

  · reasonably determine, based on that information, that transactions in penny stocks are suitable for the investor and that the investor has enough knowledge and experience to be able to evaluate the risks of “penny stock” transactions;

 

  · provide the investor with a written statement setting forth the basis on which the broker-dealer made his or her determination; and

 

  · receive a signed and dated copy of the statement from the investor, confirming that it accurately reflects the investor’s financial situation, investment experience and investment objectives.

 

Compliance with these requirements maymake it harder for investors in our common stock to resell their shares to third parties.  Accordingly, our common stockshould only be purchased by investors, who understand that such investment is a long-term and illiquid investment, and are capableof and prepared to bear the risk of holding our common stock for an indefinite period of time.

  

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A limited public trading market may cause volatilityin the price of our common stock.

 

Our common stock began trading on the OTCBulletin Board on July 28, 2005 and is quoted under the symbol ADXS.OB.  The quotation of our common stock on theOTC Bulletin Board does not assure that a meaningful, consistent and liquid trading market currently exists, and in recentyears such market has experienced extreme price and volume fluctuations that have particularly affected the market prices of manysmaller companies like us.  Our common stock is thus subject to this volatility.  Sales of substantial amountsof common stock, or the perception that such sales might occur, could adversely affect prevailing market prices of our commonstock and our stock price may decline substantially in a short time and our stockholders could suffer losses or be unable to liquidatetheir holdings.  Also there are large blocks of restricted stock that have met the holding requirements under Rule 144that can be unrestricted and sold.  Our stock is thinly traded due to the limited number of shares available for tradingon the market thus causing large swings in price.

 

There is no assurance of an established public tradingmarket.

 

A regular trading market for our commonstock may not be sustained in the future.  The effect on the OTC Bulletin Board of these rule changes and otherproposed changes cannot be determined at this time.  The OTC Bulletin Board is an inter-dealer, over-the-countermarket that provides significantly less liquidity than the Nasdaq Stock Market.  Quotes for stocks included on the OTC BulletinBoard are not listed in the financial sections of newspapers. As such, investors and potential investors may find it difficultto obtain accurate stock price quotations, and holders of our common stock may be unable to resell their securities at or neartheir original offering price or at any price.  Market prices for our common stock will be influenced by a number offactors, including:

 

  · the issuance of new equity securities pursuant to a future offering, including issuances of preferred stock pursuant to the Series B purchase agreement, as amended;

 

  · changes in interest rates;

 

  · significant dilution caused by the anti-dilutive clauses in our financial agreements;

 

  · competitive developments, including announcements by competitors of new products or services or significant contracts, acquisitions, strategic partnerships, joint ventures or capital commitments;

 

  · variations in quarterly operating results;

 

  · change in financial estimates by securities analysts;

 

  · the depth and liquidity of the market for our common stock;

 

  · investor perceptions of our company and the technologies industries generally; and

 

  · general economic and other national conditions.

 

We may not be able to achieve secondary trading of ourstock in certain states because our common stock is not nationally traded.

 

Because our common stock is not listedfor trading on a national securities exchange, our common stock is subject to the securities laws of the various states and jurisdictionsof the U.S. in addition to federal securities law.  This regulation covers any primary offering we might attempt andall secondary trading by our stockholders.  If we fail to take appropriate steps to register our common stock or qualifyfor exemptions for our common stock in certain states or jurisdictions of the U.S., the investors in those jurisdictions wherewe have not taken such steps may not be allowed to purchase our stock or those who presently hold our stock may not be able toresell their shares without substantial effort and expense.  These restrictions and potential costs could be significantburdens on our stockholders.

 

If we fail to remain current on our reporting requirements,we could be removed from the OTC Bulletin Board, which would limit the ability of broker-dealers to sell our securities and theability of stockholders to sell their securities in the secondary market.

 

Companies trading on the OTC Bulletin Board,such as us, must be reporting issuers under Section 12 of the Exchange Act, as amended, and must be current in their reports underSection 13, in order to maintain price quotation privileges on the OTC Bulletin Board.  For our third quarter 2009 andfiscal year ended October 31, 2009, we were unable to file our respective quarterly report on Form 10-Q and annual report on Form10-K in a timely manner, but we were able to make the filings and cure our compliance deficiencies with the OTC Bulletin Boardwithin the grace period allowed by the OTC Bulletin Board.  If we fail to remain current on our reporting requirements,we could be removed from the OTC Bulletin Board.  As a result, the market liquidity for our securities could be severelyadversely affected by limiting the ability of broker-dealers to sell our securities and the ability of stockholders to sell theirsecurities in the secondary market.  In addition, we may not be able to deliver a tranche notice to Optimus under the SeriesB purchase agreement.

 

Our internal control over financial reporting and ourdisclosure controls and procedures have been ineffective in the past, and may be ineffective again in the future, and failureto improve them at such time could lead to errors in our financial statements that could require a restatement or untimely filings,which could cause investors to lose confidence in our reported financial information, and a decline in our stock price.

  

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Our internal control over financial reportingand our disclosure controls and procedures have been ineffective in the past. We have taken steps to improve our disclosure controlsand procedures and our internal control over financial reporting, and as of July 31, 2012, our chief executive officer and chieffinancial officer concluded that our disclosure controls and procedures and internal control over financial reporting were effective.However, there is no assurance that our disclosure controls and procedures will remain effective or that there will be no materialweaknesses in our internal control over financial reporting in the future. Additionally, as a result of the historical materialweaknesses in our internal control over financial reporting and the historical ineffectiveness of our disclosure controls andprocedures, current and potential stockholders could lose confidence in our financial reporting, which would harm our businessand the trading price of our stock.

 

Our executive officers and directors can exert significantinfluence over us and may make decisions that do not always coincide with the interests of other stockholders.

 

As of December 6, 2012, our officersand directors and their affiliates, in the aggregate, beneficially own approximately 11.0% of the outstanding shares of our commonstock.  As a result, such persons, acting together, have the ability to substantially influence all matters submittedto our stockholders for approval, including the election and removal of directors, any merger, consolidation or sale of all orsubstantially all of our assets, an increase in the number of shares authorized for issuance under our stock option plans, andto control our management and affairs.  Accordingly, such concentration of ownership may have the effect of delaying,deferring or preventing a change in or discouraging a potential acquirer from making a tender offer or otherwise attempting toobtain control of our business, even if such a transaction would be beneficial to other stockholders.

 

Sales of additional equity securities may adversely affectthe market price of our common stock and your rights in us may be reduced.

 

We expect to continue to incur drug developmentand selling, general and administrative costs, and to satisfy our funding requirements, we will need to sell additional equitysecurities, which may be subject to registration rights and warrants with anti-dilutive protective provisions.  Thesale or the proposed sale of substantial amounts of our common stock in the public markets may adversely affect the market priceof our common stock and our stock price may decline substantially.  Our stockholders may experience substantial dilutionand a reduction in the price that they are able to obtain upon sale of their shares.  Also, new equity securities issuedmay have greater rights, preferences or privileges than our existing common stock.

 

Additional authorized shares of common stock availablefor issuance may adversely affect the market.

 

We are authorized to issue 1,000,000,000shares of our common stock. As of December 6, 2012, we had 423,827,618 shares of our common stock issued and outstanding, excludingshares issuable upon exercise of our outstanding warrants, options and convertible promissory notes. As of December 6, 2012, wehad outstanding options to purchase 44,807,424 shares of our common stock at a weighted average exercise price of approximately$0.16 per share and outstanding warrants to purchase 164,896,321 shares of our common stock. To the extent the shares of commonstock are issued, options and warrants are exercised or convertible promissory notes are converted, holders of our common stockwill experience dilution. In addition, in the event of any future financing of equity securities or securities convertible intoor exchangeable for, common stock, holders of our common stock may experience dilution. As of December 6, 2012, warrants to purchase77,519,641 shares of our common stock are exercisable at $0.025287 per share and are subject to “full ratchet” anti-dilutionprotection upon certain equity issuances below $0.025287 per share (as may be further adjusted).

  

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We are able to issue shares of preferred stock with rightssuperior to those of holders of our common stock.  Such issuances can dilute the tangible net book value of shares ofour common stock.

 

Our Amended and Restated Certificationof Incorporation provides for the authorization of 5,000,000 shares of “blank check” preferred stock.  Pursuantto our Amended and Restated Certificate of Incorporation, our board of directors is authorized to issue such “blank check”preferred stock with rights that are superior to the rights of stockholders of our common stock, at a purchase price then approvedby our board of directors, which purchase price may be substantially lower than the market price of shares of our common stock,without stockholder approval.  Such issuances can dilute the tangible net book value of shares of our common stock.

 

We do not intend to pay cash dividends.

 

We have not declared or paid any cash dividendson our common stock, and we do not anticipate declaring or paying cash dividends for the foreseeable future. Any future determinationas to the payment of cash dividends on our common stock will be at our board of directors’ discretion and will depend onour financial condition, operating results, capital requirements and other factors that our board of directors considers to berelevant.

 

Risks Related to the Offering

 

Our management has broad discretionover the use of the net proceeds that we may receive under our committed equity line financing facility, and we may not use thenet proceeds in ways that would increase the value of our stock price.

 

We have broaddiscretion over the use of the net proceeds that we may receive if we sell shares of common stock to Hanover, and we could spendthe proceeds in ways that do may not necessarily improve our results of operations or enhance the value of our common stock. Ourfailure to apply these funds effectively could have a material adverse effect on our business, delay the development of our productcandidates and cause the price of our common stock to decline.

  

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If we sell shares of our commonstock under our committed equity line financing facility, our existing shareholders will experience immediate dilution and, asa result, our stock price may go down.

 

InOctober 19, 2012, we entered into a committed equity line financing facility, or financing arrangement, under which we may sellup to $10.0 million of our common stock to Hanover over a 24-month period subject to a maximum of 115,000,000 shares of our commonstock. In connection with such financing arrangement, we issued 3,500,000 shares of common stock to Hanover upon receipt of theircommitment to purchase our common stock in the financing arrangement and we agreed to pay up to 1,800,000 additional shares ofour common stock to Hanover to maintain such financing arrangement for the 24-month term, which together with the other 109,700,000shares of our common stock being registered hereunder, represents approximately 27.1% of our outstanding shares of our commonstock as of December 6, 2012 (approximately 16.3% on a fully diluted basis). The issuance of such shares of our common stock toHanover will have an immediately dilutive impact on our existing shareholders. See also “Equity Enhancement Program Commitment Fee Shares and Maintenance Fee Shares” below. If we elect to use the committed equityline financing facility, the sale of shares of our common stock to Hanover will have an additional dilutive impact on our existingshareholders.

 

Hanover may resellsome or all of the shares we issue to them pursuant to the financing arrangement and such sales could cause the market price ofour common stock to decline significantly with advances under the financing arrangement. To the extent of any such decline, anysubsequent advances would require us to issue a greater number of shares of common stock to Hanover in exchange for each dollarof the advance. Under these circumstances, our existing shareholders would experience greater dilution and the total amount offinancing that we will be able to raise pursuant to the financing arrangement could be significantly lower than $10.0 million.Although Hanover is precluded from short sales of shares acquired pursuant to advances under the financing arrangement, the saleof our common stock under the financing arrangement could encourage short sales by third parties, which could contribute to thefurther decline of our stock price.

 

If we are not able to satisfythe conditions to each draw down under the committed equity line financing facility, we will not be able to sell our common stockpursuant to the committed equity line financing facility.

 

Our ability tosell securities pursuant to the committed equity line financing facility is subject to conditions to each draw down notice thatwe present to Hanover requiring Hanover to purchase a specified number of shares of our common stock, which we refer to in thisprospectus as a draw down, that must be satisfied prior to the closing of any sale of our common stock pursuant to such draw down.These include, among others:

 

·Accuracy in all material respects of our representations and warranties (except for such representations and warranties qualified by materiality, which shall be accurate in all respects) and our compliance with covenants in all material respects (including, without limitation, our prior delivery to Hanover of any commitment fee shares or maintenance fee shares to be issued to Hanover pursuant to the Purchase Agreement). See “Equity Enhancement Program – Representations and Warranties”, “Equity Enhancement Program – Covenants” and “Equity Enhancement Program –Fees and Expenses” below;

 

·A resale registration statement with respect to shares of our common stock to be purchased by Hanover in such draw down must have been declared effective by the SEC and must be available for resale of such shares of our common stock by Hanover;

 

·No material adverse effect on us shall have occurred or be continuing;

 

·All the material filings by us required under the Securities Exchange Act of 1934, as amended, shall have been filed with the SEC; and

 

·The number of shares of our common stock in such draw down shall not exceed:

 

o300% of the average trading volume of our common stock during the 10 trading day period prior to such draw down date;

 

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oTogether with the shares of our common stock in all prior draw downs, $10 million of the shares of our common stock; or

 

oSuch number of shares of our common stock that would result in Hanover beneficially owning more than 9.99% of our common stock after giving effect to such draw down. 

 

See“Equity Enhancement Program – Overview”below. We may not be able to satisfy these conditions and/or the other conditions to a draw down under the committed equity linefinancing facility. If we are unable to satisfy such conditions, we will not be able to sell any of our common stock pursuantto the committed equity line financing facility.

 

Shares eligible for future sale may adversely affectthe market.

 

Sales of a significant number of sharesof our common stock in the public market could harm the market price of our common stock. As additional shares of our common stockbecome available for resale in the public market pursuant to this offering, and otherwise, the supply of our common stock willincrease, which could decrease its price. Some or all of the shares of common stock may be offered from time to time in the openmarket pursuant to Rule 144, and these sales may have a depressive effect on the market for our shares of common stock. In general,under Rule 144 as currently in effect, a non-affiliate of ours who has beneficially owned shares of our common stock for at leastsix months is entitled to sell his or her shares without any volume limitations, and an affiliate of ours can sell such numberof shares within any three-month period as does not exceed the greater of 1% of the number of shares of our common stock thenoutstanding, which equaled approximately 4,238,276 shares as of December 6, 2012, or the average weekly trading volume of ourcommon stock on the OTC Bulletin Board during the four calendar weeks preceding the filing of a notice on Form 144 with respectto that sale. Sales under Rule 144 by our affiliates are also subject to manner-of-sale provisions, notice requirements and theavailability of current public information about us.

 

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SPECIAL NOTE REGARDING FORWARD-LOOKINGSTATEMENTS

 

This prospectus contains forward-lookingstatements.  We have based these forward-looking statements on our current expectations and projections about futureevents.  These statements include, but are not limited to:

 

  · statements as to the anticipated timing of clinical studies and other business developments;

 

  · statements as to the development of new immunotherapies;

 

  · expectations as to the adequacy of our cash balances to support our operations for specified periods of time and as to the nature and level of cash expenditures; and

 

  · expectations as to the market opportunities for our immunotherapies, as well as our ability to take advantage of those opportunities.

 

These statements may be found in the sectionsof this prospectus titled “Prospectus Summary,” “Risk Factors,” “Management’s Discussion andAnalysis and Results of Operations,” and “Description of our Business,” as well as in this prospectus generally.  Actualresults could differ materially from those anticipated in these forward-looking statements as a result of various factors, includingall the risks discussed in “Risk Factors” and elsewhere in this prospectus.

 

In addition, statements that use the terms“can,” “continue,” “could,” “may,” “potential,” “predicts,”“should,” “will,” “believe,” “expect,” “plan,” “intend,”“estimate,” “anticipate,” “scheduled” and similar expressions are intended to identify forward-lookingstatements.  All forward-looking statements in this prospectus reflect our current views about future events and arebased on assumptions and are subject to risks and uncertainties that could cause our actual results to differ materially fromfuture results expressed or implied by the forward-looking statements.  Many of these factors are beyond our abilityto control or predict.  Forward-looking statements do not guarantee future performance and involve risks and uncertainties.  Actualresults will differ, and may differ materially, from projected results as a result of certain risks and uncertainties.  Therisks and uncertainties include, without limitation, those described under “Risk Factors” and those detailed fromtime to time in our filings with the SEC, and include, among others, the following:

 

  · Our limited operating history and ability to continue as a going concern;

 

  · Our ability to successfully develop and commercialize products based on our Lm-LLO based immunotherapy platform technology;

 

  · A lengthy approval process and the uncertainty of FDA and other government regulatory requirements may have a material adverse effect on our ability to commercialize our applications;

 

  · Clinical trials may fail to demonstrate the safety and effectiveness of our applications or therapies, which could have a material adverse effect on our ability to obtain government regulatory approval;

 

  · The degree and nature of our competition;

 

  · Our ability to employ and retain qualified employees; and

 

  · The other factors referenced in this prospectus, including, without limitation, under the sections titled “Risk Factors,” “Management’s Discussion and Analysis and Results of Operations,” and “Description of our Business.”

 

These risks are not exhaustive.  Othersections of this prospectus may include additional factors which could adversely impact our business and financial performance.  Moreover,we operate in a very competitive and rapidly changing environment.  New risk factors emerge from time to time and itis not possible for our management to predict all risk factors, nor can we assess the impact of all factors on our business orthe extent to which any factor, or combination of factors, may cause actual results to differ materially from those containedin any forward-looking statements.  Given these risks and uncertainties, investors should not place undue reliance onforward-looking statements as a prediction of actual results.  These forward-looking statements are made only as ofthe date of this prospectus.  Except for our ongoing obligation to disclose material information as required by federalsecurities laws, we do not intend to update you concerning any future revisions to any forward-looking statements to reflect eventsor circumstances occurring after the date of this prospectus.

  

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USE OF PROCEEDS

 

We will not receive any proceeds from theresale of the shares of common stock offered by the selling stockholder as all of such proceeds will be paid to the selling stockholder.

 

EQUITY ENHANCEMENT PROGRAM

 

Overview

 

On October 26, 2012, we entered intothe Purchase Agreement with Hanover providing fora financing arrangement that is sometimes referred to as a committed equity line financing facility, which we refer to in thisprospectus as the Equity Enhancement Program. The Equity Enhancement Program was entered into in reliance upon the provisionsof Section 4(a)(2) and Rule 506 of Regulation D promulgated by the SEC under the Securities Act of 1933, as amended, or theSecurities Act. The Purchase Agreement provides that Hanover has committed to purchase up to $10 million of shares of our commonstock, in one or more draw downs, over the 24-month term of the Purchase Agreement under certain specified conditions and limitationsas specified in the Purchase Agreement, which include:

 

·Accuracy of our representations and warranties and our compliance with covenants in all material respects;

 

·A resale registration statement with respect to shares of our common stock to be purchased by Hanover in such draw down must have been declared effective by the SEC and must be available for resale of such shares by Hanover;

 

·No stop order or injunction with respect to our common stock or such offering shall be in effect;

 

·All the material filings by us required under the Securities Exchange Act of 1934, as amended, or the Exchange Act shall have been filed with the SEC;

 

·No suspension of trading or delisting of our common stock shall have occurred;

 

·Our compliance in all material respect with applicable laws with respect to such offering;

 

·No action, suit, proceeding or other litigations shall be pending or threatened to restrain, prevent or change the transactions contemplated by the Purchase Agreement;

 

·The number of shares of our common stock in such draw down shall not exceed the lesser of:

 

o300% of the average trading volume of our common stock during the 10 trading day period prior to such draw down date;

 

oTogether with the shares of our common stock in all prior draw downs, $10 million worth of shares of our common stock; and

 

oSuch number of shares of our common stock that would result in Hanover beneficially owning more than 9.99% of our common stock after giving effect to such draw down.

 

·No material adverse effect on us shall have occurred or be continuing; and

 

·The shares of our common stock to be delivered in such draw down shall be duly authorized, validly issued and delivered electronically to Hanover’s or its designee’s account at DTC.

 

In addition, we have agreed to (a) reserveand keep available at all times such number of authorized but unissued shares of our common stock as required to be issued pursuantto the Purchase Agreement, from time to time and (b) take all action necessary to cause our common stock to continue to be registeredunder the Exchange Act and listed on the OTC Bulletin Board and use commercially reasonable efforts to comply with the reportingand filing obligations under applicable securities laws, rules and regulations.

 

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Mechanics of each Draw Down Notice

 

From time to time over the term of thePurchase Agreement, and in our sole discretion, subject to the satisfaction of the conditions described above, we may presentHanover with a draw down based on a purchase price per share calculated over 10 consecutive trading days following the start datewe designate in our draw down, which we refer to in this prospectus as the Pricing Period (subject to adjustment as describedin “Mechanics of Each Draw Down Notice – Purchase Price of Required Shares” below). Only one draw down may bemade during any Pricing Period and at least five trading days must elapse before a subsequent Pricing Period may occur.

 

Closing of Draw Down

 

Each closing of a draw down shall occurno later than the 12th business day following the commencement of the applicable Pricing Period.

 

Floor Price; Reduction in RequiredPurchase of Shares

 

The purchase price of our common stockto be sold in connection with such draw down is subject to the Floor Price. If the closing sale price of our common stock on any trading day in the applicable Pricing Periodfalls below the Floor Price, the number of shares of our common stock required to be purchased by Hanover will be reduced by 10%.

 

Purchase Price of Required Shares

 

The purchase price per share for any sharesof our common stock required to be purchased by Hanover will be equal to 90% of the arithmetic average of the five lowest closingsale prices of our common stock during the applicable Pricing Period (or, if less, the arithmetic average of all trading dayswith closing sale prices in excess of the Floor Price), subject to adjustment upon an alternative transaction as describe below.See “Mechanics of Each Draw Down – Alternative Transactions” below. Each trading day with a closing sale priceless than the Floor Price is excluded from the calculation of the purchase price and automatically reduces the number of tradingdays in the applicable Pricing Period.

 

Purchase Price Adjustment upon an AlternateTransaction

 

In connection with any proposed draw down,if a third party purchases our common stock and/or securities convertible or exercisable or exchangeable into common stock duringthe period beginning at the start of the applicable Pricing Period and ending on the second trading day after the closing dateof such draw down at a purchase price per share of our common stock that is less than the purchase price in such proposed drawdown, the proposed draw down purchase price shall be adjusted downward to the purchase price in such alternate transaction.

 

Commitment Fee Shares and Maintenance Fee Shares

 

In consideration for Hanover’s executionand delivery of the Purchase Agreement, in connection with the execution and delivery of the Purchase Agreement, we have issuedHanover 3,500,000 Commitment Fee Shares.

 

We have also agreed to issue Hanover upto 1,800,000 Maintenance Fee Shares, during anyfull calendar quarter during the term of the Purchase Agreement, if no shares of our common stock have been purchased or soldbecause we did not deliver a draw down to Hanover. The number of Maintenance Fee Shares to be delivered to Hanover, from timeto time, with respect to any calendar quarter, shall be equal to approximately $15,000 worth of shares of our common stock ata 10% discount to market.

 

The offering contemplated hereunder includesthe 3,500,000 Commitment Fee Shares previously issued to Hanover and the 1,800,000 Maintenance Fee Shares that may become issuableto Hanover as described above pursuant to the Purchase Agreement.

 

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Selling Restrictions

 

Hanover has agreed that during the termof the Purchase Agreement, that neither Hanover nor any of its affiliates will, directly or indirectly, engage in any short salesinvolving our securities or grant any option to purchase, or acquire any right to dispose of or otherwise dispose for value of,any shares of our common stock or any securities convertible into or exercisable or exchangeable for any shares of our commonstock, or enter into any swap, hedge or other similar agreement that transfers, in whole or in part, the economic risk of ownershipof any shares of our common stock. The foregoing restrictions do not prohibit Hanover from engaging in transactions relating toany of the shares of our common stock that it owns, including the Commitment Fee Shares, or that it is obligated to purchase undera pending draw down.

 

Termination

 

The Purchase Agreement may be terminatedat any time by the mutual written consent of the parties. Unless earlier terminated, the Purchase Agreement will terminate automaticallyon the earlier to occur of (i) the first day of the month next following the 24-month anniversary of the effective date ofthe registration statement of which this prospectus forms a part (which term may not be extended by the parties) or (ii) thedate on which Hanover purchases the entire commitment amount under the Purchase Agreement. We may terminate the Purchase Agreementeffective upon one trading day prior written notice to Hanover, subject to certain conditions. Hanover may terminate the PurchaseAgreement effective upon one trading day prior written notice to us under certain circumstances, including the following:

 

    The existence of any condition, occurrence, state of facts or event having, or insofar as reasonably can be foreseen would likely have, any effect on our business, operations, properties or financial condition that is material and adverse to us;

 

    We enter into an agreement providing for certain types of financing transactions that are similar to the equity line with Hanover;

 

    Certain transactions involving a change in control of the company or the sale of all or substantially all of our assets have occurred;

 

    We are in breach or default in any material respect under any of the provisions of the Purchase Agreement or the Registration Rights Agreement, and, if such breach or default is capable of being cured, such breach or default is not cured within 10 trading days after notice of such breach or default is delivered to us.

 

    While Hanover holds any shares issued under the Purchase Agreement, the effectiveness of the registration statement that includes this prospectus is suspended or the use of this prospectus is suspended or prohibited, and such suspension or prohibition continues for a period of 20 consecutive trading days or for more than an aggregate of 60 trading days in any 365-day period, subject to certain exceptions.

 

    Trading in our common stock is suspended or our common stock ceases to be listed or quoted on a trading market, and such suspension or failure continues for a period of 20 consecutive trading days or for more than an aggregate of 60 trading days in any 365-day period.

 

    We have filed for and/or are subject to any bankruptcy, insolvency, reorganization or liquidation proceedings.

 

The Purchase Agreement provides that notermination of the Purchase Agreement will limit, alter, modify, change or otherwise affect any of the parties’ rights orobligations with respect to any pending draw down, and that the parties must fully perform their respective obligations with respectto any such pending draw down under the Purchase Agreement, provided all of the conditions to the settlement thereof are timelysatisfied.

 

Indemnification

 

The Purchase Agreement also provides forindemnification of Hanover and its affiliates in the event that Hanover incurs losses, liabilities, obligations, claims, contingencies,damages, costs and expenses related to a breach by us of any of our representations and warranties under the Purchase Agreementor the other related transaction documents or any action instituted against Hanover or its affiliates due to the transactionscontemplated by the Purchase Agreement or other transaction documents, subject to certain limitations.

 

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Registration Rights Agreement

 

In connection with the Purchase Agreement,we entered into the Registration RightsAgreement, pursuant to which we granted to Hanover certain registration rights related to the Commitment Fee Shares, the MaintenanceFee Shares, and the shares issuable under the Purchase Agreement. Pursuant to the Registration Rights Agreement, we have filedwith the SEC a registration statement, of which this prospectus is a part, relating to the selling stockholder’s resaleof the Commitment Fee Shares, the Maintenance Fee Shares, and any shares of common stock purchased by Hanover under the PurchaseAgreement. As previously noted above, the effectiveness of this registration statement is a condition precedent to our abilityto sell common stock to Hanover under the Purchase Agreement.

 

We also agreed, among other things, toindemnify Hanover from certain liabilities and fees and expenses of Hanover incident to our obligations under the RegistrationRights Agreement, including certain liabilities under the Securities Act. Hanover has agreed to indemnify and hold harmless usand each of our directors, officers and persons who control us against certain liabilities that may be based upon written informationfurnished by Hanover to us for inclusion in a registration statement pursuant to the Registration Rights Agreement, includingcertain liabilities under the Securities Act of 1933.

 

The foregoing description of the PurchaseAgreement and the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by referenceto the full text of the Purchase Agreement and Registration Rights Agreement, copies of which have been filed or incorporatedby reference as exhibits to the registration statement of which this prospectus is a part.

 

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MARKET PRICE OF AND DIVIDENDS ON OURCOMMON STOCK

AND RELATED STOCKHOLDER MATTERS

 

Since July 28, 2005, our common stock hasbeen quoted on the OTC Bulletin Board under the symbol ADXS.OB.  The following table shows, for the periods indicated,the high and low bid prices per share of our common stock as reported by the OTC Bulletin Board.  These bid prices representprices quoted by broker-dealers on the OTC Bulletin Board.  The quotations reflect inter-dealer prices, without retailmark-up, mark-down or commissions, and may not represent actual transactions.

 

    Fiscal 2012     Fiscal 2011  
    High     Low     High     Low  
                         
First Quarter (November 1-January 31)   $ 0.19     $ 0.14     $ 0.16     $ 0.11  
Second Quarter (February 1- April 30) (1)   $ 0.17     $ 0.11     $ 0.22     $ 0.11  
Third Quarter (May 1 - July 31   $ 0.14     0.07     $ 0.25     $ 0.14  
Fourth Quarter (August 1 - October 31)   $ 0.08     $ 0.04     $ 0.17     $ 0.13  

 

  (1) From March 1, 2011 through April 1, 2011, our common stock was traded on the OTCQB Market place, a new market for OTC-traded companies that are registered and current in their reporting obligations to the SEC or a U.S. banking or insurance regulator.

 

As of December 6, 2012, there were approximately93 stockholders of record.  Because shares of our common stock are held by depositaries, brokers and other nominees,the number of beneficial holders of our shares is substantially larger than the number of  stockholders of record. Basedon information available to us, we believe there are approximately 3,500 beneficial owners of our shares of our common stock inaddition to the stockholders of record. On December 6, 2012, the last reported sale price per share for our common stockas reported by the OTC Bulletin Board was $0.04

 

We have not declared or paid any cash dividendson our common stock, and we do not anticipate declaring or paying cash dividends for the foreseeable future. We are not subjectto any legal restrictions respecting the payment of dividends, except that we may not pay dividends if the payment would renderus insolvent.  Any future determination as to the payment of cash dividends on our common stock will be at our boardof directors’ discretion and will depend on our financial condition, operating results, capital requirements and other factorsthat our board of directors considers to be relevant.

 

Holders of Series B preferred stock willbe entitled to receive dividends, which will accrue in shares of Series B preferred stock on an annual basis at a rate equal to10% per annum from the issuance date. Accrued dividends will be payable upon redemption of the Series B preferred stock or uponthe liquidation, dissolution or winding up of our company. The Series B preferred stock ranks, with respect to dividend rightsand rights upon liquidation:

 

  · senior to our common stock and any other class or series of preferred stock (other than Series A preferred stock or any class or series of preferred stock that we intend to cause to be listed for trading or quoted on Nasdaq, NYSE Amex or the New York Stock Exchange);

 

  · pari passu with any outstanding shares of our Series A preferred stock (none of which are issued and outstanding as of the date hereof); and

 

  · junior to all of our existing and future indebtedness and any class or series of preferred stock that we intend to cause to be listed for trading or quoted on Nasdaq, NYSE Amex or the New York Stock Exchange.

 

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MANAGEMENT’S DISCUSSION AND ANALYSISOF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This Management’s Discussion andAnalysis of Financial Conditions and Results of Operations and other portions of this prospectus contain forward-looking informationthat involves risks and uncertainties.  Our actual results could differ materially from those anticipated by the forward-lookinginformation.  Factors that may cause such differences include, but are not limited to, availability and cost of financialresources, product demand, market acceptance and other factors discussed in this prospectus under the heading “Risk Factors”.  ThisManagement’s Discussion and Analysis of Financial Conditions and Results of Operations should be read in conjunctionwith our financial statements and the related notes included elsewhere in this prospectus.

 

Overview

 

Advaxis is a development stage biotechnologycompany with the intent to develop safe and effective immunotherapies for cancer and infectious diseases. These immunotherapiesare based on a platform technology under exclusive worldwide license from Penn that utilizes live attenuated Listeria monocytogenesbioengineered to secrete antigen/adjuvant fusion proteins. These Lm-LLO strains use a fragment of the protein listeriolysin(LLO), fused to a tumor associated antigen (TAA) or other antigen of interest. We believe these Lm-LLO agents redirectthe potent immune response to Lm which are inherent in humans, to the TAA or antigen of interest. The immune response to a live,metabolically competent pathogen is much more complex than the response to a synthetic or organic molecule and may enable a morecomprehensive therapeutic outcome than current treatment modalities. We believe this to be a broadly enabling platform technologythat can be applied to the treatment of many types of cancers and infectious diseases.

 

We have no customers. Since our inceptionin 2002, we have focused our development efforts on understanding our technology and establishing a drug development pipelinethat incorporates this technology into therapeutic immunotherapies (currently those targeting HPV-associated diseases (CIN 2/3,cervical cancer, head and neck cancer), prostate cancer, and HER2 expressing cancers (breast, gastric, bladder, brain, pancreaticand ovarian cancers). Although no immunotherapies have been commercialized to date, research and development and investment continuesto be placed behind the pipeline and the advancement of this technology. Pipeline development and the further exploration of thetechnology for advancement entail risk and expense. We anticipate that our ongoing operational costs will increase significantlyas we continue conducting our clinical development program.

 

The following factors, among others, couldcause actual results to differ from those indicated in the above forward-looking statements: increased length and scope of ourclinical trials, failure to recruit patients, increased costs related to intellectual property related expenses, increased costof manufacturing and higher consulting costs. These factors or additional risks and uncertainties not known to us or that we currentlydeem immaterial may impair business operations and may cause our actual results to differ materially from any forward-lookingstatement.

 

Although we believe the expectations reflectedin the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.

 

We expect our future sources of liquidityto be primarily debt and equity capital raised from investors, as well as licensing fees and milestone payments in the event weenter into licensing agreements with third parties, and research collaboration fees in the event we enter into research collaborationswith third parties.

 

If additional capital were raised throughthe sale of equity or convertible debt securities, including pursuant to our committed equity line financing facility, the issuanceof such securities would result in additional dilution to our existing stockholders. If we fail to raise a significant amountof capital, we may need to significantly curtail operations or cease operations in the near future.  Any sale of ourcommon stock or issuance of rights to acquire our common stock below $0.025287 per share (as may be further adjusted) will triggera significant dilution due to the anti-dilution protection provisions in certain of our outstanding warrants and debt instruments.

 

Plan of Operations

 

If we are successful in our financing planswe intend to use the majority of the proceeds to complete our two Phase 2 clinical trials of ADXS-HPV, our first Lm-LLObased immunotherapy targeting diseases associated with the Human Papilloma Virus, which we refer to as HPV. One trial is a 120patient study in the U.S. in CIN 2/3, and the other trial is a 110 patient study in India in recurrent or refractory cervicalcancer. We also anticipate using the funds to further our preclinical and clinical research and development efforts in developingimmunotherapies in prostate cancer, HER2 expressing cancers (such as breast, gastric, bladder, brain, pancreatic and ovarian cancer)and for general and administrative activities.

 

During the next 24 months, our strategicfocus will be to achieve the following goals and objectives:

  

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  · Complete our two Phase 2 clinical studies of ADXS-HPV in the treatment of CIN 2/3 and recurrent or refractory cervical cancer;

 

  · Continue an additional Phase 2 clinical trial of ADXS-HPV in the treatment of advanced cervical cancer with the Gynecologic Oncology Group, which we refer to as the GOG, largely underwritten by the NCI;

 

  · Continue to focus on our collaboration with the CRUK to carry out our Phase 1/2 clinical trial of ADXS-HPV in the treatment of head and neck cancer entirely underwritten by the CRUK;

 

  · To support our Cooperative Research and Development Agreement with the NCI to understand the mechanisms of action of Lm-LLO based immunotherapies, to develop new constructs, and to advance them to clinical testing;

 

  · Continue to further our structured collaboration with the University of British Columbia on innovative uses of Listeria constructs in infectious disease, parasitical disease and neonatal immunity;

 

  · Continue to focus on our collaboration with the School of Veterinary Medicine at Penn to carry out our Phase 1 clinical trial of ADXS-HER2 in canine osteosarcoma;

 

  · Continue to develop strategic and development collaborations with academic laboratories and potential commercial partners;

 

  · Continue the development work necessary to bring ADXS-PSA for the treatment of prostate cancer into clinical trials, and initiate that trial provided that funding is available;

 

  · Continue the development work necessary to bring ADXS-HER2 for the treatment of HER2 expressing cancers (such as breast, gastric, bladder, brain, pancreatic and ovarian cancer) into clinical trials, and initiate these trials when and if funding is available; and

 

  · Continue the preclinical development of other immunotherapies, as well as continue research to expand our technology platform.

 

Our projected annual staff, overhead, laboratoryand nonclinical expenses are estimated to be approximately $4.1 million starting in fiscal year beginning November 1, 2011. Thecost of our Phase 2 clinical studies in therapeutic treatment of CIN 2/3 and recurrent and refractory cervical cancer is estimatedto be approximately $11.2 million over the estimated 30 month period of the trial. While approximately $6 million has alreadybeen paid towards these costs, we must raise additional funds in order to complete the Phase 2 trials. If we can raise additionalfunds, we intend to commence the clinical work in prostate cancer and a HER2 expressing cancer in 2012. The timing and estimatedcosts of these projects are difficult to predict.

 

If the clinical progress continues to besuccessful and the value of our company increases, we may attempt to accelerate the timing of the required financing and, conversely,if the trial or trials are not successful we may slow our spending and defer the timing of additional financing. While we willattempt to attract a corporate partnership and grants, we have not assumed the receipt of any additional financial resources inour cash planning.

 

We anticipate that our research and developmentexpenses will increase significantly as a result of our expanded development and commercialization efforts related to clinicaltrials, drug development, and development of strategic and other relationships required ultimately for the licensing, manufactureand distribution of our immunotherapies. We regard to three of our immunotherapies as major research and development projects.The timing, costs and uncertainties of those projects are as follows:

 

ADXS-HPV - Phase 2 CIN 2/3 Trial Summary Information (U.S.:target enrollment: 120 Patients)

 

The ADXS-HPV CIN 2/3 study is a randomized, single blind, placebocontrolled Phase 2 dose-ranging study designed to assess the safety and efficacy of ADXS-HPV in up to 3 different dose cohorts:

 

  · Cost incurred through July 31, 2012: approximately $4.9 million.

 

  · Estimated future clinical costs: approximately $2.3 million.

 

  · Anticipated Timing: commenced in March 2010 (with patient dosing having commenced in June 2010); reporting of low dosecohort in early 2012, mid dose cohort is actively enrolling; completion October 2012 or beyond. High dose cohort commenced recruitingin April 2012, completion anticipated in February-March 2013.

 

Uncertainties:

 

  · The FDA (or relevant foreign regulatory authority) may place the project on clinical hold or stop the project;

  

23
 

 

  · One or more serious adverse events in otherwise healthy patients enrolled in the trial;

 

  · Lack of clinical benefit;

 

  · Difficulty in recruiting patients;

 

  · Delays in the program;

 

  · Material cash flows; and

 

  · Anticipated Timing: 2012/2013 and dependent upon completion and results from each dose cohort adequate fund raising, entering a licensing deal or pursuant to a marketing collaboration subject to regulatory approval to market and sell the product.

 

ADXS-HPV - Phase 2 Cervical Cancer Trial Summary Information(India: target enrollment: 110 Patients)

 

The ADXS-HPV cervical cancer trial in India is a Phase 2 studyof ADXS-HPV +/- Cisplatin in patients with recurrent or refractory cervical cancer that has failed previous treatment:

 

  · Cost incurred through July 31, 2012: approximately $2.3 million.

 

  · Estimated future clinical costs: approximately $2.5 million.

 

  · Anticipated Timing: commenced in November 2010; reporting of preliminary survival data began in January 2012, completion 2012 or beyond.

 

Additional Uncertainties:

 

  · One or more serious adverse events in these advanced cancer patients enrolled in the trial; and

 

  · Lack of clinical benefit.

 

ADXS-HPV - Phase 2 Cervical Cancer Trial Summary Information(U.S. GOG/NCI: target enrollment: 67 Patients)

 

The ADXS-HPV cervical cancer trial in the US is a randomized,active therapy controlled Phase 2 study to assess the safety and efficacy of ADXS-HPV +/- cisplatin as second line therapy forthe treatment of recurrent or refractory cervical cancer that has not responded to previous treatment:

 

  · Cost incurred through July 31, 2012: Minimal.

 

  · Estimated future clinical costs: $500,000 (NCI underwriting costs of $4.0 million to $5.0 million).

 

  · Anticipated Timing: commenced September 2011 and open to enrollment; 1st patient dosed on January 9, 2012; completion 2013 and beyond.

 

Additional Uncertainties:

 

  · Unknown timing in recruiting patients and conducting the study based on GOG/NCI controlled study; and

 

  · Delays in the program;

 

  · One or more serious adverse events in these advanced cancer patients enrolled in the trial; and

 

  · Lack of clinical benefit.

 

ADXS-HPV - Phase 2 Cancer of the Head and Neck Trial SummaryInformation (U.K. CRUK: target enrollment: 45 Patients)

 

The ADXS-HPV head and neck cancer trial is a Phase 1/2 doseescalation trial of ADXS-HPV in patients with head & neck cancer:

 

  · Cost incurred through July 31, 2012: Minimal.

  

  · Estimated future clinical costs: approximately $50,000 (CRUK to underwrite costs of $3.0 million to $4.0 million).

 

  · Anticipated Timing: the CRUK is funding a study of up to 45 patients at 3 UK sites that we expect will commence in late 2012.

 

Additional Uncertainties:

 

  · Unknown timing in recruiting patients and conducting the study based on CRUK controlling the study;

 

  · Delays in the program;

 

  · One or more serious adverse events in these advanced patients enrolled in the trial; and

 

  · Lack of clinical benefit.

 

ADXS-HER2 Phase 1/2 Trial Summary Information (Canine Osterosarcoma:target enrollment: 9-18 dogs)

 

The ADXS-HER2 canine osteosarcoma trial is a Phase 1 studyto evaluate the safety of ADXS-HER2 for the treatment of osteosarcoma in dogs:

 

  · Cost incurred through July 31, 2012: Minimal.

 

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  · Estimated future costs: approximately $500,000.

 

  · Anticipated Timing: to be determined.

 

Additional Uncertainties:

 

  · Unknown timing in recruiting dogs and conducting the study based on Penn controlling the study;

 

  · Delays in the program;

 

  · One or more serious adverse events in these dogs enrolled in the trial; and

 

  · Lack of clinical benefit.

 

ADXS-PSA - GMP Production and Phase 1/2 Trial Summary Information(Prostate Cancer: target enrollment: 20-35 Patients)

 

ADXS-PSA is an Lm-LLO based immunotherapy that is designedto target PSA and intended for the treatment of castration resistant prostate cancer:

 

  · Cost incurred through July 31, 2012: Minimal.

 

  · Estimated future costs: approximately $3.5 million.

 

  · Anticipated Timing: to be determined.

 

Additional Uncertainties:

 

  · FDA (or foreign regulatory authority) may not approve the study.

 

ADXS-HER2 - GMP Production and Phase 1/2 Trial Summary Information(HER2 Expressing Cancer: target enrollment: 15-35 Patients)

 

ADXS-HER2 is an Lm-LLO based immunotherapy that is designedto target the HER2 antigen and intended for the treatment of HER2 expressing cancers (breast, gastric, bladder, brain, pancreaticand ovarian):

 

  · Cost incurred through July 31, 2012: Minimal.

 

  · Estimated future costs: to be determined.

 

  · Anticipated Timing: to be determined.

  

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Additional Uncertainties:

 

·FDA (or foreign regulatory authority) may not approve the study.

 

Results of Operations

 

Three Months Ended July 31, 2012 Compared to Three MonthsEnded July 31, 2011

 

Revenue

 

We did not record anyrevenue for the three months ended July 31, 2012 and 2011.

 

Research and Development Expenses

 

Research and development expenses decreasedby approximately $627,000 or 32% to approximately $1,331,000 for the three months ended July 31, 2012 as compared with approximately$1,959,000 for the same period a year ago principally attributable to decreases in clinical trial expenses and related manufacturingcosts as well as lower overall supply costs. In addition, there was an overall decrease in compensation expense resulting frombonuses paid to employees in the period a year ago that were not repeated in the current period.

 

We anticipate continued overall decreasein R&D expenses resulting from lower clinical trial costs more than offsetting expanded development efforts primarily relatedto new clinical trials and product development. In addition, expenses will be incurred in the development of strategic and otherrelationships required to license, manufacture and distribute our product candidates.

 

General and Administrative Expenses

 

General and administrative expenses increasedby approximately $613,000 or 37%, to approximately $2,252,000 for the three months ended July 31, 2012 as compared with approximately$1,638,000 for the same period a year ago. This was primarily the result of noncash expenses related to the issuance of sharesof our common stock related to the Numoda-Socius various agreements entered into in the current period resulting in certain sharesbeing issued to Socius. These increases were offset by decreases in cash spending for legal and consulting fees in the currentperiod when compared with the same period a year ago as well as decreases in compensation expense resulting from bonuses paid toemployees in the period a year ago that were not repeated in the current period.

 

Interest Expense

 

For the three monthsended July 31, 2012, interest expense decreased approximately $725,000 to approximately $1,045,000 for the three months ended July31, 2012 as compared with approximately $1,770,000 in the period a year ago. The Company recorded less interest expense in thecurrent period primarily resulting from the exchange of convertible promissory notes in the aggregate principal amount of approximately$4.5 million for (i) an aggregate of approximately 52.2 million shares of our common stock and (ii) warrants to purchase up toapproximately 5.8 million shares of our common stock. This decrease was slightly offset by additional interest expense relatedto the issuance of May 2012 convertible promissory notes in the current period and the issuance of shares to JMJ under the abovementioned Settlement Agreement, resulting in noncash expense from the recognition of a beneficial conversion feature.

 

Additionally, the debt discounts relatedto the original fair values of both warrants and embedded derivatives are amortized to interest expense over the life of theseconvertible promissory notes.

 

Other Expense/ Income

 

Other income was approximately $25,000 forthe three months ended July 31, 2012 as compared with other expense of approximately $4,000 in the same period a year ago as aresult of favorable changes in foreign exchange rates relating to transactions with certain vendors.

 

(Loss) on Note Retirement

 

For the three months ended July 31, 2012,we recorded a charge to income of approximately $932,000 primarily resulting from the Company entering into exchange agreementswith convertible note holders in which these investors exchanged convertible promissory notes in the aggregate principal amountof approximately $4.5 million for (i) an aggregate of approximately 52.2 million shares of our common stock and (ii) warrants topurchase up to approximately 5.8 million shares of our common stock at an exercise price of $0.15. These charges were partiallyoffset by noncash income resulting from the issuance of 15 million shares in payment of $2.25 million of trade accounts payableunder a stock purchase and the July warrant exchanges.

 

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For the three months ended July 31, 2011,the Company recorded a charge to income of approximately $115,000 primarily due to the exchange by an investor of 2007 warrantsthat contained anti-dilution provisions, for a larger number of warrants with no anti-dilution provisions.

 

Changes in Fair Values

 

For the three monthsended July 31, 2012, the Company recorded income from changes in the fair value of the warrant liability and embedded derivativeliability of approximately $2.4 million compared with income of approximately $9.1 million in same period a year ago. In the currentperiod, the Company recorded income of approximately $2.2 million resulting from a decrease in the Black-Scholes value of eachliability warrant primarily due to a decrease in our share price from $0.13, at April 30, 2012 to $0.07, at July 31, 2012.

 

For the three months ended July 31, 2011,the Company recorded income from the change in fair value of the common stock warrant liability and embedded derivative liabilityof approximately $9.1 million resulting from decreases in the underlying stock price (and therefore decreases in the correspondingwarrant liability and embedded derivative liability).

 

Potential future increases or decreasesin our stock price will result in increased or decreased warrant and embedded derivative liabilities, respectively, on our balancesheet and therefore increased or decreased expenses being recognized in our statement of operations in future periods.

 

Nine Months Ended July 31, 2012 Compared to Nine Months EndedJuly 31, 2011

 

Revenue

 

We did not record anyrevenue for the nine months ended July 31, 2012 and 2011.

 

Research and Development Expenses

 

Research and development expenses were approximately$5,760,000 for the nine months ended July 31, 2012 as compared with approximately $6,393,000 for the same period a year ago principallyattributable to decreases in clinical trial expenses and related manufacturing costs.

 

We anticipate continued overall decreasein R&D expenses resulting from lower clinical trial costs more than offsetting expanded development efforts primarily relatedto new clinical trials and product development. In addition, expenses will be incurred in the development of strategic and otherrelationships required to license, manufacture and distribute our product candidates.

 

General and Administrative Expenses

 

General and administrative expenses increasedby approximately $715,000 or 20%, to approximately $4,297,000 for the nine months ended July 31, 2012 as compared with approximately$3,582,000 for the same period a year ago. This was primarily the result of noncash expenses related to the issuance of sharesof our common stock related to the Numado-Socius various agreements entered into in the current period resulting in certain sharesbeing issued to Socius. These increases were offset by decreases in cash spending for legal and consulting fees in the currentperiod when compared with the same period a year ago as well as decreases in compensation expense resulting from bonuses paid toemployees in the period a year ago that were not repeated in the current period.

 

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Interest Expense

 

For the nine monthsended July 31, 2012, interest expense increased to approximately $4,242,000 from approximately $2,721,000 primarily due to thesale of convertible promissory notes in May, October and December 2011. In addition, the Company recorded interest expense resultingfrom the issuance of 4 million shares to JMJ under the above mentioned Settlement Agreement, resulting in noncash expense fromthe recognition of a beneficial conversion feature. Additionally, the debt discounts related to the original fair values of bothwarrants and embedded derivatives are amortized to interest expense over the life of these convertible promissory notes.

 

Other Expense/ Income

 

Interest Income was $0 as compared withapproximately $102,000 in the same period a year ago. We record all interest earned on Optimus promissory notes to equity in accordancewith ASC 505 10-45. The Optimus promissory notes are classified in the equity section of the balance sheet as a promissory notereceivable.

 

Other income was approximately $26,000 forthe nine months ended July 31, 2012 as compared with other expense of approximately $49,000 in the same period a year ago as aresult of favorable changes in foreign exchange rates relating to transactions with certain vendors.

 

Gain (Loss) on Note Retirement

 

For the nine months ended July31, 2012, we recorded a charge to income of approximately $2,173,000 primarily resulting from the Company entering intoexchange agreements with May, October and December 2011 investors in which these investors exchanged convertible promissorynotes in the aggregate principal amount of approximately $4.5 million for (i) an aggregate of approximately 52.2 millionshares of our common stock and (ii) warrants to purchase up to approximately 5.8 million shares of common stock at anexercise price of $0.15 per share. In addition, the Company recognized noncash expense resulting from the conversion ofpromissory notes, by investors, during the nine months ended July 31, 2012. These expenses were partially offset by noncashincome resulting from the issuance of shares to Numoda Corporation, which we refer to as Numoda, under a stock purchaseagreement and the July warrant exchanges.

 

For the nine months ended July 31, 2011,we recorded a charge to income of approximately $109,000 primarily due to the exchange by an investor of 2007 warrants that containedanti-dilution provisions, for a larger number of warrants with no anti-dilution provisions.. In the period a year ago, we recordeda gain of approximately $77,000 primarily resulting from repayments of bridge notes in the same period a year ago.

 

Changes in Fair Values

 

For the nine monthsended July 31, 2012, the Company recorded income from changes in the fair value of the warrant liability and embedded derivativeliability of approximately $6.0 million compared with income of approximately $7.1 million in same period a year ago. In the currentperiod, the Company recorded income of approximately $4.9 million resulting from a decrease in the Black-Scholes value of eachliability warrant due primarily to a decrease in our share price from $0.15, at October 31, 2010 to $0.07, at July 31, 2012. Inaddition, there was a decrease in the Black Scholes value of each liability warrant due to a smaller range of share prices usedin the calculation of the BSM Model volatility input.

 

For the nine months ended July 31, 2011,the Company recorded income from changes in the fair value of the warrant liability and embedded derivative liability of approximately$7.1 million resulting from a change in fair values of our common stock warrant liability providing a gain of $5.8 million anda $1.3 million (gain) change in fair value associated with embedded derivative liabilities from the May 2011 Notes ($1.2 millionof the total $1.3 million gain) that were established on May 12, 2011 and revalued on July 31, 2011. The change in fair value forboth derivative instruments resulted from a decrease in our share price during the current quarter of $0.21 on April 30, 2011 ($0.18on May 12, 2011) compared with $0.1485.

 

Potential future increases or decreasesin our stock price will result in increased or decreased warrant and embedded derivative liabilities, respectively, on our balancesheet and therefore increased or decreased expenses being recognized in our statement of operations in future periods.

 

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Income Tax Benefit

 

In the nine months ended July 31, 2012,the income tax benefit was approximately $347,000 due to the receipt of a NOL tax credit from the State of New Jersey tax programcompared to approximately $379,000 in NOL tax credits received from the State of New Jersey tax program in the nine months endedJuly 31, 2011.

 

Fiscal Year 2011 Compared to Fiscal Year 2010

 

Revenue

 

We recorded no revenue for the fiscal yearended October 31, 2011 as compared with $508,481 in grant revenue for the same period a year ago resulting from multiple grantsreceived by the Company to support research related to our LM-LLO based immunotherapies (i.e. – constructs, delivery).

 

Research and Development Expenses

 

Research and development expenses increasedby approximately $3,175,000 to approximately $8,079,000 for the fiscal year ended October 31, 2011 as compared with approximately$4,904,000 for the same period a year ago. This is mostly attributable to clinical trial expenses, which increased significantlyin the current fiscal year due to our clinical trial activity in the United States and India, initiated during the first fiscalquarter of 2010. In addition, overall compensation expense was higher in the current fiscal year resulting from additional employees,increased stock-based compensation and increases in salaries and bonus. Lastly, research and development expenses increased inthe current fiscal year due to higher general and due diligence costs associated with our intangible assets (patents).

 

We anticipate a significant increase inresearch and development expenses as a result of expanded development and commercialization efforts primarily related to clinicaltrials and product development. In addition, expenses will be incurred in the development of strategic and other relationshipsrequired to license manufacture and distribute our product candidates.

 

General and Administrative Expenses

 

General and administrative expenses increasedby approximately $1,410,000 or 40%, to approximately $4,940,000 for the fiscal year ended October 31, 2011 as compared with approximately$3,530,000 for the same period a year ago. This was the result of higher legal, professional and other consulting fees in the currentperiod as compared with the same period a year ago primarily due to the sale of convertible debt instruments. Overall compensationexpense was also higher in the current fiscal year resulting from bonuses paid to employees. Additionally, office and related expensesincreased in the current fiscal year resulting from the relocation of our operations to Princeton, NJ in April 2011. Lastly, werecorded non-cash expense related to the issuance of warrants to investors and our chief executive officer.

 

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Interest Expense

 

In the fiscal year ended October 31, 2011,net interest expense increased by approximately $884,000 to approximately $4,699,000 compared to approximately $3,815,000 for thesame period a year ago, primarily due to the sale of convertible promissory notes in May 2011 in addition to bridge notes soldduring the fiscal year ended October 31, 2011. Additionally, the debt discounts related to the original fair values of both warrantsand embedded derivatives are amortized to interest expense over the life of such short-term convertible promissory notes.

 

Other Expense / Income

 

Interest income decreased to $0 for thefiscal year ended October 31, 2011 as compared to approximately $80,000 in the same period a year ago. We record all interest earnedon Optimus promissory notes to equity in accordance with ASC 505 10-45. The Optimus promissory notes are classified in the equitysection of the balance sheet as a promissory note receivable.

 

Other expense increased to approximately$46,000 for the fiscal year ended October 31, 2011 as compared to $0 in the same period a year ago as a result of changes in foreignexchange rates relating to transactions with certain vendors.

 

Gain on Note Retirement

 

For the fiscal year ended October 31, 2011,we recorded a charge to income of approximately $462,000 primarily due to the exchange by an investor of 2007 warrants that containedanti-dilution provisions, for a larger number of warrants with no anti-dilution provisions. In the period a year ago, we recordeda gain of approximately $124,000 resulting from the elimination of embedded conversion features associated with bridge notes thatwere repaid.

 

Write-off of Intangible Assets

 

In the fiscal year ended October 31, 2011,the Company wrote off approximately $33,000 in capitalized patent costs related to four patent applications that had either expiredor been abandoned.

 

Changes in Fair Values

 

The change in fair value of the common stockwarrant liability and embedded derivative liability increased income by approximately $9.8 million for the fiscal year ended October31, 2011 compared to approximately $446,000 in the same period a year ago. During the current fiscal year, we recorded income asthe fair value of its warrant and embedded derivative liability decreased primarily due to declines in the underlying stock price(and therefore decreases in the corresponding warrant liability and embedded derivative liability) from share prices as high as$0.21, at April 30, 2011, to share prices as low as $0.14 at October 31, 2011. In addition, the number of warrants increased inthe current fiscal year, increasing the income recorded due to changes in fair value from decreases in the underlying stock price.

 

For the first nine months of the fiscalyear ending October 31, 2010, the Black-Scholes-Merton (BSM) values associated with these warrants and embedded derivatives increasedresulting from the increase in the price of our common stock, from $0.135 at October 31, 2009 to $0.17 at July 31, 2010. However,from July 31 to October 31, 2010, the number of outstanding warrants increased due to a decrease in their exercise price (resultingfrom a “ratchet” in September 2010). In addition, the BSM values decreased due to a decline in the price of our commonstock, and as a result we recorded some income for the full fiscal year.

 

Potential future increases or decreasesin our stock price will result in increased or decreased warrant and embedded derivative liabilities, respectively, on our balancesheet and therefore increased expenses being recognized in our statement of operations in future periods.

 

Income Tax Benefit

 

In the fiscal year ended October 31, 2011,the Company recorded an income tax benefit of approximately $379,000 in income, due to the receipt of a NOL tax credit from theState of New Jersey tax program compared to approximately $279,000 in NOL tax credits received from the State of New Jersey taxprogram in the year ended October 31, 2010.

 

Liquidity and Capital Resources

 

Since our inception through July 31, 2012,the Company has reported accumulated net losses of approximately $45.6 million and recurring negative cash flows from operations.We anticipate that we will continue to generate significant losses from operations for the foreseeable future.

 

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Cash used in operating activities, for thenine months ended July 31, 2012, was approximately $3.9 million, primarily as a result of the following: increased R&D spendingon clinical trials and higher general and administrative spending.

 

Cash used in investing activities, for thenine months ended July 31, 2012, was approximately $351,000 resulting from spending in support of our intangible assets (patents),costs paid to the University of Pennsylvania for patents and the purchase of equipment for use in research and development activities.

 

Cash provided by financing activities,for the nine months ended July 31, 2012, was approximately $3.2 million, resulting from net proceeds received from the saleof convertible promissory notes ($2.8 million) and the exercise of warrants of approximately $400,000.

 

Our limited capital resources and operationsto date have been funded primarily with the proceeds from public and private equity and debt financings, NOL tax sales and incomeearned on investments and grants.  We have sustained losses from operations in each fiscal year since our inception,and we expect losses to continue for the indefinite future, due to the substantial investment in research and development.  Asof October 31, 2011 and July 31, 2012, we had an accumulated deficit of $35,531,740 and $45,611,368, respectively and shareholders’deficiency of $12,279,713 and $4,999,243, respectively.

 

During May 2011, we sold approximately $7.1million of convertible promissory notes for a net purchase price of approximately $6.0 million and received cash from warrant exercisesin the amount of approximately $350,000. During October 2011, we sold approximately $2.3 million of convertible promissory notesfor a net purchase price of approximately $2.0 million. This cash was used to reduce overdue payables and finance day to day operations.During January 2012, we sold approximately $1.2 million of convertible promissory notes for a net purchase price of approximately$1.0 million. This cash was used to reduce overdue payables and finance day to day operations.

 

During May 2012, we closed on the sale ofapproximately $1.0 million of convertible promissory notes for a net purchase price of approximately $0.7 million. This cash willbe used to reduce overdue payables and finance day to day operations.

 

Effective May 14, 2012, we enteredinto exchange agreements with certain holders of an aggregate of approximately $4.5 million of the existing notes originally issuedeither on May 12, 2011, October 31, 2011 or January 9, 2012, pursuant to which such holders received (i) an aggregate of approximately52.2 million shares of our common stock, and (ii) warrants to purchase an aggregate of approximately 5.8 million shares of ourcommon stock in exchange for (i) surrendering or converting the existing notes and surrendering warrants to purchase an aggregateof approximately 31.3 million shares of our common stock originally issued in the prior offerings, and (ii) amending the note purchaseagreements between the Company and the holders of the existing notes, dated as of May 9, 2011, October 28, 2011 or December 29,2011.

 

On August 2, 2012, in a private placementpursuant to a note purchase agreement, we issued Dr. James Patton, a member of our board of directors, a convertible promissorynote in the principal amount of $66,667 for a purchase price of $50,000. The Patton Note was issued with an original issue discountof 25%. Dr. Patton paid $0.75 for each $1.00 of principal amount of the Patton Note purchased. The Patton Note is convertibleinto shares of our common stock at a per share conversion price equal to $0.025287. Additionally, Dr. Patton received a warrantto purchase such number of shares of our common stock equal to 50% of such number of shares of our common stock issuable uponconversion of the Patton Note at an exercise price of $0.025287 per share. The Patton Note matures on August 2, 2013. We may redeemthe Patton Note under certain circumstances. The Patton Warrant is exercisable at any time on or before August 2, 2017. The PattonWarrant may be exercised on a cashless basis under certain circumstances. The Patton Note and the Patton Warrant each includea limitation on conversion or exercise, as applicable, which provides that at no time will Dr. Patton be entitled to convert anyportion of the Patton Note or Patton Warrant to the extent that after such conversion or exercise, as applicable, Dr. Patton (togetherwith his affiliates) would beneficially own more than 4.99% of the outstanding shares of the common stock as of such date.

 

On August 27, 2012, we entered into a settlementagreement with JMJ Financial pursuant to which we issued to JMJ Financial 4,076,923 shares of our common stock for the mutual releaseof any claims held by our company or JMJ Financial relating to our failure to file the registration statement related to the May2012 issuance of 4,000,000 shares of our common stock to JMJ Financial and have the registration statement declared effective bycertain prescribed deadlines.

 

On August 27, 2012, in a private placementpursuant to a note purchase agreement, we issued JMJ Financial a convertible promissory note in the aggregate principal amountof $100,000 for a purchase price of $100,000. The August 2012 Note is initially convertible at a per share conversion price equalto $0.15. In addition, if the August 2012 Note is converted after November 30, 2012 and the market price of our common stock isless than $0.16 per share on the date of conversion, then the conversion price shall equal 95% of the arithmetic average of thethree lowest closing trading prices for the common stock during the 15 trading day period ending on the latest complete tradingday prior to the applicable conversion date. The August 2012 Note matures on August 29, 2013. To the extent JMJ Financial doesnot elect to convert the August 2012 Note as described above, the principal amount and interest of such note shall be payable incash at maturity. The August 2012 Note may be converted by JMJ Financial, at its option, in whole or in part. The August 2012 Noteincludes a limitation on conversion, which provides that at no time will JMJ Financial be entitled to convert any portion of theAugust 2012 Note to the extent that after such conversion JMJ Financial (together with its affiliates) would beneficially ownmore than 4.99% of the outstanding shares of the common stock as of such date. Pursuant to the terms of the August 2012 Note, weagreed to register up to 3,250,000 shares of our common stock which may be issuable upon conversion of the August 2012 Note withthe SEC. These shares were registered on August 31, 2012.

 

On September 11, 2012, in aprivate placement pursuant to a note purchase agreement, we issued Asher a convertible promissory note in the aggregateprincipal amount of $103,500 for a purchase price of $100,000. The September Asher Note bears interest at a rate of 8% perannum, which interest accrues, but does not become payable until maturity or acceleration of the principal of the SeptemberAsher Note. The September Asher Note is convertible into shares of our common stock at a conversion price equal to 61% of thearithmetic average of the five lowest closing trading prices for the common stock during the 10 trading day period ending onthe latest complete trading day prior to the applicable conversion date. The September Asher Note matures on June 13, 2013,nine months from its issuance date. The September Asher Note may be converted by Asher, at its option, in whole or in part.The September Asher Note includes a limitation on conversion, which provides that at no time will Asher be entitled toconvert any portion of the September Asher Note to the extent that after such conversion Asher (together with its affiliates)would beneficially own more than 4.99% of the outstanding shares of the common stock as of such date.

 

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On September 19, 2012, in a privateplacement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregate principal amountof $132,500 for a purchase price of $132,500. On October 19, 2012, in a private placement pursuant to a note purchase agreement,we issued Hanover a convertible promissory note in the aggregate principal amount of $132,500 for a purchase price of $132,500.

 

On September 25, 2012, in a privateplacement pursuant to a note purchase agreement, we issued our affiliate Dr. Yvonne Paterson a convertible promissory note inthe aggregate principal amount of $100,000 for a purchase price of $100,000. The Paterson Note bears interest at a rate of 12%per annum, compounding annually. The Paterson Note is convertible into shares of our common stock at a conversion price equalto the arithmetic average of the five lowest closing trading prices for the common stock during the 10 trading day period endingon the latest complete trading day prior to the applicable conversion date. The Paterson Note matures one month from its issuancedate. Additionally, Dr. Paterson will receive a warrant to purchase such number of shares of our common stock equal to 50% ofsuch number of shares of our common stock issuable upon conversion of the Patterson Note at an exercise price equal to the conversionprice then in effect. These warrants have not yet been issued. The Paterson Warrant may be exercised on a cashless basis undercertain circumstances. The Paterson Note and the Paterson Warrant each include a limitation on conversion or exercise, as applicable,which provides that at no time will Dr. Paterson be entitled to convert any portion of the Paterson Note or Paterson Warrant,to the extent that after such conversion or exercise, as applicable, Dr. Paterson (together with her affiliates) would beneficiallyown more than 4.99% of the outstanding shares of the common stock as of such date. On December 7, 2012, Dr. Paterson agreed toextend the maturity date of the Paterson Note to December 31, 2012.

 

On September 27, 2012, in a privateplacement pursuant to a note purchase agreement, we issued our employee Christine French a convertible promissory note in theaggregate principal amount of $25,000 for a purchase price of $25,000. The French Note bears interest at a rate of 12% per annum,compounding annually. The French Note is convertible into shares of our common stock at a conversion price equal to the arithmeticaverage of the five lowest closing trading prices for the common stock during the 10 trading day period ending on the latest completetrading day prior to the applicable conversion date. The French Note matures one month from its issuance date. Additionally, Ms.French will receive a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of ourcommon stock issuable upon conversion of the French Note at an exercise price equal to the conversion price then in effect. Thesewarrants have not yet been issued. The French Warrant may be exercised on a cashless basis under certain circumstances. The FrenchNote and the French Warrant each include a limitation on conversion or exercise, as applicable, which provides that at no timewill Ms. French be entitled to convert any portion of the French Note or French Warrant to the extent that after such conversionor exercise, as applicable, Ms. French (together with her affiliates) would beneficially own more than 4.99% of the outstandingshares of the common stock as of such date. On December 7, 2012, Ms. French agreed to extend the maturity date of the French Noteto December 31, 2012.

 

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In October 2012, pursuant to the termsof various Assignment Agreements, Magna Group acquired $400,075.88 in aggregate principal amount of our outstanding convertiblenotes from certain third parties and entered into agreements to acquire an additional $340,522.90 in aggregate principal amountof our outstanding convertible notes from other third parties. Pursuant to the terms of such Assignment Agreements, we deliveredtwo convertible notes to Magna in an aggregate principal amount of $740,598.74, in anticipation of the closing of all of the transactionscontemplated by such Assignment Agreements. On October 25, 2012, the convertible note in the aggregate principal amount of $617,722.92previously delivered to Magna was exchanged for a new convertible note in the aggregate principal amount of $400,075.77, convertibleinto share of common stock to reflect such portion of the convertible notes actually issued as of October 25, 2012 pursuant tothe Assignment Agreements, and the remaining convertible note in the aggregate principal amount of $122,875.82 previously deliveredto Magna was returned to us and cancelled. Prior to the date of this filing, the First Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding.  

 

On November 12, 2012, in a private placementpursuant to a note purchase agreement, we issued Asher a convertible promissory note in the aggregate principal amount of $153,500for a purchase price of $153,500. The November Asher Note bears interest at a rate of 8% per annum, which interest accrues, butdoes not become payable until maturity or acceleration of the principal of the November Asher Note. The November Asher Note isconvertible into shares of our common stock at a conversion price equal to 65% of the arithmetic average of the four lowest closingtrading prices for the common stock during the 20 trading day period ending on the latest complete trading day prior to the applicableconversion date. The November Asher Note matures on August 14, 2013, nine months from its issuance date. The November Asher Notemay be converted by Asher, at its option, in whole or in part. The November Asher Note includes a limitation on conversion, whichprovides that at no time will Asher be entitled to convert any portion of the November Asher Note to the extent that after suchconversion Asher (together with its affiliates) would beneficially own more than 4.99% of the outstanding shares of the commonstock as of such date.

 

On November 14, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $58,823.53,convertible into shares of common stock, which we refer to as the Second Magna Exchange Note. The Second Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Second Magna Exchange Note. Prior to the date of this filing, the Second Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

On November 23, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $111,111.11,convertible into shares of common stock, which we refer to as the Third Magna Exchange Note. The Third Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Third Magna Exchange Note. Prior to the date of this filing, the Third Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

On December 6, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $170,588.22,convertible into shares of common stock, which we refer to as the Fourth Magna Exchange Note. The Fourth Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Fourth Magna Exchange Note. Prior to the date of this filing, the Fourth Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

   

On December 6, 2012, in a privateplacement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregate principal amountof $100,000 for a purchase price of $100,000, which we refer to as the Hanover December 2012 Note. The Hanover December 2012 Notebears interest at a rate of 12% per annum, which interest accrues, but does not become payable until maturity or accelerationof the principal of such Hanover December 2012 Note. The Hanover December 2012 Note is convertible into shares of our common stockat a conversion price of $0.03 per share. On December 5, Hanover exchanged the Initial Hanover PIPENotes for notes in the form of the Hanover December 2012 Note that also are convertible into shares of our common stock at a conversionprice of $0.03 per share, which we refer to as the Exchanged Hanover PIPE Notes. The Hanover December 2012 Note and the ExchangedHanover PIPE Notes are subject to limitations on conversion if after giving effect to such conversion Hanover would beneficiallyown more than 4.99% of our common stock.

 

Based on our available cash of approximately$1,000 on December 6, 2012, we do not have adequate cash on hand to cover our anticipated expenses for the next 12 months.  Ifwe fail to raise a significant amount of capital, we may need to significantly curtail or cease operations in the near future.  Theseconditions have caused our auditors to raise substantial doubt about our ability to continue as a going concern.  Consequently,the audit report prepared by our independent public accounting firm relating to our financial statements for the year ended October31, 2011 includes a going concern explanatory paragraph.

 

Our business will require substantial additionalinvestment that we have not yet secured, and our failure to raise capital and/or pursue partnering opportunities will materiallyadversely affect our business, financial condition and results of operations. We expect to spend substantial additional sums onthe continued administration and research and development of proprietary products and technologies, including conducting clinicaltrials for our immunotherapies, with no certainty that our immunotherapies will become commercially viable or profitable as a resultof these expenditures.  Further, we will not have sufficient resources to develop fully any new immunotherapies or technologiesunless we are able to raise substantial additional financing on acceptable terms or secure funds from new partners. We cannot beassured that financing will be available at all. Any additional investments or resources required would be approached, to the extentappropriate in the circumstances, in an incremental fashion to attempt to cause minimal disruption or dilution.  Anyadditional capital raised through the sale of equity or convertible debt securities will result in dilution to our existing stockholders.  However,no assurances can be given that we will be able to achieve these goals or that we will be able to continue as a going concern.

 

We are pursuing additionalinvestments, grants, partnerships as well as collaborations and exploring other financing options, with the objective of minimizingdilution and disruption.

 

Pursuant to the Series B purchase agreement,as amended, Optimus has agreed to purchase, upon the terms and subject to the conditions set forth therein and described below,up to $7.5 million of our newly authorized, non-convertible, redeemable Series B preferred stock at a price of $10,000 per share,of which $2.84 million of Series B preferred stock remains available for purchase. Under the terms of the Series B purchase agreement,as amended, we may from time to time until July 19, 2013, present Optimus with a notice to purchase a specified amount of SeriesB preferred stock. Subject to satisfaction of certain closing conditions, Optimus is obligated to purchase such shares of SeriesB preferred stock on the 10th trading day after the date of the notice. We will determine, in our sole discretion, the timing andamount of Series B preferred stock to be purchased by Optimus, and may sell such shares in multiple tranches. Optimus will notbe obligated to purchase the Series B preferred stock upon our notice (i) in the event the closing price of our common stock duringthe nine trading days following delivery of our notice falls below 75% of the closing price on the trading day prior to the datesuch notice is delivered to Optimus or (ii) to the extent such purchase would result in Optimus and its affiliates beneficiallyowning more than 9.99% of our outstanding common stock.

 

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As of July 31, 2012, we had issued and sold466 shares of Series B preferred stock to Optimus pursuant to the terms of the Series B purchase agreement, as amended. We receivednet proceeds of approximately $4.19 million from this transaction. The aggregate purchase price for the Series B preferred stockwas $4.66 million.  As of July 31, 2012, under the terms of the Series B purchase agreement, as amended, Optimus remainedobligated, from time to time until July 19, 2013, to purchase up to an additional 284 shares of Series B preferred stock at a purchaseprice of $10,000 per share upon notice from us to Optimus, if certain conditions set forth in the Series B purchase agreement,as amended, are satisfied.

 

On December 30, 2010, immediately followingthe closing of the sale of 72 shares of Series B preferred stock to Optimus pursuant to the terms of the Series B purchase agreement,we redeemed 226 shares of Series B Preferred Stock held by Optimus for an aggregate redemption price of $3,141,004 consisting of(i) cash in an amount of $76,622 and (ii) the cancellation of certain promissory notes issued by an affiliate of Optimus to usin the aggregate amount of $3,064,382. We redeemed the shares of Series B Preferred Stock , at a price per share equal to 136%of the Liquidation Value (defined as the original price per share plus all accrued dividends thereon) since the redemption wasprior to the first anniversary of the issuance date, as stated in the Series B purchase agreement.

 

In connection with the Series B preferredequity financing, an affiliate of Optimus was granted on July 19, 2010 a warrant to purchase up to 40,500,000 shares of our commonstock at an exercise price of $0.25 to be adjusted in connection with the draw down of each tranche. As permitted by the termsof such warrant, the aggregate exercise price of $6,291,000 received by us as of July 31, 2012 is payable pursuant to four yearfull recourse promissory notes each bearing interest at the rate of 2% per year.

 

On September 24, 2009, we entered into apreferred stock purchase agreement with Optimus, which we refer to as the Series A purchase agreement, pursuant to which Optimusagreed to purchase, upon the terms and subject to the conditions set forth therein, up to $5.0 million of Series A preferred stockat a price of $10,000 per share. As of May 13, 2010, all 500 shares of Series A preferred stock were issued and sold to Optimus.On July 19, 2010, we issued 500 shares of Series B preferred stock to Optimus, which we refer to as the Series B exchange shares,in exchange for the 500 shares of Series A preferred stock so that all shares of our preferred stock held or subsequently purchasedby Optimus under the Series B purchase agreement, as amended, would be redeemable upon substantially identical terms. In connectionwith the Series A preferred equity financing, an affiliate of Optimus was granted on September 24, 2009 a warrant to purchase upto 33,750,000 shares of our common stock at an exercise price of $0.20 to be adjusted in connection with the draw down of eachtranche. On January 11, 2010, the draw down date of the first tranche, the affiliate of Optimus exercised a portion of the warrantto purchase 11,563,000 shares of common stock at an adjusted exercise price of $0.17 per share. On March 29, 2010, the draw downdate of the second tranche, the affiliate of Optimus exercised a portion of the warrant to purchase 14,580,000 shares of commonstock at an exercise price of $0.20 per share. On May 13, 2010, the draw down date of the final tranche, the affiliate of Optimusexercised the remainder of the warrant to purchase 7,607,000 shares of common stock at an adjusted exercise price of $0.18 pershare. In each case, we agreed with Optimus and its affiliate to waive certain terms and conditions in the Series A purchase agreementand the warrant in order to permit the affiliate of Optimus to exercise the warrant at such adjusted exercise prices prior to theclosing of the purchase of the Series A preferred stock and acquire beneficial ownership of more than 4.99% of our common stockon the date of each exercise. As permitted by the terms of such warrant, the aggregate exercise prices of $1,965,710, $2,916,000and $1,369,260 for the first tranche, second tranche and final tranche, respectively, received by us is payable pursuant to threeseparate four year full recourse promissory notes each bearing interest at the rate of 2% per year. In addition, in connectionwith the draw down of the final tranche, we issued an additional warrant to an affiliate of Optimus to purchase up to 2,818,000shares of common stock at an exercise price of $0.18 per share, subject to customary anti-dilution adjustments (the exercise priceof which may also be paid at the option of the affiliate of Optimus in cash or by its issuance of a promissory note on the sameterms as the foregoing promissory notes). The foregoing promissory notes are not due or payable at any time that (a) we are indefault of under the Series A preferred stock purchase agreement, any loan agreement or other material agreement or (b) there areany Series B exchange shares issued or outstanding.

 

On June 18, 2009, we completed the seniorbridge financing. The senior bridge financing was a private placement with certain accredited investors pursuant to which we issued(i) senior bridge notes in the aggregate principal face amount of $1,131,353, for an aggregate net purchase price of $961,650 and(ii) senior bridge warrants to purchase 2,404,125 shares of our common stock at an exercise price of $0.20 per share (prior togiving effect to anti-dilution adjustments which have subsequently reduced the exercise price to $0.15 per share), subject to adjustmentsupon the occurrence of certain events. Each of the senior bridge notes were issued with an original issue discount of 15% and wereconvertible into shares of our common stock in certain circumstances. The senior bridge notes had an initial maturity date of December31, 2009. We have agreed to issue additional consideration, including warrants to senior bridge note holders, all of whom agreedto extend the maturity period beyond December 31, 2009. In August 2011, we issued 768,633 shares of common stock to the last remainingsenior bridge note holder in full satisfaction of his senior bridge note. As of October 31, 2011, no senior bridge notes remainedoutstanding.

 

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For the fiscal year ending October 31,2011, we issued to certain accredited investors (i) junior bridge notes in the aggregate principal face amount of approximately$1,887,000 (including note exchanges which resulted in additional interest of approximately $25,000) for an aggregate net purchaseprice of approximately $1,670,000 and (ii) warrants to purchase 7,305,790 shares of our common stock (including additional warrantsissued as a result of note exchanges), which we refer to as junior bridge warrants, at original exercise prices ranging from $0.15to $0.17 per share, subject to adjustments upon the occurrence of certain events. These junior bridge notes were issued with originalissue discounts ranging from 5% to 18% and are convertible into shares of our common stock. Approximately an aggregate of $184,000of principal amount of these junior bridge notes matured on or before December 6, 2012 and remain overdue.

 

For the fiscal year ending October 31, 2011,we repaid a total of approximately $530,000 in principal value of junior bridge notes and converted approximately 1.3 million inprincipal value of junior bridge notes into approximately 8,652,737 shares of our common stock. At January 31, 2011, approximately$756,000 in principal value of junior bridge notes remained outstanding and is classified as a current liability on the balancesheet. The indebtedness represented by these junior bridge notes is expressly subordinate to our currently outstanding senior securedindebtedness (however, no senior bridge notes are outstanding as of October 31, 2011).

  

As a result of anti-dilution protectionprovisions contained in certain of our outstanding warrants, we (i) reduced the exercise price from $0.20 to $0.17 per share inJanuary 2010 and further reduced the exercise price from $0.17 to $0.15 per share in September 2010 with respect to substantiallyall the warrants to purchase shares of our common stock and (ii) correspondingly adjusted the amount of warrant shares issuablesuch that approximately 11.4 million additional warrant shares are issuable related to the January 2010 repricing and approximately10.4 million additional warrant shares are issuable related to the September 2010 repricing.  As of December 6, 2012,the exercise price has been reduced from $0.15 per share to $0.025287 per share with respect to an aggregate of approximately 13million warrants such that approximately 64 million additional shares of our common stock are issuable upon exercise of such warrantsat $0.025287 per share. As of December 6, 2012, warrants to purchase 77,519,641 shares of our common stock are exercisable at $0.025287per share and are subject to “full ratchet” anti-dilution protection upon certain equity issuances below $0.025287per share (as may be further adjusted).

 

On September 22, 2008 we entered into anote purchase agreement with our Chief Executive Officer, Thomas A. Moore, pursuant to which we agreed to sell to Mr. Moore, fromtime to time, Moore Notes, which we refer to as the Moore Agreement. The Moore Notes have been amended from time to time. During2010, we agreed to amend the terms of the Moore Notes such that Mr. Moore may elect, at his option, to receive accumulated interestthereon (of which we paid $130,000 on March 17, 2010) and that we will begin to make installment payments on the outstanding principalbeginning on April 15, 2010 (of which $250,000 was paid during the year ended October 31, 2010); provided, however, that the balanceof the principal will be repaid in full as a result of either (i) consummation of our next equity financing resulting in grossproceeds to the company of at least $6.0 million or (ii) default by the company as defined under the terms of the Moore Agreement.Additionally, we agreed to retain $200,000 of the repayment amount for investment in our next equity financing (Mr. Moore exchangeddebt with the principal amount of $200,000 into 1,176,471 shares of our common stock in May 2010).

 

In connection with a loan made by Mr. Mooreto the company in the amount of $230,000, we agreed to amend and restate the terms of the Moore Notes on March 17, 2011 to increasethe principal amount by $230,000.  Under the terms of the amended and restated Moore Notes: (i) the maturity date isthe earlier of (x) the date of consummation of an equity financing by us in an amount of $6.0 million or more and (y) the occurrenceof any event of default as defined in the Moore Notes, (ii) Mr. Moore may elect, at his option, to receive accumulated interestthereon on or after April 15, 2011 (which amounted to approximately $91,000), (iii) we will make monthly installment payments of$100,000 on the outstanding principal amount beginning on June 15, 2011, and (iv) we may retain, at the option of Mr. Moore, $200,000of the repayment amount for investment in our next equity financing.

 

Mr. Moore acquired a convertible promissorynote in the offering completed in October 2011 in exchange for the cancellation of $400,000 of outstanding indebtedness owed byus to Mr. Moore under the Moore Notes, and Mr. Moore acquired a convertible promissory note in the offering completed in May 2012,which we refer to as the May 2012 offering, for a purchase price of $90,000.

 

The Moore Notes bear interest at a rateof 12% per annum and may be prepaid in whole or in part at our option without penalty at any time prior to maturity.

 

For the nine months ending July 31, 2012,we paid Mr. Moore $35,000 in principal. As of July 31, 2012, we were not in default under the terms of the Moore Agreement. Asof July 31, 2012, we owed Mr. Moore approximately $238,000 in principal and approximately $158,000 in accrued interest under theMoore Notes.

 

We received approximately $379,000 fromselling our 2009 NOL on February 4, 2011. We have received notification from the State of New Jersey that we are eligible to sellapproximately $408,000 in NOLs related to our 2010 fiscal year.

 

Off-Balance Sheet Arrangements

 

As of July 31, 2012, we had no off-balancesheet arrangements.

 

Critical Accounting Estimates

 

The preparation of financial statementsin accordance with GAAP accepted in the U.S. requires management to make estimates and assumptions that affect the reported amountsand related disclosures in the financial statements. Management considers an accounting estimate to be critical if:

 

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·It requires assumption to be made that were uncertain at the time the estimate was made, and

 

·Changes in the estimate of difference estimates that could have been selected could have material impact in our results ofoperations or financial condition.

 

Actual results could differ from those estimatesand the differences could be material. The most significant estimates impact the following transactions or account balances: stockcompensation, warrant valuation, impairment of intangibles, dilution caused by ratchets in the warrants and other agreements.

 

Share-Based Payment.  We record compensation expense associated with stock options in accordance with Financial Accounting Standards Board (“FASB”)Accounting Standards Codification (“ASC”) Topic 718, Stock Compensation (formerly, FASB Statement 123R). We adoptedthe modified prospective transition method provided under SFAS No. 123R. Under this transition method, compensation expense associatedwith stock options recognized in the first quarter of fiscal year 2007, and in subsequent quarters, includes expense related tothe remaining unvested portion of all stock option awards granted prior to April 1, 2006, the estimated fair value of each optionaward granted was determined on the date of grant using the Black-Scholes option valuation model, based on the grant date fairvalue estimated in accordance with the original provisions of SFAS No. 123.

 

We estimate the value of stock options awardson the date of grant using the Black-Scholes-Merton option-pricing model. The determination of the fair value of the share-basedpayment awards on the date of grant is affected by our stock price as well as assumptions regarding a number of complex and subjectivevariables. These variables include our expected stock price volatility over the term of the awards, expected term, risk-free interestrate, expected dividends and expected forfeiture rates. The forfeiture rate is estimated using historical option cancellation information,adjusted for anticipated changes in expected exercise and employment termination behavior. Our outstanding awards do not containmarket or performance conditions; therefore we have elected to recognize share based employee compensation expense on a straight-linebasis over the requisite service period.

 

If factors change and we employ differentassumptions in the application of ASC 718 in future periods, the compensation expense that we record under ASC 718 relative tonew grants may differ significantly from what we have recorded in the current period. There is a high degree of subjectivity involvedwhen using option-pricing models to estimate share-based compensation under ASC 718. Consequently, there is a risk that our estimatesof the fair values of our share-based compensation awards on the grant dates may bear little resemblance to the actual values realizedupon the exercise, expiration, early termination or forfeiture of those share-based payments in the future. Employee stock optionsmay expire worthless or otherwise result in zero intrinsic value as compared to the fair values originally estimated on the grantdate and reported in our financial statements. Alternatively, value may be realized from these instruments that are significantlyin excess of the fair values originally estimated on the grant date and reported in our financial statements.

 

Warrants

 

Warrants were issued in connection withthe equity financings completed in October 2007, the sale of preferred stock, and our short-term convertible promissory notes issuedfrom June 2009 through October 2011. At July 31, 2012, we estimated the fair value of the outstanding instruments using the Black-Scholes-Mertonvaluation model (BSM Model), which takes into account a variety of factors, including historical stock price volatility, risk-freeinterest rates, remaining term and the closing price of our common stock. For those warrants with anti-dilution provisions, weutilized multiple BSM values in order to estimate fair value. Changes in assumptions used to estimate the fair value of these derivativeinstruments could result in a material change in the fair value of the instruments. We believe the assumptions used to estimatethe fair values of the warrants are reasonable.

 

As of December 6, 2012, we had outstandingwarrants to purchase 164,896,321 shares of our common stock (adjusted for anti-dilution provisions to date) certain of which havean exercise price of $0.15 per share. These warrants include 25,560,000 warrants owned by Optimus as part of the Series B purchaseagreement. As of December 6, 2012, warrants to purchase 77,519,641 shares of our common stock are currently exercisable at $0.025287per share and are subject to “full ratchet” anti-dilution protection upon certain equity issuances below $0.025287per share (as may be further adjusted).

 

Embedded Conversion Feature

 

Substantially all of our convertible promissorynotes contain embedded conversion features. At July 31, 2012, we estimated the fair value of these embedded conversion featuresusing the BSM Model, which takes into account a variety of factors, including historical stock price volatility, risk-free interestrates, remaining term of the notes and closing price of our common stock. These embedded conversion features are recorded as liabilitieson the balance sheet. Changes in assumptions used to estimate the fair value of these derivative instruments could result in amaterial change in the fair value of the instruments. We believe that the assumptions used to estimate the fair values of the warrantsare reasonable.

 

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New Accounting Pronouncements

 

Management does not believe that any otherrecently issued, but not yet effective, accounting standards if currently adopted would have a material effect on the accompanyingfinancial statements.

 

DESCRIPTION OF BUSINESS

 

General

 

We are a development stage biotechnologycompany with the intent to develop safe and effective immunotherapies for cancer and infectious diseases. These immunotherapiesare based on a platform technology under exclusive license from Penn that utilizes live attenuated Listeria monocytogenesbioengineered to secrete antigen/adjuvant fusion proteins. These Lm-LLO strains use a fragment of the protein listeriolysin(LLO), fused to a tumor associated antigen (TAA) or other antigen of interest. We believe these Lm-LLO agents redirect thepotent immune response to Lm which are inherent in humans, to the TAA or antigen of interest. The immune response to a live,metabolically competent pathogen is much more complex than the response to a synthetic or organic molecule and may enable a morecomprehensive therapeutic outcome than current treatment modalities. We believe this to be a broadly enabling platform technologythat can be applied to the treatment of many types of cancers and infectious diseases.

 

The discoveries that underlie this innovativetechnology are based upon the work of Yvonne Paterson, Ph.D., Professor of Microbiology at Penn. Lm-LLO based immunotherapiesstimulate the immune system to induce antigen-specific anti-tumor immune responses involving both innate and adaptive arms of theimmune system. In addition, this technology facilitates the immune response by altering the microenvironment of tumors to makethem more susceptible to immune attack.

 

We have focused our initial developmentefforts on therapeutic immunotherapies targeting HPV-associated diseases: cervical intraepithelial neoplasia, recurrent or refractorycervical cancer, and head and neck cancer. In addition we have developed immunotherapies for prostate cancer, and HER2 expressingcancers (such as breast, gastric, bladder, brain, pancreatic and ovarian cancer). Our lead drug candidates in clinical developmentare as follows:

   

Immunotherapy   Indication   Stage of Clinical Development
ADXS-HPV   Cervical Cancer   Phase 1 Company sponsored & completed in 2007 with 15 patients.
         
    Cervical Intraepithelial Neoplasia   Phase 2 Company sponsored study, initiated in March 2010 in the US. The Company completed enrollment of the low-dose cohort in September 2011 (41 patients) and in June 2012 (40 patients) in the mid-dose cohort.
         
    Cervical Cancer   Phase 2 Company sponsored study initiated in November 2010 in India in 110 patients with recurrent or refractory cervical cancer. The Company completed enrollment (110 patients) in May 2012.
         
    Cervical Cancer   Phase 2 The Gynecologic Oncology Group (GOG) of the National Cancer Institute is conducting a study in 67 patients with recurrent or refractory cervical cancer which is currently open to enrollment. As of October 3, 2012, 6 out of 67 patients have been enrolled in the safety run-in phase.
         
    Head & Neck Cancer   Phase 1 The Cancer Research UK (CRUK) is funding a study of 27 patients with head & neck cancer at 3 UK sites. As of October 3, 2012, 6 patients have been enrolled.
         
ADXS-PSA   Prostate Cancer   Phase 1 Company sponsored (timing to be determined).
         
ADXS-HER2   HER2 Expressing Cancer   Phase 1 Company sponsored (timing to be determined).
         
ADXS-HER2   Canine Osteosarcoma   Phase 1 Company sponsored study, initiated in July 2011 in the US. As of October 3, 2012, 2 dogs have been dosed.

 

We have sustained losses from operationsin each fiscal year since our inception, and we expect these losses to continue for the indefinite future, due to the substantialinvestment in research and development.  As of October 31, 2011 and July 31, 2012, we had an accumulated deficit of $35,531,740and $45,611,368, respectively and shareholders’ deficiency of $12,279,713 and $4,999,243, respectively.

 

To date, we have outsourced many functionsof drug development including manufacturing and clinical trials management. Accordingly, the expenses of these outsourced servicesaccount for a significant amount of our accumulated loss. We cannot predict when, if ever, any of our immunotherapies will becomecommercially viable or approved by the FDA. We expect to spend substantial additional sums on the continued administration andresearch and development of proprietary products and technologies, including conducting clinical trials for our immunotherapies,with no certainty that our immunotherapies will become commercially viable or profitable as a result of these expenditures.  

 

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Strategy

 

During the next 24 months, data from twoPhase 2 trials evaluating the safety and efficacy of ADXS-HPV, our first Lm-LLO based immunotherapy, will mature on thesafety and effectiveness of ADXS-HPV in recurrent and refractory cervical cancer and its dysplasic precursor, CIN 2/3. In the U.S.,we have initiated a randomized, placebo controlled single blind, dose ranging Phase 2 study of ADXS-HPV with three dose cohortsin patients with CIN 2/3. In India, we have an ongoing randomized Phase 2 study in 110 patients with recurrent or refractory cervicalcancer who have failed previous therapies.

 

In January 2012, we initiated a NCI-supportedstudy in recurrent or refractory cervical cancer. In the next three months, we will initiate a trial in head and neck cancer studywith CRUK in the United Kingdom, which we refer to as the U.K. We have signed an agreement to collaborate on a clinical trial withthe Gynecologic Oncology Group (GOG), one of NIH’s clinical research groups, which will underwrite the cost and whose memberswill execute the trial. It is expected that this U.S. Phase 2 multi-center study will result in a cost avoidance benefit to usvalued at between $7 million to $8 million in trial expenses. The CRUK initial study is expected to be worth between $2.5 and 3.5million.

 

We have entered into a clinical trials agreementwith the School of Veterinary Medicine at Penn to investigate the use of ADXS-HER2 for the treatment of osteosarcoma in dogs, aleading cancer killer of large dogs.

 

We have also initiated GMP production oftwo new Lm-LLO based immunotherapies for use in clinical trials which will be initiated in 2012 once the regulatory requirementsfor the respective INDs have been completed and approved. Planning has begun for Phase 1 trials for ADXS-PSA for the treatmentof prostate cancer, and ADXS-HER2 for the treatment of HER2 expressing cancers.

 

Although we have been successful in obtainingclinical funding from the U.S. and the U.K., in order to implement our strategy, we will require substantial additional investmentin the near future. Our failure to raise capital or pursue partnering opportunities will materially and adversely affect both ourability to commence or continue the clinical trials described above and our business, financial condition and results of operations,and could force us to significantly curtail or cease operations. Further, we will not have sufficient resources to fully developany new immunotherapies or technologies unless we are able to raise substantial additional financing on acceptable terms or securefunds from new partners.

 

Given our expertise in bioengineering liveattenuated Listeria to create immunotherapies for many different diseases, our longer term strategy will be to license thecommercial development of ADXS-HPV for the indications of CIN 2/3, cervical cancer and head and neck cancer. On a global basis,these indications are extremely large and will require one or more significant partners. We do not intend to engage in commercialdevelopment beyond Phase 2 without entering into one or more partnerships or a license agreement.

 

We intend to continue to devote a substantialportion of our resources to basic science and the continued preclinical development and optimization of our platform technologyso as to develop it to its full potential and to find additional new drug candidates. These activities may require significantfinancial resources, as well as areas of expertise beyond those readily available. In order to provide additional resources andcapital, we may enter into research, collaborative or commercial partnerships, joint ventures, or other arrangements with competitiveor complementary companies, including major international pharmaceutical companies or universities.

 

Background

 

Cancer

 

Cancer is the second largest cause of deathin the U.S., exceeded only by heart disease. The cost of treating cancer patients in 2008 was estimated to be $228.1 billion inhealthcare costs and another $188 billion in indirect costs resulting from morbidity and lost productivity (source: Facts &Figures 2009, American Cancer Society).

 

The National Institutes of Health estimated the 2010 overallannual costs of cancer:

 

Total cost: $263.8 billion

 

Direct medical costs (total of all healthexpenditures): $102.8 billion

 

Indirect morbidity costs (cost of lost productivitydue to illness): $20.9 billion

 

Indirect mortality costs (cost of lost productivitydue to premature death): $140.1 billion

 

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The American Cancer Society states thatcancer is the second most common cause of death and that 571,950 people in the US will die from cancer in 2011.

 

HPV / CIN

 

According to the American Cancer Society,in the United States, more than 6 million people (men and women) get an HPV infection every year. In fact, at least one-half ofthe people who have ever had sex will have HPV at some time in their life. In 2009, the CDC reported that about 45% of women aged20 to 24 had HPV. The American Cancer Society’s estimates for newly diagnosed cervical cancer in the U.S. in 2010 was 12,200and about 500,000 patients per year are diagnosed with high grade CIN (2-3), the predecessor condition to cervical cancer (source:Jones HW, Cancer 1995:76:1914-18; Jones BA and Davey, Arch Pathol Lab Med 2000; 124:672-81).

 

Prostate Cancer

 

According to the American Cancer Society,prostate cancer is the most common type of cancer found in American men, other than skin cancer. Prostate cancer is the secondleading cause of cancer death in men, behind only lung cancer. One man in six will get prostate cancer during his lifetime, andone man in 36 will die of this disease.

 

HER2 Expressing Cancers

 

HER2 (human epidermal growth factor receptor2) is a gene which is over expressed in a percentage of certain types of cancers such as breast, gastric, bladder, pancreatic,brain, and ovarian. The American Cancer Society estimates that in 2011 in the US there will be 230,480 diagnoses of invasive breastcancer, 21,520 new cases of stomach cancer, 69,250 new cases of bladder cancer, 44,030 new cases of pancreatic cancer, 22,340 newcases of brain/spinal cord cancer, and 21,900 new cases of ovarian cancer.

 

Canine Osteosarcoma

 

According the University of PennsylvaniaSchool of Veterinary Medicine, canine osteosarcoma (bone cancer) is most commonly seen in large breed dogs. It is an aggressivecancer with a poor prognosis. Despite chemotherapy and limb amputation, dogs will most likely succumb to the illness within oneyear.

 

Immune System and Normal Antigen Processing

 

People are continually confronted with potentiallyinfectious agents.  The immune system has evolved multiple mechanisms to fight disease, including innate immunity, twoforms of adaptive immunity-humoral (antibody) and cellular immunity that mobilize the body’s natural defenses against theseforeign agents to eliminate them.

 

Innate Immunity:

 

Innate immunity is the first step in therecognition of a foreign antigen.  It is a non-specific protective response that also underlies the generation of anadaptive (antigen- specific) immune responses. It is characterized by the release of various soluble mediators of immune responsesuch as cytokines, chemokines and other molecules.

 

Exogenous pathway of Adaptive Immunity (Class IIpathway):

 

Proteins and foreign molecules ingestedby Antigen Presenting Cells, or APCs, are broken down inside digestive vacuoles into small pieces, and the pieces are combinedwith proteins called Class 2 MHC (for Major Histocompatibility Complex) in a part of the cell called the endoplasmic reticulum.  TheMHC-peptide, termed and MHC-2 complex from the Class 2 (or exogenous) pathway, migrates to the cell surface where it interactswith certain classes of lymphocytes (CD4+) called helper T-cells that support the function of cytotoxic T-lymphocytes (killer Tcells).  This interaction renders CD4+ cells antigen specific, and they express their function whenever they encounterthe antigen to which they’ve been activated.  This system is called the exogenous pathway, since it is the prototypicalresponse to an antigen from outside of the cell, like bacteria.

 

Endogenous pathway of Adaptive Immunity (ClassI pathway):

 

The endogenous pathway provides immune protectionagainst antigens created within the cytoplasm of the APC (as opposed to exogenous molecules contained within the digestive phagosome).  Theseintracellular antigens are typically broken down within the cell and directed to the endoplasmic reticulum, where they are incorporatedinto an MHC-1 protein and trafficked to the cell surface.  MHC-1 complexes activate CD8+ cytotoxic T-lymphocytes, whichthen kill cells that express the specific antigen to which these cells are now activated.  The endogenous pathway isneeded for elimination of virus-infected or cancerous cells. 

 

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Listeria generated adaptive immuneresponses are directed at the activation of T cells.   Listeria tends not to stimulate antibody formation.

 

Listeria based vaccines are uniquefor many reasons, one of which is that unlike viral vectors, DNA or peptide antigens or other vaccines, Listeria stimulatesall of the above mechanisms of immune action. We use a live attenuated bioengineered Listeria that secrets an antigen-adjuvantfusion protein that stimulates the body’s own immune system to target cancer and infectious diseases. Our technology allowsthe body to recognize tumor-associated antigens or antigens of interest as foreign, thus creating the immune response needed toattack the cancer or infectious disease. It does this by utilizing a number of biological characteristics of the Listeriabacteria and the Advaxis proprietary antigen-adjuvant fusion protein technology to stimulate multiple therapeutic immune mechanismssimultaneously in an integrated and coordinated manner.

 

Mechanism of Action

 

Wild type Listeria is a common environmentalmicrobe that is found in the soil, on leafy vegetables, and in meat and dairy products. People are constantly exposed to it andmost people are unaware of that fact that they have ingested Listeria. However, wild type Listeria causes nearly1,600 reported illnesses each year in the US, typically as a result of contaminated food and results in more than 1,400 hospitalizationsand 250 deaths. Listerial infections frequently present as severe, persistent flu-like symptoms and if detected early, canbe easily treated with many common antibiotics. Severe infections are rare and if not detected early are usually not diagnoseduntil Listeria can be cultured from the cerebrospinal fluid, at which time it is very difficult to treat. Advaxis has bioengineeredstrains of Listeria monocytogenes for use as vectors for immunotherapy. These vectors are highly attenuated, making themmuch less pathogenic than wild type Listeria. Advaxis Lm-LLO based immunotherapies are between 10,000 and 100,000times less pathogenic than wild type Listeria .

 

Live Listeria is a strong stimulatorof both the innate and adaptive arms of the immune system. The innate immune response can primarily be attributed to pattern recognitionreceptors on immune cells recognizing patterns on the bacterium, leading to a rapid, non-specific activation of the immune system.This response itself provides a basic level of immune protection, but at the same time serves to prime the adaptive arm of theimmune system to respond in an antigen specific manner.

 

Antigen presenting cells (APCs) are phagocyticsentinel cells that circulate through the body taking up and breaking down foreign and dying cells. The breakdown of the antigensthat APCs take up result in peptide fragments that are presented on the surface of the APC to activate CD4+ and CD8+ T cells totarget specific cells that express these antigens. APCs actively and rapidly phagocytose Listeria, so in effect AdvaxisLm-LLO based immunotherapies are specifically targeted to the cells that will lead to a strong adaptive immune response.As Listeria is taken up by the APCs, it enters a cellular compartment called the phagolysosome, where enzymes kill and degradethe majority of the bacteria. A small percentage (5-10%), escape from this compartment and enter the cytoplasm of the cell, wherethey produce the LLO-antigen fusion protein that they have been bioengineered to express.

 

The specific details of the intracellularlife cycle of Listeria are important for the understanding of the Advaxis platform technology. In order to escape from thephagolysosome of the APC, Listeria produces a protein called listeriolysin O (LLO), which forms pores in the membrane ofthe phagolysosome allowing Listeria to escape into the cytosol. Once in the cytoplasm the bacterium ceases to secrete LLO,which protects the cell wall and the host cell. It is at this stage however that the fusion LLO-antigen protein is produced andsecreted by Listeria. This version of LLO does not form pores and harm the cell as it is truncated and engineered to betargeted to the cellular degredative machinery, leading to peptides that can be presented to T cells on the surface of the APC.Due to the attenuation of the Listeria strains used in Advaxis immunotherapies, the Listeria do not replicate andspread from cell to cell at this point, limiting the potential for listeriosis from our immunotherapies.

 

Listeria and/or Lm-LLO fusionproteins stimulate many complimentary immune mechanisms of action:

 

1.Strong innate immune effects.

a.           Lm -LLO vaccines are cleared in SCID and IFN-g knockoutmice.

2.Strong adaptive immune effects.

a.           Hightiters of activated CD4+T cells, CD8+T cells, APCs, and TILs.

3.A brief exposure to the antigen results in normal memory generation.

a.            Antibioticsimmediately after dosing do not impair long term responses.

4.Alters the tumor microenvironment.

a.           Reducesboth Tregs and MDSCs in tumors but not in other tissues or systemically.

5.Induces cytokine and chemokine secretion from non-infected cells adjacent to infected cells.
6.Synthesis of new immune cells and maturation of existing cells.

a.           Marrow, tissue, and bloodborne effects.

7.Chemotaxis and extravasation of activated immune cells.

a.           Chemokinemediated effects and effects directly on vascular endothelium increase TIL.

 

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8.Upregulation of tumor chemokines and chemokines receptors.

a.           CXCL8,CXCL9, CXCL10, CXCR3 on T cells in TDLN.

9.Epitope and antigen spreading.

a.           Vaccinesdirected against one antigen result in immune activation against other antigens.

10.Predominantly a cellular immune response.

a.           Littleantibody formation so Listeria is not neutralized by humoral immunity. This is a useful property for cellular immune vaccines becauseit allows for follow-up dosing.

 

 

Figure 1: Live attenuated bioengineeredLM (Lm-LLO) being phagocytosed by an APC leading to the stimulation of CD4+ and CD8+ T cells.

 

Research and Development Program

 

Overview

 

We use live attenuated bioengineered Listeriamonocytogenes as a therapeutic agent. We start with a live, attenuated strain of Listeria, and then add to this bacteriummultiple copies of a plasmid that encodes a fusion protein sequence that includes a fragment of the LLO molecule joined to thetumor associated antigen or antigen of interest. This fusion protein is secreted by the Listeria inside the antigen presentingcells, and other cells that Listeria infects which then results in the immune response as discussed above.

 

We can fuse different antigens of interest(specific to tumors or for infectious disease), to LLO making this a versatile platform technology. Our first Lm -LLO basedimmunotherapy, ADXS-HPV, uses an antigen that is present in HPV. HPV induced disease include CIN, cervical cancer, anal cancer,vulvar cancer, penile cancer, head and neck cancer, and others. ADXS-PSA is directed against PSA, an important antigen in prostatecancer. ADXS-cHER2 that uses Advaxis proprietary chimeric HER2 antigen is directed to HER2, an antigen found in HER2 expressingcancers such as breast, gastric, bladder, pancreatic, CNS, and ovarian cancer. By varying the antigen, we create different therapeuticagents that induce an immune response that should be useful in treating multiple disease states.

 

Collaborations, Partnerships and Agreements

 

University of Pennsylvania

 

On July 1, 2002 we entered into a 20-yearexclusive worldwide license agreement with Penn with respect to the innovative work of Yvonne Paterson, Ph.D., Professor of Microbiologyin the area of innate immunity, or the immune response attributed to immune cells, including dendritic cells, macrophages and naturalkiller cells, that respond to pathogens non-specifically.  This agreement has been amended from time to time and wasamended and restated as of February 13, 2007.

  

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This license, unless sooner terminated inaccordance with its terms, terminates upon the later (a) expiration of the last to expire Penn patent rights; or (b) twenty yearsafter the effective date of the license. The license provides us with the exclusive commercial rights to the patent portfolio developedat Penn as of the effective date of the license, in connection with Dr. Paterson and requires us to raise capital and pay variousmilestone, legal, filing and licensing payments to commercialize the technology. In exchange for the license, Penn received sharesof our common stock which currently represents approximately 0.2% of our common stock outstanding on a fully-diluted basis. Inaddition, Penn is entitled to receive a non-refundable initial license fee, license fees, royalty payments and milestone paymentsbased on net sales and percentages of sublicense fees and certain commercial milestones. Under the licensing agreement, Penn isentitled to receive 1.5% royalties on net sales in all countries. Notwithstanding these royalty rates, we have agreed to pay Penna total of $525,000 over a three-year period as an advance minimum royalty after the first commercial sale of a product under eachlicense (which we are not expecting to begin paying within the next five years). In addition, under the license, we are obligatedto pay an annual maintenance fee of $100,000 on December 31, 2010, 2011 and 2012 and each December 31st thereafter for the remainderof the term of the agreement until the first commercial sale of a Penn licensed product. Overall the amended and restated agreementpayment terms reflect lower near term requirements but the savings are offset by higher long term milestone payments for the initiationof a Phase 3 clinical trial and the regulatory approval for the first Penn licensed product. We are responsible for filing newpatents and maintaining and defending the existing patents licensed to use and we are obligated to reimburse Penn for all attorneysfees, expenses, official fees and other charges incurred in the preparation, prosecution and maintenance of the patents licensedfrom Penn.

 

Furthermore, upon the achievement of thefirst sale of a product in certain fields, Penn will be entitled to certain milestone payments, as follows: $2.5 million will bedue for first commercial sale of the first product in the cancer field.  In addition, $1.0 million will be due upon thedate of first commercial sale of a product in each of the secondary strategic fields sold.

 

As a result of our payment obligations underthe license, assuming we have net sales in the aggregate amount of $100.0 million from our cancer products, our total paymentsto Penn over the next ten years could reach an aggregate of $5.4 million.  If over the next 10 years our net sales totalan aggregate amount of only $10.0 million from our cancer products, total payments to Penn could be $4.4 million.

 

Pursuant to Amendment No. 1 to the Pennlicense agreement, which we entered into on March 26, 2007 with Penn the list of list of intellectual property licensed to us wasamended to include Penn docket R3702, The Construction of L. Monocytogenes Strains that Express and Secrete HER-2neu Fragmentsand the Efficacy of such Strains in Inducing a CTL Response and Controlling Tumor Growth in Vivo. Amendment No. 1 also requiredus to pay to Penn an option exercise fee of $10,000 and to pay for all historically accrued patent and licensing expenses incurredby Penn before the effective date of Amendment No. 1, totaling approximately $33,800 as of March 22, 2007. The Penn license agreement,as amended, terminates upon the expiration of the last to expire or become abandoned of the patent rights licensed thereunder;provided, that Penn may earlier terminate the Penn license agreement upon the occurrence of certain defaults by us, including,but not limited to, a material breach by us of the Penn license agreement that is not cured within 60 days after notice of thebreach is provided to us.

 

On May 10, 2010, we entered into a secondamendment to the Penn license agreement pursuant to which we acquired exclusive licenses for an additional 27 patent applicationsrelated to our proprietary Listeria vaccine technology.  As per the terms of the second amendment, we acknowledged thatwe owed Penn approximately $249,000 in patent expenses and $130,000 in sponsored research agreement fees; such fees being paidprior to October 31, 2010. As part of this amendment we exercised our option for the rights to seven additional patent dockets,including 23 additional patent applications, for (i) an option exercise fee payable in the form of $35,000 in cash and $70,000in our common stock (approximately 388,889 shares of our common stock based on a price of $0.18 per share) and (ii) the assumptionof certain historical costs of approximately $462,000 associated with the 23 additional patent applications acquired under thesecond amendment.  As of December 6, 2012, approximately $138,000 of these historical costs remained outstanding.

 

On December 12, 2011, we entered into athird amendment to the Penn license agreement pursuant to which we acquired an exclusive worldwide license agreement for additionalpatent applications from the laboratory of Dr. Yvonne Paterson. One application pertains to the antigen ISG15 from Penn for usein our Lm -LLO based immunotherapies for the treatment of cancer and other diseases. This intellectual property resultedfrom work performed in the laboratory of Dr. Yvonne Paterson that demonstrated ISG15 was an effective immunological target forthe treatment of a number of different cancers in animal models, including ovarian, colon, breast and other cancers. SG-15 expressionis elevated in “triple negative” breast cancer, a disease in which HER2, estrogen and progesterone receptors are lacking,and thus has no defined therapeutic immune target at the moment. An Lm-LLO vaccine that targets ISG-15 may prove to be aneffective agent in an area where there is a significant unmet medical need.

 

Strategically we intend to maintain ourrelationship with Dr. Paterson and Penn to generate new intellectual property and to exploit all existing intellectual propertycovered by the license.

 

Penn is not involved in the management ofour company or in our decisions with respect to exploitation of the patent portfolio.

 

Dr. Yvonne Paterson

 

Dr. Paterson is a Professor in the Departmentof Microbiology at Penn and the inventor of our licensed technology.  She is a fellow of the American Academy for theAdvancement of Science, and has been an invited speaker at national and international health field conferences and leading academicinstitutions.  She has served on many federal advisory boards, such as the NIH expert panel to review primate centers,the Office of AIDS Research Planning Fiscal Workshop, and the Allergy and Immunology NIH Study Section.  She has writtenover one hundred publications in immunology with emphasis during the last several years on the areas of HIV, AIDS and cancer research.  Shehas trained over forty post-doctoral and doctoral students in the fields of Biochemistry and Immunology.

 

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Consulting Agreement.  OnJanuary 28, 2005 we entered into a consulting agreement with Dr. Paterson, which expired on January 31, 2009.  Dr. Patersonhas advised us on an exclusive basis on various issues related to our technology, manufacturing issues, establishing our lab, knowledgetransfer, and our long-term research and development program.  Pursuant to the expired agreement, Dr. Paterson received$7,000 per month.  Upon the closing of an additional $9.0 million in equity capital, Dr. Paterson’s rates wouldhave increased to $9,000 per month.  Also, under the prior Agreement, on February 1, 2005, she received options to purchase400,000 shares of our common stock at an exercise price of $0.287 per share which are now fully vested.  In November2011, we granted Dr. Patterson options to purchase 600,000 shares of our common stock at an exercise price of $0.148 per share.In total she holds 704,365 shares of our common stock and options to purchase 1,169,048 shares of our common stock, of which options569,048 are fully vested. We are currently negotiating a follow-on consulting agreement with Penn and Dr. Paterson.

 

Cancer Research UK

 

On February 9, 2010, we announced that CancerResearch UK (CRUK), the UK organization dedicated to cancer research, has agreed to fund the cost of a clinical trial to investigatethe use of ADXS-HPV, our Lm-LLO based immunotherapy targeted to HPV, for the treatment of head and neck cancer. This Phase 1/2clinical trial will investigate the safety and efficacy of ADXS-HPV in 45 head and neck cancer patients who have previously failedtreatment with surgery, radiotherapy and chemotherapy – alone or in combination. We will provide the study drug, with allother associated costs to be funded by CRUK. The study is to be conducted at 3 sites in the UK (Aintree Hospital at the Universityof Liverpool, The Royal Marsden Hospital in London, and Cardiff Hospital at the University of Wales).

 

National Cancer Institute GynecologicOncology Group

 

On December 15, 2009, we announced thatGOG will conduct a multicenter, Phase 2 clinical trial of ADXS-HPV, our Lm-LLO based immunotherapy targeted to HPV, in 67patients with recurrent or refractory cervical cancer who have failed prior cytotoxic therapy. This Phase 2 trial is underwrittenby GOG and will be conducted by GOG investigators. This patient population is similar to the patient population that in the cervicalcancer study being conducted in India as well as the patients in the Phase I trial of ADXS-HPV. Under this Clinical Trial ServicesAgreement, dated December 13, 2009, we are responsible for covering the costs of translational research and have agreed to paya total of $8,003 per patient, with the majority of the costs of this study underwritten by NCI. This agreement shall continuein force until we receive completed case histories for all participants in the clinical trial and questions about data submittedhave been resolved, unless terminated earlier upon the occurrence of certain events, including, but not limited to, the FDA imposinga permanent hold on the drug which is subject to the clinical trial, a material breach by us of the agreement that is not curedwithin a reasonable time period after notice of the breach is provided to us, or sixty days prior written notice by either partyfor any reason.

 

National Cancer Institute Vaccine Section

 

On November 1, 2010 we entered into a CooperativeResearch and Development Agreement (CRADA) with the Vaccine Section of National Cancer Institute for the development of live attenuatedListeria vaccines for the treatment of cancer. We will provide all live Listeria vaccines. NCI will use differentin vitro and in vivo models to elucidate the effect of our live attenuated Listeria vaccines on many different types ofimmune cells, and will investigate the mechanisms by which live Listeria vaccines reduce cancer induced immune inhibitionthat protects tumors from immune attack. We and NCI will use the results of this work to enhance the anti-tumor effects of liveListeria vaccines as therapeutic agents for the treatment of cancer and as therapeutic immune adjuvants that alter the tumormilieu which will enable them to be used with other modalities of cancer treatment. We have paid a total of $150,000 pursuant tothis three year CRADA. The first patient was dosed on January 9, 2012.

 

University of British Columbia

 

We entered into a structured collaborationwith the laboratory of Dr. Tobias Kollmann at the University of British Columbia to develop live attenuated Listeria vaccinesfor the treatment of infectious disease and to develop new dosage forms of Listeria vaccines. The same immune-stimulatingproperties that we have under development to develop live Listeria vaccines as safe and effective therapies for the treatmentof cancer, also may have application for the treatment of infectious disease. Dr. Kollmann is an immunologist and neonatal vaccinologistwho has published extensively on the use of Listeria vaccines as potential therapeutic agents for the treatment of childhooddiseases. Under the terms of this collaboration, Dr. Kollmann will use our proprietary Listeria vaccine vectors for thedevelopment of novel infectious disease applications. From inception through December 6, 2012, we have paid approximately $110,000pursuant to this collaboration.

 

School of Veterinary Medicine at Penn

 

We have entered into a clinical trial agreementwith the School of Veterinary Medicine at Penn to investigate the use of ADXS-HER2 for the treatment of osteosarcoma in dogs.

 

Recipharm Cobra Biologics Limited (formerlyCobra Biomanufacturing PLC)

 

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In July 2003, we entered into an agreementwith Cobra Biomanufacturing PLC, which has recently been purchased by Recipharm AB,  for the purpose of manufacturingour cervical cancer vaccine ADXS-HPV.  Recipharm Cobra has extensive experience in manufacturing gene therapy productsfor investigational studies.  Recipharm Cobra is a manufacturing organization that manufactures and supplies biologictherapeutics for the pharmaceutical and biotech industry.  These services include the Good Manufacturing Practices, orGMP, manufacturing of DNA, recombinant protein, viruses, mammalian cell products and cell banking.  Recipharm Cobra’smanufacturing plan for us involves several manufacturing stages, including process development, manufacturing of non-GMP materialfor toxicology studies and manufacturing of GMP material for the Phase 1 trial.  The agreement to manufacture expiredin December 2005 upon the delivery and completion of stability testing of the GMP material for the Phase 1 trial.  RecipharmCobra has agreed to surrender the right to $300,000 of its outstanding fees for manufacturing in exchange for future royaltiesfrom the sales of ADXS-HPV at the rate of 1.5% of net sales, with royalty payments not to exceed $2.0 million.

 

On October 20, 2007, we entered intoa production agreement with Recipharm Cobra to manufacture our Phase 2 clinical materials using a new methodology now requiredby the U.K., and likely to be required by other regulatory bodies in the future.  Currently we have two agreements withRecipharm Cobra; one to conduct ongoing stability testing of the ADXS-HPV vaccine which they have manufactured, and another toprovide analytic services and certification necessary to import ADXS-HPV for use in the U.K. head and neck study mentioned above.  Frominception through December 6, 2012, we have paid Recipharm Cobra approximately $1.6 million under all agreements.

 

Vibalogics GmbH

 

In April of 2008, we entered into aseries of agreements with Vibalogics GmbH in Cuxhaven Germany to provide fill and finish services for our final clinical materialsthat were made for the scheduled clinical trials described above.  These agreements cover the fill and finish operationsas well as specific tests that have to be performed in order to release the clinical materials for human use.  We haverecently entered into agreements with Vibalogics to produce two new vaccines, ADXS-PSA and ADXS-HER2 for human use and clinicaldevelopment.  As of December 6, 2012, approximately $415,000 in invoices from Vibalogics GmbH remain outstanding.

 

Numoda Corporation

 

On June 19, 2009, we entered into aMaster Agreement and on July 8, 2009 we entered into a Project Agreement with Numoda, a leading clinical trial and logistics managementcompany, to oversee Phase 2 clinical activity with ADXS-HPV for the multicenter Phase 2 U.S. trial of ADXS-HPV in CIN and to actas our U.S. CRO for the multicenter Phase 2 study of ADXS-HPV in recurrent and refractory cervical cancer being conducted in India.The scope of this agreement covers over three years and is estimated to cost approximately $12.2 million for both trials. In May2010, we issued 3,500,000 shares of common stock to Numoda Capital at a price per share of $0.17 in satisfaction of $350,000 ofservices rendered to us by the Numoda Corporation. As of December 6, 2012, we have paid Numoda approximately $7.4 million forclinical trial activities. The Master Agreement with Numoda terminates on June 12, 2012, or earlier upon the occurrence of certaindefaults by us, including, but not limited to, a material breach by us of the Master Agreement that is not cured within 30 daysafter notice of the breach is provided to us. The Project Agreement with Numoda shall continue until the project which is thesubject of such agreement is completed, unless earlier terminated in accordance with the Master Agreement with Numoda.

 

On June 13, 2012, we entered intoa stock purchase agreement with Numoda, pursuant to which we issued to Numoda 15 million shares of our common stock, whichwe refer to as the AR Cancellation Shares, at a purchase price per share of $0.15, in exchange for the immediate cancellationof $2,250,000 of accounts receivables owed by us to Numoda pursuant to the Master Agreement, dated June 19, 2009, betweenNumoda and us. Numoda has agreed not to sell the AR Cancellation Shares until July 3, 2012, twenty calendar days from theclosing of the transaction on June 13, 2012, which period we refer to as the Lock-Up Period. During the Lock-Up Period, wehave the option, in our sole discretion, to redeem up to 100% of the AR Cancellation Shares at a purchase price per share of$0.15. In connection with such issuance, we have also agreed to register the resale by Numoda of the AR Cancellation Shareswith the SEC within thirty business days from the closing of the transaction on June 13, 2012. We fulfilled this obligationby filing a registration statement on Form S-1 (File No. 333-183690) with the SEC on August31, 2012, which was declared effective by the SEC on September 13, 2012.

 

Pharm-Olam International Ltd.

 

In April 2005, we entered into a consultingagreement with Pharm-Olam International Ltd., which we refer to as POI, whereby POI is to execute and manage our Phase 1 clinicaltrial in ADXS-HPV for a fee of $430,000 plus reimbursement of certain expenses.  As of December 6, 2012 we have an outstandingbalance due to POI of $223,620.

 

Wistar Institute

 

We are collaborating with the Wistar Instituteto explore the potential of FAP as a target for immune attack and as the basis for the development of an Advaxis immunotherapy.Therapeutically targeting FAP (fibroblast activation protein) might significantly reduce tumor growth, as it has in some mousestudies. There is no financial obligation in our collaboration with the Wistar Institute.

 

Montefiore Medical Center

 

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We are collaborating with the Albert EinsteinCollege of Medicine and Montefiore Medical Center to develop the ADXS-PSA immunotherapy for the treatment of prostate cancer. Thegoal of the collaboration is to investigate how ADXS-PSA can be combined with conventional chemo-radiation therapy to treat solidtumors.

 

Patents and Licenses

 

Dr. Paterson and Penn have investedsignificant resources and time in developing a broad base of intellectual property around the cancer vaccine platform technologyfor which on July 1, 2002 we entered into a 20-year exclusive worldwide license and a right to grant sublicenses pursuant to ourlicense agreement with Penn.  As of December 6, 2012, Penn has 39 issued and 39 pending patents in the U.S. and otherlarge countries including Japan, and the European Union, through the Patent Cooperation Treaty system pursuant to which we havean exclusive license to exploit the patents.  On May 10, 2010, we entered into a second amendment to the 20-year exclusiveworldwide license agreement with Penn, which we refer to as the Second Amendment Agreement. Pursuant to the Second Amendment Agreement,we acquired exclusive licenses for additional patent applications related to our proprietary Listeria vaccine technologythat were not included in the initial agreement.  As of December 6, 2012, we owe Penn approximately $138,000 in patentexpenses pursuant to the Second Amendment Agreement.

 

On December 12, 2011, we entered into athird amendment to the Penn license agreement pursuant to which we acquired an exclusive worldwide license agreement for additionalpatent applications from the laboratory of Dr. Yvonne Paterson. One application pertains to the antigen ISG15 from Penn for usein our Lm -LLO based immunotherapies for the treatment of cancer and other diseases. This intellectual property resultedfrom work performed in the laboratory of Dr. Yvonne Paterson that demonstrated ISG15 was an effective immunological target forthe treatment of a number of different cancers in animal models, including ovarian, colon, breast and other cancers. SG-15 expressionis elevated in “triple negative” breast cancer, a disease in which HER2, estrogen and progesterone receptors are lacking,and thus has no defined therapeutic immune target at the moment. An Lm-LLO vaccine that targets ISG-15 may prove to be aneffective agent in an area where there is a significant unmet medical need.

 

Another patent application which we licensedon November 15, 2011 is a collaborative provisional application between the laboratories of Dr. Paterson and Dr. Don Harn at theUniversity of Georgia. In this work, Lm-LLO immunotherapies were found in a number of animal models to have the unusualability to induce therapeutic Th-1 immune responses, which are the type of response that is desirable when treating cancer, inanimals that were previously unable to mount a Th-1 response. This finding may have great utility because parasitic diseases thatare endemic to the third world, and other kinds of disease, prevent patients from mounting Th-1 type responses. The ability toinduce a Th-1 therapeutic response in these patients would make them susceptible to treatment with immunotherapy where they mightnot otherwise respond. Moreover, since chemotherapy and radiotherapy have immune components, the use of an effective Lm-LLOagent as part of a combination regimen might improve the therapeutic efficiency of other agents as well.

 

Our approach to the intellectual propertyportfolio is to create significant offensive and defensive patent protection for every immunotherapy and technology platform thatwe develop.  We work closely with our patent counsel to maintain a coherent and aggressive strategic approach to buildingour patent portfolio with an emphasis in the field of cancer vaccines.

 

We are aware of Aduro Biotech, a companycomprised in part of former Cerus and Anza employees that is investigating Listeria vaccines based upon Anza’s technologyand is conducting clinical trials using Listeria-based investigational new drugs. We believe that through our exclusivelicense with Penn, we have the earliest known and dominant patent position in the U.S. for the use of recombinant Listeriamonocytogenes expressing proteins or tumor antigens as a vaccine for the treatment of infectious diseases and tumors. We successfullydefended our intellectual property by contesting a challenge made by Anza to our patent position in Europe on a claim not availablein the U.S. The European Patent Office ( EPO) Board of Appeals in Munich, Germany has ruled in favor of The Trustees of Penn andits exclusive licensee Advaxis and reversed a patent ruling that revoked a technology patent that had resulted from an oppositionfiled by Anza. The ruling of the EPO Board of Appeals is final and cannot be appealed. The granted claims, the subject matter ofwhich was discovered by Dr. Yvonne Paterson, scientific founder of Advaxis, are directed to the method of preparation and compositionof matter of recombinant bacteria expressing tumor antigens for treatment of patients with cancer. Subsequently, we challengeda patent by Aduro. The patent was upheld by the USPTO, and the decision resulted in a precise and limiting definition of the approvedclaims. The Aduro patent that we challenged does not cover our technology, or limit our business plans.

 

Based on searches of publicly availabledatabases, we do not believe that Anza, Aduro or any other third party owns any published Listeria patents or has any issuedpatent claims that might materially and adversely affect our ability to operate our business as currently contemplated in the fieldof recombinant Listeria monocytogenes. Additionally, our proprietary position that is the issued patents and licenses forpending applications restricts anyone from using plasmid based Listeria constructs, or those that are bioengineered to deliverantigens fused to LLO, ActA, or fragments of LLO or ActA.

 

On May 26, 2009, the United States Patentand Trademark Office, which we refer to as the PTO, approved our patent application “Compositions and Methods for Enhancingthe Immunogenicity of Antigens”. This patent application covers the use of Listeria monocytogenes proteinActA and fragments of this protein for use in the creation of antigen fusion proteins.  This intellectual property protectsa unique strain of Listeria monocytogenes for use as a vaccine vector. 

 

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On February 10, 2009 the PTO issued patent7,488,487 “Methods of Inducing Immune response Through the Administration of Auxotrophic Attenuated dat/dal Double MutantListeria Strains ”, assigned to Penn and licensed to us.  This intellectual property protects a unique strainof Listeria for use as a vaccine vector.  This new strain of Listeria is an improvement over the straincurrently in clinical testing as it is more attenuated, more immunogenic, and does not contain an antibiotic resistance gene.  Webelieve that this strain may be result in more effective immunotherapies.

 

Between February and December of 2009 theU.S., Japanese, and European patent offices have approved patents for a newly developed strain of Listeria that uses a novelmethod of attenuation.  This strain is attenuated by deleting genes that are responsible for making a protein that isessential for the bacterial cell wall, and by engineering back the ability to make this protein at a reduced level.  Indeveloping this strain, the objective was to improve upon the useful properties of Listeria while reducing potential diseasecausing properties of the bacterium, and, in preliminary testing this strain of Listeria appears to be more immunogenicand less virulent that prior vaccine strains.

 

Between January and March of 2010, the USPTOissued two patents to Penn (each of which are covered by the Penn license agreement) that cover the composition of matter, usesand methods using the Lm protein Act A in antigen fusion proteins.  We are currently holding patents relatingto two families of antigen-adjuvant fusion proteins; one based on LLO and one based on ActA.

  

Material patents currently underlying thelicense agreement with Penn are shown in the table below.

 

Title

 

Expiration

 

Product Candidate

 

Jurisdiction

             
Specific Immunotherapy of Cancer Using a Live Recombinant Bacterial Vaccine Vector   18-Apr-2017   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US, Germany, Switzerland, France, Ireland, UK, Belgium, Japan, Canada
             
Live, Recombinant Listeria Monocytogenes and Production of Cytotoxic T-Cell Response   03-Nov-2015   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US
             
Methods and Compositions for Immunotherapy of Cancer   08-Nov-2014   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US
             
Fusion of Non-Hemolytic, Truncated Form of Listeriolysin O to Antigens to Enhance Immunogenicity   2-Aug-2020   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US, Germany, France, Great Britain Israel, European Union
             
Compositions and Methods for Enhancing Immunogenicity of Antigens   2-Aug-2020   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US, Germany, France European Union, Israel
             
Compositions and Methods for Enhancing Immunogenicity of Antigens   15-Nov-2023   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US
             
Methods and Compositions for Immunotherapy of Cancer   08-Nov-2014   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US
             
Compositions and Methods for Enhancing Immunogenicity of Antigens   29-Mar-2020   All ADXS product candidates, including ADXS-HPV, ADXS-HER2, ADXS-PSA   US

 

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Title

 

Expiration

 

Product Candidate

 

Jurisdiction

             
Immunogenic Compositions Comprising DAL/DAT Double-Mutant, Auxotrophic, Attenuated Strains of Listeria and their Methods of Use   18-Nov-2017   ADXS-PSA and ADXS-HER   US, Canada, European Union, Great Britian, Germany
             
Isolated Nucleic Acids Comprising Listeria DAL and DAT Genes   18-Nov-2017   ADXS-PSA and ADXS-HER   US
             
Isolated Nucleic Acids Comprising Listeria DAL and DAT Genes   18-Nov-2017   ADXS-PSA and ADXS-HER   US
             
Immunogenic Compositions Comprising DAL/DAT Double Mutant, Auxotrophic Attenuated Strains of Listeria and their Methods of Use   31-Jan-2020   ADXS-PSA and ADXS-HER   US
             
Methods and Compositions for Immunotherapy of Cancer   13-Jul-2016   ADXS-HER2   US
             
Listeria-based and LLO-based Vaccines   24-Sep-2024   ADXS-HER2   US

  

Governmental Regulation

 

The Drug Development Process

 

The FDA requires that pharmaceutical andcertain other therapeutic products undergo significant clinical experimentation and clinical testing prior to their marketing orintroduction to the general public.  Clinical testing, known as clinical trials or clinical studies, is either conductedinternally by pharmaceutical or biotechnology companies or is conducted on behalf of these companies by Clinical Research Organizations,which we refer to as CROs.

 

The process of conducting clinical studiesis highly regulated by the FDA, as well as by other governmental and professional bodies.  Below, we describe the principalframework in which clinical studies are conducted, as well as describe a number of the parties involved in these studies.

 

Protocols.  Before commencingclinical studies, the sponsor of an investigational new drug must typically receive governmental and institutional approval.  Inthe U.S., Federal approval is obtained by submitting an IND to the FDA and amending it for each new proposed study. The clinicalresearch plan is known in the industry as a protocol.  A protocol is the blueprint for each drug study.  Theprotocol sets forth, among other things, the following:

 

·Criteria for subject or patient inclusion/exclusion;

 

·Dosing requirements and timing;

 

·Tests to be performed; and

 

·Evaluations and  data  assessment.

 

Institutional Review Board (Ethics Committee).An institutional review board is an independent committee of professionals and lay persons which reviews clinical research studiesinvolving human beings and is required to adhere to guidelines issued by the FDA. The institutional review board does not reportto the FDA and its members are not appointed by the FDA, but its records are audited by the FDA. All clinical studies must be approvedby an institutional review board. The institutional review board is convened by the site or institution where the protocol willbe conducted and its role is to protect the rights of the subjects and patients in the clinical studies. It must approve the protocolsto be used and then oversee the conduct of the study, including oversight of the communications which we or the CRO conductingthe study at that specific site proposes to use to recruit subjects or patients, and the informed consent form which the subjectsor patients will be required to sign prior to their enrollment in the clinical studies.

 

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Clinical Trials.  Humanclinical studies or testing of an investigational new drug prior to FDA approval are generally done in three stages known as Phase1, Phase 2, and Phase 3 testing.  The names of the phases are derived from the CFR 21 that regulates the FDA. Generally,there are multiple studies conducted in each phase.

 

Phase 1.  Phase 1 studiesinvolve testing a investigational new drug on a limited number of patients. Phase 1 studies determine a drug’s basic safety,maximum tolerated dose, and how the drug is absorbed by, and eliminated from, the body. This phase lasts an average of six monthsto a year. Typically, cancer therapies are initially tested on late stage cancer patients.

 

Phase 2.  Phase 2 trialsinvolve larger numbers of patients that have been diagnosed with the targeted disease or condition. Phase 2 testing typically lastsan average of one to three years. In Phase 2, the drug is tested to determine its safety and effectiveness for treating a specificdisease or condition. Phase 2 testing also involves determining acceptable dosage levels of the drug. If Phase 2 studies show thatan investigational new drug has an acceptable range of safety risks and probable effectiveness, a company will continue to evaluatethe investigational new drug in Phase 3 studies.

 

Phase 3.  Phase 3 studiesinvolve testing even larger numbers of patients, typically several hundred to several thousand patients. The purpose is to confirmeffectiveness and long-term safety on a large scale. These studies generally last two to six years. Given the larger number ofpatients required to conduct Phase 3 studies, they are generally conducted at multiple sites and often times multiple countries.

 

Biologic License Application.  Theresults of the clinical trials using biologics are submitted to the FDA as part of Biologic License Application, which we referto as BLA. Following the completion of Phase 3 studies, if the Sponsor of a potential product in the U.S. believes it has sufficientinformation to support the safety and effectiveness of the investigational new drug, the Sponsor submits a BLA to the FDA requestingthat the investigational new drug be approved for sale. The application is a comprehensive, multi-volume filing that includes theresults of all preclinical and clinical studies, information about the drug’s composition, and the Sponsor’s plansfor manufacturing, packaging, labeling and testing the investigational new drug. The FDA’s review of an application is designatedeither as a standard review with a target review time of 10 months or a priority review with a target of 6 months. Depending uponthe completeness of the application and the number and complexity of requests and responses between the FDA and the Sponsor, thereview time can take months to many years, with the mean review lasting 13.1 months. Once approved, drugs and other products maybe marketed in the U.S., subject to any conditions imposed by the FDA.

 

The drug approval process is time-consuming,involves substantial expenditures of resources, and depends upon a number of factors, including the severity of the illness inquestion, the availability of alternative treatments, and the risks and benefits demonstrated in the clinical trials.

 

On November 21, 1997, former President Clintonsigned into law the FDA Modernization Act.  That act codified the FDA’s policy of granting “Fast Track”approval for cancer therapies and other therapies intended to treat serious or life threatening diseases and that demonstrate thepotential to address unmet medical needs.  The Fast Track program emphasizes close, early communications between theFDA and the sponsor to improve the efficiency of preclinical and clinical development, and to reach agreement on the design ofthe major clinical efficacy studies that will be needed to support approval.  Under the Fast Track program, a sponsoralso has the option to submit and receive review of parts of the NDA or BLA on a rolling schedule approved by FDA, which expeditesthe review process.

 

The FDA’s Guidelines for IndustryFast Track Development Programs require that a clinical development program must continue to meet the criteria for Fast Track designationfor an application to be reviewed under the Fast Track Program. Previously, the FDA approved cancer therapies primarily based onpatient survival rates or data on improved quality of life. While the FDA could consider evidence of partial tumor shrinkage, whichis often part of the data relied on for approval, such information alone was usually insufficient to warrant approval of a cancertherapy, except in limited situations. Under the FDA’s new policy, which became effective on February 19, 1998, Fast Trackdesignation ordinarily allows an investigational new drug to be considered for accelerated approval through the use of surrogateendpoints to demonstrate effectiveness. As a result of these provisions, the FDA has broadened authority to consider evidence ofpartial tumor shrinkage or other surrogate endpoints of clinical benefit for approval. This new policy is intended to facilitatethe study of cancer therapies and shorten the total time for marketing approvals. Under accelerated approval, the manufacturermust continue with the clinical testing of the product after marketing approval to validate that the surrogate endpoint did predictmeaningful clinical benefit. To the extent applicable, we intend to take advantage of the Fast Track Program to obtain acceleratedapproval on our immunotherapies, however, it is too early to tell what effect, if any, these provisions may have on the approvalof our immunotherapies.

 

Other Regulations

 

Various Federal and state laws, regulations,and recommendations relating to safe working conditions, laboratory practices, the experimental use of animals, and the purchase,storage, movement, import, export, use, and disposal of hazardous or potentially hazardous substances, including radioactive compoundsand infectious disease agents, are used in connection with our research or applicable to our activities. They include, among others,the U.S. Atomic Energy Act, the Clean Air Act, the Clean Water Act, the Occupational Safety and Health Act, the National EnvironmentalPolicy Act, the Toxic Substances Control Act, and Resources Conservation and Recovery Act, national restrictions on technologytransfer, import, export, and customs regulations, and other present and possible future local, state, or federal regulation. Theextent of governmental regulation which might result from future legislation or administrative action cannot be accurately predicted.

 

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There is a series of international harmonizationtreaties, known as the ICH treaties, that enable drug development to be conducted on an international basis.  These treatiesspecify the manner in which clinical trials are to be conducted, and if trials adhere to the specified requirements, then theyare accepted by the regulatory bodies in the signatory countries.

 

Manufacturing

 

The FDA requires that any drug or formulationto be tested in humans be manufactured in accordance with its GMP regulations.  This has been extended to include anydrug that will be tested for safety in animals in support of human testing.  The GMPs set certain minimum requirementsfor procedures, record-keeping, and the physical characteristics of the laboratories used in the production of these drugs.

 

We have entered into agreements with  RecipharmCobra and Vibalogics GmbH for the manufacture of a portion of our vaccines.  Both companies have extensive experiencein manufacturing gene therapy products for investigational studies.  Both companies are full service manufacturing organizationsthat manufacture and supply biologic based therapeutics for the pharmaceutical and biotech industry.  These servicesinclude the GMP manufacturing of stability testing and cell banking.  Recipharm’s manufacturing plan for us callsfor several manufacturing stages, including process development, manufacturing of non-GMP material for toxicology studies and manufacturingof GMP material for the Phase 1 and Phase 2 trials.

 

Beginning in April 2008, we entered intoa number of Agreements with Vibalogics to manufacture GMP material for two new vaccines ADXS-PSA, an Lm-LLO based immunotherapyfor the treatment of prostate cancer, and ADXS-HER2, an Lm-LLO based immunotherapy for the treatment of HER2 expressingcancers (such as breast, gastric, bladder, brain, pancreatic and ovarian cancer) . The Agreement with Recipharm Cobra covers GMPmanufacturing in several stages, including process development, manufacturing of non-GMP material for toxicology studies and manufacturingof GMP material for the Phase 1 and Phase 2 trials, filling, finishing, and the development of a stable, room temperature storage,dried formulation of our vaccines.

 

Competition

 

The biotechnology and biopharmaceuticalindustries are characterized by rapid technological developments and a high degree of competition. As a result, our actual or proposedimmunotherapies could become obsolete before we recoup any portion of our related research and development and commercializationexpenses. The biotechnology and biopharmaceutical industries are highly competitive, and this competition comes from both biotechnologyfirms and from major pharmaceutical companies, including: Aduro Biotech, Agenus Inc., Bionovo Inc., Bristol-Myers Squibb, CelgeneCorporation, Celldex Therapeutics, Dendreon Corporation, Inovio Pharmaceutical Inc., Oncolytics Biotech Inc., Oncothyreon Inc.,et al., each of which is pursuing cancer vaccines and/or immunotherapies. Many of these companies have substantially greater financial,marketing, and human resources than we do (including, in some cases, substantially greater experience in clinical testing, manufacturing,and marketing of pharmaceutical products). We also experience competition in the development of our immunotherapies from universitiesand other research institutions and compete with others in acquiring technology from such universities and institutions. In addition,certain of our immunotherapies may be subject to competition from investigational new drugs and/or products developed using othertechnologies, some of which have completed numerous clinical trials.

 

We expect that our immunotherapies underdevelopment and in clinical trials will address major markets within the cancer therapeutic area. Our competition will be determinedin part by the potential indications for which drugs are developed and ultimately approved by regulatory authorities. Additionally,the timing of market introduction of some of our potential immunotherapies or of competitors’ products may be an importantcompetitive factor. Accordingly, the speed with which we can develop immunotherapies, complete preclinical testing, clinical trialsand approval processes and supply commercial quantities to market are expected to be important competitive factors. We expect thatcompetition among products approved for sale will be based on various factors, including product efficacy, safety, reliability,availability, price and patent position.

 

Merck has developed the drug Gardasil andGSK has developed the drug Cervarix which can prevent cervical cancer by vaccinating women against the HPV virus, the cause ofthe disease. Gardasil is directed against four HPV strains while Cervarix is directed against two. Neither of these agents hasan approved indication for women who have a prior exposure to the HPV strains that they protect against, nor are women protectedfrom other strains of HPV that the drugs do not treat.

 

The presence of these agents in the marketdoes not eliminate the market for a therapeutic vaccine directed against invasive cervical cancer and CIN 2/3 for a number of reasons:

 

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HPV is the most common sexually treateddisease in the U.S., and since prior exposure to the virus renders these anti-viral agents ineffective they tend to be limitedto younger women and do not offer protection for women who are already infected.  The number of women who are alreadyinfected with HPV is estimated to be as much as (or more than) 25% of the female population of the U.S.

 

There are approximately 10 high risk strainsof HPV, but these agents only protect against the most common 2-4 strains.  If a woman contracts a high risk HPV speciesthat is not one of those, the drugs will not work.

 

Women with HPV are typically infected forover twenty years or more before they manifest cervical cancer.  Thus, the true prophylactic effect of these drugs canonly be inferred at this time.  We believe that there currently exists a significant population of young woman who havenot received these agents, or for whom they will not work, and who will manifest HPV related cervical disease for the next 40+years. We believe this population will continue to grow until such time as a significant percentage of women who have not beenexposed to HPV are vaccinated; which we believe is not likely to occur within the next decade or longer.  We do not knowat this time whether a significant number of women will be vaccinated to have an effect on the epidemiology of this disease.

 

With the exception of the campaign to eradicatepolio in which vaccination was mandatory for all school age children, vaccination is a difficult model to accomplish because itis virtually impossible to treat everyone in any given country, much less the entire world.  This is especially truefor cervical cancer, as the incentive for men to be vaccinated is small, and infected men keep the pathogen circulating in thepopulation.

 

Taken together, experts believe that therewill be a cervical cancer and CIN 2/3 market for the foreseeable future.

 

Employees

 

As of December 6, 2012, we had 11 employees,all of which were full time employees.  We believe our relations with employees are good.

 

We do not anticipate any significant increasein the number of employees in the clinical area and the research and development area to support clinical requirements, and inthe general and administrative and business development areas over the next two years.

 

Description of Property

 

Our corporate offices are currently locatedat 305 College Road East, Princeton, New Jersey 08540. On April 1, 2011, we entered into a Sublease Agreement for such office,which is a 9143 square foot leased facility in Princeton, NJ approximately 12 miles south of our prior location. The agreementis for a period of approximately twenty months at the rate of approximately $15,600 per month plus utilities. Utility costs areestimated to be $7,200 per month and are capped at approximately $10,700 per month. The agreement required an initial payment ofapproximately $54,000 prior to entering the new facility, which we have paid. As an inducement to enter into the agreement, thecompany received an abatement through July 31, 2011. The agreement has a termination date of November 29, 2012 and we are in discussionswith building owner for lease terms beyond this date.

 

Legal Proceedings

 

As of the date hereof, there are no materialpending legal proceedings to which we are a party or of which any of our property is the subject.  In the ordinary courseof our business we may become subject to litigation regarding our immunotherapies or our compliance with applicable laws, rules,and regulations.

 

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MANAGEMENT

 

Executive Officers, Directors and Key Employees

 

The following are our executive officersand directors and their respective ages and positions as of December 6, 2012:

 

Name   Age   Position
         
Thomas A. Moore   60   Chief Executive Officer and Chairman of our Board of Directors
Dr. James P. Patton   54   Director
Roni A. Appel   45   Director
Dr. Thomas L. McKearn   61   Director
Richard L. Berman   69   Director
John Rothman, Ph.D.   63   Executive Vice President of Clinical and Scientific Operations
Mark J. Rosenblum   59   Chief Financial Officer, Senior Vice President and Secretary

 

Thomas A. Moore. Mr. Moorejoined our Board as an independent director in September 2006. Effective December 15, 2006, Mr. Moore was appointed our Chairmanand Chief Executive Officer. He is currently also a director of Opt-e-scrip, Inc., which markets a clinical system to compare multipledrugs in the same patient. He also serves on the board of directors of Mayan Pigments, Inc., which has developed and patented Mayanpigment technology. Previously, from June 2002 to June 2004 Mr. Moore was President and Chief Executive Officer of Biopure Corporation,a developer of oxygen therapeutics that are intravenously administered to deliver oxygen to the body’s tissues. From 1996to November 2000 he was President and Chief Executive Officer of Nelson Communications. Prior to 1996, Mr. Moore had a 23-yearcareer with the Procter & Gamble Company in multiple managerial positions, including President of Health Care Products wherehe was responsible for prescription and over-the-counter medications worldwide, and Group Vice President of the Procter & GambleCompany. Mr. Moore is a graduate of Princeton University. Mr. Moore’s extensive business, managerial, executive and leadershipexperience in the healthcare industry make him particularly qualified to serve on our Board.

 

Dr. James P. Patton. Dr. Pattonhas served as a member of our board of directors since February 2002, as Chairman of our board of directors from November 2004until December 31, 2005 and as our Chief Executive Officer from February 2002 to November 2002. Since February 1999, Dr. Pattonhas been the Vice President of Millennium Oncology Management, Inc., which provides management services for radiation oncologycare to four sites. Dr. Patton has been a trustee of Dundee Wealth US, a mutual fund family since October 2006. In addition, hehas been President of Comprehensive Oncology Care, LLC since 1999, a company which owned and operated a cancer treatment facilityin Exton, Pennsylvania until its sale in 2008. From February 1999 to September 2003, Dr. Patton also served as a consultant toLibertyView Equity Partners SBIC, LP, a venture capital fund based in Jersey City, New Jersey. From July 2000 to December 2002,Dr. Patton served as a director of Pinpoint Data Corp. From February 2000 to November 2000, Dr. Patton served as a director ofHealthware Solutions. From June 2000 to June 2003, Dr. Patton served as a director of LifeStar Response. He earned his B.S. fromthe University of Michigan, his Medical Doctorate from Medical College of Pennsylvania, and his M.B.A. from Penn’s WhartonSchool. Dr. Patton was also a Robert Wood Johnson Foundation Clinical Scholar. He has published papers regarding scientific researchin human genetics, diagnostic test performance and medical economic analysis. Dr. Patton’s experience as a trustee and consultantto funds that invest in life science companies provide him with the perspective from which we benefit. Additionally, Dr. Patton’smedical experience and service as a principal and director of other life science companies makes Dr. Patton particularly qualifiedto serve as our director.

 

Roni A. Appel. Mr. Appel hasserved as a member of our board of directors since November 2004. He was our President and Chief Executive Officer from January1, 2006 and Secretary and Chief Financial Officer from November 2004, until he resigned as our Chief Financial Officer on September7, 2006 and as our President, Chief Executive Officer and Secretary on December 15, 2006. From 1999 to 2004, he was a partner andmanaging director of LV Equity Partners (f/k/a LibertyView Equity Partners). From 1998 until 1999, he was a director of businessdevelopment at Americana Financial Services, Inc. From 1994 to 1998 he was an attorney and completed his MBA at Columbia University.Mr. Appel’s longstanding service with us and his entrepreneurial investment career in early stage biotech businesses qualifyhim to serve as our director.

 

Dr. Thomas L. McKearn. Dr.McKearn has served as a member of our board of directors since July 2002. He brings more than 25 years of experience in the translationof biotechnology science into oncology products. First as one of the founders of Cytogen Corporation, then as an Executive Directorof Strategic Science and Medicine at Bristol-Myers Squibb and now as the VP Strategic Clinical Affairs at Agennix, Inc. (formerlyGPC-Biotech), he has worked at bringing the most innovative laboratory findings into the clinic and through the FDA regulatoryprocess for the benefit of cancer patients who need better ways to cope with their afflictions. Prior to entering the biotechnologyindustry in 1981, Dr. McKearn received his medical, graduate and post-graduate training at the University of Chicago and servedon the faculty of the Medical School at the University of Pennsylvania. Dr. McKearn’s experience in managing life sciencecompanies, his knowledge of medicine and his commercialization of biotech products particularly qualify him to serve as our director.

 

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Richard L. Berman. Mr. Bermanhas served as a member of our board of directors since September 1, 2005. Mr. Berman’s business career spans over 35 yearsof venture capital, senior management and merger and acquisitions experience. In the past five years, Mr. Berman has served asa director and/or officer of over a dozen public and private companies. From 2006 to 2011, Mr. Berman was Chairman of NationalInvestment Managers, a company with $12 billion in pension administration assets. In June 2011, he became chairman of the InternationalCorporation for Project Finance LLC, a leading private infrastructure finance company involved in over $10 billion of projects.Mr. Berman is currently a director of four public companies: Broadcaster, Inc., Easylink Services International, Inc., Advaxis,Inc., and Neostem, Inc. From 1998 to 2000, he was employed by Internet Commerce Corporation (now Easylink Services) as Chairmanand CEO. Prior to 1998, Mr. Berman worked at Goldman Sachs and was Senior Vice President of Bankers Trust Company. Mr. Berman isa past Director of the Stern School of Business of NYU where he obtained his BS and MBA. He also has U.S. and foreign law degreesfrom Boston College and The Hague Academy of International Law, respectively. Mr. Berman’s extensive knowledge of our industry,his role in the governance of publically held companies and his directorships in other life science companies qualify him to serveas our director.

 

John Rothman, Ph.DDr. Rothman joined our company in March 2005 as Vice President of Clinical Development and as of December 12, 2008 he was appointedto Executive Vice President of Clinical and Scientific Operations.  From 2002 to 2005, Dr. Rothman was Vice Presidentand Chief Technology Officer of Princeton Technology Partners.  Prior to that he was involved in the development of thefirst interferon at Schering Inc., was director of a variety of clinical development sections at Hoffman LaRoche, and the SeniorDirector of Clinical Data Management at Roche.  While at Roche his work in Kaposi’s Sarcoma became the clinicalbasis for the first filed BLA which involved the treatment of AIDS patients with interferon.  Dr. Rothman completed hisdoctorate at City University of Los Angeles.

 

Mark J. Rosenblum. Effectiveas of January 5, 2010, Mr. Rosenblum joined our company as our Chief Financial Officer, Senior Vice President and Secretary. Mr.Rosenblum was the Chief Financial Officer of HemobioTech, Inc., a public company primarily engaged in the commercialization ofhuman blood substitute technology licensed from Texas Tech University, from April 1, 2005 until December 31, 2009. From August1985 through June 2003, Mr. Rosenblum was employed by Wellman, Inc., a public chemical manufacturing company. Between 1996 and2003, Mr. Rosenblum was the Chief Accounting Officer, Vice President and Controller at Wellman, Inc. Mr. Rosenblum holds both aMasters in Accountancy and a B.S. degree from the University of South Carolina. Mr. Rosenblum is a certified public accountant.

 

Board of Directors

 

Each director is elected for a period ofone year and serves until the next annual meeting of stockholders, or until his or her successor is duly elected and qualified.Officers are elected by, and serve at the discretion of, our board of directors. The board of directors may also appoint additionaldirectors up to the maximum number permitted under our by-laws, which is currently nine.

 

Director Independence

 

In accordance with the disclosure requirementsof the SEC, and since the OTC Bulletin Board does not have its own rules for director independence, we have adopted the NASDAQlisting standards for independence effective April 2010. Although we are not presently listed on any national securities exchange,each of our directors, other than Mr. Thomas A. Moore and Mr. Roni Appel, is independent in accordance with the definition setforth in the NASDAQ rules. Each current member of the Audit Committee and Compensation Committee is an independent director underthe NASDAQ standards. The Board considered the information included in transactions with related parties as outlined below alongwith other information the Board considered relevant, when considering the independence of each director.

 

Committees of the Board of Directors

 

Our board of directors has three standingcommittees: the audit committee, the compensation committee, and the nominating and corporate governance committee.

 

Audit Committee

 

The audit committee of our board of directorsis currently composed of two directors, both of whom satisfy the independence standards for audit committee members under the NASDAQrules (although our securities are not listed on the NASDAQ stock market but are quoted on the OTC Bulletin Board). For fiscal2011, the audit committee was composed of Mr. Berman and Dr. Patton, with Mr. Berman serving as the audit committee’s financialexpert as defined under Item 407 of Regulation S-K of the Securities Act of 1933, as amended, which we refer to as the SecuritiesAct. Our board of directors has determined that the audit committee financial expert is independent as defined in (i) Rule 10A-3(b)(i)(ii)under the Exchange Act and (ii) under Section 121 B(2)(a) of the NYSE Amex Equities Company Guide (although our securities arenot listed on the NYSE Amex Equities but are quoted on the OTC Bulletin Board).

 

The audit committee is responsible for thefollowing:

 

·reviewing the results of the audit engagement with the independent registered public accounting firm;

 

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·identifying irregularities in the management of our business in consultation with our independent accountants, and suggestingan appropriate course of action;

 

·reviewing the adequacy, scope, and results of the internal accounting controls and procedures;

 

·reviewing the degree of independence of the auditors, as well as the nature and scope of our relationship with our independentregistered public accounting firm;

 

·reviewing the auditors’ fees; and

 

·recommending the engagement of auditors to the full board of directors.

 

Compensation Committee

 

The compensation committee of our boardof directors consists of Mr. Berman and Dr. McKearn.  The compensation committee determines the salaries and incentivecompensation of our officers subject to applicable employment agreements, and provides recommendations for the salaries and incentivecompensation of our other employees and consultants.

 

Nominating and Corporate Governance Committee

 

The nominating and corporate governancecommittee of our board of directors currently consists of Mr. Berman and Mr. Moore. The nominating and corporate governance committeedid not meet in fiscal 2011.  The functions of the nominating and corporate governance committee include the following:

 

·identifying and recommending to the board of directors individuals qualified to serve as members of our board of directorsand on the committees of the board;

 

·advising the board with respect to matters of board composition, procedures and committees;

 

·developing and recommending to the board a set of corporate governance principles applicable to us and overseeing corporategovernance matters generally including review of possible conflicts and transactions with persons affiliated with directors ormembers of management; and

 

·overseeing the annual evaluation of the board and our management.

 

The nominating and corporate governancecommittee will consider director candidates recommended by eligible stockholders. Stockholders may recommend director nomineesfor consideration by the nominating and corporate governance committee by writing to the Nominating and Corporate Governance, Attention:Chairman, Advaxis, Inc., 305 College Road East, Princeton, New Jersey 08540. Any recommendations for director made to the nominatingand corporate governance committee should include the nominee’s name and qualifications for membership on our board of directors,and should include the following information for each person being recommended or nominated for election as a director:

 

·The name, age, business address and residence address of the person;

 

·The principal occupation or employment of the person;

 

·The number of shares of our common stock which the person owns beneficially or of record; and

 

·Any other information relating to the person that must be disclosed in a proxy statement or other filings required to be madein connection with solicitations of proxies for election of directors under Section 14 of the Exchange Act and its rules and regulations.

 

In addition, the stockholder’s noticemust include the following information about such stockholder:

 

·The stockholder’s name and record address;

 

·The number of shares of our common stock that the stockholder owns beneficially or of record;

 

·A description of all arrangements or understandings between the stockholder and each proposed nominee and any other personor persons, including their names, pursuant to which the nomination is to be made;

 

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·A representation that the stockholder  intends to appear in person or by proxy at the annual meeting to nominatethe person or persons named in such stockholder’s notice; and

 

·Any other information about the stockholder that must be disclosed in a proxy statement or other filings required to be madein connection with solicitations of proxies for election of directors under Section 14 of the Exchange Act and its rules and regulations.

 

The notice must include a written consentby each proposed nominee to being named as a nominee and to serve as a director if elected. No person will be eligible for electionas a director of ours unless recommended by the nominating and corporate governance committee and nominated by our board of directorsor nominated in accordance with the procedures set forth above. Candidates proposed by stockholders for nomination are evaluatedusing the same criteria as candidates initially proposed by the nominating and corporate governance committee.

 

We must receive the written nomination foran annual meeting not less than 90 days and not more than 120 days prior to the first anniversary of the previous year’sannual meeting of stockholders, or, if no annual meeting was held the previous year or the date of the annual meeting is advancedmore than 30 days before or delayed more than 60 days after the anniversary date, we must receive the written nomination not morethan 120 days prior to the annual meeting and not less than the later of 90 days prior to the annual meeting or ten days followingthe day on which public announcement of the date of the annual meeting is first made. For a special meeting, we must receive thewritten nomination not less than the later of 90 days prior to the special meeting or ten days following the day on which publicannouncement of the date of the special meeting is first made.

 

The nominating and corporate governancecommittee expects, as minimum qualifications, that nominees to our board of directors (including incumbent directors) will enhanceour board of director’s management, finance and/or scientific expertise, will not have a conflict of interest and will havea high ethical standard. A director nominee’s knowledge and/or experience in areas such as, but not limited to, the medical,biotechnology, or life sciences industry, equity and debt capital markets and financial accounting are likely to be consideredboth in relation to the individual’s qualification to serve on our board of directors and the needs of our board of directorsas a whole. Other characteristics, including but not limited to, the director nominee’s material relationships with us, timeavailability, service on other boards of directors and their committees, or any other characteristics which may prove relevantat any given time as determined by the nominating and corporate governance committee shall be reviewed for purposes of determininga director nominee’s qualification.

 

Candidates for director nominees are evaluatedby the nominating and corporate governance committee in the context of the current composition of our board of directors, our operatingrequirements and the long-term interests of our stockholders. The nominating and corporate governance committee then uses its networkof contacts to compile a list of potential candidates, but may also engage, if it deems appropriate, a professional search firm.The nominating and corporate governance committee conducts any appropriate and necessary inquiries into the backgrounds and qualificationsof possible candidates after considering the function and needs of our board of directors. In the case of incumbent directors whoseterms of office are set to expire, the nominating and corporate governance committee reviews such directors’ overall serviceto us during their term, including the number of meetings attended, level of participation, quality of performance, and any otherrelationships and transactions that might impair such directors’ independence. The nominating and corporate governance committeemeets to discuss and consider such candidates’ qualifications and then selects a nominee for recommendation to our boardof directors by majority vote. To date, the nominating and corporate governance committee has not paid a fee to any third partyto assist in the process of identifying or evaluating director candidates.

 

Compensation Committee Interlocks and Insider Participation

 

The current members of the compensationcommittee are Mr. Berman and Dr. McKearn. Currently, none of such persons is an officer or employee of us or any of our subsidiaries.During fiscal 2011, none of our executive officers served as a director or member of a compensation committee (or other committeeserving an equivalent function) of any other entity, whose executive officers served as a director or member of our compensationcommittee. No interlocking relationship, as defined by the Securities Exchange Act of 1934, as amended, exists between our boardof directors or our Compensation Committee and the board of directors or compensation committee of any other company.

 

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EXECUTIVE COMPENSATION

 

Summary Compensation Table

 

The following table sets forth the informationas to compensation paid to or earned by our Chief Executive Officer and our two other most highly compensated executive officersduring the fiscal years ended October 31, 2011 and 2010.  These individuals are referred to in this prospectus as ournamed executive officers.  As none of our named executive officers received non-equity incentive plan compensation ornonqualified deferred compensation earnings during the fiscal years ended October 31, 2011 and 2010, we have omitted those columnsfrom the table.

 

Name and
Principal
Position
  Fiscal Year     Salary     Bonus     Stock
Award(s)
(1)
    Option
Award(s)
(1)
    All Other
Compensation
    Total  
                                           
Thomas A. Moore,     2011     $ 350,000     $ -     $ -     $ - (7)   $ 21,294 (2)   $ 371,294  
CEO and Chairman     2010       350,000       -       135,000 (6)     224,800       142,174 (2)     851,974  
                                                         
Dr. John Rothman,     2011       275,000       83,000       30,000 (3)     - (8)     34,665 (4)     422,665  
Executive VP of Science & Operations     2010       250,000       50,000       30,000 (3)     252,900       29,451 (4)     612,351  
                                                         
Mark J. Rosenblum     2011       250,000       72,000       -       - (9)     19,211 (5)     341,211  
Chief Financial Officer     2010       225,000       -       -       134,880       8,494 (5)     368,374  

 

(1) The amounts shown in this column represent the fair value on grant date in accordance with ASC 718 using the assumptions described under Stock Compensation in Note 2 to our financial statements included elsewhere in this prospectus.
   
(2) Based on our cost of Mr. Moore’s coverage for health care and interest received for the Moore Notes.
   
(3) Represents $30,000 of base salary paid in shares of our common stock in lieu of cash, based on the average monthly stock price.
   
(4) Based on our cost of his coverage for health care and the 401K company match he received.
   
(5) Based on our cost of his coverage for health care.
   
(6) For 2010, represents 750,000 shares of our common stock granted to Mr. Moore based on the financial raise milestone in his employment agreement valued at the market close price on June 29, 2010.
   
(7) In the fiscal year ended October 31, 2011, we did not grant any stock options to purchase shares of our common stock to Mr. Moore. However, in the fiscal year ended October 31, 2012, we granted stock options to purchase 4,000,000 shares of our common stock to Mr. Moore in connection with services he performed in fiscal 2011. The material terms of this grant is described below under the heading “Discussion of Summary Compensation Table.”
   
(8) In the fiscal year ended October 31, 2011, we did not grant any stock options to purchase shares of our common stock to Dr. Rothman. However, in the fiscal year ended October 31, 2012, we granted stock options to purchase 3,000,000 shares of our common stock to Dr. Rothman in connection with services he performed in fiscal 2011. The material terms of this grant is described below under the heading “Discussion of Summary Compensation Table.”
   
(9) In the fiscal year ended October 31, 2011, we did not grant any stock options to purchase shares of our common stock to Mr. Rosenblum. However, in the fiscal year ended October 31, 2012, we granted stock options to purchase 2,100,000 shares of our common stock to Mr. Rosenblum in connection with services he performed in fiscal 2011. The material terms of this grant is described below under the heading “Discussion of Summary Compensation Table.”

 

Discussion of Summary Compensation Table

 

We are party to an employment agreementwith each of our named executive officers who is presently employed by us, other than Mr. Rosenblum and Mr. Rothman. Each employmentagreement sets forth the terms of that officer’s employment, including among other things, salary, bonus, non-equity incentiveplan and other compensation, and its material terms are described below. In fiscal 2010, we granted stock options to our namedexecutive officers to purchase shares of our common stock and issued stock to our Chief Executive Officer. In fiscal 2011, we didnot grant any stock options to purchase shares of our common stock to our named executive officers. However, in fiscal 2012, wegranted stock options to purchase shares of our common stock to our named executive officers in connection with services they performedin fiscal 2011. The material terms of these grants are also described below.

 

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Moore Employment Agreement and OptionAgreements.   We are party to an employment agreement with Mr. Moore, dated as of August 21, 2007 (memorializingan oral agreement dated December 15, 2006), that provides that he will serve as our Chairman of the Board and Chief Executive Officerfor an initial term of two years.  For so long as Mr. Moore is employed by us, Mr. Moore is also entitled to nominateone additional person to serve on our board of directors.  Following the initial term of employment, the agreement wasrenewed for a one year term, and is automatically renewable for additional successive one year terms, subject to our right andMr. Moore’s right not to renew the agreement upon at least 90 days’ written notice prior to the expiration of any oneyear term.

 

Under the terms of the agreement, Mr. Moorewas entitled to receive a base salary of $250,000 per year, subject to increase to $350,000 per year upon our successful raiseof at least $4.0 million (which condition was satisfied on November 1, 2007) and subject to annual review for increases by ourboard of directors in its sole discretion. The agreement also provides that Mr. Moore is entitled to receive family health insuranceat no cost to him. Mr. Moore’s employment agreement does not provide for the payment of a bonus.

 

In connection with our hiring of Mr. Moore,we agreed to grant Mr. Moore up to 1,500,000 shares of our common stock, of which 750,000 shares were issued on November 1, 2007upon our successful raise of $4.0 million and 750,000 shares were issued on June 29, 2010 upon our successful raise of an additional$6.0 million (which condition was satisfied in January 2010). In addition, on December 15, 2006, we granted Mr. Moore options topurchase 2,400,000 shares of our common stock. Each option is exercisable at $0.143 per share (which was equal to the closing saleprice of our common stock on December 15, 2006) and expires on December 15, 2016. The options vested in 24 equal monthly installments.On July 21, 2009, we granted Mr. Moore options to purchase 2,500,000 shares of our common stock. Each option is exercisable at$0.10 per share (which was equal to the closing sale price of our common stock on July 21, 2009) and expires on July 21, 2019.One-third of these options vested on the grant date, one-third of these options vested on the first anniversary of the grant andthe remaining one-third will vest on the second anniversary of the grant. On October 14, 2010, we granted Mr. Moore options topurchase 2,000,000 shares of our common stock. Each option is exercisable at $0.15 per share. These options vest over a three yearperiod beginning one year from the grant date. On November 8, 2011, we granted Mr. Moore options to purchase 4,000,000 shares ofour common stock. Each option is exercisable at $0.148 per share. These options vest over a three year period beginning one yearfrom the grant date.

 

We have also agreed to grant Mr. Moore optionsto purchase an additional 1,500,000 shares of our common stock if the price of common stock (adjusted for any splits) is equalto or greater than $0.40 for 40 consecutive business days.  Pursuant to the terms of his employment agreement, all optionswill be awarded and vested upon a merger of the company which is a change of control or a sale of the company while Mr. Moore isemployed.  In addition, if Mr. Moore’s employment is terminated by us, Mr. Moore is entitled to receive severancepayments equal to one year’s salary at the then current compensation level.

 

Mr. Moore has agreed to refrain from engagingin certain activities that are competitive with us and our business during his employment and for a period of 12 months thereafterunder certain circumstances.  In addition, Mr. Moore is subject to a non-solicitation provision for 12 months after terminationof his employment.

 

Rothman Employment Agreement and OptionAgreements.   We previously entered into an employment agreement with Dr. Rothman, Ph.D., dated as of March 7, 2005,that provided that he would serve as our Vice President of Clinical Development for an initial term of one year.  Dr.Rothman’s current salary is $305,000, consisting of $275,000 in cash and $30,000 in stock, payable in our common stock, basedon the average closing stock price for such six month period.  While the employment agreement has expired and has notbeen formally renewed in accordance with the agreement, Dr. Rothman remains employed by us and is currently our Executive V.P.of Clinical and Scientific Operations.

 

In addition, on March 1, 2005, we grantedDr. Rothman options to purchase 360,000 shares of our common stock. Each option is exercisable at $0.287 per share (which was equalto the closing sale price of our common stock on March 1, 2005) and expires on March 1, 2015. All of these options have vested.On March 29, 2006, we granted Dr. Rothman options to purchase 150,000 shares of our common stock. Each option is exercisable at$0.26 per share (which was equal to the closing sale price of our common stock on March 29, 2006) and expires on March 29, 2016.One-fourth of these options vested on the first anniversary of the grant date, and the remaining vest in 12 equal quarterly installments.On February 15, 2007, we granted Dr. Rothman options to purchase 300,000 shares of our common stock. Each option is exercisableat $0.165 per share (which was equal to the closing sale price of our common stock on February 15, 2007) and expires on February15, 2017. One-fourth of these options vested on the first anniversary of the grant date, and the remaining vest in 12 equal quarterlyinstallments. Pursuant to the terms of the 2005 plan, at least 75% of Dr. Rothman’s options will be vested upon a mergerof the company which is a change of control or a sale of the company while Dr. Rothman is employed, unless the administrator ofthe plan otherwise allows for all options to become vested. On July 21, 2009, we granted Mr. Rothman options to purchase 1,750,000shares of our common stock. Each option is exercisable at $0.10 per share (which was equal to the closing sale price of our commonstock on July 21, 2009) and expires on July 21, 2019. One-third of these options vested on the grant date, one-third of these optionsvested on the first anniversary of the grant and the remaining one-third will vest on the second anniversary of the grant. On October14, 2010, we granted Dr. Rothman options to purchase 2,250,000 shares of our common stock. Each option is exercisable at $0.15per share. These options vest over a three year period beginning one year from the grant date. On November 8, 2011, we grantedDr. Rothman options to purchase 3,000,000 shares of our common stock. Each option is exercisable at $0.148 per share. These optionsvest over a three year period beginning one year from the grant date.

 

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Dr. Rothman has agreed to refrain from engagingin certain activities that are competitive with us and our business during his employment and for a period of 18 months thereafterunder certain circumstances.  In addition, Dr. Rothman is subject to a non-solicitation provision for 18 months aftertermination of his employment.

 

Rosenblum Compensation.  Mr.Rosenblum serves as our Chief Financial Officer, Senior Vice President and Secretary.  His current salary is $240,000per annum, with a discretionary bonus of up to 30% of his base compensation awarded annually in March beginning in 2011.  Whilean employment agreement has not been formally entered into, Mr. Rosenblum remains employed by us.

 

In addition, on January 5, 2010, Mr. Rosenblumwas granted options to purchase 1,000,000 shares of the our common stock with an exercise price equal to $0.128.  Onethird of these options vested on the date of grant, one third vested on January 5, 2011, and one third vests on the second anniversaryof the date of grant.  On October 14, 2010, we granted Mr. Rosenblum options to purchase 1,200,000 shares of our commonstock. Each option is exercisable at $0.15 per share. These options vest over a three year period beginning one year from the grantdate. On November 8, 2011, we granted Mr. Rosenblum options to purchase 2,100,000 shares of our common stock. Each option is exercisableat $0.148 per share. These options vest over a three year period beginning one year from the grant date.

 

Outstanding Equity Awards at Fiscal Year-End

 

The following table provides informationabout the number of outstanding equity awards held by our named executive officers at October 31, 2011.

 

    Option Awards   Stock Awards  
Name   Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
    Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
    Equity
Incentive
Plan Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
    Option
Exercise
Price ($)
    Option
Expiration
Date
  Number of
Shares or
Units of
Stock That
Have Not
Vested (#)
    Market
Value
of Shares
or
Units of
Stock
That Have
Not Vested
($)
    Equity
Incentive
Plan Awards:
Number of
Unearned
Shares, Units
or
Other Rights
That Have
Not
Vested (#)
    Equity
Incentive
Plan Awards:
Market or
Payout
Value of
Unearned
Shares,
Units or Other
Rights That
Have
Not
Vested ($)
 
                                                   
Thomas A. Moore     2,500,000 (1)     —       —       0.100     7/21/19     —    $       —       —  
      2,400,000       —       —       0.143     12/15/16     —       —       —       —  
      666,667       1,333,333 (2)           0.15     10/14/20                      
                                                   
Dr. John Rothman     1,750,000 (3)     —       —       0.100     7/21/19     —       —       —       —  
      360,000       —       —       0.287     3/1/15     —       —       —       —  
      150,000       —       —       0.260     3/29/16     —       —       —       —  
      300,000 (4)     —       —       0.165     2/15/17     —       —       —       —  
      750,000       1,500,000 (5)           0.15     10/14/20                      
                                                   
Mark J. Rosenblum     666,666       333,334 (6)           0.1291     1/05/20                      
      400,000       800,000 (7)           0.15     10/14/20                      

 

(1) Of these options, approximately 833,333 became exercisable on July 21, 2009, approximately 833,333 became exercisable on July 21, 2010 and approximately 833,333 became exercisable on July 21, 2011.
   
(2) Of these options, approximately 666,666 became exercisable on October 14, 2011, approximately 666,667 will become exercisable on October 14, 2012 and approximately 666,667 will become exercisable on October 14, 2013.
   
(3) Of these options, approximately 583,333 became exercisable on July 21, 2009, approximately 583,333 became exercisable on July 21, 2010 and approximately 583,333 became exercisable on July 21, 2011.
   
(4) Of these options, 75,000 became exercisable on February 15, 2008, 18,750 became exercisable in each quarter from the quarter ended April 30, 2008 through the quarter ended October 31, 2010, and 18,750 became exercisable on February 15, 2011.
   
(5) Of these options, 750,000 became exercisable on October 14, 2011, 750,000 will become exercisable on October 14, 2012 and 750,000 will become exercisable on October 14, 2013.

 

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(6) Of these options, 333,333 became exercisable on January 5, 2010, 333,333 became exercisable on January 5, 2011 and 333,334 became exercisable on January 5, 2012.
   
(7) Of these options, 400,000 became exercisable on October 14, 2011, 400,000 will become exercisable on October 14, 2012 and 400,000 will become exercisable on October 14, 2013.

 

Director Compensation

 

All of our non-employee directors earn acombination of cash compensation and awards of shares of our common stock.  Each non-employee director (other than Mr.Berman) earns 6,000 shares of our common stock per quarter. Additionally, each non-employee director earns $2,000 for each boardmeeting attended in person and $750 for each telephonic board meeting. In addition, each member of a committee of the Board earns$2,000 per meeting attended in person held on days other than board meeting days and $750 for each telephonic committee meeting.In addition, Mr. Berman, earns $2,000 a month in shares of our common stock based on the average closing price of our common stockfor the preceding month.  The non-employee director compensation that was earned for the twelve months ended October31, 2011, was not paid or issued. Our employee director does not receive any compensation for his services as a director.

 

The table below summarizes the compensationthat was earned by our non-employee directors for fiscal 2011. As none of our non-employee directors received non-equity incentiveplan compensation or nonqualified deferred compensation earnings during fiscal 2011, we have omitted those columns from the table.

 

Name  Fees
Earned
or Paid
in Cash
($)
   Stock
Awards
($)(1)
   Option
Awards
($)(1)
   All other
Compensation
($)
   Total
($)
 
                     
Roni A. Appel  $5,000   $3,879(2)  $       $8,879 
Dr. James Patton   9,750    3,879(2)           13,629 
Dr. Thomas McKearn   8,000    3,879(2)           11,879 
Richard Berman   10,250    24,000(3)           34,250 

 

(1) The amounts shown in this column represent the fair value on grant date in accordance with ASC 718 using the assumptions described under Stock Compensation in Note 2 to our financial statements included elsewhere in this prospectus.
   
(2) Represents the grant date fair value of 6,000 shares of our common stock a quarter earned (but not paid or issued) if the member attends at least 75% of the meetings annually.
   
(3) Based on $24,000 of compensation in the form of shares of our common stock earned but not issued to date.

 

2004 Stock Option Plan

 

In November 2004, our board of directorsadopted and our stockholders approved the 2004 Stock Option Plan, which we refer to as the 2004 plan.  The 2004 planprovides for the grant of options to purchase up to 2,381,525 shares of our common stock to employees, officers, directors andconsultants.  Options may be either “incentive stock options” or non-qualified options under the Federaltax laws.  Incentive stock options may be granted only to our employees, while non-qualified options may be issued,in addition to employees, to non-employee directors and consultants.  As of December 6, 2012, all options to purchaseshares of our common stock have been granted under the 2004 plan.

 

The 2004 plan is administered by “disinterestedmembers” of our board of directors or the compensation committee, who determine, among other things, the individuals whowill receive options, the time period during which the options may be partially or fully exercised, the number of shares of commonstock issuable upon the exercise of each option and the option exercise price.

 

Subject to a number of exceptions, the exerciseprice per share of common stock subject to an incentive option may not be less than the fair market value per share of common stockon the date the option is granted.  The per share exercise price of our common stock subject to a non-qualified optionmay be established by our board of directors, but will not, however, be less than 85% of the fair market value per share of commonstock on the date the option is granted.  The aggregate fair market value of common stock for which any person may begranted incentive stock options which first become exercisable in any calendar year may not exceed $100,000 on the date of grant.

 

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No stock option may be transferred by anoptionee other than by will or the laws of descent and distribution, and, during the lifetime of an optionee, the option will beexercisable only by the optionee.  In the event of termination of employment or engagement other than by death or disability,the optionee will have no more than three months after such termination during which the optionee will be entitled to exercisethe option to the extent vested at termination, unless otherwise determined by our board of directors.  Upon terminationof employment or engagement of an optionee by reason of death or permanent and total disability, the optionee’s options remainexercisable for one year to the extent the options were exercisable on the date of such termination.  No similar limitationapplies to non-qualified options.

 

We must grant options under the 2004 planwithin ten years from the effective date of the 2004 plan.  The effective date of the 2004 plan was November 12, 2004.  Subjectto a number of exceptions, holders of incentive stock options granted under the 2004 plan cannot exercise these options more thanten years from the date of grant.  Options granted under the 2004 plan generally provide for the payment of the exerciseprice in cash and may provide for the payment of the exercise price by delivery to us of shares of common stock already owned bythe optionee having a fair market value equal to the exercise price of the options being exercised, or by a combination of thesemethods.  Therefore, if it is provided in an optionee’s options, the optionee may be able to tender shares of commonstock to purchase additional shares of common stock and may theoretically exercise all of his stock options with no additionalinvestment other than the purchase of his original shares.

 

Any unexercised options that expire or thatterminate upon an employee’s ceasing to be employed by us become available again for issuance under the 2004 plan.

 

As of September 27, 2011, the date on whichthe Advaxis, Inc. 2011 Omnibus Incentive Plan was approved by our shareholders, no further awards may be made under the 2004 plan.

 

2005 Stock Option Plan

 

In June 2006 our board of directors adopted,and on June 6, 2006 our stockholders approved, the 2005 Stock Option Plan, which we refer to as the 2005 plan.

 

The 2005 plan provides for the grantof options to purchase up to 5,600,000 shares of our common stock to employees, officers, directors and consultants.  Optionsmay be either “incentive stock options” or non-qualified options under the Federal tax laws.  Incentivestock options may be granted only to our employees, while non-qualified options may be issued to non-employee directors, consultantsand others, as well as to our employees.  As of December 6, 2012, all options to purchase shares of our common stockhave been granted under the 2005 plan.

 

The 2005 plan is administered by “disinterestedmembers” of our board of directors or the compensation committee, who determine, among other things, the individuals whowill receive options, the time period during which the options may be partially or fully exercised, the number of shares of commonstock issuable upon the exercise of each option and the option exercise price.

 

Subject to a number of exceptions, the exerciseprice per share of common stock subject to an incentive option may not be less than the fair market value per share of common stockon the date the option is granted.  The per share exercise price of our common stock subject to a non-qualified optionmay be established by our board of directors, but will not, however, be less than 85% of the fair market value per share of commonstock on the date the option is granted.  The aggregate fair market value of common stock for which any person may begranted incentive stock options which first become exercisable in any calendar year may not exceed $100,000 on the date of grant.

 

Except when agreed to by our board of directorsor the administrator of the 2005 plan, no stock option may be transferred by an optionee other than by will or the laws of descentand distribution, and, during the lifetime of an optionee, the option will be exercisable only by the optionee.  In theevent of termination of employment or engagement other than by death or disability, the optionee will have no more than three monthsafter such termination during which the optionee will be entitled to exercise the option, unless otherwise determined by our boardof directors.  Upon termination of employment or engagement of an optionee by reason of death or permanent and totaldisability, the optionee’s options remain exercisable for one year to the extent the options were exercisable on the dateof such termination.  No similar limitation applies to non-qualified options.

 

We must grant options under the 2005 planwithin ten years from the effective date of the 2005 plan.  The effective date of the 2005 plan was January 1, 2005.  Subjectto a number of exceptions, holders of incentive stock options granted under the 2005 plan cannot exercise these options more thanten years from the date of grant.  Options granted under the 2005 plan generally provide for the payment of the exerciseprice in cash and may provide for the payment of the exercise price by delivery to us of shares of common stock already owned bythe optionee having a fair market value equal to the exercise price of the options being exercised, or by a combination of thesemethods.  Therefore, if it is provided in an optionee’s options, the optionee may be able to tender shares of commonstock to purchase additional shares of common stock and may theoretically exercise all of his stock options with no additionalinvestment other than the purchase of his original shares.

 

Any unexercised options that expire or thatterminate upon an employee’s ceasing to be employed by us become available again for issuance under the 2005 plan.

 

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As of September 27, 2011, the date on whichthe Advaxis, Inc. 2011 Omnibus Incentive Plan was approved by our shareholders, no further awards may be made under the 2005 plan.

 

2009 Stock Option Plan

 

Our board of directors adopted the 2009Stock Option Plan effective July 21, 2009, and recommended that it be submitted to our shareholders for their approval at the nextannual meeting. On April 23, 2010, our board of directors approved and adopted, and on June 1, 2010 our stockholders approved,the amended and restated 2009 Stock Option Plan, which we refer to as the 2009 plan. An aggregate of 20,000,000 shares of our commonstock (subject to adjustment by the compensation committee) are reserved for issuance upon the exercise of options granted underthe 2009 plan. As of September 27, 2011, the date on which the Advaxis, Inc. 2011 Omnibus Incentive Plan was approved by our shareholders,no further awards may be made under the 2009 plan.

 

The 2009 plan is to be administered by thecompensation committee of our board of directors; provided, however, that except as otherwise expressly provided in the 2009 plan,our board of directors may exercise any power or authority granted to the compensation committee under the 2009 plan. Subject tothe terms of the 2009 plan, the compensation committee is authorized to select eligible persons to receive options, determine thetype, number and other terms and conditions of, and all other matters relating to, options, prescribe option agreements (whichneed not be identical for each participant), and the rules and regulations for the administration of the 2009 plan, construe andinterpret the 2009 plan and option agreements, correct defects, supply omissions or reconcile inconsistencies therein, and makeall other decisions and determinations as the compensation committee may deem necessary or advisable for the administration ofthe 2009 plan.

 

The maximum number of shares of common stockto which options may be granted to any one individual under the 2009 plan is 6,000,000 (subject to adjustment by the compensationcommittee).  The shares acquired upon exercise of options granted under the 2009 plan will be authorized and issued sharesof our common stock.  Our shareholders will not have any preemptive rights to purchase or subscribe for any common stockby reason of the reservation and issuance of common stock under the 2009 plan.  If any option granted under the 2009plan should expire or terminate for any reason other than having been exercised in full, the unpurchased shares subject to thatoption will again be available for purposes of the 2009 plan.

 

The persons eligible to receive awards underthe 2009 plan are the officers, directors, employees, consultants and other persons who provide services to us or any related entity.  Anemployee on leave of absence may be considered as still in our or a related entity’s employ for purposes of eligibility forparticipation in the 2009 plan.  All options granted under the 2009 plan must be evidenced by a written agreement.  Theagreement will contain such terms and conditions as the compensation committee shall prescribe, consistent with the 2009 plan,including, without limitation, the exercise price, term and any restrictions on the exercisability of the options granted.  Forany option granted under the 2009 plan, the exercise price per share of common stock may be any price determined by the compensationcommittee; however, the exercise price per share of any incentive stock option may not be less than the fair market value of thecommon stock on the date such incentive stock option is granted.

 

The compensation committee may permit theexercise price of an option to be paid for in cash, by certified or official bank check or personal check, by money order, withalready owned shares of common stock that have been held by the optionee for at least six (6) months (or such other shares as wedetermine will not cause us to recognize for financial accounting purposes a charge for compensation expense), the withholdingof shares of common stock issuable upon exercise of the option, by delivery of a properly executed exercise notice together withsuch documentation as shall be required by the compensation committee (or, if applicable, the broker) to effect a cashless exercise,or a combination of the above.  If paid in whole or in part with shares of already owned common stock, the value of theshares surrendered is deemed to be their fair market value on the date the option is exercised.

 

No incentive stock option, and unless theprior written consent of our compensation committee is obtained (which consent may be withheld for any reason) and the transactiondoes not violate the requirements of Rule 16b-3 of the Exchange Act, no non-qualified stock option granted under the 2009 planis assignable or transferable, other than by will or by the laws of descent and distribution.  During the lifetime ofan optionee, an option is exercisable only by him or her, or in the case of a non-qualified stock option, by his or her permittedassignee.

 

The expiration date of an option under the2009 plan will be determined by our compensation committee at the time of grant, but in no event may such an option be exercisableafter 10 years from the date of grant.  An option may be exercised at any time or from time to time or only after a periodof time in installments, as determined by our compensation committee.  Our compensation committee may in its sole discretionaccelerate the date on which any option may be exercised. Each outstanding option granted under the 2009 plan may become immediatelyfully exercisable in the event of certain transactions, including certain changes in control of us, certain mergers and reorganizations,and certain dispositions of substantially all our assets.

 

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Unless otherwise provided in the optionagreement, the unexercised portion of any option granted under the 2009 plan shall automatically be terminated (a) three monthsafter the date on which the optionee’s employment is terminated for any reason other than (i) cause (as defined in the 2009plan), (ii) mental or physical disability, or (iii) death; (b) immediately upon the termination of the optionee’s employmentfor cause; (c) one year after the date on which the optionee’s employment is terminated by reason of mental or physical disability;or (d) one year after the date on which the optionee’s employment is terminated by reason of optionee’s death, or iflater, three months after the date of optionee’s death if death occurs during the one year period following the terminationof the optionee’s employment by reason of mental or physical disability.

 

Unless earlier terminated by our board,the 2009 plan will terminate at the earliest of (a) such time as no shares of common stock remain available for issuance underthe 2009 plan, (b) termination of the 2009 plan by our board, or (c) the tenth anniversary of the effective date of the 2009 plan.  Optionsoutstanding upon expiration of the 2009 plan shall remain in effect until they have been exercised or terminated, or have expired.

 

2011 Omnibus Incentive Plan

 

Our board of directors adopted the 2011Omnibus Incentive Plan on August 22, 2011, and recommended that it be submitted to our shareholders for their approval at thenext annual meeting.  On September 27, 2011, our stockholders approved the 2011 Omnibus Incentive Plan, which we referto as the 2011 plan. On June 28, 2012, our board of directors adopted an amendment to the 2011 plan, subject to stockholderapproval, to increase the number of shares covered by, and reserved for issuance under, the 2011 plan from 20,000,000 shares to65,000,000 shares. On August 13, 2012, our stockholders approved the amendment to the 2011 plan. An aggregate of 65,000,000 sharesof our common stock (subject to adjustment by the compensation committee) are reserved and available for delivery under the 2011plan.  During November 2011, we granted options to purchase 17,540,000 shares of our common stock from the 2011 planto our employees, officers and directors. As of December 6, 2012, 47,460,000 shares of our common stock are available for grantunder the 2011 plan.

 

Upon receiving stockholder approval of the2011 plan on September 27, 2011, no further awards were permitted to be made under the 2004 plan, the 2005 plan or the 2009 plan.

 

During any 12-month period, no participantin the 2011 plan may be granted (i) stock options or stock appreciation rights with respect to more than 4,000,000 shares of ourcommon stock, or (ii) shares of restricted stock, restricted stock units, performance shares and other stock based-awards withrespect to more than 4,000,000 shares of our common stock. The maximum amount that may be paid out as performance units with respectto any 12-month performance period is $2,500,000 (pro-rated for any 12-month performance period that is less than 12 months), andwith respect to any performance period that is more than 12 months, $2,000,000 multiplied by the number of full 12 month periodsthat are in the performance period.

 

The Committee, as defined below, is authorizedto adjust the limitations described above and is authorized to adjust outstanding awards (including adjustments to exercise pricesof options and other affected terms of awards) in the event that a dividend or other distribution, recapitalization, forward orreverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange or other similar corporatetransaction or event affects our common stock so that an adjustment is appropriate. The Committee is also authorized to adjustperformance conditions and other terms of awards in response to these kinds of events or in response to changes in applicable laws,regulations or accounting principles.

 

The persons eligible to receive awards underthe 2011 plan are the officers, directors, employees, consultants and other persons who provide services to us on a full-time basis.The foregoing notwithstanding, only our full-time employees, or any of our parent corporations or subsidiary corporations, shallbe eligible for purposes of receiving any incentive stock options.

 

The 2011 plan is to be administered by acommittee designated by our board of directors consisting of not less than two directors (the “Committee”), provided,however, that except as otherwise expressly provided in the 2011 plan, our board of directors may exercise any power or authoritygranted to the Committee under the 2011 plan. Subject to the terms of the 2011 plan, the Committee is authorized to select eligiblepersons to receive awards, determine the type, number and other terms and conditions of, and all other matters relating to, awards,prescribe award agreements, and the rules and regulations for the administration of the 2011 plan, construe and interpret the 2011plan and award agreements, correct defects, supply omissions or reconcile inconsistencies therein, and make all other decisionsand determinations as the Committee may deem necessary or advisable for the administration of the 2011 plan.

 

The Committee is authorized to grant stockoptions, including both incentive stock options and non-qualified stock options, and stock appreciation rights entitling the participantto receive the amount by which the fair market value of a share of our common stock on the date of exercise exceeds the grant priceof the stock appreciation right. The maximum term of each option or stock appreciation right, the times at which each option orstock appreciation right will be exercisable, and provisions requiring forfeiture of unexercised options or stock appreciationrights at or following termination of employment generally are fixed by the Committee, except that no option or stock appreciationright may have a term exceeding ten years. Methods of exercise and settlement and other terms of the options and stock appreciationright are determined by the Committee. The Committee, thus, may permit the exercise price of options awarded under the 2011 planto be paid in cash, shares, other awards or other property (including loans to participants).

 

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The Committee is authorized to grant restrictedstock and restricted stock units. Restricted stock is a grant of shares of our common stock which may not be sold or disposed of,and which shall be subject to such risks of forfeiture and other restrictions as the Committee may impose. An award of restrictedstock units confers upon a participant the right to receive shares of our common stock or cash equal to the fair market value ofthe specified number of shares of our common stock covered by the restricted stock units at the end of a specified deferral period,subject to such risks of forfeiture and other restrictions as the Committee may impose. Prior to settlement, an award of restrictedstock units carries no voting or dividend rights or other rights associated with share ownership, although dividend equivalentsmay be granted, as discussed below. 

 

The Committee is authorized to grant dividendequivalents conferring on participants the right to receive, currently or on a deferred basis, cash, shares of our common stock,other awards or other property equal in value to dividends paid on a specific number of shares of our common stock or other periodicpayments. Dividend equivalents may be granted alone or in connection with another award, may be paid currently or on a deferredbasis and, if deferred, may be deemed to have been reinvested in additional shares of our common stock, awards or otherwise asspecified by the Committee.

 

The Committee is authorized to grant sharesof our common stock as a bonus free of restrictions, or to grant shares of our common stock or other awards in lieu of our obligationsto pay cash under the 2011 plan or other plans or compensatory arrangements, subject to such terms as the Committee may specify.

 

The Committee or our board of directorsis authorized to grant awards that are denominated or payable in, valued by reference to, or otherwise based on or related to sharesof our common stock. The Committee determines the terms and conditions of such awards.

 

The Committee is authorized to grant performanceawards to participants on terms and conditions established by the Committee. The performance criteria to be achieved during anyperformance period and the length of the performance period are determined by the Committee upon the grant of the performance award.Performance awards may be settled by delivery of cash, shares or other property, or any combination thereof, as determined by theCommittee. The Committee may, in its discretion, determine that the amount payable as a performance award will be reduced fromthe amount of any potential award.

 

Awards may be settled in the form of cash,shares of our common stock, other awards or other property, in the discretion of the Committee. The Committee may require or permitparticipants to defer the settlement of all or part of an award in accordance with such terms and conditions as the Committee mayestablish, including payment or crediting of interest or dividend equivalents on deferred amounts, and the crediting of earnings,gains and losses based on deemed investment of deferred amounts in specified investment vehicles. The Committee may condition anypayment relating to an award on the withholding of taxes and may provide that a portion of any shares of our common stock or otherproperty to be distributed will be withheld (or previously acquired shares of our common stock or other property be surrenderedby the participant) to satisfy withholding and other tax obligations.

 

The Committee may, in its discretion, acceleratethe exercisability, the lapsing of restrictions or the expiration of deferral or vesting periods of any award, and such acceleratedexercisability, lapse, expiration and if so provided in the award agreement or otherwise determined by the Committee, vesting shalloccur automatically in the case of a “change in control” of the Company, as defined in the 2011 plan (including thecash settlement of stock appreciation rights which may be exercisable in the event of a change in control).

 

Our board of directors may amend, alter,suspend, discontinue or terminate the 2011 plan or the Committee’s authority to grant awards without further stockholderapproval, except that stockholder approval must be obtained for any amendment or alteration if such approval is required by lawor regulation or under the rules of any stock exchange or quotation system on which shares of our common stock are then listedor quoted. Thus, stockholder approval may not necessarily be required for every amendment to the 2011 plan which might increasethe cost of the 2011 plan or alter the eligibility of persons to receive awards. Stockholder approval will not be deemed to berequired under laws or regulations, such as those relating to incentive stock options, that condition favorable treatment of participantson such approval, although our board of directors may, in its discretion, seek stockholder approval in any circumstance in whichit deems such approval advisable. Unless earlier terminated by our board of directors, the 2011 plan will terminate at the earliestof (a) such time as no shares of our common stock remain available for issuance under the 2011 plan, (b) termination of the 2011plan by our board of directors, or (c) the tenth anniversary of the effective date of the 2011 plan. Awards outstanding upon expirationof the 2011 plan shall remain in effect until they have been exercised or terminated, or have expired.

 

2011 Employee Stock Purchase Plan

 

Our board of directors adopted the Advaxis,Inc. 2011 Employee Stock Purchase Plan, which we refer to as the ESPP, on August 22, 2011, and our stockholders approved the ESPPon September 27, 2011. The ESPP becomes effective November 1, 2011. On December 14, 2011, our board of directors approved an amendmentto the ESPP effective as of October 31, 2011. The ESPP was amended to change the first offering date that our employees were eligibleto participate in the ESPP from November 1, 2011 to December 30, 2011. 5,000,000 shares of our common stock are reserved for issuanceunder the ESPP. As of December 6, 2012, approximately 4,663,000 shares of our common stock are available for grant under the ESPP.

 

The compensation committee of our boardof directors will administer the ESPP. The ESPP vests the compensation committee with the authority to interpret the ESPP, to prescribe,amend and rescind rules and regulations relating to the ESPP, and to make all other determinations necessary or advisable for theadministration of the ESPP; however, our board of directors may exercise that authority in lieu of the compensation committee.The ESPP is required to be administered in a manner consistent with Rule 16b-3 of the Exchange Act and subject to the provisionsof Section 423 of the Internal Revenue Code. 

 

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Our employees that have been designatedby our board of directors as eligible to participate in the ESPP are eligible to become participants if they have been employedby us or any of our subsidiaries for six months and are scheduled to work at least 20 hours per week and more than five monthsper calendar year. Individuals who satisfy these requirements after November 1, 2011, would be eligible to become participantson the February 1, May 1, August 1, or November 1, as the case may be, immediately following their completion of these eligibilityrequirements. These eligible employees may become participants in the ESPP by completing an enrollment agreement and filing itwith us.

 

The ESPP generally is implemented througha series of 24-month-long offering periods, beginning on November 1 and ending on the October 31 that is 24 months later. Sharesof our common stock are available for purchase under the ESPP on periodic exercise dates within each offering period. Exercisedates are the last business days in January, April, July and October during each offering period. On the first business day ofeach offering period (or if later, the first day within the offering period on which a participant becomes eligible to participate),a participant is granted the option to purchase shares of our common stock on the exercise dates within that offering period.

 

If the share price is ever lower on an exercisedate than it was on the first business day of the offering period in which that exercise date falls, then the offering period inprogress ends immediately after the close of trading on that exercise date, and a new offering period begins on the next February1, May 1, August 1 or November 1, as the case may be, and extends for a new 24-month-long period ending on January 31, April 30,July 31 or October 31, as the case may be.

 

No participant is eligible for the grantof any option under the ESPP if, immediately after the grant, the participant would own, directly or indirectly, stock possessing5% or more of the total combined voting power or value of all classes of our stock or of any of our subsidiaries. Additionally,no participant may be granted any option that would permit the participant to buy our common stock that accrues at a rate thatexceeds $25,000 (based on the fair market value of our common stock on the date the option is granted) for each calendar year inwhich such option is outstanding at any time. Finally, no participant may purchase more than 166,666 shares of our common stockon any one exercise date.

 

The enrollment agreement that each participantmust submit authorizes after-tax payroll deductions from the participant’s compensation during each payroll period. Participantsmay elect a payroll deduction amount of at least 1%, and up to 15%, of their compensation. A participant may change or terminatehis or her payroll deductions at any time during an offering period, but may only begin payroll deductions on specified dates.

 

The exercise price per share at which sharesare sold in an offering under the ESPP is the lower of (i) 85% of the fair market value of a share of our common stock on the firstday of the offering period or, (ii) 85% of the fair market value of a share of our common stock on the exercise date. Unless otherwisedetermined by the compensation committee, the term fair market value is defined to mean the ratio of the value traded (the priceof a share of our common stock multiplied by number of shares of common stock traded) to total volume traded over the 10-day periodending on the valuation date.

 

A participant may withdraw from participationin the ESPP at any time by completing a withdrawal form and delivering it to us. If a participant’s employment terminatesfor any reason, he or she is treated as having withdrawn from the ESPP. All options granted to the participant under the ESPP,but not yet exercised, automatically terminate, and no further purchases of common stock are made for the participant’s accountfollowing the effectiveness of the participant’s withdrawal. After a participant withdraws, or is treated as having withdrawn,the participant is not permitted to participate again in the ESPP until the next entry date that is at least six months after hisor her date of withdrawal. In order to rejoin the ESPP, a former participant must submit a new enrollment agreement.

 

The ESPP will terminate following the lastexercise date before 10th anniversary of effective date, or if sooner, on the date on which all shares reserved for issuance underthe ESPP have been sold. Additionally, our board of directors may terminate the ESPP earlier. Our board of directors or the compensationcommittee may amend the ESPP at any time, provided that no amendment may change any option in a way that adversely affects therights of the holder of the option, no amendment may in any way cause rights issued under the ESPP to fail to meet the requirementsfor employee stock purchase plans under Section 423 of the Code, and no amendment may cause the ESPP to fail to comply with Rule16b-3 under the Exchange Act. To the extent necessary to comply with Rule 16b-3 under the Exchange Act, Section 423 of the Code,or any other applicable law or regulation, we will obtain shareholder approval of any such amendment.

 

5,000,000 shares of our common stock arereserved for issuance under the ESPP. That amount will be increased each year by the lowest of (i) 500,000 shares, (ii) one percentof all shares of common stock outstanding at the end of the previous year, or (iii) an amount determined by the board. If any optiongranted under the ESPP expires or terminates for any reason without having been exercised in full, the unpurchased shares subjectto that option will again be available for issuance under the ESPP.

 

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The ESPP provides for appropriate adjustmentof the number of shares of common stock for which options may be granted, the number of shares subject to outstanding options andthe exercise price of outstanding options in the event of any increase or decrease in the number of issued and outstanding sharesof our common stock as a result of one or more reorganizations, restructurings, recapitalizations, reclassifications, stock splits,reverse stock splits, or stock dividends.

 

STOCK OWNERSHIP

 

The following table sets forth certaininformation with respect to the beneficial ownership of our common stock as of December 6, 2012 of:

 

  · each person who is known by us to be the beneficial owner of more than 5% of our outstanding common stock;
     
  · each of our directors;
     
  · each of our named executive officers; and
     
  · all of our directors and executive officers as a group.

 

As used in the table below and elsewherein this prospectus, the term beneficial ownership with respect to our common stock consists of sole or shared voting power (whichincludes the power to vote, or to direct the voting of shares of our common stock) or sole or shared investment power (which includesthe power to dispose, or direct the disposition of, shares of our common stock) through any contract, arrangement, understanding,relationship or otherwise, including a right to acquire such power(s) during the 60 days following December 6, 2012.

 

Unless otherwise indicated in the footnotesto this table, and subject to community property laws where applicable, we believe each of the stockholders named in this tablehas sole voting and investment power with respect to the shares indicated as beneficially owned. Applicable percentages are basedon 423,827,618 shares of common stock outstanding as of December 6, 2012, adjusted as required by the rules promulgated by theSEC. Unless otherwise indicated, the address for each of the individuals and entities listed in this table is 305 College RoadEast, Princeton, New Jersey 08540.

 

Name and Address
of Beneficial Owner
  Number of
Shares of our Common
Stock
Beneficially Owned
    Percentage
of Class
Beneficially Owned
 
             
Thomas A. Moore   21,713,843 (1)   4.99 %
Roni A. Appel   7,371,431 (2)   1.7 %
Richard Berman   2,305,111 (3)   *
Dr. James Patton   4,016,259 (4)   1.0 %
Dr. Thomas McKearn   1,564,344 (5)   *
Dr. John Rothman   7,164,004 (6)   1.7 %
Mark J. Rosenblum   3,205,119 (7)   *
All Current Directors and Executive Officers as a Group (7 people)   47,340,111 (8)   11.0 %

 

* Less than 1%.

 

(1) Represents 10,842,367 issued shares of our common stock, options to purchase 7,541,476 shares of our common stock exercisable within 60 days and warrants to purchase 3,330,000 shares of our common stock exercisable within 60 days. However, it excludes warrants to purchase 7,734,611 shares of our common stock and promissory notes convertible into 800,000 shares of our common stock, limited by a 4.99% beneficial ownership provision in the warrants and notes that would prohibit him from exercising any of such warrants or converting any such notes to the extent that upon such exercise or conversion he, together with his affiliates, would beneficially own more than 4.99% of the total number of shares of our common stock then issued and outstanding (unless Mr. Moore provides us with 61 days' notice of the holders waiver of such provisions).
   
(2) Represents 4,212,134 issued shares of our common stock, options to purchase 3,139,297 shares of our common stock exercisable within 60 days and 20,000 shares of our common stock earned but not yet issued.
   
(3) Represents 677,632 issued shares of our common stock, options to purchase 1,412,291 shares of our common stock exercisable within 60 days and 215,188 shares of our common stock earned but not yet issued.
   
(4) Represents 2,940,576 issued shares of our common stock, options to purchase 833,460 shares of our common stock exercisable within 60 days, warrants to purchase 222,223 shares of our common stock exercisable within 60 days and 20,000 shares earned but not yet issued.

 

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(5) Represents 299,290 issued shares of our common stock, options to purchase 1,245,054 shares of our common stock exercisable within 60 days and 20,000 shares of our common stock earned but not yet issued.
   
(6) Represents 275,775 issued shares of our common stock, options to purchase 5,051,524 shares of our common stock exercisable within 60 days and 1,836,705 shares of our common stock earned but not yet issued.
   
(7) Represents 716,261 issued shares of our common stock, options to purchase 2,488,858 shares of our common stock exercisable within 60 days.
   
(8) Represents an aggregate of 19,964,035 shares of our common stock, options to purchase 21,711,960 shares of our common stock exercisable within 60 days, warrants to purchase 3,552,223 shares of our common stock exercisable within 60 days, and 2,111,893 shares of our common stock earned but not yet issued.

 

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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

 

Our policy is to enter into transactionswith related parties on terms that, on the whole, are no more favorable, or no less favorable, than those available from unaffiliatedthird parties.  Based on our experience in the business sectors in which we operate and the terms of our transactionswith unaffiliated third parties, we believe that all of the transactions described below met this policy standard at the time theyoccurred.

 

On September 22, 2008, we entered into anote purchase agreement with our Chief Executive Officer, Thomas A. Moore, which we refer to as the Moore Note Purchase Agreement,pursuant to which we agreed to sell to Mr. Moore, from time to time, one or more senior promissory notes, which we refer to asthe Moore Notes. On June 15, 2009, we amended the terms of the Moore Notes to increase the amounts available from $800,000 to $950,000and to change the maturity date of the Moore Notes from June 15, 2009 to the earlier of January 1, 2010 or our next equity financingresulting in gross proceeds to us of at least $6.0 million. On February 15, 2010, we agreed to amend the terms of the Moore Notessuch that (i) Mr. Moore had the option to elect to receive accumulated interest thereon on or after March 17, 2010 (which amountedto approximately $130,000), (ii) we were to begin to make monthly installment payments of $100,000 on the outstanding principalamount on April 15, 2010; provided, however, that the balance of the principal will be repaid in full on consummation of our nextequity financing resulting in gross proceeds to us of at least $6.0 million and (iii) we will retain $200,000 of the repaymentamount for investment in our next equity financing. In May 2010, we issued 1,176,471 shares of common stock to Mr. Moore (basedon a price of $0.17 per share) in satisfaction of $200,000 of Moore Notes.

 

In connection with a loan made by Mr. Mooreto us in the amount of $230,000, we agreed to further amend and restate the terms of the Moore Notes on March 17, 2011 to increasethe principal amount due by $230,000.  Under the terms of the amended and restated Moore Notes: (i) the maturity dateis the earlier of (x) the date of consummation of an equity financing by us in an amount of $6.0 million or more and (y) the occurrenceof any event of default as defined in the Moore Notes, (ii) Mr. Moore may elect, at his option, to receive accumulated interestthereon on or after April 15, 2011 (which amounted to approximately $91,000), (iii) we will make monthly installment payments of$100,000 on the outstanding principal amount beginning on June 15, 2011, and (iv) we may retain, at the option of Mr. Moore, $200,000of the repayment amount for investment in our next equity financing.  In addition, Mr. Moore made a loan to us in the amountof $65,000 in April 2011.

 

The Moore Notes bear interest at a rateof 12% per annum, compounded quarterly, and may be prepaid in whole or in part at our option without penalty at any time priorto maturity.  In consideration of Mr. Moore’s original agreement to purchase the Moore Notes, we agreed that concurrentlywith an equity financing resulting in gross proceeds to us of at least $6.0 million, we will issue to Mr. Moore a warrant to purchaseour common stock, which will entitle Mr. Moore to purchase a number of shares of our common stock equal to one share per $1.00invested by Mr. Moore in the purchase of the Moore Notes.  The terms of these warrants were subsequently modified byour board of directors based on the terms of the senior bridge financing increasing the number of shares underlying the warrantfrom one share per $1.00 invested to two and one-half shares.  The terms of these warrants were further modified by ourboard of directors to increase the number of shares underlying the warrant from two and one-half shares per $1.00 invested to threeshares.  The final terms are anticipated to contain the same terms and conditions as warrants issued to investors inthe subsequent financing (which are currently exercisable at $0.15 per share).

 

For the period from September 22, 2008 throughMay 11, 2011, Mr. Moore made loans to us in the aggregate amount of $1,372,985, making him eligible to receive warrants to purchase4,118,956 shares of our common stock on the occurrence of certain events as set forth in the terms of the Moore Notes describedabove.

 

In an effort to reduce the number ofthe warrants outstanding from our October 17, 2007 private placement, we have entered into exchange agreements with certain ofthe holders of such warrants, including Mr. Moore, pursuant to which such holders received shares of our common stock and/or additionalwarrants in amounts that were determined in such negotiations. As of December 6, 2012, we have exchanged October 2007 warrantsto purchase 39,690,911 shares of our common stock in return for 7,437,857 shares of our common stock and new warrants to purchase21,040,303 shares of our common stock (which number includes warrants issued to Mr. Moore in exchange for his October 2007 warrantsas described below). The new warrants issued pursuant to the exchanges are identical to the October 2007 warrants, except thatsuch warrants do not contain any economic anti-dilution adjustment rights.

 

On August 29, 2011, Mr. Moore entered intoan exchange agreement, pursuant to which he received a new warrant to purchase 7,674,512 shares of our common stock in exchangefor (i) surrendering an October 2007 warrant to purchase 2,666,667 shares of our common stock (as described above) and (ii) amendingthe Moore Note Purchase Agreement to terminate his right to receive warrants in connection with an equity financing, includingthe equity financing we completed in May 2011, which otherwise would have permitted Mr. Moore to receive the aforementioned warrantto purchase 4,118,956 shares of our common stock.

 

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In connection with the offering completedin October 2011, we issued $470,588.24 of convertible promissory notes to Mr. Moore for a purchase price of $400,000.00. Additionally,Mr. Moore received a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of ourcommon stock issuable upon conversion of the convertible promissory note issued to Mr. Moore at an exercise price of $0.15 pershare. The convertible promissory note purchased in the offering completed in October 2011 by Mr. Moore was paid for in exchangefor the cancellation of $400,000.00 of outstanding indebtedness owed by us to Mr. Moore under the Moore Notes. As of December6, 2012, approximately $238,000 in principal amount of Moore Notes was outstanding and payable to Mr. Moore. In connection withthe offering completed in October 2011, we also issued $58,823.53 of convertible promissory notes to an IRA account in the nameof our Chief Financial Officer, Mark J. Rosenblum, for a purchase price of $50,000.00. Additionally, Mr. Rosenblum received awarrant to purchase such number of shares of our common stock equal to 50% of such number of shares of our common stock issuableupon conversion of the convertible promissory note issued to Mr. Rosenblum at an exercise price of $0.15 per share. The convertiblepromissory notes purchased in the offering by Mr. Rosenblum were paid for in cash.

 

In connection with the May 2012 offering,we issued $120,000 of convertible promissory notes to Mr. Moore for a purchase price of $90,000. Additionally, Mr. Moore receiveda warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of our common stock issuableupon conversion of the convertible promissory note issued to Mr. Moore at an exercise price of $0.15 per share. The convertiblepromissory notes purchased in the May 2012 offering by Mr. Moore were paid for in cash.

 

Effective May14, 2012, we entered into an exchange agreement with Mr. Moore, pursuant to which Mr. Moore received approximately 5.4 millionshares of our common stock in exchange for (i) surrendering the existing notes held by Mr. Moore and surrendering warrants to purchasean aggregate of approximately 1,568,627 shares of our common stock originally issued on October 31, 2011, and (ii) amending thenote purchase agreements between us and Mr. Moore, dated as of October 28, 2011, to terminate (x) Mr. Moore’s rightto liquidated damages if we fail for any reason to satisfy the current public information requirement under Rule 144(c) promulgatedunder the Securities Act, (y) Mr. Moore’s right to participate in any proposed or intended issuance or sale or exchange ofthe our securities, and (z) the prohibition on our ability to effect, or enter into an agreement to effect, any issuance of oursecurities for cash consideration involving a variable rate transaction.

 

In June 2012, Mr. Moore loaned the Company$50,000. In October 2012, Mr. Moore loaned the Company $24,500. The total amount of 74,500 has been classified as deferred investmentfunds. As of December 6, 2012, the Company owed Mr. Moore an aggregate of approximately $433,000 in principal pursuant to themultiple promissory notes described above.

 

Effective May14, 2012, we entered into an exchange agreement with Mr. Rosenblum, pursuant to which Mr.Rosenblum received approximately 686,000 shares of our common stock in exchange for (i) surrenderingthe existing notes held by Mr. Rosenblum and surrendering warrants to purchase an aggregate of approximately 196,000 shares ofour common stock originally issued on October 31, 2011, and (ii) amending the note purchase agreements between us and Mr.Rosenblum, dated as of October 28, 2011, to terminate (x) Mr. Rosenblum’s right to liquidateddamages if we fail for any reason to satisfy the current public information requirement under Rule 144(c) promulgated under theSecurities Act, (y) Mr. Rosenblum’s right to participate in any proposed or intended issuance or sale or exchange of theour securities, and (z) the prohibition on our ability to effect, or enter into an agreement to effect, any issuance of our securitiesfor cash consideration involving a variable rate transaction.

 

On June 8, 2012, Thomas A. Moore, our ChiefExecutive Officer, waived our obligation to keep reserved from our authorized and available shares of common stock, such numberof shares of our common stock necessary to effect the exercise or conversion, as applicable, in full, of (i) warrants to purchasean aggregate of 11,064,611 shares of our common stock and (ii) promissory notes convertible into 800,000 shares of our common stock.This waiver expired on August 29, 2012, the date that we filed an amendment to our certificate of incorporation with the Secretaryof State of the State of Delaware to effect an increase to our authorized shares of common stock.

 

On July 5, 2012, in consideration for thewaiver described above, we entered into an exchange agreement with Mr. Moore, with an effective date of June 8, 2012, pursuantto which Mr. Moore surrendered warrants to purchase an aggregate of approximately 11,064,611 shares of our common stock to us inexchange for receiving warrants to purchase an aggregate of approximately 11,064,611 shares of our common stock that were not exercisableand for which no shares of our common stock were reserved until we filed an amendment to our certificate of incorporation withthe Secretary of State of the State of Delaware to effect an increase to our authorized shares of common stock. Mr. Moore alsoagreed pursuant to the exchange agreement not to convert the promissory notes convertible into 800,000 shares of our common stockuntil the Company filed on amendment to its certificate of incorporation with the Secretary of State of the State of Delaware toeffect an increase to its authorized shares of common stock. In addition, certain of the warrants received in the exchange havean extended expiration date which is two years following the date we obtained stockholder approval to increase our authorized sharesof common stock and filed an amendment to our certificate of incorporation.

 

On August 2, 2012, in a private placementpursuant to a note purchase agreement, we issued Dr. James Patton, a member of our board of directors, a convertible promissorynote in the principal amount of $66,667 for a purchase price of $50,000. The Patton Note was issued with an original issue discountof 25%. Dr. Patton paid $0.75 for each $1.00 of principal amount of the Patton Note purchased. The Patton Note is convertibleinto shares of our common stock at a per share conversion price equal to $0.025287. Additionally, Dr. Patton received a warrantto purchase such number of shares of our common stock equal to 50% of such number of shares of our common stock issuable uponconversion of the Patton Note at an exercise price of $0.025287 per share. The Patton Note matures on August 2, 2013. We may redeemthe Patton Note under certain circumstances. The Patton Warrant is exercisable at any time on or before August 2, 2017. The PattonWarrant may be exercised on a cashless basis under certain circumstances. The Patton Note and the Patton Warrant each includea limitation on conversion or exercise, as applicable, which provides that at no time will Dr. Patton be entitled to convert anyportion of the Patton Note or Patton Warrant to the extent that after such conversion or exercise, as applicable, Dr. Patton (togetherwith his affiliates) would beneficially own more than 4.99% of the outstanding shares of the common stock as of such date.

 

On September 25, 2012, in a privateplacement pursuant to a note purchase agreement, we issued our affiliate Dr. Yvonne Paterson a convertible promissory note inthe aggregate principal amount of $100,000 for a purchase price of $100,000. The Paterson Note bears interest at a rate of 12%per annum, compounding annually. The Paterson Note is convertible into shares of our common stock at a conversion price equalto the arithmetic average of the five lowest closing trading prices for the common stock during the 10 trading day period endingon the latest complete trading day prior to the applicable conversion date. The Paterson Note matures one month from its issuancedate. Additionally, Dr. Paterson will receive a warrant to purchase such number of shares of our common stock equal to 50% ofsuch number of shares of our common stock issuable upon conversion of the Patterson Note at an exercise price equal to the conversionprice then in effect. These warrants have not yet been issued. The Paterson Warrant may be exercised on a cashless basis undercertain circumstances. The Paterson Note and the Paterson Warrant each include a limitation on conversion or exercise, as applicable,which provides that at no time will Dr. Paterson be entitled to convert any portion of the Paterson Note or Paterson Warrant tothe extent that after such conversion or exercise, as applicable, Dr. Paterson (together with her affiliates) would beneficiallyown more than 4.99% of the outstanding shares of the common stock as of such date. On December 7, 2012, Dr. Paterson agreed toextend the maturity date of the Paterson Note to December 31, 2012

 

On September 27, 2012, in a privateplacement pursuant to a note purchase agreement, we issued our employee Christine French a convertible promissory note in theaggregate principal amount of $25,000 for a purchase price of $25,000. The French Note bears interest at a rate of 12% per annum,compounding annually. The French Note is convertible into shares of our common stock at a conversion price equal to the arithmeticaverage of the five lowest closing trading prices for the common stock during the 10 trading day period ending on the latest completetrading day prior to the applicable conversion date. The French Note matures one month from its issuance date. Additionally, Ms.French will receive a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of ourcommon stock issuable upon conversion of the French Note at an exercise price equal to the conversion price then in effect. Thesewarrants have not yet been issued. The French Warrant may be exercised on a cashless basis under certain circumstances. The FrenchNote and the French Warrant each include a limitation on conversion or exercise, as applicable, which provides that at no timewill Ms. French be entitled to convert any portion of the French Note or French Warrant to the extent that after such conversionor exercise, as applicable, Ms. French (together with her affiliates) would beneficially own more than 4.99% of the outstandingshares of the common stock as of such date. On December 7, 2012, Ms. French agreed to extend the maturity date of the French Noteto December 31, 2012.

 

DESCRIPTION OF OUR CAPITAL STOCK

 

General

 

At the date hereof, we are authorizedby our certificate of incorporation to issue an aggregate of 1,000,000,000 shares of common stock, par value $0.001 per share,and 5,000,000 shares of “blank check” preferred stock, par value $0.001 per share. As of December 6, 2012, there were423,827,618 shares of common stock, no shares of Series A preferred stock and 740 shares of Series B preferred stock outstanding.

 

Common Stock

 

Holders of our common stock are entitledto one vote for each share held of record on each matter submitted to a vote of stockholders.  Holders of our commonstock do not have cumulative voting rights, which means that the holders of more than one half of the outstanding shares of commonstock, subject to the rights of the holders of the preferred stock, if any, can elect all of our directors, if they choose to doso.  In this event, the holders of the remaining shares of common stock would not be able to elect any directors.  Exceptas otherwise required by Delaware law, and subject to the rights of the holders of preferred stock, if any, all stockholder actionis taken by the vote of a majority of the outstanding shares of common stock voting as a single class present at a meeting of stockholdersat which a quorum consisting of a majority of the outstanding shares of common stock is present in person or proxy. 

 

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Subject to the prior rights of any classor series of preferred stock which may from time to time be outstanding, if any, holders of our common stock are entitled to receiveratably, dividends when, as, and if declared by our board of directors out of funds legally available for that purpose and, uponour liquidation, dissolution, or winding up, are entitled to share ratably in all assets remaining after payment of liabilitiesand payment of accrued dividends and liquidation preferences on the preferred stock, if any.  Holders of our common stockhave no preemptive rights and have no rights to convert their common stock into any other securities. The outstanding common stockis validly authorized and issued, fully-paid and nonassessable.

 

Common Stock in this Offering

 

The 3,500,000 Commitment Fee Shares werefully paid and are not liable for further call or assessment, and the 1,800,000 Maintenance Fee Shares and the shares issuableunder the Purchase Agreement offered in this prospectus when issued and paid for in accordance with the terms of the Purchase Agreementwill be fully paid and are not liable for further call or assessment.

 

Preferred Stock

 

General

 

We are authorized to issue up to 5,000,000shares of “blank check” preferred stock.  Preferred stock may be issued in one or more series and havingthe rights, privileges and limitations, including voting rights, conversion privileges and redemption rights, as may, from timeto time, be determined by our board of directors.  Preferred stock may be issued in the future in connection with acquisitions,financings, or other matters as our board of directors deems appropriate.  In the event that any shares of preferredstock are to be issued, a certificate of designation containing the rights, privileges and limitations of such series of preferredstock will be filed with the Secretary of State of the State of Delaware.  The effect of such preferred stock is that,subject to Federal securities laws and Delaware law, our board of directors alone, may be able to authorize the issuance of preferredstock which could have the effect of delaying, deferring, or preventing a change in control of us without further action by thestockholders, and may adversely affect the voting and other rights of the holders of our common stock.  The issuanceof preferred stock with voting and conversion rights may also adversely affect the voting power of holders of our common stock,including the loss of voting control to others.

 

Our board of directors has authorized theissuance of up to 1,000 shares of Series A Preferred Stock, $0.001 par value per share, none of which are outstanding as of thedate hereof, and up to 2,500 shares of Series B Preferred Stock, $0.001 par value per share, 740 shares of which are outstandingas of the date hereof.

 

Description of Series B Preferred Stock

 

The following description is qualifiedin its entirety by the terms and conditions set forth in the certificate of designations of Preferences, Rights and Limitationsof Series B Preferred Stock attached as exhibit 4.3 to this registration statement, which we refer to as the Series B Certificateof Designations. The following description may not contain all the information with respect to such Series B Preferred Stock importantto you. We encourage you to read the Series B Certificate of Designations attached as exhibit 4.3 to this registration statement.

 

Holders of Series B preferred stock willbe entitled to receive dividends, which will accrue in shares of Series B preferred stock on an annual basis at a rate equal to10% per annum from the issuance date. Accrued dividends will be payable upon redemption of the Series B preferred stock or uponthe liquidation, dissolution or winding up of our company. The Series B preferred stock ranks, with respect to dividend rightsand rights upon liquidation:

 

  · senior to our common stock and any other class or series of preferred stock (other than Series A preferred stock or any class or series of preferred stock that we intend to cause to be listed for trading or quoted on Nasdaq, NYSE Amex or the New York Stock Exchange);
     
  · pari passu with any outstanding shares of our Series A preferred stock (none of which are issued and outstanding as of the date hereof); and
     
  · junior to all of our existing and future indebtedness and any class or series of preferred stock that we intend to cause to be listed for trading or quoted on Nasdaq, NYSE Amex or the New York Stock Exchange.

 

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The Series B preferred stock has a liquidationpreference per share equal to the original price per share thereof plus all accrued dividends thereon, and is subject to repurchasefollowing the consummation of certain fundamental transactions by us.  Upon or after the fourth anniversary of the applicableissuance date, we have the right, at our option, to redeem all or a portion of the shares of Series B preferred stock, at theirliquidation value.  We also have the right, at our option, to redeem all or a portion of the shares of Series B preferredstock, at a price per share equal to: (i) 136% of their liquidation value if redeemed on or after the applicable issuance datebut prior to the first anniversary of the applicable issuance date, (ii) 127% of their liquidation value if redeemed on or afterthe first anniversary but prior to the second anniversary of the applicable issuance date, (iii) 118% of their liquidation valueif redeemed on or after the second anniversary but prior to the third anniversary of the applicable issuance date, and (iv) 109%of their liquidation value if redeemed on or after the third anniversary but prior to the fourth anniversary of the applicableissuance date.

 

Description of The Optimus Transactions

 

  A. Exchange of Series A Preferred Stock for Series B Preferred Stock

 

On May 13, 2010, we issued and sold an aggregateof 500 shares of Series A preferred stock to Optimus.  The aggregate purchase price for the Series A preferred stockwas $5.0 million. On July 19, 2010, we issued 500 shares of Series B preferred stock to Optimus, which we refer to as the SeriesB exchange shares, in exchange for the 500 shares of Series A preferred stock so that all shares of our preferred stock held orsubsequently purchased by Optimus under the Series B purchase agreement, as amended, would be redeemable upon substantially identicalterms.  Any accrued and unpaid dividends on the Series A preferred stock were deemed cancelled and such amount of accruedand unpaid dividends were reflected as accrued and unpaid dividends of the Series B preferred stock issued to Optimus.

 

  B. Offering of Series B Preferred Stock

 

Pursuant to the Series B purchase agreement,as amended, Optimus agreed to purchase, upon the terms and subject to the conditions set forth therein and described below, upto $7.5 million of our Series B preferred stock, at a price of $10,000 per share, of which $2.84 million of our Series B preferredstock remains available for purchase.  As of December 6, 2012, we issued and sold an aggregate of 466 shares of SeriesB preferred stock to Optimus.  The aggregate purchase price for the Series B preferred stock was $4.66 million.  Underthe terms of the Series B purchase agreement, as amended, Optimus remains obligated, from time to time until July 19, 2013, topurchase up to an additional 284 shares of Series B preferred stock upon notice from us to Optimus.  Subject to satisfactionof certain closing conditions, Optimus is obligated to purchase such shares of Series B preferred stock on the 10th trading dayafter the date of the notice.  We will determine, in our sole discretion, the timing and amount of Series B preferredstock to be purchased by Optimus, and may sell such shares in multiple tranches. Optimus will not be obligated to purchase theSeries B preferred stock upon our notice (i) in the event the average closing sale price of our common stock during the nine tradingdays following delivery of our notice falls below 75% of the closing sale price of our common stock on the trading day prior tothe date such notice is delivered to Optimus, or (ii) to the extent such purchase would result in Optimus and its affiliates beneficiallyowning more than 9.99% of our outstanding common stock.

 

  C. Redemption of Series B Preferred Stock

 

On December 30, 2010, immediately followingthe closing of the sale of 72 shares of Series B preferred stock to Optimus pursuant to the terms of the Series B purchase agreement,we redeemed 226 shares of Series B Preferred Stock held by Optimus for an aggregate redemption price of $3,141,004 consisting of(i) cash in an amount of $76,622 and (ii) the cancellation of certain promissory notes issued by an affiliate of Optimus to usin the aggregate amount of $3,064,382.

 

  D. Rights to Issue Additional Series B Preferred Stock

 

Under the Series B purchase agreement, wemay deliver a notice to Optimus requesting that Optimus purchase additional shares of Series B preferred stock. Optimus’sobligation to accept a notice and to acquire and pay for the Series B preferred stock subject to such notice at a tranche closingare subject to the satisfaction of certain conditions, which include, among others:

 

  · our common stock must be listed for trading or quoted on an eligible trading market, and we must be in compliance with all requirements under the Securities Exchange Act of 1934, as amended, in order to maintain such listing;
     
  · either (i) we have a current, valid and effective registration statement covering the resale of all warrant shares or (ii) all warrant shares are eligible for resale without limitation under Rule 144 (assuming cashless exercise of the warrant);
     
  · there must not be any material adverse effect with respect to our company since the date of the Series B purchase agreement, as amended, other than losses incurred in the ordinary course of business;
     
  · we must not be in default under any material agreement;
     
  · certain lock-up agreements with our senior officers and directors and certain beneficial owners of 10% or more of our outstanding common stock must be effective;
     
  · there must not be any legal restraint prohibiting the transactions contemplated by the Series B purchase agreement, as amended; and

 

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  · the aggregate of all shares of our common stock beneficially owned by Optimus and its affiliates must not exceed 9.99% of our outstanding common stock.

 

Stock Symbol

 

Our common stock is quoted on the OTCBulletin Board under the symbol ADXS.OB.  On December 6, 2012, the last reported sale price per share forour common stock as reported by the OTC Bulletin Board was $0.04.

 

Warrants

 

The following descriptionis qualified in its entirety by the terms and conditions set forth in the forms of such warrants attached as exhibits to this registrationstatement. The following description may not contain all the information with respect to such warrants important to you. We encourageyou to read the forms of each warrant attached as exhibits to this registration statement.

 

Warrants - 2007 Private Placement

 

As part of the October 17, 2007 privateplacement, investors were issued units consisting of one share of common stock and ¾ of a five-year warrant to purchaseone share of common stock at an exercise price of $0.20 per share (prior to anti-dilution adjustments).  The October2007 warrants provide for adjustment of their exercise prices upon the occurrence of certain events, such as payment of a stockdividend, a stock split, a reverse split, a reclassification of shares, or any subsequent equity sale, rights offering, pro ratadistribution (full ratchet), or any fundamental transaction such as a merger, sale of all of its assets, tender offer or exchangeoffer, or reclassification of its common stock.  If at any time after October 17, 2008 there is no effective registrationstatement registering, or no current prospectus available for, the resale of the shares underlying the warrants by the holder ofsuch warrants, then the warrants may also be exercised at such time by means of a “cashless exercise.” The October2007 warrants provide that they may not be exercised if, following the exercise, the holder will be deemed to be the beneficialowner of more than 9.99% of our outstanding shares of common stock.

 

In an effort to reduce the number ofour October 2007 warrants outstanding, we may from time to time enter into exchange agreements with the holders of such warrantspursuant to which such holders may receive shares of our common stock and/or additional warrants in amounts to be determined insuch negotiations. As of December 6, 2012, we have exchanged October 2007 warrants to purchase 39,690,911 shares of our commonstock with certain investors in return for 7,437,857 shares of our common stock and new warrants to purchase 21,040,303 sharesof our common stock (which warrants are identical to the October 2007 warrants, except that such warrants do not contain any economicanti-dilution adjustment rights).

 

On October 17, 2012, October 2007warrants to purchase 15,869,507 shares of our common stock expired unexercised.

 

Warrants - Series A Preferred Stock Offering

 

At the time of the execution of theSeries A purchase agreement, an affiliate of Optimus was granted on September 24, 2009 a warrant to purchase up to 33,750,000shares of our common stock at an exercise price of $0.20 to be adjusted in connection with the draw down of each tranche.  Aspermitted by the terms of such warrant, the aggregate exercise price of $6,250,970 received by us as of December 6, 2012 is payablepursuant to four-year full recourse promissory notes each bearing interest at the rate of 2% per year.  In addition,in connection with the draw down of the final tranche, we issued an additional warrant to an affiliate of Optimus to purchaseup to 2,818,000 shares of common stock at an exercise price of $0.18 per share.  As permitted by the terms of such warrant,the aggregate exercise price of $507,240 received by us as of July 31, 2011 is payable pursuant to a four-year full recourse promissorynote bearing interest at the rate of 2% per year.  The foregoing promissory notes are not due or payable at any timethat (a) we are in default of under the Series A purchase agreement, any loan agreement or other material agreement or (b) thereare any Series B exchange shares issued or outstanding.

 

Warrants - Series B Preferred Stock Offering

 

At the time of execution of the SeriesB purchase agreement, we issued to Optimus a three-year warrant to purchase up to 40,500,000 shares of our common stock, at aninitial exercise price of $0.25 per share, of which no shares of our common stock remain available to purchase.  Aspermitted by the terms of this warrant, the aggregate exercise price of $6,291,000 received by us as of December 6, 2012 are payablepursuant to four-year full recourse promissory notes bearing interest at the rate of 2% per year.  On December 30, 2010,certain of these promissory notes in the aggregate amount of $3,064,382 were cancelled as part of the redemptions price in connectionwith our redemption of 226 shares of Series B Preferred Stock held by Optimus.  As of December 6, 2012 we have issuedto Optimus warrants to purchase an aggregate of 102,628,000 shares of our common stock of which the 25,560,000 described belowremain outstanding.

 

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On April 4, 2011, in connection with theamendment to the Series B purchase agreement, we issued an additional warrant to an affiliate of Optimus to purchase up to 25,560,000shares of common stock at an initial exercise price of $0.15 per share.  The warrant became exercisable on June 24, 2011,which is the date on which a registration statement registering for resale the shares of our common stock issuable upon exerciseof the warrant became effective.  The warrant consists of and is exercisable in tranches, with a separate tranche beingcreated upon each delivery of a tranche notice under the Series B purchase agreement, as amended.  On each tranche noticedate, that portion of the warrant equal to 135% of the tranche amount will vest and become exercisable, and such vested portionmay be exercised at any time during the exercise period on or after such tranche notice date.  On each tranche noticedate, the exercise price of the warrant will be adjusted to the closing sale price of a share of our common stock on the applicabletranche notice date.  The exercise price of the warrant may be paid (at the option of the affiliate of Optimus) in cash orby issuance of a four-year, full-recourse promissory note, bearing interest at 2% per annum, and secured by a specified portfolioof assets.  However, such promissory note is not due or payable at any time that (a) we are in default of any preferredstock purchase agreement for Series B preferred stock or any warrant issued pursuant thereto, any loan agreement or other materialagreement or (b) there are any shares of the Series B preferred stock issued or outstanding.  The warrant also providesfor cashless exercise in certain circumstances. If Optimus fails to acquire and pay for the Series B preferred stock upon deliveryof our notice in accordance with the terms of the Series B purchase agreement, as amended, (assuming the timely and full satisfactionof all of the conditions set forth therein) and the warrant has not previously been exercised in full, we have the right to demandsurrender of the warrant (or any remaining portion thereof) without compensation, and the warrant will automatically be cancelled.

 

Warrants - Bridge Offerings

 

In connection with the senior bridgefinancing and junior bridge financings, we have issued warrants to purchase an aggregate of 15,789,125 shares of our common stockwith terms ranging from two to five years and exercise prices ranging from $0.15 to $0.25 per share (with most subject to anti-dilutionadjustments).  In return for extending the maturity dates of certain senior bridge notes, we issued additional warrantsto purchase an aggregate of 2,468,901 shares of our common stock with terms similar to their original warrants.  Dueto the anti-dilution provisions contained in our warrant agreements, we issued an aggregate of 3,556,285 additional warrants asa result of “ratchets” that occurred in January 2010 and September 2010.  In December 2010, we issued anaggregate of 815,790 additional warrants to certain of our junior bridge note holders, with terms similar to their original warrants,and new promissory notes in the aggregate principal amount of $343,000 in return for extending the maturity dates of theiroriginal promissory notes.  As of December 6, 2012, the exercise price has been reduced from $0.15 per share to $0.025287per share with respect to approximately 13 million bridge note warrants such that approximately 64 million additional shares ofour common stock are issuable upon exercise of such warrants at $0.025287 per share. As of December 6, 2012, we had approximately78 million bridge note warrants outstanding. The senior bridge warrants and junior bridge warrants provide for adjustment of theirexercise prices upon the occurrence of certain events, such as payment of a stock dividend, a stock split, a reverse split, areclassification of shares, or any subsequent equity sale, rights offering, pro rata distribution (full ratchet), or any fundamentaltransaction such as a merger, sale of all of its assets, tender offer or exchange offer, or reclassification of its common stock.  Eachof the senior bridge warrants and some of the junior bridge warrants may be exercised on a cashless basis under certain circumstances.  Eachof the senior bridge warrants and junior bridge warrants provide that they may not be exercised if, following the exercise, theholder will be deemed to be the beneficial owner of more than 9.99% of our outstanding shares of common stock.

 

Warrants - May 2011 Private Placement

 

In connection with the issuance of approximately$7.0 million of our convertible promissory notes to certain accredited investors in May 2011, which we refer to as the May 2011offering, we issued warrants to purchase an aggregate of 25,480,570 shares of our common stock, of which warrants to purchase anaggregate of 23,593,122 shares of our common stock were issued to the investors in the May 2011 offering and warrants to purchasean aggregate of 1,887,448 shares of our common stock were issued to Rodman & Renshaw, LLC, which we refer to as Rodman, asthe placement agent for the May 2011 offering. Each May 2011 warrant has an exercise price of $0.15 per share. The May 2011 warrantsare exercisable at any time on or before the third anniversary of the issue date of the May 2011 warrants, or May 12, 2014. TheMay 2011 warrants may be exercised on a cashless basis under certain circumstances. The May 2011 warrants include a limitationon conversion or exercise, which provides that at no time will an investor be entitled to exercise any number of May 2011 warrantsthat would result in the beneficial ownership by the investor and its affiliates of more than 4.99% of the outstanding shares ofour common stock on such date. The May 2011 warrants were exchanged in the May 2012 exchange for substantially identical warrants,except that the expiration date of the new warrants has been extended for one additional year.

 

Warrants - October 2011 Private Placement

 

In connection with the issuance of approximately$2.3 million of our convertible promissory notes to certain accredited investors in October 2011, which we refer to as the October2011 offering, we issued warrants to purchase an aggregate of 8,620,977 shares of our common stock, of which warrants to purchasean aggregate of 7,754,899 shares of our common stock were issued to the investors in the October 2011 offering and warrants topurchase an aggregate of 866,078 shares of our common stock were issued to Rodman as the placement agent for the October 2011 offering.Each October 2011 warrant has an exercise price of $0.15 per share. The October 2011 warrants are exercisable at any time on orbefore the third anniversary of the issue date of the October 2011 warrants, or October 31, 2014. The October 2011 warrants maybe exercised on a cashless basis under certain circumstances. The October 2011 warrants include a limitation on conversion or exercise,which provides that at no time will an investor be entitled to exercise any number of October 2011 warrants that would result inthe beneficial ownership by the investor and its affiliates of more than 4.99% of the outstanding shares of our common stock onsuch date. Certain of the October 2011 warrants were exchanged in the May 2012 exchange for substantially identical warrants, exceptthat the expiration date of the new warrants has been extended for one additional year.

 

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Warrants - December 2011 Private Placement

 

In connection with the issuance of approximately$1.2 million of our convertible promissory notes to certain accredited investors in December 2011, which we refer to as the December2011 offering, we issued warrants to purchase an aggregate of 4,682,940 shares of our common stock, of which warrants to purchasean aggregate of 4,107,842 shares of our common stock were issued to the investors in the December 2011 offering and warrants topurchase an aggregate of 575,098 shares of our common stock were issued to Rodman as the placement agent for the December 2011offering. Each December 2011 warrant has an exercise price of $0.15 per share. The December 2011 warrants are exercisable at anytime on or before the third anniversary of the issue date of the December 2011 warrants, or January 9, 2015. The December 2011warrants may be exercised on a cashless basis under certain circumstances. The December 2011 warrants include a limitation on conversionor exercise, which provides that at no time will an investor be entitled to exercise any number of December 2011 warrants thatwould result in the beneficial ownership by the investor and its affiliates of more than 4.99% of the outstanding shares of ourcommon stock on such date. Certain of the December 2011 warrants were exchanged in the May 2012 exchange for substantially identicalwarrants, except that the expiration date of the new warrants has been extended for one additional year.

 

Warrants - May 2012 Private Placement

 

In connection with the May2012 offering, we issued warrants to purchase an aggregate of 3,533,333 shares of our common stock, of which warrants topurchase an aggregate of 3,177,777 shares of our common stock were issued to the investors in the May 2012 offering andwarrants to purchase an aggregate of 231,112 shares of our common stock were issued to Rodman as the placement agent for theMay 2012 offering and 124,444 were issued to certain employees of Rodman. Each warrant, which we refer to as the May 2012 Warrant,has an exercise price of $0.15 per share. The May 2012 Warrants are exercisable at any time on or before the fifthanniversary of the issue date of the May 2012 Warrants, or May 18, 2017. The May 2012 Warrants may be exercised on a cashlessbasis under certain circumstances. The May 2012 Warrants include a limitation on conversion or exercise, which provides thatat no time will an investor be entitled to exercise any number of May 2012 Warrants that would result in the beneficialownership by the investor and its affiliates of more than 4.99% of the outstanding shares of our common stock on suchdate.

 

Warrants - July 2012 Exchanges

 

In July 2012, we entered into exchangeagreements with certain holders of warrants to purchase shares of our common stock, including Thomas A. Moore, our Chief ExecutiveOfficer. As of December 6, 2012, there were warrants to purchase approximately 35,000,000 shares of our common stock outstanding.

 

Warrants - August and September 2012 Issuance

 

In connection with the Patton purchase agreement,we issued a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of our common stockissuable upon conversion of the Patton Note at an exercise price of $0.15 per share. The Patton Warrant is exercisable at any timeon or before the fifth anniversary of the issue date of the Patton Warrant, or August 2, 2017. The Patton Warrant may be exercisedon a cashless basis under certain circumstances. The Patton Warrant includes a limitation on exercise, which provides that at notime will Dr. Patton be entitled to exercise the Patton Warrant for such number of shares of our common stock that would resultin the beneficial ownership by Dr. Patton and his affiliates of more than 4.99% of the outstanding shares of our common stock onsuch date.

 

In connection with the Paterson purchaseagreement, we issued a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of ourcommon stock issuable upon conversion of the Paterson Note at an exercise price equal to the conversion price then in effect. Thesewarrants have not yet been issued. The Paterson Warrant may be exercised on a cashless basis under certain circumstances. The PatersonWarrant includes a limitation on exercise, which provides that at no time will Dr. Paterson be entitled to exercise the PatersonWarrant to the extent for such number of shares of our common stock that would result in the beneficial ownership by Dr. Patersonand her affiliates of more than 4.99% of the outstanding shares of our common stock on such date.

 

In connection with the French purchase agreement,we issued a warrant to purchase such number of shares of our common stock equal to 50% of such number of shares of our common stockissuable upon conversion of the French Note at an exercise price equal to the conversion price then in effect. These warrants havenot yet been issued. The French Warrant may be exercised on a cashless basis under certain circumstances. The French Warrant includesa limitation on exercise, which provides that at no time will Ms. French be entitled to exercise the French Warrant to the extentfor such number of shares of our common stock that would result in the beneficial ownership by Ms. French and her affiliates ofmore than 4.99% of the outstanding shares of our common stock on such date.

 

Antidilution Adjustments

 

As a result of anti-dilution protectionprovisions contained in certain of our outstanding warrants (including the senior bridge warrants and the junior bridge warrants),as of December 6, 2012, the exercise price has been reduced from $0.15 per share to $0.025287 per share with respect to an aggregateof approximately 13 million warrants such that approximately 64 million additional shares of our common stock are issuable uponexercise of such warrants at $0.025287 per share. As of December 6, 2012, warrants to purchase 77,519,641 shares of our commonstock are exercisable at $0.025287 per share and are subject to “full ratchet” anti-dilution protection upon certainequity issuances below $0.025287 per share (as may be further adjusted).

 

Registration Rights

 

The following descriptionis qualified in its entirety by the terms and conditions set forth in the registration rights agreements with respect to the offeringsdescribed below attached as exhibits to this registration statement. The following description may not contain all the informationwith respect to such registration rights important to you. We encourage you to read the registration rights agreements attachedas exhibits to this registration statement.

 

Registration Rights - 2007 Private Placement

 

In connection with our October 2007 privateplacement, we entered into a registration rights agreement with the investors in that offering pursuant to which we agreed to filea registration statement with the SEC within 45 days after the final closing of the offering covering all of the shares of commonstock sold to the investors in the October 2007 private placement and all of the shares of common stock underlying the warrantsthat were sold to the investors in that offering.  Accordingly, we initially filed a registration statement on Form SB-2with the SEC on November 30, 2007 to register all of such shares of common stock.  The Form SB-2 registration statementwas declared effective by the SEC on January 22, 2008. Under the terms of the registration rights agreement, we agreed to keepthe registration statement effective until the earlier of (i) the date on which all of those shares of common stock may be resoldwithout registration under the Securities Act without regard to any volume limitations under Rule 144 under the Securities Actor (ii) the date on which all of those shares of common stock have been resold pursuant to the registration statement or Rule 144under the Securities Act.

 

The registration rights agreement providesthat if, among other things, the registration statement ceases for any reason to remain continuously effective, or the sellingstockholder is otherwise not permitted to use it to resell their shares of common stock for more than 10 consecutive calendardays or more than a total of twenty calendar days (which need not be consecutive calendar days) during any 12-month period, thenwe are required to pay as partial liquidated damages an amount equal to 1.5% of the aggregate purchase price paid by any sellingstockholder for such common stock, up to a maximum of 15% of such purchase price.  If we fail to pay any required partialliquidated damages in full within seven days after the date payable, we are then required to pay interest thereon at a rate of15% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the selling stockholder, accruingdaily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.

 

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We filed a post-effective amendment on FormS-1 to our original registration statement on Form SB-2 to, among other things, update the information included in the originalregistration statement, convert the original registration statement to a registration statement on Form S-1, and to deregistershares of our common stock which were covered by the original registration statement, but are no longer required to be registeredunder the terms of our registration rights agreement.

 

Registration Rights - Series B PreferredStock Offering

 

Pursuant to the terms of the Series B purchaseagreement, as amended, our rights to deliver a notice to Optimus requiring Optimus to acquire and pay for the Series B preferredstock are subject to having a current, valid and effective registration statement covering the resale of all shares underlyingthe warrants unless all shares underlying the warrants are eligible for resale without limitation under Rule 144 (assuming cashlessexercise of the warrant).

 

Registration Rights - May 2011 PrivatePlacement

 

In connection with the May 2011 offering,we entered into a registration rights agreement, dated as of May 9, 2011 with the investors in the May 2011 offering. Pursuantto such agreement, we agreed with such investors to provide certain rights to register under the Securities Act of 1933, as amended,the shares of our common stock issuable upon any conversion of the May 2011 notes and the exercise of the May 2011 warrants, andagreed to file a registration statement within 45 days of the closing of the May 2011 offering to register the offering of theshares of our common stock issuable upon conversion of the May 2011 notes and the exercise of the May 2011 warrants. We fulfilledthis obligation by filing a registration statement on Form S-1 (File No. 333-175145) with the SEC on June 27, 2011.

 

Registration Rights - October 2011 PrivatePlacement

 

In connection with the October 2011 offering,we entered into a registration rights agreement, dated as of October 28, 2011 with the investors in the October 2011 offering.Pursuant to such agreement, we agreed with such investors to provide certain rights to register under the Securities Act of 1933,as amended, the shares of our common stock issuable upon any conversion of the October 2011 notes and the exercise of the October2011 warrants, and agreed to file a registration statement within 45 days of the closing of the October 2011 offering to registerthe offering of the shares of our common stock issuable upon conversion of the October 2011 notes and the exercise of the October2011 warrants. We fulfilled this obligation by filing a registration statement on Form S-1 (File No. 333-178172) with the SEC onNovember 23, 2011.

 

Registration Rights - December 2011Private Placement

 

In connection with the December 2011 offering,we entered into a registration rights agreement, dated as of January 9, 2012 with the investors in the December 2011 offering.Pursuant to such agreement, we agreed with such investors to provide certain rights to register under the Securities Act of 1933,as amended, the shares of our common stock issuable upon any conversion of the December 2011 notes and the exercise of the December2011 warrants, and agreed to file a registration statement within 7 business days of the closing of the December 2011 offeringto register the offering of the shares of our common stock issuable upon conversion of the December 2011 notes and the exerciseof the December 2011 warrants. We fulfilled this obligation by filing a registration statement on Form S-1 (File No. 333-179208)with the SEC on January 27, 2012.

 

Registration Rights - JMJ Financial Private Placement

 

In connection with the settlement agreementwe entered into with JMJ Financial, pursuant to which we agreed to issue 4 million shares of our commonstock to JMJ Financial as consideration for the cancellation of certain notes and a release, we entered into a registrationrights agreement, dated as of May 8, 2012 with JMJ Financial. Pursuant to such agreement, we agreed with JMJ Financial to providecertain rights to register under the Securities Act of 1933, as amended, the 4 million shares of our common stock, and agreed tofile a registration statement within thirty days of the date of the JMJ Financial registration rights agreement to register theoffering of the 4,000,000 shares of our common stock.

 

Registration Rights - May 2012 Private Placement

 

In connection with the May 2012 offering,we entered into a registration rights agreement, dated as of May 18, 2012 with the investors in the May 2012 offering. Pursuantto such agreement, we agreed with such investors to provide certain rights to register under the Securities Act of 1933, as amended,the shares of our common stock issuable upon any conversion of the approximately $953,333 of our convertible promissory notes thatinvestors acquired in the May 2012 offering, which we refer to as the May 2012 Notes, and the exercise of the May 2012 Warrants,and agreed to file a registration statement within thirty business days of the closing of the May 2012 offering to register theoffering of the shares of our common stock issuable upon conversion of the May 2012 Notes and the exercise of the May 2012 Warrants.

  

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Registration Rights - Numoda Private Placement

 

Pursuant to the terms of the stockpurchase agreement we entered into with Numoda, pursuant to which we agreed to issue 15 millionshares of our common stock to Numoda in exchange for the immediate cancellation of $2,250,000 of accounts receivables owed byus to Numoda pursuant to the Master Agreement, dated June 19, 2009, between Numoda and us, we agreed to register theresale by Numoda of the 15 million shares with the SEC within thirty business days from the closing of the transaction onJune 13, 2012. We fulfilled this obligation by filing a registration statement on Form S-1 (FileNo. 133-183690) with the SEC on August 31, 2012, which was declared effective by the SEC on September 13, 2012.

 

Registration Rights - JMJ Financial August 2012 Settlementand Note Issuance

 

Pursuant to the settlement agreement weentered into with JMJ Financial, dated as of August 27, 2012, we agreed with JMJ Financial to provide certain rights to registerunder the Securities Act of 1933, as amended, the 4,076,925 shares of our common stock, and agreed to file a registration statementno later than August 31, 2012 to register the offering of the 8,076,923 shares of our common stock, including the 4,000,000 sharesof our common stock issued to JMJ Financial in May 2012 and the 4,076,925 shares of our common stock issued to JMJ Financial pursuantto the Settlement Agreement.

 

Pursuant to the terms of theAugust 2012 Note, we agreed to include up to 3,250,000 shares of our common stock which may be issuable upon conversion ofthe August 2012 Note on the next registration statement that we filed with the Securities and Exchange Commission afterthe issuance date of the August 2012 Note. We fulfilled this obligation by filing a registration statement on Form S-1 (FileNo. 133-183682) with the SEC on August 31, 2012, which was declared effective by the SEC on September 13, 2012.

 

Registration Rights – Equity Enhancement Program

 

In connection with the PurchaseAgreement we entered into with Hanover, dated as of October 26, 2012, we agreed with Hanover to certain rights to registerunder the Securities Act of 1933, as amended, the Registrable Securities and agreed to file a registration statement within12 calendar days of the Purchase Agreement to register the resale of the Registrable Securities. For a moredetailed description of these registration rights see “Equity Enhancement Program – Registration RightsAgreement” on Page 20 above.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for ourcommon stock is Securities Transfer Corporation, 2591 Dallas Parkway, Suite 102, Frisco, TX 75034.

 

SHARES ELIGIBLE FOR FUTURE SALE

 

As of December 6, 2012, we had 423,827,618shares of common stock outstanding, not including shares issuable upon conversion of certain of our notes or shares issuable uponexercise of our options or warrants. All shares sold in this offering will be freely tradable without restriction or further registrationunder the Securities Act, unless they are purchased by our “affiliates,” as that term is defined in Rule 144 promulgatedunder the Securities Act.

 

The outstanding shares of our common stocknot included in this prospectus will be available for sale in the public market as follows:

 

Public Float

 

Of our outstanding shares, as of December6, 2012 approximately 19,964,035 shares are beneficially owned by executive officers, directors and affiliates (excluding sharesof our common stock which (i) have been earned but not yet issued and (ii) may be acquired upon exercise of stock options andwarrants which are currently exercisable or which become exercisable within 60 days of December 6, 2012). The approximately 403,863,583remaining shares constitute our public float.

 

Rule 144

 

In general, under Rule 144, as currentlyin effect, a person who has beneficially owned shares of our common stock for at least six months, including the holding periodof prior owners other than affiliates, is entitled to sell his or her shares without any volume limitations; an affiliate, however,can sell such number of shares within any three-month period as does not exceed the greater of:

 

  · 1% of the number of shares of our common stock then outstanding, which equaled 4,238,277 shares as of December 6, 2012, or
     
  · the average weekly trading volume of our common stock on the OTC Bulletin Board during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that sale.

 

Sales under Rule 144 are also subject tomanner-of-sale provisions, notice requirements and the availability of current public information about us.  In orderto effect a Rule 144 sale of our common stock, our transfer agent will require an opinion from legal counsel.  We maycharge a fee to persons requesting sales under Rule 144 to obtain the necessary legal opinions.

 

As of December 6, 2012, approximately326,334,046 shares of our common stock were available for sale by non-affiliates of ours under Rule 144.

 

Rule 701

 

Rule 701 permits our employees, officersor directors who purchased shares of our common stock pursuant to a written compensatory plan or contract to resell such sharesin reliance upon Rule 144 but without compliance with specific restrictions.  Rule 701 provides that affiliates may selltheir Rule 701 shares of common stock under Rule 144 without complying with the holding period requirement and that non-affiliatesmay sell such shares in reliance on Rule 144 without complying with the holding period, public information, volume limitation ornotice provisions of Rule 144.

 

Stock Options and Awards

 

We have registered, by means of a registrationstatement on Form S-8 under the Securities Act of 1933, 2,381,525 shares of common stock reserved for issuance under our 2004plan.  As of December 6, 2012, options to purchase 2,381,525 shares of our common stock remain outstanding under the2004 plan, all of which options to purchase shares of common stock have vested and have not been exercised.  Sharesof common stock issued upon exercise of a share option and registered under registration statement on Form S-8 will, subject tovesting provisions and Rule 144 volume limitations applicable to our affiliates, be available for sale in the open market immediately.

 

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Our 2005 plan was approved by the stockholderson June 6, 2006, and has 5,600,000 shares of common stock reserved for issuance.  As of December 6, 2012, options topurchase 5,444,000 shares of our common stock remain outstanding under our 2005 plan, all of which have vested and have not beenexercised.  Shares of common stock issued upon exercise of a share option may be eligible for sale, subject to vestingprovisions, volume limitations and other limitations of Rule 144.

 

Our 2009 plan was approved by the stockholderson June 1, 2010, and has 20,000,000 shares of common stock reserved for issuance. As of December 6, 2012, options to purchase19,441,899 shares of our common stock remain outstanding under our 2009 plan, of which options to purchase approximately 15,126,203shares of common stock have vested and have not been exercised. Shares of common stock issued upon exercise of a share optionmay be eligible for sale, subject to vesting provisions, volume limitations and other limitations of Rule 144.

 

Our 2011 plan was approved by the stockholderson September 27, 2011, and, after giving effect to the amendment to the 2011 plan approved by our stockholders on August 13, 2012,has 65,000,000 shares of common stock reserved for issuance.  As of December 6, 2012, options to purchase 17,540,000shares of our common stock have been granted under our 2011 plan.  Shares of common stock issued pursuant to an awardgranted under the 2011 plan may be eligible for sale, subject to vesting provisions, volume limitations and other limitationsof Rule 144.

 

Our ESPP was approved by the stockholderson September 27, 2011, and has 5,000,000 shares of common stock reserved for issuance. As of December 6, 2012, 337,515 sharesof common stock have been issued under our ESPP. Shares of common stock issued may be eligible for sale, subject to vesting provisions,volume limitations and other limitations of Rule 144.

 

Lock Up of Shares

 

In order to induce Optimus to enter intothe Series B purchase agreement, our executive officers, directors and beneficial owners of 10% or more of our common stock agreedthat, for a period of ten trading days beginning on each date we deliver a notice exercising the put described in the Series Bpurchase agreement, as amended, to Optimus and ending on the closing date of the put exercise, they will not, without the priorwritten consent of Optimus, (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchaseor otherwise dispose of or agree to dispose of, directly or indirectly, in respect of, or establish or increase a put equivalentposition or liquidate or decrease a call equivalent position with respect to, any of our common stock or any securities convertibleinto or exercisable or exchangeable for our common stock, or warrants or other rights to purchase our common stock or any suchsecurities, or any securities substantially similar to our common stock, (b) enter into any swap or other arrangement that transfersto another, in whole or in part, any of the economic consequences of ownership of our common stock or any securities convertibleinto or exercisable or exchangeable for our common stock or any such securities, or warrants or other rights to purchase our commonstock, whether any such transaction is to be settled by delivery of our common stock or such other securities, in cash or otherwiseor (c) publicly announce an intention to effect any transaction specified in clause (a) or (b).

 

SELLING STOCKHOLDER

 

This prospectus relatesto the possible resale from time to time by the selling stockholder of any or all of the shares of common stock that have beenor may be issued by us to Hanover under the Purchase Agreement. We are registering the shares of common stock pursuant to the provisionsof the Registration Rights Agreement we entered into with Hanover on October 19, 2012 in order to permit the selling stockholderto offer the shares for resale from time to time. Except for the transactions contemplated by the Purchase Agreement and the RegistrationRights Agreement, Hanover has not had any material relationship with us within the past three years.

 

The table belowpresents information regarding the selling stockholder and the shares of common stock that it may offer from time to time underthis prospectus. This table is prepared based on information supplied to us by the selling stockholder, and reflects holdingsas of December 6, 2012. As used in this prospectus, the term “selling stockholder” includes Hanover and any donees,pledgees, transferees or other successors in interest selling shares received after the date of this prospectus from the sellingstockholder as a gift, pledge, or other non-sale related transfer. The number of shares in the column “Maximum Number ofShares of Common Stock to be Offered Pursuant to this Prospectus” represents all of the shares of common stock that theselling stockholder may offer under this prospectus. The selling stockholder may sell some, all or none of its shares in thisoffering. We do not know how long the selling stockholder will hold the shares before selling them, and we currently have no agreements,arrangements or understandings with the selling stockholder regarding the sale of any of the shares.

 

Beneficial ownershipis determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act, and includes shares of common stockwith respect to which the selling stockholder has voting and investment power. The percentage of shares of common stock beneficiallyowned by the selling stockholder prior to the offering shown in the table below is based on an aggregate of 423,827,618 sharesof our common stock outstanding on December 6, 2012. Because the purchase price of the shares of common stock issuable under thePurchase Agreement is determined on each settlement date, the number of shares that may actually be sold by the Company underthe Purchase Agreement may be fewer than the number of shares being offered by this prospectus. The fourth column assumes thesale of all of the shares offered by the selling stockholder pursuant to this prospectus.

 

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    Number of Shares of Common
Stock Owned Prior to Offering
    Maximum Number of
Shares of Common
Stock to be Offered
Pursuant to this
  Number of Shares of Common
Stock Owned After Offering
Name of Selling Stockholder   Number(1) (2)     Percent(3)     Prospectus   Number(4)   Percent(3)  
Hanover Holdings I, LLC(5)     15,666,666       3.75 %   115,000,000   13,916,793     3.33 %
                                 

 

 

* Represents beneficial ownership of less than one percentof the outstanding shares of our common stock.

 

 

(1) This number represents (i) the 3,500,000 shares of common stock we issued to Hanover on November 13, 2012 as Commitment Shares in consideration for entering into the Purchase Agreement with us, (ii) 3,333,333 shares of our common stock issuable upon conversion of the Hanover December 2012 Note at a conversion price of $0.03 per share and (iii) 8,833,333 shares of our common stock issuable upon conversion of the Exchanged Hanover PIPE Notes at a conversion price of $0.03 per share. The Hanover December 2012 Note and the Exchanged Hanover PIPE Notes are subject to limitations on conversion if after giving effect to such conversion Hanover would beneficially own more than 4.99% of our common stock. For purposes of the numbers set forth in this footnote and the selling stockholder table above, we have disregarded such limitations.

 

(2) In accordance with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of shares beneficially owned prior to the offering (i) up to 1,800,000 shares that may be issued to Hanover as Maintenance Fee Shares under the terms of the Purchase Agreement because the issuance of such shares is dependent on whether we chose to execute any draw downs during a calendar quarter while the Purchase Agreement is in effect and (ii) all of the shares that Hanover may be required to purchase under the Purchase Agreement because the issuance of such shares is solely at our discretion and is subject to certain conditions, the satisfaction of all of which are outside of Hanover’s control, including the registration statement of which this prospectus is a part becoming and remaining effective. Furthermore, the maximum dollar value of each put of common stock to Hanover under the Purchase Agreement is subject to certain agreed upon threshold limitations set forth in the Purchase Agreement. Also, under the terms of the Purchase Agreement, we may not issue shares of our common stock to Hanover to the extent that Hanover or any of its affiliates would, at any time, beneficially own more than 9.99% of our outstanding common stock.

 

(3) Applicable percentage ownership is based on 423,827,618 shares of our common stock outstanding as of December 6, 2012.

 

(4)Assumes the sale of all shares being offered pursuant to this prospectus.

 

(5)The business address of Hanover is c/o Magna Group, 5 Hanover Square, New York, New York 10004. We have been advised that Hanover is not a member of the Financial Industry Regulatory Authority, or FINRA, or an independent broker-dealer, and that neither Hanover nor any of its affiliates is an affiliate or an associated person of any FINRA member or independent broker-dealer. Joshua Sason has voting control and investment discretion over securities owned by Hanover. The foregoing should not be construed in and of itself as an admission by Mr. Sason as to beneficial ownership of the securities owned by Hanover.

 

Recent Selling StockholderTransactions

 

On September 19, 2012, in aprivate placement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregateprincipal amount of $132,500 for a purchase price of $132,500, which we refer to as the September Hanover PIPE Note. On October19, 2012, in a private placement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note inthe aggregate principal amount of $132,500, for a purchase price of $132,500, which we refer to as the October 2012HanoverPIPE Note, which, together with the September 2012 Hanover PIPE Note we refer to as the Initial Hanover PIPE Notes.

 

In October 2012, pursuant tothe terms of various Assignment Agreements, which we refer to as the Assignment Agreements, Magna Group, LLC, an affiliateof Hanover, which we refer to as Magna, acquired $400,075.88 in aggregate principal amount of our outstanding convertiblenotes from certain third parties and entered into agreements to acquire an additional $340,522.90 in aggregate principalamount of our outstanding convertible notes from other third parties. Pursuant to the terms of such Assignment Agreements, wedelivered two convertible notes to Magna in an aggregate principal amount of $740,598.74, in anticipation of the closing ofall of the transactions contemplated by such Assignment Agreements. On October 25, 2012, the convertible note in theaggregate principal amount of $617,722.92 previously delivered to Magna was exchanged for a new convertible note in theaggregate principal amount of $400,075.77, convertible into share of common stock, which we refer to as the First MagnaExchange Note, to reflect such portion of the convertible notes actually issued as of October 25, 2012 pursuant to theAssignment Agreements, and the remaining convertible note in the aggregate principal amount of $122,875.82 previouslydelivered to Magna was returned to us and cancelled. Prior to the date of this filing, the First Magna Exchange Note has been converted in full into sharesof our common stock in accordance with its terms and no longer remains outstanding.  

 

On November 14, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $58,823.53,convertible into shares of common stock, which we refer to as the Second Magna Exchange Note. The Second Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Second Magna Exchange Note. Prior to the date of this filing, the Second Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

On November 23, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $111,111.11,convertible into shares of common stock, which we refer to as the Third Magna Exchange Note. The Third Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Third Magna Exchange Note. Prior to the date of this filing, the Third Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

On December 6, 2012, in a privateplacement pursuant to a note purchase agreement, we issued Hanover a convertible promissory note in the aggregate principal amountof $100,000 for a purchase price of $100,000, which we refer to as the Hanover December 2012 Note. The Hanover December 2012 Notebears interest at a rate of 12% per annum, which interest accrues, but does not become payable until maturity or accelerationof the principal of such Hanover December 2012 Note. The Hanover December 2012 Note is convertible into shares of our common stockat a conversion price of $0.03 per share. On December 5, Hanover exchanged the Initial Hanover PIPENotes for notes in the form of the Hanover December 2012 Note that also are convertible into shares of our common stock at a conversionprice of $0.03 per share, which we refer to as the Exchanged Hanover PIPE Notes. The Hanover December 2012 Note and the ExchangedHanover PIPE Notes are subject to limitations on conversion if after giving effect to such conversion Hanover would beneficiallyown more than 4.99% of our common stock.

 

On December 6, 2012, pursuant to theterms of various Assignment Agreements, we delivered a convertible note to Magna in an aggregate principal amount of $170,588.22,convertible into shares of common stock, which we refer to as the Fourth Magna Exchange Note. The Fourth Magna Exchange Note bearsinterest at a rate of 6% per annum, which interest accrues, but does not become payable until maturity or acceleration of theprincipal of the Fourth Magna Exchange Note. Prior to the date of this filing, the Fourth Magna Exchange Note has been convertedin full into shares of our common stock in accordance with its terms and no longer remains outstanding. 

 

  

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PLAN OF DISTRIBUTION

 

We are registeringshares of common stock that have been or may be issued by us from time to time to Hanover under the Purchase Agreement to permitthe resale of these shares of common stock after the issuance thereof by the selling stockholder from time to time after the dateof this prospectus. We will not receive any of the proceeds from the sale by the selling stockholder of the shares of common stock.We will bear all fees and expenses incident to our obligation to register the shares of common stock.

 

The selling stockholdermay decide not to sell any shares of common stock. The selling stockholder may sell all or a portion of the shares of common stockbeneficially owned by it and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents,who may receive compensation in the form of discounts, concessions or commissions from the selling stockholder and/or the purchasersof the shares of common stock for whom they may act as agent. In effecting sales, broker-dealers that are engaged by the sellingstockholder may arrange for other broker-dealers to participate. Hanover is an “underwriter” within the meaning ofthe Securities Act. Any brokers, dealers or agents who participate in the distribution of the shares of common stock by the sellingstockholder may also be deemed to be “underwriters,” and any profits on the sale of the shares of common stock by themand any discounts, commissions or concessions received by any such brokers, dealers or agents may be deemed to be underwritingdiscounts and commissions under the Securities Act. Hanover has advised us that it will use an unaffiliated broker-dealer to effectuateall resales of our common stock. To our knowledge, Hanover has not entered into any agreement, arrangement or understanding withany particular broker-dealer or market maker with respect to the shares of common stock offered hereby, nor do we know the identityof the broker-dealers or market makers that may participate in the resale of the shares. Because Hanover is, and any other sellingstockholder, broker, dealer or agent may be deemed to be, an “underwriter” within the meaning of the Securities Act,Hanover will (and any other selling stockholder, broker, dealer or agent may) be subject to the prospectus delivery requirementsof the Securities Act and may be subject to certain statutory liabilities of the Securities Act (including, without limitation,Sections 11, 12 and 17 thereof) and Rule 10b-5 under the Exchange Act.

 

The selling stockholderwill act independently of us in making decisions with respect to the timing, manner and size of each sale. The shares of commonstock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varyingprices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involvecrosses or block transactions, pursuant to one or more of the following methods:

 

·on any national securities exchange or quotation service on which the securities may be listedor quoted at the time of sale;

 

·in the over-the-counter market in accordance with the rules of NASDAQ;

 

·in transactions otherwise than on these exchanges or systems or in the over-the-counter market;

 

·through the writing or settlement of options, whether such options are listed on an options exchangeor otherwise;

 

·ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

 

·block trades in which the broker-dealer will attempt to sell the shares as agent but may positionand resell a portion of the block as principal to facilitate the transaction;

 

·purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

·an exchange distribution in accordance with the rules of the applicable exchange;

 

·privately negotiated transactions;

 

·broker-dealers may agree with the selling stockholder to sell a specified number of such sharesat a stipulated price per share;

 

·a combination of any such methods of sale; and

 

·any other method permitted pursuant to applicable law.

 

The selling stockholdermay also sell shares of common stock covered by this prospectus pursuant to Rule 144 promulgated under the Securities Act, if available,rather than under this prospectus. In addition, the selling stockholder may transfer the shares of common stock by other meansnot described in this prospectus.

 

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Any broker-dealer participatingin such transactions as agent may receive commissions from the selling stockholder (and, if they act as agent for the purchaserof such shares, from such purchaser). Hanover has informed us that each such broker-dealer will receive commissions from Hanoverwhich will not exceed customary brokerage commissions. Broker-dealers may agree with the selling stockholder to sell a specifiednumber of shares at a stipulated price per share, and, to the extent such a broker-dealer is unable to do so acting as agent forthe selling stockholder, to purchase as principal any unsold shares at the price required to fulfill the broker-dealer commitmentto the selling stockholder. Broker-dealers who acquire shares as principal may thereafter resell such shares from time to timein one or more transactions (which may involve crosses and block transactions and which may involve sales to and through otherbroker-dealers, including transactions of the nature described above and pursuant to the one or more of the methods described above)at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiatedprices, and in connection with such resales may pay to or receive from the purchasers of such shares commissions computed as describedabove. To the extent required under the Securities Act, an amendment to this prospectus or a supplemental prospectus will be filed,disclosing:

 

·the name of any such broker-dealers;

 

·the number of shares involved;

 

·the price at which such shares are to be sold;

 

·the commission paid or discounts or concessions allowed to such broker-dealers, where applicable;

 

·that such broker-dealers did not conduct any investigation to verify the information set out orincorporated by reference in this prospectus, as supplemented; and

 

·other facts material to the transaction.

 

Hanover has informedus that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distributethe common stock. Pursuant to a requirement of the Financial Industry Regulatory Authority, or FINRA, the maximum commission ordiscount and other compensation to be received by any FINRA member or independent broker-dealer shall not be greater than eightpercent (8%) of the gross proceeds received by us for the sale of any securities being registered pursuant to Rule 415 under theSecurities Act.

 

Under the securitieslaws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers.In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified forsale in such state or an exemption from registration or qualification is available and is complied with.

 

There can be no assurancethat the selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration statement,of which this prospectus forms a part.

  

Underwriters and purchasersthat are deemed underwriters under the Securities Act may engage in transactions that stabilize, maintain or otherwise affect theprice of the common stock, including the entry of stabilizing bids or syndicate covering transactions or the imposition of penaltybids. The selling stockholder and any other person participating in the sale or distribution of the shares of common stock willbe subject to applicable provisions of the Exchange Act and the rules and regulations thereunder (including, without limitation,Regulation M of the Exchange Act), which may restrict certain activities of, and limit the timing of purchases and sales of anyof the shares of common stock by, the selling stockholder and any other participating person. To the extent applicable, RegulationM may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-makingand certain other activities with respect to the shares of common stock. In addition, the anti-manipulation rules under the ExchangeAct may apply to sales of the shares of common stock in the market. All of the foregoing may affect the marketability of the sharesof common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of commonstock.

 

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We have agreedto pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, estimatedto be $707.44 in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliancewith state securities or “Blue Sky” laws; provided, however, Hanover will pay all selling commissions, concessionsand discounts, and other amounts payable to underwriters, dealers or agents, if any, as well as transfer taxes and certain otherexpenses associated with the sale of the shares of common stock. We have agreed to indemnify Hanover and certain other personsagainst certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arisingunder the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.Hanover has agreed to indemnify us against liabilities under the Securities Act that may arise from any written information furnishedto us by Hanover specifically for use in this prospectus or, if such indemnity is unavailable, to contribute amounts requiredto be paid in respect of such liabilities.

 

At any time a particularoffer of the shares of common stock is made by the selling stockholder, a revised prospectus or prospectus supplement, if required,will be distributed. Such prospectus supplement or post-effective amendment will be filed with the Securities and Exchange Commissionto reflect the disclosure of any required additional information with respect to the distribution of the shares of common stock.We may suspend the sale of shares by the selling stockholder pursuant to this prospectus for certain periods of time for certainreasons, including if the prospectus is required to be supplemented or amended to include additional material information.

 

LEGAL MATTERS

 

The validity of the shares of common stockoffered by the selling stockholder will be passed upon for us by our counsel, Greenberg Traurig, LLP, New York, New York.  Ashareholder of Greenberg Traurig, LLP owns 4,088,686 shares of our common stock and warrants to purchase 518,566 shares ofour common stock.

 

EXPERTS

 

The financial statements appearing in thisProspectus and Registration Statement have been audited by McGladrey LLP (formerly McGladrey & Pullen, LLP), an independentregistered public accounting firm, as stated in their report appearing elsewhere herein, which report expresses an unqualifiedopinion and includes an explanatory paragraph relating to the Company's ability to continue as a going concern and are includedin reliance upon such report and upon the authority of such firm as experts in accounting and auditing.

 

INTERESTS OF NAMED EXPERTS AND COUNSEL

 

Except as set forth above under the caption“Legal Matters,” no expert or counsel named in this prospectus as having prepared or certified any part of this prospectusor having given an opinion upon the validity of the securities being registered or upon other legal matters in connection withthe registration or offering of our common stock was employed on a contingency basis or had, or is to receive, in connection withthe offering, a substantial interest, directly or indirectly, in the registrant or any of its parents or subsidiaries.  Norwas any such person connected with the registrant or any of its parents, subsidiaries as a promoter, managing or principal underwriter,voting trustee, director, officer or employee.

 

WHERE YOU CAN FIND ADDITIONAL INFORMATION

 

This prospectus is part of a registrationstatement we have filed with the SEC.  We have not included in this prospectus all of the information contained in theregistration statement, and you should refer to the registration statement and its exhibits for further information.

 

We file annual, quarterly, and current reports,proxy statements, and other information with the SEC.  You may read and copy any materials we file at the SEC’sPublic Reference Room at 100 F Street, NE., Washington, DC 20549, on official business days during the hours of 10 a.m. to 3 p.m.  Youmay obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.  The SEC maintainsan Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronicallywith the SEC at http://www.sec.gov.

 

Our Web site address is www.advaxis.com.The information on our web site is not incorporated into this prospectus.

 

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ADVAXIS, INC.


FINANCIAL STATEMENTS


INDEX

 

    Page
Audited Financial Statements    
     
Report of Independent Registered Public Accounting Firm   F-1
     
Balance Sheets as of October 31, 2011  and  2010   F-2
     
Statements of Operations for the years ended October 31, 2011 and 2010 and the cumulative period from March 1, 2002 (Inception) to October 31, 2011   F-3
     
Statements of Stockholders’ Equity (Deficiency) for the Period from March 1, 2002 (Inception) to October 31, 2011   F-4
     
Statements of Cash Flows for the years ended October 31, 2011 and 2010 and the cumulative period from March 1, 2002 (Inception) to October 31, 2011   F-5
     
Notes to the Financial Statements   F-7
     
Unaudited Interim Financial Statements    
     
Balance Sheets as of July 31, 2012 (unaudited) and October 31, 2011   F-33
     
Statements of Operations for the three month period ended July 31, 2012 and 2011, the nine month period ended July 31, 2012 and 2011 and the period from March 1, 2002 (Inception) to July 31, 2012 (unaudited)   F-34
     
Statement of Shareholders’ Deficiency for the nine month period ended July 31, 2012 (unaudited)   F-35
     
Statements of Cash Flow for the nine month period ended July 31, 2012 and 2011 and the period from March 1, 2002 (Inception) to July 31, 2012 (unaudited)   F-36
     
Supplemental Disclosures of Cash Flow Information   F-37
     
Supplemental Disclosures of Noncash Investing and Financing Schedules   F-37
     
Notes to Unaudited Financial Statements   F-38

 

 
 

 

Report of IndependentRegistered Public Accounting Firm

 

To the Board of Directorsand Shareholders

 

Advaxis, Inc.

Princeton, New Jersey

 

We have audited the accompanyingbalance sheets of Advaxis, Inc. as of October 31, 2011 and 2010, and the related statements of operations, stockholders' equity(deficiency), and cash flows for the years then ended and for the cumulative period from March 1, 2002 (inception) to October 31,2011.  These financial statements are the responsibility of the Company's management.  Our responsibility is to expressan opinion on these financial statements based on our audits. 

 

We conducted our auditsin accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards requirethat we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that areappropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’sinternal control over financial reporting.  Accordingly, we express no such opinion.  An audit also includes examining,on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principlesused and significant estimates made by management, as well as evaluating the overall financial statement presentation.  Webelieve that our audits provide a reasonable basis for our opinion.

 

In our opinion, the financialstatements referred to above present fairly, in all material respects, the financial position of Advaxis, Inc. as of October 31,2011 and 2010, and the results of its operations and its cash flows for the years then ended and the cumulative period from March1, 2002 (inception) to October 31, 2011 in conformity with U.S. generally accepted accounting principles.

 

The accompanying financialstatements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financialstatements, the Company’s products are being developed and have not generated significant revenues. As a result, the Companyhas suffered recurring losses and its liabilities exceed its assets. This raises substantial doubt about the Company’s abilityto continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The financialstatements do not include any adjustments that might result from the outcome of this uncertainty.

 

/s/ MCGLADREY & PULLEN,LLP

MCGLADREY & PULLEN,LLP

 

New York, New York

 

January 26, 2012

 

F-1
 

 

ADVAXIS, INC.

(A Development StageCompany)

Balance Sheet

 

   

October 31,

2011

   

October 31,

2010

 
ASSETS            
Current Assets:            
Cash   $ 1,096,538     $ 108,381  
Other Current Asset Receivable     477,788       -  
Grant Receivable     -       244,479  
Prepaid expenses     37,474       38,511  
Other Current Assets     2,221       -  
Total Current Assets     1,614,021       391,371  
                 
Deferred expenses     1,380,103       233,322  
Property and Equipment (net of accumulated depreciation)     -       28,406  
Intangible Assets (net of accumulated amortization)     2,256,852       2,125,991  
Deferred Financing Cost     65,848       -  
Other Assets     323,738       96,096  
                 
TOTAL ASSETS   $ 5,640,562     $ 2,875,186  
                 
LIABILITIES AND SHAREHOLDERS’ DEFICIENCY                
Current Liabilities:                
Accounts payable   $ 2,420,260     $ 2,586,008  
Accrued expenses     2,976,334       647,125  
Short-term Convertible Notes and fair value of embedded derivative     5,091,298       751,456  
Notes payable – current portion, including interest payable     408,069       687,034  
Total Current Liabilities     10,895,961       4,671,623  
Deferred Rent     62,441       -  
Long-term Convertible Notes     570,802       -  
Common Stock Warrant     6,391,071       13,006,194  
Total Liabilities     17,920,275       17,677,817  
                 
Shareholders’ Deficiency:                
Preferred stock, $0.001 par value; 5,000,000 shares authorized; Series B Preferred Stock; issued and outstanding 740 at October 31, 2011 and 789 at October 31, 2010. Series A Preferred Stock; issued and outstanding 0 at October 31, 2011 and 0 at October 31, 2010                
Common Stock - $0.001 par value; authorized 500,000,000 shares, issued and outstanding  250,173,570 in 2011 and 198,100,817 in 2010     250,173       198,101  
Additional Paid-In Capital     33,000,064       23,074,978  
Promissory Note Receivable     (9,998,210 )     (10,659,710 )
Deficit accumulated during the development stage     (35,531,740 )     (27,416,000 )
Total Shareholders’ Deficiency     (12,279,713 )     (14,802,631 )
TOTAL LIABILITIES & SHAREHOLDERS’ DEFICIENCY   $ 5,640,562     $ 2,875,186  


The accompanying notes andthe report of independent registered public accounting firm should be read in conjunction with the financial statements.

 

F-2
 


ADVAXIS, INC.

(A Development StageCompany)

Statement of Operations

 

   

Year Ended

October 31,

   

Year Ended

October 31,

   

Period from

March 1, 2002

(Inception) to

October 31,

 
    2011     2010     2011  
                   
Revenue   $ -     $ 508,481     $ 1,863,343  
Research & Development Expenses     8,078,901       4, 904,298       23,156,740  
General & Administrative Expenses     4,939,935       3,530,198       21,179,833  
Total Operating expenses     13,018,836       8,434,496       44,336,573  
Loss from Operations     (13,018,836 )     (7,926,015 )     (42,473,230 )
Other Income (expense):                        
Interest expense     (4,698,983 )     (3,814,863 )     (10,449,337 )
Other Income     (45,700 )     80,161       280,918  
(Gain) Loss on note retirement     461,595       123,963       1,194,845  
Write-off of intangible assets     (33,211 )     -       (33,211 )
Net changes in fair value of common stock warrant liability and embedded derivative liability     9,763,113       445,576       14,411,686  
Net Loss before income tax benefit     (8,495,212 )     (11,091,178 )     (37,068,329 )
Income Tax Benefit     379,472       278,978       1,580,473  
Net Loss     (8,115,740 )     (10,812,200 )     (35,487,856 )
Dividends attributable to preferred shares     1,538,686       -       1,582,570  
Net Loss applicable to Common Stock   $ (9,654,426 )   $ (10,812,200 )   $ (37,070,426 )
Net Loss per share, basic   $ (0.04 )   $ (0.07 )        
Net Loss per share, diluted   $ (0.04 )   $ (0.07 )        
                         
Weighted average number of shares outstanding, basic     222,918,519       150,928,808          
                         
Weighted average number of shares outstanding, diluted     222,918,519       150,928,808          


The accompanying notes andthe report of independent registered public accounting firm should be read in conjunction with the financial statements.

 

F-3
 

 

ADVAXIS, INC.

(a development stagecompany)

STATEMENT OF SHAREHOLDERS’EQUITY (DEFICIENCY)

Period from March1, 2002 (inception) to October 31, 2011

 

    Preferred Stock     Common Stock                 Deficit        
    Number of                       Stock           Accumulated        
   

Shares of

Outstanding

    Amount    

Number of shares

of outstanding

    Amount     Subscription
Receivable
   

Additional Paid-

in Capital

   

During the

Development Stage

   

Shareholders’

Equity (Deficiency)

 
Preferred stock issued     3,418     $ 235,000                                   $ 235,000  
Common Stock Issued                     40,000     $ 40           $ (40 )              
Options granted to consultants & professionals                                           10,493           $ 10,493  
Net Loss                                                   (166,936 )   $ (166,936 )
Retroactive restatement to reflect re-capitalization on Nov. 12, 2004     (3,481 )     (235,000 )     15,557,723       15,558             219,442                  
Balance at December 31, 2002                     15,597,723     $ 15,598           $ 229,895     $ (166,936 )   $ 78,557  
                                                               
Note payable converted into preferred stock     232       15,969                                           $ 15,969  
Options granted to consultants and professionals                                           8,484             $ 8,484  
Net loss                                                   (909,745 )   $ (909,745 )
Retroactive restatement to reflect re-capitalization on Nov. 12, 2004     (232 )     (15,969 )                           15,969                  
Balance at December 31, 2003                     15,597,723     $ 15,598           $ 254,348     $ (1,076,681 )   $ (806,735 )
                                                               
Stock dividend on preferred stock     638       43,884                                     (43,884 )        
Net loss                                                   (538,076 )   $ (538,076 )
Options granted to consultants and professionals                                           5,315               5,315  
Retroactive restatement to reflect re-capitalization on Nov. 12, 2004     (638 )     (43,884 )                           43,884                  
Balance at October 31, 2004                     15,597,723     $ 15,598           $ 303,547     $ (1,658,641 )   $ (1,339,496 )
                                                               
Common Stock issued to Placement Agent on re-capitalization                     752,600       753             (753 )                
Effect of re-capitalization                     752,600       753             (753 )                
Options granted to consultants and professionals                                           64,924               64,924  
Conversion of Note payable to Common Stock                     2,136,441       2,136             611,022               613,158  
Issuance of Common Stock for cash, net of shares to Placement Agent                     17,450,693       17,451             4,335,549               4,353,000  
Issuance of common stock to consultants