Attached files
Exhibit 3.6
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
THE
0% SERIES G CONVERTIBLE PREFERRED STOCK OF
MABVAX THERAPEUTICS HOLDINGS, INC.
I, J.
David Hansen, 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 [___], 2017, adopted the following resolutions
creating a series of shares of Preferred Stock designated as 0%
Series G 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 [___],
2017:
RESOLVED, that the
Board designates the 0% Series G 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 G 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 G Convertible Preferred Stock” (the
“Preferred
Shares”). The authorized number of Preferred Shares
shall be Five Million (5,000,000) 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 24
below.
2.
Ranking. The rights of all such
shares of capital stock of the Company (the “Junior Stock”), other than the
Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, and Series F Preferred Stock, shall be subject to the
rights, powers, preferences and privileges of the Preferred Shares.
In the event of the 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. In addition to
Sections 5(a) and 11 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 as if such Holders had converted the
Preferred Shares into Common Stock (without regard to any
limitations on conversion) 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 Common
Stock.
4.
Conversion. Each Preferred
Share shall be convertible into validly issued, fully paid and
non-assessable shares of Common Stock (as defined below) on the
terms and conditions set forth in this Section 4.
(a)
Holder’s Conversion
Right. Subject to the provisions of Section 4(e), at any
time or times on or after the Initial Issuance Date, each Holder
shall be entitled to convert any whole number of Preferred Shares
into validly issued, fully paid and non-assessable shares of Common
Stock in accordance with Section 4(c) at the
Conversion Rate (as defined below).
(b)
Conversion Rate. The number of
validly issued, fully paid and non-assessable shares of Common
Stock issuable upon conversion of each Preferred Share pursuant to
Section 4(a) shall be determined according to the
following formula (the “Conversion Rate”):
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Base Amount
Conversion
Price
No
fractional shares of Common Stock are to be issued upon the
conversion of any Preferred Shares. If the issuance would result in
the issuance of a fraction of a share of Common Stock, the Company
shall round such fraction of a share of Common Stock up to the
nearest whole share.
(c)
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(c)(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
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(c)(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.
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(iv)
Company’s Failure to
Timely Convert. If the Company shall fail, for any reason or
for no reason, to issue to a Holder within three (3) Trading Days
after the Company’s receipt of a Conversion Notice (whether
via facsimile or otherwise) (the “Share Delivery Deadline”), a
certificate for the number of shares of Common Stock to which such
Holder is entitled and register such shares of Common Stock on the
Company’s share register or to credit such Holder’s or
its designee’s balance account with DTC for such number of
shares of Common Stock to which such Holder is entitled upon such
Holder’s conversion of any Preferred Shares (as the case may
be) (a “Conversion
Failure”), then, in addition to all other remedies
available to such Holder, such Holder, upon written notice to the
Company, may void its Conversion Notice with respect to, and retain
or have returned (as the case may be) any Preferred Shares that
have not been converted pursuant to such Holder’s Conversion
Notice, provided that the voiding of a Conversion Notice shall not
affect the Company’s obligations to make any payments which
have accrued prior to the date of such notice pursuant to the terms
of this Certificate of Designations or otherwise and (y) the
Company shall pay in cash to such Holder on each day after such
third (3rd) Trading Day that
the issuance of such shares of Common Stock is not timely effected
an amount equal to 1.5% of the product of (A) the aggregate number
of shares of Common Stock not issued to such Holder on a timely
basis and to which the Holder is entitled and (B) the Closing Sale
Price of the Common Stock on the Trading Day immediately preceding
the last possible date on which the Company could have issued such
shares of Common Stock to the Holder without violating Section
4(c). In addition to the foregoing, 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 22.
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(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(c)(vi)) or (B)
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 CORPORATION’S CERTIFICATE OF DESIGNATIONS
RELATING TO THE SHARES OF SERIES G PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(c)(vi) THEREOF. THE NUMBER OF SHARES OF SERIES G
PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE MAY BE LESS THAN
THE NUMBER OF SHARES OF SERIES G PREFERRED STOCK STATED ON THE FACE
HEREOF PURSUANT TO SECTION 4(c)(vi) OF THE
CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES G
PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
(d)
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.
(e)
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(e) shall have any effect
on the applicability of the provisions of this Section
4(e) with respect to any subsequent determination of
convertibility or issuance (as the case may be). For purposes of
this Section 4(e), 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(e) shall be implemented in a manner otherwise than in strict
conformity with the terms of this Section 4(e) to correct this
Section 4(e) (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(e) shall apply to a successor holder of Preferred Shares.
The holders of Common Stock shall be third party beneficiaries of
this Section 4(e) and the Company may not waive this Section 4(e).
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 provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 4(e) to correct this
paragraph (or any portion hereof) that may be defective or
inconsistent with the intended beneficial ownership limitation
herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation.
-4-
(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
11, 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.
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(a)
Intentionally Omitted.
(b)
Adjustment of Conversion Price upon Subdivision or Combination of
Common Stock. Without limiting any provision of Sections 5 and 11, if the
Company at any time on or after the Initial Issuance Date
subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Conversion Price in
effect immediately prior to such subdivision will be
proportionately reduced. Without limiting any provision of Sections
5 and 11,
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 into a
smaller number of shares, the Conversion Price in effect
immediately prior to such combination will be proportionately
increased. Any adjustment pursuant to this Section 7(b) shall become
effective immediately after the effective date of such subdivision
or combination. If any event requiring an adjustment under this
Section 7(b) occurs during the period that a Conversion
Price is calculated hereunder, then the calculation of such
Conversion Price shall be adjusted appropriately to reflect such
event.
(c)
Other Events. In the event that the Company (or any Subsidiary)
shall take any action to which the provisions hereof are not
strictly applicable, or, if applicable, would not operate to
protect any Holder from dilution or if any event occurs of the type
contemplated by the provisions of this Section 7 but not expressly provided for by such
provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with
equity features), then the Board shall in good faith determine and
implement an appropriate adjustment in the Conversion Price so as
to protect the rights of such Holder, provided that no such
adjustment pursuant to this Section 7(c) will
increase the Conversion Price as otherwise determined pursuant to
this Section 7, provided further that
if such Holder does not accept such adjustments as appropriately
protecting its interests hereunder against such dilution, then the
Board and such Holder shall agree, in good faith, upon an
independent investment bank of nationally recognized standing to
make such appropriate adjustments, whose determination shall be
final and binding and whose fees and expenses shall be borne by the
Company.
(d)
Calculations. All calculations under this Section 7 shall be made by rounding to the nearest
one-hundred thousandth of a cent or the nearest 1/100th of a share, as
applicable. The number of shares of Common 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.
(a)
Reservation. 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 with respect to the Base Amount 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.
-6-
(b)
Insufficient Authorized Shares.
If, notwithstanding Section 8(a) and not in limitation thereof, at any time
while any of the Preferred Shares remain outstanding the Company
does not have a sufficient number of authorized and unissued shares
of Common Stock to satisfy its obligation to have available for
issuance upon conversion of the Preferred Shares at least a number
of shares of Common Stock equal to the Required Amount (an
“Authorized Share
Failure”), then the Company shall promptly take all
action necessary to increase the Company’s authorized shares
of Common Stock to an amount sufficient to allow the Company to
reserve and have available the Required Amount for all of the
Preferred Shares then outstanding. Without limiting the generality
of the foregoing sentence, as soon as practicable after the date of
the occurrence of an Authorized Share Failure, but in no event
later than ninety (90) days after the occurrence of such Authorized
Share Failure, the Company shall hold a meeting of its stockholders
or conduct a consent solicitation for the approval of an increase
in the number of authorized shares of Common Stock. In connection
with such meeting, the Company shall provide each stockholder with
a proxy statement and shall use its commercially reasonable efforts
to solicit its stockholders’ approval of such increase in
authorized shares of Common Stock and to cause its Board to
recommend to the stockholders that they approve such proposal. In
the event that the Company is prohibited from issuing shares of
Common Stock upon a conversion of any Preferred Share due to the
failure by the Company to have sufficient shares of Common Stock
available out of the authorized but unissued shares of Common Stock
(such unavailable number of shares of Common Stock, the
“Authorization Failure
Shares”), in lieu of delivering such Authorization
Failure Shares to such Holder of such Preferred Shares, the Company
shall pay cash in exchange for the cancellation of such Preferred
Shares convertible into such Authorized Failure Shares at a price
equal to the sum of (i) the product of (x) such number of
Authorization Failure Shares and (y) the Closing Sale Price on the
Trading Day immediately preceding the date such Holder delivers the
applicable Conversion Notice with respect to such Authorization
Failure Shares to the Company and (ii) to the extent 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
Authorization Failure Shares, any brokerage commissions and other
out-of-pocket expenses, if any, of such Holder incurred in
connection therewith.
9.
Voting Rights. Except as otherwise expressly required by law,
each Holder shall be entitled to vote on all matters submitted to
shareholders of the Company and shall be entitled to the number of
votes for its Preferred Shares 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 into which such Preferred
Shares held are convertible, but not in excess of the conversion
limitations set forth in Section 4(e) herein. Except as otherwise
required by law, the Holders of the Preferred Shares shall vote
together with the holders of Common Stock on all matters and shall
not vote as a separate class.
10.
Liquidation, Dissolution,
Winding-Up. In the event of a Liquidation Event, the Holders
shall be entitled to receive in cash out of the assets of the
Company, whether from capital or from earnings available for
distribution to its shareholders (the “Liquidation Funds”), before any
amount shall be paid to the holders of any of shares of Junior
Stock, a preferential amount in cash equal to (and not
more than) the Par Value; provided, however, that, if the
Liquidation Funds are insufficient to pay the full amount due to
the Holders and holders of shares of Parity Stock (stock ranking
equal to the Preferred Shares), then each Holder and each holder of
Parity Stock shall receive a percentage of the Liquidation Funds
equal to the full amount of Liquidation Funds payable to such
Holder and such holder of Parity Stock as a liquidation preference,
in accordance with their respective certificate of designation (or
equivalent), as a percentage of the full amount of Liquidation
Funds payable to all holders of Preferred Shares and all holders of
shares of Parity Stock. To the extent necessary, the Company shall
cause such actions to be taken by each of its Subsidiaries so as to
enable, to the maximum extent permitted by law, the proceeds of a
Liquidation Event to be distributed to the Holders in accordance
with this Section 10. All the preferential amounts to be paid to
the Holders under this Section 10 shall be paid or set apart for
payment before the payment or setting apart for payment of any
amount for, or the distribution of any Liquidation Funds of the
Company to the holders of shares of Junior Stock in connection with
a Liquidation Event as to which this Section 10
applies.
-7-
11.
Participation. In addition to
any adjustments pursuant to Section 7(b), 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).
12.
Vote to Change the Terms of or Issue
Preferred Shares. In addition to any other rights provided
by law, except where the vote or written consent 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 or the written consent without a meeting of the Holders of
Preferred Shares 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 16, whether or not prohibited by the terms of
the Preferred Shares, circumvent a right of the Preferred
Shares.
13.
Intentionally
Omitted.
14.
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.
15.
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 and
consequential 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.
-8-
16.
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 not
increase the par value of any shares of Common Stock receivable
upon the conversion of any Preferred Shares above the Conversion
Price then in effect, (ii) shall take all such actions as may
be necessary or 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 (iii) 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).
17.
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.
18.
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 Price, 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.
19.
Transfer of Preferred Shares.
The Holder may transfer some or all of its Preferred Shares without
the consent of the Company.
20.
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.
21.
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, this Certificate of
Designations or otherwise with respect to the issuance of Preferred
Shares may be effected by written consent of the Company’s
stockholders or at a duly called meeting of the Company’s
stockholders, all in accordance with the applicable rules and
regulations of the DGCL. This provision is intended to
comply with the applicable
sections of the DGCL permitting stockholder action, approval and
consent affected by written consent in lieu of a
meeting.
-9-
(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.
22.
Dispute
Resolution.
(i) In
the case of a dispute relating to a Closing Bid Price, a Closing
Sale Price, a Conversion Price 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 Price, 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 22(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.
-10-
(i) In
the case of a dispute as to the arithmetic calculation of a
Conversion Rate, the Company or such Holder (as the case may be)
shall submit the disputed arithmetic calculation 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 disputed arithmetic calculation of such
Conversion Rate 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 disputed arithmetic calculation, then
such Holder shall select an independent, reputable accountant or
accounting firm to perform such disputed arithmetic
calculation.
(ii)
Such Holder and the Company shall each deliver to such accountant
or accounting firm (as the case may be) (x) a copy of the initial
dispute submission so delivered in accordance with the first
sentence of this Section 22(a) and (y) written
documentation supporting its position with respect to such disputed
arithmetic calculation, 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
accountant or accounting firm (as the case may be) (the
“Submission
Deadline”) (the documents referred to in the
immediately preceding clauses (x) and (y) are collectively referred
to herein as the “Required
Documentation”) (it being understood and agreed that
if either such Holder or the Company fails to so deliver all of the
Required Documentation by the Submission Deadline, then the party
who fails to so submit all of the Required Documentation shall no
longer be entitled to (and hereby waives its right to) deliver or
submit any written documentation or other support to such
accountant or accounting firm (as the case may be) with respect to
such disputed arithmetic calculation and such accountant or
accounting firm (as the case may be) shall perform such disputed
arithmetic calculation based solely on the Required Documentation
that was delivered to such accountant or accounting firm (as the
case may be) prior to the Submission Deadline). Unless otherwise
agreed to in writing by both the Company and such Holder or
otherwise requested by such accountant or accounting firm (as the
case may be), neither the Company nor such Holder shall be entitled
to deliver or submit any written documentation or other support to
such accountant or accounting firm (as the case may be) in
connection with such disputed arithmetic calculation of the
Conversion Rate (other than the Required
Documentation).
(iii)
The Company and such Holder shall cause such accountant or
accounting firm (as the case may be) to perform such disputed
arithmetic calculation and notify the Company and such Holder of
the results no later than ten (10) Business Days immediately
following the Submission Deadline. The fees and expenses of such
accountant or accounting firm (as the case may be) shall be borne
solely by the Company, and such accountant’s or accounting
firm’s (as the case may be) arithmetic calculation shall be
final and binding upon all parties absent manifest
error.
(c)
Miscellaneous. The Company expressly acknowledges and agrees that
(i) this Section 22 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 22, (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 22(a) shall be governed by
Section 22(a) and not by
Section 22(b), (v) such
Holder (and only such Holder), in its sole discretion, shall have
the right to submit any dispute described in this Section 22 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 22 and (vi) nothing in this Section 22 shall limit such Holder from obtaining any
injunctive relief or other equitable remedies (including, without
limitation, with respect to any matters described in Section
22(a) or Section 22(b)).
-11-
23.
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)
“Base Amount”
means, with respect to each Preferred Share, as of the applicable
date of determination, the sum of (1) the Stated Value thereof,
plus (2) the Unpaid Dividend Amount thereon as of such date of
determination.
(c)
“Bloomberg”
means Bloomberg, L.P.
(d)
“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.
(e)
“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 4:00:00 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 22. All such determinations
shall be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during such
period.
(f)
“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.
(g)
“Conversion
Price” means, with respect to each Preferred Share, as
of any Conversion Date or other applicable date of determination,
$1.75, subject to adjustment as provided herein.
(h)
“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.
(i)
“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 or the OTCQX (or any successor
thereto).
-12-
(j)
“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.
(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.
(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 The NASDAQ Capital
Market.
(o)
“SEC” means the
Securities and Exchange Commission or the successor
thereto.
(p)
“Stated Value”
shall mean $1.75 per share, subject to adjustment for stock splits,
stock dividends, recapitalizations, reorganizations,
reclassifications, combinations, subdivisions or other similar
events occurring after the Initial Issuance Date with respect to
the Preferred Shares.
(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.
-13-
(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 4:00:00 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
NASDAQ Stock 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).
24.
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.
* * * *
*
-14-
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations of Series G Convertible Preferred Stock of MabVax
Therapeutics Holdings, Inc. to be signed by its President and Chief
Executive Officer on this [__]day of [__], 2017.
|
By:________________________
Name:
J. David Hansen
Title: President
and Chief Executive Officer
|
-15-
EXHIBIT I
MABVAX THERAPEUTICS HOLDINGS, INC.
CONVERSION NOTICE
Reference is made
to the Certificate of Designations, Preferences and Rights of the
Series G 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 G 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
Price:_________________________________________________________
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):
-16-
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:
-17-