LAIDLAW & COMPANY (UK) LTD. New York, NY 10036 W1S 4NS London * Member FINRA, SIPC* *Incorporated in England & Wales: Company No. 3870324*
Exhibit
1.1
XXXXXXX
& COMPANY (UK) LTD.
000
Xxxxx Xxx 00 Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000 X0X 0XX London
*
Member FINRA, SIPC*
*Incorporated
in England & Wales: Company No. 3870324*
September 11,
2017
Xxxxx
Xxxxxx
President
and CEO
MabVax
Therapeutics Holdings, Inc
00000
Xxxxxxxx Xxxxxx Xxxx, Xxxxx 00
Xxx
Xxxxx, XX 00000
Attention:
Xxxxx Xxxxxx, President and
CEO
Pursuant
to this exclusive ENGAGEMENT AGREEMENT (the “Agreement”)
by and between Xxxxxxx & Company (UK) Ltd., a United Kingdom
corporation with offices at 000 Xxxxx
Xxx, Xxx Xxxx, Xxx Xxxx 00000 (“Xxxxxxx”)
and MabVax Therapeutics Holdings, Inc. (the “Client”,
“MBVX”
or the "Company"),
Xxxxxxx is engaged by the Client, on an exclusive basis, to perform
the services (the “Services”)
agreed to hereby on the terms set forth herein.
1.
The
Services. Xxxxxxx
shall assist Client as follows:
a)
The
Financing. Xxxxxxx
will assist Client on a “best efforts” non-exclusive
basis in connection with a proposed public offering (the
"Offering") up to maximum
(the “Maximum Offering
Amount”) of USD $2.0 (two) million of securities of
the Company (the "Securities") as per terms agreed to with
investors (the “Financing”).
b)
Pursuant to this
Agreement, Xxxxxxx will work with the Client in connection with,
among other things, assisting the Client with respect
to:
i.
providing advice in
connection with the structure of the Capital Raise to be offered to
prospective investors (the “Offering”);
ii.
preparing Offering
Materials for use in soliciting the Financing from prospective
investors (the “Offerees”);
iii.
identifying
prospective participating broker-dealers, if so requested, to act
as participating dealers in the sale of Securities in the Offering;
and
iv.
using its best
efforts to complete the Offering Amount by September 30th,
2017
In connection with the offering of Securities
pursuant to this Agreement, the Client hereby represents, warrants
and agrees that (x) it will comply in all material respects with
all applicable federal, state and foreign securities laws and
regulations applicable to the Offering and (y) none of the
documents and
materials to be used in making the Offering will
contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Client herein agrees that it will be fully responsible
for the preparation and filing in a timely fashion of any necessary
“blue sky” documents in connection with the Offering
and confirm such to Xxxxxxx in writing, the legal fees and expenses
of any such work to be paid by the Client as provided herein in
Section 2(b)(i)(b). Prior to any closing involving the issuance of
the Securities (a “Closing”
and, collectively, the “Closings”),
the Client will make its management, including officers responsible
for financial affairs, available to prospective investors to
address investor inquiries regarding the Client in a manner
consistent with the requirements of all applicable rules and
regulations. All Closings will be pursuant to documentation, which
documentation shall include normal and customary representations
and warranties (which Xxxxxxx shall be entitled to rely on), in
form reasonably satisfactory to Xxxxxxx and, upon any such Closing,
Xxxxxxx will be furnished with a favorable opinion from the
Client’s outside counsel containing items customary in
connection with the Offering contemplated herein addressed to
Xxxxxxx and the Investors.
2.
Compensation and
Client Expenses. The
Client shall be obligated to pay directly certain expenses related
to the Offering and to pay Xxxxxxx under this Agreement as
follows:
a)
Fees and
Expenses: The Client
shall be obligated to pay the following to Xxxxxxx in connection
with the financial advisory services being performed herein and
Closing(s) of the Offering.
i.
Cash Fees:
a.
The Financing
Fees. At each
Closing, the Client shall pay Xxxxxxx a cash fee equal in the
aggregate to 7% (seven percent) of the gross proceeds on the
Closing Date for investors introduced by Xxxxxxx except for
proceeds received from Schedule D investors.
b.
Retainer. Intentionally
omitted.
c.
‘Blue
Sky’
and
Legal Fees. The Client will be
responsible for the payment of all legal fees of Xxxxxxx’x
securities counsel subject to a cap of $7,500 including any filing
and blue sky xxxx.xx any states in which Xxxxxxx
reasonably requests that such filings
be made in connection with the Financings.
3.
Intentionally
omitted.
4.
Term of
Agreement: The term
of this Agreement (the “Term”)
will commence on the date of this Agreement (the
“Effective
Date”) and will terminate on the earlier of the
closing of the Offering or October 30, 2017 (the “Termination
Date”).
5.
Confidentiality.
The Client and Xxxxxxx agree to the
confidentiality and other provisions of Schedule A.
6.
Indemnification.
The Client agrees to indemnify Xxxxxxx
in accordance with the indemnification letter annexed hereto
as Schedule
B, the provisions of which are
incorporated herein in their entirety, and shall survive the
termination, expiration or supersession of this Agreement.
Said indemnification shall apply regardless of whether the Offering
is consummated and Client’s obligations hereunder shall
survive.
7.
Termination;
Survival.
In the event this Agreement shall be
terminated in accordance with the provisions of Section 4 or
otherwise, the sections headed
“Confidentiality”, “Indemnification”, and
the applicable financial obligations set forth in Section 2, and
the provisions of Section 11 hereof will survive the Term or any
earlier termination hereunder.
8.
Affiliate.
For purposes of this Agreement, “Affiliate”, as such term is used
with reference to the Client, means any entity directly or
indirectly controlling or controlled by the Client.
9.
Xxxxxxx
Obligations. By
accepting this Agreement, Xxxxxxx represents and warrants to the
Client that, now and during the term of this
Agreement:
●
Xxxxxxx is an
entity organized, validly existing and in good standing under the
laws of the state or country of its formation, with all requisite
power and authority to enter into this Agreement and to carry out
its obligations hereunder;
●
this Agreement,
when executed by Xxxxxxx, will have been duly authorized, executed
and delivered by Xxxxxxx and will be a valid and binding agreement
of Xxxxxxx, enforceable against Xxxxxxx in accordance with its
terms except no obligation to raise funds other than on a best
efforts basis; and
●
Xxxxxxx is
registered as a broker-dealer under the Securities Exchange Act of
1934, as amended; is qualified to act as a broker/dealer in the
states or other jurisdictions in which Xxxxxxx offers the
Securities and is a member of the Financial Industry Regulatory
Authority.
●
Xxxxxxx agrees to
pay any third parties retained by it in connection with this
Agreement and to hold Client harmless against any such claims,
provided Client pays Xxxxxxx its fees due hereunder.
10.
Governing
Law. This Agreement
shall be deemed to have been made and delivered in Delaware and
shall be governed as to validity, interpretation, construction,
effect and in all other respects by the internal laws of the State
of Delaware. The Client (l) agrees that any legal suit, action or
proceeding arising out of or relating to this letter shall be
instituted exclusively in Delaware, (2) waives any objection which
the Client may have now or hereafter to the venue of any such suit,
action or proceeding, and (3) irrevocably consents to the
jurisdiction of Delaware in any such suit, action or proceeding.
The Client further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or
proceeding in Delaware. THE PARTIES HERETO AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR
AGREEMENT CONTEMPLATED HEREBY.
11.
Miscellaneous.
This Agreement, including the
Schedules annexed, constitutes (i) the entire understanding of the
parties with respect to the subject matter hereof and may not be
altered or amended except in a writing signed by both parties and
(ii) supersedes and cancels any prior or contemporaneous
arrangements, understandings and agreements, whether written or
oral, between the parties in respect of the matters provided for
herein. The Client expressly acknowledges that the execution of
this Agreement does not constitute a commitment by Xxxxxxx to
consummate any transaction contemplated hereunder and does not
ensure any Closing of the Financings or the success of Xxxxxxx with
respect to securing any financing on behalf of the
Client.
Nothing
contained in this agreement shall be construed to place Xxxxxxx and
the Client in the relationship of partners or joint venturers.
Neither Xxxxxxx nor the Client shall represent itself as the agent
or legal representative of the other for any purpose whatsoever nor
shall either have the power to obligate or bind the other in any
manner whatsoever. The Client’s engagement of Xxxxxxx is not
intended to confer rights upon any person not a party hereto
(including shareholders, directors, officers, employees or
creditors of the Client) as against Xxxxxxx or its affiliates, its
daughter companies or their respective directors, officers,
employees or agents, successors or assigns. Xxxxxxx, in performing
its services hereunder, shall at all times be an independent
contractor. No promises or representations have been made except as
expressly set forth in this Agreement and the parties have not
relied on any promises or representations except as expressly set
forth in this agreement. Nothing contained herein should be
construed as creating any fiduciary duties between the parties
hereto and/or any of their respective subsidiaries or
representatives.
Neither
the execution and delivery of this Agreement by the Client nor the
consummation of the transactions contemplated hereby will, directly
or indirectly, with or without the giving of notice or lapse of
time, or both: (i) violate any provisions of the Certificate of
Incorporation or By-laws of the Client ; or (ii) violate, or be in
conflict with, or constitute a default under, any agreement, lease,
mortgage, debt or obligation of the Client or, require the payment,
any pre-payment or other penalty with respect thereto. The Client
has all requisite power and authority to enter into and perform its
obligations under this Agreement. This Agreement has been duly
executed and delivered and constitutes valid and binding
obligations of the Client, enforceable against the Client in
accordance with its terms.
The
rights and obligations of a Party under this Agreement may not be
assigned by that Party (other than by operation of law) without the
prior written consent of the other Party and any other purported
assignment shall be null and void. The Client acknowledges that any
advice given by Xxxxxxx to the Client pursuant to this Agreement is
solely for the benefit and use of the Client and its Board of
Directors.
If any provision of this Agreement is determined
to be invalid or unenforceable in any respect, then such
determination will not affect such provision in any other respect
or any other provision of this
Agreement, which will remain in full force and
effect.
The
parties hereto being in agreement with the terms and provisions set
forth herein so indicate by signing in the spaces provided
below.
XXXXXXX
& COMPANY (UK) LTD.
BY:
/s/ Xxxx
Xxxxx
Xxxx
Xxxxx
Executive
Director
Investment
Banking
ACCEPTED
AND AGREED as of
this
11th day
of September, 2017 (the “Effective
Date”):
BY:
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx X.
Xxxxxx
Chief Financial
Officer
SCHEDULE A
INFORMATION
TO BE SUPPLIED; CONFIDENTIALITY
In
connection with Xxxxxxx’x activities on behalf of the Client,
the Client will furnish Xxxxxxx with all financial and other
information regarding the Client that Xxxxxxx reasonably believes
appropriate to its assignment (all such information so furnished by
the Client, whether furnished before or after the date of this
Agreement, being referred to herein as the “Information”).
The Client hereby warrants that any
Information furnished to Xxxxxxx by or on behalf of the Client will
be accurate and complete and, with respect to information
concerning the Client, will not contain any material omissions or
misstatements of fact in each case, in light of the circumstance
under which the statements therein were made. The Client will
advise Xxxxxxx immediately of the occurrence of any event or any
other change known to the Client which results in the Information
containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to
make the statements therein or previously made, in light of the
circumstance under which they were made, not misleading. The
Client will provide Xxxxxxx with reasonable access to the officers,
directors, employees, independent accountants, legal counsel and
other advisors and consultants of the Client. The Client recognizes
and agrees that Xxxxxxx (i) will use and rely primarily on the
Information and information available from generally recognized
public sources in performing the services contemplated by this
Agreement without independently verifying the Information or such
other information, (ii) does not assume responsibility for the
accuracy of the Information or such information, and (iii) will not
make an appraisal of any assets or liabilities owned or controlled
by the Client or its market competitors.
For the
purpose of the Agreement, “Information”
shall mean and include, without limitation, all contracts and
agreements and the terms there of, to which the Client may be a
party; all internal non-public business, financial, intellectual
property, technical and scientific information, analyses, forecasts
and projections of the business of the Client and any direct or
indirect operating subsidiary; all business plans of the Client and
its subsidiaries; all pending or proposed proposals for new or
renewed contracts; the names, business and financial arrangements
to which the Client is a party; the names and terms of employment
relationships between the Client and any of its employees and/or
operating subsidiaries; all detail and back up information relating
to actual, pro forma or forecasted operations supplied to Xxxxxxx
by the Client; and all data or information prepared by the Client
at the request Xxxxxxx; and any other non-public information of
Client or others furnished to Xxxxxxx or its representatives in
connection with any of the transactions contemplated by this
Agreement.
Xxxxxxx
will maintain the confidentiality of the Information and, unless
and until such Information shall have been made publicly available
by the Client or by others without breach of a confidentiality
agreement or obligation, shall disclose the information only as
authorized by the Client or as required by law including by order
of a governmental authority or court of competent jurisdiction. In
the event that Xxxxxxx is legally required to make disclosure of
any of the Information, Xxxxxxx will give notice to the Client
prior to such disclosure, to the extent that Xxxxxxx can
practically do so.
The
foregoing paragraph shall not apply to information
that:
(i)
at the time of
disclosure by the Client is, or when it thereafter becomes,
generally available to the public or within the industries in which
the Client or Xxxxxxx or its affiliates conduct business, other
than as a direct result of a breach by Xxxxxxx of its obligations
under this Agreement;
(ii)
prior to or at the
time of disclosure by the Client, was already in the possession of,
or, conceived by, Xxxxxxx or any of its affiliates, or could have
been developed by them from information then in their possession,
by the application of other information or techniques in their
possession, generally available to the public, or available to
Xxxxxxx or its affiliates other than from the Client;
(iii)
at the time of
disclosure by the Client or thereafter, is obtained by Xxxxxxx or
any of its affiliates from a third party who has represented to
Xxxxxxx that it is, and whom Xxxxxxx reasonably believes to be, in
possession of the information and not in violation of any
contractual, legal or fiduciary obligation to the Client with
respect to that information; or
(iv)
is independently
developed by Xxxxxxx or its affiliates.
Without
limitations as to the foregoing, nothing in this Agreement shall be
construed to limit the ability of Xxxxxxx or its affiliates to
pursue, investigate, analyze, invest in, or engage in investment
banking, financial advisory or any other business relationship with
entities other than the Client, notwithstanding that such entities
may be engaged in a business which is similar to or competitive
with the business of the Client, and notwithstanding that such
entities may have actual or potential operations, products,
services, plans, ideas, customers or supplies similar or identical
to the Client’s, or may have been identified by the Client as
potential merger or acquisition targets or potential candidates for
some other business combination, cooperation or relationship. The
Client expressly acknowledges and agrees that it does not claim any
proprietary interest in the identity of any other entity in its
industry or otherwise, and that the identity of any such entity is
not confidential information.
SCHEDULE B
INDEMNIFICATION
Recognizing that
matters of the type contemplated in this engagement sometimes
result in litigation, the Client agrees to indemnify and hold
harmless Xxxxxxx, its affiliates and their respective officers,
directors, employees, agents and controlling persons (collectively,
the “Indemnified
Parties”), from and against any losses, claims,
damages and liabilities, joint or several, related to or arising in
any manner out of any transaction, financing, proposal or any other
matter (collectively, the “Matters”)
contemplated by the engagement of Xxxxxxx hereunder, whether or not
such Matters occur prior, during or after the Term of this
Agreement, and will promptly reimburse the Indemnified Parties for
all expenses (including reasonable fees and expenses of legal
counsel) as and when incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim
related to or arising in any manner out of any Matter contemplated
by the engagement of Xxxxxxx hereunder, or any action or proceeding
arising therefrom (collectively, “Proceedings”),
whether or not such Indemnified Party is a formal party to any such
Proceeding. For the purposes hereof, Client’s obligations to
the Indemnified Parties hereunder shall include any and all Matters
arising in connection with or derivative from the reverse merger
shell company and its shareholders.
Notwithstanding the
foregoing, and subject to the following paragraph, the Client shall
not be liable to the extent that any losses, claims, damages,
liabilities or expenses resulted directly from the gross negligence
or willful misconduct of an Indemnified Party as determined by a
court of competent jurisdiction after all appeals have run. The
Client further agrees that it will not, without the prior written
consent of Xxxxxxx, which consent will not be unreasonably
withheld, conditioned or delayed, settle, compromise or consent to
the entry of any judgment in any pending or threatened Proceeding
in respect of which indemnification may be sought hereunder
(whether or not Xxxxxxx or any Indemnified Party is an actual or
potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional release of Xxxxxxx
and each other Indemnified Party hereunder from all liability
arising out of such Proceeding.
Each
party agrees that if any indemnification or reimbursement sought
pursuant to this Agreement were for any reason not to be available
to the Indemnified Parties or insufficient to hold them harmless as
and to the extent contemplated by this letter, then the
indemnifying party shall contribute to the amount paid or payable
by such Indemnified Party in respect of losses, claims, damages and
liabilities in such proportion as is appropriate to reflect the
relative benefits to the indemnifying party on the one hand, and
the Indemnified Party on the other, in connection with the matters
to which such indemnification or reimbursement relates or, if such
allocation is not permitted by applicable law, not only such
relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed
that the relative benefits to the Client and to Xxxxxxx with
respect to Xxxxxxx’x engagement shall be deemed to be in the
same proportion as (i) the total value paid or received or to be
paid or received by the Client pursuant to the matters (whether or
not consummated) for which Xxxxxxx is engaged to render services
bears to (ii) the Fees and Commissions paid to the Xxxxxxx in
connection with such engagement.
The
indemnity, reimbursement, contribution provisions set forth herein
shall remain operative and in full force and effect regardless of
(i) any withdrawal, termination or consummation of or failure to
initiate or consummate any matter referred to herein, (ii) any
investigation made by or on behalf of any party hereto or any
person controlling (within the meaning of Section 15 of the Act, or
Section 20 of the Exchange Act) any party hereto, (iii) any
termination or the completion or expiration of this Agreement and
(iv) whether or not Xxxxxxx shall, or shall not, be called upon to
render any formal or informal advice in the course of the
engagement.
SCHEDULE C
CORPORATE GOVERNANCE AND
OTHER QUALITATIVE
REQUIREMENTS
The Company herein recognizes the fundamental
significance of the requirements of this Schedule C to both
investors (“Investors”) in the Offering and to Xxxxxxx,
and therefore agrees that its failure to materially comply with
said requirements may if deliberate or due to negligence represent
justifiable claims of "bad faith", potential grounds for rescission
and/or other legal remedies under the terms of the Offering, the
covenants of the Securities and/or the Indemnification outlined in
Schedule B attached hereto.
To the
extent any such requirements are expressly counter to the
provisions of any stock purchase agreement or similar agreement
(“SPA”) subsequently executed by Client and Investors,
the provisions of the SPA shall control.
Financial Reporting
The
Company shall make available to the Investors and Xxxxxxx, if
permissible under law, unaudited quarterly financial statements and
an annual report containing audited financial statements of the
Company and its subsidiaries by filing with the Securities and
Exchange Commission on the Electronic Data, Gathering, Analysis,
and Retrieval System (XXXXX), electronic notification or mailing
the report to both Investors and Xxxxxxx in hard copy.
Conference Calls
The
Company agrees to hold dial-in conference calls or calls utilizing
other suitable electronic conferencing capability on no less than a
quarterly basis, with the ability to replay such calls for a
reasonable period of time following each call. Both Xxxxxxx and
stockholders will be provided access to such calls through
electronic notification reasonably in advance of each
call.
Independent Auditors
The
Company agrees to use qualified independent auditors approved by
the Board of Directors to issue annual financial reports to the
Board of Directors and to stockholders in accordance with U.S. GAAP
standards.
Independent Counsel
The
Company agrees to use independent legal counsel(s) with the
requisite experience and expertise to provide appropriate
oversight, advice and opinions to the Company as needed to the
Board of Directors and to management; to review and approve any
shareholder communications or public filings if applicable; and to
ensure Company compliance with any other requirements of this
Agreement or stakeholder rights.
Company Record
The
Company agrees, to the extent required to be disclosed by US
federal securities laws, to notify in writing to all shareholders
and to Xxxxxxx, or file a notification with the SEC on XXXXX : (i)
any change in the company’s name; (ii)any change in the par
value of the Company’s securities; (iii) any change in the
Company’s principle address; (iv) a change in its place of
organization; (v) a stock split or reverse stock split; (vi) a
change in symbol if applicable; (vii) any reclassification or
exchange of Company shares for another security; (viii) the listing
on any market of a new class of Company securities; (ix) any other
material aspect of the Company’s corporate structure,
securities or ownership, to the extent required to be disclosed by
U.S. federal securities laws, such notice to be given no later than
10 days after the change unless prior notice is required by
applicable law or regulation.
Website Maintenance
For the
sake of additional transparency, subject to applicable securities
laws and regulations, the Company agrees to maintain and update no
less than quarterly its official website with access available to
shareholders, investors, Xxxxxxx and interested parties. The
information available on such website should be designed to provide
timely and informative disclosure of the Company’ operations
insofar as such disclosure is required and permissible within
the law and federal,
state and local regulatory guidelines, and does not, in the
reasonable judgment of the Board of Directors, present
a material risk to the Company’s overall business or the
proprietary nature of any of its activities.
Transfer Agent & Legal Opinions
Upon
completion, any transaction in which the capital shares of the
Company become publicly traded, the Company shall use a “DWAC
fast-eligible” transfer agent at all times and to stay
current in regard to any financial obligations that the Company may
have to such transfer agent.
The
Company agrees to promptly obtain, at its own expense, any legal
opinions or supporting documentation reasonably required by such
transfer agent or any other party relating to the exercise,
conversion, sale or disposition of any securities, warrants or
derivative instruments held by Xxxxxxx or any stockholders
introduced to the Company by Xxxxxxx pursuant to this Agreement and
to instruct Company counsel and pay such counsel and Company
personnel to use their reasonable best efforts to perform all such
functions relating to such stockholder action, regardless of how
often, as expeditiously as reasonably possible but in no event more
than three (3) days after the sale or reverse.
Exclusion
Notwithstanding any
of the above, the Company shall comply with all of the requirements
of the market or exchange on which it is listed or shall become
listed in the future, and shall also comply with all of the above
requirements insofar as such is permitted or is not otherwise
precluded by the market-listing requirements.
SCHEDULE D
