EQUITY PURCHASE AGREEMENT
Exhibit 10.1
This
Equity Purchase Agreement (this “Agreement”) is entered
into as of November 19, 2018 (the “Execution Date”), by and
between MABVAX THERAPEUTICS HOLDINGS, INC., a Delaware corporation
(the “Company”), and TRITON
FUNDS LP, a Delaware limited partnership (the “Investor”).
WHEREAS, the parties desire that, upon
the terms and subject to the conditions contained herein, the
Investor shall purchase, from time to time, as provided herein, and
the Company shall issue and sell One Million Dollars ($1,000,000)
of the Company’s Preferred Stock convertible into Common
Stock upon Company issuing a Purchase Notice (capitalized terms are
as defined below);
NOW, THEREFORE, the parties hereto agree
as follows:
ARTICLE I
CERTAIN
DEFINITIONS
Section
1.1 DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings
specified or indicated (such meanings to be equally applicable to
both the singular and plural forms of the terms
defined):
“Agreement” shall have the
meaning specified in the preamble hereof.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“Business Day” shall mean
a day on which the Principal Market shall be open for
business.
“Claim Notice” shall have
the meaning specified in Section 9.3(a).
“Clearing Costs” shall
mean all of the Investor’s broker and Transfer Agent fees,
excluding commissions.
“Clearing
Date” shall be the date on which the Investor receives
the Purchase Notice Shares as DWAC Shares in its brokerage
account.
“Closing”
shall mean one of the closings of a purchase and sale of Purchase
Notice Shares pursuant to Section 2.3.
“Closing
Date” shall mean the date that is no later than one
(1) Business Day after the Clearing Date.
“Commitment
Amount” shall mean One Million Dollars
($1,000,000).
“Commitment
Period” shall mean the period commencing on the
Execution Date and ending on the earlier of (i) the date on which
the Investor shall have purchased Purchase Notice Shares pursuant
to this Agreement equal to the Commitment Amount, (ii) the
Expiration Date, (iii) June 30, 2019, or (iv) written notice of
termination by the Company to the Investor upon a material breach
of this Agreement by Investor.
“Common Stock” shall mean
the Company’s common stock, $0.01 value per share, and any
shares of any other class of common stock whether now or hereafter
authorized, having the right to participate in the distribution of
dividends (as and when declared) and assets (upon liquidation of
the Company).
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
“Company” shall have the
meaning specified in the preamble to this Agreement.
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“Conversion Notice” shall
have the form and meaning as described in the Certificate of
Designations for 0% Series P Convertible Preferred
Stock.
“Custodian” means any
receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
“Damages” shall mean any
loss, claim, damage, liability, cost and expense (including,
without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of expert witnesses and
investigation).
“Dispute Period” shall
have the meaning specified in Section 9.3(a).
“Document Fee” shall have
the meaning specified in Section 2.2(c).
“DTC” shall mean The
Depository Trust Company, or any successor performing substantially
the same function for the Company.
“DTC/FAST Program” shall
mean the DTC’s Fast Automated Securities Transfer
Program.
“DWAC” shall mean Deposit
Withdrawal at Custodian as defined by the DTC.
“DWAC Eligible” shall mean
that (a) the Common Stock is eligible at DTC for full services
pursuant to DTC’s Operational Arrangements, including,
without limitation, transfer through DTC’s DWAC system, (b)
the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is
approved as an agent in the DTC/FAST Program, (d) the Purchase
Notice Shares are otherwise eligible for delivery via DWAC, and (e)
the Transfer Agent does not have a policy prohibiting or limiting
delivery of the Purchase Notice Shares, as applicable, via
DWAC.
“DWAC Shares” means shares
of Common Stock that are (i) issued in electronic form, (ii) freely
tradable and transferable and without restriction on resale and
(iii) timely credited by the Company to the Investor’s or its
designee’s specified DWAC account with DTC under the DTC/FAST
Program, or any similar program hereafter adopted by DTC performing
substantially the same function.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Cap” shall have
the meaning set forth in Section 7.1(c).
“Execution Date” shall
have the meaning specified in the preamble hereof.
“Expiration Date” shall
mean ninety (90) Business Days after the Registration Statement has
been declared effective.
“FINRA” shall mean the
Financial Industry Regulatory Authority, Inc.
“Indemnified Party” shall
have the meaning specified in Section 9.2.
“Indemnifying Party” shall
have the meaning specified in Section 9.2.
“Indemnity Notice” shall
have the meaning specified in Section 9.3(e).
“Investment Amount” shall
mean the Purchase Notice Shares referenced in the Purchase Notice
multiplied by the Purchase Price.
“Investor”
shall have the meaning specified in the preamble to this
Agreement.
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“Lien”
means a lien, charge, pledge, security interest, encumbrance, right
of first refusal, preemptive right or other
restriction.
“Material
Adverse Effect” shall mean any effect on the business,
operations, properties, or financial condition of the Company and
the Subsidiaries that is material and adverse to the Company and
the Subsidiaries and/or any condition, circumstance, or situation
that would prohibit or otherwise materially interfere with the
ability of the Company to enter into and perform its obligations
under any Transaction Document.
“Person” shall mean an
individual, a corporation, a partnership, an association, a trust
or other entity or organization, including a government or
political subdivision or an agency or instrumentality
thereof.
“Preferred Stock” shall
mean 0% Series P Convertible Preferred Stock, $0.01 par value,
convertible into Common Stock at the Conversion Rate, as defined in
the Certificate of Designations for 0% Series P Convertible
Preferred Stock, the form of which is attached hereto as Schedule
1.0.
“Principal Market” shall
mean any of the national exchanges (i.e. NYSE, NYSE AMEX, Nasdaq),
or principal quotation systems (i.e. OTCQX, OTCQB, OTC Pink, the
OTC Bulletin Board), or other principal exchange or recognized
quotation system which is at the time the principal trading
platform or market for the Common Stock.
“Purchase
Notice” shall mean a written notice from Company,
substantially in the form of Exhibit A hereto, to Investor setting
forth the Purchase Notice Shares which the Company intends to sell
to the Investor subject to the Maximum Purchase Amount and pursuant
to the terms of this Agreement.
“Purchase Notice Shares”
shall mean all shares of Preferred Stock issued, or that the
Company shall be required to issue, per the applicable Purchase
Notice in accordance with the terms and conditions of this
Agreement.
“Purchase Price” shall
mean an amount equal to the stated value of $100.00 per share of
the Series P Preferred Stock.
“Registration Statement”
shall have the meaning specified in Section 6.3.
“Regulation D” shall mean
Regulation D promulgated under the Securities Act.
“Rule 144” shall mean Rule
144 under the Securities Act or any similar provision then in force
under the Securities Act.
“SEC” shall mean the
United States Securities and Exchange Commission.
“SEC Documents” shall have
the meaning specified in Section 4.5.
“Shares” shall mean shares
of Preferred Stock.
“Short Sales” shall mean
all “short sales” as defined in Rule 200 of Regulation
SHO under the Exchange Act.
“Securities” shall mean
the Purchase Notice Shares.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Subsidiary”
means any Person the Company wholly-owns or controls, or in which
the Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be
disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.
“Third Party Claim” shall
have the meaning specified in Section 9.3(a).
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“Transaction Documents”
shall mean this Agreement and all schedules and exhibits hereto and
thereto.
“Transfer Agent” shall
mean the current transfer agent of the Company, and any successor
transfer agent of the Company.
“VWAP” shall mean the
volume weighted average price of the Common Stock as calculated on
a daily basis.
ARTICLE II
PURCHASE
AND SALE OF PREFERRED STOCK
Section
2.1 PURCHASE NOTICE SHARES. Upon
the terms and conditions set forth herein, the Company shall have
the right to direct the Investor to purchase the Purchase Notice
Shares, subject to the terms and conditions set forth in Article
VII and as otherwise provided herein.
Section
2.2 MECHANICS.
(a) PURCHASE NOTICE. During the
Commitment Period, the Company may deliver a Purchase Notice to the
Investor, subject to the satisfaction of the conditions set forth
in Article VII and otherwise provided herein. The Company shall
deliver the Purchase Notice Shares as Preferred Stock, and upon
receipt of a Conversion Notice by the Investor, shall DWAC Shares
to the Investor immediately upon receipt of the Conversion
Notice.
(b) DATE OF DELIVERY OF PURCHASE
NOTICE. A Purchase Notice shall be deemed delivered on (i)
the Business Day it is sent by email if such notice is sent on or
prior to 8:00 p.m. New York time or (ii) the immediately succeeding
Business Day if it is sent by email after 8:00 p.m. New York time
on a Business Day or at any time on a day which is not a Business
Day. The Company hereby acknowledges that the maximum aggregate
Purchase Price for the first Purchase Notice delivered pursuant to
the terms of this Agreement (the “Initial Purchase Notice”)
shall not exceed $300,000 and that the Company shall not deliver a
subsequent Purchase Notice during the thirty (30) day period
immediately following delivery of the Initial Purchase
Notice.
(c) DOCUMENT FEE. On the Execution
Date, the Company shall immediately wire $5,000 to the
Investor’s general partner.
Section
2.3 CLOSINGS.
(a) CLOSING. The Closing of a
Purchase Notice shall occur no later than one (1) Business Day
following the Clearing Date, whereby the Investor shall deliver the
Investment Amount (minus the Clearing Costs) by wire transfer of
immediately available funds to an account designated by the
Company.
(b) EXPIRATION DATE. If, by the day
after the Expiration Date, the Investor has invested less than the
Commitment Amount, pursuant to this Agreement, Investor shall
within one (1) Business Day transfer to the Company the amount
representing the difference between the Commitment Amount and the
amount the Investor has already paid to the Company. The Company
shall immediately deliver the Purchase Notice Shares as Preferred
Stock to the Investor, and the Investor shall immediately wire to
the Company the remaining Commitment Amount.
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ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that:
Section
3.1 INTENT. The Investor is
entering into this Agreement for its own account and the Investor
has no present arrangement (whether or not legally binding) at any
time to sell the Securities to or through any Person in violation
of the Securities Act or any applicable state securities laws;
provided,
however, that the
Investor reserves the right to dispose of the Securities at any
time in accordance with federal and state securities laws
applicable to such disposition.
Section
3.2 NO LEGAL ADVICE FROM THE
COMPANY. The Investor acknowledges that it has had the
opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel and
investment and tax advisors. The Investor is relying solely on such
counsel and advisors and not on any statements or representations
of the Company or any of its representatives or agents for legal,
tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws
of any jurisdiction.
Section
3.3 ACCREDITED INVESTOR. The
Investor is an accredited investor as defined in Rule 501(a)(3) of
Regulation D, and the Investor has such experience in business and
financial matters that it is capable of evaluating the merits and
risks of an investment in the Securities. The Investor acknowledges
that an investment in the Securities is speculative and involves a
high degree of risk.
Section
3.4 AUTHORITY. The Investor has the
requisite power and authority to enter into and perform its
obligations under the Transaction Documents and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery of the Transaction Documents and the consummation by it of
the transactions contemplated hereby and thereby have been duly
authorized by all necessary action and no further consent or
authorization of the Investor is required. The Transaction
Documents to which it is a party has been duly executed by the
Investor, and when delivered by the Investor in accordance with the
terms hereof, will constitute the valid and binding obligation of
the Investor enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable
principles of general application.
Section
3.5 NOT AN AFFILIATE. The Investor
is not an officer, director or “affiliate” (as that term
is defined in Rule 405 of the Securities Act) of the
Company.
Section
3.6 ORGANIZATION AND STANDING. The
Investor is an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter
into and to consummate the transactions contemplated by the
Transaction Documents.
Section
3.7 ABSENCE OF CONFLICTS. The
execution and delivery of the Transaction Documents, and the
consummation of the transactions contemplated hereby and thereby
and compliance with the requirements hereof and thereof, will not
(a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Investor, (b) violate
any provision of any indenture, instrument or agreement to which
the Investor is a party or is subject, or by which the Investor or
any of its assets is bound, or conflict with or constitute a
material default thereunder, (c) result in the creation or
imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary
duty owed by the Investor to any third party, or (d) require the
approval of any third-party (that has not been obtained) pursuant
to any material contract, instrument, agreement, relationship or
legal obligation to which the Investor is subject or to which any
of its assets, operations or management may be
subject.
Section
3.8 DISCLOSURE; ACCESS TO
INFORMATION. The Investor had an opportunity to review
copies of the SEC Documents filed on behalf of the Company and has
had access to all publicly available information with respect to
the Company.
Section
3.9 MANNER OF SALE. At no time was
the Investor presented with or solicited by or through any leaflet,
public promotional meeting, television advertisement or any other
form of general solicitation or advertising.
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ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor that, except as
disclosed in the SEC Documents or except as set forth in the
disclosure schedules hereto:
Section
4.1 ORGANIZATION OF THE COMPANY.
The Company and each of the Subsidiaries is an entity duly
incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation
nor default of any of the provisions of its respective certificate
or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have
or reasonably be expected to result in a Material Adverse Effect
and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification.
Section
4.2 AUTHORITY. The Company has the
requisite corporate power and authority to enter into and perform
its obligations under the Transaction Documents. The execution and
delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company or its Board
of Directors or stockholders is required. The Transaction Documents
have been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general
application.
Section
4.3 CAPITALIZATION. As of the date
hereof, the authorized capital stock of the Company consists of
150,000,000 shares of Common Stock, par value of $0.01 per share,
of which approximately 9,254,582 shares of Common Stock are issued
and outstanding. Except as set forth on Schedule 4.3, the Company has
not issued any capital stock since its most recently filed periodic
report under the Exchange Act, other than pursuant to the exercise
of employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth on Schedule 4.3 and except as a
result of the purchase and sale of the Securities, there are no
outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe
for or acquire any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents. The issuance and sale of
the Securities will not obligate the Company to issue shares of
Common Stock or other securities to any Person (other than the
Investor) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset
price under any of such securities. There are no stockholder
agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company
is a party or, to the knowledge of the Company, between or among
any of the Company’s stockholders.
Section
4.4 LISTING AND MAINTENANCE
REQUIREMENTS. The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any
notification that the SEC is contemplating terminating such
registration. Except as disclosed in the SEC Documents or as set
forth on Schedule
4.4, the Company has not, in the twelve (12) months
preceding the date hereof, received notice from the Principal
Market on which the Common Stock is or has been listed or quoted to
the effect that the Company is not in compliance with the listing
or maintenance requirements of such Principal Market, except that
the Common Stock began trading on the OTC Pink following the
suspension of trading on The Nasdaq Stock Market on July 11, 2018.
The Company is and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements on the current trading
market.
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Section
4.5 SEC DOCUMENTS; DISCLOSURE.
Except as set forth on Schedule 4.5, the Company has
filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and
the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the one (1) year preceding the date hereof (or such
shorter period as the Company was required by law or regulation to
file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Documents”) on a
timely basis or has received a valid extension of such time of
filing and has filed any such SEC Documents prior to the expiration
of any such extension. Except as disclosed in the SEC Documents or
as set forth on Schedule
4.5, as of their respective dates, the SEC Documents
complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and other
federal laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents when filed contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the
Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b)
in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position
of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal, immaterial, year-end
audit adjustments). Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other
Person acting on its behalf has provided the Investor or its agents
or counsel with any information that it believes constitutes or
might constitute material, non-public information. The Company
understands and confirms that the Investor will rely on the
foregoing representation in effecting transactions in securities of
the Company.
Section
4.6 VALID ISSUANCES. The Securities
are duly authorized and, when issued and paid for in accordance
with the applicable Transaction Documents, will be duly and validly
issued, fully paid, and non-assessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents.
Section
4.7 NO CONFLICTS. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Purchase Notice Shares, do not and will not: (a)
result in a violation of the Company’s or any
Subsidiary’s certificate or articles of incorporation,
by-laws or other organizational or charter documents, (b) conflict
with, or constitute a material default (or an event that with
notice or lapse of time or both would become a material default)
under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture, instrument or any
“lock-up” or similar
provision of any underwriting or similar agreement to which the
Company or any Subsidiary is a party, or (c) result in a violation
of any federal, state or local law, rule, regulation, order,
judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or any Subsidiary or by
which any property or asset of the Company or any Subsidiary is
bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect) nor is the Company otherwise in violation
of, conflict with or in default under any of the foregoing. The
business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental entity, except for
possible violations that either singly or in the aggregate do not
and will not have a Material Adverse Effect. The Company is not
required under federal, state or local law, rule or regulation to
obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under the
Transaction Documents (other than any SEC, FINRA or state
securities filings that may be required to be made by the Company
subsequent to any Closing or any registration statement that may be
filed pursuant hereto); provided that, for purposes of the
representation made in this sentence, the Company is assuming and
relying upon the accuracy of the relevant representations and
agreements of Investor herein.
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Section
4.8 NO MATERIAL ADVERSE CHANGE. No
event has occurred that would have a Material Adverse Effect on the
Company that has not been disclosed in subsequent SEC
filings.
Section
4.9 LITIGATION AND OTHER
PROCEEDINGS. Except as disclosed in the SEC Documents or as
set forth on Schedule
4.9, there are (i) no actions, suits, investigations,
inquiries or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties, nor has the
Company received any written or oral notice of any such action,
suit, proceeding, inquiry or investigation, which would have a
Material Adverse Effect; (ii) no judgment, order, writ, injunction
or decree or award has been issued by or, to the knowledge of the
Company, requested of any court, arbitrator or governmental agency
which would have a Material Adverse Effect; and (iii) there has not
been, and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the SEC involving the Company,
any Subsidiary or any current or former director or officer of the
Company or any Subsidiary.
Section
4.10 REGISTRATION RIGHTS. Except as
disclosed in the SEC Documents or as set forth on Schedule 4.10, no Person (other
than the Investor) has any right to cause the Company to effect the
registration under the Securities Act of any securities of the
Company or any Subsidiary.
ARTICLE V
COVENANTS
OF INVESTOR
Section
5.1 COMPLIANCE WITH LAW; TRADING IN
SECURITIES. The Investor’s trading activities with
respect to shares of Common Stock will be in compliance with all
applicable state and federal securities laws and regulations and
the rules and regulations of FINRA and the Principal
Market.
Section
5.2 SHORT SALES. The Investor
hereby covenants and agrees that neither it nor any affiliate of
Investor will execute any Short Sales of any of the Company’s
securities during the period commencing with the execution of this
Agreement and ending at such time that the Investor no longer holds
or beneficially owns any Purchase Notice Shares. The Investor
further covenants and agrees that the provisions of this Section
5.2 and Section 8.1 shall be binding upon any transferees or
successors in interest of the Investor with respect to the Purchase
Notice Shares as if such transferees and successors in interest
were the Investor hereunder.
ARTICLE VI
COVENANTS
OF THE COMPANY
Section
6.1 LISTING OF COMMON STOCK. The
Company shall promptly secure the listing of all of the Purchase
Notice Shares to be issued to the Investor hereunder on the
Principal Market (subject to official notice of issuance) and shall
use commercially reasonable best efforts to maintain, so long as
any shares of Common Stock shall be so listed, the listing of all
such Purchase Notice Shares from time to time issuable hereunder.
The Company shall use its commercially reasonable efforts to
continue the listing and trading of the Common Stock on the
Principal Market (including, without limitation, maintaining
sufficient net tangible assets) and will comply in all respects
with the Company’s reporting, filing and other obligations
under the bylaws or rules of FINRA and the Principal
Market.
Section
6.2 FILING OF CURRENT REPORT AND
REGISTRATION STATEMENT. The Company agrees that it shall
file a Current Report on Form 8-K, including the Transaction
Documents as exhibits thereto, with the SEC within the time
required by the Exchange Act, relating to the transactions
contemplated by, and describing the material terms and conditions
of, the Transaction Documents (the “Current Report”). The
Company shall permit the Investor to review and comment upon the
final pre-filing draft version of the Current Report at least two
(2) Business Days prior to its filing with the SEC, and the Company
shall give reasonable consideration to all such comments. The
Investor shall use its reasonable best efforts to comment upon the
final pre-filing draft version of the Current Report within one (1)
Business Day from the date the Investor receives it from the
Company. The Company shall also file with the SEC, within thirty
(30) calendar days from the date hereof, a new registration
statement (the “Registration Statement”)
covering only the resale of the Purchase Notice
Shares.
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ARTICLE VII
CONDITIONS
TO DELIVERY OF
PURCHASE
NOTICE AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS PRECEDENT TO THE RIGHT OF
THE COMPANY TO ISSUE AND SELL PURCHASE NOTICE SHARES. The
right of the Company to issue and sell the Purchase Notice Shares
to the Investor is subject to the satisfaction of each of the
conditions set forth below:
(a) ACCURACY OF INVESTOR’S
REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor shall be true and correct in all
material respects as of the date of this Agreement and as of the
date of each Closing as though made at each such time.
(b) PERFORMANCE BY INVESTOR.
Investor shall have performed, satisfied and complied in all
respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Investor at or prior to such Closing.
(c) PRINCIPAL MARKET REGULATION.
The Company shall not issue any Purchase Notice Shares, and the
Investor shall not have the right to receive any Purchase Notice
Shares, if the issuance of such Purchase Notice Shares would exceed
the aggregate number of shares of Common Stock which the Company
may issue without breaching the Company’s obligations under
the rules or regulations of the Principal Market (the
“Exchange
Cap”).
Section
7.2 CONDITIONS PRECEDENT TO THE OBLIGATION
OF INVESTOR TO PURCHASE PURCHASE NOTICE SHARES. The
obligation of the Investor hereunder to purchase Purchase Notice
Shares is subject to the satisfaction of each of the following
conditions:
(a) EFFECTIVE REGISTRATION
STATEMENT. The Registration Statement, and any amendment or
supplement thereto, shall remain effective for the resale by the
Investor of the Common Stock then issuable upon conversion of the
Purchase Notice Shares and (i) neither the Company nor the Investor
shall have received notice that the SEC has issued or intends to
issue a stop order with respect to such Registration Statement or
that the SEC otherwise has suspended or withdrawn the effectiveness
of such Registration Statement, either temporarily or permanently,
or intends or has threatened to do so and (ii) no other suspension
of the use of, or withdrawal of the effectiveness of, such
Registration Statement or related prospectus shall
exist.
(b) ACCURACY OF THE COMPANY’S
REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company shall be true and correct in all material
respects as of the date of this Agreement and as of the date of
each Closing (except for representations and warranties
specifically made as of a particular date).
(c) PERFORMANCE BY THE COMPANY. The
Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company.
(d) NO INJUNCTION. No statute,
rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or adopted by any
court or governmental authority of competent jurisdiction that
prohibits or directly and materially adversely affects any of the
transactions contemplated by the Transaction Documents, and no
proceeding shall have been commenced that may have the effect of
prohibiting or materially adversely affecting any of the
transactions contemplated by the Transaction
Documents.
(e) ADVERSE CHANGES. Since the date
of filing of the Company’s most recent SEC Document, no event
that had or is reasonably likely to have a Material Adverse Effect
has occurred.
-9-
(f) NO SUSPENSION OF TRADING IN OR
DELISTING OF COMMON STOCK. The trading of the Common Stock
shall not have been suspended by the SEC, the Principal Market or
FINRA, or otherwise halted for any reason, and the Common Stock
shall have been approved for listing or quotation on and shall not
have been delisted from the Principal Market. In the event of a
suspension, delisting, or halting for any reason, of the trading of
the Common Stock, as contemplated by this Section 7.2(f), the
Investor shall have the right to return to the Company any amount
of Purchase Notice Shares associated with such Purchase Notice, and
the Investment Amount with respect to such Purchase Notice shall be
reduced accordingly.
(g) RESERVED.
(h) PRINCIPAL MARKET REGULATION.
The issuance of the Purchase Notice Shares shall not exceed the
Exchange Cap.
(i) NO KNOWLEDGE. The Company shall
have no knowledge of any event more likely than not to have the
effect of causing the Registration Statement to be suspended or
otherwise ineffective (which event is more likely than not to occur
within the fifteen (15) Business Days following the Business Day on
which such Purchase Notice is deemed delivered).
(j) NO VIOLATION OF SHAREHOLDER APPROVAL
REQUIREMENT. The issuance of the Purchase Notice Shares
shall not violate the shareholder approval requirements of the
Principal Market.
(k) DWAC ELIGIBLE. The Common Stock
must be DWAC Eligible and not subject to a “DTC chill”.
(l) SEC DOCUMENTS. All reports,
schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC
pursuant to the reporting requirements of the Exchange Act shall
have been filed with the SEC within the applicable time periods
prescribed for such filings under the Exchange Act.
ARTICLE VIII
LEGENDS
Section
8.1 RESTRICTIVE STOCK LEGEND. Any
share certificates representing the Purchase Notice Shares (in
physical form or in book entry) shall bear the following
legends:
“The
securities represented hereby 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, and, accordingly, may not be
transferred unless (i) such securities have been registered for
sale pursuant to the Securities Act of 1933, as amended, or (ii)
such securities may be sold pursuant to Rule 144, or (iii) the
Company has received an opinion of counsel reasonably satisfactory
to it that such transfer may lawfully be made without registration
under the Securities Act of 1933, as amended.”
“The
securities represented hereby are subject to the terms of that
certain Equity Purchase Agreement by and between MabVax
Therapeutics Holdings, Inc. and Triton Funds LP, a copy of which is
available to holder upon request.”
Section
8.2 INVESTOR’S COMPLIANCE.
Nothing in this Article VIII shall affect in any way the
Investor’s obligations hereunder to comply with all
applicable securities laws upon the sale of the Common
Stock.
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ARTICLE IX
NOTICES;
INDEMNIFICATION
Section
9.1 NOTICES. All notices, demands,
requests, consents, approvals, and other communications required or
permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (a) personally served, (b) deposited in
the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by reputable air courier service
with charges prepaid, or (d) transmitted by hand delivery,
telegram, or email as a PDF, addressed as set forth below or to
such other address as such party shall have specified most recently
by written notice given in accordance herewith. Any notice or other
communication required or permitted to be given hereunder shall be
deemed effective (i) upon hand delivery or delivery by email at the
address designated below (if delivered on a business day during
normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than
on a business day during normal business hours where such notice is
to be received) or (ii) on the second business day following the
date of mailing by express courier service or on the fifth business
day after deposited in the mail, in each case, fully prepaid,
addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur.
The
addresses for such communications shall be:
If
to the Company:
00000
Xxxxxxxx Xxxxxx Xxxx
Xxxxx
000
Xxx
Xxxxx, XX 00000
Email:
xxxxxxxxxxxxx@xxxxxx.xxx
If to
the Investor:
TRITON
FUNDS LLC
0000
Xxxxxxxx Xxxxxx
Xx
Xxxxx, XX 00000
Email:
xxxxxxxxxxx@xxxxxxxxxxx.xxx
Either
party hereto may from time to time change its address or email for
notices under this Section 9.1 by giving at least ten (10)
days’ prior written notice of such changed address to the
other party hereto.
Section
9.2 INDEMNIFICATION. Each party (an
“Indemnifying
Party”) agrees to indemnify and hold harmless the
other party along with its officers, directors, employees, and
authorized agents, and each Person or entity, if any, who controls
such party within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (an “Indemnified Party”) from
and against any Damages, joint or several, and any action in
respect thereof to which the Indemnified Party becomes subject to,
resulting from, arising out of or relating to (i) any
misrepresentation, breach of warranty or nonfulfillment of or
failure to perform any covenant or agreement on the part of the
Indemnifying Party contained in this Agreement, (ii) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or any post-effective amendment
thereof or supplement thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not
misleading, or (iv) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act,
the Exchange Act or any state securities law, as such Damages are
incurred, except to the extent such Damages result primarily from
the Indemnified Party’s failure to perform any covenant or
agreement contained in this Agreement or the Indemnified
Party’s negligence, recklessness or bad faith in performing
its obligations under this Agreement; provided, however, that the foregoing
indemnity agreement shall not apply to any Damages of an
Indemnified Party to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made by an Indemnifying
Party in reliance upon and in conformity with written information
furnished to the Indemnifying Party by the Indemnified Party
expressly for use in the Registration Statement, any post-effective
amendment thereof or supplement thereto, or any preliminary
prospectus or final prospectus (as amended or
supplemented).
-11-
Section
9.3 METHOD OF ASSERTING INDEMNIFICATION
CLAIMS. All claims for indemnification by any Indemnified
Party under Section 9.2 shall be asserted and resolved as
follows:
(a) In the event any
claim or demand in respect of which an Indemnified Party might seek
indemnity under Section 9.2 is asserted against or sought to be
collected from such Indemnified Party by a Person other than a
party hereto or an affiliate thereof (a “Third Party Claim”), the
Indemnified Party shall deliver a written notification, enclosing a
copy of all papers served, if any, and specifying the nature of and
basis for such Third Party Claim and for the Indemnified
Party’s claim for indemnification that is being asserted
under any provision of Section 9.2 against an Indemnifying Party,
together with the amount or, if not then reasonably ascertainable,
the estimated amount, determined in good faith, of such Third Party
Claim (a “Claim
Notice”) with reasonable promptness to the
Indemnifying Party. If the Indemnified Party fails to provide the
Claim Notice with reasonable promptness after the Indemnified Party
receives notice of such Third Party Claim, the Indemnifying Party
shall not be obligated to indemnify the Indemnified Party with
respect to such Third Party Claim to the extent that the
Indemnifying Party’s ability to defend has been prejudiced by
such failure of the Indemnified Party. The Indemnifying Party shall
notify the Indemnified Party as soon as practicable within the
period ending thirty (30) calendar days following receipt by the
Indemnifying Party of either a Claim Notice or an Indemnity Notice
(as defined below) (the “Dispute Period”) whether
the Indemnifying Party disputes its liability or the amount of its
liability to the Indemnified Party under Section 9.2 and whether
the Indemnifying Party desires, at its sole cost and expense, to
defend the Indemnified Party against such Third Party
Claim.
(i) If the Indemnifying
Party notifies the Indemnified Party within the Dispute Period that
the Indemnifying Party desires to defend the Indemnified Party with
respect to the Third Party Claim pursuant to this Section 9.3(a),
then the Indemnifying Party shall have the right to defend, with
counsel reasonably satisfactory to the Indemnified Party, at the
sole cost and expense of the Indemnifying Party, such Third Party
Claim by all appropriate proceedings, which proceedings shall be
vigorously and diligently prosecuted by the Indemnifying Party to a
final conclusion or will be settled at the discretion of the
Indemnifying Party (but only with the consent of the Indemnified
Party in the case of any settlement that provides for any relief
other than the payment of monetary damages or that provides for the
payment of monetary damages as to which the Indemnified Party shall
not be indemnified in full pursuant to Section 9.2). The
Indemnifying Party shall have full control of such defense and
proceedings, including any compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the
Indemnified Party, at any time prior to the Indemnifying
Party’s delivery of the notice referred to in the first
sentence of this clause (i), file any motion, answer or other
pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect its
interests; and provided, further, that if requested by
the Indemnifying Party, the Indemnified Party will, at the sole
cost and expense of the Indemnifying Party, provide reasonable
cooperation to the Indemnifying Party in contesting any Third Party
Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any defense
or settlement of any Third Party Claim controlled by the
Indemnifying Party pursuant to this clause (i), and except as
provided in the preceding sentence, the Indemnified Party shall
bear its own costs and expenses with respect to such participation.
Notwithstanding the foregoing, the Indemnified Party may take over
the control of the defense or settlement of a Third Party Claim at
any time if it irrevocably waives its right to indemnity under
Section 9.2 with respect to such Third Party Claim.
-12-
(ii) If
the Indemnifying Party fails to notify the Indemnified Party within
the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 9.3(a), or if the
Indemnifying Party gives such notice but fails to prosecute
vigorously and diligently or settle the Third Party Claim, or if
the Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party shall have the right
to defend, at the sole cost and expense of the Indemnifying Party,
the Third Party Claim by all appropriate proceedings, which
proceedings shall be prosecuted by the Indemnified Party in a
reasonable manner and in good faith or will be settled at the
discretion of the Indemnified Party(with the consent of the
Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such
defense and proceedings, including any compromise or settlement
thereof; provided, however, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole cost and expense of
the Indemnifying Party, provide reasonable cooperation to the
Indemnified Party and its counsel in contesting any Third Party
Claim which the Indemnified Party is contesting. Notwithstanding
the foregoing provisions of this clause (ii), if the Indemnifying
Party has notified the Indemnified Party within the Dispute Period
that the Indemnifying Party disputes its liability or the amount of
its liability hereunder to the Indemnified Party with respect to
such Third Party Claim and if such dispute is resolved in favor of
the Indemnifying Party in the manner provided in clause (iii)
below, the Indemnifying Party will not be required to bear the
costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s
participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any defense
or settlement controlled by the Indemnified Party pursuant to this
clause (ii), and the Indemnifying Party shall bear its own costs
and expenses with respect to such participation.
(iii) If
the Indemnifying Party notifies the Indemnified Party that it does
not dispute its liability or the amount of its liability to the
Indemnified Party with respect to the Third Party Claim under
Section 9.2 or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its
liability or the amount of its liability to the Indemnified Party
with respect to such Third Party Claim, the amount of Damages
specified in the Claim Notice shall be conclusively deemed a
liability of the Indemnifying Party under Section 9.2 and the
Indemnifying Party shall pay the amount of such Damages to the
Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability or the amount of its liability with respect
to such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such
dispute; provided,
however, that if
the dispute is not resolved within thirty (30) days after the Claim
Notice, the Indemnifying Party shall be entitled to institute such
legal action as it deems appropriate.
(b) In the event any
Indemnified Party should have a claim under Section 9.2 against the
Indemnifying Party that does not involve a Third Party Claim, the
Indemnified Party shall deliver a written notification of a claim
for indemnity under Section 9.2 specifying the nature of and basis
for such claim, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of
such claim (an “Indemnity Notice”) with
reasonable promptness to the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair
such party’s rights hereunder except to the extent that the
Indemnifying Party demonstrates that it has been irreparably
prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount
of the claim described in such Indemnity Notice or fails to notify
the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes the claim or the amount of the claim
described in such Indemnity Notice, the amount of Damages specified
in the Indemnity Notice will be conclusively deemed a liability of
the Indemnifying Party under Section 9.2 and the Indemnifying Party
shall pay the amount of such Damages to the Indemnified Party on
demand. If the Indemnifying Party has timely disputed its liability
or the amount of its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good
faith to negotiate a resolution of such dispute; provided, however,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems appropriate.
-13-
(c) The Indemnifying
Party agrees to pay the Indemnified Party, promptly as such
expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such
Claim.
(d) The indemnity
provisions contained herein shall be in addition to (i) any cause
of action or similar rights of the Indemnified Party against the
Indemnifying Party or others, and (ii) any liabilities the
Indemnifying Party may be subject to.
ARTICLE X
MISCELLANEOUS
Section
10.1 GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California without regard to the
principles of conflicts of law. Each of the Company and the
Investor hereby submits to the exclusive jurisdiction of the United
States federal and state courts located in California, County of
Los Angeles, with respect to any dispute arising under the
Transaction Documents or the transactions contemplated
thereby.
Section
10.2 JURY TRIAL WAIVER. The Company
and the Investor hereby waive a trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto
against the other in respect of any matter arising out of or in
connection with the Transaction Documents.
Section
10.3 ASSIGNMENT. The Transaction
Documents shall be binding upon and inure to the benefit of the
Company and the Investor and their respective successors. Neither
this Agreement nor any rights of the Investor or the Company
hereunder may be assigned by either party to any other
Person.
Section
10.4 NO THIRD-PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the Company and the
Investor and their respective successors, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
Person, except as set forth in Section 9.3.
Section
10.5 TERMINATION. The Company may
terminate this Agreement at any time by written notice to the
Investor in the event of a material breach of this Agreement by the
Investor. In addition, this Agreement shall automatically terminate
on the earlier of (i) the end of the Commitment Period; (ii) the
date that the Company sells and the Investor purchases the
Commitment Amount; (iii) the date in which the Registration
Statement is no longer effective, or (iv) the date that, pursuant
to or within the meaning of any Bankruptcy Law, the Company
commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or
for all or substantially all of its property or the Company makes a
general assignment for the benefit of its creditors; provided,
however, that the provisions of Articles III, IV, V, VI, IX and the
agreements and covenants of the Company and the Investor set forth
in Article X shall survive the termination of this
Agreement.
Section
10.6 ENTIRE AGREEMENT. The
Transaction Documents, together with the exhibits and schedules
thereto, contain the entire understanding of the Company and the
Investor with respect to the matters covered herein and therein and
supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have
been merged into such documents, exhibits and
schedules.
Section
10.7 FEES AND EXPENSES. Except as
expressly set forth in the Transaction Documents or any other
writing to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of
this Agreement. The Company shall pay all Transfer Agent fees
(including any fees required for same-day processing of any
instruction letter delivered by the Company), stamp taxes and other
taxes and duties levied in connection with the delivery of any
Securities to the Investor.
-14-
Section
10.8 COUNTERPARTS. The Transaction
Documents may be executed in multiple counterparts, each of which
may be executed by less than all of the parties and shall be deemed
to be an original instrument which shall be enforceable against the
parties actually executing such counterparts and all of which
together shall constitute one and the same instrument. The
Transaction Documents may be delivered to the other parties hereto
by email of a copy of the Transaction Documents bearing the
signature of the parties so delivering this Agreement.
Section
10.9 SEVERABILITY. In the event that
any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void,
this Agreement shall continue in full force and effect without said
provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any
party.
Section
10.10 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 the
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.
Section
10.11 NO STRICT CONSTRUCTION. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
Section
10.12 EQUITABLE RELIEF. The Company
recognizes that in the event that it fails to perform, observe, or
discharge any or all of its obligations under this Agreement, any
remedy at law may prove to be inadequate relief to the Investor.
The Company therefore agrees that the Investor shall be entitled to
temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
Section
10.13 TITLE AND SUBTITLES. The titles
and subtitles used in this Agreement are used for the convenience
of reference and are not to be considered in construing or
interpreting this Agreement.
Section
10.14 AMENDMENTS; WAIVERS. No
provision of this Agreement may be amended or waived by the parties
from and after the date that is one (1) Business Day immediately
preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, (i) no
provision of this Agreement may be amended other than by a written
instrument signed by both parties hereto and (ii) no provision of
this Agreement may be waived other than in a written instrument
signed by the party against whom enforcement of such waiver is
sought. No failure or delay 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.
Section
10.15 PUBLICITY. The Company and the
Investor shall consult with each other in issuing any press
releases or otherwise making public statements with respect to the
transactions contemplated hereby and no party shall issue any such
press release or otherwise make any such public statement, other
than as required by law, without the prior written consent of the
other parties, which consent shall not be unreasonably withheld or
delayed, except that no prior consent shall be required if such
disclosure is required by law, in which such case the disclosing
party shall provide the other party with prior notice of such
public statement. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of the Investor without the prior
written consent of the Investor, except to the extent required by
law. The Investor acknowledges that the Transaction Documents may
be deemed to be “material contracts,” as
that term is defined by Item 601(b)(10) of Regulation S-K, and that
the Company may therefore be required to file such documents as
exhibits to reports or registration statements filed under the
Securities Act or the Exchange Act. The Investor further agrees
that the status of such documents and materials as material
contracts shall be determined solely by the Company, in
consultation with its counsel.
[Signature Page Follows]
-15-
IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
By: /s/ J. Xxxxx
Xxxxxx
Name:
J. Xxxxx Xxxxxx
Title:
President and CEO
TRITON
FUNDS LP
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Authorized Signatory
DISCLOSURE SCHEDULES TO AGREEMENT
-17-
Schedule 1.0 – Preferred Stock
0% SERIES P CONVERTIBLE PREFERRED STOCK OF
I, J.
Xxxxx Xxxxxx, 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 November [__], 2018, adopted the following resolutions
creating a series of shares of Preferred Stock designated as 0%
Series P 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 November
[__], 2018:
RESOLVED, that the
Board designates the 0% Series P 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 P 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 P Convertible
Preferred Stock” (the “Preferred
Shares”). The authorized
number of Preferred Shares shall be [___] 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 22
below.
2. Ranking.
The Preferred Shares shall rank: (i) senior to all shares of Common
Stock; (ii) senior to any class or series of capital stock of the
Company hereafter created specifically ranking by its terms junior
to the Preferred Shares; (iii) on parity with all shares of the
Company’s Series D Preferred Stock, Series E Preferred Stock,
Series I Preferred Stock, Series J Preferred Stock, Series K
Preferred Stock, Series L Preferred Stock, Series M Preferred
Stock, Series N Preferred Stock and Series O Preferred Stock; (iv)
on parity with any class or series of capital stock of the Company
hereafter created specifically ranking by its terms on parity with
the Preferred Shares; and (v) junior to any class or series of
capital stock of the Company hereafter created specifically ranking
by its terms senior to the Preferred Shares
(“Senior
Securities”). In the
event of a 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.
Subject to the rights of any Senior Securities, in addition to
Sections 5(a) and 10
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.
-18-
4. Conversion.
Each Preferred Share shall be convertible into validly issued,
fully paid and non-assessable shares of Common Stock at the
Conversion
Rate subject to the terms and
conditions set forth in this Section 4.
(a) 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(a)(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 (1st)
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 Company’s Transfer
Agent (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 (2nd)
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(a)(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.
-19-
(iv) Company’s
Failure to Timely Convert. 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 (3rd)
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 21.
-20-
(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(a)(vi)) 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 COMPANY’S CERTIFICATE OF DESIGNATIONS
RELATING TO THE SHARES OF SERIES P PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(a)(vi) THEREOF. THE NUMBER OF SHARES OF
SERIES P PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE MAY BE
LESS THAN THE NUMBER OF SHARES OF SERIES P PREFERRED STOCK STATED
ON THE FACE HEREOF PURSUANT TO SECTION 4(a)(vi) OF THE CERTIFICATE OF DESIGNATIONS
RELATING TO THE SHARES OF SERIES P PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE.
(b) 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.
-21-
(c) 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(c) shall have any effect
on the applicability of the provisions of this Section
4(c) with respect to any subsequent determination of
convertibility or issuance (as the case may be). For purposes of
this Section 4(c), 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(c) shall be implemented in a manner otherwise than in strict
conformity with the terms of this Section 4(c) to correct this
Section 4(c) (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(c) shall apply to a successor holder of Preferred Shares.
The holders of Common Stock shall be third party beneficiaries of
this Section 4(c) and the Company may not waive this Section 4(c).
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 determination of whether the conversion of
shares of Preferred Stock into Common Stock is permitted under this
Section 4(c) shall be made by the Record Holder of such shares of
Preferred Stock in such Record Holder’s sole discretion, and
the submission of a Conversion Notice shall be conclusively deemed
to constitute such Record Holder’s determination that the
conversion of the shares of Preferred Stock identified in such
Conversion Notice is permitted under this Section 4(c). 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.
-22-
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 10, 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.
-23-
7. Adjustment
of Conversion Rate upon Subdivision or Combination of Capital
Stock.
(a) Adjustments.
Without limiting any provision of Sections 5 and
10, if the Company at any time on or after the
Initial Issuance Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) of its outstanding shares
of Common Stock and/or Preferred Shares into a greater number of
shares, the Conversion Rate in effect immediately prior to such
subdivision will be proportionately adjusted without limiting any
provision of Sections 5
and 10, 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 and/or Preferred
Shares into a smaller number of shares, the Conversion Rate in
effect immediately prior to such combination will be
proportionately adjusted. Any adjustment pursuant to this
Section 7(a)
shall become effective immediately
after the effective date of such subdivision or combination. If any
event requiring an adjustment under this Section
7(a)
occurs during the period that a
Conversion Rate is calculated hereunder, then the calculation of
such Conversion Rate shall be adjusted appropriately to reflect
such event.
(b) Calculations.
All calculations under this Section 7 shall be
made by rounding to the nearest 1/100th
of a share. The number of shares of
Common Stock and/or Preferred 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 and/or Preferred
Stock.
8. Authorized
Shares. 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 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. 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 the date prior to execution of the Purchase Agreement
for the Conversion Rate in Section 4 hereof, but not in excess of
the conversion limitations set forth in Section 4(c) herein. The
determination of the number of shares of Common Stock into which
Preferred Shares are convertible as of any record date for any
matter submitted for approval by stockholders as of such record
date shall be made by the Record Holder of such Preferred Shares in
its sole discretion. Upon the Company’s written request to
any Record Holder of Preferred Shares (which written request will
be deemed to have been made on the day deposited in the United
States mail, return receipt request, to the address of such
stockholder listed on the stock ledger of the Company), any Record
Holder of Preferred Shares shall provide the Company a writing
setting forth such a determination. If the Company requests a
Record Holder of Preferred Shares to submit such a determination
and such Record Holder fails to submit such a written determination
within 20 days of the date the Company makes such request, then
such Record Holder will be conclusively deemed to have determined
that, as of the applicable record date, such Record Holder’s
Preferred Shares are convertible into zero shares of Common Stock
and that such Record Holder is entitled to cast zero votes with
respect to such Preferred Shares on any matter submitted for
approval by stockholders as of such record date. 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.
-24-
9. Participation.
In addition to any adjustments pursuant to Section 7(a), 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).
10. Vote
to Change the Terms of or Issue Preferred Shares. In addition to any other rights provided by law,
except where the vote 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 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 15, whether or
not prohibited by the terms of the Preferred Shares, circumvent a
right of the Preferred Shares.
11. Redemption.
The Preferred Shares are not redeemable.
12. 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.
13. 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
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.
-25-
14. 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 take
all such actions as may be necessary and 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 (ii) 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).
15. 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.
16. 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
Rate, 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.
17. Transfer
of Preferred Shares. The Holder
may transfer some or all of its Preferred Shares without the
consent of the Company.
18. 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.
19. 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 or otherwise with respect to the
issuance of Preferred Shares may be effected at a duly called
meeting of the Company’s stockholders, all in accordance with
the applicable rules and regulations of the DGCL.
(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.
-26-
20. Dispute
Resolution.
(i) In
the case of a dispute relating to a Closing Bid Price, a Closing
Sale Price, a Conversion Rate 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 Rate, or such
fair market value (as the case may be) by 5:00 p.m. (New York time)
on the third (3rd)
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 21(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
(5th)
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.
-27-
Section
10.16 Miscellaneous. The
Company expressly acknowledges and agrees that (i) this Section 21
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
21, (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 21(a) shall be governed by
Section 21(a), (v) such Holder (and
only such Holder), in its sole discretion, shall have the right to
submit any dispute described in this Section 21 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 21
and (vi) nothing in this Section 21 shall limit such Holder from
obtaining any injunctive relief or other equitable remedies
(including, without limitation, with respect to any matters
described in Section 21(a).
21. 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) “Bloomberg”
means Bloomberg, L.P.
(c) “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.
(d) “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 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 21. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or
other similar transaction during such period.
-28-
(e) “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.
(f) “Conversion
Rate” means (i) $100.00
divided by (ii) 75% multiplied by the five-day volume-weighted
average price per share for the five days preceding the date of the
Conversion Notice.
(g) “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.
(h) “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, OTC Pink or the OTCQX Marketplace (or any
successor thereto).
(i) “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.
(j) “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.
(k) “Options”
means any rights, warrants or options to subscribe for or purchase
shares of Common Stock or Convertible
Securities.
(l) “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.
-29-
(m) “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.
(n) “Principal
Market” means the OTC
Pink Marketplace, The Nasdaq Capital Market, or the principal
market on which the shares of Common Stock are traded, whichever
applies.
(o) “Purchase
Agreement” means that
certain Equity Purchase Agreement by and among the Company and the
initial holders of Preferred Shares, dated as of November [__],
2018, as may be amended from time in accordance with the terms
thereof.
(p) “SEC”
means the Securities and Exchange Commission or the successor
thereto.
(q) “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.
(r) “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.
(s) “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 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
Principal Market (or any successor thereto) is open for trading of
securities.
(t) “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.
(u) “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).
22. 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.
* * * *
*
-30-
IN
WITNESS WHEREOF, the Company has caused this Certificate of
Designations of Series P Convertible Preferred Stock of MabVax
Therapeutics Holdings, Inc. to be signed by its President and Chief
Executive Officer on this [__] day of November, 2018.
By:
___________________
Name:
J. Xxxxx Xxxxxx
Title:
President and Chief Executive Officer
-31-
EXHIBIT I
CONVERSION NOTICE
Reference is made
to the Certificate of Designations, Preferences and Rights of the
Series P 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 P 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
Rate:_________________________________________________________
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):
The
undersigned hereby represents, warrants and agrees that the number
of shares of Common Stock to be issued upon conversion of the
Preferred Shares does not exceed the Maximum Percentage as defined
in Section 4(c) of the Certificate of Designations.
-32-
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.
By:
Name:
Title:
-33-
Schedule 4.3 – Capitalization
Common
stock reserved for future issuance
There
are 9,254,582 shares of Common Stock outstanding as of September
30, 2018.
Common
stock reserved for future issuance consists of the following at
September 30, 2018**:
|
Common
stock reserved for conversion of preferred stock*
|
|
|
7,869,862
|
|
|
Warrants
to purchase common stock at an average price of $6.83
|
|
|
1,221,935
|
|
|
Common
stock options outstanding
|
|
|
1,820,589
|
|
|
Authorized
for future grant or issuance under the Stock Plan
|
|
|
646,059
|
|
|
Total
|
|
|
11,558,445
|
|
*
772.73 shares of 0% Series J Convertible Preferred Stock
convertible into 386,365 shares of Common Stock, and 5,363,64
shares of 0% Series N Convertible Preferred Stock, have price
protection below $1.10 share of Common Stock.
**As of
November 7, 2018, there have been no issuances of any form of
equity securities after September 30, 2018.
-34-
Schedule 4.5 – SEC Documents
The
Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by the Company under the
Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the one (1) year preceding the date
hereof, except for the Quarterly Reports on Form 10-Q for the three
months ended March 31, 2018, and for the three and six months ended
June 30, 2018, which were filed late on October 15,
2018.
-35-
Schedule 4.9 – Litigation
The
following has been disclosed in SEC Documents or will be filed
pursuant to a resale registration statement to be filed on Form S-1
in connection with the Registration Rights Agreement.
SEC
Complaint and SEC Action
As disclosed in a press release and a
Current Report on Form 8-K filed with the SEC on January 30, 2018, the Company
reported that it received notice
on January 29, 2018,
from
the SEC
of an
investigation (along with the SEC Complaint, defined below, the
“SEC Action”). We stated at that time that we believe
the SEC is investigating (i) potential violations by the Company
and its officers, directors and others of Section 10(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and Section 17(a) of the Securities Act of 1933, as
amended (as amended, the “Securities Act”); and (ii)
potential violations by multiple holders of our preferred stock,
who are among those included in the Aggregated
Investors (as defined on Page
78), of the reporting and disclosure requirements imposed by
Section 13(d) of the Exchange Act and pursuant to Schedules 13D and
13G. We further believe the SEC Action pertains to our
relationships with certain of the Aggregated Investors, including
(i) the circumstances under which those certain Aggregated
Investors invested in the Company and whether certain Aggregated
Investors have acted as an undisclosed group in connection with
their investment; (ii) the manner with or in which those
individuals and entities may have sought to control or influence
the Company and its leadership since their respective investments
(and the extent to which those efforts to control or influence have
been successful); and (iii) our prior disclosures regarding the
control of the Company and beneficial ownership of our common and
preferred stock included in our registration statements filed in
2017 and 2018 and in our Exchange Act reports.
On
September 7, 2018, the SEC filed a complaint (the “SEC
Complaint”) in the U.S. District Court for the Southern
District of New York against the following Aggregated Investors:
Xxxxx X. Xxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxx X. X'Xxxxxx
III, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Alpha Capital Anstalt,
ATG Capital LLC, Frost Gamma Investments Trust, GRQ
Consultants, Inc., Grander Holdings, Inc., Melechdavid, Inc.,
OPKO Health, Inc., HS Contrarian Investments, LLC, and Southern
Biotech, Inc. (collectively, the “Investor
Defendants”), and against others who we believe have not made
any investment in the Company. SEC
x. Xxxxx et al., No. 1:18-cv-01875 (S.D.N.Y. 2018). In the
Complaint, the SEC alleges a variety of misconduct with respect to
the Investor Defendants’ transactions and/or relationships
with three public issuers, including a public issuer identified as
“Company C,” which we understand to be MabVax
Therapeutics Holdings, Inc. With respect to “Company C”
in particular, the SEC alleges certain of the Investor Defendants
manipulated the price of the Company’s securities by writing,
or causing to be written, false or misleading promotional articles,
and a variety of other manipulative trading practices. The SEC
further alleges certain of the Investor Defendants filed false
reports of their beneficial ownership or failed to file reports of
their beneficial ownership when required to do so. The SEC claims
that, by engaging in this and other alleged actions in the SEC
Complaint, the Investor Defendants and other defendants violated
the anti-fraud and many other provisions of the Exchange Act, the
Securities Act, and SEC Rules promulgated thereunder. The SEC
Complaint does not assert any claims against the Company or any of
its directors or officers, nor otherwise allege that the Company or
any of its directors or officers were culpable participants in the
misconduct allegedly undertaken by the Investor
Defendants.
We
have cooperated with the SEC in connection with the SEC Action.
Although the SEC has not asserted claims against the Company or any
of its directors or officers, we cannot predict whether the SEC
Action ultimately will conclude in a manner adverse to the Company
or any of its directors and officers, or in a manner adverse to the
Investor Defendants or other of the Company’s current or
former stockholders. We also cannot predict when the SEC Action or
any related matters may conclude, or how any such matters or
resolution may impact how the Company is perceived by the market,
potential partners and potential investors in our
securities.
-36-
Company Filed Complaint Against Sichenzia Xxxx Xxxxxxx
LLP
On September 10, 2018, the Company
filed, in the Superior Court of California, County of San Diego, a
complaint (the “Sichenzia Complaint”) against Sichenzia
Xxxx Xxxxxxx LLP, a law firm that previously represented the
Company in certain corporate, securities, and SEC matters
(“Sichenzia”), and eight current Sichenzia partners,
and one former Sichenzia partner, Xxxxxx Xxxxxx,
MabVax
Therapeutics Holdings, Inc. x.
Xxxxxxxxx Xxxx Xxxxxxx LLP et al., No.
37-2018-00045609-CU-PN-CTL. The Sichenzia Complaint asserts claims
for negligent professional practice, breach of fiduciary
duty, breach of contract,
unjust enrichment, deceit, and fraud by the defendants. The Company
is evaluating additional claims it may have against others in
connection with the same or similar subject
matter.
Delaware
Order Granting Petition for Relief
On September 20, 2018, the Court entered an order validating (i)
issuances of common stock upon conversions of the Company’s
preferred stock occurring between June 30, 2014 and February 12,
2018, and (ii) stockholder approval of corporate actions presented
to the Company’s stockholders from June 30, 2014 to February
12, 2018. In so doing, the Court granted the Delaware Petition,
filed on July 27, 2018, in order to rectify the uncertainty
regarding whether shares of the Company’s common stock were
validly issued upon conversion of the Company’s preferred
stock from June 30, 2014 to February 12, 2018.
Class Action and Derivative Complaints
In re MabVax Therapeutics
Securities Litigation, Case
No. 18-cv-1160-BAS-NLS. On June 4, 2018, and August 3,
2018, two securities class action complaints were filed by
purported stockholders of the Company in the United States District
Court for the Southern District of California (the “U. S.
District Court”) against the Company and certain of its
current officers. On September 6, 2018, the U.S. District Court
consolidated the two actions and appointed lead plaintiffs. On
October 10, 2018, lead plaintiffs filed their consolidated
complaint, which, in addition to naming the Company and certain
current officers as defendants, also names certain investors as
defendants. The consolidated complaint alleges, among other things,
that the defendants violated Sections 10(b) and 20(a) of the
Exchange Act, and Rule 10b-5 thereunder, by misleading investors
about problems with the Company’s internal controls, improper
calculation of its beneficial ownership, and improper influence by
certain investors. The consolidated complaint also alleges that
some of the investor defendants violated Section 9 of the Exchange
Act by manipulating the Company’s stock price. The
consolidated complaint seeks unspecified damages, interest, fees
and costs. The current deadline to respond to the consolidated
complaint is December 6, 2018.
Xxxxxxx x. Xxxxxx et
al., Case No. 18-cv-2237-BTM-WVG. On September
26, 2018, a shareholder derivative complaint was filed in the
United States District Court for the Southern District of
California. The complaint arises from similar allegations as
In re MabVax Therapeutics
Securities Litigation but asserts a state law breach of
fiduciary duty claim against certain of the Company’s current
and former directors and officers. In particular, the
complaint alleges that the defendants breached their fiduciary
duties by failing to implement the necessary controls to ensure
that certain financial disclosures and disclosures concerning stock
ownership were accurate. Plaintiff seeks, on behalf of the
Company, damages, fees, costs, and equitable relief.
Xxxxxxx x. Xxxxxx et
al., Case No. 18-cv-2302-BEN-BGS. On October 4,
2018, a shareholder derivative complaint was filed in the United
States District Court for the Southern District of
California. The complaint arises from similar allegations as
In re MabVax Therapeutics
Securities Litigation and Xxxxxxx x. Xxxxxx et al. but, in
addition to a breach of fiduciary duty claim, also includes causes
of action for unjust enrichment, abuse of control, gross
mismanagement and waste of corporate assets. Plaintiff seeks,
on behalf of the Company, damages, fees, costs, and equitable
relief.
-37-
Schedule 4.10 – Registration Rights
Registration
rights are as set forth in SEC Documents. There have been no
changes since the last filing under the Exchange Act.
-38-
EXHIBIT A
FORM OF PURCHASE NOTICE
TO:
TRITON FUNDS LP
We
refer to the Equity Purchase Agreement, dated as of November [__],
2018, (the “Agreement”), entered into
by and between MabVax Therapeutics Holdings, Inc. and TRITON FUNDS
LP. Capitalized terms defined in the Agreement shall, unless
otherwise defined herein, have the same meaning when used
herein.
We
hereby:
1) Give
you notice that we require you to purchase _________ Purchase
Notice Shares; and
2)
Certify that, as of the date hereof, the conditions set forth in
Section 7.2 of the Agreement are satisfied.
MABVAX
THERAPEUTICS HOLDINGS, INC.
By:
Name:
Title:
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