Exhibit
5.1
October
11, 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
October 10, 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 769,231 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 October 11, 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.
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Very
truly yours,
/s/
Sichenzia Ross Ference Kesner LLP
Sichenzia
Ross Ference Kesner LLP
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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 to 769,231
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 $0.65 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 second day following the date hereof on which The NASDAQ
Capital Market is open for trading, or such other time not later
than 2 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 9:00 A.M., New York City time, on
October 11, 2017, issue a press release, disclosing all material
aspects of the transactions contemplated hereby, (ii) on
October 11, 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) 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.
(f) 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.
(g) 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.
(h) 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.
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: $0.65
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: October 10, 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.
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Name of
DTC Participant (broker-dealer at which the account or accounts to
be credited with the Shares are maintained):
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DTC
Participant Number:
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Name of
Account at DTC Participant being credited with the
Shares:
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Account
Number at DTC Participant being credited with the
Shares:
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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:
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(I)
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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
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(II)
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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:
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