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EX-99.1 - PRESS RELEASE DATED MAY 16, 2017 - MABVAX THERAPEUTICS HOLDINGS, INC. | ex99-1.htm |
EX-1.1 - UNDERWRITING AGREEMENT DATED MAY 15, 2017 - MABVAX THERAPEUTICS HOLDINGS, INC. | ex1-1.htm |
8-K - FORM 8-K - MABVAX THERAPEUTICS HOLDINGS, INC. | mbvx8k_may152017.htm |
Exhibit
3.1
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 May 12, 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 May 15,
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”):
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.
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(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.
(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.
-3-
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 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.
7. Rights Upon Issuance
of Other Securities.
(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.
-4-
(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.
8. Authorized
Shares.
(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.
(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.
-5-
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.
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.
-6-
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.
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.
-7-
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.
(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.
(a) Disputes Over Closing
Bid Price, Closing Sale Price, Conversion Price or Fair Market
Value.
(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.
(b) Disputes
Over Arithmetic Calculation of the Conversion Rate.
(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.
-8-
(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)).
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.
-9-
(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).
(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 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.
-10-
(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.
* * * *
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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 15th day of May,
2017.
|
By:
/s/ J. David
Hansen
Name:
J. David Hansen
Title: President
and Chief Executive Officer
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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):
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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:
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