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): October 16,
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.
On
October 18, 2017, MabVax Therapeutics Holdings, Inc. (the
Company”) entered into exchange agreements (each, an
“Exchange Agreement” and collectively, the
“Exchange Agreements”) with the holders of all of the
Company’s outstanding shares of Series F Convertible
Preferred Stock (the “Series F Preferred Stock”),
Series G Convertible Preferred Stock (the “Series G Preferred
Stock”) and Series H Convertible Preferred Stock (the
“Series H Preferred Stock”), pursuant to which 665,281
shares of Series F Preferred Stock, 1,000,000 shares of Series G
Preferred Stock and 850 shares of Series H Preferred Stock were
exchanged for an aggregate of 58,000 newly authorized shares of
Series L Convertible Preferred Stock (the “Series L Preferred
Stock”).
In
connection with the transaction we agreed to hold a special meeting
of stockholders to approve the issuance of common stock upon
conversion of the Series L Preferred Stock.
The
terms of the Exchange Agreements and Series L Preferred Stock were
determined by arms-length negotiation between the parties. No
commission or other payment was received by the Company in
connection with the Exchange Agreements. Such exchange was
conducted pursuant to the exemption provided by
Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”), and Series L Preferred Stock
issuable pursuant to the Exchange Agreements and the Conversion
Shares will be issued in reliance on the exemption from
registration contained in Section 3(a)(9) of the Securities
Act.
Pursuant
to a registration rights agreement entered into between the Company
and the Holders on October 18, 2017 (the “Registration Rights
Agreement”), the Company agreed to use its reasonable best
efforts to file a registration statement registering the Conversion
Shares for resale within ten days of closing and cause the
registration statement to be declared effective within 30 days of
filing.
The
foregoing description of the Exchange Agreement and Registration
Rights Agreement is not complete and is qualified in its entirety
by reference to the full text of the form of Exchange Agreement and
form of Registration Rights Agreement, copies of which are filed as
Exhibits 10.1 and 10.2 to this report, respectively, and are
incorporated herein by reference.
Item
3.02
Unregistered
Sales of Equity Securities.
The
information set forth in Item 1.01 is incorporated herein by
reference.
Item
5.03
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On October 16, 2017, the Company filed a Certificate of
Designations, Preferences and Rights of the 0% Series L Convertible
Preferred Stock
(the
"Certificate of Designation")
with the Delaware
Secretary of State, designating 58,000 shares of preferred stock as
Series L Preferred Stock.
On
October 18, 2017, the Company filed a Certificate of Correction to
the Certificate of Designation to include a sentence that was
inadvertently omitted.
The shares of Series L Preferred Stock are convertible into shares
of common stock based on a conversion calculation equal to the
stated value of the Series L Preferred Stock, plus all accrued and
unpaid dividends (the “Base Amount”), if any, on such
Series L Preferred Stock, as of such date of determination, divided
by the conversion price. The stated value of each share of Series L
Preferred Stock is $100 and the initial conversion price is $0.60
per share, each subject to adjustment for stock splits, stock
dividends, recapitalizations, combinations, subdivisions or other
similar events.
The holders of Series L Preferred Stock will be entitled to receive
dividends if and when declared by our board of directors. The
Series L Preferred Stock shall participate on an “as
converted” basis, with all dividends declared on our common
stock. In addition, if the Company grants, issues or
sells any rights to purchase its securities pro rata to all record
holders of common stock, each holder will be entitled to acquire
such securities applicable to the granted purchase rights as if the
holder had held the number of shares of common stock acquirable
upon complete conversion of all Series L Preferred Stock then
held.
We are prohibited from effecting a conversion of the Series L
Preferred Stock
if the Company has
not obtained stockholder approval for the full conversion of the
Series L Preferred Stock in accordance with the rules of the Nasdaq
Stock Market LLC ("Nasdaq") or
to the extent that, as a result of such
conversion, the holder would beneficially own more than 4.99% of
the number of shares of common stock outstanding immediately after
giving effect to the issuance of shares of common stock upon
conversion of the Series L Preferred Stock, which beneficial
ownership limitation may be increased by the holder up to, but not
exceeding, 9.99%. Each holder is entitled to vote on all matters
submitted to stockholders of the Company, and shall have the number
of votes equal to the number of shares of common stock issuable
upon conversion of such holder’s Series L Preferred
Stock,
substituting the consolidated closing bid price of
the common stock on October 13, 2017, for the then-applicable
conversion price, and
not in excess of
the beneficial ownership limitations or limitations required by the
rules and regulations of Nasdaq.
Holders
of Series L Preferred Stock will be entitled to a preferential
payment of cash per share equal to the greater of 100% of the Base
Amount on the date of payment or the amount per share had the
holders converted such preferred shares immediately prior to the
date of payment upon the liquidation, dissolution or winding up of
the affairs of the Company, or a consolidation or merger of the
Company with or into any other corporation or corporations, or a
sale of all or substantially all of the assets of the Company, or
the effectuation by the Company of a transaction or series of
transactions in which more than 50% of the voting shares of the
Company is disposed of or conveyed.
The
foregoing description of the Certificate of Designation is not
complete and is qualified in its entirety by reference to the full
text of the Certificate of Designation and Certificate of
Correction, copies of which are filed as Exhibits 3.1 and 3.2 to
this report, respectively, and are incorporated herein by
reference.
Item
9.01
Financial
Statements and Exhibits
(d)
Exhibits.
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Exhibit No.
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Description
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Certificate
of Designations of Preferences, Rights and Limitations of Series L
Convertible Preferred Stock
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Certificate of Correction to the Certificate of Designations of
Preferences, Rights and Limitations of Series L Convertible
Preferred Stock
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Form of
Exchange Agreement
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Form of
Registration Rights Agreement
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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: October 19, 2017
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/s/ Gregory P. Hanson
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Gregory P. Hanson
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Chief Financial Officer
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Exhibit 3.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
THE
0% SERIES L 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 October 16, 2017, adopted the following resolutions
creating a series of shares of Preferred Stock designated as 0%
Series L 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 October
16, 2017:
RESOLVED, that the
Board designates the 0% Series L 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 L 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 L Convertible Preferred Stock” (the
“
Preferred
Shares
”). The authorized number of Preferred Shares
shall be 58,000 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 J Preferred Stock and Series K 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 L PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(c)(vi) THEREOF. THE NUMBER OF
SHARES OF SERIES L PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES L PREFERRED STOCK
STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(vi) OF THE
CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES L
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 in accordance with Section
13(d) of the 1934 Act and the rules and regulations promulgated
thereunder.
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)
Reserved.
(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)
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 October 13, 2017 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)
100% of 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,
$0.60,
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)
“
Liquidation Event
” means the
liquidation, dissolution or winding up of the affairs of the
Company, whether voluntary or involuntary. Notwithstanding the
foregoing, a consolidation or merger of the Company with or into
any other corporation or corporations, or a sale of all or
substantially all of the assets of the Company, or the effectuation
by the Company of a transaction or series of transactions in which
more than 50% of the voting shares of the Company is disposed of or
conveyed, shall be deemed to be a Liquidation Event.
(l)
“
Options
” means any rights,
warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities.
(m)
“
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.
(n)
“
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.
(o)
“
Principal
Market
” means the The NASDAQ Capital
Market.
(p)
Reserved.
(q)
“
SEC
”
means the Securities and Exchange Commission or the successor
thereto.
(r)
“
Stated Value
” shall mean $100 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.
(s)
“
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.
(t)
“
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.
(u)
“
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.
(v)
“
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.
(w)
“
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 L Convertible Preferred Stock of MabVax
Therapeutics Holdings, Inc. to be signed by its President and Chief
Executive Officer on this 16th day of October, 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 L 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 L 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.
Name:
Title:
Exhibit
3.2
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
THE
0% SERIES L CONVERTIBLE PREFERRED STOCK
OF
MABVAX THERAPEUTICS HOLDINGS, INC.
A Delaware Corporation
MabVax
Therapeutics Holdings, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the
“Company”), in accordance with the provisions of
Section 103 thereof, DOES HEREBY CERTIFY:
1. The
name of the Company is MabVax Therapeutics Holdings,
Inc.
2. A
Certificate of Designation for Series L Convertible Preferred Stock
of the Corporation (the “Certificate of Designation”)
was filed with the Secretary of State for the State of Delaware on
October 16, 2017, and the Certificate of Designation requires
correction as permitted by subsection (f) of Section 103 of the
General Corporation Law of the State of Delaware.
3. The
inaccuracy or defect of the Certificate of Designation is that the
said Certificate of Designation inadvertently omitted a sentence
relating to shareholder approval of conversions from Section 4
“Conversion.”
4. The
Certificate of Designation is corrected by replacing Section 4 in
its entirety with the following:
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. Notwithstanding
anything herein to the contrary, if the Company has not obtained
the approval of its shareholders in accordance with the rules of
the Nasdaq Stock Market LLC for the conversion of the Preferred
Shares, then the Company may not issue upon conversion of the
Preferred Shares any shares of Common Stock.
(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; Dispute
.
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 theCompany, 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 L PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(c)(vi) THEREOF. THE NUMBER OF
SHARES OF SERIES L PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES L PREFERRED STOCK
STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(vi) OF THE
CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES L
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 in accordance with Section
13(d) of the 1934 Act and the rules and regulations promulgated
thereunder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Certificate of
Correction to be executed as of the 18th day of October
2017.
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MABVAX
THERAPEUTICS HOLDINGS, INC.
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By:
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/s/ J. David
Hansen
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Name:
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J.
David Hansen
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Title:
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President
and Chief Executive Officer
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Exhibit 10.1
EXCHANGE
AGREEMENT
THIS
EXCHANGE AGREEMENT (the “Agreement”), effective as
October ____, 2017,
is
made by and between MabVax Therapeutics Holdings, Inc., a Delaware
corporation (“Company”), and the holder of Exchange
Securities (as defined herein) signatory hereto (the
“Holder”).
WHEREAS, the Holder
owns shares of the Company’s Series ________
1
Convertible Preferred Stock as set forth
on column 1 on Schedule A, annexed hereto (the “Exchange
Securities”);
WHEREAS, the
Company wishes to issue the Series L Preferred Shares (as such term
is defined below) for the Exchange Securities as provided
herein; and
WHEREAS, the
Company has authorized a new series of convertible preferred stock
of the Company designated as Series L Convertible Preferred Stock,
$0.01 par value, the terms of which are set forth in the
Certificate of Designation of Preferences, Rights and Limitations
of 0% Series L Convertible Preferred Stock (the “Certificate
of Designations”) in the form attached hereto as
Exhibit A
(together with any
convertible preferred shares issued in replacement thereof in
accordance with the terms thereof, the “Series L Preferred
Shares”), which Series L Preferred Shares shall be
convertible into Common Stock, in accordance with the terms of the
Certificate of Designations;
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”), the Company desires to exchange with
the Holder, and the Holder desires to exchange with the Company,
the Exchange Securities for the Series L Preferred Shares (the
“Exchange”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and Holder agree as follows:
1.
Terms of the Exchange
. The
Company and Holder agree that (i) the Holder will exchange the
Exchange Securities and will relinquish any and all other rights it
may have under the Exchange Securities in exchange for such number
of Series L Preferred Shares as set forth in column 2 on
Schedule A
, annexed
hereto.
2.
Closing
. Upon satisfaction of
the conditions set forth herein, a closing shall occur at the
principal offices of the Company, or such other location as the
parties shall mutually agree (the “Closing”). At
Closing, Holder shall surrender the Exchange Securities and the
Company shall deliver to Holder the Series L Preferred Shares, in
such amounts as are set forth on
Schedule A
. Upon Closing, any
and all obligations of the Company to Holder under the Exchange
Securities shall be fully satisfied and Holder will have no
remaining rights, powers, privileges, remedies or interests under
the Exchange Securities.
3.
Further Assurances
. Each party
shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as any
other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
4.
Representations and Warranties of the
Holder
. The Holder represents and warrants as of the date
hereof and as of the closing to the Company as
follows:
a.
Authorization; Enforcement
. The
Holder 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 and
thereunder. The execution and delivery of the Agreement by the
Holder and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary
action on the part of the Holder and no further action is required
by the Holder. This Agreement has been (or upon delivery will have
been) duly executed by the Holder and, when delivered in accordance
with the terms hereof, will constitute the valid and binding
obligation of the Holder enforceable against the Holder in
accordance with its terms, except: (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
b.
Tax Advisors
. The Holder has
reviewed with its own tax advisors the U.S. federal, state, local
and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. With respect to such
matters, the Holder relies solely on such advisors and not on any
statements or representations of the Company or any of its agents,
written or oral. The Holder understands that it (and not the
Company) shall be responsible for its own tax liability that may
arise as a result of this investment or the transactions
contemplated by this Agreement.
c.
Information Regarding Holder
.
Holder is an “accredited investor”, as such term is
defined in Rule 501 of Regulation D promulgated by the United
States Securities and Exchange Commission (the
“Commission”) under the Securities Act, is experienced
in investments and business matters, has made investments of a
speculative nature and has purchased securities of companies in
private placements in the past and, with its representatives, has
such knowledge and experience in financial, tax and other business
matters as to enable the Holder to utilize the information made
available by the Company to evaluate the merits and risks of and to
make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. Holder has the
authority and is duly and legally qualified to purchase and own the
Securities (as defined below). Holder is able to bear the risk of
such investment for an indefinite period and to afford a complete
loss thereof.
d.
Legend
. The Holder understands
that the Series L Preferred Shares and the shares of Common Stock
issuable upon conversion of the Series L Preferred Shares (the
“Conversion Shares” and, together with the Series L
Preferred Shares, the “Securities”) when issued, shall
be issued, pursuant to an exemption from registration or
qualification under the Securities Act and applicable state
securities laws, and except as set forth below, the Securities
shall bear any legend as required by the “blue sky”
laws of any state and a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against
transfer of such stock certificates):
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.
e.
Removal of Legends
.
Certificates evidencing the Securities shall not be required to
contain the legend set forth in Section 4(d) 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 Shares pursuant to Rule 144 (as defined
herein) (assuming the transferor is not an affiliate of the
Company), (iii) if such Shares are eligible to be sold, assigned or
transferred under Rule 144 and the Holder is not an affiliate of
the Company (provided that the Holder provides the Company with
reasonable assurances that such Shares are eligible for sale,
assignment or transfer under Rule 144 which shall not include an
opinion of the Holder’s counsel), (iv) in connection with a
sale, assignment or other transfer (other than under Rule 144),
provided that the Holder provides the Company with an opinion of
counsel to the Holder, in a generally acceptable form, 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 Commission). 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 Holder to the Company or the
transfer agent (with notice to the Company) of a legended
certificate representing such Shares (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 Holder as may be required above
in this Section 4(e), as directed by the Holder, either: (A)
provided that the Company’s transfer agent is participating
in the DTC Fast Automated Securities Transfer Program, credit the
aggregate number of shares of Common Stock to which the Holder
shall be entitled to the Holder’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
Holder, a certificate representing such Shares that is free from
all restrictive and other legends, registered in the name of the
Holder or its designee. The Company shall be responsible for any
transfer agent fees or DTC fees with respect to any issuance of
Shares or the removal of any legends with respect to any Shares in
accordance herewith, including, but not limited to, fees for the
opinions of counsel rendered to the transfer agent in connection
with the removal of any legends.
f.
Restricted Securities
. The
Holder understands that: (i) the Securities have not been and are
not being registered under the Securities Act or any state
securities laws, and may not be offered for sale, sold, assigned or
transferred unless (A) subsequently registered thereunder, (B) the
Holder shall have delivered to the Company (if requested by the
Company) an opinion of counsel to the Holder, in a form reasonably
acceptable to the Company, to the effect that such Shares to be
sold, assigned or transferred may be sold, assigned or transferred
pursuant to an exemption from such registration, or (C) the Holder
provides the Company with reasonable assurance that such Shares can
be sold, assigned or transferred pursuant to Rule 144 or Rule 144A
promulgated under the Securities Act (or a successor rule thereto)
(collectively, “Rule 144”); (ii) any sale of the
Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144, and further, if Rule 144 is
not applicable, any resale of the Securities under circumstances in
which the seller (or the Person through whom the sale is made) may
be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the
Commission promulgated thereunder; and (iii) neither the Company
nor any other Person is under any obligation to register the
Securities under the Securities Act or any state securities laws or
to comply with the terms and conditions of any exemption thereunder
except as set forth herein.
5.
Representations and Warranties of the
Company
. The Company hereby makes the following
representations and warranties to the Holder:
a.
Authorization; Enforcement
. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and each of the other agreements entered into by the
parties hereto in connection with the transactions contemplated by
this Agreement (collectively, the “Exchange Documents”)
and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement
by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action
is required by the Company, the Board of Directors of the Company
or the Company’s stockholders in connection therewith,
including, without limitation, the issuance of the Securities, and
no further filing, consent, or authorization is required by the
Company, its Board of Directors or its stockholders, subject to
acceptance by the Nasdaq Capital Market of the LAS. This
Agreement and any Other Agreement (as defined herein) have been (or
upon delivery will have 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: (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
b.
Organization and Qualification
.
Each of the Company and its subsidiaries (the
“Subsidiaries”) are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in
which they are formed, and have the requisite power and
authorization to own their properties and to carry on their
business as now being conducted and as presently proposed to be
conducted. Each of the Company and each of its Subsidiaries is duly
qualified as a foreign entity to do business and is in good
standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect. As used in this Agreement, “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
Exchange Documents or (iii) the authority or ability of the Company
to perform any of its obligations under any of the Exchange
Documents. Other than its Subsidiaries, there is no Person (as
defined below) in which the Company, directly or indirectly, owns
capital stock or holds an equity or similar interest.
“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.
c.
No Conflict
. The execution,
delivery and performance of the Exchange Documents by the Company
and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Securities and reservation for issuance of the
Conversion Shares) will not (i) result in a violation of the
Certificate of Incorporation (as defined below) or other
organizational documents of the Company or any of its Subsidiaries,
any capital stock of the Company or any of its Subsidiaries or
Bylaws (as defined below) of the Company or any of its
Subsidiaries, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign,
federal and state securities laws and regulations and the rules and
regulations of the Principal Market applicable to the Company
except, in the case of clause (ii) or (iii) above, to the extent
such violations that could not reasonably be expected to have a
Material Adverse Effect.
d.
No Consents
. Neither the
Company nor any Subsidiary is required to obtain any consent from,
authorization or order of, or make any filing or registration with,
any court, governmental agency or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or
perform any of its respective obligations under or contemplated by
the Exchange Documents, in each case, in accordance with the terms
hereof or thereof. All consents, authorizations, orders, filings
and registrations which the Company or any Subsidiary is required
to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date of this Agreement, and neither the
Company nor any of its Subsidiaries is aware of any facts or
circumstances which might prevent the Company or any of its
Subsidiaries from obtaining or effecting any of the registration,
application or filings contemplated by the Exchange Documents.
Except as disclosed in the Company’s filings with the
Commission (the “SEC Documents”), the Company is not in
violation of the requirements of the Principal Market and has no
knowledge of any facts or circumstances which could reasonably lead
to delisting or suspension of the Common Stock in the foreseeable
future. The Company has obtained or submitted all necessary
consents and approvals from the Principal Market, including, if
required, a LAS application covering the listing of the Conversion
Shares with the Principal Market. In the event that the LAS has not
been approved prior to the Closing, the Conversion Shares shall be
subject to all limitations imposed by NASDAQ Listing Rule 5635 (d)
until such time as shareholder approval of the issuance of
Conversion Shares has been obtained.
e.
Securities Law Exemptions
.
Assuming the accuracy of the representations and warranties of the
Holder contained herein, the offer and issuance by the Company of
the Securities is exempt from registration under the Securities
Act. The offer and issuance of the Securities is exempt from
registration under the Securities Act pursuant to the exemption
provided by Section 3(a)(9) thereof. The Company covenants and
represents to the Holder that neither the Company nor any of its
Subsidiaries has received, anticipates receiving, has any agreement
to receive or has been given any promise to receive any
consideration from the Holder or any other Person in connection
with the transactions contemplated by the Exchange
Documents.
f.
Issuance of Securities
. The
issuance of the Series L Preferred Shares is duly authorized and
upon issuance in accordance with the terms of the Exchange
Documents shall be validly issued, fully paid and non-assessable
and free from all taxes, liens, charges and other encumbrances with
respect to the issue thereof. The issuance of the Conversion Shares
is duly authorized and upon issuance in accordance with the terms
of the Exchange Documents and Certificates of Designations shall be
validly issued, fully paid and non-assessable and free from all
taxes, liens, charges and other encumbrances with respect to the
issue thereof.
g.
Transfer Taxes
. As of the date
of this Agreement, all share transfer or other taxes (other than
income or similar taxes) which are required to be paid in
connection with the issuance of the Series L Preferred Shares to be
exchanged with the Holder hereunder will be, or will have been,
fully paid or provided for by the Company, and all laws imposing
such taxes will be or will have been complied with.
h.
Equity Capitalization
. Except
as disclosed in the SEC Documents: (i) none of the Company’s
or any Subsidiary’s capital stock is subject to preemptive
rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company or any Subsidiary; (ii) there
are no outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to,
or securities or rights convertible into, or exercisable or
exchangeable for, any capital stock of the Company or any of its
Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to issue additional capital stock of the Company
or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or
exercisable or exchangeable for, any capital stock of the Company
or any of its Subsidiaries, other than future potential issuances
of additional shares of Common Stock to Sichenzia Ross Ference
Kesner LLP for any future financings by the Company at a price per
share less than $0.50, and the potential issuance to a certain lead
investor in the Company’s prior financings of additional
shares of common stock or convertible preferred stock to obtain the
consent of the lead investor to future financings below $2.25 per
share, with such issuance obligations to cease when the investor no
longer owns any Series L Preferred Shares; (iii) there are no
outstanding debt securities, notes, credit agreements, credit
facilities or other agreements, documents or instruments evidencing
indebtedness
of the Company
or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound, other than that certain loan
and security agreement with Oxford Finance LLC dated January 15,
2016, and equipment leases and equipment financing in the ordinary
course of business; (iv) there are no financing statements securing
obligations in any amounts filed in connection with the Company or
any of its Subsidiaries; (v) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the
Securities Act other than various prior issuances of securities
that have not been previously registered; (vi) there are no
outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to redeem a security of the Company or any of its
Subsidiaries; (vii) there are no securities or instruments
containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities; (viii) neither the
Company nor any Subsidiary has any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan
or agreement; and (ix) neither the Company nor any of its
Subsidiaries have any liabilities or obligations required to be
disclosed in the SEC Documents which are not so disclosed in the
SEC Documents, other than those incurred in the ordinary course of
the Company’s or its Subsidiaries’ respective
businesses and which, individually or in the aggregate, do not or
could not have a Material Adverse Effect. The Company has furnished
to the Holder true, correct and complete copies of the
Company’s Certificate of Incorporation, as amended and as in
effect on the date hereof (the “Certificate of
Incorporation”), and the Company’s bylaws, as amended
and as in effect on the date hereof (the “Bylaws”), and
the terms of all securities convertible into, or exercisable or
exchangeable for, shares of Common Stock and the material rights of
the holders thereof in respect thereto that have not been disclosed
in the SEC Documents.
i.
Shell Company Status
. The
Company is not and has not, for a period of at least two years,
been an issuer identified in Rule 144(i)(1) of the Securities Act.
The Company is, and has been for a period of at least 90 days,
subject to the reporting requirements of Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
j.
Non-Affiliate.
The Company is
not, and is not an Affiliate of, and immediately after consummation
of the transactions contemplated by the Exchange Documents, 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 an “investment company” subject to
registration under the Investment Company Act of 1940, as
amended.
6.
Additional Agreements of the
Parties
. The Company and the Holder agree as
follows:
a.
Registration Rights
. The
Company shall file a “resale” registration statement
with the Commission covering the Conversion Shares, so that such
shares of common stock will be registered under the Securities Act.
The Company will maintain the effectiveness of the
“resale” registration statement from the effective date
of the registration statement until all Registrable Securities (as
defined in the Registration Rights Agreement, attached hereto as
Exhibit B) 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. The Company will use its
reasonable best efforts to have such “resale”
registration statement filed within ten (10) calendar days of the
Closing and declared effective by the Commission as soon as
possible and, in any event, by thirty (30) calendar days of the
Filing Date (the “Effectiveness Date”). The Company is
obligated to pay to the Holder a fee of one (1%) percent per month
of the stated value of the Series L Preferred Shares, payable in
cash, up to a maximum of six (6%) percent, on the Filing Date and
the Effectiveness Date if the registration obligations set forth
herein have not been met, and pro- rata for each month, or partial
month, in excess of the Filing Date and/or
the Effectiveness Date that the registration statement
has not been declared effective; provided, however, that the
Company shall not be obligated to pay any such liquidated damages
if the Company is unable to fulfill its registration obligations as
a result of rules, regulations, positions or releases issued or
actions taken by the Commission pursuant to its authority with
respect to “Rule 415” or other rules, regulations,
positions or releases issued or actions taken by the Commission,
provided the Company registers at such time the maximum number of
shares of Common Stock permissible upon consultation with the staff
of the Commission.
b.
Rule 144 Acknowledgments
. The
Holder and the Company confirm that the Company has not received
any consideration for the transactions contemplated by this
Agreement. Pursuant to Rule 144 promulgated by the Commission
pursuant to the Securities Act and the rules and regulations
promulgated thereunder as such Rule 144 may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule 144,
the holding period of the Securities tacks back to
___________.
2
The Company agrees not to take a
position contrary to this paragraph and, at Closing, the
Company’s counsel will deliver an opinion attesting to the
acknowledgements contained in Section 5(d), Section 5(e) and this
Section 6(b).
c.
Securities Laws Disclosure;
Publicity
. The Company shall within three (3)
Trading Days immediately following the Closing (a) issue a press
release disclosing the material terms of the transactions
contemplated hereby, and (b) file a Current Report on Form 8-K,
including the Exchange Documents as exhibits thereto, with the
Securities and Exchange Commission (the “Commission”)
within the time required by the Exchange Act. The
Company and the Holder shall consult with each other in issuing any
other press releases with respect to the transactions contemplated
hereby, and neither the Company nor the Holder shall issue any such
press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release
of the Holder, or without the prior consent of the Holder, with
respect to any press release of the Company, which consent shall
not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public
statement or communication. Notwithstanding the foregoing, the
Company shall not publicly disclose the name of the Holder, or
include the name of the Holder in any filing with the Commission or
any regulatory agency or Trading Market, without the prior written
consent of the Holder, except (a) as required by federal securities
law in connection with the filing of final Exchange Documents
(including signature pages thereto) with the Commission and (b) to
the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Holder
with prior notice of such disclosure permitted under this Section
6(c).
d.
Reserved
.
e.
Material Non-Public
Information
. Except with respect to the material terms and
conditions of the transactions contemplated by the Exchange
Documents, the Company covenants and agrees that neither it, nor
any other Person acting on its behalf, will provide Holder or its
agents or counsel with any information that the Company believes
constitutes material non-public information, unless prior thereto
Holder shall have entered into a written agreement with the Company
regarding the confidentiality and use of such information. The
Company understands and confirms that Holder shall be relying on
the foregoing covenant in effecting transactions in securities of
the Company.
f.
Conversion Procedures
. The form
of Notice of Conversion included in the Certificate of Designations
sets forth the totality of the procedures required of the Holder in
order to convert the Series L Preferred Shares. No additional legal
opinion, other information or instructions shall be required of the
Holder to convert their Series L Preferred Shares. The Company
shall honor conversions of the Series L Preferred Shares and shall
deliver the Securities in accordance with the terms, conditions and
time periods set forth in the Exchange Documents.
g.
Reporting Obligations
. Until
the earliest of the time that (i) the Holder no longer owns
Securities, the Company covenants to file all periodic reports with
the Commission pursuant to Section 15(d) of the Exchange Act or
alternatively, if registered under Section 12(b) or 12(g) of the
1934 Act, maintain the registration of the Common Stock under
Section 12(b) or 12(g) of the Exchange Act and 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 even if the Company is
not then subject to the reporting requirements of the Exchange Act.
At any time commencing on the Closing Date and ending at such time
that all of the Securities may be sold without the requirement for
the Company to be in compliance with Rule 144(c)(1) and otherwise
without restriction or limitation pursuant to Rule 144, if the
Company shall fail for any reason to satisfy the current public
information requirement under Rule 144(c) (a “Public
Information Failure”) then, in addition to Holder’s
other available remedies, the Company shall pay to a Holder, in
cash, as partial liquidated damages and not as a penalty, by reason
of any such delay in or reduction of its ability to sell the
Securities, an amount in cash equal to two percent (2.0%) of the
aggregate Stated Value (as defined in the Certificates of
Designations) of the Series L Preferred Shares and accrued interest
held by such Holder on the day of a Public Information Failure and
on every thirtieth (30th) day (pro-rated for periods totaling less
than thirty days) thereafter until the earlier of (a) the date such
Public Information Failure is cured and (b) such time that such
public information is no longer required for the Holder to transfer
the Conversion Shares pursuant to Rule 144. The payments to which a
Holder shall be entitled pursuant to this Section 6(h) are referred
to herein as “
Public
Information Failure Payments
.” Public Information
Failure Payments shall be paid on the earlier of (i) the last day
of the calendar month during which such Public Information Failure
Payments are incurred and (ii) the third (3rd) Business Day after
the event or failure giving rise to the Public Information Failure
Payments is cured. In the event the Company fails to make Public
Information Failure Payments in a timely manner, such Public
Information Failure Payments shall bear interest at the rate of one
(1.0%) percent per month (prorated for partial months) until paid
in full. Nothing herein shall limit Holder’s right to pursue
actual damages for the Public Information Failure, and Holder shall
have the right to pursue all remedies available to it at law or in
equity including, without limitation, a decree of specific
performance and/or injunctive relief.
h.
Form D; Blue Sky Filings
. The
Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D and to provide a copy
thereof, promptly upon request of Holder. The Company shall 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 Holder at the Closing under applicable securities
or “Blue Sky” laws of the states of the United States,
and shall provide evidence of such actions promptly upon request of
Holder.
i.
Preservation of Corporate
Existence
. The Company shall preserve and maintain its
corporate existence, rights, privileges and franchises in the
jurisdiction of its incorporation, and qualify and remain
qualified, as a foreign corporation in each jurisdiction in which
such qualification is necessary in view of its business or
operations and where the failure to qualify or remain qualified
might reasonably have a Material Adverse Effect upon the financial
condition, business or operations of the Company taken as a
whole.
j.
Shareholder
Approval of Exchange
. The Company shall hold a special
meeting of the shareholders of the Company within 60 days of the
date hereof, or at such other date that Broadridge Financial
Solutions, Inc. recommends for timely processing of materials for
the special meeting, at which the Company shall present to its
shareholders a proposal for approval of the Exchange. In the event
the Exchange is not approved at such shareholder meeting, the
Company shall hold an additional shareholder meeting, within 90
days of the first such shareholder meeting, at which the Company
shall present to shareholders a proposal for approval of the
Exchange. Until such time as the Exchange is approved by
shareholders of the Company, the Company shall continue to hold
shareholder meetings, each held within 90 days of the prior
shareholder meeting. In the event that the Exchange has not been
approved by shareholders of the Company within 60 days of the date
hereof as a result of gross negligence by the Company (the
“Shareholder Approval Deadline”), then, in addition to
any other rights the Holder may have hereunder or under applicable
law, the Company shall pay to the Holder on each 45-day anniversary
of the Shareholder Approval Deadline (if such shareholder approval
has not been obtained) until such shareholder approval has been
obtained as partial liquidated damages and not as a penalty, equal
to 1.0% of the aggregate Stated Value (as defined in the
Certificate of Designations) of the Series L Preferred Shares for
each month past the Shareholder Approval Deadline that the
shareholder approval has not been obtained (pro-rated for any
partial month in which such shareholder approval has not been
obtained), provided, however, the Company shall not pay to the
Holder more than 12.0% of the aggregate Stated Value (as defined in
the Certificates of Designations) of the Series L Preferred Shares
pursuant to this Agreement.
7.
Miscellaneous
.
a.
Successors and Assigns
. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
b.
Governing Law; Jurisdiction; Waiver of
Jury Trial
. This Agreement shall be governed by and
construed under the laws of the State of New York without regard to
the choice of law principles thereof. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in the State of New York located in The City of New
York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or therewith or with any
transaction contemplated hereby or thereby, and hereby irrevocably
waives any objection that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
c.
Severability
. If any provision
of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect
the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
d.
Counterparts/Execution
. This
Agreement may be executed in two or more identical counterparts,
all of which 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. In the event that any
signature is delivered by facsimile transmission or by an e-mail
which contains an electronic file of an executed signature page,
such signature page 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 electronic
file signature page (as the case may be) were an original
thereof.
e.
Notices
. Any notice or
communication permitted or required hereunder shall be in writing
and shall be deemed sufficiently given if hand-delivered or sent
(i) postage prepaid by registered mail, return receipt requested,
or (ii) by facsimile, to the respective parties as set forth below,
or to such other address as either party may notify the other in
writing.
|
If to
the Company, to:
|
MabVax
Therapeutics Holdings, Inc.
|
|
|
11535
Sorrento Valley Road, Suite 400
|
|
|
San
Diego, CA 92121
|
|
|
Attention: Chief
Executive Officer
|
If to
Holder, to the address set forth on the signature page of the
Holder.
f.
Expenses
. The parties hereto
shall pay their own costs and expenses in connection herewith,
provided, however the Company shall pay all costs of registration
under the Securities Act including any Rule 144 opinion
costs.
g.
Entire Agreement; Amendments
.
This Agreement constitutes the entire agreement between the parties
with regard to the subject matter hereof and thereof, superseding
all prior agreements or understandings, whether written or oral,
between or among the parties. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument
signed by all parties, or, in the case of a waiver, by the party
waiving compliance. Except as expressly stated herein, no delay on
the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party of any right, power or privilege hereunder
preclude any other or future exercise of any other right, power or
privilege hereunder.
h.
Headings
. The headings used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this
Agreement.
i.
Independent Nature of the
Holder’s Obligations and Rights
. The obligations of
the Holder under the Exchange Documents are several and not joint
with the obligations of any other holder of Exchange Securities
(each, an “Other Holder”) under any other agreement
(each, an “Other Agreement”), and the Holder shall not
be responsible in any way for the performance of the obligations of
any Other Holders under any Other Agreement. Nothing contained
herein or in any Other Agreement, and no action taken by the Holder
pursuant hereto or any Other Holder pursuant to any Other
Agreement, shall be deemed to constitute the Holder or any Other
Holder as, and the Company acknowledges that the Holder and the
Other Holders do not so constitute, a partnership, an association,
a joint venture or any other kind of group or entity, or create a
presumption that the Holder and any Other Holder are in any way
acting in concert or as a group or entity with respect to such
obligations or the transactions contemplated by the Exchange
Documents, any other agreement or any matters, and the Company
acknowledges that the Holder and the Other Holders are not acting
in concert or as a group or entity, and the Company shall not
assert any such claim, with respect to such obligations or the
transactions contemplated by the Exchange Documents and any Other
Agreement. The decision of the Holder to acquire the Securities
pursuant to the Exchange Documents has been made by the Holder
independently of any Other Holder. The Holder acknowledges that no
Other Holder has acted as agent for the Holder in connection with
the Holder making its acquisition hereunder and that no Other
Holder will be acting as agent of the Holder in connection with
monitoring the Holder’s Securities or enforcing its rights
under the Exchange Documents. The Company and the Holder confirm
that the Holder has independently participated with the Company in
the negotiation of the transaction contemplated hereby with the
advice of its own counsel and advisors. The Holder shall be
entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this
Agreement or out of any of the Other Agreements, and it shall not
be necessary for any Other Holder to be joined as an additional
party in any proceeding for such purpose. To the extent that any of
the Other Holders and the Company enter into the same or similar
documents, all such matters are solely in the control of the
Company, not the action or decision of the Holder, and would be
solely for the convenience of the Company
and not because it was required or
requested to do so by the Holder or any Other Holder. For
clarification purposes only and without implication that the
contrary would otherwise be true, the transactions contemplated by
the Exchange Documents include only the transaction between the
Company and the Holder and do not include any other transaction
between the Company and any Other Holder
.
j
.
Shareholder Approval of
Exchange
. The Company shall hold a special meeting of the
shareholders of the Company within 60 days of the date hereof, or
at such other date that Broadridge Financial Solutions, Inc.
recommends for timely processing of materials for the special
meeting, at which the Company shall present to its shareholders a
proposal for approval of the Exchange. In the event the Exchange is
not approved at such shareholder meeting, the Company shall hold an
additional shareholder meeting, within 90 days of the first such
shareholder meeting, at which the Company shall present to
shareholders a proposal for approval of the Exchange. Until such
time as the Exchange is approved by shareholders of the Company,
the Company shall continue to hold shareholder meetings, each held
within 90 days of the prior shareholder meeting. In the event that
the Exchange has not been approved by shareholders of the Company
within 60 days of the date hereof as a result of gross negligence
by the Company (the “Shareholder Approval Deadline”),
then, in addition to any other rights the Holder may have hereunder
or under applicable law, the Company shall pay to the Holder on
each 45-day anniversary of the Shareholder Approval Deadline (if
such shareholder approval has not been obtained) until such
shareholder approval has been obtained as partial liquidated
damages and not as a penalty, equal to 1.0% of the aggregate Stated
Value (as defined in the Certificate of Designations) of the Series
L Preferred Shares for each month past the Shareholder Approval
Deadline that the shareholder approval has not been obtained
(pro-rated for any partial month in which such shareholder approval
has not been obtained), provided, however, the Company shall not
pay to the Holder more than 12.0% of the aggregate Stated Value (as
defined in the Certificates of Designations) of the Series L
Preferred Shares pursuant to this Agreement.
k.
Pledge of Securities
. The
Company acknowledges and agrees that the Securities may be pledged
by the Holder in connection with a bona fide margin agreement or
other loan or financing arrangement that is secured by the
Securities. The pledge of Securities shall not be deemed to be a
transfer, sale or assignment of the Securities hereunder, and if
the Holder effects a pledge of Securities it shall not be required
to provide the Company with any notice thereof or otherwise make
any delivery to the Company pursuant to this Agreement or any Other
Agreement. The Company hereby agrees to execute and deliver such
documentation as a pledgee of the Securities may reasonably request
in connection with a pledge of the Securities to such pledgee by
the Holder.
l.
Separate Counsel
. Each party
hereto represents and agrees with each other that it has been
represented by or had the opportunity to be represented by,
independent counsel of its own choosing, and that it has had the
full right and opportunity to consult with its respective
attorney(s), that to the extent, if any, that it desired, it
availed itself of this right and opportunity, that it or its
authorized officers (as the case may be) have carefully read and
fully understand this Agreement in its entirety and have had it
fully explained to them by such party's respective counsel, that
each is fully aware of the contents thereof and its meaning, intent
and legal effect, and that it or its authorized officer (as the
case may be) is competent to execute this Agreement and has
executed this Agreement free from coercion, duress or undue
influence. By their execution of this Agreement, the Company, on
the one hand, and the Holder, on the other hand, hereby waive any
actual or perceived conflict(s) of interest in connection with any
prior, existing and any future representation or other
relationships between the Company’s counsel and the Company
or the Company’s counsel and the Holder, and that neither the
Company nor the Holder has requested additional information;
further the Holder and the Company acknowledge that Company counsel
and members thereof maintain securities holdings in the Company
which may include Exchange Securities, and may in the future
acquire or dispose of additional securities or investments of the
Company.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed as of the day and year
first above written.
MABVAX THERAPEUTICS HOLDINGS, INC.
By:____________________________________
Name:
J. David Hansen
Title:
President and Chief Executive Officer
Date:_________________
HOLDER
____________________________________
Name:
Title:
Date:_________________
Schedule A
|
|
(1)
|
(2)
|
|
Name
|
Shares of Series ___ Convertible Preferred Stock
|
Shares of Series L
Convertible Preferred Stock
|
|
|
|
|
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
0% SERIES L CONVERTIBLE PREFERRED STOCK
Exhibit B
FORM OF
REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “
Agreement
”) is made as of
October ___, 2017, by and among the undersigned corporation (the
“
Company
”), and each
signatory hereto (each, an “
Investor
” and
collectively, the “
Investors
”).
R E C I T A L S
WHEREAS, the
Company and the Investors are parties to the Exchange Agreements
(the “
Exchange
Agreements
”), dated as of the date hereof, as such may
be amended and supplemented from time to time;
WHEREAS, the
Investors’ obligations under the Exchange Agreements are
conditioned upon certain registration rights under the Securities
Act of 1933, as amended (the “
Securities Act
”);
and
WHEREAS, the
Investors and the Company desire to provide for the rights of
registration under the Securities Act as are provided herein upon
the execution and delivery of this Agreement by such Investors and
the Company.
NOW,
THEREFORE, in consideration of the promises, covenants and
conditions set forth herein, the parties hereto hereby agree as
follows:
1.
Registration
Rights
.
1.1
Definitions
. As used in this
Agreement, the following terms shall have the meanings set forth
below:
(a)
“
Commission
” means the
United States Securities and Exchange Commission.
(b)
“
Common Stock
” means the
Company’s common stock, par value $0.01 per
share.
(c)
“
Effectiveness Date
” means
the date that is thirty (30) days after the Trigger
Date.
(d)
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended.
(e)
“
Filing Date
” means the
date that is ten (10) days after the Trigger Date.
(f)
“
Investor
” means any
person owning Registrable Securities who becomes party to this
Agreement by executing a counterpart signature page hereto, or
other agreement in writing to be bound by the terms hereof, which
is accepted by the Company.
(g)
The terms
“
register
,”
“registered
” and
“
registration
” refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such
registration statement or document.
(h)
“
Registrable Securities
”
means 100% of the Shares;
provided
,
however
, that Registrable
Securities shall not include any securities of the Company that
have previously been registered and remain subject to a currently
effective registration statement or which have been sold to the
public either pursuant to a registration statement or Rule
144.
(i)
“
Rule 144
” means Rule 144
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
(j)
“
Rule 415
” means Rule 415
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
(k)
“
Shares
” means the shares
of Common Stock issuable upon conversion of the shares of Series L
Preferred Stock of the Company (the “
Series L Preferred
Shares
”) issued pursuant to the
Exchange
Agreements.
(l)
“
Trigger Date
” means the
closing date of the Exchange Agreements.
1.2
Company
Registration
.
(a)
On or prior to the
Filing Date, the Company shall prepare and file with the Commission
a resale registration statement covering the Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule
415. The resale registration statement shall be on Form S-1 or, if
the Company is so eligible, on Form S-3 (except if the Company is
not then eligible to register for resale the Registrable Securities
on Form S-1 or Form S-3, as the case may be, in which case such
registration shall be on another appropriate form in accordance
herewith) and shall contain (unless otherwise directed by Investors
holding an aggregate of at least 60% of the Registrable Securities
on an “as converted” and “as exercised”
basis) substantially the “
Plan of Distribution
”
attached hereto as
Annex
A
. The Company shall cause the registration statement to
become effective and remain effective as provided herein. 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 the
Effectiveness Date. The Company shall use its reasonable best
efforts to keep the registration statement continuously effective
under the Securities Act until all Registrable Securities 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,
as determined by the counsel to the Company (the
“
Effectiveness
Period
”).
(b)
The Company shall
pay to the Investors a fee of one (1%) percent per month of the
aggregate Stated Value (as defined in the Certificate of
Designation of Preferences, Rights and Limitations of 0% Series L
Convertible Preferred Stock of the Series L Preferred Shares
payable in cash, up to a maximum of six (6%) percent, if on the
Filing Date and/or the Effectiveness Date the registration
obligations set forth herein have not been met, and pro- rata for
each month, or partial month, in excess of the Filing Date and/or
the Effectiveness Date that the registration statement has not been
declared effective; provided, however, that the Company shall not
be obligated to pay any such liquidated damages if the Company is
unable to fulfill its registration obligations as a result of
rules, regulations, positions or releases issued or actions taken
by the Commission pursuant to its authority with respect to
“Rule 415” or other rules, regulations, positions or
releases issued or actions taken by the Commission, provided the
Company registers at such time the maximum number of shares of
Common Stock permissible upon consultation with the staff of the
Commission. 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,
the Company shall file as soon as reasonably practicable an
additional registration statement covering the resale of not less
than the number of such Registrable Securities.
(c)
The Company shall
bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities
with respect to the registrations pursuant to this Section 1.2 for
each Investor, including (without limitation) all registration,
filing and qualification fees, printer’s fees, accounting
fees and fees and disbursements of counsel for the Company, but
excluding any brokerage or underwriting fees, discounts and
commissions relating to Registrable Securities and fees and
disbursements of counsel for the Investors.
(d)
If at any time
during the Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities,
then the Company shall notify each Investor in writing at least
fifteen (15) days prior to the filing of any registration statement
under the Securities Act, in connection with a public offering of
shares of Common Stock (including, but not limited to, registration
statements relating to secondary offerings of securities of the
Company but excluding any registration statements (i) on Form S-4
or S-8 (or any successor or substantially similar form), or of any
employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to any such plan, or a
dividend reinvestment plan, (ii) otherwise relating to any
employee, benefit plan or corporate reorganization or other
transactions covered by Rule 145 promulgated under the Securities
Act, (iii) on any registration form which does not permit secondary
sales or does not include substantially the same information as
would be required to be included in a registration statement
covering the resale of the Registrable Securities. In the event an
Investor desires to include in any such registration statement all
or any part of the Registrable Securities held by such Investor,
the Investor shall within ten (10) days after the above-described
notice from the Company, so notify the Company in writing,
including the number of such Registrable Securities such Investor
wishes to include in such registration statement. If an Investor
decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company such
Investor shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement
or registration statements as may be filed by the Company with
respect to the offering of the securities, all upon the terms and
conditions set forth herein.
1.3
Obligations
of the Company
. Whenever required under this Section 1 to
effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a)
Prepare and file
with the Commission a registration statement with respect to such
Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective and to keep such
registration statement effective during the Effectiveness
Period;
(b)
Prepare and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(c)
Furnish to the
Investors such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable
Securities owned by them (provided that the Company would not be
required to print such prospectuses if readily available to
Investors from any electronic service, such as on the EDGAR filing
database maintained at www.sec.gov);
(d)
Use its reasonable
best efforts to register and qualify the securities covered by such
registration statement under such other securities’ or blue
sky laws of such jurisdictions as shall be reasonably requested by
the Investors; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions;
(e)
In the event of any
underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering (each
Investor participating in such underwriting shall also enter into
and perform its obligations under such an agreement);
(f)
Promptly notify
each Investor holding Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act,
within one business day, (i) of the effectiveness of such
registration statement, or (ii) of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then
existing;
(g)
Cause all such
Registrable Securities registered pursuant hereto to be listed on
each securities exchange or nationally recognized quotation system
on which similar securities issued by the Company are then listed;
and
(h)
Provide a transfer
agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration.
1.4
Furnish
Information
. It shall be a condition precedent to the
Company’s obligations to take any action pursuant to this
Section 1 with respect to the Registrable Securities of any selling
Investor that such Investor shall furnish to the Company such
information regarding such Investor, the Registrable Securities
held by such Investor, and the intended method of disposition of
such securities in the form attached to this Agreement as Annex B,
or as otherwise reasonably required by the Company or the managing
underwriters, if any, to effect the registration of such
Investor’s Registrable Securities.
1.5
Delay
of Registration
. No Investor shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this Section
1.
1.6
Indemnification
.
(a)
To the extent
permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for
such Investor and each person, if any, who controls such Investor
or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become
subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively, a “
Violation
”): (i) any
untrue statement or alleged untrue statement of a material fact
contained in a registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments
or supplements thereto (collectively, the “
Filings
”), (ii) the
omission or alleged omission to state in the Filings a material
fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay any legal or other
expenses reasonably incurred by any person to be indemnified
pursuant to this Section 1.6(a) in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided
,
however
, that the
indemnity agreement contained in this Section 1.6(a) shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Investor,
underwriter or controlling person.
(b)
To the extent
permitted by law, each Investor will indemnify and hold harmless
the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or
the Exchange Act, any underwriter, any other Investor selling
securities in such registration statement and any controlling
person of any such underwriter or other Investor, against any
losses, claims, damages or liabilities (joint or several) to which
any of the foregoing persons may become subject under the
Securities Act, the Exchange Act or other federal or state
securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Investor
expressly for use in connection with such registration; and each
such Investor will pay any legal or other expenses reasonably
incurred by any person to be indemnified pursuant to this Section
1.6(b) in connection with investigating or defending any such loss,
claim, damage, liability or action;
provided
,
however
, that the indemnity
agreement contained in this Section 1.6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Investor (which consent shall not be unreasonably
withheld);
provided
,
however
, in no event shall any
indemnity under this subsection 1.6(b) exceed the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.
(c)
Promptly after
receipt by an indemnified party under this Section 1.6 of notice of
the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.6, deliver
to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties;
provided
,
however
, that an indemnified
party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this Section 1.6, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than
under this Section 1.6.
(d)
If the
indemnification provided for in Sections 1.6(a) and (b) is held by
a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in
connection with the statements or omissions or alleged statements
or omissions that resulted in such loss, liability, claim or
expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. In no event shall any Investor
be required to contribute an amount in excess of the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.
(e)
The obligations of
the Company and Investors under this Section 1.6 shall survive the
completion of any offering of Registrable Securities in a
registration statement under this Section 1, and
otherwise.
1.7
Reports
Under Securities Exchange Act
. With a view to making
available the benefits of certain rules and regulations of the
Commission, including Rule 144, that may at any time permit an
Investor to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-1 or Form S-3,
the Company agrees to:
(a)
make and keep
public information available, as those terms are understood and
defined in Rule 144, at all times after the closing of the Exchange
Agreements;
(b)
take such action,
including the voluntary registration of its Common Stock under
Section 12 of the Exchange Act, as is necessary to enable the
Investors to utilize Form S-1 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the registration statement is
declared effective;
(c)
file with the
Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange
Act; and
(d)
furnish to any
Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 the
Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant
to Form S-1 or Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in
availing any Investor of any rule or regulation of the Commission
that permits the selling of any such securities without
registration or pursuant to such form.
1.8
Transfer
or Assignment of Registration Rights
. The rights to cause
the Company to register Registrable Securities pursuant to this
Section 1 may be transferred or assigned, but only with all related
obligations, by an Investor to a transferee or assignee;
provided
, (i) that prior to
any transfer or assignment, the Company is furnished with written
notice stating the name and address of such transferee or assignee
and identifying the securities with respect to which such
registration rights are being transferred or assigned, (ii) such
transferee or assignee agrees in writing to be bound by and subject
to the terms and conditions of this Agreement and (iii) such
transfer or assignment shall be effective only if immediately
following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under
the Securities Act.
2.
Legend
.
2.1 Each
certificate representing Shares held by the Investors shall be
endorsed with the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY
SUCH SECURITIES.”
2.2 The
legend set forth above shall be removed, and the Company shall
issue a certificate without such legend to the transferee of the
Shares represented thereby, if, unless otherwise required by state
securities laws, (i) such Shares have been sold under an effective
registration statement under the Securities Act, (ii) in connection
with a sale, assignment or other transfer, such holder provides the
Company with an opinion of counsel, reasonably acceptable to the
Company, to the effect that such sale, assignment or transfer is
being made pursuant to an exemption from the registration
requirements of the Securities Act, or (iii) such holder provides
the Company with reasonable assurance that the Shares are being
sold, assigned or transferred pursuant to Rule 144 or Rule 144A
under the Securities Act.
3.
Miscellaneous
.
3.1
Governing
Law
. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this
Agreement shall be adjudicated only before a federal court located
in the State of New York and they hereby submit to the exclusive
jurisdiction of the federal and state courts of the State of New
York 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 registration 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, in care of the address
set forth below or such other address as the undersigned shall
furnish in writing to the other.
3.2
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
3.3
Waivers
and Amendments
. This Agreement may be terminated and any
term of this Agreement may be amended or waived (either generally
or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and
Investors holding at least a 60% of the Registrable Securities then
outstanding (the “
Majority Investors
”).
Notwithstanding the foregoing, additional parties may be added as
Investors under this Agreement, and the definition of Registrable
Securities expanded, with the written consent of the Company and
the Majority Investors. No such amendment or waiver shall reduce
the aforesaid percentage of the Registrable Securities, the holders
of which are required to consent to any termination, amendment or
waiver without the consent of the record holders of all of the
Registrable Securities. Any termination, amendment or waiver
effected in accordance with this Section 3.3 shall be binding upon
each holder of Registrable Securities then outstanding, each future
holder of all such Registrable Securities and the
Company.
3.4
Successors
and Assigns
. Except as otherwise expressly provided herein,
the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
3.5
Entire
Agreement
. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the
subject matter hereof, and no party shall be liable or bound to any
other party in any manner by any warranties, representations or
covenants except as specifically set forth herein.
3.6
Notices
.
All notices and other communications required or permitted under
this Agreement shall be in writing and shall be delivered
personally by hand or by overnight courier, mailed by United States
first-class mail, postage prepaid, sent by facsimile or sent by
electronic mail directed (a) if to an Investor, at such
Investor’s address, facsimile number or electronic mail
address set forth in the Company’s records, or at such other
address, facsimile number or electronic mail address as such
Investor may designate by ten (10) days’ advance written
notice to the other parties hereto or (b) if to the Company, to its
address, facsimile number or electronic mail address set forth on
its signature page to this Agreement and directed to the attention
of its President, or at such other address, facsimile number or
electronic mail address as the Company may designate by ten (10)
days’ advance written notice to the other parties hereto. All
such notices and other communications shall be effective or deemed
given upon delivery, on the date that is three (3) days following
the date of mailing, upon confirmation of facsimile transfer or
upon confirmation of electronic mail delivery.
3.7
Interpretation
.
The words “include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without limitation.”
The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or
interpreting this Agreement.
3.8
Severability
.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be
excluded from this Agreement, and the balance of the Agreement
shall be interpreted as if such provision were so excluded, and
shall be enforceable in accordance with its terms.
3.9
Independent
Nature of Investors’ Obligations and Rights
. The
obligations of each Investor hereunder are several and not joint
with the obligations of any other Investor hereunder, and no
Investor shall be responsible in any way for the performance of the
obligations of any other Investor hereunder. Nothing contained
herein or in any other agreement or document delivered at any
closing, and no action taken by any Investor pursuant hereto or
thereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Investors are in any way
acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Investor 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 Investor to be joined as an
additional party in any proceeding for such purpose.
3.10
Counterparts
.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall
constitute one instrument.
3.11
Telecopy
Execution and Delivery
. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more
parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar
electronic transmission device pursuant to which the signature of
or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
[SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, as of the date, month and
year first set forth above.
MABVAX
THERAPEUTICS HOLDINGS, INC.
By:________________________________
Name:
J. David Hansen
Title:
President and Chief Executive Officer
Address for
notice
:
MabVax
Therapeutics Holdings, Inc.
Attention:
Chief Executive Officer
[COMPANY
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN
WITNESS WHEREOF, the undersigned Investor has executed this
Agreement as of the date, month and year that such Investor became
the owner of Registrable Securities.
“Investor”
___________________________________
By:________________________________
Name
Title:
Address:
___________________________________
___________________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Email:______________________________
[INVESTOR COUNTERPART SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT]
Annex A
Plan of Distribution
Each
selling stockholder of the common stock and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock on the NASDAQ Capital
Market or any other stock exchange, market or trading facility on
which the shares 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
shares:
●
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
●
block trades in
which the broker-dealer will attempt to sell the shares 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 entered into after the effective date of the registration
statement of which this prospectus is a part;
●
broker-dealers may
agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;
●
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 shares under Rule 144 under the
Securities Act of 1933, as amended, 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 shares, 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 common stock 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 common stock in the course of hedging
the positions they assume. The selling stockholders may also sell
shares of the common stock short and deliver these securities to
close out their short positions, or loan or pledge the common stock
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
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares 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 shares may be deemed to be
“underwriters” within the meaning of the Securities Act
of 1933, as amended, 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 shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities
Act of 1933, as amended. Each selling stockholder has informed us
that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to
distribute the common stock.
We are
required to pay certain fees and expenses incurred by us incident
to the registration of the shares. We have agreed to indemnify the
selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act of
1933, as amended.
Because
selling stockholders may be deemed to be “underwriters”
within the meaning of the Securities Act of 1933, as amended, they
will be subject to the prospectus delivery requirements of the
Securities Act of 1933, as amended, including Rule 172 thereunder.
In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act of
1933, as amended may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting
in connection with the proposed sale of the resale shares by the
selling stockholders.
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the shares may be resold by the selling
stockholders without registration and without the requirement to be
in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144 or (ii) all of the shares have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
shares 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 shares 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 Securities Exchange Act
of 1934, as amended, any person engaged in the distribution of the
resale shares 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
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including Regulation M, which may limit the
timing of purchases and sales of shares 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 of 1933, as
amended).
Annex
B
Selling Securityholder Notice and Questionnaire
The undersigned beneficial owner of common stock (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.
Certain legal consequences arise from being named as a selling
securityholder 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 securityholder in the Registration Statement and
the related prospectus.
NOTICE
The undersigned beneficial owner (the “
Selling
Securityholder
”) 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
(a)
Full
Legal Name of Selling Securityholder
(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 Securityholder:
|
Telephone:
|
|
Fax:
|
|
Contact Person:
|
(a)
Are
you a broker-dealer?
Yes
No
(b)
If
“yes” to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Yes
No
Note:
If
“no” to Section 3(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?
Yes
No
(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?
Yes
No
Note:
If
“no” to Section 3(d), the Commission’s staff has
indicated that you should be identified as an underwriter in the
Registration Statement.
4. Beneficial Ownership of Securities of the Company Owned by the
Selling Securityholder.
Except as set forth below in this Item 4, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Exchange
Agreements.
(a)
Type
and Amount of other securities beneficially owned by the Selling
Securityholder:
5. 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:
The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the
Registration Statement remains effective.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5
and the inclusion of such information in the Registration Statement
and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related
prospectus.
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.
Date:
Beneficial
Owner:
By:_________________________________
Name:
Title:
[SIGNATURE PAGE FOR SELLING SECURITYHOLDER NOTICE AND
QUESTIONNAIRE]