Exhibit 3.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
THE
0% SERIES H CONVERTIBLE PREFERRED STOCK OF
MABVAX THERAPEUTICS HOLDINGS, INC.
I, J.
David Hansen, hereby certify that I am the President and Chief
Executive Officer of MabVax Therapeutics Holdings, Inc. (the
“
Company
”), a
corporation organized and existing under the Delaware General
Corporation Law (the “
DGCL
”), and further do hereby
certify:
That
pursuant to the authority expressly conferred upon the Board of
Directors of the Company (the “
Board
”) by the Company’s
Certificate of Incorporation, as amended (the “
Certificate of Incorporation
”),
the Board on May 2, 2017, adopted the following resolutions
creating a series of shares of Preferred Stock designated as 0%
Series H Convertible Preferred Stock, none of which shares have
been issued, which, following filing of this Certificate of
Designations with the Secretary of State of the State of Delaware,
this Certificate of Designations shall be effective as of May 3,
2017:
RESOLVED, that the
Board designates the 0% Series H Convertible Preferred Stock and
the number of shares constituting such series, and fixes the
rights, powers, preferences, privileges and restrictions relating
to such series in addition to any set forth in the Certificate of
Incorporation as follows:
TERMS OF SERIES H CONVERTIBLE PREFERRED STOCK
1.
Designation
and Number of Shares
. There shall hereby be created and
established a series of preferred stock of the Company designated
as “0% Series H Convertible Preferred Stock” (the
“
Preferred
Shares
”). The authorized number of Preferred Shares
shall be 2,000 shares
. Each Preferred
Share shall have $0.01 par value (the “
Par Value
”). Capitalized terms not defined herein
shall have the meaning as set forth in Section
23
below.
2.
Ranking
.
The rights of all such shares of capital stock of the Company (the
“
Junior Stock
”),
other than the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred
Stock, shall be subject to the rights, powers, preferences and
privileges of the Preferred Shares. In the event of the merger or
consolidation of the Company with or into another corporation, the
Preferred Shares shall maintain their relative rights, powers,
designations, privileges and preferences provided for herein and no
such merger or consolidation shall result inconsistent
therewith.
3.
Dividends
. In addition to
Sections
5(a)
and 11
below, from and after the first date of issuance of any Preferred
Shares (the “
Initial Issuance
Date
”), each holder of a Preferred Share (each, a
“
Holder
” and
collectively, the “
Holders
”) shall be entitled to
receive dividends (“
Dividends
”) when and as declared
by the Board, from time to time, in its sole discretion, which
Dividends shall be paid by the Company out of funds legally
available therefor, payable, subject to the conditions and other
terms hereof, in cash as if such Holders had converted the
Preferred Shares into Common Stock (without regard to any
limitations on conversion) and had held such shares of Common Stock
on the record date for such dividends and distributions. Payments
under the preceding sentence shall be made concurrently with the
dividend or distribution to the holders of Common
Stock.
4.
Conversion
. Each Preferred
Share shall be convertible into validly issued, fully paid and
non-assessable shares of Common Stock (as defined below) on the
terms and conditions set forth in this Section 4.
(a)
Holder’s Conversion
Right
. Subject to the provisions of Section 4(e), at any
time or times on or after the Initial Issuance Date, each Holder
shall be entitled to convert any whole number of Preferred Shares
into validly issued, fully paid and non-assessable shares of Common
Stock in accordance with Section 4(c) at the Conversion Rate (as
defined below).
(b)
Conversion Rate
. The number of
validly issued, fully paid and non-assessable shares of Common
Stock issuable upon conversion of each Preferred Share pursuant to
Section 4(a) shall be determined according to the following formula
(the “
Conversion
Rate
”):
Base Amount
Conversion
Price
No
fractional shares of Common Stock are to be issued upon the
conversion of any Preferred Shares. If the issuance would result in
the issuance of a fraction of a share of Common Stock, the Company
shall round such fraction of a share of Common Stock up to the
nearest whole share.
(c)
Mechanics of Conversion
. The
conversion of each Preferred Share shall be conducted in the
following manner:
(i)
Holder’s Conversion
. To
convert a Preferred Share into validly issued, fully paid and
non-assessable shares of Common Stock on any date (a
“
Conversion
Date
”), a Holder shall deliver (whether via facsimile
or otherwise), for receipt on or prior to 11:59 p.m., New York
time, on such date, a copy of an executed notice of conversion of
the share(s) of Preferred Shares subject to such conversion in the
form attached hereto as
Exhibit I
(the “
Conversion
Notice
”) to the Company. If required by Section
4(c)(vi), within five (5) Trading Days following a conversion of
any such Preferred Shares as aforesaid, such Holder shall surrender
to a nationally recognized overnight delivery service for delivery
to the Company the original certificates representing the share(s)
of Preferred Shares (the “
Preferred Share Certificates
”) so
converted as aforesaid.
(ii)
Company’s
Response
. On or before the first (1
st
) Trading Day
following the date of receipt of a Conversion Notice, the Company
shall transmit by facsimile an acknowledgment of confirmation, in
the form attached hereto as
Exhibit II
,
of receipt of such Conversion Notice to such Holder and the
Transfer Agent, which confirmation shall constitute an instruction
to the Transfer Agent to process such Conversion Notice in
accordance with the terms herein. On or before the second
(2
nd
)
Trading Day following the date of receipt by the Company of such
Conversion Notice, the Company shall (1) provided that the Transfer
Agent is participating in DTC Fast Automated Securities Transfer
Program, credit such aggregate number of shares of Common Stock to
which such Holder shall be entitled to such Holder’s or its
designee’s balance account with DTC through its
Deposit/Withdrawal at Custodian system, or (2) if the Transfer
Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and deliver (via reputable overnight
courier) to the address as specified in such Conversion Notice, a
certificate, registered in the name of such Holder or its designee,
for the number of shares of Common Stock to which such Holder shall
be entitled. If the number of Preferred Shares represented by the
Preferred Share Certificate(s) submitted for conversion pursuant to
Section 4(c)(vi) is greater than the number of Preferred Shares
being converted, then the Company shall if requested by such
Holder, as soon as practicable and in no event later than three (3)
Trading Days after receipt of the Preferred Share Certificate(s)
and at its own expense, issue and deliver to such Holder (or its
designee) a new Preferred Share Certificate representing the number
of Preferred Shares not converted.
(iii)
Record
Holder
. The Person or Persons entitled to receive the shares
of Common Stock issuable upon a conversion of Preferred Shares
shall be treated for all purposes as the record holder or holders
of such shares of Common Stock on the Conversion Date.
(iv)
Company’s
Failure to Timely Convert
. If the Company shall fail, for
any reason or for no reason, to issue to a Holder within three (3)
Trading Days after the Company’s receipt of a Conversion
Notice (whether via facsimile or otherwise) (the
“
Share Delivery
Deadline
”), a certificate for the number of shares of
Common Stock to which such Holder is entitled and register such
shares of Common Stock on the Company’s share register or to
credit such Holder’s or its designee’s balance account
with DTC for such number of shares of Common Stock to which such
Holder is entitled upon such Holder’s conversion of any
Preferred Shares (as the case may be) (a “
Conversion Failure
”), then, in
addition to all other remedies available to such Holder, such
Holder, upon written notice to the Company, may void its Conversion
Notice with respect to, and retain or have returned (as the case
may be) any Preferred Shares that have not been converted pursuant
to such Holder’s Conversion Notice, provided that the voiding
of a Conversion Notice shall not affect the Company’s
obligations to make any payments which have accrued prior to the
date of such notice pursuant to the terms of this Certificate of
Designations or otherwise and (y) the Company shall pay in cash to
such Holder on each day after such third (3
rd
) Trading Day that
the issuance of such shares of Common Stock is not timely effected
an amount equal to 1.5% of the product of (A) the aggregate number
of shares of Common Stock not issued to such Holder on a timely
basis and to which the Holder is entitled and (B) the Closing Sale
Price of the Common Stock on the Trading Day immediately preceding
the last possible date on which the Company could have issued such
shares of Common Stock to the Holder without violating Section
4(c). In addition to the foregoing, if within three (3) Trading
Days after the Company’s receipt of a Conversion Notice
(whether via facsimile or otherwise), the Company shall fail to
issue and deliver a certificate to such Holder and register such
shares of Common Stock on the Company’s share register or
credit such Holder’s or its designee’s balance account
with DTC for the number of shares of Common Stock to which such
Holder is entitled upon such Holder’s conversion hereunder
(as the case may be), and if on or after such third (3
rd
) Trading Day such
Holder (or any other Person in respect, or on behalf, of such
Holder) purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by such
Holder of all or any portion of the number of shares of Common
Stock, or a sale of a number of shares of Common Stock equal to all
or any portion of the number of shares of Common Stock, issuable
upon such conversion that such Holder so anticipated receiving from
the Company, then, in addition to all other remedies available to
such Holder, the Company shall, within three (3) Business Days
after such Holder’s request and in such Holder’s
discretion, either (i) pay cash to such Holder in an amount equal
to such Holder’s total purchase price (including brokerage
commissions and other out-of-pocket expenses, if any) for the
shares of Common Stock so purchased (including, without limitation,
by any other Person in respect, or on behalf, of such Holder) (the
“
Buy-In Price
”),
at which point the Company’s obligation to so issue and
deliver such certificate or credit such Holder’s balance
account with DTC for the number of shares of Common Stock to which
such Holder is entitled upon such Holder’s conversion
hereunder (as the case may be) (and to issue such shares of Common
Stock) shall terminate, or (ii) promptly honor its obligation to so
issue and deliver to such Holder a certificate or certificates
representing such shares of Common Stock or credit such
Holder’s balance account with DTC for the number of shares of
Common Stock to which such Holder is entitled upon such
Holder’s conversion hereunder (as the case may be) and pay
cash to such Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of shares of
Common Stock multiplied by (B) the lowest Closing Sale Price of the
Common Stock on any Trading Day during the period commencing on the
date of the applicable Conversion Notice and ending on the date of
such issuance and payment under this clause (ii).
(v)
Pro Rata Conversion; Disputes
.
In the event the Company receives a Conversion Notice from more
than one Holder for the same Conversion Date and the Company can
convert some, but not all, of such Preferred Shares submitted for
conversion, the Company shall convert from each Holder electing to
have Preferred Shares converted on such date a pro rata amount of
such Holder’s Preferred Shares submitted for conversion on
such date based on the number of Preferred Shares submitted for
conversion on such date by such Holder relative to the aggregate
number of Preferred Shares submitted for conversion on such date.
In the event of a dispute as to the number of shares of Common
Stock issuable to a Holder in connection with a conversion of
Preferred Shares, the Company shall issue to such Holder the number
of shares of Common Stock not in dispute and resolve such dispute
in accordance with Section 22.
(vi)
Book-Entry
. Notwithstanding
anything to the contrary set forth in this Section 4, upon
conversion of any Preferred Shares in accordance with the terms
hereof, no Holder thereof shall be required to physically surrender
the certificate representing the Preferred Shares to the Company
following conversion thereof unless (A) the full or remaining
number of Preferred Shares represented by the certificate are being
converted (in which event such certificate(s) shall be delivered to
the Company as contemplated by this Section 4(c)(vi)) or (B) such
Holder has provided the Company with prior written notice (which
notice may be included in a Conversion Notice) requesting
reissuance of Preferred Shares upon physical surrender of any
Preferred Shares. Each Holder and the Company shall maintain
records showing the number of Preferred Shares so converted by such
Holder and the dates of such conversions or shall use such other
method, reasonably satisfactory to such Holder and the Company, so
as not to require physical surrender of the certificate
representing the Preferred Shares upon each such conversion. In the
event of any dispute or discrepancy, such records of such Holder
establishing the number of Preferred Shares to which the record
holder is entitled shall be controlling and determinative in the
absence of manifest error. A Holder and any transferee or assignee,
by acceptance of a certificate, acknowledge and agree that, by
reason of the provisions of this paragraph, following conversion of
any Preferred Shares, the number of Preferred Shares represented by
such certificate may be less than the number of Preferred Shares
stated on the face thereof. Each certificate for Preferred Shares
shall bear the following legend:
ANY
TRANSFEREE OR ASSIGNEE OF THIS CERTIFICATE SHOULD CAREFULLY REVIEW
THE TERMS OF THE CORPORATION’S CERTIFICATE OF DESIGNATIONS
RELATING TO THE SHARES OF SERIES H PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(c)(vi) THEREOF. THE NUMBER OF
SHARES OF SERIES H PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES H PREFERRED STOCK
STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(vi) OF THE
CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES H
PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
(d)
Taxes
. The Company shall pay
any and all documentary, stamp, transfer (but only in respect of
the registered holder thereof), issuance and other similar taxes
that may be payable with respect to the issuance and delivery of
shares of Common Stock upon the conversion of Preferred
Shares.
(e)
Limitation on Beneficial
Ownership
. Notwithstanding anything to the contrary
contained in this Certificate of Designations, the Preferred Shares
held by a Holder shall not be convertible by such Holder, and the
Company shall not effect any conversion of any Preferred Shares
held by such Holder, to the extent (but only to the extent) that
such Holder or any of its affiliates would beneficially own in
excess of 4.99% (the “
Maximum
Percentage
”) of the Common Stock. To the extent
the above limitation applies, the determination of whether the
Preferred Shares held by such Holder shall be convertible
(vis-à-vis other convertible, exercisable or exchangeable
securities owned by such Holder or any of its affiliates) and of
which such securities shall be convertible, exercisable or
exchangeable (as among all such securities owned by such Holder and
its affiliates) 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 of a Holder to convert Preferred Shares, or
of the Company to issue shares of Common Stock to such Holder,
pursuant to this Section 4(e) shall have any effect on the
applicability of the provisions of this Section 4(e) with
respect to any subsequent determination of convertibility or
issuance (as the case may be). For purposes of this Section 4(e),
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 1934 Act and the rules and regulations
promulgated thereunder. The provisions of this Section 4(e) shall
be implemented in a manner otherwise than in strict conformity with
the terms of this Section 4(e) to correct this Section 4(e) (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 Section 4(e) shall apply to a
successor holder of Preferred Shares. The holders of Common Stock
shall be third party beneficiaries of this Section 4(e) and the
Company may not waive this Section 4(e). For any reason at any
time, upon the written or oral request of a Holder, the Company
shall within two (2) Business Days confirm orally and in writing to
such 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 Certificate of Designations.
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 such Holder sending such notice and not
to any other Holder. For purposes hereof, in determining the number
of outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in (1)
the Company’s most recent Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
public filing with the Securities and Exchange Commission, as the
case may be, (2) a more recent public announcement by the Company,
or (3) any other notice by the Company setting forth the number of
shares of Common Stock outstanding. For any reason at any time,
upon the written or oral request of a holder of Preferred Shares,
the Company shall within three (3) Business Days confirm orally and
in writing to such holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including the
Preferred Shares, by the Holder and its Affiliates since the date
as of which such number of outstanding shares of Common Stock was
reported, that in any event are convertible or exercisable, as the
case may be, into shares of the Company’s Common Stock within
60 days’ of such calculation and that are not subject to a
limitation on conversion or exercise analogous to the limitation
contained herein. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 4(e) to correct this
paragraph (or any portion hereof) that may be defective or
inconsistent with the intended beneficial ownership limitation
herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation.
5.
Rights Upon Issuance of Purchase
Rights and Other Corporate Events
.
(a)
Purchase Rights
. In addition to
any adjustments pursuant to Section 7 below, if at any time the
Company grants, issues or sells any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property
pro rata to all of the record holders of any class of Common Stock
(the “
Purchase
Rights
”), then each Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which such Holder could have acquired if
such Holder had held the number of shares of Common Stock
acquirable upon complete conversion of all the Preferred Shares
(without taking into account any limitations or restrictions on the
convertibility of the Preferred Shares) held by such Holder
immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of Common
Stock are to be determined for the grant, issue or sale of such
Purchase Rights (provided, however, to the extent that such
Holder’s right to participate in any such Purchase Right
would result in such Holder exceeding the Maximum Percentage, then
such Holder shall not be entitled to participate in such Purchase
Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and
such Purchase Right to such extent shall be held in abeyance for
such Holder until such time, if ever, as its right thereto would
not result in such Holder exceeding the Maximum
Percentage).
(b)
Other Corporate Events
. In
addition to and not in substitution for any other rights hereunder,
prior to the consummation of any Fundamental Transaction pursuant
to which holders of shares of Common Stock are entitled to receive
securities or other assets with respect to or in exchange for
shares of Common Stock (a “
Corporate Event
”), the Company
shall make appropriate provision to insure that each Holder will
thereafter have the right to receive upon a conversion of all the
Preferred Shares held by such Holder (i) in addition to the shares
of Common Stock receivable upon such conversion, such securities or
other assets to which such Holder would have been entitled with
respect to such shares of Common Stock had such shares of Common
Stock been held by such Holder upon the consummation of such
Corporate Event (without taking into account any limitations or
restrictions on the convertibility of the Preferred Shares
contained in this Certificate of Designations) or (ii) in lieu of
the shares of Common Stock otherwise receivable upon such
conversion, such securities or other assets received by the holders
of shares of Common Stock in connection with the consummation of
such Corporate Event in such amounts as such Holder would have been
entitled to receive had the Preferred Shares held by such Holder
initially been issued with conversion rights for the form of such
consideration (as opposed to shares of Common Stock) at a
conversion rate for such consideration commensurate with the
Conversion Rate. The provisions of this Section 5(b) shall apply
similarly and equally to successive Corporate Events and shall be
applied without regard to any limitations on the conversion of the
Preferred Shares contained in this Certificate of
Designations.
6.
Rights Upon Fundamental
Transactions
. Upon the occurrence of any Fundamental
Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Certificate of
Designations referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the
Company under this Certificate of Designations with the same effect
as if such Successor Entity had been named as the Company herein
and therein. In addition to the foregoing, upon consummation of a
Fundamental Transaction, the Successor Entity shall deliver to each
Holder confirmation that there shall be issued upon conversion of
the Preferred Shares at any time after the consummation of such
Fundamental Transaction, in lieu of the shares of Common Stock (or
other securities, cash, assets or other property (except such items
still issuable under Sections 5 and 11, which shall continue to be
receivable thereafter)) issuable upon the conversion of the
Preferred Shares prior to such Fundamental Transaction, such shares
of the Successor Entity (including its Parent Entity) or other
consideration which each Holder would have been entitled to receive
upon the happening of such Fundamental Transaction had all the
Preferred Shares held by each Holder been converted immediately
prior to such Fundamental Transaction (without regard to any
limitations on the conversion of the Preferred Shares contained in
this Certificate of Designations), as adjusted in accordance with
the provisions of this Certificate of Designations. The provisions
of this Section 6 shall apply similarly and equally to successive
Fundamental Transactions and shall be applied without regard to any
limitations on the conversion of the Preferred Shares.
7.
Rights Upon Issuance of Other
Securities
.
(a)
Intentionally
Omitted.
(b)
Adjustment of Conversion Price
upon Subdivision or Combination of Common Stock. Without limiting
any provision of Sections 5 and 11, if the Company at any time on
or after the Initial Issuance Date subdivides (by any stock split,
stock dividend, recapitalization or otherwise) one or more classes
of its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such
subdivision will be proportionately reduced. Without limiting any
provision of Sections 5 and 11, if the Company at any time on or
after the Initial Issuance Date combines (by combination, reverse
stock split or otherwise) one or more classes of its outstanding
shares of Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination
will be proportionately increased. Any adjustment pursuant to this
Section 7(b) shall become effective immediately after the effective
date of such subdivision or combination. If any event requiring an
adjustment under this Section 7(b) occurs during the period that a
Conversion Price is calculated hereunder, then the calculation of
such Conversion Price shall be adjusted appropriately to reflect
such event.
(c)
Other Events. In the event that
the Company (or any Subsidiary) shall take any action to which the
provisions hereof are not strictly applicable, or, if applicable,
would not operate to protect any Holder from dilution or if any
event occurs of the type contemplated by the provisions of this
Section 7 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features),
then the Board shall in good faith determine and implement an
appropriate adjustment in the Conversion Price so as to protect the
rights of such Holder, provided that no such adjustment pursuant to
this Section 7(c) will increase the Conversion Price as otherwise
determined pursuant to this Section 7, provided further that if
such Holder does not accept such adjustments as appropriately
protecting its interests hereunder against such dilution, then the
Board and such Holder shall agree, in good faith, upon an
independent investment bank of nationally recognized standing to
make such appropriate adjustments, whose determination shall be
final and binding and whose fees and expenses shall be borne by the
Company.
(d)
Calculations.
All calculations under this Section 7 shall be made by rounding to
the nearest one-hundred thousandth of a cent or the nearest
1/100
th
of
a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or
held by or for the account of the Company, and the disposition of
any such shares shall be considered an issue or sale of Common
Stock.
(a)
Reservation
. The Company shall
initially reserve out of its authorized and unissued Common Stock a
number of shares of Common Stock equal to 100% of the Conversion
Rate with respect to the Base Amount of each Preferred Share as of
the Initial Issuance Date (without taking into account any
limitations on the conversion of such Preferred Shares set forth in
herein) issuable pursuant to the terms of this Certificate of
Designations from the Initial Issuance Date through the second
anniversary of the Initial Issuance Date assuming (without taking
into account any limitations on the issuance of securities set
forth herein). So long as any of the Preferred Shares are
outstanding, the Company shall take all action necessary to reserve
and keep available out of its authorized and unissued shares of
Common Stock, solely for the purpose of effecting the conversion of
the Preferred Shares, as of any given date, 100% of the number of
shares of Common Stock as shall from time to time be necessary to
effect the conversion of all of the Preferred Shares issued as of
the Initial Issuance Date, without taking into account any
limitations on the issuance of securities set forth herein),
provided that at no time shall the number of shares of Common Stock
so available be less than the number of shares required to be
reserved by the previous sentence (without regard to any
limitations on conversions contained in this Certificate of
Designations) (the “
Required
Amount
”). The initial number of shares of Common Stock
reserved for conversions of the Preferred Shares and each increase
in the number of shares so reserved shall be allocated pro rata
among the Holders based on the number of Preferred Shares held by
each Holder on the Initial Issuance Date or increase in the number
of reserved shares (as the case may be) (the “
Authorized Share Allocation
”). In
the event a Holder shall sell or otherwise transfer any of such
Holder’s Preferred Shares, each transferee shall be allocated
a pro rata portion of such Holder’s Authorized Share
Allocation. Any shares of Common Stock reserved and allocated to
any Person which ceases to hold any Preferred Shares shall be
allocated to the remaining Holders of Preferred Shares, pro rata
based on the number of Preferred Shares then held by such
Holders.
(b)
Insufficient Authorized Shares
.
If, notwithstanding Section 8(a) and not in limitation thereof, at
any time while any of the Preferred Shares remain outstanding the
Company does not have a sufficient number of authorized and
unissued shares of Common Stock to satisfy its obligation to have
available for issuance upon conversion of the Preferred Shares at
least a number of shares of Common Stock equal to the Required
Amount (an “
Authorized Share
Failure
”), then the Company shall promptly take all
action necessary to increase the Company’s authorized shares
of Common Stock to an amount sufficient to allow the Company to
reserve and have available the Required Amount for all of the
Preferred Shares then outstanding. Without limiting the generality
of the foregoing sentence, as soon as practicable after the date of
the occurrence of an Authorized Share Failure, but in no event
later than ninety (90) days after the occurrence of such Authorized
Share Failure, the Company shall hold a meeting of its stockholders
or conduct a consent solicitation for the approval of an increase
in the number of authorized shares of Common Stock. In connection
with such meeting, the Company shall provide each stockholder with
a proxy statement and shall use its commercially reasonable efforts
to solicit its stockholders’ approval of such increase in
authorized shares of Common Stock and to cause its Board to
recommend to the stockholders that they approve such proposal. In
the event that the Company is prohibited from issuing shares of
Common Stock upon a conversion of any Preferred Share due to the
failure by the Company to have sufficient shares of Common Stock
available out of the authorized but unissued shares of Common Stock
(such unavailable number of shares of Common Stock, the
“
Authorization Failure
Shares
”), in lieu of delivering such Authorization
Failure Shares to such Holder of such Preferred Shares, the Company
shall pay cash in exchange for the cancellation of such Preferred
Shares convertible into such Authorized Failure Shares at a price
equal to the sum of (i) the product of (x) such number of
Authorization Failure Shares and (y) the Closing Sale Price on the
Trading Day immediately preceding the date such Holder delivers the
applicable Conversion Notice with respect to such Authorization
Failure Shares to the Company and (ii) to the extent such Holder
purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by such Holder of
Authorization Failure Shares, any brokerage commissions and other
out-of-pocket expenses, if any, of such Holder incurred in
connection therewith.
9.
Voting Rights
. Except as
otherwise expressly required by law, each holder of Preferred
Shares shall be entitled to vote on all matters submitted to
shareholders of the Company and shall be entitled to the number of
votes for each Preferred Share owned at the record date for the
determination of shareholders entitled to vote on such matter or,
if no such record date is established, at the date such vote is
taken or any written consent of shareholders is solicited, equal to
the number of shares of Common Stock such Preferred Shares are
convertible into (voting as a class with Common Stock) substituting
the consolidated Closing Bid Price on the date prior to execution
of the Purchase Agreement for the Conversion Rate in Section 4(b)
hereof, but not in excess of the conversion limitations set forth
in Section 4(e) herein. Except as otherwise required by law, the
holders of Preferred Shares shall vote together with the holders of
Common Stock on all matters and shall not vote as a separate
class.
10.
Liquidation, Dissolution,
Winding-Up
. In the event of a Liquidation Event, the Holders
shall be entitled to receive in cash out of the assets of the
Company, whether from capital or from earnings available for
distribution to its shareholders (the “
Liquidation Funds
”), before any
amount shall be paid to the holders of any of shares of Junior
Stock, an amount per Preferred Share equal to the greater of (a)
the Base Amount thereof on the date of such payment, and (b) the
amount per share such Holder would receive if such Holder converted
such Preferred Shares into Common Stock immediately prior to the
date of such payment;
provided
,
however
, that, if the
Liquidation Funds are insufficient to pay the full amount due to
the Holders and holders of shares of Parity Stock (stock ranking
equal to the Preferred Shares), then each Holder and each holder of
Parity Stock shall receive a percentage of the Liquidation Funds
equal to the full amount of Liquidation Funds payable to such
Holder and such holder of Parity Stock as a liquidation preference,
in accordance with their respective certificate of designation (or
equivalent), as a percentage of the full amount of Liquidation
Funds payable to all holders of Preferred Shares and all holders of
shares of Parity Stock. To the extent necessary, the Company shall
cause such actions to be taken by each of its Subsidiaries so as to
enable, to the maximum extent permitted by law, the proceeds of a
Liquidation Event to be distributed to the Holders in accordance
with this Section 10. All the preferential amounts to be paid to
the Holders under this Section 10 shall be paid or set apart for
payment before the payment or setting apart for payment of any
amount for, or the distribution of any Liquidation Funds of the
Company to the holders of shares of Junior Stock in connection with
a Liquidation Event as to which this Section 10
applies.
11.
Participation
. In addition to
any adjustments pursuant to Section 7(b), the Holders shall, as
holders of Preferred Shares, be entitled to receive such dividends
paid and distributions made to the holders of shares of Common
Stock to the same extent as if such Holders had converted each
Preferred Share held by each of them into shares of Common Stock
(without regard to any limitations on conversion herein or
elsewhere) and had held such shares of Common Stock on the record
date for such dividends and distributions. Payments under the
preceding sentence shall be made concurrently with the dividend or
distribution to the holders of shares of Common Stock (provided,
however, to the extent that a Holder’s right to participate
in any such dividend or distribution would result in such Holder
exceeding the Maximum Percentage, then such Holder shall not be
entitled to participate in such dividend or distribution to such
extent (or the beneficial ownership of any such shares of Common
Stock as a result of such dividend or distribution to such extent)
and such dividend or distribution to such extent shall be held in
abeyance for the benefit of such Holder until such time, if ever,
as its right thereto would not result in such Holder exceeding the
Maximum Percentage).
12.
Vote to Change the Terms of or Issue
Preferred Shares
. In addition to any other rights provided
by law, except where the vote or written consent of the holders of
a greater number of shares is required by law or by another
provision of the Certificate of Incorporation, without first
obtaining the affirmative vote at a meeting duly called for such
purpose or the written consent without a meeting of the Holders of
Preferred Shares representing a majority of Preferred Shares
outstanding on such date (the “
Required Holders
”), voting
together as a single class, the Company shall not: (a) amend or
repeal any provision of, or add any provision to, its Certificate
of Incorporation or bylaws, or file any certificate of designations
or articles of amendment of any series of shares of preferred
stock, if such action would adversely alter or change in any
respect the preferences, rights, privileges or powers, or
restrictions provided for the benefit, of the Preferred Shares,
regardless of whether any such action shall be by means of
amendment to the Certificate of Incorporation or by merger,
consolidation or otherwise; (b) increase or decrease (other than by
conversion) the authorized number of Preferred Shares; (c) issue
any Preferred Shares after the Initial Issuance Date; or (d)
without limiting any provision of Section 16, whether or not
prohibited by the terms of the Preferred Shares, circumvent a right
of the Preferred Shares.
13.
Intentionally
Omitted
.
14.
Lost or Stolen Certificates
.
Upon receipt by the Company of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any
certificates representing Preferred Shares (as to which a written
certification and the indemnification contemplated below shall
suffice as such evidence), and, in the case of loss, theft or
destruction, of an indemnification undertaking by the applicable
Holder to the Company in customary and reasonable form and, in the
case of mutilation, upon surrender and cancellation of the
certificate(s), the Company shall execute and deliver new
certificate(s) of like tenor and date.
15.
Remedies, Characterizations, Other
Obligations, Breaches and Injunctive Relief.
The remedies
provided in this Certificate of Designations shall be cumulative
and in addition to all other remedies available under this
Certificate of Designations, at law or in equity (including a
decree of specific performance and/or other injunctive relief), and
no remedy contained herein shall be deemed a waiver of compliance
with the provisions giving rise to such remedy. Nothing herein
shall limit any Holder’s right to pursue actual and
consequential damages for any failure by the Company to comply with
the terms of this Certificate of Designations. The Company
covenants to each Holder that there shall be no characterization
concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments,
conversion and the like (and the computation thereof) shall be the
amounts to be received by a Holder and shall not, except as
expressly provided herein, be subject to any other obligation of
the Company (or the performance thereof). The Company acknowledges
that a breach by it of its obligations hereunder will cause
irreparable harm to the Holders and that the remedy at law for any
such breach may be inadequate. The Company therefore agrees that,
in the event of any such breach or threatened breach, each Holder
shall be entitled, in addition to all other available remedies, to
an injunction restraining any such breach or any such threatened
breach, without the necessity of showing economic loss and without
any bond or other security being required. The Company shall
provide all information and documentation to a Holder that is
requested by such Holder to enable such Holder to confirm the
Company’s compliance with the terms and conditions of this
Certificate of Designations.
16.
Noncircumvention
. The Company
hereby covenants and agrees that the Company will not, by amendment
of its Certificate of Incorporation, bylaws or through any
reorganization, transfer of assets, consolidation, merger, scheme
of arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Certificate of
Designations, and will at all times in good faith carry out all the
provisions of this Certificate of Designations and take all action
as may be required to protect the rights of the Holders. Without
limiting the generality of the foregoing or any other provision of
this Certificate of Designations, the Company (i) shall not
increase the par value of any shares of Common Stock receivable
upon the conversion of any Preferred Shares above the Conversion
Price then in effect, (ii) shall take all such actions as may
be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of Common
Stock upon the conversion of Preferred Shares and (iii) shall, so
long as any Preferred Shares are outstanding, take all action
necessary to reserve and keep available out of its authorized and
unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the Preferred Shares, the maximum
number of shares of Common Stock as shall from time to time be
necessary to effect the conversion of the Preferred Shares then
outstanding (without regard to any limitations on conversion
contained herein).
17.
Failure or Indulgence Not
Waiver
. No failure or delay on the part of a Holder 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. No
waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party. This Certificate of
Designations shall be deemed to be jointly drafted by the Company
and all Holders and shall not be construed against any Person as
the drafter hereof.
18.
Notices
. The Company shall
provide each Holder of Preferred Shares with prompt written notice
of all actions taken pursuant to the terms of this Certificate of
Designations, including in reasonable detail a description of such
action and the reason therefor. Whenever notice is required to be
given under this Certificate of Designations, unless otherwise
provided herein. Without limiting the generality of the foregoing,
the Company shall give written notice to each Holder (i) promptly
following any adjustment of the Conversion Price, setting forth in
reasonable detail, and certifying, the calculation of such
adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the Common Stock, (B)
with respect to any grant, issuances, or sales of any Options,
Convertible Securities or rights to purchase stock, warrants,
securities or other property to all holders of shares of Common
Stock as a class or (C) for determining rights to vote with respect
to any Fundamental Transaction, dissolution or liquidation,
provided, in each case, that such information shall be made known
to the public prior to, or simultaneously with, such notice being
provided to any Holder.
19.
Transfer of Preferred Shares
.
The Holder may transfer some or all of its Preferred Shares without
the consent of the Company.
20.
Preferred Shares Register
. The
Company shall maintain at its principal executive offices (or such
other office or agency of the Company as it may designate by notice
to the Holders), a register for the Preferred Shares, in which the
Company shall record the name, address and facsimile number of the
Persons in whose name the Preferred Shares have been issued, as
well as the name and address of each transferee. The Company may
treat the Person in whose name any Preferred Shares is registered
on the register as the owner and holder thereof for all purposes,
notwithstanding any notice to the contrary, but in all events
recognizing any properly made transfers.
21.
Stockholder Matters;
Amendment
.
(a)
Stockholder
Matters. Any stockholder action, approval or consent required,
desired or otherwise sought by the Company pursuant to the DGCL,
the Certificate of Incorporation, this Certificate of Designations
or otherwise with respect to the issuance of Preferred Shares may
be effected by written consent of the Company’s stockholders
or at a duly called meeting of the Company’s stockholders,
all in accordance with the applicable rules and regulations of the
DGCL. This provision is intended to comply with the applicable
sections of the DGCL permitting stockholder action, approval and
consent affected by written consent in lieu of a
meeting.
(b)
Amendment.
This Certificate of Designations or any provision hereof may be
amended by obtaining the affirmative vote at a meeting duly called
for such purpose, or written consent without a meeting in
accordance with the DGCL, of the Required Holders, voting separate
as a single class, and with such other stockholder approval, if
any, as may then be required pursuant to the DGCL and the
Certificate of Incorporation.
(a)
Disputes Over Closing Bid Price,
Closing Sale Price, Conversion Price or Fair Market
Value.
(i)
In
the case of a dispute relating to a Closing Bid Price, a Closing
Sale Price, a Conversion Price or fair market value (as the case
may be) (including, without limitation, a dispute relating to the
determination of any of the foregoing), the Company or such
applicable Holder (as the case may be) shall submit the dispute via
facsimile (I) within two (2) Business Days after delivery of the
applicable notice giving rise to such dispute to the Company or
such Holder (as the case may be) or (II) if no notice gave rise to
such dispute, at any time after such Holder learned of the
circumstances giving rise to such dispute. If such Holder and the
Company are unable to resolve such dispute relating to such Closing
Bid Price, such Closing Sale Price, such Conversion Price, or such
fair market value (as the case may be) by 5:00 p.m. (New York time)
on the third (3
rd
) Business Day
following such delivery by the Company or such Holder (as the case
may be) of such dispute to the Company or such Holder (as the case
may be), then such Holder shall select an independent, reputable
investment bank to resolve such dispute.
(ii)
Such
Holder and the Company shall each deliver to such investment bank
(x) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 22(a) and (y)
written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by
the fifth (5
th
) Business Day
immediately following the date on which such Holder selected such
investment bank (the “
Dispute
Submission Deadline
”) (the documents referred to in
the immediately preceding clauses (x) and (y) are collectively
referred to herein as the “
Required Dispute Documentation
”)
(it being understood and agreed that if either such Holder or the
Company fails to so deliver all of the Required Dispute
Documentation by the Dispute Submission Deadline, then the party
who fails to so submit all of the Required Dispute Documentation
shall no longer be entitled to (and hereby waives its right to)
deliver or submit any written documentation or other support to
such investment bank with respect to such dispute and such
investment bank shall resolve such dispute based solely on the
Required Dispute Documentation that was delivered to such
investment bank prior to the Dispute Submission Deadline). Unless
otherwise agreed to in writing by both the Company and such Holder
or otherwise requested by such investment bank, neither the Company
nor such Holder shall be entitled to deliver or submit any written
documentation or other support to such investment bank in
connection with such dispute (other than the Required Dispute
Documentation).
(iii)
The
Company and such Holder shall cause such investment bank to
determine the resolution of such dispute and notify the Company and
such Holder of such resolution no later than ten (10) Business Days
immediately following the Dispute Submission Deadline. The fees and
expenses of such investment bank shall be borne solely by the
Company, and such investment bank’s resolution of such
dispute shall be final and binding upon all parties absent manifest
error.
(b)
Disputes Over Arithmetic Calculation
of the Conversion Rate.
(i)
In
the case of a dispute as to the arithmetic calculation of a
Conversion Rate, the Company or such Holder (as the case may be)
shall submit the disputed arithmetic calculation via facsimile (i)
within two (2) Business Days after delivery of the applicable
notice giving rise to such dispute to the Company or such Holder
(as the case may be) or (ii) if no notice gave rise to such
dispute, at any time after such Holder learned of the circumstances
giving rise to such dispute. If such Holder and the Company are
unable to resolve such disputed arithmetic calculation of such
Conversion Rate by 5:00 p.m. (New York time) on the third
(3
rd
)
Business Day following such delivery by the Company or such Holder
(as the case may be) of such disputed arithmetic calculation, then
such Holder shall select an independent, reputable accountant or
accounting firm to perform such disputed arithmetic
calculation.
(ii)
Such
Holder and the Company shall each deliver to such accountant or
accounting firm (as the case may be) (x) a copy of the initial
dispute submission so delivered in accordance with the first
sentence of this Section 22(a) and (y) written documentation
supporting its position with respect to such disputed arithmetic
calculation, in each case, no later than 5:00 p.m. (New York time)
by the fifth (5
th
) Business Day
immediately following the date on which such Holder selected such
accountant or accounting firm (as the case may be) (the
“
Submission
Deadline
”) (the documents referred to in the
immediately preceding clauses (x) and (y) are collectively referred
to herein as the “
Required
Documentation
”) (it being understood and agreed that
if either such Holder or the Company fails to so deliver all of the
Required Documentation by the Submission Deadline, then the party
who fails to so submit all of the Required Documentation shall no
longer be entitled to (and hereby waives its right to) deliver or
submit any written documentation or other support to such
accountant or accounting firm (as the case may be) with respect to
such disputed arithmetic calculation and such accountant or
accounting firm (as the case may be) shall perform such disputed
arithmetic calculation based solely on the Required Documentation
that was delivered to such accountant or accounting firm (as the
case may be) prior to the Submission Deadline). Unless otherwise
agreed to in writing by both the Company and such Holder or
otherwise requested by such accountant or accounting firm (as the
case may be), neither the Company nor such Holder shall be entitled
to deliver or submit any written documentation or other support to
such accountant or accounting firm (as the case may be) in
connection with such disputed arithmetic calculation of the
Conversion Rate (other than the Required
Documentation).
(iii)
The
Company and such Holder shall cause such accountant or accounting
firm (as the case may be) to perform such disputed arithmetic
calculation and notify the Company and such Holder of the results
no later than ten (10) Business Days immediately following the
Submission Deadline. The fees and expenses of such accountant or
accounting firm (as the case may be) shall be borne solely by the
Company, and such accountant’s or accounting firm’s (as
the case may be) arithmetic calculation shall be final and binding
upon all parties absent manifest error.
(c)
Miscellaneous. The
Company expressly acknowledges and agrees that (i) this Section 22
constitutes an agreement to arbitrate between the Company and such
Holder (and constitutes an arbitration agreement) under §
7501, et seq. of the New York Civil Practice Law and Rules
(“
CPLR
”) and
that each party shall be entitled to compel arbitration pursuant to
CPLR § 7503(a) in order to compel compliance with this Section
22, (ii) the terms of this Certificate of Designations shall serve
as the basis for the selected investment bank’s resolution of
the applicable dispute, such investment bank shall be entitled (and
is hereby expressly authorized) to make all findings,
determinations and the like that such investment bank determines
are required to be made by such investment bank in connection with
its resolution of such dispute and in resolving such dispute such
investment bank shall apply such findings, determinations and the
like to the terms of this Certificate of Designations, (iii) the
terms of this Certificate of Designations shall serve as the basis
for the selected accountant’s or accounting firm’s
performance of the applicable arithmetic calculation, (iv) for
clarification purposes and without implication that the contrary
would otherwise be true, disputes relating to matters described in
Section 22(a) shall be governed by Section 22(a) and not by Section
22(b), (v) such Holder (and only such Holder), in its sole
discretion, shall have the right to submit any dispute described in
this Section 22 to any state or federal court sitting in The City
of New York, Borough of Manhattan in lieu of utilizing the
procedures set forth in this Section 22 and (vi) nothing in this
Section 22 shall limit such Holder from obtaining any injunctive
relief or other equitable remedies (including, without limitation,
with respect to any matters described in Section 22(a) or Section
22(b)).
23.
Certain Defined Terms
. For
purposes of this Certificate of Designations, the following terms
shall have the following meanings:
(a)
“
1934
Act
”
means
the Securities Exchange Act of
1934, as amended.
(b)
“
Base Amount
” means, with respect
to each Preferred Share, as of the applicable date of
determination, the sum of (1) the Stated Value thereof, plus (2)
the Unpaid Dividend Amount thereon as of such date of
determination.
(c)
“
Bloomberg
” means Bloomberg,
L.P.
(d)
“
Business Day
” means any day other
than Saturday, Sunday or other day on which commercial banks in The
City of New York are authorized or required by law to remain
closed.
(e)
“
Closing Bid Price
” and
“
Closing Sale
Price
” means, for any security as of any date, the
last closing bid price and last closing trade price, respectively,
for such security on the Principal Market, as reported by
Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price
or the closing trade price (as the case may be) then the last bid
price or last trade price, respectively, of such security prior to
4:00:00 p.m., New York time, as reported by Bloomberg, or, if the
Principal Market is not the principal securities exchange or
trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal
securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not
apply, the last closing bid price or last trade price,
respectively, of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the
average of the bid prices, or the ask prices, respectively, of any
market makers for such security as reported in the “pink
sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC).
If the Closing Bid Price or the Closing Sale Price cannot be
calculated for a security on a particular date on any of the
foregoing bases, the Closing Bid Price or the Closing Sale Price
(as the case may be) of such security on such date shall be the
fair market value as mutually determined by the Company and the
applicable Holder. If the Company and such Holder are unable to
agree upon the fair market value of such security, then such
dispute shall be resolved in accordance with the procedures in
Section 22. All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination or other
similar transaction during such period.
(f)
“
Common Stock
” means (i) the
Company’s shares of common stock, $0.01 par value per share,
and (ii) any capital stock into which such common stock shall have
been changed or any share capital resulting from a reclassification
of such common stock.
(g)
“
Conversion Price
” means, with
respect to each Preferred Share, as of any Conversion Date or other
applicable date of determination, $1.75 subject to adjustment as
provided herein.
(h)
“
Convertible
Securities
” means any stock or other security (other
than Options) that is at any time and under any circumstances,
directly or indirectly, convertible into, exercisable or
exchangeable for, or which otherwise entitles the holder thereof to
acquire, any shares of Common Stock.
(i)
“
Eligible Market
” means The New
York Stock Exchange, the NYSE MKT, The Nasdaq Global Select Market,
The Nasdaq Global Market, The Nasdaq Capital Market, the
Over-the-Counter Bulletin Board, the OTCQB Marketplace or the OTCQX
(or any successor thereto).
(j)
“
Fundamental Transaction
” means
that (i) the Company or any of its Subsidiaries shall, directly or
indirectly, in one or more related transactions, (1) consolidate or
merge with or into (whether or not the Company or any of its
Subsidiaries is the surviving corporation) any other Person unless
immediately following the closing of such transaction or series of
related transactions the Persons holding more than 50% of the
Voting Stock of the Company prior to such closing continue to hold
more than 50% of the Voting Stock of the Company following such
closing, or (2) sell, lease, license, assign, transfer, convey or
otherwise dispose of all or substantially all of its respective
properties or assets to any other Person, or (3) assist any other
Person in making a purchase, tender or exchange offer that is
accepted by the holders of more than 50% of the outstanding shares
of Voting Stock of the Company (not including any shares of Voting
Stock of the Company held by the Person or Persons making or party
to, or associated or affiliated with the Persons making or party
to, such purchase, tender or exchange offer), or (4) consummate a
stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with any other Person whereby
such other Person acquires more than 50% of the outstanding shares
of Voting Stock of the Company (not including any shares of Voting
Stock of the Company held by the other Person or other Persons
making or party to, or associated or affiliated with the other
Persons making or party to, such stock or share purchase agreement
or other business combination) excluding any equity financing
transaction in which shares of Voting Stock are issued, or (5)
reorganize, recapitalize or reclassify the Common Stock, or (ii)
any “person” or “group” (as these terms are
used for purposes of Sections 13(d) and 14(d) of the 1934 Act and
the rules and regulations promulgated thereunder) is or shall
become the “beneficial owner” (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 50% of the
aggregate ordinary voting power represented by issued and
outstanding Voting Stock of the Company.
(k)
“
Options
” means any rights,
warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities.
(l)
“
Parent Entity
” of a Person means
an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is
quoted or listed on an Eligible Market, or, if there is more than
one such Person or Parent Entity, the Person or Parent Entity with
the largest public market capitalization as of the date of
consummation of the Fundamental Transaction.
(m)
“
Person
”
means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated
organization, any other entity or a government or any department or
agency thereof.
(n)
“
Principal
Market
” means the The NASDAQ Capital
Market.
(o)
“
Purchase Agreement
” means that
certain Subscription Agreement by and among the Company and the
initial holders of Preferred Shares, dated as of the Purchase Date,
as may be amended from time in accordance with the terms
thereof.
(p)
“
SEC
”
means the Securities and Exchange Commission or the successor
thereto.
(q)
“
Stated Value
” shall mean $1,000
per share, subject to adjustment for stock splits, stock dividends,
recapitalizations, reorganizations, reclassifications,
combinations, subdivisions or other similar events occurring after
the Initial Issuance Date with respect to the Preferred
Shares.
(r)
“
Subsidiaries
” means any Person in
which the Company, directly or indirectly, (I) owns any of the
outstanding capital stock or holds any equity or similar interest
of such Person or (II) controls or operates all or any part of the
business, operations or administration of such Person.
(s)
“
Successor Entity
” means the Person
(or, if so elected by the Required Holders, the Parent Entity)
formed by, resulting from or surviving any Fundamental Transaction
or the Person (or, if so elected by the Required Holders, the
Parent Entity) with which such Fundamental Transaction shall have
been entered into.
(t)
“
Trading Day
” means, as applicable,
(x) with respect to all price determinations relating to the Common
Stock, any day on which the Common Stock is traded on the Principal
Market, or, if the Principal Market is not the principal trading
market for the Common Stock, then on the principal securities
exchange or securities market on which the Common Stock is then
traded, provided that “Trading Day” shall not include
any day on which the Common Stock is scheduled to trade on such
exchange or market for less than 4.5 hours or any day that the
Common Stock is suspended from trading during the final hour of
trading on such exchange or market (or if such exchange or market
does not designate in advance the closing time of trading on such
exchange or market, then during the hour ending at 4:00:00 p.m.,
New York time) unless such day is otherwise designated as a Trading
Day in writing by the Required Holders or (y) with respect to all
determinations other than price determinations relating to the
Common Stock, any day on which The NASDAQ Stock Market (or any
successor thereto) is open for trading of securities.
(u)
“
Unpaid Dividend Amount
” means, as
of the applicable date of determination, with respect to each
Preferred Share, all declared and unpaid Dividends on such
Preferred Share.
(v)
“
Voting
Stock
” of a Person means capital stock of such Person
of the class or classes pursuant to which the holders thereof have
the general voting power to elect, or the general power to appoint,
at least a majority of the board of directors, managers, trustees
or other similar governing body of such Person (irrespective of
whether or not at the time capital stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
24.
Disclosure
. Upon receipt or
delivery by the Company of any notice in accordance with the terms
of this Certificate of Designations, unless the Company has in good
faith determined that the matters relating to such notice do not
constitute material, non-public information relating to the Company
or any of its Subsidiaries, the Company shall simultaneously with
any such receipt or delivery publicly disclose such material,
non-public information on a Current Report on Form 8-K or
otherwise. In the event that the Company believes that a notice
contains material, non-public information relating to the Company
or any of its Subsidiaries, the Company so shall indicate to each
Holder contemporaneously with delivery of such notice, and in the
absence of any such indication, each Holder shall be allowed to
presume that all matters relating to such notice do not constitute
material, non-public information relating to the Company or its
Subsidiaries.
* * * *
*
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations of Series H Convertible Preferred Stock of MabVax
Therapeutics Holdings, Inc. to be signed by its President and Chief
Executive Officer on this 2nd day of May, 2017.
By
:_/s/ J. David
Hansen
________________
Name:
J. David Hansen
Title:
President and Chief Executive Officer
EXHIBIT I
MABVAX THERAPEUTICS HOLDINGS, INC.
CONVERSION NOTICE
Reference is made
to the Certificate of Designations, Preferences and Rights of the
Series H Convertible Preferred Stock of MabVax Therapeutics
Holdings, Inc. (the “
Certificate of Designations
”). In
accordance with and pursuant to the Certificate of Designations,
the undersigned hereby elects to convert the number of shares of
Series H Convertible Preferred Stock, $0.01 par value per share
(the “
Preferred
Shares
”), of MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “
Company
”), indicated below into
shares of common stock, $0.01 par value per share (the
“
Common Stock
”),
of the Company, as of the date specified below.
Date of
Conversion:
Number
of Preferred Shares to be
converted:
Share
certificate no(s). of Preferred Shares to be
converted:
Tax ID
Number (If
applicable):
Conversion
Price:_________________________________________________________
Number
of shares of Common Stock to be
issued:
Please
issue the shares of Common Stock into which the Preferred Shares
are being converted in the following name and to the following
address:
Issue
to:
Address:
_________________________________________
Telephone Number:
________________________________
Facsimile
Number:
Holder:
By:
Title:
Dated:_____________________________
Account
Number (if electronic book entry
transfer):
Transaction Code
Number (if electronic book entry
transfer):
EXHIBIT II
ACKNOWLEDGMENT
The
Company hereby acknowledges this Conversion Notice and hereby
directs
[ ]
to issue the above indicated number of shares of Common Stock in
accordance with the Irrevocable Transfer Agent Instructions dated
__________, 201_ from the Company and acknowledged and agreed to by
[ ].
MABVAX
THERAPEUTICS HOLDINGS, INC.
By:
Name:
Title:
Exhibit 10.1
SUBSCRIPTION AGREEMENT
This
Subscription Agreement (this “
Agreement
”) is being
delivered to the purchaser identified on the signature page to this
Agreement (the “
Subscriber
”) in
connection with its investment in the securities of
MabVax Therapeutics Holdings, Inc.
, a
Delaware
corporation (the
“
Company
”). The Company is
conducting a private placement (the “
Offering
”) of up to
$850,000
(the
“
Maximum Offering
Amount
”) of shares (the “
Common Shares
”) of the
Company’s common stock, par value $0
.01
per share (the “
Common Stock
”) (or, at
the election of any Subscriber, shares of Series H Convertible
Preferred Stock (the “
Preferred Shares
” and,
collectively with the Common Shares, the “
Shares
”), par value
$
0.01
per share, which are
convertible into shares of Common Stock (the “
Conversion Shares
”), with
such rights and designations as set forth in the form of
Certificate of Designation of Preferences, Rights and Limitations
of Series H Convertible Preferred Stock, attached hereto as
Exhibit A
, (the
“
Series H
Certificate of Designation
”). The Shares will be sold
at a purchase price (the “
Purchase Price
”) of
$1.75
per share of Common
Stock. For purposes of this Agreement, the term “
Securities
” shall refer
to the Shares, the Preferred Shares and the Conversion
Shares.
IMPORTANT INVESTOR NOTICES
NO
OFFERING LITERATURE OR ADVERTISEMENT IN ANY FORM MAY BE RELIED UPON
IN THE OFFERING OF THESE SECURITIES EXCEPT FOR THIS SUBSCRIPTION
AGREEMENT AND ANY SUPPLEMENTS HERETO, AND NO PERSON HAS BEEN
AUTHORIZED TO MAKE ANY REPRESENTATIONS EXCEPT THOSE CONTAINED
HEREIN.
UNTIL
SUCH TIME AS A FORM 8-K IS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION DISCLOSING THE TRANSACTIONS CONTEMPLATED HEREBY, THIS
AGREEMENT IS CONFIDENTIAL AND THE CONTENTS HEREOF MAY NOT BE
REPRODUCED, DISTRIBUTED OR DIVULGED BY OR TO ANY PERSONS OTHER THAN
THE RECIPIENT OR ITS REPRESENTATIVE, ACCOUNTANT OR LEGAL COUNSEL,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. EACH PERSON WHO
ACCEPTS DELIVERY OF THIS AGREEMENT, ACKNOWLEDGES AND AGREES TO THE
FOREGOING RESTRICTIONS.
THIS
AGREEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION OF AN OFFER
TO ANY PERSON OR IN ANY JURISDICTION WHERE SUCH OFFER OR
SOLICITATION IS UNLAWFUL OR NOT AUTHORIZED. EACH PERSON WHO ACCEPTS
DELIVERY OF THIS AGREEMENT AGREES TO RETURN IT AND ALL RELATED
DOCUMENTS IF SUCH PERSON DOES NOT PURCHASE ANY OF THE SECURITIES
DESCRIBED HEREIN.
THIS
AGREEMENT DOES NOT PURPORT TO BE ALL-INCLUSIVE OR TO CONTAIN ALL OF
THE INFORMATION THAT YOU MAY DESIRE IN EVALUATING THE COMPANY, OR
AN INVESTMENT IN THE OFFERING. THIS AGREEMENT DOES NOT CONTAIN ALL
OF THE INFORMATION THAT WOULD NORMALLY APPEAR IN A PROSPECTUS FOR
AN OFFERING REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). YOU MUST CONDUCT AND RELY ON
YOUR OWN EVALUATION OF THE COMPANY AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED, IN DECIDING WHETHER TO
INVEST IN THE OFFERING.
NEITHER
THE DELIVERY OF THIS AGREEMENT AT ANY TIME NOR ANY SALE OF
SECURITIES HEREUNDER SHALL IMPLY THAT INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THE COMPANY WILL
EXTEND TO EACH PROSPECTIVE SUBSCRIBER (AND TO ITS REPRESENTATIVE,
ACCOUNTANT OR LEGAL COUNSEL, IF ANY) THE OPPORTUNITY, PRIOR TO ITS
PURCHASE OF SHARES, TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM
THE COMPANY CONCERNING THE OFFERING AND TO OBTAIN ADDITIONAL
INFORMATION, TO THE EXTENT THE COMPANY POSSESSES THE SAME OR CAN
ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE, IN ORDER TO
VERIFY THE ACCURACY OF THE INFORMATION SET FORTH HEREIN. ALL SUCH
ADDITIONAL INFORMATION SHALL ONLY BE PROVIDED IN WRITING AND
IDENTIFIED AS SUCH BY THE COMPANY THROUGH ITS DULY AUTHORIZED
OFFICERS AND/OR DIRECTORS ALONE; NO ORAL INFORMATION OR INFORMATION
PROVIDED BY ANY BROKER OR THIRD PARTY MAY BE RELIED
UPON.
NO
REPRESENTATIONS, WARRANTIES OR ASSURANCES OF ANY KIND ARE MADE OR
SHOULD BE INFERRED WITH RESPECT TO THE ECONOMIC RETURN, IF ANY,
THAT MAY ACCRUE TO AN INVESTOR IN THE COMPANY.
FOR RESIDENTS OF ALL STATES
THIS
OFFERING IS BEING MADE SOLELY TO “ACCREDITED
INVESTORS,” AS SUCH TERM IS DEFINED IN RULE 501 OF REGULATION
D UNDER THE SECURITIES ACT. THE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND
WILL BE OFFERED AND SOLD IN RELIANCE UPON THE EXEMPTION FROM
REGISTRATION AFFORDED BY SECTION 4(a)(2) THEREUNDER AND REGULATION
D (RULE 506) OF THE SECURITIES ACT AND CORRESPONDING PROVISIONS OF
STATE SECURITIES LAWS.
THE
SECURITIES OFFERED HEREBY ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. SUBSCRIBERS
SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL
RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE
SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE
ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS
OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS AGREEMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PROSPECTIVE
SUBSCRIBERS SHOULD NOT CONSTRUE THE CONTENTS OF THIS AGREEMENT AS
INVESTMENT, LEGAL, BUSINESS, OR TAX ADVICE. EACH SUBSCRIBER SHOULD
CONTACT HIS, HER OR ITS OWN ADVISORS REGARDING THE APPROPRIATENESS
OF THIS INVESTMENT AND THE TAX CONSEQUENCES THEREOF, WHICH MAY
DIFFER DEPENDING ON A SUBSCRIBER’S PARTICULAR FINANCIAL
SITUATION. IN NO EVENT SHOULD THIS AGREEMENT BE DEEMED OR
CONSIDERED TO BE TAX ADVICE PROVIDED BY THE COMPANY.
FOR FLORIDA RESIDENTS ONLY
THE
SECURITIES REFERRED TO HEREIN WILL BE SOLD TO, AND ACQUIRED BY, THE
HOLDER IN A TRANSACTION EXEMPT UNDER § 517.061 OF THE FLORIDA
SECURITIES ACT. THE SECURITIES HAVE NOT BEEN REGISTERED UNDER SAID
ACT IN THE STATE OF FLORIDA. IN ADDITION, ALL FLORIDA RESIDENTS
SHALL HAVE THE PRIVILEGE OF VOIDING THE PURCHASE WITHIN THREE (3)
DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH
SUBSCRIBER TO THE COMPANY, AN AGENT OF THE COMPANY, OR AN ESCROW
AGENT OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE
IS COMMUNICATED TO SUCH SUBSCRIBER, WHICHEVER OCCURS
LATER.
1
.
SUBSCRIPTION
AND PURCHASE PRICE
(a)
Subscription
.
Subject to the conditions set forth in Section 2 hereof, the
Subscriber hereby subscribes for and agrees to purchase the number
of Shares indicated on the signature page hereof on the terms and
conditions described herein.
(b
)
Purchase of Shares
. The
Subscriber understands and acknowledges that the purchase price to
be remitted to the Company in exchange for the Shares shall be set
at $
[___]
per share of Common
Stock, for an aggregate purchase price as set forth on the
signature page hereof (the “
Aggregate Purchase
Price
”). The Subscriber’s delivery of this
Agreement to the Company shall be accompanied by payment for the
Shares subscribed for hereunder, payable in United States Dollars,
by wire transfer of immediately available funds delivered to the
Company. The Subscriber understands and agrees that, subject to
Section 2 and applicable laws, by executing this Agreement, it is
entering into a binding agreement. The Subscriber understands and
agrees that, subject to Section 2 and applicable laws, by executing
this Agreement, it is entering into a binding
agreement.
2.
ACCEPTANCE,
OFFERING TERM AND CLOSING PROCEDURES
(a
)
Acceptance
. Subject to full,
faithful and punctual performance and discharge by the Company of
all of its duties, obligations and responsibilities as set forth in
this Agreement, the Series H Certificate of Designation, the
Registration Rights Agreement (as defined below) and any other
agreement entered into between the Subscriber and the Company
relating to this subscription (collectively, the "
Transaction Documents
") to be
performed or discharged on or prior to the Closing in which such
Subscriber participates, the Subscriber shall be legally bound to
purchase the Shares pursuant to the terms and conditions set forth
in this Agreement. For the avoidance of doubt, upon the occurrence
of the failure by the Company to fully, faithfully and punctually
perform and discharge any of its duties, obligations and
responsibilities as set forth in any of the Transaction Documents,
which shall have been performed or otherwise discharged prior to
the Closing (as defined below), the Subscriber may, on or prior to
the Closing, at its sole and absolute discretion, elect not to
purchase the Shares and provide instructions to the Company to
receive the full and immediate refund of the Aggregate Purchase
Price. In the event the Closing does not take place because of (i)
the election not to purchase the Shares by the Subscriber or (ii)
the failure to effectuate the Closing (as defined below) on or
prior to May 31, 2017 (unless extended in the discretion of the
Board of Directors) for any reason or no reason, this Agreement and
any other Transaction Documents shall thereafter be terminated and
have no force or effect, and the parties shall take all steps,
including the execution of instructions to the Company, to ensure
that the Aggregate Purchase Price shall promptly be returned or
caused to be returned to the Subscriber without interest thereon or
deduction therefrom.
(b
)
Closing
. The closing of the
purchase and sale of the Shares hereunder (the “
Closing
”) shall take
place at such time and place as determined by the Company. Closings
shall take place on a Business Day promptly following the
satisfaction of the conditions set forth in Section 6 below, as
determined by the Company (the “
Closing Date
”).
“
Business
Day
” shall mean from the hours of 9:00 a.m. (Eastern
Time) through 5:00 p.m. (Eastern Time) of a day other than a
Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required to be closed. The Shares
purchased by the Subscriber will be delivered by the Company
promptly following the Final Closing Date (as defined herein) of
the Offering. The initial closing shall be referred to as the
“
Initial
Closing
” and may be held upon receipt and acceptance
of subscriptions prior to
May 8,
2017
. The date of the Initial Closing is sometimes referred
to as the “
Initial
Closing Date
.” Subsequent closings (each a
“
Subsequent
Closing
”) will be held until the earlier to occur of:
(i) the date on which the Maximum Offering Amount has been
subscribed for and accepted by the Company, and (ii)
May 31, 2017
. The Offering may be extended
up to
30 days
(the
“
Final
Closing
” and such date of the Final Closing, the
“
Final Closing
Date
”), without additional notice to Subscribers.
Officers, directors and affiliates of the Company and the placement
agent, if any, may purchase Securities in the Offering
(c
)
Following Acceptance or
Rejection
. The Subscriber acknowledges and agrees that this
Agreement and any other documents delivered in connection herewith
will be held by the Company. Prior to the Company’s
execution, in the event that this Agreement is not accepted by the
Company for whatever reason, which the Company expressly reserves
the right to do, this Agreement, the Aggregate Purchase Price
received (without interest thereon) and any other documents
delivered in connection herewith will be returned to the Subscriber
at the address of the Subscriber as set forth in this Agreement. If
this Agreement is accepted by the Company, the Company is entitled
to treat the Aggregate Purchase Price received as an interest free
loan to the Company until such time as the Subscription is
accepted.
(d
)
Intentionally
Omitted
.
(e
)
Extraordinary
Events Regarding Common Stock
. In the event that the Company
shall (a) issue additional shares of Common Stock as a
dividend or other distribution on outstanding Common Stock,
(b) subdivide its outstanding shares of Common Stock, or
(c) combine its outstanding shares of the Common Stock into a
smaller number of shares of Common Stock, then, in each such event,
the Purchase Price shall, simultaneously with the happening of such
event, be adjusted by multiplying the then Purchase Price by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such event and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event, and the product so
obtained shall thereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, shall be readjusted in the same
manner upon the happening of any successive event or events
described herein. The number of Shares that the Subscriber shall
thereafter be entitled to receive (including number of shares of
Conversion Shares the Subscriber may thereafter be entitled to
receive upon conversion of the Preferred Shares) shall be adjusted
to a number determined by multiplying the number of shares of
Common Stock that would otherwise (but for the provisions of this
Section) be issuable on such conversion or exercise by a fraction
of which (a) the numerator is the Purchase Price that would
otherwise (but for the provisions of this Section) be in effect,
and (b) the denominator is the Purchase Price then in
effect.
(f
)
Certificate as to Adjustments
.
In each case of any adjustment or readjustment in (i) the Shares,
(ii) the Preferred Shares, (iii) the number of Conversion Shares
issuable upon conversion of the Preferred Shares and (iv) the
conversion price of the Preferred Shares, the Company, at its
expense, will promptly cause its Chief Financial Officer or other
appropriate designee to compute such adjustment or readjustment in
accordance with the terms hereof and of the Series H Certificate of
Designation, and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based. The Company will
forthwith mail a copy of each such certificate to the Subscriber.
To the extent any such certificate contains material non-public
information, the Company shall, no later than the first Business
Day after the date of delivery of such certificate to the
Subscriber, include such material non-public information in a
Current Report on Form 8-K filed with the United States Securities
and Exchange Commission (the “
SEC
”). From and after the
filing of such Form 8-K, the Company shall have disclosed all
material non-public information (if any) delivered to the
Subscriber by the Company or any of its Subsidiaries, or any of
their respective officers, directors, employees or agents in
connection with the transactions described in such
certificate.
3.
THE
SUBSCRIBER’S REPRESENTATIONS, WARRANTIES AND
COVENANTS
Each
Subscriber, severally and not jointly, hereby acknowledges, agrees
with and represents, warrants and covenants to the Company, as
follows:
(a
)
The
Subscriber has full power and authority to enter into this
Agreement, the execution and delivery of which has been duly
authorized, if applicable, and this Agreement constitutes a valid
and legally binding obligation of the Subscriber, except as may be
limited by bankruptcy, reorganization, insolvency, moratorium and
similar laws of general application relating to or affecting the
enforcement of rights of creditors, and except as enforceability of
the obligations hereunder are subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or law).
(b
)
The
Subscriber acknowledges its understanding that the Offering and
sale of the Securities is intended to be exempt from registration
under the Securities Act, by virtue of Section 4(a)(2) of the
Securities Act and the provisions of Regulation D promulgated
thereunder (“
Regulation D
”). In
furtherance thereof, the Subscriber represents and warrants to the
Company and its affiliates as follows:
(i) The
Subscriber realizes that the basis for the exemption from
registration may not be available if, notwithstanding the
Subscriber’s representations contained herein, the Subscriber
is merely acquiring the Securities for a fixed or determinable
period in the future, or for a market rise, or for sale if the
market does not rise. The Subscriber does not have any such
intention.
(ii) The
Subscriber realizes that the basis for exemption would not be
available if the Offering is part of a plan or scheme to evade
registration provisions of the Securities Act or any applicable
state or federal securities laws, except sales pursuant to a
registration statement or sales that are exempted under the
Securities Act.
(iii) The
Subscriber is acquiring the Securities solely for the
Subscriber’s own beneficial account, for investment purposes,
and not with a view towards, or resale in connection with, any
distribution of the Securities.
(iv) The
Subscriber has the financial ability to bear the economic risk of
the Subscriber’s investment, has adequate means for providing
for its current needs and contingencies, and has no need for
liquidity with respect to an investment in the
Company.
(v) The
Subscriber and the Subscriber’s attorney, accountant,
purchaser representative and/or tax advisor, if any (collectively,
the “
Advisors
”) has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of a prospective
investment in the Securities. If other than an individual, the
Subscriber also represents it has not been organized solely for the
purpose of acquiring the Securities.
(vi) The
Subscriber (together with its Advisors, if any) has received all
documents requested by the Subscriber, if any, and has carefully
reviewed them and understands the information contained therein,
prior to the execution of this Agreement.
(c
)
The
Subscriber is not relying on the Company or any of its employees,
agents, sub-agents or advisors with respect to the legal, tax,
economic and related considerations involved in this investment.
The Subscriber has relied on the advice of, or has consulted with,
only its Advisors. Each Advisor, if any, has disclosed to the
Subscriber in writing (a copy of which is annexed to this
Agreement) the specific details of any and all past, present or
future relationships, actual or contemplated, between the Advisor
and the Company or any affiliate or sub-agent thereof.
(d
)
The
Subscriber has carefully considered the potential risks relating to
the Company and a purchase of the Securities, and fully understands
that the Securities are a speculative investment that involves a
high degree of risk of loss of the Subscriber’s entire
investment. Among other things, the Subscriber has carefully
considered each of the risks described under the heading
“
Risk Factors
”
and “
Forward Looking
Statements
” in the Company’s SEC Filings (as
defined below) and any additional disclosures in the nature of Risk
Factors described herein.
(e
)
The
Subscriber will not sell or otherwise transfer any Securities
without registration under the Securities Act or an exemption
therefrom, and fully understands and agrees that the Subscriber
must bear the economic risk of its purchase because, among other
reasons, the Securities have not been registered under the
Securities Act or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned or otherwise
disposed of unless they are subsequently registered under the
Securities Act and under the applicable securities laws of such
states, or an exemption from such registration is available. In
particular, the Subscriber is aware that the Securities are
“restricted securities,” as such term is defined in
Rule 144 promulgated under the Securities Act (“
Rule 144
”), and they may
not be sold pursuant to Rule 144 unless all of the conditions of
Rule 144 are met. The Subscriber also understands that the Company
is under no obligation to register the Securities on behalf of the
Subscriber or to assist the Subscriber in complying with any
exemption from registration under the Securities Act or applicable
state securities laws. The Subscriber understands that any sales or
transfers of the Securities are further restricted by state
securities laws and the provisions of this Agreement.
(f
)
No oral or
written representations or warranties have been made, or
information furnished, to the Subscriber or its Advisors, if any,
by the Company or any of its officers, employees, agents,
sub-agents, affiliates, advisors or subsidiaries in connection with
the Offering, other than any representations of the Company
contained herein, and in subscribing for the Shares the Subscriber
is not relying upon any representations other than those contained
herein.
(g
)
The
Subscriber’s overall commitment to investments that are not
readily marketable is not disproportionate to the
Subscriber’s net worth, and an investment in the Securities
will not cause such overall commitment to become
excessive.
(h
)
The
Subscriber understands and agrees that the certificates for the
Securities shall bear substantially the following
legend:
“[NEITHER THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE
BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN]
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES 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 TO
THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO
RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.”
(i
)
Certificates
evidencing Securities shall not be required to contain the legend
set forth in
Section 3(h)
above or any other legend (i) while a registration statement
covering the resale of such Securities is effective under the
Securities Act, (ii) following any sale of such Securities pursuant
to Rule 144 (assuming the transferor is not an affiliate of the
Company), (iii) if such Securities are eligible to be sold,
assigned or transferred under Rule 144 and the Subscriber is not an
affiliate of the Company (provided that the Subscriber provides the
Company with reasonable assurances that such Securities are
eligible for sale, assignment or transfer under Rule 144 which
shall not include an opinion of the Subscriber’s counsel),
(iv) in connection with a sale, assignment or other transfer (other
than under Rule 144), provided that the Subscriber provides the
Company with an opinion of counsel, in a form generally acceptable
to the Company, to the effect that such sale, assignment or
transfer of the Securities may be made without registration under
the applicable requirements of the Securities Act or (v) if such
legend is not required under applicable requirements of the
Securities Act (including, without limitation, controlling judicial
interpretations and pronouncements issued by the SEC). If a legend
is not required pursuant to the foregoing, the Company shall no
later than three (3) business days following the delivery by the
Subscriber to the Company or the transfer agent (with notice to the
Company) of a legended certificate representing such Securities
(endorsed or with stock powers attached, signatures guaranteed, and
otherwise in form necessary to affect the reissuance and/or
transfer, if applicable), together with any other deliveries from
the Subscriber as may be required above in this
Section 3(i), as directed by the Subscriber,
either: (A) provided that the Company’s transfer agent is
participating in the DTC Fast Automated Securities Transfer Program
and such Securities are Common Shares or Conversion Shares, credit
the aggregate number of shares of Common Stock to which the
Subscriber shall be entitled to the Subscriber’s or its
designee’s balance account with DTC through its
Deposit/Withdrawal at Custodian system or (B) if the
Company’s transfer agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and deliver (via
reputable overnight courier) to the Subscriber, a certificate
representing such Securities that is free from all restrictive and
other legends, registered in the name of the Subscriber or its
designee. The Company shall be responsible for any transfer agent
fees or DTC fees with respect to any issuance of Securities or the
removal of any legends with respect to any Securities in accordance
herewith.
(j
)
Neither the
SEC nor any state securities commission has approved the Securities
or passed upon or endorsed the merits of the Offering. There is no
government or other insurance covering any of the
Securities.
(k
)
The
Subscriber and its Advisors, if any, have had a reasonable
opportunity to ask questions of and receive answers from a person
or persons acting on behalf of the Company concerning the Offering
and the business, financial condition, results of operations and
prospects of the Company, and all such questions have been answered
to the full satisfaction of the Subscriber and its Advisors, if
any.
(l) (i) In
making the decision to invest in the Securities the Subscriber has
relied solely upon the information provided by the Company in the
Transaction Documents. To the extent necessary, the Subscriber has
retained, at its own expense, and relied upon appropriate
professional advice regarding the investment, tax and legal merits
and consequences of this Agreement and the purchase of the
Securities hereunder. The Subscriber disclaims reliance on any
statements made or information provided by any person or entity in
the course of Subscriber’s consideration of an investment in
the Securities other than the Transaction Documents.
(ii) The
Subscriber represents and warrants that: (i) the Subscriber was
contacted regarding the sale of the Securities by the Company (or
an authorized agent or representative thereof) with whom the
Subscriber had a prior substantial pre-existing relationship and
(ii) no Securities were offered or sold to it by means of any form
of general solicitation or general advertising, and in connection
therewith, the Subscriber did not (A) receive or review any
advertisement, article, notice or other communication published in
a newspaper or magazine or similar media or broadcast over
television or radio, whether closed circuit, or generally
available; or (B) attend any seminar meeting or industry investor
conference whose attendees were invited by any general solicitation
or general advertising; or (C) observe any website or filing of the
Company with the SEC in which any offering of securities by the
Company was described and as a result learned of any offering of
securities by the Company.
(m
)
The
Subscriber has taken no action that would give rise to any claim by
any person for brokerage commissions, finders’ fees or the
like relating to this Agreement or the transactions contemplated
hereby.
(n
)
The
Subscriber is not relying on the Company or any of its employees,
agents, or advisors with respect to the legal, tax, economic and
related considerations of an investment in the Securities, and the
Subscriber has relied on the advice of, or has consulted with, only
its own Advisors.
(o
)
The
Subscriber acknowledges that any estimates or forward-looking
statements or projections furnished by the Company to the
Subscriber were prepared by the management of the Company in good
faith, but that the attainment of any such projections, estimates
or forward-looking statements cannot be guaranteed by the Company
or its management and should not be relied upon.
(p
)
No oral or
written representations have been made, or oral or written
information furnished, to the Subscriber or its Advisors, if any,
in connection with the Offering that are in any way inconsistent
with the information contained herein.
(q
)
(For ERISA
plans only) The fiduciary of the ERISA plan (the
“Plan”) represents that such fiduciary has been
informed of and understands the Company’s investment
objectives, policies and strategies, and that the decision to
invest “plan assets” (as such term is defined in ERISA)
in the Company is consistent with the provisions of ERISA that
require diversification of plan assets and impose other fiduciary
responsibilities. The Subscriber or Plan fiduciary (i) is
responsible for the decision to invest in the Company; (ii) is
independent of the Company and any of its affiliates; (iii) is
qualified to make such investment decision; and (iv) in making such
decision, the Subscriber or Plan fiduciary has not relied primarily
on any advice or recommendation of the Company or any of its
affiliates.
(r
)
This
Agreement is not enforceable by the Subscriber unless it has been
accepted by the Company, and the Subscriber acknowledges and agrees
that the Company reserves the right to reject any subscription for
any reason.
(s
)
The
Subscriber is an “Accredited Investor” as defined in
Rule 501(a) under the Securities Act. In general, an
“Accredited Investor” is deemed to be an institution
with assets in excess of $5,000,000 or individuals with a net worth
in excess of $1,000,000 (excluding such person’s residence)
or annual income exceeding $200,000 or $300,000 jointly with his or
her spouse.
(t
)
The
Subscriber, either alone or together with its representatives, has
such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the Offering, and has so evaluated the merits and risks of
such investment. The Subscriber has not authorized any person or
entity to act as its Purchaser Representative (as that term is
defined in Regulation D of the General Rules and Regulations under
the Securities Act) in connection with the Offering. The Subscriber
is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete
loss of such investment.
4.
THE
COMPANY’S REPRESENTATIONS, WARRANTIES AND
COVENANTS
The
Company hereby acknowledges, agrees with and represents, warrants
and covenants to each Subscriber as of the date hereof and as of
the Closing Date, except as otherwise qualified by the SEC Filings,
as follows:
(a
)
Organization and Qualification
.
The Company is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation. The
Company is duly qualified to do business, and is in good standing
in the states required due to (a) the ownership or lease of real or
personal property for use in the operation of the Company's
business or (b) the nature of the business conducted by the
Company, except where the failure to so qualify would not,
individually or in the aggregate, have a Material Adverse Effect.
The Company has all requisite power, right and authority to own,
operate and lease its properties and assets, to carry on its
business as now conducted, to execute, deliver and perform its
obligations under this Agreement and the other Transaction
Documents to which it is a party, and to carry out the transactions
contemplated hereby and thereby, subject to the Required Approvals.
All actions on the part of the Company and its officers and
directors necessary for the authorization, execution, delivery and
performance of this Agreement and the other Transaction Documents,
the consummation of the transactions contemplated hereby and
thereby, and the performance of all of the Company's obligations
under this Agreement and the other Transaction Documents have been
taken or will be taken prior to the Closing. This Agreement has
been, and the other Transaction Documents to which the Company is a
party on the Closing will be, duly executed and delivered by the
Company, and this Agreement is, and each of the other Transaction
Documents to which it is a party on the Closing will be, a legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as may be limited
by bankruptcy, reorganization, insolvency, moratorium and similar
laws of general application relating to or affecting the
enforcement of rights of creditors, and except as enforceability of
the obligations hereunder are subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or law).
(b
)
Issuance of Securities
. The
Securities to be issued to the Subscriber pursuant to this
Agreement and the applicable Transaction Documents, when issued and
delivered in accordance with the terms of this Agreement and the
applicable Transaction Documents, will be duly and validly issued
and will be fully paid and non-assessable and the Conversion
Shares, when issued and delivered in accordance with the Series H
Certificate of Designation, will be duly and validly issued and
will be fully paid and non-assessable.
(c
)
Authorization; Enforcement
. The
execution, delivery and performance of this Agreement and the other
Transaction Documents by the Company, and the consummation of the
transactions contemplated hereby and thereby, will not (a)
constitute a violation (with or without the giving of notice or
lapse of time, or both) of any provision of any law or any
judgment, decree, order, regulation or rule of any court, agency or
other governmental authority applicable to the Company, (b) require
any consent, approval or authorization of, or declaration, filing
or registration with, any person, (c) result in a default (with or
without the giving of notice or lapse of time, or both) under,
acceleration or termination of, or the creation in any party of the
right to accelerate, terminate, modify or cancel, any agreement,
lease, note or other restriction, encumbrance, obligation or
liability to which the Company is a party or by which it is bound
or to which any assets of the Company are subject, (d) result in
the creation of any lien or encumbrance upon the assets of the
Company, or upon any shares of Common Stock, preferred stock or
other securities of the Company, (e) conflict with or result in a
breach of or constitute a default under any provision of the
articles of incorporation or bylaws of the Company, or (f)
invalidate or adversely affect any permit, license, authorization
or status used in the conduct of the business of the
Company.
(d
)
Filings, Consents and Approvals
The Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of the
Transaction Documents, other than: (i) approval
(“
NASDAQ
Approval
”) of the issuance and listing of the
securities by and on The NASDAQ Stock Market LLC
(“
NASDAQ
”), (ii) approval
of the Company’s stockholders of the Offering, which, if
required by NASDAQ, has been obtained prior to the date hereof,
(iii) the filing of Form D with the SEC and such filings as are
required to be made under applicable state securities laws or (iv)
the consent of the lead investor in the Company’s August 2016
public offering (collectively, the “
Required
Approvals
”).
(e
)
SEC Filings
. The Company is
subject to, and in full compliance with, the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “
Exchange Act
”). The
Company has made available to each Subscriber through the EDGAR
system true and complete copies of the Company’s filings for
the prior two full fiscal years plus any interim period
(collectively, the “
SEC Filings
”), and all
such SEC Filings are incorporated herein by reference. The SEC
Filings, when they were filed with the SEC (or, if any amendment
with respect to any such document was filed, when such amendment
was filed), complied in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations
thereunder and did not, as of such date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. All reports and statements required
to be filed by the Company under the Exchange Act have been filed,
together with all exhibits required to be filed therewith. The
Company and each of its direct and indirect subsidiaries, if any
(collectively, the “
Subsidiaries
”), are
engaged in all material respects only in the business described in
the SEC Filings, and the SEC Filings contain a complete and
accurate description in all material respects of the business of
the Company and the Subsidiaries.
(f
)
No Financial Advisor
. The
Company acknowledges and agrees that each Subscriber is acting
solely in the capacity of an arm’s length purchaser with
respect to the Securities and the transactions contemplated hereby.
The Company further acknowledges that Subscriber is not acting as a
financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by any Subscriber or any
of its representatives or agents in connection with this Agreement
and the transactions contemplated hereby is merely incidental to
such Subscriber’s purchase of the Securities. The Company
further represents to each Subscriber that the Company’s
decision to enter into this Agreement has been based solely on the
independent evaluation of the transactions contemplated hereby by
the Company and its representatives.
(g
)
Indemnification
. The Company
will indemnify and hold harmless each Subscriber and, where
applicable, its directors, officers, employees, agents, advisors
and shareholders (each, an “
Indemnitee
”, from and
against any and all loss, liability, claim, damage and expense
whatsoever (including, but not limited to, any and all fees, costs
and expenses whatsoever reasonably incurred in investigating,
preparing or defending against any claim, lawsuit, administrative
proceeding or investigation whether commenced or threatened) (the
“
Indemnified
Liabilities
”), incurred by any Indemnitee as a result
of, or arising out of, or relating to (i) any misrepresentation or
breach of any representation or warranty made by the Company or any
Subsidiary in any of the Transaction Documents, (ii) any breach of
any covenant, agreement or obligation of the Company or any
Subsidiary contained in any of the Transaction Documents or (iii)
any cause of action, suit, proceeding or claim brought or made
against such Indemnitee by a third party (including for these
purposes a derivative action brought on behalf of the Company or
any Subsidiary) or which otherwise involves such Indemnitee that
arises out of or results from (A) the execution, delivery,
performance or enforcement of any of the Transaction Documents, (B)
any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the issuance of the
Securities, or (C) the status of such Subscriber or holder of the
Securities either as an investor in the Company pursuant to the
transactions contemplated by the Transaction Documents or as a
party to this Agreement (including, without limitation, as a party
in interest or otherwise in any action or proceeding for injunctive
or other equitable relief). To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(h
)
Capitalization and Additional
Issuances.
The capitalization of the Company is as set
forth in the SEC Filings. The Company has not issued any capital
stock since its
most recently filed
periodic report under the Exchange Act
. Except as set forth
in the SEC Filings, no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction
Documents. Except as disclosed in the SEC Filings, there are no
outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe
for or acquire any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock equivalents. Except as set forth in
the SEC Filings, the issuance and sale of the Securities will not
obligate the Company to issue shares of Common Stock or other
securities to any Person (other than the Subscribers) and will not
result in a right of any holder of Company
securities
to adjust the exercise, conversion, exchange or reset price under
any of such securities. All of the outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in material compliance
with all federal and state securities laws, and none of such
outstanding shares was issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. No
further approval or authorization of any stockholder, the Board of
Directors or others is required for the issuance and sale of the
Securities. Except for NASDAQ Approval, no further approval or
authorization of any stockholder, the Board of Directors or others
is required for the issuance and sale of the Securities. Except as
disclosed in the SEC Filings, there are no stockholders agreements,
voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the
Company’s stockholders.
(i
)
Private
Placements
. Assuming the
accuracy of each Subscriber’s representations and warranties
set forth in Section 3, no registration under the Securities Act is
required for the offer and sale of the Securities by the Company to
the Subscribers as contemplated hereby.
(j
)
Investment
Company
. The Company is not,
and is not an affiliate of, and immediately after receipt of
payment for the Shares will not be or be an affiliate of, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not become subject
to the Investment Company Act.
(k
)
Reporting
Company/
Shell
Company Status
. The Company is a publicly-held company
subject to reporting obligations pursuant to Sections 12(g) and 13
of the Exchange Act. Pursuant to the provisions of the Exchange
Act, the Company has timely filed all reports and other materials
required to be filed by the Company thereunder with the SEC during
the preceding twelve months. The Company, as of the Closing Date,
is not, and has never been, a “shell company”, as that
term is employed in Rule 144 under the Securities Act. The Company
is in full compliance with the continued listing requirements of
NASDAQ and has no reason to believe that it will not in the
foreseeable future continue to be in compliance with all such
listing and maintenance requirements.
(l
)
Litigation
. Except as set forth
in the SEC Filings, there is no action, suit, proceeding, inquiry
or investigation before or by the Trading Market, any court, public
board, other Governmental Entity, self-regulatory organization or
body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the
Common Stock or any of the Company’s or its
Subsidiaries’ officers or directors which is outside of the
ordinary course of business or individually or in the aggregate
material to the Company or any of its Subsidiaries. No
director, officer or employee of the Company or any of its
Subsidiaries has willfully violated 18 U.S.C. §1519 or engaged
in spoliation in reasonable anticipation of litigation.
Without limitation of the foregoing, there has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any of its
Subsidiaries or any current or former director or officer of the
Company or any of its Subsidiaries. The SEC has not issued
any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Securities
Act or the Exchange Act. “
Governmental Entity
”
means any nation, state, county, city, town, village, district, or
other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or
quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and
any court or other tribunal), multi-national organization or body;
or body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature or instrumentality of any of the
foregoing, including any entity or enterprise owned or controlled
by a government or a public international organization or any of
the foregoing. “
Trading Market
” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the New York
Stock Exchange, the NYSE MKT, The NASDAQ Capital Market, The NASDAQ
Global Market, The NASDAQ Global Select Market, OTCQX, OTCQB, or
the OTC Bulletin Board (or any successors to any of the
foregoing).
(m
)
Employee Relations
. Neither the
Company nor any of its Subsidiaries is a party to any collective
bargaining agreement or employs any member of a union. The
Company believes that its and its Subsidiaries’ relations
with their respective employees are good. The Company and its
Subsidiaries are in compliance with all federal, state, local and
foreign laws and regulations respecting labor, employment and
employment practices and benefits, terms and conditions of
employment and wages and hours, except where failure to be in
compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
“
Material Adverse
Effect
” means any material adverse effect on (i) the
business, properties, assets, liabilities, operations (including
results thereof), condition (financial or otherwise) or prospects
of the Company or any Subsidiary, individually or taken as a whole,
(ii) the transactions contemplated hereby or in any of the other
Transaction Documents or (iii) the authority or ability of the
Company or any of its Subsidiaries to perform any of their
respective obligations under any of the Transaction
Documents.
(n
)
Tax Status
. The Company and
each of its Subsidiaries (i) has timely made or filed all foreign,
federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject,
(ii) has timely paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being
contested in good faith and (iii) has set aside on its books
provision reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company and its Subsidiaries
know of no basis for any such claim. The Company is not
operated in such a manner as to qualify as a passive foreign
investment company, as defined in Section 1297 of the U.S. Internal
Revenue Code of 1986, as amended.
(o
)
Indebtedness and Other
Contracts
. Except as set forth in the SEC Filings, neither
the Company nor any of its Subsidiaries, (i) has any outstanding
Indebtedness (as defined below), (ii) is a party to any contract,
agreement or instrument, the violation of which, or default under
which, by the other party(ies) to such contract, agreement or
instrument could reasonably be expected to result in a Material
Adverse Effect, (iii) is in violation of any term of, or in default
under, any contract, agreement or instrument relating to any
Indebtedness, except where such violations and defaults would not
result, individually or in the aggregate, in a Material Adverse
Effect, or (iv) is a party to any contract, agreement or instrument
relating to any Indebtedness, the performance of which, in the
judgment of the Company’s officers, has or is expected to
have a Material Adverse Effect. For purposes of this
Agreement: (x) “
Indebtedness
” of any
Person means, without duplication (A) all indebtedness for borrowed
money, (B) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (including, without
limitation, “capital leases” in accordance with
generally accepted accounting principles) obligations with respect
to letters of credit, surety bonds and other similar instruments,
(D) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in
either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and
remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property), (F)
all monetary obligations under any leasing or similar arrangement
which, in connection with generally accepted accounting principles,
consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any mortgage, claim, lien, tax, right of first refusal,
pledge, charge, security interest or other encumbrance upon or in
any property or assets (including accounts and contract rights)
owned by any Person, even though the Person which owns such assets
or property has not assumed or become liable for the payment of
such indebtedness, and (H) all Contingent Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (A) through (G) above; (y) “
Contingent Obligation
”
means, as to any Person, any direct or indirect liability,
contingent or otherwise, of that Person with respect to any
indebtedness, lease, dividend or other obligation of another Person
if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid
or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto;
and (z) “
Person
” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and any Governmental Entity or any department or
agency thereof.
(p
)
No Undisclosed Events, Liabilities,
Developments or Circumstances
. Since the date of the latest
audited financial statements included within the SEC Filings,
except as specifically disclosed in a subsequent SEC Filing: (i)
there has been no event, occurrence or development that has had or
that could reasonably be expected to result in a Material Adverse
Effect, (ii) the Company has not incurred any material liabilities
(contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or
disclosed in filings made with the SEC, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) except
as set forth in the SEC Filings, Company has not issued any equity
securities to any officer, director or Affiliate. The Company does
not have pending before the SEC any request for confidential
treatment of information. Except for the issuance of the Securities
contemplated by this Agreement or as set forth in the SEC Filings,
no event, liability, fact, circumstance, occurrence or development
has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective
businesses, properties, operations, assets or financial condition,
that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least two
Trading Days prior to the date that this representation is
made
.
(q
)
No Additional
Agreements
. Neither the Company
nor any of its Subsidiaries has any agreement or understanding with
any Subscriber with respect to the transactions contemplated by the
Transaction Documents other than pursuant to documents
substantially identical to the Transaction
Documents.
(r
)
No Disqualification
Events
. To the
Company’s knowledge, none of the Company, any of its
predecessors, any affiliated issuer, any director, executive
officer, other officer of the Company participating in the offering
contemplated hereby, any beneficial owner of 20% or more of the
Company's outstanding voting equity securities, calculated on the
basis of voting power, nor any promoter (as that term is defined in
Rule 405 under the Securities Act) connected with the Company in
any capacity at the time of sale (each, an “
Issuer Covered Person
”)
is subject to any of the "Bad Actor" di
squalifications described in Rule
506(d)(1)(i) to (viii) under the Securities Act (a
“
Disqualification
Event
”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a
Disqualification Event.
(s
)
General
Solicitation
.
None of the Company, any
of its affiliates (as defined in Rule 501(b) under the Securities
Act) or any person acting on behalf of the Company or such
affiliate will solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D, including: (i)
any advertisement, article, notice or other communication published
in any newspaper, magazine or similar medium or broadcast over
television or radio; and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(t
)
Compliance
. To the
Company’s knowledge, neither the Company nor any Subsidiary:
(i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received
notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or
any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any judgment,
decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute,
rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local
laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and
labor matters, except in each case as could not have or reasonably
be expected to result in a Material Adverse Effect.
(u
)
Regulatory Permits
. The Company
and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective
businesses as described in the SEC Filings, except where the
failure to possess such permits could not reasonably be expected to
result in a Material Adverse Effect (“
Material Permits
”), and
neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any
Material Permit.
(v
)
Title to Assets
. The Company
and the Subsidiaries have good and marketable title in fee simple
to all real property (if any) owned by them and good and marketable
title in all personal property owned by them that is material to
the business of the Company and the Subsidiaries, in each case free
and clear of all liens, except for (i) liens as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and the Subsidiaries and (ii) liens for the payment of
federal, state or other taxes, for which appropriate reserves have
been made in accordance with GAAP and, the payment of which is
neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in
compliance.
(w
)
Intellectual
Property
.
1.
The term
“
Intellectual
Property Rights
” includes:
(a)
the
name of the Company and each Subsidiary, all fictional business
names, trading names, registered and unregistered trademarks,
service marks, and applications of the Company and each Subsidiary
(collectively, “
Marks''
);
(b)
all patents, patent
applications, and inventions and discoveries that may be patentable
of the Company and each Subsidiary (collectively,
“
Patents''
);
(c)
all copyrights in
both published works and published works of the Company and each
Subsidiary (collectively, “
Copyrights
”);
(d)
all rights in mask
works of the Company and each Subsidiary (collectively,
“
Rights in Mask
Works''
); and
(e)
all know-how, trade
secrets, confidential information, customer lists, software,
technical information, data, process technology, plans, drawings,
and blue prints (collectively, “
Trade Secrets''
); owned, used,
or licensed by the Company and each Subsidiary as licensee or
licensor.
2.
Know-How Necessary for the
Business
. The Intellectual Property Rights are all those
necessary for the operation of the Company’s businesses as it
is currently conducted or as represented, in writing, to the
Subscriber to be conducted. The Company is the owner of all right,
title, and interest in and to each of the Intellectual Property
Rights, free and clear of all liens, security interests, charges,
encumbrances, equities, and other adverse claims, and has the right
to use all of the Intellectual Property Rights. To the
Company’s knowledge, no employee of the Company has entered
into any contract that restricts or limits in any way the scope or
type of work in which the employee may be engaged or requires the
employee to transfer, assign, or disclose information concerning
his work to anyone other than of the Company.
3.
Patents
. The Company is the
owner of all right, title and interest in and to each of the
Patents, free and clear of all liens and other adverse claims,
purchase price payments, or license agreements now or hereafter
existing).
4.
Trademarks
. The Company is the
owner of all right, title, and interest in and to each of the
Marks, free and clear of all liens and other adverse claims. All
Marks that have been registered with the United States Patent and
Trademark Office are currently in compliance with all formal legal
requirements (including the timely post-registration filing of
affidavits of use and incontestability and renewal applications),
are valid and enforceable, and are not subject to any maintenance
fees or taxes or actions falling due within ninety days after the
Closing Date.
5.
Copyrights
. The Company is the
owner of all right, title, and interest in and to each of the
Copyrights, free and clear of all liens and other adverse claims.
All the Copyrights have been registered and are currently in
compliance with formal requirements, are valid and enforceable, and
are not subject to any maintenance fees or taxes or actions falling
due within ninety days after the date of the Closing
6.
Trade
Secrets
. With respect to each Trade Secret, the
documentation relating to such Trade Secret is current, accurate,
and sufficient in detail and content to identify and explain it and
to allow its full and proper use without reliance on the knowledge
or memory of any individual. The Company has taken all reasonable
precautions to protect the secrecy, confidentiality, and value of
its Trade Secrets. The Company has good title and an absolute right
to use the Trade Secrets. The Trade Secrets are not part of the
public knowledge or literature, and, to the Company’s
knowledge, have not been used, divulged, or appropriated either for
the benefit of any Person (other the Company) or to the detriment
of the Company. No Trade Secret is subject to any adverse claim or
has been challenged or threatened in any way.
(x
)
Stock Option Plans
. Each stock
option granted by the Company under the stock option plan was
granted (i) in accordance with the terms of such stock option plan
and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be
considered granted under GAAP and applicable law. No stock option
granted under any stock option plan has been backdated. The Company
has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or
otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial
results or prospects.
(y
)
Office of Foreign Assets
Control
. Neither the Company nor any Subsidiary nor, to the
Company's knowledge, any director, officer, agent, employee or
affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“
OFAC
”).
(z
)
Listing
and Maintenance Requirements
. The Common Stock is quoted The NASDAQ
Capital Market under the symbol “MBVX”. The Company has
not, except as disclosed in the SEC Filings, in the twenty-four
(24) months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading
Market.
(aa
)
Regulation M Compliance
.
The Company has not, and to its knowledge no one acting on its
behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of any of the Securities, (ii) sold, bid for, purchased, or
paid any compensation for soliciting purchases of, any of the
Securities, or (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other
securities of the Company.
(bb
)
Money Laundering
. The
operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance in all material respects with
applicable financial record-keeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules
and regulations thereunder (collectively, the “
Money Laundering Laws
”),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened
(cc
)
Acknowledgment
Regarding Subscriber’s Trading Activity
. Anything in this Agreement or elsewhere herein
to the contrary notwithstanding, it is understood and acknowledged
by the Company that: (i) none of the Subscribers has been asked by
the Company to agree, nor has any Subscriber agreed, to desist from
purchasing or selling, long and/or short, securities of the
Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified
term, (ii) past or future open market or other transactions by any
Subscriber, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the
closing of this or future private placement transactions, may
negatively impact the market price of the Company’s
publicly-traded securities, (iii) any Subscriber, and
counter-parties in “derivative” transactions to which
any such Subscriber is a party, directly or indirectly, may
presently have a “short” position in the Common Stock
and (iv) each Subscriber shall not be deemed to have any
affiliation with or control over any arm’s length
counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) one or
more Subscribers may engage in hedging activities at various times
during the period that the Securities are
outstanding,
including, without limitation, during the periods that the value of
the Common Shares or Conversion Shares deliverable with respect to
Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders'
equity interests in the Company at and after the time that the
hedging activities are being conducted. The Company
acknowledges that such aforementioned hedging activities do not
constitute a breach of any of the Transaction Documents.
There are no disagreements of any kind
presently existing, or reasonably anticipated by the Company to
arise, between the Company and the accountants and lawyers formerly
or presently employed by the Company and the Company is current
with respect to any fees owed to its accountants and lawyers
which
could
affect the
Company’s ability to perform any of its obligations under any
of the Transaction Documents.
(dd
)
Acknowledgment Regarding
Subscribers’ Purchase of Securities
. The Company
acknowledges and agrees that each of the Subscribers is acting
solely in the capacity of an arm’s length Subscriber with
respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no
Subscriber is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and
any advice given by any Subscriber or any of their respective
representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely
incidental to the Subscribers’ purchase of the Securities.
The Company further represents to each Subscriber that the
Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company
and its representatives.
(ee
)
No Integrated Offering
.
Assuming the accuracy of the Subscribers’ representations and
warranties set forth in Section 3, neither the Company, nor any of
its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with
prior offerings by the Company for purposes of: (i) the Securities
Act which would require the registration of any such securities
under the Securities Act, or (ii) any applicable shareholder
approval provisions of any Trading Market on which any of the
securities of the Company are listed or designated.
(ff
)
Application of Takeover
Protections
. The Company and the Board of Directors will
have taken as of the Closing Date all necessary action, if any, in
order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under
the Company’s certificate of incorporation (or similar
charter documents) or the laws of its state of incorporation that
is or could become applicable to the Subscribers as a result of the
Subscribers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including
without limitation as a result of the Company’s issuance of
the Securities and the Subscribers’ ownership of the
Securities.
(gg
)
Registration Rights
. No Person
other than the Subscribers herein has any right to cause the
Company or any Subsidiary to effect the registration under the
Securities Act of any securities of the Company or any
Subsidiary.
(hh
)
Certain Fees
. No brokerage,
finder’s fees, commissions or due diligence fees are or will
be payable by the Company or any Subsidiary to any broker,
financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the
transactions contemplated by the Transaction Documents. The
Subscribers shall have no obligation with respect to any such fees
or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section 4(hh) that may be
due in connection with the transactions contemplated by the
Transaction Documents.
(ii
)
Sarbanes-Oxley; Internal Accounting
Controls
. Except as set forth in the SEC Filings, the
Company and the Subsidiaries are in material compliance with any
and all applicable requirements of the Sarbanes-Oxley Act of 2002
that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof and as of the
Closing Date. Except as set forth in the
Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in
conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as set forth in the SEC Filings,
the Company and the Subsidiaries have established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) for the Company and the Subsidiaries and designed
such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of
the end of the period covered by the most recently filed periodic
report under the Exchange Act (such date, the
“
Evaluation
Date
”). The Company
presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act)
of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its
Subsidiaries.
(jj
)
Transactions With Affiliates and
Employees
. Except as set forth in the SEC Filings, none of
the officers or directors of the Company or any Subsidiary and, to
the knowledge of the Company, none of the employees of the Company
or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or
otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of $50,000 other than for: (i)
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(kk
)
Insurance
. The Company and the
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which the Company
and the Subsidiaries are engaged, including, but not limited to,
directors and officers insurance coverage at least equal to the
Aggregate Purchase Price. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary
to continue its business without a significant increase in
cost.
(ll
)
Disclosure
. The Company
confirms that neither it nor any other Person acting on its behalf
has provided any of the Subscribers or their agents or counsel with
any information that constitutes or could reasonably be expected to
constitute material, non-public information regarding the Company
or any of its Subsidiaries, other than the existence of the
transactions contemplated by this Agreement and the other
Transaction Documents. The Company understands and confirms that
each of the Subscribers will rely on the foregoing representations
in effecting transactions in securities of the Company. All
disclosure provided to the Subscribers regarding the Company and
its Subsidiaries, their businesses and the transactions
contemplated hereby, including the schedules to this Agreement,
furnished by or on behalf of the Company or any of its Subsidiaries
is true and correct and does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. No event
or circumstance has occurred or information exists with respect to
the Company or any of its Subsidiaries or its or their business,
properties, liabilities, prospects, operations (including results
thereof) or conditions (financial or otherwise), which, under
applicable law, rule or regulation, requires public disclosure at
or before the date hereof or announcement by the Company but which
has not been so publicly disclosed. The Company acknowledges and
agrees that no Subscriber makes or has made any representations or
warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.
(mm
)
Foreign Corrupt Practices
.
Neither the Company nor any Subsidiary, to the knowledge of the
Company or any Subsidiary, any agent or other person acting on
behalf of the Company or any Subsidiary, has: (i) directly or
indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or
domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any
foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the
Company or any Subsidiary (or made by any person acting on its
behalf of which the Company is aware) which is in violation of law
or (iv) violated in any material respect any provision of Foreign
Corrupt Practices Act.
(nn
)
U.S. Real Property Holding
Corporation
. The Company is not and has never been a U.S.
real property holding corporation within the meaning of Section 897
of the Internal Revenue Code of 1986, as amended, and the Company
shall so certify upon Subscriber’s request.
(oo
)
Bank Holding Company Act
.
Neither the Company nor any of its Subsidiaries or affiliates is
subject to the Bank Holding Company Act of 1956, as amended (the
“
BHCA
”)
and to regulation by the Board of Governors of the Federal Reserve
System (the “
Federal
Reserve
”). Neither the Company nor any of its
Subsidiaries or affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or affiliates exercises a controlling
influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal
Reserve.
(pp
)
Notice of Disqualification
Events
. The Company will notify the Subscriber in writing,
prior to the Closing Date of (i) any Disqualification Event
relating to any Issuer Covered Person and (ii) any event that
would, with the passage of time, become a Disqualification Event
relating to any Issuer Covered Person
(qq
)
Survival
. The foregoing
representations and warranties shall survive the
Closing.
5.
OTHER
AGREEMENTS OF THE PARTIES
(a
)
Furnishing
of Information
. As long as any
Subscriber owns Securities,
the Company covenants
to timely file (or obtain extensions
in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. As long as any Subscriber owns
Securities, if the Company is not required to file reports pursuant
to the Exchange Act,
it will
prepare and furnish to the Subscribers and make
publicly available in accordance with Rule 144(c) under the
Securities Act such information as is required for the Subscribers
to sell the Securities under Rule 144.
The Company further
covenants that it will
take such
further action as any holder of Securities may reasonably request,
at the sole cost and expense of the Company including transfer
agent and legal opinion fees and expenses, all to the extent
required from time to time to enable such person to sell such
Securities without registration under the Securities Act within the
limitation of the exemptions proved by Rule 144 under the
Securities Act.
(b
)
Shareholder
Rights Plan
. No claim will be
made or enforced by the Company or, to the knowledge of the
Company, any other person that any Subscriber is an
“Acquiring Person” under any shareholder rights plan or
similar plan or arrangement in effect or hereafter adopted by the
Company, or that any Subscriber could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other
agreement between the Company and the
Subscribers.
(c
)
Securities
Laws Disclosure; Publicity
.
The Company shall by 8:30 a.m. (New York
City time) (a) on the first Business Day after this Agreement has
been executed, issue a press release disclosing the material terms
of the transactions contemplated hereby and (b) within four (4)
Business Days after this Agreement has been executed, file a
Current Report on Form 8-K with the SEC (the “
8-K Filing”
). From and
after the issuance of such press release and the filing of the 8-K
Filing, the Company shall have publicly disclosed all material,
non-public information delivered to any of the Subscribers by the
Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents.
The Company and each Subscriber shall consult with
each other in issuing
any press releases with respect to the transactions contemplated
hereby, and no Subscriber shall issue any such press release or
otherwise make any such public statement without the prior consent
of the Company, which consent shall not unreasonably be withheld.
Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Subscriber, or include the name of any
Subscriber in any filing with the SEC or any regulatory agency,
without the prior written consent of such Subscriber, except to the
extent such disclosure is required by law
in which case the
Company shall provide the Subscribers with prior notice of such
disclosure or if such disclosure is pursuant to the Registration
Rights set forth in Section 7 herein and the Registration Rights
Agreement
. The Company understands
that any such disclosure shall cause irreparable harm and each
Subscriber shall be entitled to injunctive relief and liquidated
damages in connection therewith.
(d
)
Integration
.
The Company shall not, and shall use its best efforts to ensure
that no affiliate of the Company shall, after the date hereof,
sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security that would be integrated with
the offer or sale of the Shares in a manner that would require the
registration under the Securities Act of the sale of the Shares to
the Subscribers.
(e
)
Reservation
of Securities
.
(i
)
The
Company shall maintain a reserve from its duly authorized shares of
Common Stock for issuance pursuant to the Transaction Documents in
such amount as may then be required to fulfill its obligations in
full under the Transaction Documents, but not less than 100% of the
maximum number of shares of Common Stock issuable pursuant to the
Transaction Documents (the “
Required
Minimum
”).
(ii
)
If, on any
date, the number of authorized but unissued (and otherwise
unreserved) shares of Common Stock is less than the Required
Minimum on such date, then the Board of Directors shall approve the
amendment of the Company’s Charter to increase the number of
authorized but unissued shares of Common Stock to at least the
Required Minimum and submit such amendment to the Company’s
stockholders for approval, as soon as possible and in any event not
later than the 90
th
day after such
date.
(iii
)
The Company
shall, if applicable: (i) in the time and manner required by The
NASDAQ Capital Market or such other principal market on which the
Company’s Common Stock is then primarily traded (the
“
Principal
Market”)
, prepare and file with such Principal Market
an additional shares listing application covering a number of
shares of Common Stock at least equal to the Required Minimum on
the date of such application, (ii) take all steps necessary to
cause such shares of Common Stock to be approved for listing or
quotation on such Principal Market as soon as possible thereafter,
(iii) provide to the Subscribers evidence of such listing or
quotation and (iv) maintain the listing or quotation of such Common
Stock on any date at least equal to the Required Minimum on such
date on such Principal Market or another Principal Market.
The Company will then take all
commercially reasonable action necessary to continue the listing or
quotation and trading of its Common Stock on a Principal Market for
as long as any Subscriber holds Securities, and will comply in all
material respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of the Principal Market
at least until five years after the Closing Date.
In the
event the aforedescribed listing is not continuously maintained for
five years after the Closing Date (a “
Listing Default
”), then
in addition to any other rights the Subscribers may have hereunder
or under applicable law, on the first day of a Listing Default and
on each monthly anniversary of each such Listing Default date (if
the applicable Listing Default shall not have been cured by such
date) until the applicable Listing Default is cured, the Company
shall pay to each Subscriber an amount in cash, as partial
liquidated damages and not as a penalty, equal to 1% of (x)
Aggregate Purchase Price of Shares or Conversion Shares calculated
on an “as converted” basis, as the case may be, held by
such Subscriber on the date of a Listing Default and (y) the
aggregate purchase price of Shares held by such Subscriber on the
day of a Listing Default and on every thirtieth day (pro-rated for
periods less than thirty days) thereafter with respect to Shares
(or “as converted” Conversion Shares) held as of each
such date until the date such Listing Default is cured or
Subscriber no longer holds any Shares, Preferred Shares or
Conversion Shares. If the Company fails to pay any liquidated
damages pursuant to this Section in a timely manner, the Company
will pay interest thereon at a rate of 1.5% per month (pro-rated
for partial months) to the Subscriber, up to a maximum of sixteen
(16%) percent for such interest and liquidated damages amounts,
collectively.
(f
)
Use
of Proceeds
.
The Company
anticipates using the gross proceeds from the Offering as set forth
on
Exhibit
B
.
(g
)
Non-Public Information
. Except
with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company
covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Subscriber or its agents or counsel
with any information that the Company believes constitutes or could
constitute material non-public information, and each Subscriber
agrees, and shall direct its agents and counsel not to, request any
material non-public information from the Company or any Person
acting on its behalf, unless prior thereto such Subscriber shall
have executed a written agreement with the Company regarding the
willingness to accept receipt of such material non-public
information and acknowledges the confidentiality and use of such
information and the Company’s covenant to file a further SEC
filing or report and the period in which such information shall
remain confidential or be required to not be disclosed. The Company
understands and confirms that each Subscriber shall be relying on
the foregoing covenant in effecting transactions in securities of
the Company. In addition, effective upon the filing of the 8-K
Filing, the Company acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between the Company and any of its Subsidiaries or
any of their respective officers, directors, affiliates, employees
or agents, on the one hand, and the Subscriber or any of its
affiliates on the other hand, shall terminate.
(h
)
Capital
Changes
. Until the one year anniversary of the Closing Date,
the Company shall not undertake a reverse or forward stock split or
reclassification of the Common Stock without 10 days prior written
notice to the Subscribers, unless such reverse split is made in
conjunction with the listing of the Common Stock on a national
securities exchange or maintaining compliance with such
listing.
(i
)
DTC
Program
. From the Closing Date
until such time as no Subscriber holds any of the Securities (such
date, the “
Release
Date
”), the Company shall
use its best efforts to employ as the transfer agent for the Common
Shares and the Conversion Shares a participant in the Depository
Trust Company Automated Securities Transfer Program (FAST) and
cause the Common Stock to be transferable pursuant to such
program.
(j
)
Form
D and Blue Sky
.
The
Company shall file a Form D with respect to the Securities as
required under Regulation D and to provide a copy thereof to each
Subscriber promptly after such filing. The availability of the
filed Form D on EDGAR shall satisfy the foregoing delivery
requirement. The Company shall, on or before the Closing Date, take
such action as the Company shall reasonably determine is necessary
in order to obtain an exemption for, or to, qualify the Securities
for sale to the Subscribers at the Closing pursuant to this
Agreement under applicable securities or “Blue Sky”
laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such
action so taken to the Subscribers on or prior to the Closing Date.
Without limiting any other obligation of the Company under this
Agreement, the Company shall timely make all filings and reports
relating to the offer and sale of the Securities required under all
applicable securities laws (including, without limitation, all
applicable federal securities laws and all applicable “Blue
Sky” laws), and the Company shall comply with all applicable
federal, foreign, state and local laws, statutes, rules,
regulations and the like relating to the offering and sale of the
Securities to the Subscribers.
(k
)
Restriction on Redemption and Cash
Dividends
. From the date hereof through the Release Date,
the Company shall not, directly or indirectly, redeem, or declare
or pay any cash dividend or distribution on, any securities of the
Company without the prior express written consent of the
Subscribers holding a majority of the then outstanding
Shares.
(l
)
Corporate Existence
. From the
date hereof through the Release Date, the Company shall not be
party to any Fundamental Transaction (as defined in the Series H
Certificate of Designation) unless the Company is in compliance
with the applicable provisions governing Fundamental Transactions
set forth in the Series H Certificate of Designation.
(m
)
Conversion Procedures
. Each of
the form of Notice of Conversion included in the Series H
Certificate of Designation set forth the totality of the procedures
required of the Subscribers in order to convert the Preferred
Shares. No legal opinion, other information or instructions shall
be required of the Subscribers to convert their Preferred Shares
(other than customary 144 representation letters if such Preferred
Shares are to be sold in reliance upon the exemption provided by to
Rule 144). The Company shall honor conversions of the Preferred
Shares and shall deliver the Conversion Shares in accordance with
the terms, conditions and time periods set forth in the Series H
Certificate of Designation.
(n
)
Closing Documents
. On or prior
to fourteen (14) calendar days after the Closing Date, the Company
agrees to deliver, or cause to be delivered, to each Subscriber
executed copies of the Transaction Documents and other document
required to be delivered to any party pursuant to this
Agreement.
(o
)
Fees
. The Company shall be
responsible for the payment of any placement agent’s fees,
financial advisory fees, transfer agent fees, DTC fees or
broker’s commissions (other than for Persons engaged by any
Subscriber) relating to or arising out of the transactions
contemplated hereby. The Company (subject to the foregoing
qualification) shall pay, and hold each Subscriber harmless
against, any liability, loss or expense (including, without
limitation, reasonable attorneys’ fees and out-of-pocket
expenses) arising in connection with any claim relating to any such
payment. For the avoidance of doubt, the Company will not be
responsible for the costs associated with any legal opinions
required to be rendered to the Company’s transfer agent in
connection with the lifting of any legends on the
Securities.
6. CONDITIONS
TO ACCEPTANCE OF SUBSCRIPTION
(a
)
The Closing
of the sale of the Shares is conditioned upon satisfaction of the
following conditions precedent on or before the Closing
Date:
(i
)
As of the Closing, no legal action, suit or proceeding shall be
pending against the Company that seeks to restrain or prohibit the
transactions contemplated by this Agreement.
(ii
)
The representations and warranties of the Company and the
Subscribers contained in this Agreement shall have been true and
correct in all material respects on the date of this Agreement
(except whether such representations are qualified by material or
material adverse effect, which shall be true and correct in all
respects) and shall be true and correct as of the Closing as if
made on the Closing Date and the Company shall have performed,
satisfied and complied in all respects with the covenants,
agreements and conditions required to be performed, satisfied or
complied with by the Company in connection with the consummation of
the transactions contemplated by the Transaction Documents at or
prior to the Closing Date.
(iii
)
The Company shall deliver to the Subscribers a file stamped copy of
the filed Series H Certificate of Designation, filed with the
Secretary of State of the State of Delaware, which shall not have
been amended, waived, modified or revoked by the
Company.
7.
REGISTRATION RIGHTS.
The Company shall file a
“resale” registration statement with the SEC covering
100% of the Shares and the Conversion Shares issued or issuable to
the Subscriber, so that such shares of Common Stock will be
registered under the Securities Act. The description of
registration rights is qualified in its entirety by reference to
Registration Rights Agreement annexed hereto as Exhibit C (the
“
Registration Rights
Agreement
”).
8.
MISCELLANEOUS PROVISIONS
(a
)
All parties
hereto have been represented by counsel, and no inference shall be
drawn in favor of or against any party by virtue of the fact that
such party’s counsel was or was not the principal draftsman
of this Agreement.
(b
)
Each of the
parties hereto shall be responsible to pay the costs and expenses
of its own legal counsel in connection with the preparation and
review of this Agreement and related documentation.
(c
)
Neither this
Agreement, nor any provisions hereof, shall be waived, modified,
discharged or terminated except by an instrument in writing signed
by the party against whom any waiver, modification, discharge or
termination is sought.
(d
)
The
representations, warranties and agreement of each Subscriber and
the Company made in this Agreement shall survive the execution and
delivery of this Agreement and the delivery of the
Securities.
(e
)
Any party
may send any notice, request, demand, claim or other communication
hereunder to the Subscriber at the address set forth on the
signature page of this Agreement or to the Company at its primary
office (including personal delivery, expedited courier, messenger
service, fax, ordinary mail or electronic mail), but no such
notice, request, demand, claim or other communication will be
deemed to have been duly given unless and until it actually is
received by the intended recipient. Any party may change the
address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other
parties written notice in the manner herein set forth.
(f
)
Except as
otherwise provided herein, this Agreement shall be binding upon,
and inure to the benefit of, the parties to this Agreement and
their heirs, executors, administrators, successors, legal
representatives and assigns. If any Subscriber is more than one
person or entity, the obligation of any Subscriber shall be joint
and several and the agreements, representations, warranties and
acknowledgments contained herein shall be deemed to be made by, and
be binding upon, each such person or entity and its heirs,
executors, administrators, successors, legal representatives and
assigns. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
(g
)
This
Agreement is not transferable or assignable by the
Company.
(h
)
The Company
hereby represents and warrants as of the date hereof and as of any
Closing Date that none of the terms offered to any Person with
respect to any offer, sale or subscription of Securities (each a
"
Subscription
Document
"), is or will be more favorable to such Person than
those of the Subscriber and this Agreement shall be, without any
further action by the Subscriber or the Company, deemed amended and
modified in an economically and legally equivalent manner such that
the Subscriber shall receive the benefit of the more favorable
terms contained in such Subscription Document. Notwithstanding the
foregoing, the Company agrees, at its expense, to take such other
actions (such as entering into amendments to the Transaction
Documents) as the Subscriber may reasonably request to further
effectuate the foregoing.
(i
)
The
obligations of each Subscriber under any Transaction Document are
several and not joint with the obligations of any other Subscriber,
and no Subscriber shall be responsible in any way for the
performance or non-performance of the obligations of any other
Subscriber under any Transaction Document. Nothing contained herein
or in any other Transaction Document, and no action taken by any
Subscriber pursuant hereto or thereto, shall be deemed to
constitute the Subscribers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption
that the Subscribers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Subscriber shall be entitled to
independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the
other Transaction Documents, and it shall not be necessary for any
other Subscriber to be joined as an additional party in any
proceeding for such purpose. Each Subscriber has been represented
by its own separate legal counsel in its review and negotiation of
the Transaction Documents. The Company has elected to provide all
Subscribers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or
requested to do so by any of the Subscribers. It is expressly
understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the
Company and a Subscriber, solely, and not between the Company and
the Subscribers collectively and not between and among the
Subscribers. The Company acknowledges that any actions of
Subscribers now, and in the future, in which (A) any review or
approval is sought by the Company, including, without limitation,
review, approval or acceptance of any reportable event required to
be reported in any SEC filing or report by the Company; or (B) any
amendment, waiver, right of first refusal, participation right,
acquisition or financing, including any acquisition or financing is
proposed, introduced, offered or arranged by any one or more
Subscribers or their affiliates or sought by the Company,
shall
not be
claimed by the Company or any person seeking to assert such a claim
on behalf of the Company, to constitute the forming of any
“Group” as such term is defined under Section 13(d) or
Section 16 of the Exchange Act, nor shall any activity permit the
Company or any third party holder of securities of the Company to
assert any claim that any beneficial ownership limitations or
conversion limitations of the Series H Certificate of Designation
have been exceeded and such Subscriber, alone or in conjunction
with others, constitutes a “Group” for purposes of the
Exchange Act as a result thereof.
(j
)
Except as
otherwise provided herein, this Agreement shall not be changed,
modified or amended and no right hereunder shall be waived, except
in writing signed by both (a) the Company and (b) Subscribers
holding at least 60% of the Shares sold in the Offering outstanding
on the date of determination. The Company shall be prohibited from
offering any additional consideration to any Subscriber in this
Offering (or such original Subscriber’s transferee) for the
purposes of inducing such person to change, modify, waive or amend
any term of this Agreement or any other Transaction Document
without making the same offer on a pro-rata basis to all other
Subscribers (and those transferees) in this Offering allocable to
the securities acquired by such transferee(s).
(k
)
This
Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to conflicts
of law principles.
(l
)
The Company
and each Subscriber hereby agree that any dispute that may arise
between them arising out of or in connection with this Agreement
shall be adjudicated before a court located in the City of New
York, Borough of Manhattan, and they hereby submit to the exclusive
jurisdiction of the federal and state courts of the State of New
York located in the City of New York, Borough of Manhattan with
respect to any action or legal proceeding commenced by any party,
and irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in
such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement or
any acts or omissions relating to the sale of the securities
hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail,
return receipt requested, postage prepaid, in care of the address
set forth herein or such other address as either party shall
furnish in writing to the other.
(m
)
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR
PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY,
UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY
JURY.
(n
)
This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(o
)
Legal Representation
. Each
party hereto acknowledges that it has been represented by
independent legal counsel in the preparation of the Agreement and
each party waives any conflicts of interest and other allegations
that it has not been represented by its own counsel
[Signature
Pages Follow]
ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN
WITNESS WHEREOF, the Subscriber has executed this Agreement on the
____ day of May, 2017.
|
|
x
$[___] for per share of Common Stock =
|
|
|
Shares
subscribed for
|
|
Aggregate
Purchase Price
|
Election
to Purchase Preferred Shares: ________ (check here)
Manner
in which Title is to be held (Please Check
One
):
|
1.
|
___
|
Individual
|
7.
|
___
|
Trust/Estate/Pension
or Profit sharing Plan
Date
Opened:______________
|
|
2.
|
___
|
Joint
Tenants with Right of Survivorship
|
8.
|
___
|
As a
Custodian for
________________________________
Under
the Uniform Gift to Minors Act of the State of
________________________________
|
|
3.
|
___
|
Community
Property
|
9.
|
___
|
Married
with Separate Property
|
|
4.
|
___
|
Tenants
in Common
|
10.
|
___
|
Keogh
|
|
5.
|
___
|
Corporation/Partnership/
Limited Liability Company
|
11.
|
___
|
Tenants
by the Entirety
|
|
6.
|
___
|
IRA
|
|
|
|
ALTERNATIVE
DISTRIBUTION INFORMATION
To
direct distribution to a party other than the registered owner,
complete the information below. YOU MUST COMPLETE THIS SECTION IF
THIS IS AN IRA INVESTMENT.
Name of
Firm (Bank, Brokerage, Custodian):
Account
Name:
Account
Number:
Representative
Name:
Representative
Phone Number:
Address:
City,
State, Zip:
IF MORE
THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL
SUBSCRIBERS MUST COMPLETE THIS PAGE.
SUBSCRIBERS
WHICH ARE ENTITIES MUST COMPLETE THE FOLLOWING PAGE.
EXECUTION BY NATURAL PERSONS
|
_____________________________________________________________________________
Exact
Name in Which Title is to be Held
|
|
_________________________________
Name
(Please Print)
|
|
_________________________________
Name of
Additional Purchaser
|
|
_________________________________
Residence:
Number and Street
|
|
_________________________________
Address
of Additional Purchaser
|
|
_________________________________
City,
State and Zip Code
|
|
_________________________________
City,
State and Zip Code
|
|
_________________________________
Social
Security Number
|
|
_________________________________
Social
Security Number
|
|
_________________________________
Telephone
Number
|
|
_________________________________
Telephone
Number
|
|
_________________________________
Fax
Number (if available)
|
|
________________________________
Fax
Number (if available)
|
|
_________________________________
E-Mail
(if available)
|
|
________________________________
E-Mail
(if available)
|
|
__________________________________
(Signature)
|
|
________________________________
(Signature
of Additional Purchaser)
|
|
ACCEPTED
this ___ day of _________ 2017, on behalf of the
Company.
|
|
|
By: _________________________________
Name:
Title:
|
|
|
|
[SIGNATURE PAGE FOR SUBSCRIPTION AGREEMENT]
EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation,
Partnership, LLC, Trust, Etc.)
|
_____________________________________________________________________________
Name of
Entity (Please Print)
|
|
Date of
Incorporation or Organization:
|
|
State
of Principal Office:
|
|
Federal
Taxpayer Identification Number:
____________________________________________
Office
Address
____________________________________________
City,
State and Zip Code
____________________________________________
Telephone
Number
____________________________________________
Fax
Number (if available)
____________________________________________
E-Mail
(if available)
|
|
|
By:
_________________________________Name:Title:
|
|
[seal]
Attest:
_________________________________
(If
Entity is a Corporation)
|
_________________________________
_________________________________
Address
|
|
|
|
|
ACCEPTED this ____
day of __________ 2017, on behalf of the Company.
|
|
|
By:
_________________________________Name: Title:
|
[SIGNATURE PAGE FOR SUBSCRIPTION AGREEMENT]
INVESTOR QUESTIONNAIRE
Instructions: Check all boxes below which correctly describe
you.
☐
You are
(
i
) a bank, as
defined in Section 3(a)(2) of the Securities Act of 1933, as
amended (the “
Securities Act
”),
(
ii
) a savings and
loan association or other institution, as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in an individual
or fiduciary capacity, (
iii
) a broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of
1934, as amended (the “
Exchange Act
”),
(
iv
) an insurance
company as defined in Section 2(13) of the Securities Act,
(
v
) an investment
company registered under the Investment Company Act of 1940, as
amended (the “
Investment Company Act
”),
(
vi
) a business
development company as defined in Section 2(a)(48) of the
Investment Company Act, (
vii
) a Small Business
Investment Company licensed by the U.S. Small Business
Administration under Section 301 (c) or (d) of the Small Business
Investment Act of 1958, as amended, (
viii
) a plan established and
maintained by a state, its political subdivisions, or an agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees and you have total assets in excess of
$5,000,000, or (
ix
)
an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended
(“
ERISA
”) and (1) the
decision that you shall subscribe for and purchase Shares, is made
by a plan fiduciary, as defined in Section 3(21) of ERISA, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or (2) you have total assets in
excess of $5,000,000 and the decision that you shall subscribe for
and purchase the Shares is made solely by persons or entities that
are accredited investors, as defined in Rule 501 of Regulation D
promulgated under the Securities Act (“
Regulation D
”) or (3) you
are a self-directed plan and the decision that you shall subscribe
for and purchase the Securities is made solely by persons or
entities that are accredited investors.
☐
You are a private
business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940, as amended.
☐
You are an
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended (the “
Code
”), a corporation,
Massachusetts or similar business trust or a partnership, in each
case not formed for the specific purpose of making an investment in
the Securities and its underlying securities in excess of
$5,000,000.
☐
You are a director
or executive officer of the Company.
☐
You are a natural
person whose individual net worth, or joint net worth with your
spouse, exceeds $1,000,000 (excluding residence) at the time of
your subscription for and purchase of the Securities.
☐
You are a natural
person who had an individual income in excess of $200,000 in each
of the two most recent years or joint income with your spouse in
excess of $300,000 in each of the two most recent years, and who
has a reasonable expectation of reaching the same income level in
the current year.
☐
You are a trust,
with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Securities and whose subscription
for and purchase of the Securities is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) of Regulation
D.
☐
You are an entity
in which all of the equity owners are persons or entities described
in one of the preceding paragraphs.
Check all boxes below which correctly describe you.
With
respect to this investment in the Securities, your:
Investment
Objectives:
Aggressive
Growth
Speculation
Risk
Tolerance:
☐
Low
Risk
☐
Moderate
Risk
High Risk
Are you associated
with a FINRA Member
Firm?
☐
Yes
☐
No
Your initials (purchaser and co-purchaser, if applicable) are
required for each item below:
____
____
I/We understand
that this investment is not guaranteed.
____
____
I/We are aware that
this investment is not liquid.
____
____
I/We are
sophisticated in financial and business affairs and are able to
evaluate the risks and merits of an investment in this
offering.
____
____
I/We confirm that
this investment is considered “high risk.” (This type
of investment is considered high risk due to the inherent risks
including lack of liquidity and lack of diversification.
Success or
failure
of private placements such as this is dependent on the corporate
issuer of these securities and is outside the control of the
investors. While potential loss is limited to the amount invested,
such loss is possible.)
The
Subscriber hereby represents and warrants that all of its answers
to this Investor Questionnaire are true as of the date of its
execution of the Subscription Agreement pursuant to which it
purchased the Securities.
|
___________________________________Name
of Purchaser [please print]
___________________________________
Signature
of Purchaser (Entities please
provide
signature of Purchaser’s duly
authorized
signatory.)
___________________________________
Name of
Signatory (Entities only)
___________________________________
Title
of Signatory (Entities only)
|
___________________________________Name
of Co-Purchaser [please print]
___________________________________
Signature
of Co-Purchaser
|
[SIGNATURE PAGE FOR INVESTOR QUESTIONNAIRE]
EXHIBIT A
CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS
OF SERIES H CONVERTIBLE PREFERRED STOCK
See
Attached.
EXHIBIT B
USE OF PROCEEDS
For continuing development of the Company’s research
and clinical development programs and working capital.
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
See
attached.
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “
Agreement
”) is made and
entered into as of May [__], 2017, between MabVax Therapeutics
Holdings, Inc, a Delaware corporation (the “
Company
”), and each of
the several purchasers signatory hereto (each such purchaser, a
“
Purchaser
” and,
collectively, the “
Purchasers
”).
This
Agreement is made pursuant to the Subscription Agreement, dated as
of the date hereof, between the Company and each Purchaser (the
“
Subscription
Agreement
”).
The
Company and each Purchaser hereby agrees as follows:
Capitalized terms used and not otherwise
defined herein that are defined in the Subscription Agreement shall
have the meanings given such terms in the Subscription
Agreement.
As used in this Agreement, the following terms
shall have the following meanings:
“
Advice
” shall have the
meaning set forth in Section 6(d).
“
Commission
” means the
United States Securities and Exchange Commission.
“
Effectiveness Date
”
means, with respect to the Initial Registration Statement required
to be filed hereunder, the 60
th
calendar day
following the date hereof (or, in the event of a “full
review” by the Commission, the 120
th
calendar day
following the date hereof) and with respect to any additional
Registration Statements which may be required pursuant to Section
2(c) or Section 3(c), the 45
th
calendar day
following the date on which an additional Registration Statement is
required to be filed hereunder (or, in the event of a “full
review” by the Commission, the 75
th
calendar day
following the date such additional Registration Statement is
required to be filed hereunder);
provided
,
however
, that in the event the
Company is notified by the Commission that one or more of the above
Registration Statements will not be reviewed or is no longer
subject to further review and comments, the Effectiveness Date as
to such Registration Statement shall be the fifth Trading Day
following the date on which the Company is so notified if such date
precedes the dates otherwise required above, provided, further, if
such Effectiveness Date falls on a day that is not a Trading Day,
then the Effectiveness Date shall be the next succeeding Trading
Day.
“
Effectiveness Period
”
shall have the meaning set forth in Section 2(a).
“
Event
” shall have the
meaning set forth in Section 2(d).
“
Event Date
” shall have
the meaning set forth in Section 2(d).
“
Filing Date
” means, with
respect to the Initial Registration Statement required hereunder,
the 30
th
calendar day following the Closing Date and, with respect to any
additional Registration Statements which may be required pursuant
to Section 2(c) or Section 3(c), the earliest practical date on
which the Company is permitted by SEC Guidance to file such
additional Registration Statement related to the Registrable
Securities.
“
Holder
” or
“
Holders
” means the holder
or holders, as the case may be, from time to time of Registrable
Securities.
“
Indemnified Party
” shall
have the meaning set forth in Section 5(c).
“
Indemnifying Party
” shall
have the meaning set forth in Section 5(c).
“
Initial Registration
Statement
” means the initial Registration Statement
filed pursuant to this Agreement.
“
Losses
” shall have the
meaning set forth in Section 5(a).
“
Plan of Distribution
”
shall have the meaning set forth in Section 2(a).
“
Prospectus
” means the
prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated by
the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“
Registrable Securities
”
means (a) the Common Shares issued pursuant to the Subscription
Agreement, (b) all Conversion Shares issuable upon conversion of
the Preferred Shares (assuming on such date all Preferred Shares
are converted in full without regard to any conversion limitations
therein), and (c) any securities issued or then issuable upon any
stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing;
provided,
however
, that any such
Registrable Securities shall cease to be Registrable Securities
(and the Company shall not be required to maintain the
effectiveness of any, or file another, Registration Statement
hereunder with respect thereto) for so long as (a) a Registration
Statement with respect to the sale of such Registrable Securities
is declared effective by the Commission under the Securities Act
and such Registrable Securities have been disposed of by the Holder
in accordance with such effective Registration Statement, (b) such
Registrable Securities have been previously sold in accordance with
Rule 144, or (c) such securities become eligible for resale without
volume or manner-of-sale restrictions and without current public
information pursuant to Rule 144 as set forth in a written opinion
letter to such effect, addressed, delivered and acceptable to the
Transfer Agent and the affected Holders (assuming that such
securities and any securities issuable upon exercise, conversion or
exchange of which, or as a dividend upon which, such securities
were issued or are issuable, were at no time held by any Affiliate
of the Company), as reasonably determined by the Company, upon the
advice of counsel to the Company.
“
Registration Statement
”
means any registration statement required to be filed hereunder
pursuant to Section 2(a) and any additional registration statements
contemplated by Section 2(c) or Section 3(c), including (in each
case) the Prospectus, amendments and supplements to any such
registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference
in any such registration statement.
“
Rule 415
” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“
Rule 424
” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“
Selling Stockholder
Questionnaire
” shall have the meaning set forth in
Section 3(a).
“
SEC Guidance
” means (i)
any publicly-available written or oral guidance of the Commission
staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“
Trading Day
” means the
hours of 9:00 a.m. (Eastern Time) through 5:00 p.m. (Eastern Time)
of a day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required
to be closed.
(a) On
or prior to each Filing Date, the Company shall prepare and file
with the Commission a Registration Statement covering the resale of
all of the Registrable Securities that are not then registered on
an effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415. Each Registration Statement
filed hereunder shall be on Form S-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on
Form S-3, in which case such registration shall be on another
appropriate form in accordance herewith, such as Form S-1, subject
to the provisions of Section 2(e)) and shall contain (unless
otherwise directed by at least 51% in interest of the Holders)
substantially the “
Plan of Distribution
”
attached hereto as
Annex
A
, provided, however, that no Holder shall be required to be
named as an “underwriter” without such Holder’s
express written consent. Subject to the terms of this Agreement,
the Company shall use its reasonable best efforts to cause a
Registration Statement filed under this Agreement, (including,
without limitation, under Section 3(c)) to be declared effective
under the Securities Act as promptly as possible after the filing
thereof, but in any event no later than the applicable
Effectiveness Date, and shall use its best efforts to keep such
Registration Statement continuously effective under the Securities
Act until the date that all Registrable Securities covered by such
Registration Statement (i) have been sold, thereunder or pursuant
to Rule 144, or (ii) may be sold without volume or manner-of-sale
restrictions pursuant to Rule 144 and without the requirement for
the Company to be in compliance with the current public information
requirement under Rule 144, as determined by the counsel to the
Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Transfer Agent and the affected
Holders (the “
Effectiveness Period
”).
The Company shall telephonically request effectiveness of a
Registration Statement as of 5:00 p.m. Eastern Time on a Trading
Day. The Company shall immediately notify the Holders via facsimile
or by e-mail of the effectiveness of a Registration Statement on
the same Trading Day that the Company telephonically confirms
effectiveness with the Commission, which shall be the date
requested for effectiveness of such Registration Statement. The
Company shall, by 9:30 a.m. Eastern Time on the Trading Day after
the effective date of such Registration Statement, file a final
Prospectus with the Commission as required by Rule 424. Failure to
so notify the Holder within two (2) Trading Days of such
notification of effectiveness or failure to file a final Prospectus
as foresaid shall be deemed an Event under Section
2(d).
(b)
Notwithstanding the registration obligations set forth in Section
2(a), and subject to the payment of liquidated damages pursuant to
Section 2(d), if the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of
Rule 415, be registered for resale as a secondary offering on a
single registration statement, the Company agrees to promptly
inform each of the Holders thereof and use its commercially
reasonable efforts to file amendments to the Initial Registration
Statement as required by the Commission, covering the maximum
number of Registrable Securities permitted to be registered by the
Commission, on Form S-3 or such other form available to register
for resale the Registrable Securities as a secondary offering,
subject to the provisions of Section 2(e); with respect to filing
on Form S-3 or other appropriate form, and subject to the
provisions of Section 2(d) with respect to the payment of
liquidated damages;
provided
,
however
, that prior to filing
such amendment, the Company shall be obligated to use diligent
efforts to advocate with the Commission for the registration of all
of the Registrable Securities in accordance with the SEC Guidance,
including without limitation, Compliance and Disclosure
Interpretation 612.09.
(c)
Notwithstanding any other provision of this Agreement, if the
Commission or any SEC Guidance sets forth a limitation on the
number of Registrable Securities permitted to be registered on a
particular Registration Statement as a secondary offering (and
notwithstanding that the Company used diligent efforts to advocate
with the Commission for the registration of all or a greater
portion of Registrable Securities), unless otherwise directed in
writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration
Statement will be reduced as follows:
a.
First,
the Company shall reduce or eliminate any securities to be included
other than Registrable Securities; and
b.
Second,
the Company shall reduce Registrable Securities represented by
Common Shares and Conversion Shares, on a pro rata basis based on
the total number of Common Shares and Conversion Shares held by
such Holders.
In
the event of a cutback hereunder, the Company shall give the Holder
at least five (5) Trading Days prior written notice along with the
calculations as to such Holder’s allotment. In the event the
Company amends the Initial Registration Statement in accordance
with the foregoing, the Company will use its best efforts to file
with the Commission, as promptly as allowed by Commission or SEC
Guidance provided to the Company or to registrants of securities in
general, one or more registration statements on Form S-3 or such
other form available to register for resale those Registrable
Securities that were not registered for resale on the Initial
Registration Statement, as amended.
(d) If:
(i) the Initial Registration Statement is not filed on or prior to
its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review
and comment on the same as required by Section 3(a) herein, the
Company shall be deemed to have not satisfied this clause (i)), or
(ii) the Company fails to file with the Commission a request for
acceleration of a Registration Statement in accordance with Rule
461 promulgated by the Commission pursuant to the Securities Act,
within five Trading Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the Commission that
such Registration Statement will not be “reviewed” or
will not be subject to further review, or (iii) prior to the
effective date of a Registration Statement, the Company fails to
file a pre-effective amendment and otherwise respond in writing to
comments made by the Commission in respect of such Registration
Statement within ten (10) calendar days after the receipt of
comments by or notice from the Commission that such amendment is
required in order for such Registration Statement to be declared
effective, or (iv) a Registration Statement registering for resale
all of the Registrable Securities is not declared effective by the
Commission by the Effectiveness Date of the Initial Registration
Statement, or (v) after the Effective Date and prior to the
termination of the Effectiveness Period, such Registration
Statement ceases for any reason to remain continuously effective as
to all Registrable Securities included in such Registration
Statement, or the Holders are otherwise not permitted to utilize
the Prospectus therein to resell such Registrable Securities, for
more than ten (10) consecutive Trading Days or more than an
aggregate of twenty (20) Trading Days (which need not be
consecutive Trading Days) during any 12-month period (any such
failure or breach being referred to as an “
Event
”, and for purposes
of clauses (i) and (iv), the date on which such Event occurs, and
for purpose of clause (ii), the date on which such five (5) Trading
Day period is exceeded, and for purpose of clause (iii), the date
which such ten (10) calendar day period is exceeded, and for
purpose of clause (v), the date on which such ten (10) or twenty
(20) Trading Day period, as applicable, is exceeded being referred
to as “
Event
Date
”), then, in addition to any other rights the
Holders may have hereunder or under applicable law, on each such
Event Date and on each monthly anniversary of each such Event Date
(if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, the Company shall pay to each
Holder an amount in cash, as partial liquidated damages and not as
a penalty, equal to the product of 1.0% multiplied by the aggregate
Subscription Amount paid by such Holder pursuant to the
Subscription Agreement up to a maximum of 12%. If the Company fails
to pay any partial liquidated damages pursuant to this Section in
full within seven days after the date payable, the Company will pay
interest thereon at a rate of 18% per annum (or such lesser maximum
amount that is permitted to be paid by applicable law) to the
Holder, accruing daily from the date such partial liquidated
damages are due until such amounts, plus all such interest thereon,
are paid in full. The partial liquidated damages pursuant to the
terms hereof shall apply on a daily pro rata basis for any portion
of a month prior to the cure of an Event.
(e) If
Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register
the resale of the Registrable Securities on another appropriate
form, and (ii) undertake to register the Registrable Securities on
Form S-3 as soon as such form is available, provided that the
Company shall maintain the effectiveness of the Registration
Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been
declared effective by the Commission.
(f)
Notwithstanding anything to the contrary contained herein, in no
event shall the Company be permitted to name any Holder or
affiliate of a Holder as any Underwriter without the prior written
consent of such Holder.
3.
Registration
Procedures
.
In
connection with the Company’s registration obligations
hereunder, the Company shall:
(a) Not
less than five (5) Trading Days prior to the filing of each
Registration Statement and not less than one (1) Trading Day prior
to the filing of any amendment or prospectus thereto (provided if
the selling stockholder section or plan of distribution sections
have changed in such amendments or prospectus, such period shall be
three (3) Trading Days), the Company shall (i) furnish to each
Holder copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such
Holders, and (ii) cause its officers and directors, counsel and
independent registered public accountants to respond to such
inquiries as shall be necessary, in the reasonable opinion of
respective counsel to each Holder, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company
shall not file a Registration Statement or any such Prospectus or
any amendments or supplements thereto to which the Holders of a
majority of the Registrable Securities shall reasonably object in
good faith, provided that, the Company is notified of such
objection in writing no later than five (5) Trading Days after the
Holders have been so furnished copies of a Registration Statement
or one (1) Trading Day after the Holders have been so furnished
copies of any related amendments thereto (provided if the selling
stockholder section or plan of distribution sections have changed
in such amendments or prospectus, such period shall be three (3)
Trading Days). Each Holder agrees to furnish to the Company a
completed questionnaire in the form attached to this Agreement as
Annex B
(a
“
Selling Stockholder
Questionnaire
”) on a date that is not less than five
(5) Trading Days prior to the Filing Date or by the end of the
third (3
rd
) Trading Day
following the date on which such Holder receives draft materials in
accordance with this Section.
(b) (i)
Prepare and file with the Commission such amendments, including
post-effective amendments, to a Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep
a Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and
prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the Registrable Securities, (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus
supplement (subject to the terms of this Agreement), and, as so
supplemented or amended, to be filed pursuant to Rule 424, (iii)
respond as promptly as reasonably possible to any comments received
from the Commission with respect to a Registration Statement or any
amendment thereto and provide as promptly as reasonably possible to
the Holders true and complete copies of all correspondence from and
to the Commission relating to a Registration Statement (provided
that, the Company shall excise any information contained therein
which would constitute material non-public information regarding
the Company), and (iv) comply in all material respects with the
applicable provisions of the Securities Act and the Exchange Act
with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in
accordance (subject to the terms of this Agreement) with the
intended methods of disposition by the Holders thereof set forth in
such Registration Statement as so amended or in such Prospectus as
so supplemented.
(c) If
during the Effectiveness Period, the number of Registrable
Securities at any time exceeds 100% of the number of shares of
Common Stock then registered in a Registration Statement, then the
Company shall file as soon as reasonably practicable, but in any
case prior to the applicable Filing Date, an additional
Registration Statement covering the resale by the Holders of not
less than the number of such Registrable Securities.
(d)
Notify the Holders of Registrable Securities to be sold (which
notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) as promptly as
reasonably possible (and, in the case of (i)(A) below, not less
than one (1) Trading Day prior to such filing) and (if requested by
any such Person) confirm such notice in writing no later than one
(1) Trading Day following the day (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration
Statement is proposed to be filed, (B) when the Commission notifies
the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in
writing on such Registration Statement, and (C) with respect to a
Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or
supplements to a Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the Commission or
any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering
any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose, (iv) of the receipt by the Company of
any notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose, (v)
of the occurrence of any event or passage of time that makes the
financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a
Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to a Registration
Statement, Prospectus or other documents so that, in the case of a
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vi) of the occurrence or
existence of any pending corporate development with respect to the
Company that the Company believes may be material and that, in the
determination of the Company, makes it not in the best interest of
the Company to allow continued availability of a Registration
Statement or Prospectus,
provided
,
however
, in no event shall any
such notice contain any information which would constitute
material, non-public information regarding the
Company.
(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order stopping or suspending the
effectiveness of a Registration Statement, or (ii) any suspension
of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the
earliest practicable moment.
(f)
Furnish to each Holder, without charge, at least one conformed copy
of each such Registration Statement and each amendment thereto,
including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference to
the extent requested by such Person, and all exhibits to the extent
requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that any such item which
is available on the EDGAR system (or successor thereto) need not be
furnished in physical form.
(g)
Subject to the terms of this Agreement, the Company hereby consents
to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto, except after
the giving of any notice pursuant to Section 3(d).
(h)
Prior to any resale of Registrable Securities by a Holder, use its
commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification)
of such Registrable Securities for the resale by the Holder under
the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing, to keep
each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all
other acts or things reasonably necessary to enable the disposition
in such jurisdictions of the Registrable Securities covered by each
Registration Statement; provided, that, the Company shall not be
required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so
subject or file a general consent to service of process in any such
jurisdiction.
(i) If
requested by a Holder, cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to
a Registration Statement, which certificates shall be free, to the
extent permitted by the Subscription Agreement and applicable law,
of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names
as any such Holder may request.
(j)
Upon the occurrence of any event contemplated by Section 3(d), as
promptly as reasonably possible under the circumstances taking into
account the Company’s good faith assessment of any adverse
consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to a Registration Statement
or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
neither a Registration Statement nor such Prospectus will contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
If the
Company notifies the Holders in accordance with clauses (iii)
through (vi) of Section 3(d) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been
made, then the Holders shall suspend use of such Prospectus. The
Company will use its best efforts to ensure that the use of the
Prospectus may be resumed as promptly as is practicable. The
Company shall be entitled to exercise its right under this Section
3(j) to suspend the availability of a Registration Statement and
Prospectus, subject to the payment of partial liquidated damages
otherwise required pursuant to Section 2(d), for a period not to
exceed 60 calendar days (which need not be consecutive days) in any
12-month period.
(k)
Otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission under the
Securities Act and the Exchange Act, including, without limitation,
Rule 172 under the Securities Act, file any final Prospectus,
including any supplement or amendment thereof, with the Commission
pursuant to Rule 424 under the Securities Act, promptly inform the
Holders in writing if, at any time during the Effectiveness Period,
the Company does not satisfy the conditions specified in Rule 172
and, as a result thereof, the Holders are required to deliver a
Prospectus in connection with any disposition of Registrable
Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable
Securities hereunder.
(l)
Intentionally Omitted.
(m) The
Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and, if required by the
Commission, the natural persons thereof that have voting and
dispositive control over the shares. The Company shall be entitled
to rely on such certified statement of each Holder. During any
periods that the Company is unable to meet its obligations
hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to furnish such
information within three Trading Days of the Company’s
request, any liquidated damages that are accruing at such time as
to such Holder only shall be tolled and any Event that may
otherwise occur solely because of such delay shall be suspended as
to such Holder only, until such information is delivered to the
Company.
4.
Registration Expenses
. All fees
and expenses incident to the performance of or compliance with,
this Agreement by the Company shall be borne by the Company whether
or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees
and expenses of the Company’s counsel and independent
registered public accountants) (A) with respect to filings made
with the Commission, (B) with respect to filings required to be
made with any Trading Market on which the Common Stock is then
listed for trading, and (C) in compliance with applicable state
securities or Blue Sky laws reasonably agreed to by the Company in
writing (including, without limitation, fees and disbursements of
counsel for the Company in connection with Blue Sky qualifications
or exemptions of the Registrable Securities), (ii) printing
expenses (including, without limitation, expenses of printing
certificates for Registrable Securities), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if
the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement. In
addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as
required hereunder. In no event shall the Company be responsible
for any broker or similar commissions of any Holder or any legal
fees or other costs of the Holders.
(a)
Indemnification by the
Company
. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including
brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of
Common Stock), investment advisors and employees (and any other
Persons with a functionally equivalent role of a Person holding
such titles, notwithstanding a lack of such title or any other
title) of each of them, each Person who controls any such Holder
(within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, members,
stockholders, partners, agents and employees (and any other Persons
with a functionally equivalent role of a Person holding such
titles, notwithstanding a lack of such title or any other title) of
each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses (collectively,
“
Losses
”), as incurred,
arising out of or relating to (1) any untrue statement of a
material fact contained in a Registration Statement, any Prospectus
or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading or (2) any
violation by the Company of the Securities Act, the Exchange Act or
any state securities law, or any rule or regulation thereunder, in
connection with the performance of its obligations under this
Agreement, except to the extent, but only to the extent, that (i)
such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement, such Prospectus or in any
amendment or supplement thereto (it being understood that the
Holder has approved
Annex
A
hereto for this purpose) or (ii) in the case of an
occurrence of an event of the type specified in Section
3(d)(iii)-(vi), the use by such Holder of an outdated, defective or
otherwise unavailable Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated, defective
or otherwise unavailable for use by such Holder and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d).
The Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which the
Company is aware. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such
indemnified person and shall survive the transfer of any
Registrable Securities by any of the Holders in accordance with
Section 6(h).
(b)
Indemnification by
Holders
. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees
of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the
extent arising out of or based solely upon: any untrue or alleged
untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or supplement thereto, in
light of the circumstances under which they were made) not
misleading (i) to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company expressly for
inclusion in such Registration Statement or such Prospectus or (ii)
to the extent, but only to the extent, that such information
relates to such Holder’s information provided in the Selling
Stockholder Questionnaire or the proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in
writing by such Holder expressly for use in a Registration
Statement (it being understood that the Holder has approved
Annex A
hereto for
this purpose), such Prospectus or in any amendment or supplement
thereto. In no event shall the liability of a selling Holder be
greater in amount than the dollar amount of the proceeds (net of
all reasonable expenses paid by such Holder in connection with any
claim relating to this Section 5 and the amount of any damages such
Holder has otherwise been required to pay by reason of such untrue
statement or omission) received by such Holder upon the sale of the
Registrable Securities included in the Registration Statement
giving rise to such indemnification obligation.
(c)
Conduct of Indemnification
Proceedings
. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an
“
Indemnified
Party
”), such Indemnified Party shall promptly notify
the Person from whom indemnity is sought (the “
Indemnifying Party
”) in
writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided,
that, the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have materially and
adversely prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party or Parties unless: (1) the Indemnifying
Party has agreed in writing to pay such fees and expenses, (2) the
Indemnifying Party shall have failed promptly to assume the defense
of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding, or (3) the named
parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and
counsel to the Indemnified Party shall reasonably believe that a
material conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written
consent, which consent shall not be unreasonably withheld or
delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of
the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing
to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred,
within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that, the Indemnified Party shall
promptly reimburse the Indemnifying Party for that portion of such
fees and expenses applicable to such actions for which such
Indemnified Party is finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) not to be entitled to indemnification
hereunder.
(d)
Contribution
. If
the indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party,
in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and Indemnified Party in connection with
the actions, statements or omissions that resulted in such Losses
as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set
forth in this Agreement, any reasonable attorneys’ or other
fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in this
Section was available to such party in accordance with its
terms.
The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. In no event shall the contribution
obligation of a Holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all
reasonable expenses paid by such Holder in connection with any
claim relating to this Section 5 and the amount of any damages such
Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission)
received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.
The
indemnity and contribution agreements contained in this Section are
in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
(a)
Remedies
. In the
event of a breach by the Company or by a Holder of any of their
respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific
performance of its rights under this Agreement. Each of the Company
and each Holder agrees that monetary damages would not provide
adequate compensation for any losses incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in
respect of such breach, it shall not assert or shall waive the
defense that a remedy at law would be adequate.
(b)
No Piggyback on
Registrations; Prohibition on Filing Other Registration
Statements
. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto)
may include securities of the Company in any Registration
Statements other than the Registrable Securities. The Company shall
not file any other registration statements, other than on Forms S-4
or S-8 or their then equivalents, until all Registrable Securities
are registered pursuant to a Registration Statement that is
declared effective by the Commission, provided that this Section
6(b) shall not prohibit the Company from filing amendments to
registration statements filed prior to the date of this
Agreement.
(c)
Intentionally Omitted.
(d)
Discontinued
Disposition
. By its acquisition of Registrable Securities,
each Holder agrees that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section
3(d)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration
Statement until it is advised in writing (the “
Advice
”) by the Company
that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus
may be resumed as promptly as is practicable. The Company agrees
and acknowledges that any periods during which the Holder is
required to discontinue the disposition of the Registrable
Securities hereunder shall be subject to the provisions of Section
2(d).
(e)
Piggy-Back
Registrations
. If, at any time during the Effectiveness
Period, there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine
(assuming the Company has received waivers from the requisite
holders of Registrable Securities with respect to Section 6(b)
herein) to prepare and file with the Commission a registration
statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable
in connection with the Company’s stock option or other
employee benefit plans, then the Company shall deliver to each
Holder a written notice of such determination and, if within
fifteen days after the date of the delivery of such notice, any
such Holder shall so request in writing, the Company shall include
in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered;
provided
,
however
, that the Company shall
not be required to provide notice or otherwise register any
Registrable Securities pursuant to this Section 6(e) that are
eligible for resale pursuant to Rule 144 (without volume
restrictions or current public information requirements)
promulgated by the Commission pursuant to the Securities Act or
that are the subject of a then effective Registration Statement
that is available for resales or other dispositions by such
Holder.
(f)
Amendments and
Waivers
. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holders of 51% or more of
the then outstanding Registrable Securities (for purposes of
clarification, this includes any Registrable Securities issuable
upon exercise or conversion of any Security), provided that, if any
amendment, modification or waiver disproportionately and adversely
impacts a Holder (or group of Holders), the consent of such
disproportionately impacted Holder (or group of Holders) shall be
required. If a Registration Statement does not register all of the
Registrable Securities pursuant to a waiver or amendment done in
compliance with the previous sentence, then the number of
Registrable Securities to be registered for each Holder shall be
reduced pro rata among all Holders and each Holder shall have the
right to designate which of its Registrable Securities shall be
omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
a Holder or some Holders and that does not directly or indirectly
affect the rights of other Holders may be given only by such Holder
or Holders of all of the Registrable Securities to which such
waiver or consent relates;
provided
,
however
, that the provisions of
this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this
Section 6(f). No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any
provision of this Agreement unless the same consideration also is
offered to all of the parties to this Agreement.
(g)
Notices
. Any and
all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth
in the Subscription Agreement.
(h)
Successors and
Assigns
. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company
may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders
of the then outstanding Registrable Securities. Each Holder may
assign their respective rights hereunder in the manner and to the
Persons as permitted under Section 5.7 of the Subscription
Agreement.
(i)
No Inconsistent
Agreements
. The Company has not entered, as of the date
hereof, nor shall the Company, on or after the date of this
Agreement, enter into any agreement with respect to its securities,
that would have the effect of impairing the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any
agreement granting any registration rights with respect to any of
its securities to any Person that have not been satisfied in
full.
(j)
Execution and
Counterparts
. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an
original thereof.
(k)
Governing Law
. All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be determined in accordance
with the provisions of the Subscription Agreement.
(l)
Cumulative
Remedies
. The remedies provided herein are cumulative and
not exclusive of any other remedies provided by law.
(m)
Severability
. If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(n)
Headings
. The
headings in this Agreement are for convenience only, do not
constitute a part of the Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
(o)
Independent Nature of
Holders’ Obligations and Rights
. The obligations of
each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be
responsible in any way for the performance of the obligations of
any other Holder hereunder. Nothing contained herein or in any
other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint
venture or any other kind of group or entity, or create a
presumption that the Holders are in any way acting in concert or as
a group or entity with respect to such obligations or the
transactions contemplated by this Agreement or any other matters,
and the Company acknowledges that the Holders are not acting in
concert or as a group, and the Company shall not assert any such
claim, with respect to such obligations or transactions. Each
Holder shall be entitled to protect and enforce its rights,
including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
The use of a single agreement with respect to the obligations of
the Company contained was solely in the control of the Company, not
the action or decision of any Holder, and was done solely for the
convenience of the Company and not because it was required or
requested to do so by any Holder. It is expressly understood and
agreed that each provision contained in this Agreement is between
the Company and a Holder, solely, and not between the Company and
the Holders collectively and not between and among
Holders.
********************
(Signature Pages Follow)
IN
WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
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MABVAX
THERAPEUTICS HOLDINGS, INC.
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By:__________________________________________
Name:
Title:
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[SIGNATURE PAGE OF
HOLDERS FOLLOWS]
[SIGNATURE PAGE OF
HOLDERS TO RRA]
Name of
Holder: __________________________
Signature of Authorized Signatory of
Holder
: __________________________
Name of
Authorized Signatory: _________________________
Title
of Authorized Signatory: __________________________
[SIGNATURE PAGES
CONTINUE]
Annex A
Plan
of Distribution
Each
Selling Stockholder (the “
Selling Stockholders
”) of
the securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the principal Trading Market or
any other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling
securities:
●
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
●
block trades in
which the broker-dealer will attempt to sell the securities as
agent but may position and 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;
●
settlement of short
sales;
●
in transactions
through broker-dealers that agree with the Selling Stockholders to
sell a specified number of such securities at a stipulated price
per security;
●
through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
●
a combination of
any such methods of sale; or
●
any other method
permitted pursuant to applicable law.
The
Selling Stockholders may also sell securities under Rule 144 under
the Securities Act of 1933, as amended (the “
Securities Act
”), if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.
In
connection with the sale of the securities or interests therein,
the Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the
resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the
securities.
The
Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect, or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders
or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
Annex B
MABVAX
THERAPEUTICS HOLDINGS, INC.
Selling
Stockholder Notice and Questionnaire
The
undersigned beneficial owner of securities (the “
Registrable Securities
”)
of MabVax Therapeutics Holdings, Inc., a Delaware corporation (the
“
Company
”), understands
that the Company has filed or intends to file with the Securities
and Exchange Commission (the “
Commission
”) a
registration statement (the “
Registration Statement
”)
for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “
Securities Act
”), of the
Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the “
Registration Rights
Agreement
”) to which this document is annexed. A copy
of the Registration Rights Agreement is available from the Company
upon request at the address set forth below. All capitalized terms
not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
In
order to sell or otherwise dispose of any Registrable Securities
pursuant to the Registration Statement, a holder of Registrable
Securities generally will be required to be named as a selling
shareholder in the prospectus included in the Registration
Statement and one or more supplements thereto (as so supplemented,
the “
Prospectus
”) and deliver the
Prospectus to purchasers of Registrable Securities (including
pursuant to Rule 172 under the Securities Act). Holders must
complete and deliver this Questionnaire in order to be named as
selling shareholders in the Prospectus.
Certain
legal consequences arise from being named as a selling stockholder
in the Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Registrable
Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a
selling stockholder in the Registration Statement and the related
Prospectus.
NOTICE
The
undersigned beneficial owner (the “
Selling Stockholder
”) of
Registrable Securities hereby elects to include the Registrable
Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
1. Name.
(a)
Full Legal Name of
Selling Stockholder
(b)
Full Legal Name of
Registered Holder (if not the same as (a) above) through which
Registrable Securities are held:
(c)
Full Legal Name of
Natural Control Person (which means a natural person who directly
or indirectly alone or with others has power to vote or dispose of
the securities covered by this Questionnaire):
2.
Address for Notices to Selling Stockholder:
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Telephone:
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Fax:
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Contact
Person:
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3.
Beneficial Ownership of Registrable Securities:
(a)
Number of
Registrable Securities beneficially owned and issued or issuable
pursuant to preferred stock:
(b)
Number of
Registrable Securities to be registered pursuant to this
Questionnaire for resale:
4.
Broker-Dealer Status:
(a)
Are you a
broker-dealer?
(b)
If
“yes” to Section 4(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Note:
If “no”
to Section 4(b), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
(c)
Are you an
affiliate of a broker-dealer?
Note: If
yes, provide a narrative explanation below:
(d)
If you are an
affiliate of a broker-dealer, do you certify that you purchased the
Registrable Securities in the ordinary course of business, and at
the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable
Securities?
Note:
If “no”
to Section 4(d), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.
5.
Beneficial Ownership of Securities of the Company Owned by the
Selling Stockholder.
Except as set forth below in this Item 5, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Subscription
Agreement.
(a)
Type and Amount of
other securities beneficially owned by the Selling
Stockholder:
6.
Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners
of 5% of more of the equity securities of the undersigned) has held
any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the
past three years.
State any
exceptions here:
7.
Plan of Distribution:
The undersigned has reviewed the form of Plan of Distribution to be
included in the Prospectus, and hereby confirms that, except as set
forth below, the information contained therein regarding the
undersigned and its plan of distribution is correct and
complete.
State any
exceptions here:
The
answers to the foregoing questions are correctly stated to the best
of the undersigned’s knowledge, information and belief. The
undersigned hereby agrees to notify the Company promptly of any
changes in the foregoing information. In the absence of any such
notification, the Company shall be entitled to continue to rely on
the accuracy of the information in this Questionnaire.
The
undersigned understands and acknowledges that the Company will rely
on the information set forth herein for purposes of the preparation
of the Prospectus. By signing below, the undersigned (i) consents
to the disclosure of the information contained herein in the
answers to Items 1 through 7 and the inclusion of such information
in the Registration Statement and the related Prospectus and any
amendments or supplements thereto, and (ii) acknowledges the
undersigned’s obligation to comply, and agrees that it will
comply, with the provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, particularly
Regulation M, in connection with any offering of Registrable
Securities pursuant to the Registration Statement.
The
undersigned also acknowledges and understands that the Registration
Statement will be subject to review by the Commission.
By
signing below, the undersigned hereby acknowledges and is advised
of the following Compliance and Disclosure Interpretation
(“
CDI
”) of the
staff of the Division of Corporation Finance (with respect to
Securities Act Sections):
“
239.10
An issuer
filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling
shareholders wanted to do a short sale of common stock
“against the box” and cover the short sale with
registered shares after the effective date. The issuer was advised
that the short sale could not be made before the registration
statement becomes effective, because the shares underlying the
short sale are deemed to be sold at the time such sale is made.
There would, therefore, be a violation of Section 5 if the shares
were effectively sold prior to the effective date. [Nov. 26,
2008]”
By
returning this Questionnaire, the undersigned will be deemed to be
aware of the foregoing CDI, acknowledges that the foregoing CDI
applies to the Registrable Securities to be registered for resale
on behalf of the undersigned pursuant to the Registration
Statement.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.
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Date:
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Beneficial
Owner:
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By:
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Name:
Title:
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PLEASE
FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED
NOTICE AND QUESTIONNAIRE TO: