MabVax Therapeutics Holdings, Inc. 11535 Sorrento Valley Rd., Suite 400 San Diego, CA 92121 Phone: (858) 259-9405
Exhibit
10.1
00000
Xxxxxxxx Xxxxxx Xx., Xxxxx 000
Xxx
Xxxxx, XX 00000
Phone:
(000) 000-0000
August
9, 2017
HS
Contrarian Investments, LLC
00
Xxxxxx Xxx
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxx Xxxxxxx
Re:
Letter Agreement
Dear
Xx. Xxxxxxx,
MabVax Therapeutics Holdings, Inc. (the
“Company”) and HS Contrarian Investments, LLC
(“HSCI”) hereby
agree pursuant to this agreement (this “Letter
Agreement”) that:
A.
$2,350,000
Financing
HSCI
and certain other investors shall purchase an aggregate of
$2,350,000 securities of the Company in a registered direct
offering (the “$2,350,000 Financing”). The $2,350,000
Financing shall consist of newly designated Series J Convertible
Preferred Stock (the “Series J Preferred Stock”). The
Series J Preferred Stock shall include a 125% liquidation
preference, 4.99% beneficial ownership limitations, price
protection with a $0.10 floor and a Nasdaq blocker. The purchase
price per share of common stock issuable upon conversion of the
Series J Preferred Stock (the “J Conversion Shares”)
shall be $0.55.
B.
Inducement
Shares
The
Company shall issue newly designated shares of Series K Convertible
Preferred Stock (the “Series K Preferred Stock”)
issuable into an aggregate of 6,500,000 shares in the form of
Series K Preferred Stock (the “Inducement Shares”)
stock to be distributed to certain existing investors who
participate in the $2,350,000 Financing. The Company shall issue
the Series K Preferred Stock within three trading days of closing
the $2,350,000 Financing. The Series K Preferred Stock shall be
substantially similar to the common stock but include a 4.99%
beneficial ownership blocker and may not be converted into common
stock prior to obtaining shareholder approval.
C.
Proxy Statement
The company shall file a proxy
statement for a special meeting of shareholders within 10 days of
closing the $2,350,000 Financing. Proposals shall include
(i) an amendment to the Company’s Certificate of
Incorporation to effect a reverse stock split of its issued and
outstanding common stock by a ratio of not less than one-for-two
and not more than one-for-twenty at any time prior to one year from
the date of the special meeting, with the exact ratio to be set at
a whole number within this range as determined by the Board of
Directors, (ii) the issuance of securities in one or more
non-public offerings where the maximum discount at which securities
will be offered will be equivalent to a discount of 30% below the
market price of the common stock, as required by and in accordance
with Nasdaq Marketplace Rule 5635(d), (iii) the issuance of
securities in one or more non-public offerings where the maximum
discount at which securities will be offered will be equivalent to
a discount of 20% below the market price of the Common Stock, as
required by and in accordance with Nasdaq Marketplace Rule 5635(d),
(iv) the issuance of the Series J Conversion Shares and (v) the
issuance of the Inducement Shares.
-1-
D.
Follow-On Financing
HSCI
will commit to investing an additional $1,000,000 in a new private
or public offering of up to $8,000,000 (the “$8,000,000
Financing”). The $8,000,000 Financing shall sign and close
following shareholder approval of each of the proposals identified
in Section C of this letter.
E.
Management
The employment terms of all management shall be reduced to two
years from three years. Management shall defer portions of their
salary for the remainder of the year, which shall be paid upon the
earlier of completion of the $8,000,000 Financing or a business
transaction that represents, or transactions in the aggregate that
represent, in excess of $10,000,000.
F.
Miscellaneous
The rights herein are specific to HSCI,
and may only be exercised by the managing
partner/president of HSCI
which is Xxxx Xxxxxxx. Such rights shall not be assigned
or transferred to or assumed by any other party or individual,
voluntarily or by operation of law, and any such purported
assignment, transfer or assumption shall be void and of no force or
effect.
This Letter Agreement shall be governed by the laws of the state of
New York, without giving effect to any conflict of laws provision,
and may not be amended other than through a written agreement
executed by the Company and HSCI.
As used herein, “HSCI” shall mean any person or entity
controlled by, in control of, or in common control with Xxxx
Xxxxxxx.
-2-
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
J.
Xxxxx Xxxxxx
|
|
|
|
Name
|
J. Xxxxx
Xxxxxx
|
|
|
|
Title
|
President and Chief
Executive Officer
|
|
HS Contrarian Investments LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxx
Xxxxxxx
|
|
|
|
Name
|
Xxxx
Xxxxxxx
|
|
|
|
Title
|
Manager
|
|
-3-
