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 20,
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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☐
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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☐
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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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☐
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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 []
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. [ ]
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Item 3.01
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Notice of Delisting or Failure to Satisfy a Continued Listing Rule
or Standard; Transfer of Listing.
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To the
extent required by Item 3.01 of Form 8-K, the disclosures in Item
8.01 of this Current Report on Form 8-K are hereby incorporated by
reference.
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Item 4.02
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Non-Reliance on Previously Issued Financial Statements or a Related
Audit Report or Completed Interim Review.
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To the
extent required by Item 4.02 of Form 8-K, the disclosures in Item
8.01 of this Current Report on Form 8-K are hereby incorporated by
reference.
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Item 8.01
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Other Events.
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As
previously disclosed in a Current Report on Form 8-K filed on
January 30, 2018, MabVax Therapeutics Holdings, Inc. (the
“Company”, “we”, “us”,
“our”) received notice from the Securities and Exchange
Commission (the “SEC”) of an investigation (the
“SEC Investigation”). We believe the SEC is
investigating (i) potential violations by the Company and its
officers, directors and others of Section 10(b) of the Securities
and Exchange Act of 1934, as amended (as amended, the
“Exchange Act”) and Section 17(a) of the Securities Act
of 1933, as amended (as amended, the “Securities Act”);
and (ii) potential violations by multiple holders of our preferred
stock of the reporting and disclosure requirements imposed by
Section 13(d) of the Exchange Act and pursuant to Schedules 13D and
13G. We further believe the SEC Investigation pertains to our
relationships with multiple of those holders of our preferred
stock, including (i) the circumstances under which those
stockholders invested in the Company and whether they have acted as
an undisclosed group in connection with their investment; (ii) the
manner with or in which those stockholders may have sought to
control or influence the Company and its leadership since their
respective investments (and the extent to which those efforts to
control or influence have been successful); and (iii) our prior
disclosures regarding the control of the Company and beneficial
ownership of our common and preferred stock included in our
registration statements filed in 2017 and 2018 and in our Exchange
Act reports. In light of the SEC Investigation, we have also
reviewed facts and circumstances related to our recently completed
May 2018 offering and publicly available information concerning
certain of our stockholders’ relationships with other
registrants.
We have
cooperated with the SEC in connection with the SEC Investigation,
and our Board of Directors has appointed a Special Committee
comprised of independent members of our Board of Directors to
supervise the Company’s review of the matters believed to be
under investigation. However, we cannot predict when the SEC
Investigation will conclude, nor whether it will conclude in a
manner adverse to the Company, any of its directors and officers,
or its current or former stockholders. We also cannot predict, how
the SEC Investigation or any related matters may impact how the
Company is perceived by the market, potential partners and
potential investors in our securities. We do not believe that the
SEC would declare effective any registration statements registering
our securities effective during the pendency of the SEC
Investigation.
Historically, we
have calculated and reported beneficial ownership in reliance upon
the accuracy of the beneficial ownership reporting of our
stockholders, including reports filed on Schedules 13D and 13G and
information provided by these stockholders directly to us. We have
similarly relied on the accuracy of stockholder-reported beneficial
ownership when effecting conversions of shares of preferred stock.
The SEC Investigation and our review of the matters under
investigation (including information learned recently) has raised
questions about the accuracy of those reports by those holders,
including their past disclaimers of having not acted as a group
with respect to their investment in the Company. If certain
stockholders have indeed acted as a group, their respective
beneficial ownership interests should have been aggregated and
reported in the aggregate in our prior beneficial ownership
disclosures. If their holdings should have been so aggregated,
then, due to the provisions of our organizational documents
regarding the conversion limitations applicable to certain holders
of our preferred stock, shares of our common stock may have been
issued in violation of our organizational documents. If shares of
our common stock were issued in violation of our organizational
documents, then the number of shares of our outstanding common
stock previously reported in our financial statements, registration
statements and Exchange Act Reports may be inaccurate. Further,
figures reported and included in our financial statements,
registration statements and Exchange Act Reports in reliance on the
number of our outstanding shares of common stock, including, but
not limited to, our loss per share figures, may also be inaccurate.
We are also reviewing our internal and disclosure
controls.
We
believe there may be mechanisms available to us pursuant to
Delaware law to remedy and ratify potentially invalid stock
issuances. However, these mechanisms, even if available to us, may
require several months to undertake, and even then may be subject
to events beyond the Company’s control. There can be no
assurance that we will choose to pursue these mechanisms even if
they are available to us.
In
light of the SEC Investigation and our ongoing review of presently
known facts and circumstances (including information learned
recently), our Board of Directors, upon the recommendation of our
management, has determined that we are unable to file a Quarterly
Report on Form 10-Q for the quarter ended March 31, 2018 (the
“Form 10-Q”) at this time in accordance with applicable
rules and regulations.
Our
Board of Directors discussed the matters disclosed in this Current
Report on Form 8-K with our independent auditors.
On May 20, 2018, our Board of Directors, upon the
recommendation of management, concluded that our prior annual and
interim period financial statements for the years 2014, 2015, 2016
and 2017 included in our
Reports on Form 10-K and Form 10-Q for such years, and our
registration statements filed during the years 2014, 2015, 2016,
2017 and to date for 2018 with respect to the number of shares of
common stock outstanding, and the weighted average number of shares
used in calculating earnings per share and related per share
figures should not be relied upon. Accordingly, on May 20, 2018 our
auditors withdrew their audit reports included in our Annual
Reports on Form 10-K for the years 2014, 2015, 2016 and 2017.
Therefore, investors in our common stock are cautioned not to rely
on these financial statements and not to rely on our prior
disclosures regarding the beneficial ownership of our capital stock
included in our registration statements, Exchange Act reports and
other filings filed with the SEC on or after January 1,
2014.
On May
21, 2018, we notified the Listing Qualifications Department of the
Nasdaq Stock Market (the “Staff”) that we would not be
filing our Form 10-Q, as required for continued listing on the
Nasdaq Capital Market per Nasdaq listing rule 5250(c)(1) (the
“Rule”). Nasdaq may provide us a period of time to
submit a plan to regain compliance with the Rule (the
“Plan”). However, while we are exercising efforts to
maintain the listing of our common stock on the Nasdaq Capital
Market and efforts to enable filing of the Form 10-Q, there can be
no assurance that the Company will complete a Plan in a timely
manner, if at all, or that the Staff will accept any Plan or that
if a Plan is accepted, the Staff will grant the Company any grace
period in which to comply with the Rule. There can also be no
assurance that we will again be in a position to file the Form 10-Q
or any other periodic Exchange Act report.
Forward-Looking Statements
The foregoing includes statements that constitute
“forward-looking” statements, as such term is defined
in the Private Securities Litigation Reform Act of 1995. In some
cases, forward-looking statements can be identified by terminology
such as “may,” “will,” “could,”
“would,” “should,” “expect,”
“plan,” “anticipate,” “intend,”
“believe,” “estimate,”
“predict,” “potential” or the negative of
those terms or other comparable terminology. These forward-looking
statements are subject to the safe harbor protection provided by
the federal securities laws. These forward-looking statements are
subject to numerous risks, uncertainties and assumptions. These
risks and uncertainties include, but are not limited to, the
ability of the Company to timely file its periodic Exchange Act
reports, the ability of the Company to regain and maintain
compliance with Nasdaq continued listing requirements, the impact
of the SEC Investigation on our operations and the potential
outcome of the SEC Investigation and the risk that our prior
disclosures are inaccurate. Because these forward-looking
statements are subject to risks and uncertainties, actual
developments and results may differ materially from those express
or implied by the forward-looking statements. The forward-looking
statements in this filing are made only as of the date hereof, and
unless otherwise required by applicable securities laws, we
disclaim any intention or obligation to update or revise any
forward-looking statements, whether as a result of new information,
future events or otherwise.
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 21, 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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