SEC Connect





 






Exhibit
10.2


 


REGISTRATION
RIGHTS AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of May [__], 2017, between MabVax Therapeutics
Holdings, Inc, a Delaware corporation (the “Company”), and each of
the several purchasers signatory hereto (each such purchaser, a
“Purchaser” and,
collectively, the “Purchasers”).


 


This
Agreement is made pursuant to the Subscription Agreement, dated as
of the date hereof, between the Company and each Purchaser (the
“Subscription
Agreement”).


 


The
Company and each Purchaser hereby agrees as follows:


 



1.           

Definitions.






 


Capitalized terms used and not otherwise
defined herein that are defined in the Subscription Agreement shall
have the meanings given such terms in the Subscription
Agreement. As used in this Agreement, the following terms
shall have the following meanings:


 


“Advice” shall have the
meaning set forth in Section 6(d).


 


“Commission” means the
United States Securities and Exchange Commission.


 


“Effectiveness Date”
means, with respect to the Initial Registration Statement required
to be filed hereunder, the 60th calendar day
following the date hereof (or, in the event of a “full
review” by the Commission, the 120th calendar day
following the date hereof) and with respect to any additional
Registration Statements which may be required pursuant to Section
2(c) or Section 3(c), the 45th calendar day
following the date on which an additional Registration Statement is
required to be filed hereunder (or, in the event of a “full
review” by the Commission, the 75th calendar day
following the date such additional Registration Statement is
required to be filed hereunder); provided, however, that in the event the
Company is notified by the Commission that one or more of the above
Registration Statements will not be reviewed or is no longer
subject to further review and comments, the Effectiveness Date as
to such Registration Statement shall be the fifth Trading Day
following the date on which the Company is so notified if such date
precedes the dates otherwise required above, provided, further, if
such Effectiveness Date falls on a day that is not a Trading Day,
then the Effectiveness Date shall be the next succeeding Trading
Day.


 


“Effectiveness Period”
shall have the meaning set forth in Section 2(a).


 


“Event” shall have the
meaning set forth in Section 2(d).


 


“Event Date” shall have
the meaning set forth in Section 2(d).


 


“Filing Date” means, with
respect to the Initial Registration Statement required hereunder,
the 30th
calendar day following the Closing Date and, with respect to any
additional Registration Statements which may be required pursuant
to Section 2(c) or Section 3(c), the earliest practical date on
which the Company is permitted by SEC Guidance to file such
additional Registration Statement related to the Registrable
Securities.


 


“Holder” or
“Holders” means the holder
or holders, as the case may be, from time to time of Registrable
Securities.


 


“Indemnified Party” shall
have the meaning set forth in Section 5(c).


 


“Indemnifying Party” shall
have the meaning set forth in Section 5(c).


 




 

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“Initial Registration
Statement” means the initial Registration Statement
filed pursuant to this Agreement.


 


“Losses” shall have the
meaning set forth in Section 5(a).


 


“Plan of Distribution”
shall have the meaning set forth in Section 2(a).


 


“Prospectus” means the
prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated by
the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.


 


“Registrable Securities”
means (a) the Common Shares issued pursuant to the Subscription
Agreement, (b) all Conversion Shares issuable upon conversion of
the Preferred Shares (assuming on such date all Preferred Shares
are converted in full without regard to any conversion limitations
therein), and (c) any securities issued or then issuable upon any
stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing; provided, however, that any such
Registrable Securities shall cease to be Registrable Securities
(and the Company shall not be required to maintain the
effectiveness of any, or file another, Registration Statement
hereunder with respect thereto) for so long as (a) a Registration
Statement with respect to the sale of such Registrable Securities
is declared effective by the Commission under the Securities Act
and such Registrable Securities have been disposed of by the Holder
in accordance with such effective Registration Statement, (b) such
Registrable Securities have been previously sold in accordance with
Rule 144, or (c) such securities become eligible for resale without
volume or manner-of-sale restrictions and without current public
information pursuant to Rule 144 as set forth in a written opinion
letter to such effect, addressed, delivered and acceptable to the
Transfer Agent and the affected Holders (assuming that such
securities and any securities issuable upon exercise, conversion or
exchange of which, or as a dividend upon which, such securities
were issued or are issuable, were at no time held by any Affiliate
of the Company), as reasonably determined by the Company, upon the
advice of counsel to the Company.


 


“Registration Statement”
means any registration statement required to be filed hereunder
pursuant to Section 2(a) and any additional registration statements
contemplated by Section 2(c) or Section 3(c), including (in each
case) the Prospectus, amendments and supplements to any such
registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference
in any such registration statement.


 


“Rule 415” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.


 


“Rule 424” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.


 


“Selling Stockholder
Questionnaire” shall have the meaning set forth in
Section 3(a).


 


“SEC Guidance” means (i)
any publicly-available written or oral guidance of the Commission
staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.


 


“Trading Day” means the
hours of 9:00 a.m. (Eastern Time) through 5:00 p.m. (Eastern Time)
of a day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required
to be closed.


 




 

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2.            

Shelf
Registration.






 


(a) On
or prior to each Filing Date, the Company shall prepare and file
with the Commission a Registration Statement covering the resale of
all of the Registrable Securities that are not then registered on
an effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415. Each Registration Statement
filed hereunder shall be on Form S-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on
Form S-3, in which case such registration shall be on another
appropriate form in accordance herewith, such as Form S-1, subject
to the provisions of Section 2(e)) and shall contain (unless
otherwise directed by at least 51% in interest of the Holders)
substantially the “Plan of Distribution”
attached hereto as Annex
A, provided, however, that no Holder shall be required to be
named as an “underwriter” without such Holder’s
express written consent. Subject to the terms of this Agreement,
the Company shall use its reasonable best efforts to cause a
Registration Statement filed under this Agreement, (including,
without limitation, under Section 3(c)) to be declared effective
under the Securities Act as promptly as possible after the filing
thereof, but in any event no later than the applicable
Effectiveness Date, and shall use its best efforts to keep such
Registration Statement continuously effective under the Securities
Act until the date that all Registrable Securities covered by such
Registration Statement (i) have been sold, thereunder or pursuant
to Rule 144, or (ii) may be sold without volume or manner-of-sale
restrictions pursuant to Rule 144 and without the requirement for
the Company to be in compliance with the current public information
requirement under Rule 144, as determined by the counsel to the
Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Transfer Agent and the affected
Holders (the “Effectiveness Period”).
The Company shall telephonically request effectiveness of a
Registration Statement as of 5:00 p.m. Eastern Time on a Trading
Day. The Company shall immediately notify the Holders via facsimile
or by e-mail of the effectiveness of a Registration Statement on
the same Trading Day that the Company telephonically confirms
effectiveness with the Commission, which shall be the date
requested for effectiveness of such Registration Statement. The
Company shall, by 9:30 a.m. Eastern Time on the Trading Day after
the effective date of such Registration Statement, file a final
Prospectus with the Commission as required by Rule 424. Failure to
so notify the Holder within two (2) Trading Days of such
notification of effectiveness or failure to file a final Prospectus
as foresaid shall be deemed an Event under Section
2(d).


 


(b)
Notwithstanding the registration obligations set forth in Section
2(a), and subject to the payment of liquidated damages pursuant to
Section 2(d), if the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of
Rule 415, be registered for resale as a secondary offering on a
single registration statement, the Company agrees to promptly
inform each of the Holders thereof and use its commercially
reasonable efforts to file amendments to the Initial Registration
Statement as required by the Commission, covering the maximum
number of Registrable Securities permitted to be registered by the
Commission, on Form S-3 or such other form available to register
for resale the Registrable Securities as a secondary offering,
subject to the provisions of Section 2(e); with respect to filing
on Form S-3 or other appropriate form, and subject to the
provisions of Section 2(d) with respect to the payment of
liquidated damages; provided, however, that prior to filing
such amendment, the Company shall be obligated to use diligent
efforts to advocate with the Commission for the registration of all
of the Registrable Securities in accordance with the SEC Guidance,
including without limitation, Compliance and Disclosure
Interpretation 612.09.


 


(c)
Notwithstanding any other provision of this Agreement, if the
Commission or any SEC Guidance sets forth a limitation on the
number of Registrable Securities permitted to be registered on a
particular Registration Statement as a secondary offering (and
notwithstanding that the Company used diligent efforts to advocate
with the Commission for the registration of all or a greater
portion of Registrable Securities), unless otherwise directed in
writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration
Statement will be reduced as follows:


 



a. 

First,
the Company shall reduce or eliminate any securities to be included
other than Registrable Securities; and






 



b. 

Second,
the Company shall reduce Registrable Securities represented by
Common Shares and Conversion Shares, on a pro rata basis based on
the total number of Common Shares and Conversion Shares held by
such Holders.






 




 

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In
the event of a cutback hereunder, the Company shall give the Holder
at least five (5) Trading Days prior written notice along with the
calculations as to such Holder’s allotment. In the event the
Company amends the Initial Registration Statement in accordance
with the foregoing, the Company will use its best efforts to file
with the Commission, as promptly as allowed by Commission or SEC
Guidance provided to the Company or to registrants of securities in
general, one or more registration statements on Form S-3 or such
other form available to register for resale those Registrable
Securities that were not registered for resale on the Initial
Registration Statement, as amended.


 


(d) If:
(i) the Initial Registration Statement is not filed on or prior to
its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review
and comment on the same as required by Section 3(a) herein, the
Company shall be deemed to have not satisfied this clause (i)), or
(ii) the Company fails to file with the Commission a request for
acceleration of a Registration Statement in accordance with Rule
461 promulgated by the Commission pursuant to the Securities Act,
within five Trading Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the Commission that
such Registration Statement will not be “reviewed” or
will not be subject to further review, or (iii) prior to the
effective date of a Registration Statement, the Company fails to
file a pre-effective amendment and otherwise respond in writing to
comments made by the Commission in respect of such Registration
Statement within ten (10) calendar days after the receipt of
comments by or notice from the Commission that such amendment is
required in order for such Registration Statement to be declared
effective, or (iv) a Registration Statement registering for resale
all of the Registrable Securities is not declared effective by the
Commission by the Effectiveness Date of the Initial Registration
Statement, or (v) after the Effective Date and prior to the
termination of the Effectiveness Period, such Registration
Statement ceases for any reason to remain continuously effective as
to all Registrable Securities included in such Registration
Statement, or the Holders are otherwise not permitted to utilize
the Prospectus therein to resell such Registrable Securities, for
more than ten (10) consecutive Trading Days or more than an
aggregate of twenty (20) Trading Days (which need not be
consecutive Trading Days) during any 12-month period (any such
failure or breach being referred to as an “Event”, and for purposes
of clauses (i) and (iv), the date on which such Event occurs, and
for purpose of clause (ii), the date on which such five (5) Trading
Day period is exceeded, and for purpose of clause (iii), the date
which such ten (10) calendar day period is exceeded, and for
purpose of clause (v), the date on which such ten (10) or twenty
(20) Trading Day period, as applicable, is exceeded being referred
to as “Event
Date”), then, in addition to any other rights the
Holders may have hereunder or under applicable law, on each such
Event Date and on each monthly anniversary of each such Event Date
(if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, the Company shall pay to each
Holder an amount in cash, as partial liquidated damages and not as
a penalty, equal to the product of 1.0% multiplied by the aggregate
Subscription Amount paid by such Holder pursuant to the
Subscription Agreement up to a maximum of 12%. If the Company fails
to pay any partial liquidated damages pursuant to this Section in
full within seven days after the date payable, the Company will pay
interest thereon at a rate of 18% per annum (or such lesser maximum
amount that is permitted to be paid by applicable law) to the
Holder, accruing daily from the date such partial liquidated
damages are due until such amounts, plus all such interest thereon,
are paid in full. The partial liquidated damages pursuant to the
terms hereof shall apply on a daily pro rata basis for any portion
of a month prior to the cure of an Event.


 


(e) If
Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register
the resale of the Registrable Securities on another appropriate
form, and (ii) undertake to register the Registrable Securities on
Form S-3 as soon as such form is available, provided that the
Company shall maintain the effectiveness of the Registration
Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been
declared effective by the Commission.


 


(f)
Notwithstanding anything to the contrary contained herein, in no
event shall the Company be permitted to name any Holder or
affiliate of a Holder as any Underwriter without the prior written
consent of such Holder.


 




 

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3.
Registration
Procedures.


 


In
connection with the Company’s registration obligations
hereunder, the Company shall:


 


(a) Not
less than five (5) Trading Days prior to the filing of each
Registration Statement and not less than one (1) Trading Day prior
to the filing of any amendment or prospectus thereto (provided if
the selling stockholder section or plan of distribution sections
have changed in such amendments or prospectus, such period shall be
three (3) Trading Days), the Company shall (i) furnish to each
Holder copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such
Holders, and (ii) cause its officers and directors, counsel and
independent registered public accountants to respond to such
inquiries as shall be necessary, in the reasonable opinion of
respective counsel to each Holder, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company
shall not file a Registration Statement or any such Prospectus or
any amendments or supplements thereto to which the Holders of a
majority of the Registrable Securities shall reasonably object in
good faith, provided that, the Company is notified of such
objection in writing no later than five (5) Trading Days after the
Holders have been so furnished copies of a Registration Statement
or one (1) Trading Day after the Holders have been so furnished
copies of any related amendments thereto (provided if the selling
stockholder section or plan of distribution sections have changed
in such amendments or prospectus, such period shall be three (3)
Trading Days). Each Holder agrees to furnish to the Company a
completed questionnaire in the form attached to this Agreement as
Annex B (a
“Selling Stockholder
Questionnaire”) on a date that is not less than five
(5) Trading Days prior to the Filing Date or by the end of the
third (3rd) Trading Day
following the date on which such Holder receives draft materials in
accordance with this Section.


 


(b) (i)
Prepare and file with the Commission such amendments, including
post-effective amendments, to a Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep
a Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and
prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the Registrable Securities, (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus
supplement (subject to the terms of this Agreement), and, as so
supplemented or amended, to be filed pursuant to Rule 424, (iii)
respond as promptly as reasonably possible to any comments received
from the Commission with respect to a Registration Statement or any
amendment thereto and provide as promptly as reasonably possible to
the Holders true and complete copies of all correspondence from and
to the Commission relating to a Registration Statement (provided
that, the Company shall excise any information contained therein
which would constitute material non-public information regarding
the Company), and (iv) comply in all material respects with the
applicable provisions of the Securities Act and the Exchange Act
with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in
accordance (subject to the terms of this Agreement) with the
intended methods of disposition by the Holders thereof set forth in
such Registration Statement as so amended or in such Prospectus as
so supplemented.


 


(c) If
during the Effectiveness Period, the number of Registrable
Securities at any time exceeds 100% of the number of shares of
Common Stock then registered in a Registration Statement, then the
Company shall file as soon as reasonably practicable, but in any
case prior to the applicable Filing Date, an additional
Registration Statement covering the resale by the Holders of not
less than the number of such Registrable Securities.


 




 

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(d)
Notify the Holders of Registrable Securities to be sold (which
notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) as promptly as
reasonably possible (and, in the case of (i)(A) below, not less
than one (1) Trading Day prior to such filing) and (if requested by
any such Person) confirm such notice in writing no later than one
(1) Trading Day following the day (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration
Statement is proposed to be filed, (B) when the Commission notifies
the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in
writing on such Registration Statement, and (C) with respect to a
Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or
supplements to a Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the Commission or
any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement covering
any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose, (iv) of the receipt by the Company of
any notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose, (v)
of the occurrence of any event or passage of time that makes the
financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a
Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to a Registration
Statement, Prospectus or other documents so that, in the case of a
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vi) of the occurrence or
existence of any pending corporate development with respect to the
Company that the Company believes may be material and that, in the
determination of the Company, makes it not in the best interest of
the Company to allow continued availability of a Registration
Statement or Prospectus, provided, however, in no event shall any
such notice contain any information which would constitute
material, non-public information regarding the
Company.


 


(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order stopping or suspending the
effectiveness of a Registration Statement, or (ii) any suspension
of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the
earliest practicable moment.


 


(f)
Furnish to each Holder, without charge, at least one conformed copy
of each such Registration Statement and each amendment thereto,
including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference to
the extent requested by such Person, and all exhibits to the extent
requested by such Person (including those previously furnished or
incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that any such item which
is available on the EDGAR system (or successor thereto) need not be
furnished in physical form.


 


(g)
Subject to the terms of this Agreement, the Company hereby consents
to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto, except after
the giving of any notice pursuant to Section 3(d).


 


(h)
Prior to any resale of Registrable Securities by a Holder, use its
commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification)
of such Registrable Securities for the resale by the Holder under
the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing, to keep
each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all
other acts or things reasonably necessary to enable the disposition
in such jurisdictions of the Registrable Securities covered by each
Registration Statement; provided, that, the Company shall not be
required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so
subject or file a general consent to service of process in any such
jurisdiction.


 




 

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(i) If
requested by a Holder, cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to
a Registration Statement, which certificates shall be free, to the
extent permitted by the Subscription Agreement and applicable law,
of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names
as any such Holder may request.


 


(j)
Upon the occurrence of any event contemplated by Section 3(d), as
promptly as reasonably possible under the circumstances taking into
account the Company’s good faith assessment of any adverse
consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to a Registration Statement
or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
neither a Registration Statement nor such Prospectus will contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. If the
Company notifies the Holders in accordance with clauses (iii)
through (vi) of Section 3(d) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been
made, then the Holders shall suspend use of such Prospectus. The
Company will use its best efforts to ensure that the use of the
Prospectus may be resumed as promptly as is practicable. The
Company shall be entitled to exercise its right under this Section
3(j) to suspend the availability of a Registration Statement and
Prospectus, subject to the payment of partial liquidated damages
otherwise required pursuant to Section 2(d), for a period not to
exceed 60 calendar days (which need not be consecutive days) in any
12-month period.


 


(k)
Otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission under the
Securities Act and the Exchange Act, including, without limitation,
Rule 172 under the Securities Act, file any final Prospectus,
including any supplement or amendment thereof, with the Commission
pursuant to Rule 424 under the Securities Act, promptly inform the
Holders in writing if, at any time during the Effectiveness Period,
the Company does not satisfy the conditions specified in Rule 172
and, as a result thereof, the Holders are required to deliver a
Prospectus in connection with any disposition of Registrable
Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable
Securities hereunder.


 


(l)
Intentionally Omitted.


 


(m) The
Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and, if required by the
Commission, the natural persons thereof that have voting and
dispositive control over the shares. The Company shall be entitled
to rely on such certified statement of each Holder. During any
periods that the Company is unable to meet its obligations
hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to furnish such
information within three Trading Days of the Company’s
request, any liquidated damages that are accruing at such time as
to such Holder only shall be tolled and any Event that may
otherwise occur solely because of such delay shall be suspended as
to such Holder only, until such information is delivered to the
Company.


 



4.           

Registration Expenses. All fees
and expenses incident to the performance of or compliance with,
this Agreement by the Company shall be borne by the Company whether
or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees
and expenses of the Company’s counsel and independent
registered public accountants) (A) with respect to filings made
with the Commission, (B) with respect to filings required to be
made with any Trading Market on which the Common Stock is then
listed for trading, and (C) in compliance with applicable state
securities or Blue Sky laws reasonably agreed to by the Company in
writing (including, without limitation, fees and disbursements of
counsel for the Company in connection with Blue Sky qualifications
or exemptions of the Registrable Securities), (ii) printing
expenses (including, without limitation, expenses of printing
certificates for Registrable Securities), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if
the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement. In
addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as
required hereunder. In no event shall the Company be responsible
for any broker or similar commissions of any Holder or any legal
fees or other costs of the Holders.






 




 

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5.            

Indemnification.






 


(a)
Indemnification by the
Company. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including
brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of
Common Stock), investment advisors and employees (and any other
Persons with a functionally equivalent role of a Person holding
such titles, notwithstanding a lack of such title or any other
title) of each of them, each Person who controls any such Holder
(within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, members,
stockholders, partners, agents and employees (and any other Persons
with a functionally equivalent role of a Person holding such
titles, notwithstanding a lack of such title or any other title) of
each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses (collectively,
“Losses”), as incurred,
arising out of or relating to (1) any untrue statement of a
material fact contained in a Registration Statement, any Prospectus
or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading or (2) any
violation by the Company of the Securities Act, the Exchange Act or
any state securities law, or any rule or regulation thereunder, in
connection with the performance of its obligations under this
Agreement, except to the extent, but only to the extent, that (i)
such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement, such Prospectus or in any
amendment or supplement thereto (it being understood that the
Holder has approved Annex
A hereto for this purpose) or (ii) in the case of an
occurrence of an event of the type specified in Section
3(d)(iii)-(vi), the use by such Holder of an outdated, defective or
otherwise unavailable Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated, defective
or otherwise unavailable for use by such Holder and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d).
The Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which the
Company is aware. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such
indemnified person and shall survive the transfer of any
Registrable Securities by any of the Holders in accordance with
Section 6(h).


 


(b)
Indemnification by
Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees
of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the
extent arising out of or based solely upon: any untrue or alleged
untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or supplement thereto, in
light of the circumstances under which they were made) not
misleading (i) to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company expressly for
inclusion in such Registration Statement or such Prospectus or (ii)
to the extent, but only to the extent, that such information
relates to such Holder’s information provided in the Selling
Stockholder Questionnaire or the proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in
writing by such Holder expressly for use in a Registration
Statement (it being understood that the Holder has approved
Annex A hereto for
this purpose), such Prospectus or in any amendment or supplement
thereto. In no event shall the liability of a selling Holder be
greater in amount than the dollar amount of the proceeds (net of
all reasonable expenses paid by such Holder in connection with any
claim relating to this Section 5 and the amount of any damages such
Holder has otherwise been required to pay by reason of such untrue
statement or omission) received by such Holder upon the sale of the
Registrable Securities included in the Registration Statement
giving rise to such indemnification obligation.


 




 

-8-








 






 


(c)
Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an
“Indemnified
Party”), such Indemnified Party shall promptly notify
the Person from whom indemnity is sought (the “Indemnifying Party”) in
writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided,
that, the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have materially and
adversely prejudiced the Indemnifying Party.


 


An
Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party or Parties unless: (1) the Indemnifying
Party has agreed in writing to pay such fees and expenses, (2) the
Indemnifying Party shall have failed promptly to assume the defense
of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding, or (3) the named
parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and
counsel to the Indemnified Party shall reasonably believe that a
material conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written
consent, which consent shall not be unreasonably withheld or
delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.


 


Subject
to the terms of this Agreement, all reasonable fees and expenses of
the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing
to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred,
within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that, the Indemnified Party shall
promptly reimburse the Indemnifying Party for that portion of such
fees and expenses applicable to such actions for which such
Indemnified Party is finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) not to be entitled to indemnification
hereunder.


 


(d)
Contribution. If
the indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party,
in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and Indemnified Party in connection with
the actions, statements or omissions that resulted in such Losses
as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set
forth in this Agreement, any reasonable attorneys’ or other
fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in this
Section was available to such party in accordance with its
terms.


 




 

-9-








 






 


The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. In no event shall the contribution
obligation of a Holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all
reasonable expenses paid by such Holder in connection with any
claim relating to this Section 5 and the amount of any damages such
Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission)
received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.


 


The
indemnity and contribution agreements contained in this Section are
in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.


 



6.           

Miscellaneous.






 


(a) 
Remedies. In the
event of a breach by the Company or by a Holder of any of their
respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific
performance of its rights under this Agreement. Each of the Company
and each Holder agrees that monetary damages would not provide
adequate compensation for any losses incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in
respect of such breach, it shall not assert or shall waive the
defense that a remedy at law would be adequate.


 


(b)
No Piggyback on
Registrations; Prohibition on Filing Other Registration
Statements. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto)
may include securities of the Company in any Registration
Statements other than the Registrable Securities. The Company shall
not file any other registration statements, other than on Forms S-4
or S-8 or their then equivalents, until all Registrable Securities
are registered pursuant to a Registration Statement that is
declared effective by the Commission, provided that this Section
6(b) shall not prohibit the Company from filing amendments to
registration statements filed prior to the date of this
Agreement.


 


(c)
Intentionally Omitted.


 


(d)
Discontinued
Disposition. By its acquisition of Registrable Securities,
each Holder agrees that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section
3(d)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration
Statement until it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus
may be resumed as promptly as is practicable. The Company agrees
and acknowledges that any periods during which the Holder is
required to discontinue the disposition of the Registrable
Securities hereunder shall be subject to the provisions of Section
2(d).


 


(e)
Piggy-Back
Registrations. If, at any time during the Effectiveness
Period, there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine
(assuming the Company has received waivers from the requisite
holders of Registrable Securities with respect to Section 6(b)
herein) to prepare and file with the Commission a registration
statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable
in connection with the Company’s stock option or other
employee benefit plans, then the Company shall deliver to each
Holder a written notice of such determination and, if within
fifteen days after the date of the delivery of such notice, any
such Holder shall so request in writing, the Company shall include
in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered; provided, however, that the Company shall
not be required to provide notice or otherwise register any
Registrable Securities pursuant to this Section 6(e) that are
eligible for resale pursuant to Rule 144 (without volume
restrictions or current public information requirements)
promulgated by the Commission pursuant to the Securities Act or
that are the subject of a then effective Registration Statement
that is available for resales or other dispositions by such
Holder.


 




 

-10-








 










(f)
Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holders of 51% or more of
the then outstanding Registrable Securities (for purposes of
clarification, this includes any Registrable Securities issuable
upon exercise or conversion of any Security), provided that, if any
amendment, modification or waiver disproportionately and adversely
impacts a Holder (or group of Holders), the consent of such
disproportionately impacted Holder (or group of Holders) shall be
required. If a Registration Statement does not register all of the
Registrable Securities pursuant to a waiver or amendment done in
compliance with the previous sentence, then the number of
Registrable Securities to be registered for each Holder shall be
reduced pro rata among all Holders and each Holder shall have the
right to designate which of its Registrable Securities shall be
omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
a Holder or some Holders and that does not directly or indirectly
affect the rights of other Holders may be given only by such Holder
or Holders of all of the Registrable Securities to which such
waiver or consent relates; provided, however, that the provisions of
this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this
Section 6(f). No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any
provision of this Agreement unless the same consideration also is
offered to all of the parties to this Agreement.


 


(g)
Notices. Any and
all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth
in the Subscription Agreement.


 


(h)
Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company
may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders
of the then outstanding Registrable Securities. Each Holder may
assign their respective rights hereunder in the manner and to the
Persons as permitted under Section 5.7 of the Subscription
Agreement.


 


(i)
No Inconsistent
Agreements. The Company has not entered, as of the date
hereof, nor shall the Company, on or after the date of this
Agreement, enter into any agreement with respect to its securities,
that would have the effect of impairing the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any
agreement granting any registration rights with respect to any of
its securities to any Person that have not been satisfied in
full.


 


(j)
Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign
the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an
original thereof.


 


(k)
Governing Law. All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be determined in accordance
with the provisions of the Subscription Agreement.


 


(l)
Cumulative
Remedies. The remedies provided herein are cumulative and
not exclusive of any other remedies provided by law.


 


(m)
Severability. If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.


 




 

-11-








 






 


(n)
Headings. The
headings in this Agreement are for convenience only, do not
constitute a part of the Agreement and shall not be deemed to limit
or affect any of the provisions hereof.


 


(o)
Independent Nature of
Holders’ Obligations and Rights. The obligations of
each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be
responsible in any way for the performance of the obligations of
any other Holder hereunder. Nothing contained herein or in any
other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint
venture or any other kind of group or entity, or create a
presumption that the Holders are in any way acting in concert or as
a group or entity with respect to such obligations or the
transactions contemplated by this Agreement or any other matters,
and the Company acknowledges that the Holders are not acting in
concert or as a group, and the Company shall not assert any such
claim, with respect to such obligations or transactions. Each
Holder shall be entitled to protect and enforce its rights,
including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
The use of a single agreement with respect to the obligations of
the Company contained was solely in the control of the Company, not
the action or decision of any Holder, and was done solely for the
convenience of the Company and not because it was required or
requested to do so by any Holder. It is expressly understood and
agreed that each provision contained in this Agreement is between
the Company and a Holder, solely, and not between the Company and
the Holders collectively and not between and among
Holders.


 


********************


 

 



(Signature Pages Follow)


 



 

-12-







 






 


IN
WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.


 


	

MABVAX
THERAPEUTICS HOLDINGS, INC.


 


	

By:__________________________________________


     Name:


     Title:


 







 


 


 


[SIGNATURE PAGE OF
HOLDERS FOLLOWS]


 


 


 


 


 




 

-13-








 






 


[SIGNATURE PAGE OF
HOLDERS TO RRA]


 


 


Name of
Holder: __________________________


 


Signature of Authorized Signatory of
Holder: __________________________


 


Name of
Authorized Signatory: _________________________


 


Title
of Authorized Signatory: __________________________


 


 


 


[SIGNATURE PAGES
CONTINUE]


 


 


 


 




 

-14-








 










 



Annex A


 


Plan
of Distribution


 


Each
Selling Stockholder (the “Selling Stockholders”) of
the securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the principal Trading Market or
any other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling
securities:

 



● 

ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;





 



● 

block trades in
which the broker-dealer will attempt to sell the securities as
agent but may position and resell a portion of the block as
principal to facilitate the transaction;





 



● 

purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;





 



● 

an exchange
distribution in accordance with the rules of the applicable
exchange;





 



● 

privately
negotiated transactions;





 



● 

settlement of short
sales;





 



● 

in transactions
through broker-dealers that agree with the Selling Stockholders to
sell a specified number of such securities at a stipulated price
per security;





 



● 

through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;





 



● 

a combination of
any such methods of sale; or





 



● 

any other method
permitted pursuant to applicable law.





 


The
Selling Stockholders may also sell securities under Rule 144 under
the Securities Act of 1933, as amended (the “Securities Act”), if
available, rather than under this prospectus.

 


Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.

 


In
connection with the sale of the securities or interests therein,
the Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).

 


The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the
resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the
securities.

 




 

A-1








 






 


The
Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.

 


We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect, or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.

 


Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders
or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).

 




 

A-2








 










 



Annex B

 


MABVAX
THERAPEUTICS HOLDINGS, INC.

 


Selling
Stockholder Notice and Questionnaire

 


The
undersigned beneficial owner of securities (the “Registrable Securities”)
of MabVax Therapeutics Holdings, Inc., a Delaware corporation (the
“Company”), understands
that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”) a
registration statement (the “Registration Statement”)
for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of the
Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy
of the Registration Rights Agreement is available from the Company
upon request at the address set forth below. All capitalized terms
not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.

 


In
order to sell or otherwise dispose of any Registrable Securities
pursuant to the Registration Statement, a holder of Registrable
Securities generally will be required to be named as a selling
shareholder in the prospectus included in the Registration
Statement and one or more supplements thereto (as so supplemented,
the “Prospectus”) and deliver the
Prospectus to purchasers of Registrable Securities (including
pursuant to Rule 172 under the Securities Act). Holders must
complete and deliver this Questionnaire in order to be named as
selling shareholders in the Prospectus.

 


Certain
legal consequences arise from being named as a selling stockholder
in the Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Registrable
Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a
selling stockholder in the Registration Statement and the related
Prospectus.

 


NOTICE

 


The
undersigned beneficial owner (the “Selling Stockholder”) of
Registrable Securities hereby elects to include the Registrable
Securities owned by it in the Registration Statement.

 




 

B-1








 






 


The
undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:

 


QUESTIONNAIRE

 


1. Name.

 



(a) 

Full Legal Name of
Selling Stockholder





 


	
 

	
 


	
 

	
 







 



(b) 

Full Legal Name of
Registered Holder (if not the same as (a) above) through which
Registrable Securities are held:





 


	
 

	
 


	
 

	
 







 



(c) 

Full Legal Name of
Natural Control Person (which means a natural person who directly
or indirectly alone or with others has power to vote or dispose of
the securities covered by this Questionnaire):





 


	
 

	
 


	
 

	
 







 

 


2.
Address for Notices to Selling Stockholder:

 


	
 


	
 


	
 


	

Telephone: 


	

Fax: 


	

Contact
Person: 







 


 


3.
Beneficial Ownership of Registrable Securities:

 



(a) 

Number of
Registrable Securities beneficially owned and issued or issuable
pursuant to preferred stock:





 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 

 



(b) 

Number of
Registrable Securities to be registered pursuant to this
Questionnaire for resale:





 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 


 




 

B-2








 






 


4.
Broker-Dealer Status:

 



(a) 

Are you a
broker-dealer?





 



Yes
☐                      

No
☐





 



(b) 

If
“yes” to Section 4(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?





 



Yes
☐                      

No
☐





 



Note: 

If “no”
to Section 4(b), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.





 



(c) 

Are you an
affiliate of a broker-dealer?





 



Yes
☐                      

No
☐





 


Note:            If
yes, provide a narrative explanation below:

 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 

 



(d) 

If you are an
affiliate of a broker-dealer, do you certify that you purchased the
Registrable Securities in the ordinary course of business, and at
the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable
Securities?





 



Yes
☐                      

No
☐





 



Note: 

If “no”
to Section 4(d), the Commission’s staff has indicated that
you should be identified as an underwriter in the Registration
Statement.





 


 




 

B-3








 






 


5.
Beneficial Ownership of Securities of the Company Owned by the
Selling Stockholder.

 



Except as set forth below in this Item 5, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Subscription
Agreement.

 



(a) 

Type and Amount of
other securities beneficially owned by the Selling
Stockholder:





 


	
 

	
 


	
 

	
 


	
 

	
 







 


6.
Relationships with the Company:

 



Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners
of 5% of more of the equity securities of the undersigned) has held
any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the
past three years.

 



State any
exceptions here:





 


	
 

	
 


	
 

	
 


	
 

	
 







 

 


7.
Plan of Distribution:

 



The undersigned has reviewed the form of Plan of Distribution to be
included in the Prospectus, and hereby confirms that, except as set
forth below, the information contained therein regarding the
undersigned and its plan of distribution is correct and
complete.

 



State any
exceptions here:





 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 







 


 




 

B-4








 






 


The
answers to the foregoing questions are correctly stated to the best
of the undersigned’s knowledge, information and belief. The
undersigned hereby agrees to notify the Company promptly of any
changes in the foregoing information. In the absence of any such
notification, the Company shall be entitled to continue to rely on
the accuracy of the information in this Questionnaire.

 


The
undersigned understands and acknowledges that the Company will rely
on the information set forth herein for purposes of the preparation
of the Prospectus. By signing below, the undersigned (i) consents
to the disclosure of the information contained herein in the
answers to Items 1 through 7 and the inclusion of such information
in the Registration Statement and the related Prospectus and any
amendments or supplements thereto, and (ii) acknowledges the
undersigned’s obligation to comply, and agrees that it will
comply, with the provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, particularly
Regulation M, in connection with any offering of Registrable
Securities pursuant to the Registration Statement.

 


The
undersigned also acknowledges and understands that the Registration
Statement will be subject to review by the Commission.

 


By
signing below, the undersigned hereby acknowledges and is advised
of the following Compliance and Disclosure Interpretation
(“CDI”) of the
staff of the Division of Corporation Finance (with respect to
Securities Act Sections):

 



“239.10 An issuer
filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling
shareholders wanted to do a short sale of common stock
“against the box” and cover the short sale with
registered shares after the effective date. The issuer was advised
that the short sale could not be made before the registration
statement becomes effective, because the shares underlying the
short sale are deemed to be sold at the time such sale is made.
There would, therefore, be a violation of Section 5 if the shares
were effectively sold prior to the effective date. [Nov. 26,
2008]”

 


By
returning this Questionnaire, the undersigned will be deemed to be
aware of the foregoing CDI, acknowledges that the foregoing CDI
applies to the Registrable Securities to be registered for resale
on behalf of the undersigned pursuant to the Registration
Statement.


 




 

B-5








 






 


IN
WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.

 

 


	
Date:                                        



	
 Beneficial
Owner:                                                 




	
 

	
 


	
 By:   



	
 


	
 

	
 Name:                                                    



 Title:                                                     









 


 


PLEASE
FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED
NOTICE AND QUESTIONNAIRE TO:


 


 




  


B-6