Attached files
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): April 30,
2018
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.
On May
1 and May 2, 2018, MabVax Therapeutics Holdings, Inc. (the
“Company”) entered into separate purchase agreements
(the “Purchase Agreements”) with accredited investors
(the “Investors”) pursuant to which it agreed to sell
7,818.18 shares of a new 0% Series N Convertible
Preferred Stock (“Series N Preferred Stock”) with a
stated value of $110 per share (the “May 2018
Offering”). The Series N Preferred Stock is initially
convertible into approximately 781,818 shares of common stock at
$1.10 per share, subject to adjustment for stock splits, stock
dividends, recapitalizations, combinations, subdivisions or other
similar events and was purchased. Certain of the Investors also
invested in the Company’s offering in February 2018 (the
“Prior Investors”). The gross proceeds expected to be
received by the Company total approximately $860,000 before
estimated expenses of $10,000. The offering is expected to close on or before May
7, 2018. No bank was used in connection with the May 2018
Offering.
In
connection with the May 2018 Offering, we offered incentive shares
(the “May 2018 Inducement Shares”) to the Prior
Investors pursuant to a letter agreement dated May 1, 2018 (the
“May 2018 Letter Agreement”), as an incentive for the
Prior Investors to make a minimum investment in the May 2018
Offering equal to 40% of their investment in February 2018. Such
Prior Investors shall be entitled to receive their pro rata share
of 10,988.88 shares of a new 0% Series O Convertible Preferred
Stock (the “Series O Preferred Stock”), initially
convertible into 1,098,888 shares of common stock, with a stated
value of $0.01 per share, based on each of the Prior
Investor’s portion of the $860,000 investment in the May 2018
Offering.
Pursuant
to the rules of The Nasdaq Stock Market LLC (“NASDAQ”),
we are not permitted to issue any shares of common stock upon
conversion of the Series N Preferred Stock which, when aggregated
with the shares of common stock issued in the February 2018
transaction, would cause the Company to exceed 19.99% of the number
of shares outstanding on February 2, 2018, except that such
limitation shall not apply in the event that we obtain the approval
of our stockholders as required by the applicable rules of NASDAQ
for issuances of common stock in excess of such amount. Further, we
are not permitted to issue any shares of common stock upon
conversion of the Series O Preferred Stock until we obtain the
approval of our stockholders.
The
shares of Series N Preferred Stock and Series O Preferred Stock
were offered and sold 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”). The Company entered
into separate registration rights agreements (the
“Registration Rights Agreements”) with the Investors,
and the May 2018 Letter Agreement with each of the Prior Investors,
pursuant to which the Company agreed to undertake to file a
registration statement to register the resale of the shares of
common stock underlying the Series N Preferred Stock and Series O
Preferred Stock within 30 days of the
later to occur of (i) issuance of the May 2018 Inducement Shares
and (ii) the date the Securities and Exchange Commission agrees to
begin reviewing future filings of the Company’s registration
statements, and to cause such registration statement to be
declared effective as set forth therein and to maintain the
effectiveness of the registration statement until all of such
shares of common stock underlying the Series N Preferred Stock and
Series O Preferred Stock have been sold or are otherwise able to be
sold pursuant to Rule 144 under the Securities Act, without any
restrictions.
The
foregoing descriptions of the Purchase Agreements, Registration
Rights Agreements and May 2018 Letter Agreement are not complete
and are qualified in their entireties by reference to the full text
of the form of Purchase Agreement, the form of Registration Rights
Agreement, and the form of May 2018 Letter Agreement, copies of
which are filed as Exhibit 10.1, Exhibit 10.2, and Exhibit 10.3,
respectively, to this Report and are incorporated by reference
herein.
Item 3.02
Unregistered Sales of Equity Securities.
Reference is made
to the disclosure set forth under Item 1.01 above, which is
incorporated by reference, in its entirety, into this Item
3.02.
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Certificate of
Designations, Preferences and Rights of the 0% Series N Convertible
Preferred Stock – On April 30, 2018, the
Company filed a Certificate of Designations, Preferences and Rights
of the 0% Series N Convertible Preferred Stock (the
“Certificate of Designations”) with the Secretary of
State of the State of Delaware, designating 20,000 shares of
preferred stock as Series N Preferred Stock.
The
shares of Series N Preferred Stock are convertible into shares of
common stock based on a conversion calculation equal to the stated
value of the Series N Preferred Stock, plus all accrued and unpaid
dividends, if any, on such Series N Preferred Stock, as of such
date of determination, divided by the conversion price. The stated
value of each share of Series N Preferred Stock is $110 and the
initial conversion price is $1.10 per share, each subject to
adjustment for stock splits, stock dividends, recapitalizations,
combinations, subdivisions or other similar events.
The Certificate of
Designations includes a 4.9% beneficial ownership conversion
blocker, a 19.99% blocker provision to comply with the rules of
NASDAQ until stockholders have
approved any or all shares of common stock issuable upon conversion
of the Series N Preferred Stock, and price protection for so long
as the holder owns the Series N Preferred Stock. All shares of the
Company’s capital stock will be junior in rank to the Series
N Preferred Stock, with respect to the preferences as to dividends,
distributions and payments upon the liquidation, dissolution and
winding-up of the Company, except for the Company’s Series D
Preferred Stock, Series E Preferred Stock, Series I Preferred
Stock, Series J Preferred Stock, Series K Preferred Stock, Series L
Preferred Stock and Series M Preferred Stock.
In
the event of liquidation, the holders of Series N Preferred Stock
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 capital stock, an amount per Series N Preferred
Share equal to the greater of (a) the par value thereof on the date
of such payment, and (b) the amount per share such holder would
receive if such holder converted such Series N Preferred Stock into
common stock immediately prior to the date of such payment;
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 Series N Preferred
Shares), then each holder of Series N Preferred Stock 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 Series N
Preferred Stock and all holders of shares of parity stock. All the
preferential amounts to be paid to the holders of Series N
Preferred Stock 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.
We
are prohibited from effecting a conversion of the Series N
Preferred Stock to the extent that, as a result of such conversion,
the holder would beneficially own more than 4.99% of the number of
shares of common stock outstanding immediately after giving effect
to the issuance of shares of common stock upon conversion of the
Series N Preferred Stock, which beneficial ownership limitation may
be increased by the holder up to, but not exceeding, 9.99%. Each
holder is entitled to vote on all matters submitted to stockholders
of the Company, and shall have the number of votes equal to the
number of shares of common stock issuable upon conversion of such
holder’s Series N Preferred Stock, but not in excess of the
beneficial ownership limitations,
and except that the holder may not vote for approval of shares of
Common Stock issuable upon conversion of Series N Preferred Stock
at any meeting of the Company's stockholders.
The foregoing description of the Series N Preferred Stock is not
complete and is qualified in its entirety by reference to the full
text of the Form of Certificate of Designations, a copy of which is
filed as Exhibit 3.1 to this report and is incorporated by
reference herein.
Correction to Certificate
of Designations, Preferences and Rights of the 0% Series N
Convertible Preferred Stock – On May 2, 2018, the Company filed a
correction to the Certificate of Designations. The inaccuracy or defect in the Certificate of
Designation was that the Certificate of Designation inadvertently
stated a specific number of shares in Section 4(f) “19.99%
Conversion Blocker.” The Certificate of Designation
was
corrected by amending and restating Section 4(f) in its entirety to remove such
inadvertent inclusion.
The foregoing description of the Certificate of Correction is not
complete and is qualified in its entirety by reference to the full
text of the Form of Certificate of Correction, a copy of which is
filed as Exhibit 3.2 to this report and is incorporated by
reference herein.
Certificate of
Designations, Preferences and Rights of the 0% Series O Convertible
Preferred Stock – On April 30, 2018, the
Company filed a Certificate of Designations, Preferences and Rights
of the 0% Series O Convertible Preferred Stock (the “Series O
Certificate of Designations”) with the Secretary of State of
the State of Delaware, designating 20,000 shares of preferred stock
as Series O Preferred Stock.
The
shares of Series O Preferred Stock are convertible into shares of
common stock based on a conversion calculation equal to the stated
value of the Series O Preferred Stock, plus all accrued and unpaid
dividends, if any, on such Series O Preferred Stock, as of such
date of determination, divided by the conversion price. The stated
value of each share of Series O Preferred Stock is $0.01 and the
initial conversion price is $0.0001 per share, each subject to
adjustment for stock splits, stock dividends, recapitalizations,
combinations, subdivisions or other similar events. We are not
permitted to issue any shares of common stock upon conversion of
the Series O Preferred Stock until we obtain the approval of our
stockholders.
In the event of a liquidation, dissolution or
winding up of the Company, each share of Series O Preferred Stock
will be entitled to a per share preferential payment equal to the
stated value on the date of such payment. All shares of capital
stock will be junior in rank to Series O Preferred Stock with
respect to the preferences as to dividends, distributions and
payments upon the liquidation, dissolution and winding-up of the
Company, except for the Company’s Series D Preferred Stock,
Series E Preferred Stock, Series I Preferred Stock, Series J
Preferred Stock, Series K Preferred Stock, Series L Preferred
Stock, Series M Preferred Stock and Series N Preferred
Stock. The holders of Series O
Preferred Stock will be entitled to receive dividends if and when
declared by our board of directors. The Series O Preferred Stock
shall participate on an “as converted” basis, with all
dividends declared on our common stock. In addition, if
we grant, issue or sell any rights to purchase our securities pro
rata to all our record holders of our common stock, each holder
will be entitled to acquire such securities applicable to the
granted purchase rights as if the holder had held the number of
shares of common stock acquirable upon complete conversion of all
Series O Preferred Stock then held.
We
are prohibited from effecting a conversion of the Series O
Preferred Stock to the extent that, as a result of such conversion,
the holder would beneficially own more than 4.99% of the number of
shares of common stock outstanding immediately after giving effect
to the issuance of shares of common stock upon conversion of the
Series O Preferred Stock, which beneficial ownership limitation may
be increased by the holder up to, but not exceeding, 9.99%. Each
holder is entitled to vote on all matters submitted to stockholders
of the Company, and shall have the number of votes equal to the
number of shares of common stock issuable upon conversion of such
holder’s Series O Preferred Stock, but not in excess of the
beneficial ownership limitations,
and except that the holder may not vote for approval of shares of
Common Stock issuable upon conversion of Series O Preferred Stock
at any meeting of the Company's stockholders.
The foregoing description of the Series O Preferred Stock is not
complete and is qualified in its entirety by reference to the full
text of the Form of Series O Certificate of Designations, a copy of
which is filed as Exhibit 3.3 to this report and is incorporated by
reference herein.
Item 7.01
Regulation FD Disclosure
On May 3, 2018, the Company issued a press release
announcing the offering. A copy
of the press release is attached hereto as Exhibit
99.1.
The
information disclosed under this Item 7.01, including Exhibit 99.1
hereto, is being furnished and shall not be deemed
“filed” for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended, nor shall it be incorporated by
reference into any registration statement or other document
pursuant to the Securities Act of 1933, as amended, except as
expressly set forth in such filing.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits
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Certificate of
Designations, Preferences and Rights of the 0% Series N Convertible
Preferred Stock
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Certificate of
Correction to Certificate of Designations, Preferences and Rights
of the 0% Series N Convertible Preferred Stock
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Certificate of
Designations, Preferences and Rights of the 0% Series O Convertible
Preferred Stock
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Form
of Purchase Agreement
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Form
of Registration Rights Agreement
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Form
of May 2018 Letter Agreement
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Press Release
dated May 3, 2018
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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 3, 2018
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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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