RESCISSION AGREEMENT
EXHIBIT
10.3
THIS
RESCISSION AGREEMENT (the “Agreement”), dated and
effective as of May 19, 2017 (the “Effective
Date”), is made
by and between MabVax Therapeutics Holdings, Inc., a Delaware
corporation (“Company”), and the holder of the
Company’s Series H Preferred Stock signatory hereto
(“Holder”).
WHEREAS, pursuant
to that certain Subscription Agreement (the “Subscription
Agreement”), dated as of May 3, 2017, by and between the
Company and the Holder, whereby, among other things, the Holder
purchased from the Company $[ ] of shares of Series H Convertible
Preferred Stock having a stated value of $1,000 per share (the
“Series H Preferred Stock” or the “Exchange
Securities”);
WHEREAS, the
Company has authorized a new series of convertible preferred stock
of the Company designated as Series G 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 Series G Convertible Preferred Stock (the “G 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 G Preferred
Stock”), which Series G Preferred Stock shall be convertible
into the Company’s Common Stock, in accordance with the terms
of the G Certificate of Designations;
WHEREAS, the
Company has filed a Registration Statement on Form S-1, as amended
(Registration No. 333-216016) (the “Registration
Statement”) with the Securities and Exchange Commission (the
“SEC”), and such Registration Statement has been
declared effective by the SEC, in connection with a public offering
of the Company’s Series G Preferred Stock and Common Stock
that is expected to close on the Effective Date (the
“Offering”);
WHEREAS, on May 10,
2017, the Company and the Holder entered into an exchange agreement
(the “Exchange Agreement”) pursuant to which the Holder
agreed to exchange all of its Series H Preferred Stock and
relinquish any and all other rights it may have pursuant to the
Exchange Securities, their respective governing agreements and
certificates of designation, including any related registration
rights, in exchange for an aggregate of ____________ shares of
Series G Preferred Stock in the Offering (the
“Exchange”), with such shares of Series G Preferred
Stock to be issued at the closing of the Offering;
WHEREAS, the Holder
and Company intend that this Agreement be effective prior to the
closing of the Offering;
WHEREAS,
the parties have amicably
determined that it is in their collective best interest to: (i)
rescind the Exchange Agreement, including but not limited to the
exchange of Exchange Securities for Series G Preferred Stock, and
(ii) provide for such additional agreements as are set forth
herein; and
WHEREAS, in
connection with the Offering, the Company and Holder desire to
cancel certain of Holder’s warrants and issue the Holder new
shares of common stock, preferred stock and warrants as further set
forth in the lead investor consent attached hereto as Exhibit B
(the “Lead Investor Consent”).
NOW, THEREFORE, in consideration of the mutual
promises and obligations set forth herein, the parties hereby agree
as follows:
1.
Rescission of Exchange
Agreement. The Company
and the Holder hereby rescind the Exchange Agreement and all
transactions contemplated thereby, including the Exchange, in its
entirety, effective prior to the consummation of the Offering, such
that the Exchange Agreement shall have no force or effect and shall
create no rights or obligations whatsoever of one party against the
other. For the avoidance of doubt, the Holder shall remain
the beneficial owner of the Series H Preferred Stock and the Holder
shall purchase the Series G Preferred Stock in the Offering for
cash.
2.
Subscription Agreement
and Registration Rights Agreement. The Holder and Company agree that the
Subscription Agreement and that certain Registration Rights
Agreement, dated as of May 3, 2017, by and between the Company and
the Holder, as amended from time to time (the “Registration
Rights Agreement”) remain in full force and effect, including
all of the Company’s and Holder’s respective
obligations thereunder. For the avoidance of doubt, the Company and
Holder agree that Holder’s registration rights and the
Company’s related obligations under the Subscription
Agreement and Registration Rights Agreement remain in full force
and effect.
3.
Consent to Cancellation of Existing
Warrants and Issuance of New Warrants. The Holder has
reviewed the attached Lead Investor Consent and consents, as a
condition to receipt of Inducement Shares, to the cancellation of
all warrants issued to the Holder in connection with the August
2016 Offering and consents to the amendment of the warrants issued
to it that have a current exercise price of $11.10 per share
(including elimination of any right to cashless exercise of such
warrants), pursuant to the terms described in the Lead Investor
Consent (all terms used in this Section 3 but not defined shall
have the meanings assigned to them in the Lead Investor
Consent).
4.
Legal Representation. Each
party hereto acknowledges that it has been represented by
independent legal counsel in the preparation of the Agreement and
each party waives any conflicts of interest and other allegations
that it has not been represented by its own counsel.
5.
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:
00000
Xxxxxxxx Xxxxxx Xxxx, Xxx. 000
Xxx
Xxxxx, XX 00000
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.
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 asexpressly 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 this
Agreement are several and not joint with the obligations of any
other holder of Series H Preferred Stock (each, an “Other
Holder”) under any other agreement to exchange Series H
Preferred Stock or rescind such exchange 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 soconstitute, 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 this Agreement, 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 this Agreement and any Other Agreement. The decision of the
Holder to rescind the Exchange pursuant to this Agreement 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 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 this
Agreement. 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
xxxxxxx.Xx 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 this Agreement include only the transaction between
the Company and the Holder and do not include any other transaction
between the Company and any Other Holder.
(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.
By:____________________________________
Name:
J. Xxxxx Xxxxxx
Title:
Chief Executive Officer
HOLDER:
By:____________________________________
Name:
Title:
Address
for Notice:
