UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 26,
2017
MABVAX THERAPEUTICS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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000-31265
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93-0987903
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(State or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS Employer
Identification
No.)
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11535 Sorrento Valley Rd., Suite 400
San Diego, CA 92121
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code:
(858) 259-9405
N/A
(Former name or former address, if changed since last
report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in as defined in Rule 405 of the Securities Act
of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging growth company [X]
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. [
]
Item 1.01 Entry into a Material Definitive Agreement.
As
previously disclosed, in connection with its public offering of
common stock and Series G Convertible Preferred Stock that closed
on May 19, 2017 (the “May 2017 Public Offering”),
MabVax Therapeutics Holdings, Inc. (the "Company") agreed to
issue an aggregate of 2,900,000 shares
of common stock (the “Inducement Shares”) to existing
investors who made a minimum required investment in the May 2017
Public Offering and who held certain securities previously issued
to them and to effectuate the cancellation of certain outstanding
warrants and the amendment of certain outstanding warrants held by
these investors. In connection with the foregoing, and as
p
reviously disclosed, certain of these investors have the
right
to receive their Inducement
Shares in the form of newly
authorized Series I Convertible
Preferred Stock with a par value and stated value of $0.01 per
share (the “Series I Preferred Stock”).
To
receive the Inducement Shares, the investors must agree, by
entering into a letter agreement in the form that was attached as
Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q
that was filed with the SEC on May 21, 2017 (the “Letter
Agreement”) to cancel the warrants issued to them in the
August 2016 Public Offering. Based on participation by existing
investors, we estimate that
at least
1.5 million of the total of 1.9 million warrants to purchase common
stock at an exercise price of $5.55 per share and at least 1.5
million of the total of 1.9 million warrants to purchase common
stock at an exercise price of $6.29 per share will be
cancelled.
The investors who participated in the offering and who also hold
warrants to purchase
shares of common stock at the exercise
price of $11.10 per share must also agree by way of the Letter
Agreement to amend such warrants to lower the exercise price to
$2.00 per share and remove the cashless exercise provision. We
estimate that less than 40,000 of the aggregate of the 805,361
warrants currently outstanding at a price per share of $11.10 would
be repriced to $2.00 per share.
On May 26, 2017, Company issued, or reserved for issuance at the
Company’s transfer agent pending receipt of the Letter
Agreements signed by the investors, Inducement Shares consisting
of
931,336
shares of common stock and
1,968,664 shares of
Series I Preferred Stock.
The Company is in the process of cancelling warrants to purchase
approximately 3.1 million shares of common stock, and expects
amendments of warrants at $11.10 per share to be less than 40,000,
pending verifications of ownership completed to
date.
Item 3.02 Unregistered Sales of Equity Securities.
The
disclosures in Item 1.01 of this Current Report are
incorporated herein by reference.
The
Inducement Shares were issued
solely to “accredited
investors” in reliance on the exemption from registration
afforded by Rule 506 of Regulation D and Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities
Act”).
Item
5.03
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The
disclosures in Item 1.01 of this Current Report are
incorporated herein by reference. As approved by the
Company’s Board of Directors, the Company filed with the
Secretary of State of the State of Delaware a Certificate of
Designation of Preferences, Rights and Limitations of Series I
Preferred Stock (the “Series I Certificate of
Designations”), on May 26, 2017. Pursuant to the Series I
Certificate of Designations, the Company designated
1,968,664
shares of its blank check
preferred stock as Series I Preferred Stock. Each share of Series I
Preferred Stock has a stated value of $0.01 per share. In the
event of a liquidation, dissolution or winding up of the Company,
each share of Series I Preferred Stock will be entitled to a per
share preferential payment equal to the stated value. Each share of
Series I Preferred Stock is convertible into one share of common
stock. The conversion ratio is subject to adjustment in the
event of stock splits, stock dividends, combination of shares and
similar recapitalization transactions. The Company is
prohibited from effecting the conversion of the Series I Preferred
Stock to the extent that, as a result of such conversion, the
holder beneficially owns more than 4.99%, in the aggregate, of the
issued and outstanding shares of the Company’s Common Stock
calculated immediately after giving effect to the issuance of
shares of Common Stock upon the conversion of the Series I
Preferred Stock (the “Beneficial Ownership
Limitation”). Each share of Series I Preferred Stock
entitles the holder to vote on all matters voted on by holders of
Common Stock. With respect to any such vote, each share of Series I
Preferred Stock entitles the holder to cast such number of votes
equal to the number of shares of Common Stock such shares of Series
I Preferred Stock are convertible into at such time, but not in
excess of the Beneficial Ownership Limitation. The foregoing
description of the Series I Certificate of Designations is not
complete and is subject to, and qualified in its entirety by, the
full text of Series I Certificate of Designations, included as
Exhibit 3.1 of this Current Report which is incorporated herein by
reference.
The
stated value of the Series I Preferred Stock was incorrectly stated
as $1.75 in the Subsequent Events portion and Item 5 of the
Company’s Quarterly Report on Form 10-Q filed on May 22,
2017. The correction in stated value has no impact on the
financial statements as of the period ended March 31,
2017.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
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3.1
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Form of Certificate
of Designations, Preferences and Rights of the 0% Series I
Convertible Preferred Stock
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly
authorized.
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MABVAX THERAPEUTICS HOLDINGS, INC.
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Dated: May 26, 2017
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/s/ J. David Hansen
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J. David Hansen
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President and Chief Executive Officer
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Exhibit 3.1
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES I CONVERTIBLE PREFERRED STOCK
The
undersigned, Chief Executive Officer of MABVAX THERAPEUTICS
HOLDINGS, INC., a Delaware corporation (the
“Corporation”), DOES HEREBY CERTIFY that the following
resolutions were duly adopted by the Board of Directors of the
Corporation on May 24, 2017;
WHEREAS, the Board of Directors is
authorized
within the limitations and
restrictions stated in the Certificate of Incorporation of the
Corporation, as amended, to provide by resolution or resolutions
for the issuance of One Million Nine Hundred Sixty-Eight Thousand
Six Hundred and Sixty-four
(1,968,664) shares of Preferred Stock,
par value $0.01 per share, of the
Corporation, in such series and with such designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions as the
Corporation’s Board of Directors shall fix by resolution or
resolutions providing for the issuance thereof duly adopted by the
Board of Directors; and
WHEREAS, it is the desire of the Board of
Directors, pursuant to its authority as aforesaid, to authorize and
fix the terms of a series of Preferred Stock and the number of
shares constituting such series
;
NOW,
THEREFORE, BE IT RESOLVED:
Section
1.
Designation and
Authorized Shares
. The
Corporation shall be authorized to issue
One Million Nine Hundred Sixty-Eight Thousand Six
Hundred and Sixty-four (1,968,664) shares of Series I Preferred
Stock,
par value $0.01 per
share (the “Series I Preferred
Stock”).
Section
2.
Stated
Value
. Each share of Series I
Preferred Stock shall have a stated value of $0.01 per share
(as subject to adjustment in the case of any stock splits, stock
combination or similar recapitalization affecting the Series I
Preferred Stock as set forth herein)
(
the
“Stated Value”)
.
Section
3.
Liquidation
.
(a)
Upon
the liquidation, dissolution or winding up of the business of the
Corporation, whether voluntary or involuntary, each holder of
Series I Preferred Stock shall be entitled to receive, for each
share thereof, out of assets of the Corporation legally available
therefor, a preferential amount in cash equal to (and not more
than) the Stated Value. All preferential amounts to be paid to the
holders of Series I Preferred Stock in connection with such
liquidation, dissolution or winding up shall be paid before the
payment or setting apart for payment of any amount for, or the
distribution of any assets of the Corporation to the holders of (i)
any other class or series of capital stock whose terms expressly
provide that the holders of Series I Preferred Stock should receive
preferential payment with respect to such distribution (to the
extent of such preference) and (ii) the Corporation's Common
Stock
. If upon any such
distribution the assets of the Corporation shall be insufficient to
pay the holders of the outstanding shares of Series I Preferred
Stock (or the holders of any class or series of capital stock
ranking on a parity with the Series I Preferred Stock as to
distributions in the event of a liquidation, dissolution or winding
up of the Corporation) the full amounts to which they shall be
entitled, such holders shall share ratably in any distribution of
assets in accordance with the sums which would be payable on such
distribution if all sums payable thereon were paid in
full.
(b)
Any
distribution in connection with the liquidation, dissolution or
winding up of the Corporation, or any bankruptcy or insolvency
proceeding, shall be made in cash to the extent possible. Whenever
any such distribution shall be paid in property other than cash,
the value of such distribution shall be the fair market value of
such property as determined in good faith by the Board of Directors
of the Corporation.
Section
4.
Voting
.
Except as otherwise expressly required by law, each holder of
Series I Preferred Stock shall be entitled to vote on all matters
submitted to shareholders of the Corporation and shall be entitled
to the number of votes for each share of Series I Preferred Stock
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 shares of Series I Preferred Stock are
convertible into at such time, but not in excess of the conversion
limitations set forth in Section 5 herein.
Section
5.
Conversion
.
(a)
Conversion Right.
Each holder of Series I Preferred
Stock may, from time to time, convert any or all of such
holder’s shares of Series I Preferred Stock into fully paid
and non-assessable shares of Common Stock in an amount equal to
such number of shares which is equal to one (1) share of Common
Stock for each one (1) share of Series I Preferred Stock
surrendered.
(b)
Conversion Procedure.
In order to exercise the conversion privilege under this Section 5,
the holder of any shares of Series I Preferred Stock to be
converted shall give written notice to the Corporation at its
principal office that such holder elects to convert such shares of
Series I Preferred Stock or a specified portion thereof into shares
of Common Stock as set forth in such notice (the “Conversion
Notice”, and such date of delivery of the Conversion Notice
to the Corporation, the “Conversion Notice Delivery
Date”). Within three (3) business days following the
Conversion Notice Delivery Date, the Corporation shall issue and
deliver a certificate or certificates representing the number of
shares of Common Stock determined pursuant to this Section 5 (the
“Share Delivery Date”). In case of conversion under
this Section 5 of only a part of the shares of Series I Preferred
Stock represented by a certificate surrendered to the Corporation,
the Corporation shall issue and deliver a new certificate for the
number of shares of Series I Preferred Stock which have not been
converted, upon receipt of the original certificate or certificates
representing shares of Series I Preferred Stock so converted. Until
such time as the certificate or certificates representing shares of
Series I Preferred Stock which have been converted are surrendered
to the Corporation and a certificate or certificates representing
the Common Stock into which such shares of Series I Preferred Stock
have been converted have been issued and delivered, the certificate
or certificates representing the shares of Series I Preferred Stock
which have been converted shall represent the shares of Common
Stock into which such shares of Series I Preferred Stock have been
converted. The Corporation shall pay all documentary, stamp or
similar issue or transfer tax due on the issue of shares of Common
Stock issuable upon conversion of the Series I Preferred
Stock.
(c)
Maximum
Conversion
.
(i)
Notwithstanding
anything to the contrary set forth in this Certificate of
Designation, at no time may all or a portion of shares of Series I
Preferred Stock be converted if the number of shares of Common
Stock to be issued pursuant to
such
conversion would exceed,
when aggregated with all other shares of Common Stock owned by such
holder at such time, the number of shares of Common Stock which
would result in such holder beneficially owning (as determined in
accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and the rules
thereunder) more than 4.99% of all of the Common Stock outstanding
at such time (the “4.99% Beneficial Ownership
Limitation”).
(ii)
By written notice
to the Corporation, any holder of Series I Preferred Stock may
increase or decrease the 4.99% Beneficial Ownership Limitation 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
Corporation, and (ii) any such increase or decrease will apply only
to such holder of Series I Preferred Stock sending such notice and
not to any other holder of Series I Preferred Stock.
(iii)
For purposes of
this Section 5, in determining the number of outstanding shares of
Common Stock, a holder of Series I Preferred Stock may rely on the
number of outstanding shares of Common Stock as reflected in (1)
the Corporation’s most recent Form 10-K, 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 Corporation or (3) any other notice by the
Corporation 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 Series I Preferred Stock, the Corporation
shall within one (1) business day 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 Corporation, including shares of Series I
Preferred Stock, held by such holder and its affiliates since the
date as of which such number of outstanding shares of Common Stock
was reported, which in any event are convertible or exercisable, as
the case may be, into shares of the Corporation’s Common
Stock within sixty (60) days’ of such calculation and which
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 5 to correct this
paragraph (or any portion hereof) which 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
.
(d)
Buy-In.
If, by the Share
Delivery Date, the Corporation fails for any reason to deliver the
shares of Common Stock issuable upon conversion of the Series I
Preferred Stock, as set forth in the Conversion Notice, and after
such Share Delivery Date, the converting holder purchases, in an
arm’s length open market transaction or otherwise, shares of
Common Stock (the “Covering Shares”) in order to make
delivery in satisfaction of a sale of Common Stock by the
converting holder (the “Sold Shares”), which delivery
such converting holder anticipated to make using the shares to be
issued upon such conversion (a “Buy-In”), the
converting holder shall have the right to require the Corporation
to pay to the converting holder the Buy-In Adjustment
Amount. The Corporation shall pay the Buy-In Adjustment
Amount to the converting holder in immediately available funds
immediately upon demand by the converting holder. For purposes of
this Certificate of Designation, the term “Buy-In Adjustment
Amount” means the amount equal to the excess, if any, of
(i) the converting holder’s total purchase price
(including brokerage commissions, if any) for the Covering Shares
associated with a Buy-In, over (ii) the net proceeds (after
brokerage commissions, if any) received by the converting holder
from the sale of the Sold Shares. By way of illustration
and not in limitation of the foregoing, if the converting holder
purchases shares of Common Stock having a total purchase price
(including brokerage commissions) of $11,000 to cover a Buy-In,
with respect to shares of Common Stock it sold for net proceeds of
$10,000, the Buy-In Adjustment Amount which the Corporation will be
required to pay to the converting holder will be
$1,000.
Section
6.
Other
Provisions.
(a)
Reservation
of Common Stock
.
The
Corporation shall at all times reserve
from its authorized Common Stock a sufficient number of shares to
provide for conversion of all Series I Preferred Stock from time to
time outstanding.
(b)
Record
Holders
. The Corporation and
its transfer agent, if any, for the Series I Preferred Stock may
deem and treat the record holder of any shares of Series I
Preferred Stock as reflected on the books and records of the
Corporation as the sole true and lawful owner thereof for all
purposes, and neither the Corporation nor any such transfer agent
shall be affected by any notice to the
contrary.
Section
7.
Restriction and Limitations
.
Except as expressly provided herein or as required by law so long
as any shares of Series I Preferred Stock remain outstanding, the
Corporation shall not, without the vote or written consent of the
holders of at least a majority of the then outstanding shares of
the Series I Preferred Stock, take any action which would adversely
and materially affect any of the preferences, limitations or
relative rights of the Series I Preferred Stock.
Section
8.
Certain
Adjustments
.
(a)
Stock Dividends and Stock
Splits
. If the Corporation, at any time while the Series I
Preferred Stock is outstanding: (A) shall pay a stock dividend or
otherwise make a distribution or distributions on shares of its
Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt,
shall not include any shares of Common Stock issued by the
Corporation pursuant to the conversion of the Series I Preferred
Stock), (B) subdivide outstanding shares of Common Stock into a
larger number of shares, (C) combine (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller
number of shares, or (D) issue by reclassification of shares of the
Common Stock any shares of capital stock of the Corporation, each
share of Series I Preferred Stock shall receive such consideration
as if such number of shares of Series I Preferred had been,
immediately prior to such foregoing dividend, distribution,
subdivision, combination or reclassification, the holder of the
number of shares of Common Stock into which it could convert at
such time. Any adjustment made pursuant to this Section shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
re-classification.
Section
9.
Equal Treatment of Holders
. No
consideration (including any modification of this Certificate of
Designation or related transaction document) shall be offered or
paid to any person or entity to amend or consent to a waiver or
modification of any provision of this Certificate of Designation or
related transaction document unless the same consideration is also
offered to all of holders of the outstanding shares of Series I
Preferred Stock. For clarification purposes, this provision
constitutes a separate right granted to each holder by the
Corporation and negotiated separately by each holder, and is
intended for the Corporation to treat all holders of the Series I
Preferred Stock as a class and shall not in any way be construed as
such holders acting in concert or as a group with respect to the
purchase, disposition or voting of the Series I Preferred Stock or
otherwise.
[signature page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Certificate this
26th day of May, 2017.
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By:
J. David Hansen
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Name: J. David
Hansen
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Title: President
and CEO
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