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| EX-3.1 - FORM OF CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF THE 0% SERIES I C - MABVAX THERAPEUTICS HOLDINGS, INC. | ex3-1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 26,
2017
MABVAX THERAPEUTICS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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000-31265
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93-0987903
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(State or other jurisdiction of
incorporation)
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(Commission File
Number)
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(IRS Employer Identification
No.)
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11535 Sorrento Valley Rd., Suite 400
San Diego, CA 92121
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code:
(858) 259-9405
N/A
(Former name or former address, if changed since last
report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in as defined in Rule 405 of the Securities Act
of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging growth company [X]
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. [
]
Item 1.01 Entry into a Material Definitive Agreement.
As
previously disclosed, in connection with its public offering of
common stock and Series G Convertible Preferred Stock that closed
on May 19, 2017 (the “May 2017 Public Offering”),
MabVax Therapeutics Holdings, Inc. (the "Company") agreed to
issue an aggregate of 2,900,000 shares
of common stock (the “Inducement Shares”) to existing
investors who made a minimum required investment in the May 2017
Public Offering and who held certain securities previously issued
to them and to effectuate the cancellation of certain outstanding
warrants and the amendment of certain outstanding warrants held by
these investors. In connection with the foregoing, and as
previously disclosed, certain of these investors have the
right to receive their Inducement
Shares in the form of newly authorized Series I Convertible
Preferred Stock with a par value and stated value of $0.01 per
share (the “Series I Preferred Stock”).
To
receive the Inducement Shares, the investors must agree, by
entering into a letter agreement in the form that was attached as
Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q
that was filed with the SEC on May 21, 2017 (the “Letter
Agreement”) to cancel the warrants issued to them in the
August 2016 Public Offering. Based on participation by existing
investors, we estimate that at least
1.5 million of the total of 1.9 million warrants to purchase common
stock at an exercise price of $5.55 per share and at least 1.5
million of the total of 1.9 million warrants to purchase common
stock at an exercise price of $6.29 per share will be
cancelled.
The investors who participated in the offering and who also hold
warrants to purchase shares of common stock at the exercise
price of $11.10 per share must also agree by way of the Letter
Agreement to amend such warrants to lower the exercise price to
$2.00 per share and remove the cashless exercise provision. We
estimate that less than 40,000 of the aggregate of the 805,361
warrants currently outstanding at a price per share of $11.10 would
be repriced to $2.00 per share.
On May 26, 2017, Company issued, or reserved for issuance at the
Company’s transfer agent pending receipt of the Letter
Agreements signed by the investors, Inducement Shares consisting
of 931,336 shares of common stock and
1,968,664 shares of
Series I Preferred Stock.
The Company is in the process of cancelling warrants to purchase
approximately 3.1 million shares of common stock, and expects
amendments of warrants at $11.10 per share to be less than 40,000,
pending verifications of ownership completed to
date.
Item 3.02 Unregistered Sales of Equity Securities.
The
disclosures in Item 1.01 of this Current Report are
incorporated herein by reference. The
Inducement Shares were issued solely to “accredited
investors” in reliance on the exemption from registration
afforded by Rule 506 of Regulation D and Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities
Act”).
Item
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The
disclosures in Item 1.01 of this Current Report are
incorporated herein by reference. As approved by the
Company’s Board of Directors, the Company filed with the
Secretary of State of the State of Delaware a Certificate of
Designation of Preferences, Rights and Limitations of Series I
Preferred Stock (the “Series I Certificate of
Designations”), on May 26, 2017. Pursuant to the Series I
Certificate of Designations, the Company designated 1,968,664 shares of its blank check
preferred stock as Series I Preferred Stock. Each share of Series I
Preferred Stock has a stated value of $0.01 per share. In the
event of a liquidation, dissolution or winding up of the Company,
each share of Series I Preferred Stock will be entitled to a per
share preferential payment equal to the stated value. Each share of
Series I Preferred Stock is convertible into one share of common
stock. The conversion ratio is subject to adjustment in the
event of stock splits, stock dividends, combination of shares and
similar recapitalization transactions. The Company is
prohibited from effecting the conversion of the Series I Preferred
Stock to the extent that, as a result of such conversion, the
holder beneficially owns more than 4.99%, in the aggregate, of the
issued and outstanding shares of the Company’s Common Stock
calculated immediately after giving effect to the issuance of
shares of Common Stock upon the conversion of the Series I
Preferred Stock (the “Beneficial Ownership
Limitation”). Each share of Series I Preferred Stock
entitles the holder to vote on all matters voted on by holders of
Common Stock. With respect to any such vote, each share of Series I
Preferred Stock entitles the holder to cast such number of votes
equal to the number of shares of Common Stock such shares of Series
I Preferred Stock are convertible into at such time, but not in
excess of the Beneficial Ownership Limitation. The foregoing
description of the Series I Certificate of Designations is not
complete and is subject to, and qualified in its entirety by, the
full text of Series I Certificate of Designations, included as
Exhibit 3.1 of this Current Report which is incorporated herein by
reference.
The
stated value of the Series I Preferred Stock was incorrectly stated
as $1.75 in the Subsequent Events portion and Item 5 of the
Company’s Quarterly Report on Form 10-Q filed on May 22,
2017. The correction in stated value has no impact on the
financial statements as of the period ended March 31,
2017.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
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3.1
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Form of Certificate
of Designations, Preferences and Rights of the 0% Series I
Convertible Preferred Stock
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly
authorized.
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MABVAX THERAPEUTICS HOLDINGS, INC.
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Dated: May 26, 2017
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/s/ J. David Hansen
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J. David Hansen
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President and Chief Executive Officer
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