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ITEM
1.01
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Entry into a Material Definitive
Agreement.
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On
November 19, 2018, MabVax Therapeutics Holdings, Inc.
(“MabVax” or the “Company”) entered into an
Equity Purchase Agreement with Triton Funds LP, an institutional
investor (“Triton”), pursuant to which Triton will,
subject to the terms of the Equity Purchase Agreement, purchase up
to $1 million of the Company’s to be designated 0% Series P
Convertible Preferred Stock (such stock, the “Series P
Preferred”). Pursuant to the terms of the Equity Purchase
Agreement, the Company has the right, but not the obligation, to
direct Triton to purchase a number of shares of Series P Preferred
(the “Put Shares”) at a price per share equal to the
stated value of $100.00 per share. The Put Shares are convertible
into common stock at the conversion rate of $100 divided by an
amount equal to 75% times the volume-weighted average price of the
Company’s common stock measured for the five-business day
period ending on the business day prior to the Company receiving a
conversion notice (the “Conversation Rate”). The
Company may direct Triton to purchase Put Shares at any time on or
after the date of effectiveness of a registration statement
registering the shares of common stock issuable upon conversion of
the Put Shares, subject to a maximum of $300,000 for the initial
purchase and terms providing the Company may not direct Triton to
purchase Put Shares during the 30 day period immediately following
delivery of the initial purchase notice. The Equity Purchase
Agreement will terminate on the earlier of (i) the date on which
Triton has purchased Put Shares with an aggregate purchase price of
$1.0 million or (ii) 90 days after the effectiveness of a
registration statement registering the shares of common stock
underlying the Put Shares.
On
November 19, 2018 and in connection with the Equity Purchase
Agreement, the Company also entered into a Registration Rights
Agreement with Triton pursuant to which the Company agreed to file
a registration statement registering for resale the Commitment
Shares (defined below) and the shares of common stock issuable upon
conversion of the Put Shares. The Company intends on filing a
registration statement on Form S-1 in connection with its
obligations pursuant to the Registration Rights
Agreement.
On November 19, 2018 and in connection with the
Equity Purchase Agreement, the Company entered into a Share
Donation Agreement pursuant to which the Company agreed to
issue
175,000 shares of common stock (the “Commitment
Shares”) to Triton Funds LLC, manager of Triton, as an
inducement to and upon Triton’s execution of the Equity
Purchase Agreement.
The
Equity Purchase Agreement, Registration Rights Agreement and Share
Donation Agreement contain representations, warranties and other
provisions customary for transactions of this nature.
In
connection with the Equity Purchase Agreement and the issuance of
the Put Shares, the Company agreed to file, prior to the issuance
of any Put Shares, a Certificate of Designations for the Series P
Preferred in the form attached to the Equity Purchase Agreement
(the “Series P Certificate of Designations”). Each
share of Series P Preferred will be convertible into shares of
common stock at the Conversion Rate. This Conversion Rate will be
subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of shares of the Series P Preferred to the extent that,
as a result of such conversion, the holder would beneficially own
more than 4.99%, in the aggregate, of the issued and outstanding
shares of the Company’s common stock calculated immediately
after giving effect to the issuance of shares of common stock upon
the conversion of the Series P Preferred (the “Beneficial
Ownership Limitation”). The Beneficial Ownership Limitation
may be increased by the holder up to, but not exceeding, 9.99%.
Each share of Series P Preferred entitles the holder to vote on all
matters voted on by holders of common stock. With respect to any
such vote, each share of Series P Preferred entitles the holder to
cast a number of votes equal to the number of shares of common
stock such shares of Series P Preferred Stock are convertible into
at such time, but not in excess of the Beneficial Ownership
Limitation.
The
issuances pursuant to the Equity Purchase Agreement and the Share
Donation Agreement are exempt from registration requirements
pursuant to the exemption for transactions by an issuer not
involving any public offering under Section 4(a)(2) the Securities
Act of 1933, as amended (the “Securities Act”) and
Regulation D under the Securities Act.
The
foregoing descriptions of the Equity Purchase Agreement, Series P
Certificate of Designations, Registration Rights Agreement and
Share Donation Agreement are subject to and qualified in their
entirety by the Equity Purchase Agreement, Form of Series P
Certificate of Designations, Registration Rights Agreement and
Share Donation Agreement attached as Exhibits 10.1, 10.2, and 10.3,
respectively.