Unassociated Document


     

    Exhibit
4.1

     

    
      NEITHER,
THE ISSUANCE AND SALE OF THE SECURITIES, REPRESENTED BY THIS CERTIFICATE, NOR,
THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (i) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL, IN A FORM GENERALLY ACCEPTABLE TO THE COMPANY’S LEGAL COUNSEL, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (ii) UNLESS SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT.

       

      THIS NOTE HAS BEEN ISSUED WITH
ORIGINAL ISSUE DISCOUNT (“OID”).  PURSUANT TO TREASURY REGULATION
§1.1275-3(b)(1), THOMAS A. MOORE, A REPRESENTATIVE OF THE BORROWER HEREOF WILL,
BEGINNING TEN DAYS AFTER THE ISSUE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO
THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION
§1.1275-3(b)(1)(i).  THOMAS A. MOORE MAY BE REACHED AT TELEPHONE
NUMBER (732) 545-1590.

      
        
           

          
            

          



      

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      Principal
      Amount:

                                    	 
      	
                                      $ _________

                                    
	 	 	 
	
                                      Purchase
      Price:

                                    	 
      	
                                      $ _________

                                    
	 	 	 
	
                                      Issue
      Date:

                                    	 
      	
                                      ____________

                                    
	 	 	 
	
                                      Maturity
      Date:

                                    	 
      	
                                       


                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

        
 

      

      CONVERTIBLE PROMISSORY
NOTE

       - SERIES [ ], TRANCHE [
] -

       

      FOR VALUE
RECEIVED, ADVAXIS, INC., a Delaware corporation (hereinafter called “Borrower”),
hereby promises to pay to _________ (the “Holder”)
or order, without demand, the aggregate principal amount of _________ ($_______)
(the “Principal
Amount”), payable on [     ]
(the “Maturity
Date”).

       

      This
Series [  ] Note (“Note”) is
one of the Notes issued pursuant to the terms of a Note Purchase Agreement (the
“Purchase
Agreement”), by and between the Borrower and the Holder, dated as of the
Issue Date, and shall be governed by the terms of such Purchase
Agreement.  Unless otherwise separately defined herein, all
capitalized terms used in Note shall have the same meaning as is set forth in
the Purchase Agreement.  The following terms shall apply to
Note:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      ARTICLE
I

      GENERAL
PROVISIONS

      1.1 Payment Grace
Period.  The
Borrower shall have a FIFTEEN (15) day grace period to pay any monetary amounts
due under Note.

       

      1.2 Conversion
Privileges.  The
conversion privileges set forth in Article II shall remain in full force and
effect immediately from the date hereof and until Note is paid in full
regardless of the occurrence of an Event of Default but subject to Article
II.  The Principal Amount of Note, or such portion thereof, shall not
have previously been converted into common stock, $0.001 par value, of the
Company (the “Common
Stock”) in accordance with Article II hereof, if any, shall be payable in
full on the Maturity Date.

       

      1.3 Prepayment.  Note
may be prepaid at anytime by the Borrower without penalty.

       

      1.4 Borrower Has Senior
Indebtedness Outstanding;  Borrower is Permitted to Issue Other
Indebtedness; This Indebtedness is Subordinate to Senior
Indebtedness.  The
Borrower has outstanding, currently-secured indebtedness that is senior in right
of payment with the indebtedness evidenced by this Note (the “Senior
Indebtedness”) and the Borrower is permitted in the future to issue and
create indebtedness and security interests of any kind, including without
limitation, indebtedness that is senior to or pari passu with the Company's
obligations under Note.  Any such future senior indebtedness shall be
deemed to be part of the Senior Indebtedness as defined above.  The
Holder expressly acknowledges that the indebtedness represented by Note is
expressly subordinate to the Senior Indebtedness and that no payment hereunder
shall be made to the Holder until the repayment in full or conversion of the
Senior Indebtedness.

       

      1.5 Interest.  There
shall be no periodic payments of interest on this Note.

      


      
        
          
          

        

        
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      ARTICLE
II

      CONVERSION
RIGHTS

      The
Holder shall have the right to convert the Principal Amount of this Note into
shares of the Borrower’s Common Stock, $.001 par value per share (“Common
Stock”) as set forth below.

       

      2.1 Conversion into the
Borrower’s Common Stock.

       

      (a) Conversion.  The
Holder shall have the option, but shall not be required, to convert all or a
portion of the Note into that number of fully paid and non-assessable shares of
Common Stock priced at $ .15.

       

      (b) Mechanics of
Conversion.  As a condition to effecting the conversion set
forth in Sections 2.1(a) above, the Holder shall properly complete and deliver
to the Company a Notice of Conversion, a form of which is annexed hereto as
Exhibit A (the
“Notice of
Conversion”), which notice must be received by the Company at least one
(1) business day prior to the Maturity Date.  Upon timely delivery to
the Borrower of the Notice of Conversion, the Borrower shall issue and deliver
to the Holder within three (3) business days after the Maturity Date (such third
day being the “Delivery
Date”) that number of shares of Common Stock for the portion of the Note
converted in accordance herewith.

       

      (c) Adjustment.  The
number and kind of shares or other securities to be issued upon conversion
determined pursuant to Section 2.1(a), shall be subject to adjustment from time
to time upon the happening of certain events while this conversion right remains
outstanding, as follows:

       

      A. Merger, Sale of Assets,
etc.  If the Borrower, at any time, shall consolidate with,
merge into or sell or convey all or substantially all its assets to any other
corporation, Note, as to the unpaid principal portion thereof and accrued
interest thereon, shall thereafter be deemed to evidence the right to purchase
such number and kind of shares or other securities and property as would have
been issuable or distributable on account of such consolidation, merger, sale or
conveyance, upon or with respect to the securities subject to the conversion or
purchase right immediately prior to such consolidation, merger, sale or
conveyance.  The foregoing provision shall similarly apply to
successive transactions of a similar nature by any such successor or
purchaser.  Without limiting the generality of the foregoing, the
anti-dilution provisions of this Section shall apply to such securities of such
successor or purchaser after any such consolidation, merger, sale or
conveyance.

       

      
        
          
          

        

        
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      B. Reclassification,
etc.  If the Borrower at any time shall, by reclassification or
otherwise, change the Common Stock into the same or a different number of
securities of any class or classes that may be issued or outstanding, Note, as
to the unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock immediately prior to such
reclassification or other change.

       

      (d) Notice of
Adjustment.  Upon the occurrence of an event specified in
Section 2.1(c), the Borrower shall promptly mail to the Holder a notice setting
forth the adjustment and setting forth a statement of the facts requiring such
adjustment.

       

      (e) Reservation of
Shares.  At such time when necessary, Borrower:

       

      A. will
reserve from its authorized and unissued Common Stock a sufficient amount of
Common Stock to permit the full conversion of Note;

       

      B. represents
that upon issuance, such shares will be duly and validly issued, fully paid and
non-assessable

       

      C. agrees
that its issuance of Note shall constitute full authority to its officers,
agents, and transfer agents who are charged with the duty of executing and
issuing stock certificates to execute and issue the necessary certificates for
shares of Common Stock upon the conversion of Note.

       

      2.2 Method of
Conversion.  Note
may be converted by the Holder, in whole or in part, as described in Section
2.1(a) hereof and the Purchase Agreement.  Upon partial conversion of
Note, a new Note containing the same date and provisions of Note shall, at the
request of the Holder, be issued by the Borrower to the Holder for the principal
balance of Note and interest which shall not have been converted or
paid.

       

      
        
          
          

        

        
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      2.3 Limitations on
Conversion.  Notwithstanding
anything to the contrary contained in this Note, this Note shall not be
convertible by the Holder hereof, and the Company shall not effect any
conversion of this Note or otherwise issue any shares of Common Stock pursuant
hereto, to the extent (but only to the extent) that the Holder or any of its
affiliates would beneficially own in excess of 9.99% (the “Maximum
Percentage”) of the Common Stock. To the extent the above limitation
applies, the determination of whether this Note shall be convertible (vis-à-vis
other convertible, exercisable or exchangeable securities owned by the Holder)
shall, subject to such Maximum Percentage limitation, be determined on the basis
of the first submission to the Company for conversion, exercise or exchange (as
the case may be). No prior inability to convert this Note, or to issue shares of
Common Stock, pursuant to this paragraph shall have any effect on the
applicability of the provisions of this paragraph with respect to any subsequent
determination of convertibility. For purposes of this paragraph, beneficial
ownership and all determinations and calculations (including, without
limitation, with respect to calculations of percentage ownership) shall be
determined in accordance with Section 13(d) of the Securities Act of 1934, as
amended, and the rules and regulations promulgated thereunder. The provisions of
this paragraph shall be implemented in a manner otherwise than in strict
conformity with the terms of this paragraph to correct this paragraph (or any
portion hereof) which may be defective or inconsistent with the intended Maximum
Percentage beneficial ownership limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to such Maximum
Percentage limitation. The limitations contained in this paragraph shall apply
to a successor Holder of this Note. The holders of Common Stock shall be third
party beneficiaries of this paragraph and the Company may not waive this
paragraph without the consent of holders of a majority of its Common Stock. For
any reason at any time, upon the written or oral request of the Holder, the
Company shall within two (2) business days confirm orally to the Holder and, if
requested, in writing to the Holder the number of shares of Common Stock then
outstanding, including by virtue of any prior conversion or exercise of
convertible or exercisable securities into Common Stock, including, without
limitation, pursuant to this Note or securities issued pursuant to the Purchase
Agreement.  By written notice to the Company, any Holder may increase
or decrease the Maximum Percentage to any other percentage not in excess of
9.99% specified in such notice; provided that (i) any such increase will not be
effective until the 61st day after such notice is delivered to the Company, and
(ii) any such increase or decrease will apply only to the Holder sending such
notice and not to any other holder of Notes (as defined in the Purchase
Agreement).

       

      
        
          
          

        

        
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      ARTICLE
III

      EVENT
OF DEFAULT

       

      The
occurrence of any of the following events of default (“Event of
Default”) shall, at the option of the Holder hereof, make all sums of
principal then remaining unpaid hereon and all other amounts payable hereunder
immediately due and payable, upon demand, all of which hereby are expressly
waived, except as set forth below:

       

      3.1 Failure to
Pay.  The
Borrower fails to pay the Principal Amount or other sum due under Note when due
(subject to Section 1.1 above).

       

      3.2 Breach of
Covenant.  The
Borrower breaches any material covenant of the Purchase Agreement or Note in any
material respect and such breach, if subject to cure, continues for a period of
FIFTEEN (15) business days after written notice to the Borrower from the
Holder.

       

      3.3 Breach of Representations
and Warranties.  Any
material representation or warranty of the Borrower made herein, in the Purchase
Agreement or in any agreement, statement or certificate given in writing
pursuant hereto or in connection therewith shall be false or misleading in any
material respect as of the date made and the Closing Date.

       

      3.4 Receiver or
Trustee.  The
Borrower shall make an assignment for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trustee for it or for a substantial
part of its property or business; or such a receiver or trustee shall otherwise
be appointed.

       

      3.5 Judgments.  Any
money judgment, writ or similar final process shall be entered or filed against
Borrower or any of its property or other assets for more than $1,000,000 and
shall remain unvacated, unbonded or unstayed for a period of forty-five (45)
days.

       

      
        
          
          

        

        
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      3.6 Bankruptcy.  Bankruptcy,
reorganization, insolvency proceeding, liquidation proceedings or other
proceedings or relief under any bankruptcy law or any law, or the issuance of
any notice in relation to such event, for the relief of debtors shall be
instituted by or against the Borrower and if instituted against them are not
dismissed within FORTY-FIVE (45) days of initiation.

       

      3.7 Non-Payment.  A
default by the Borrower under any one or more obligations in an aggregate
monetary amount in excess of $1,000,000 for more than TWENTY (20) business days
after notice to the Borrower from the Holder, unless the Borrower is contesting
the validity of such obligation in good faith and has segregated cash funds
equal to not less than one-half of the contested amount.

       

      3.8 Failure to Deliver Common
Stock or Replacement Note

       

      .  Borrower’s
failure to deliver Common Stock to the Holder pursuant to and in the form
required by Note within FIVE (5) business days after the applicable conversion
date.

       

      3.9 Reservation
Default.  Failure
by the Borrower to have reserved for issuance upon conversion of this Note the
amount of Common Stock as set forth in this Note for more than NINETY (90) days
after notice to the Borrower from the Holder.

       

      ARTICLE
IV

      UNSECURED
NOTE

       

      4.1 Unsecured
Note.  Note
is an unsecured obligation of the Borrower.

       

      ARTICLE
V

      MISCELLANEOUS

       

      5.1 Failure or Indulgence Not
Waiver.  No
failure or delay on the part of Holder hereof in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or
privilege.  All rights and remedies existing hereunder are cumulative
to, and not exclusive of, any rights or remedies otherwise
available.

       

      
        
          
          

        

        
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      5.2 Notices.  All
notices, requests, demands, consents, instructions or other communications
required or permitted hereunder shall be in writing and shall be either faxed,
mailed or delivered to each party at the respective addresses of the parties as
set forth in the Purchase Agreement or at such other address or facsimile number
as a party shall furnished to the other party in writing.  All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing on the business day following
the deposit with such service; (b) when mailed, by registered or certified mail,
first class postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; (c) when delivered by hand, upon delivery; and/or
(d) when faxed, upon confirmation of receipt.

       

      5.3 Amendment
Provision.  The
term “Note” and all reference thereto, as used throughout this instrument, shall
mean this instrument as originally executed, or if later amended or
supplemented, then as so amended or supplemented.

       

      5.4 Assignability.  Note
shall be binding upon the Borrower and its successors and assigns, and shall
inure to the benefit of the Holder and its successors and assigns.

       

      5.5 Cost of
Collection.  If
default is made in the payment of Note, Borrower shall pay the Holder hereof
reasonable costs of collection, including reasonable attorneys’
fees.

       

      5.6 Governing
Law.  Note
shall be governed by and construed in accordance with the laws of the State of
New York, including, but not limited to, New York statutes of
limitations.  Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought only
in the civil or state courts of New York or in the federal courts located in the
State and county of New York.  Both parties and the individual signing
this Agreement on behalf of the Borrower agree to submit to the jurisdiction of
such courts.  The prevailing party shall be entitled to recover from
the other party its reasonable attorney’s fees and costs.  In the
event that any provision of Note is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law.  Any such
provision, which may prove invalid or unenforceable under any law, shall not
affect the validity or unenforceability of any other provision of
Note.  Nothing contained herein shall be deemed or operate to preclude
the Holder from bringing suit or taking other legal action against the Borrower
in any other jurisdiction to collect on the Borrower’s obligations to Holder, or
to enforce a judgment or other decision in favor of the Holder.  Note shall be deemed an unconditional
obligation of Borrower for the payment of money and, without limitation to any
other remedies of Holder, may be enforced against Borrower by summary proceeding
pursuant to New York Civil Procedure Law and Rules Section 3213 or any similar
rule or statute in the jurisdiction where enforcement is sought.  For
purposes of such rule or statute, any other document or agreement to which
Holder and Borrower are parties or which Borrower delivered to Holder, which may
be convenient or necessary to determine Holder’s rights hereunder or Borrower’s
obligations to Holder are deemed a part of Note, whether or not such other
document or agreement was delivered together herewith or was executed apart from
Note.

       

      
        
          
          

        

        
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      5.7 Maximum
Payments.  Nothing
contained herein shall be deemed to establish or require the payment of a rate
of interest or other charges in excess of the maximum permitted by applicable
law.  In the event that the rate of interest required to be paid or
other charges hereunder exceed the maximum permitted by such law, any payments
in excess of such maximum shall be credited against amounts owed by the Borrower
to the Holder and thus refunded to the Borrower.

       

      5.8 Construction.  Each
party acknowledges that its legal counsel participated in the preparation of
Note and, therefore, stipulates that the rule of construction that ambiguities
are to be resolved against the drafting party shall not be applied in the
interpretation of Note to favor any party against the other.

       

      5.9 Shareholder
Status.  The
Holder shall not have rights as a shareholder of the Borrower with respect to
unconverted portions of Note.  However, the Holder will have the
rights of a shareholder of the Borrower with respect to the Shares of Common
Stock to be received after delivery by the Holder of a Conversion Notice to the
Borrower.

       

      5.10 Non-Business
Days.  Whenever
any payment or any action to be made shall be due on a Saturday, Sunday or a
public holiday under the laws of the State of New York, such payment may be due
or action shall be required on the next succeeding business day and, for such
payment, such next succeeding day shall be included in the calculation of the
amount of accrued interest payable on such date.

       

      
        
          
          

        

        
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      [SIGNATURES
ON THE FOLLOWING PAGE]

       

      
        
          
          

        

        
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      IN WITNESS WHEREOF, Borrower
has caused Note to be signed in its name by an authorized officer as of the
[      ] day
of [_____ 2010].

       

      


      


      ADVAXIS,
INC.

      


      


      


      ____________________________________

      Thomas A.
Moore

      Chairman/
CEO

      


      


      


      


      


      WITNESS:

      


      


      ______________________________________

       

      
        
          
          

        

        
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      NOTICE OF
CONVERSION

       

      (To be
executed by the Registered Holder in order to convert the Note)

       

      The
undersigned hereby elects to convert $_________ of the principal and $_________
of the interest due on the Note issued by ADVAXIS, INC. on [_____________, 2010]
into shares of common stock of ADVAXIS, INC. (the “Borrower”) according to the
conditions set forth in such Note, as of the date written below.

       

      Date of
Conversion:
_____________________________________________________________

       

      Conversion
Price:
_______________________________________________________________

       

      Number of
Shares of Common Stock Beneficially Owned on the Conversion Date: Less than 5%
of the outstanding Common Stock:
___________________________________________

       

      


       

      Shares to
Be Delivered:
_________________________________________________________

       

      Notwithstanding
anything to the contrary contained herein, this Conversion Notice shall
constitute a representation by the Holder of the Note submitting this Conversion
Notice that, after giving effect to the conversion provided for in this
Conversion Notice, such Holder (together with its affiliates) will not have
beneficial ownership (together with the beneficial ownership of such person's
affiliates) of a number of shares Common Stock which exceeds the Maximum
Percentage (as defined in the Note) of the total outstanding shares Common Stock
of the Company as determined pursuant to the provisions of Section 2.3 of the
Note.

       

      Signature:   
_____________________________________________________________________

       

      Print
Name:  ___________________________

       

      Address:      ___________________________

       

                    ___________________________

       

    

     

    
      
        
        

      

      
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