Exhibit
1.1
LAIDLAW
& COMPANY (UK) LTD.
546
Fifth Ave 41 Dover Street
New
York, NY 10036 W1S 4NS London
*
Member FINRA, SIPC*
*Incorporated
in England & Wales: Company No. 3870324*
September 11,
2017
David
Hansen
President
and CEO
MabVax
Therapeutics Holdings, Inc
11588
Sorrento Valley Road, Suite 20
San
Diego, CA 92121
Attention:
David Hansen, President and
CEO
ENGAGEMENT AGREEMENT
Pursuant
to this exclusive ENGAGEMENT AGREEMENT (the “
Agreement
”)
by and between Laidlaw & Company (UK) Ltd., a United Kingdom
corporation with offices at
546 Fifth
Ave
, New York, New York 10036 (“
Laidlaw
”)
and MabVax Therapeutics Holdings, Inc.
(the “
Client
”,
“
MBVX
”
or the "
Company
"),
Laidlaw is engaged by the Client, on an exclusive basis, to perform
the services (the “
Services
”)
agreed to hereby on the terms set forth herein.
1.
The
Services
.
Laidlaw
shall assist Client as follows:
a)
The
Financing
.
Laidlaw
will assist Client on a “best efforts” non-exclusive
basis in connection with a proposed public offering (the
"
Offering
") up to maximum
(the “
Maximum Offering
Amount
”) of USD $2.0 (two) million of securities of
the Company (the "
Securities
") as per terms agreed to with
investors (the
“Financing”
).
b)
Pursuant to this
Agreement, Laidlaw will work with the Client in connection with,
among other things, assisting the Client with respect
to:
i.
providing advice in
connection with the structure of the Capital Raise to be offered to
prospective investors (the “
Offering
”);
ii.
preparing Offering
Materials for use in soliciting the Financing from prospective
investors (the “
Offerees
”);
iii.
identifying
prospective participating broker-dealers, if so requested, to act
as participating dealers in the sale of Securities in the Offering;
and
iv.
using its best
efforts to complete the Offering Amount by September 30th,
2017
In connection with the offering of Securities
pursuant to this Agreement, the Client hereby represents, warrants
and agrees that (x) it will comply in all material respects with
all applicable federal, state and foreign securities laws and
regulations applicable to the Offering and (y)
none of the
documents and
materials to be used in making the Offering will
contain any 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 not
misleading. Client herein agrees that it will be fully responsible
for the preparation and filing in a timely fashion of any necessary
“blue sky” documents in connection with the Offering
and confirm such to Laidlaw in writing, the legal fees and expenses
of any such work to be paid by the Client as provided herein in
Section 2(b)(i)(b). Prior to any closing involving the issuance of
the Securities (a “
Closing
”
and, collectively, the “
Closings
”),
the Client will make its management, including officers responsible
for financial affairs, available to prospective investors to
address investor inquiries regarding the Client in a manner
consistent with the requirements of all applicable rules and
regulations. All Closings will be pursuant to documentation, which
documentation shall include normal and customary representations
and warranties (which Laidlaw shall be entitled to rely on), in
form reasonably satisfactory to Laidlaw and, upon any such Closing,
Laidlaw will be furnished with a favorable opinion from the
Client’s outside counsel containing items customary in
connection with the Offering contemplated herein addressed to
Laidlaw and the Investors.
2.
Compensation and
Client Expenses
.
The
Client shall be obligated to pay directly certain expenses related
to the Offering and to pay Laidlaw under this Agreement as
follows:
a)
Fees and
Expenses
:
The Client
shall be obligated to pay the following to Laidlaw in connection
with the financial advisory services being performed herein and
Closing(s) of the Offering.
a.
The Financing
Fees
.
At each
Closing, the Client shall pay Laidlaw a cash fee equal in the
aggregate to 7% (seven percent) of the gross proceeds on the
Closing Date for investors introduced by Laidlaw except for
proceeds received from Schedule D investors.
b.
Retainer.
Intentionally
omitted.
c.
‘
Blue
Sky
’
and
Legal Fees
. The Client will be
responsible for the payment of all legal fees of Laidlaw’s
securities counsel subject to a cap of $7,500 including any filing
and blue sky fees.in any states in which Laidlaw
reasonably requests that such filings
be made in connection with the
Financings.
3.
Intentionally
omitted.
4.
Term of
Agreement
:
The term
of this Agreement (the “
Term
”)
will commence on the date of this Agreement (the
“
Effective
Date
”) and will terminate on the earlier of the
closing of the Offering or October 30, 2017
(the “
Termination
Date
”).
5.
Confidentiality
.
The Client and Laidlaw agree to the
confidentiality and other provisions of
Schedule A
.
6.
Indemnification
.
The Client
agrees to indemnify Laidlaw
in accordance with the indemnification letter annexed hereto
as
Schedule
B
, the provisions of which are
incorporated herein in their entirety, and shall survive the
termination, expiration or supersession of this Agreement.
Said indemnification shall apply regardless of whether the Offering
is consummated and Client’s obligations hereunder shall
survive.
7.
Termination;
Survival
.
In the event this Agreement shall be
terminated in accordance with the provisions of Section 4 or
otherwise, t
he sections headed
“Confidentiality”, “Indemnification”, and
the applicable financial obligations set forth in Section 2, and
the provisions of Section 11 hereof will survive the Term or any
earlier termination hereunder.
8.
Affiliate
.
For purposes of this Agreement, “
Affiliate
”, as such term is used
with reference to the Client, means any entity directly or
indirectly controlling or controlled by the Client.
9.
Laidlaw
Obligations
.
By
accepting this Agreement, Laidlaw represents and warrants to the
Client that, now and during the term of this
Agreement:
●
Laidlaw is an
entity organized, validly existing and in good standing under the
laws of the state or country of its formation, with all requisite
power and authority to enter into this Agreement and to carry out
its obligations hereunder;
●
this Agreement,
when executed by Laidlaw, will have been duly authorized, executed
and delivered by Laidlaw and will be a valid and binding agreement
of Laidlaw, enforceable against Laidlaw in accordance with its
terms except no obligation to raise funds other than on a best
efforts basis; and
●
Laidlaw is
registered as a broker-dealer under the Securities Exchange Act of
1934, as amended; is qualified to act as a broker/dealer in the
states or other jurisdictions in which Laidlaw offers the
Securities and is a member of the Financial Industry Regulatory
Authority.
●
Laidlaw agrees to
pay any third parties retained by it in connection with this
Agreement and to hold Client harmless against any such claims,
provided Client pays Laidlaw its fees due hereunder.
10.
Governing
Law
.
This Agreement
shall be deemed to have been made and delivered in Delaware and
shall be governed as to validity, interpretation, construction,
effect and in all other respects by the internal laws of the State
of Delaware. The Client (l) agrees that any legal suit, action or
proceeding arising out of or relating to this letter shall be
instituted exclusively in Delaware, (2) waives any objection which
the Client may have now or hereafter to the venue of any such suit,
action or proceeding, and (3) irrevocably consents to the
jurisdiction of Delaware in any such suit, action or proceeding.
The Client further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or
proceeding in Delaware. THE PARTIES HERETO AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR
AGREEMENT CONTEMPLATED HEREBY.
11.
Miscellaneous
.
This Agreement, including the
Schedules annexed, constitutes (i) the entire understanding of the
parties with respect to the subject matter hereof and may not be
altered or amended except in a writing signed by both parties and
(ii) supersedes and cancels any prior or contemporaneous
arrangements, understandings and agreements, whether written or
oral, between the parties in respect of the matters provided for
herein. The Client expressly acknowledges that the execution of
this Agreement does not constitute a commitment by Laidlaw to
consummate any transaction contemplated hereunder and does not
ensure any Closing of the Financings or the success of Laidlaw with
respect to securing any financing on behalf of the
Client.
Nothing
contained in this agreement shall be construed to place Laidlaw and
the Client in the relationship of partners or joint venturers.
Neither Laidlaw nor the Client shall represent itself as the agent
or legal representative of the other for any purpose whatsoever nor
shall either have the power to obligate or bind the other in any
manner whatsoever. The Client’s engagement of Laidlaw is not
intended to confer rights upon any person not a party hereto
(including shareholders, directors, officers, employees or
creditors of the Client) as against Laidlaw or its affiliates, its
daughter companies or their respective directors, officers,
employees or agents, successors or assigns. Laidlaw, in performing
its services hereunder, shall at all times be an independent
contractor. No promises or representations have been made except as
expressly set forth in this Agreement and the parties have not
relied on any promises or representations except as expressly set
forth in this agreement. Nothing contained herein should be
construed as creating any fiduciary duties between the parties
hereto and/or any of their respective subsidiaries or
representatives.
Neither
the execution and delivery of this Agreement by the Client nor the
consummation of the transactions contemplated hereby will, directly
or indirectly, with or without the giving of notice or lapse of
time, or both: (i) violate any provisions of the Certificate of
Incorporation or By-laws of the Client ; or (ii) violate, or be in
conflict with, or constitute a default under, any agreement, lease,
mortgage, debt or obligation of the Client or, require the payment,
any pre-payment or other penalty with respect thereto. The Client
has all requisite power and authority to enter into and perform its
obligations under this Agreement. This Agreement has been duly
executed and delivered and constitutes valid and binding
obligations of the Client, enforceable against the Client in
accordance with its terms.
The
rights and obligations of a Party under this Agreement may not be
assigned by that Party (other than by operation of law) without the
prior written consent of the other Party and any other purported
assignment shall be null and void. The Client acknowledges that any
advice given by Laidlaw to the Client pursuant to this Agreement is
solely for the benefit and use of the Client and its Board of
Directors.
If any provision of this Agreement is determined
to be invalid or unenforceable in any respect, then such
determination will not affect such provision in any other respect
or any other provision of
this
Agreement, which will remain in full force and
effect.
The
parties hereto being in agreement with the terms and provisions set
forth herein so indicate by signing in the spaces provided
below.
LAIDLAW
& COMPANY (UK) LTD.
BY:
/s/ Hugh
Regan
Hugh
Regan
Executive
Director
Investment
Banking
ACCEPTED
AND AGREED as of
this
11
th
day
of September, 2017 (the “
Effective
Date
”):
BY:
/s/ Gregory P.
Hanson
Gregory P.
Hanson
Chief Financial
Officer
SCHEDULE A
INFORMATION
TO BE SUPPLIED; CONFIDENTIALITY
In
connection with Laidlaw’s activities on behalf of the Client,
the Client will furnish Laidlaw with all financial and other
information regarding the Client that Laidlaw reasonably believes
appropriate to its assignment (all such information so furnished by
the Client, whether furnished before or after the date of this
Agreement, being referred to herein as the “
Information
”).
The Client hereby warrants that any
Information furnished to Laidlaw by or on behalf of the Client will
be accurate and complete and, with respect to information
concerning the Client, will not contain any material omissions or
misstatements of fact in each case, in light of the circumstance
under which the statements therein were made. The Client will
advise Laidlaw immediately of the occurrence of any event or any
other change known to the Client which results in the Information
containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to
make the statements therein or previously made, in light of the
circumstance under which they were made, not misleading.
The
Client will provide Laidlaw with reasonable access to the officers,
directors, employees, independent accountants, legal counsel and
other advisors and consultants of the Client. The Client recognizes
and agrees that Laidlaw (i) will use and rely primarily on the
Information and information available from generally recognized
public sources in performing the services contemplated by this
Agreement without independently verifying the Information or such
other information, (ii) does not assume responsibility for the
accuracy of the Information or such information, and (iii) will not
make an appraisal of any assets or liabilities owned or controlled
by the Client or its market competitors.
For the
purpose of the Agreement, “
Information
”
shall mean and include, without limitation, all contracts and
agreements and the terms there of, to which the Client may be a
party; all internal non-public business, financial, intellectual
property, technical and scientific information, analyses, forecasts
and projections of the business of the Client and any direct or
indirect operating subsidiary; all business plans of the Client and
its subsidiaries; all pending or proposed proposals for new or
renewed contracts; the names, business and financial arrangements
to which the Client is a party; the names and terms of employment
relationships between the Client and any of its employees and/or
operating subsidiaries; all detail and back up information relating
to actual, pro forma or forecasted operations supplied to Laidlaw
by the Client; and all data or information prepared by the Client
at the request Laidlaw; and any other non-public information of
Client or others furnished to Laidlaw or its representatives in
connection with any of the transactions contemplated by this
Agreement.
Laidlaw
will maintain the confidentiality of the Information and, unless
and until such Information shall have been made publicly available
by the Client or by others without breach of a confidentiality
agreement or obligation, shall disclose the information only as
authorized by the Client or as required by law including by order
of a governmental authority or court of competent jurisdiction. In
the event that Laidlaw is legally required to make disclosure of
any of the Information, Laidlaw will give notice to the Client
prior to such disclosure, to the extent that Laidlaw can
practically do so.
The
foregoing paragraph shall not apply to information
that:
(i)
at the time of
disclosure by the Client is, or when it thereafter becomes,
generally available to the public or within the industries in which
the Client or Laidlaw or its affiliates conduct business, other
than as a direct result of a breach by Laidlaw of its obligations
under this Agreement;
(ii)
prior to or at the
time of disclosure by the Client, was already in the possession of,
or, conceived by, Laidlaw or any of its affiliates, or could have
been developed by them from information then in their possession,
by the application of other information or techniques in their
possession, generally available to the public, or available to
Laidlaw or its affiliates other than from the Client;
(iii)
at the time of
disclosure by the Client or thereafter, is obtained by Laidlaw or
any of its affiliates from a third party who has represented to
Laidlaw that it is, and whom Laidlaw reasonably believes to be, in
possession of the information and not in violation of any
contractual, legal or fiduciary obligation to the Client with
respect to that information; or
(iv)
is independently
developed by Laidlaw or its affiliates.
Without
limitations as to the foregoing, nothing in this Agreement shall be
construed to limit the ability of Laidlaw or its affiliates to
pursue, investigate, analyze, invest in, or engage in investment
banking, financial advisory or any other business relationship with
entities other than the Client, notwithstanding that such entities
may be engaged in a business which is similar to or competitive
with the business of the Client, and notwithstanding that such
entities may have actual or potential operations, products,
services, plans, ideas, customers or supplies similar or identical
to the Client’s, or may have been identified by the Client as
potential merger or acquisition targets or potential candidates for
some other business combination, cooperation or relationship. The
Client expressly acknowledges and agrees that it does not claim any
proprietary interest in the identity of any other entity in its
industry or otherwise, and that the identity of any such entity is
not confidential information.
SCHEDULE B
INDEMNIFICATION
Recognizing that
matters of the type contemplated in this engagement sometimes
result in litigation, the Client agrees to indemnify and hold
harmless Laidlaw, its affiliates and their respective officers,
directors, employees, agents and controlling persons (collectively,
the “
Indemnified
Parties
”), from and against any losses, claims,
damages and liabilities, joint or several, related to or arising in
any manner out of any transaction, financing, proposal or any other
matter (collectively, the “
Matters
”)
contemplated by the engagement of Laidlaw hereunder, whether or not
such Matters occur prior, during or after the Term of this
Agreement, and will promptly reimburse the Indemnified Parties for
all expenses (including reasonable fees and expenses of legal
counsel) as and when incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim
related to or arising in any manner out of any Matter contemplated
by the engagement of Laidlaw hereunder, or any action or proceeding
arising therefrom (collectively, “
Proceedings
”),
whether or not such Indemnified Party is a formal party to any such
Proceeding. For the purposes hereof, Client’s obligations to
the Indemnified Parties hereunder shall include any and all Matters
arising in connection with or derivative from the reverse merger
shell company and its shareholders.
Notwithstanding the
foregoing, and subject to the following paragraph, the Client shall
not be liable to the extent that any losses, claims, damages,
liabilities or expenses resulted directly from the gross negligence
or willful misconduct of an Indemnified Party as determined by a
court of competent jurisdiction after all appeals have run. The
Client further agrees that it will not, without the prior written
consent of Laidlaw, which consent will not be unreasonably
withheld, conditioned or delayed, settle, compromise or consent to
the entry of any judgment in any pending or threatened Proceeding
in respect of which indemnification may be sought hereunder
(whether or not Laidlaw or any Indemnified Party is an actual or
potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional release of Laidlaw
and each other Indemnified Party hereunder from all liability
arising out of such Proceeding.
Each
party agrees that if any indemnification or reimbursement sought
pursuant to this Agreement were for any reason not to be available
to the Indemnified Parties or insufficient to hold them harmless as
and to the extent contemplated by this letter, then the
indemnifying party shall contribute to the amount paid or payable
by such Indemnified Party in respect of losses, claims, damages and
liabilities in such proportion as is appropriate to reflect the
relative benefits to the indemnifying party on the one hand, and
the Indemnified Party on the other, in connection with the matters
to which such indemnification or reimbursement relates or, if such
allocation is not permitted by applicable law, not only such
relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed
that the relative benefits to the Client and to Laidlaw with
respect to Laidlaw’s engagement shall be deemed to be in the
same proportion as (i) the total value paid or received or to be
paid or received by the Client pursuant to the matters (whether or
not consummated) for which Laidlaw is engaged to render services
bears to (ii) the Fees and Commissions paid to the Laidlaw in
connection with such engagement.
The
indemnity, reimbursement, contribution provisions set forth herein
shall remain operative and in full force and effect regardless of
(i) any withdrawal, termination or consummation of or failure to
initiate or consummate any matter referred to herein, (ii) any
investigation made by or on behalf of any party hereto or any
person controlling (within the meaning of Section 15 of the Act, or
Section 20 of the Exchange Act) any party hereto, (iii) any
termination or the completion or expiration of this Agreement and
(iv) whether or not Laidlaw shall, or shall not, be called upon to
render any formal or informal advice in the course of the
engagement.
SCHEDULE C
CORPORATE GOVERNANCE AND
OTHER QUALITATIVE
REQUIREMENTS
The Company herein recognizes the fundamental
significance of the requirements of this Schedule C to both
investors (“Investors”) in the Offering and to Laidlaw,
and therefore agrees that its failure to materially comply with
said requirements may if deliberate or due to negligence represent
justifiable claims of "bad faith", potential grounds for rescission
and/or other legal remedies under the terms of the Offering, the
covenants of the Securities and/or the Indemnification outlined in
Schedule B attached hereto
.
To the
extent any such requirements are expressly counter to the
provisions of any stock purchase agreement or
similar agreement
(“SPA”) subsequently executed by Client and Investors,
the provisions of the SPA shall control.
Financial Reporting
The
Company shall make available to the Investors and Laidlaw, if
permissible under law, unaudited quarterly financial statements and
an annual report containing audited financial statements of the
Company and its subsidiaries by filing with the Securities and
Exchange Commission on the Electronic Data, Gathering, Analysis,
and Retrieval System (EDGAR), electronic notification or mailing
the report to both Investors and Laidlaw in hard copy.
Conference Calls
The
Company agrees to hold dial-in conference calls or calls utilizing
other suitable electronic conferencing capability on no less than a
quarterly basis, with the ability to replay such calls for a
reasonable period of time following each call. Both Laidlaw and
stockholders will be provided access to such calls through
electronic notification reasonably in advance of each
call.
Independent Auditors
The
Company agrees to use qualified independent auditors approved by
the Board of Directors to issue annual financial reports to the
Board of Directors and to stockholders in accordance with U.S. GAAP
standards.
Independent Counsel
The
Company agrees to use independent legal counsel(s) with the
requisite experience and expertise to provide appropriate
oversight, advice and opinions to the Company as needed to the
Board of Directors and to management; to review and approve any
shareholder communications or public filings if applicable; and to
ensure Company compliance with any other requirements of this
Agreement or stakeholder rights.
Company Record
The
Company agrees, to the extent required to be disclosed by US
federal securities laws, to notify in writing to all shareholders
and to Laidlaw, or file a notification with the SEC on EDGAR : (i)
any change in the company’s name; (ii)any change in the par
value of the Company’s securities; (iii) any change in the
Company’s principle address; (iv) a change in its place of
organization; (v) a stock split or reverse stock split; (vi) a
change in symbol if applicable; (vii) any reclassification or
exchange of Company shares for another security; (viii) the listing
on any market of a new class of Company securities; (ix) any other
material aspect of the Company’s corporate structure,
securities or ownership, to the extent required to be disclosed by
U.S. federal securities laws, such notice to be given no later than
10 days after the change unless prior notice is required by
applicable law or regulation.
Website Maintenance
For the
sake of additional transparency, subject to applicable securities
laws and regulations, the Company agrees to maintain and update no
less than quarterly its official website with access available to
shareholders, investors, Laidlaw and interested parties. The
information available on such website should be designed to provide
timely and informative disclosure of the Company’ operations
insofar as such disclosure is required and permissible within
the
law and federal,
state and local regulatory guidelines, and does not, in the
reasonable judgment of the Board of
Directors, present
a material risk to the Company’s overall business or the
proprietary nature of any of its activities.
Transfer Agent & Legal Opinions
Upon
completion, any transaction in which the capital shares of the
Company become publicly traded, the Company shall use a “DWAC
fast-eligible” transfer agent at all times and to stay
current in regard to any financial obligations that the Company may
have to such transfer agent.
The
Company agrees to promptly obtain, at its own expense, any legal
opinions or supporting documentation reasonably required by such
transfer agent or any other party relating to the exercise,
conversion, sale or disposition of any securities, warrants or
derivative instruments held by Laidlaw or any stockholders
introduced to the Company by Laidlaw pursuant to this Agreement and
to instruct Company counsel and pay such counsel and Company
personnel to use their reasonable best efforts to perform all such
functions relating to such stockholder action, regardless of how
often, as expeditiously as reasonably possible but in no event more
than three (3) days after the sale or reverse.
Exclusion
Notwithstanding any
of the above, the Company shall comply with all of the requirements
of the market or exchange on which it is listed or shall become
listed in the future, and shall also comply with all of the above
requirements insofar as such is permitted or is not otherwise
precluded by the market-listing requirements.
SCHEDULE D
September 12,
2017
MabVax
Therapeutics Holdings, Inc.
11535
Sorrento Valley Road, Suite 400
San
Diego, CA 92121
Re:
MabVax Therapeutics Holdings, Inc.
Ladies
and Gentlemen:
We have
acted as special counsel for MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “
Company
”), in connection
with the preparation and filing of the prospectus supplement, dated
September 12, 2017 (the “
Prospectus
Supplement
”), filed with the Securities and
Exchange Commission (the “
Commission
”) pursuant to
Rule 424(b) of the rules and regulations of the Securities Act. The
Company filed a Registration Statement on Form S-3 (File No.
333-219291) (the “
Registration Statement
”)
and the base prospectus included therein with the Commission on
July 14, 2017, as amended July 21, 2017, and declared effective
July 27, 2017. The base prospectus together with the prospectus
supplement are collectively referred to as the
Prospectus
.
The
Prospectus Supplement pertains to a registered direct offering (the
“
Offering
”) by the Company
of 4,000,000 shares (the “
Shares
”) of the
Company’s common stock, par value $0.01 per share (the
“
Common
Stock
”) pursuant to certain Subscription Agreements
entered into by and between the Company and the certain accredited
investors (the “
Subscription
Agreements
”).
We
understand that the Shares are to be sold, as described in the
Registration Statement, the Prospectus and the Prospectus
Supplement, pursuant to the Subscription Agreement filed as
Exhibit 10.1
to the
Current Report on Form 8-K to which this opinion is attached as
Exhibit
5.1
.
In
connection with this opinion, we have examined the Registration
Statement, the Prospectus and the Prospectus Supplement. We also
have examined such corporate records, certificates and other
documents and such questions of law as we have considered necessary
or appropriate for the purpose of this opinion. We have assumed:
(A) the genuineness and authenticity of all documents submitted to
us as originals and (B) the conformity to originals of all
documents submitted to us as copies thereof. As to certain factual
matters, we have relied upon certificates of officers of the
Company and have not sought independently to verify such
matters.
Based
on the foregoing, and subject to the assumptions, limitations and
qualifications set forth herein, we are of the opinion that the
issuance and sale of the Shares has been duly authorized and, when
issued and sold in the manner described in the Registration
Statement, the Prospectus and the Prospectus Supplement and in
accordance with the terms and conditions of the Subscription
Agreement, the Shares will be validly issued, fully paid and
non-assessable.
We
hereby consent to the inclusion of this opinion as
Exhibit 5.1
to the
Company’s Current Report on Form 8-K dated September 12, 2017
and to the references to our firm therein and in the Prospectus and
the Prospectus Supplement under the caption “Legal
Matters.” In giving our consent, we do not admit that we are
in the category of persons whose consent is required under Section
7 of the Securities Act or the rules and regulations
thereunder.
|
|
Very
truly yours,
/s/
Sichenzia Ross Ference Kesner LLP
Sichenzia
Ross Ference Kesner LLP
|
61 Broadway New
York, NY 10006
T (212) 930 9700 F
(212) 930 9725 WWW.SRFKLLP.COM
Exhibit 10.1
SUBSCRIPTION AGREEMENT
MabVax
Therapeutics Holdings, Inc.
11535 Sorrento Valley Road, Suite 400
San Diego, CA 92121
Ladies
and Gentlemen:
The
undersigned (the “
Investor
”) hereby confirms and
agrees with you as follows:
|
1.
|
This
Subscription Agreement (this “
Agreement
”) is made as of the
date set forth below between MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “
Company
”) and the
Investor.
|
|
2.
|
The
Company has authorized the sale and issuance of (i) up
4,000,000 shares (the “
Shares
” or the
“
Securities
”)
of the Company’s common stock, $0.01 par value per share (the
“
Common Stock
”)
for a purchase price of $0.50 per Share (the “
Offering
”). The Offering and
issuance of the Securities have been registered under the
Securities Act of 1933, as amended (the “
Securities Act
”), pursuant to the
Company’s Registration Statement on Form S-3 (No.
333-219291), including all amendments thereto, the exhibits and any
schedules thereto, the documents otherwise deemed to be a part
thereof or included therein by the rules and regulations of the
Securities and Exchange Commission (the “
Commission
”) and any registration
statement relating to the Offering and filed pursuant to Rule
462(b) under such rules and regulations (collectively, the
“
Registration
Statement
”).
|
|
3.
|
As of
the Closing (as defined below) and subject to the terms and
conditions hereof, the Company and the Investor agree that the
Investor will purchase from the Company and the Company will issue
and sell to the Investor such number of Shares as is set forth on
the signature page hereto. Certificates representing the Shares
purchased by the Investor will not be issued to the Investor;
instead, such Shares will be credited to the Investor using
customary procedures for book-entry transfer through the facilities
of The Depository Trust Company.
|
|
4.
|
The
completion of the purchase and sale of the Securities shall occur
on the third day following the date hereof on which The NASDAQ
Capital Market is open for trading, or such other time not later
than 3 business days after such date as shall be agreed upon by the
Company and the Investor (the “
Closing
”). At the Closing,
(a) the Company shall cause its transfer agent to release to
the Investor the number of Shares being purchased by the Investor,
and (b) the aggregate purchase price for the Securities being
purchased by the Investor will be delivered by or on behalf of the
Investor to the Company. Settlement for the Shares shall occur via
Deposit/Withdrawal At Custodian. The provisions set forth in
Exhibit A hereto shall be incorporated herein by reference as if
set forth fully herein.
|
|
5.
|
The
Company has filed with the Commission a prospectus (the
“
Base
Prospectus
”) and will promptly file a final prospectus
supplement (collectively with the Base Prospectus, the
“
Prospectus
”)
with respect to the Registration Statement in conformity with the
Securities Act, including Rule 424(b) thereunder. The Company will
cause to be delivered or made available a copy of the Prospectus to
the Investor prior to Closing and the Investor hereby consents to
the receipt of the Company’s Prospectus in portable document
format, or .pdf, via e-mail.
|
|
6.
|
The
Company hereby makes the following representations, warranties and
covenants to the Investor:
|
(a) The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereunder have
been duly authorized by all necessary action on the part of the
Company. This Agreement has been duly executed by the Company and,
when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as may be limited
by any bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally or by general
principles of equity.
(b) The
Company shall (i) before 8:30 A.M., New York City time, on
September 12, 2017, issue a press release, disclosing all material
aspects of the transactions contemplated hereby, (ii) on
September 12, 2017, file with the Commission a Current Report on
Form 8-K, disclosing the material terms and conditions of the
transactions contemplated hereby and (ii) make such other
filings and notices in the manner and time required by the
Commission with respect to the transactions contemplated
hereby.
(c) The
Company shall not sell, offer for sale or solicit offers to buy any
security (as defined in Section 2 of the Securities Act) in a
transaction that would be (i) integrated with the offer or
sale of the Securities for purposes of the rules and regulations of
The NASDAQ Capital Market and (ii) would require approval of
the Company’s stockholders prior to the closing of such other
transaction, unless such stockholder approval is obtained before
the closing of such other transaction.
(d) If
the Company applies to have the Common Stock traded on any trading
market other than The NASDAQ Capital Market, it will then include
in such application all of the Shares, and will take such other
action as is reasonably necessary to cause all of the Common Stock
to be listed or quoted on such other trading market as promptly as
possible.
|
7.
|
The
obligations of the Company and the Investor to complete the
transactions contemplated by this Agreement shall be subject to the
following:
|
(a) The
Company’s obligation to issue and sell the Securities to the
Investor shall be subject to: (i) the receipt by the Company
of the purchase price for the Shares being purchased hereunder as
set forth on the signature page hereto and (ii) the accuracy
of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled
prior to the Closing Date.
(b) The
Investor’s obligation to purchase the Securities shall be
subject to the accuracy of the representations and warranties made
by the Company and the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing Date.
|
8.
|
The
Investor hereby makes the following representations, warranties and
covenants to the Company:
|
(a) The
Investor represents that it has received or had full access to the
Base Prospectus as well as the Company’s periodic reports and
other information incorporated by reference therein, prior to or in
connection with its receipt of this Agreement.
(b) The
Investor has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Investor and
the consummation by it of the transactions contemplated hereunder
have been duly authorized by all necessary action on the part of
the Investor. This Agreement has been executed by the Investor and,
when delivered in accordance with the terms hereof, will constitute
a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms.
(c) The
Investor understands that nothing in this Agreement or any other
materials presented to the Investor in connection with the purchase
and sale of the Securities constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of
Securities.
(d) The
making, execution and performance of this Agreement by the Investor
and the consummation of the transactions contemplated herein will
not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under,
(i) the charter, bylaws or other organizational documents of
such Investor, as applicable, or (ii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any court,
administrative agency, regulatory body, government or governmental
agency or body, domestic or foreign, having jurisdiction over such
Investor or its properties, except for any conflict, breach,
violation or default which is not reasonably likely to have a
material adverse effect on such Investor’s performance of its
obligations hereunder or the consummation of the transactions
contemplated hereby.
(e)
Reserved.
(f)
Reserved.
(g) The
Investor acknowledges that the Company will have the authority to
issue shares of Common Stock, in excess of those being issued in
connection with the Offering, and that the Company may issue
additional shares of Common Stock from time to time. The issuance
of additional shares of Common Stock may cause dilution of the
existing shares of Common Stock and a decrease in the market price
of such existing shares.
(h) If
the Investor is a retirement plan or is investing on behalf of a
retirement plan, the Investor acknowledges that an investment in
the Securities poses additional risks, including the inability to
use losses generated by an investment in the Securities to offset
taxable income.
(i) The
Investor acknowledges that no action had been or will be taken in
any jurisdiction outside the United States by the Company that
would permit an offering of the Securities, or possession or
distribution of offering materials in connection with the issue of
the Securities, in any jurisdiction outside the United States where
action for that purpose is required. Each Investor outside the
United States will comply with all applicable laws and regulations
in each foreign jurisdiction in which it purchases, offers, sells
or delivers Securities or has in its possession or distributes any
offering material, in all cases at its own expense.
(j) The
Investor acknowledges that the Company and others will rely upon
the truth and accuracy of the foregoing representations,
acknowledgements and agreements and agrees that if any of the
representations, warranties and acknowledgements deemed to have
been made by it by its purchase of the Securities is no longer
accurate, the Investor shall promptly notify the Company. If the
Investor is acquiring Securities as a fiduciary or agent for one or
more investor accounts, it represents that is has sole investment
discretion with respect to each such account and it has full power
to make the foregoing representations, warranties, acknowledgements
and agreements on behalf of such account.
(a)
Within 5 days of the Closing Date, the Company shall use its best
efforts to exchange all of its outstanding shares of Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred
Stock, and Series J Preferred Stock for junior secured convertible
promissory notes in the aggregate amount of up to approximately
$7.0 million, and to sell up to $750,000 of such notes for cash,
such notes to bear interest at an interest rate equal to 4% per
annum, mature on the 12 months anniversary of issue date, and be
secured by a first priority security interest in all collateral of
the Company not previously pledged to the existing senior lender to
the Company (the “Notes”) and be convertible into
Common Stock at a conversion price of $0.60 per share.
(c) The
Company shall prepare and within 30 days file a registration
statement with the Commission on Form S-3, if available, or Form
S-1, if Form S-3 is not available (the “Registration
Statement”), to register the
resale of the shares of Common
Stock issuable upon conversion of the Notes and all shares
referenced in section 10 hereof (the “Conversion
Shares”) such registration to be declared effective within 60
days of the Closing Date (the “Filing Date”). The
Company shall use its reasonable best efforts to cause the
Registration Statement to be declared effective under the
Securities Act as soon as possible and, in any event, by 45 days
following the Filing Date. The Company shall use its
reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act until all
Conversion Shares covered by such Registration Statement have been
sold, or may be sold without the requirement to be in compliance
with Rule 144(c)(1) and otherwise without restriction or limitation
pursuant to Rule 144.
|
10.
|
In
connection with the Offering, the Company has engaged Laidlaw &
Company (UK) Ltd., as placement agent (the “Placement
Agent”) on a non-exclusive basis. The Company has
agreed to (i) pay the Placement Agent a cash fee equal to 7% of the
gross proceeds received by the Company from investors solely
introduced to the Company by the Placement Agent as determined by
the Company in its soled discretion and (ii) reimburse the
Placement Agent for its legal fees and expenses in connection with
the Offering up to $7,500. The Company shall issue 100,000 shares
of Common Stock for due diligence and 100,000 shares of Common
Stock to Company counsel in connection with legal fees and
expenses.
|
|
10.
|
Notwithstanding
any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the
Company and the Investor herein will survive the execution of this
Agreement, the delivery to the Investor of the Securities being
purchased and the payment therefor.
|
|
11.
|
This
Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the
Investor.
|
|
12.
|
The
headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed
to be part of this Agreement.
|
|
13.
|
In case
any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein will
not in any way be affected or impaired thereby.
|
|
14.
|
This
Agreement will be governed by, and construed in accordance with,
the internal laws of the State of New York, without giving effect
to the principles of conflicts of law that would require the
application of the laws of any other jurisdiction.
|
|
15.
|
This
Agreement may be executed in counterparts, each of which will
constitute an original, but all of which, when taken together, will
constitute but one instrument, and will become effective when
counterparts have been signed by each party hereto and delivered to
the other party.
|
|
16.
|
The
Investor acknowledges and agrees that such Investor’s receipt
of the Company’s counterpart to this Agreement shall
constitute written confirmation of the Company’s agreement to
sell Securities to such Investor. No federal or state agency or
authority has made any finding or determination as to the accuracy
or adequacy of the Registration Statement or as to the fairness of
the terms of the Offering nor any recommendation or endorsement of
the Securities. Any representation to the contrary is a criminal
offense. In making an investment decision, Investors must rely on
their own examination of the Company and the terms of the Offering,
including the merits and risks involved.
|
INVESTOR SIGNATURE PAGE
Number
of Shares:
Purchase
Price Per Share: $0.50
Aggregate
Purchase Price:
Please
confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that
purpose.
Dated
as of: September 11, 2017
|
|
|
|
|
INVESTOR
|
|
By:
|
|
Print
Name:
|
|
Title:
|
Name in
which Securities are to be registered:
Mailing
Address:
Taxpayer
Identification Number:
Agreed
and Accepted this
day of
,
2017:
|
|
|
MABVAX
THERAPEUTICS HOLDINGS, INC.
|
|
By:
|
|
Title:
|
E
XHIBIT
A
TO BE COMPLETED BY INVESTOR
DWAC SETTLEMENT
Delivery
by electronic book-entry at The Depository Trust Company
(“
DTC
”),
registered in the Investor’s name and address as set forth on
the signature page of the Agreement to which this
Exhibit A
is attached, and
released by Computershare Trust Company, N.A., the Company’s
transfer agent (the “
Transfer Agent
”), to the Investor
at the Closing.
|
|
|
|
|
Name of
DTC Participant (broker-dealer at which the account or accounts to
be credited with the Shares are maintained):
|
|
|
|
|
|
|
DTC
Participant Number:
|
|
|
|
|
|
|
Name of
Account at DTC Participant being credited with the
Shares:
|
|
|
|
|
|
|
Account
Number at DTC Participant being credited with the
Shares:
|
|
|
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE
AGREEMENT TO WHICH THIS
EXHIBIT A
I
S ATTACHED BY THE INVESTOR AND THE
COMPANY, THE INVESTOR SHALL:
|
|
|
|
|
|
|
|
(I)
|
|
DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) ON THE CLOSING
DATE INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR
ACCOUNTS WITH THE SHARES, AND
|
|
|
|
|
(II)
|
|
REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE INVESTOR
TO THE FOLLOWING ACCOUNT:
|
Beneficiary Bank Name: Pacific Premier Bank
17901 Von Karman Ave.
Irvine, CA 92614
Routing # 322285781
Beneficiary: Name: MabVax Therapeutics Holdings, Inc.
Address: 11535 Sorrento Valley Rd., Suite 400
San Diego, CA 92121
Account#: 1202301844
Reference:
[
Exact Name of Investor
]:
___________________
