Blueprint





 






Exhibit
10.1


 


EXCHANGE
AGREEMENT


 


THIS
EXCHANGE AGREEMENT (the “Agreement”), dated as of May [
], 2017 (the “Effective Date”), is made by and between MabVax
Therapeutics Holdings, Inc., a Delaware corporation
(“Company”), and the holder of the Company’s
Series H Preferred Stock signatory hereto
(“Holder”).


 


WHEREAS, pursuant
to that certain Subscription Agreement (the “Subscription
Agreement”), dated as of May 3, 2017, by and between the
Company and the investor signatory thereto (the
“Holder”), whereby, among other things, the Holder
purchased from the Company $[ ] of shares of Series H Convertible
Preferred Stock having a stated value of $1,000 per share (the
“Series H Preferred Stock” or the “Exchange
Securities”), the terms of which are set forth in the
certificate of designations, preferences and rights of Series H
Convertible Preferred Stock (the “H Certificate of
Designations”) in the form attached to the Subscription
Agreement as Exhibit
A;


 


WHEREAS, the shares
of Series H Preferred Stock are convertible into the Company's
common stock, par value $0.01 per share (the “Common
Stock”), in accordance with the terms of the H Certificate of
Designations and based upon a conversion calculation equal to the
Stated Value (as defined in the H Certificate of Designations) of
the Series H Preferred Stock, plus all accrued and unpaid
dividends, if any, on such Series H Preferred Stock, as of such
date of determination, divided by the conversion price of $1.75,
subject to adjustments as set forth in the H Certificate of
Designations;


 


WHEREAS, the Holder
holds such number of shares of Series H Preferred Stock and as set
forth on Schedule A
hereto;


 


WHEREAS, the
Company has authorized a new series of convertible preferred stock
of the Company designated as Series G Convertible Preferred Stock,
$0.01 par value, the terms of which are set forth in the
Certificate of Designation of Preferences, Rights and Limitations
of Series G Convertible Preferred Stock (the “G Certificate
of Designations”) in the form attached hereto as Exhibit B (together with any
convertible preferred shares issued in replacement thereof in
accordance with the terms thereof, the “Series G Preferred
Stock”), which Series G Preferred Stock shall be convertible
into the Company’s Common Stock, in accordance with the terms
of the G Certificate of Designations;


 


WHEREAS, the
Company has filed a Registration Statement on Form S-1, as amended
(Registration No. 333-216016) (the “Registration
Statement”) with the Securities and Exchange Commission (the
“SEC”), and such Registration Statement shall be
declared effective by the SEC, in connection with a public offering
of the Company’s Series G Preferred Stock and Common Stock
(the “Offering”); and


 


WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”), the Company desires to exchange with
the Holder, and the Holder desires to exchange with the Company,
the Exchange Securities for shares of the Company’s Series G
Preferred Stock in the Offering.


 


NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and Holder agree as follows:


 


1.   
Terms of the
Exchange. The Company and Holder agree that the Holder will
exchange the Exchange Securities and will relinquish any and all
other rights it may have under the Exchange Securities in exchange
for such number of Series G Preferred Stock as set forth on
Schedule A, annexed
hereto.


 


2.   
Closing. Upon
satisfaction of the conditions set forth herein, a closing shall
occur at the principal offices of the Company, or such other
location as the parties shall mutually agree (the
“Closing”) simultaneously with the closing of the
Offering and which Offering closing shall be a condition to the
Closing. At Closing, Holder shall surrender the Exchange Securities
and the Company shall deliver to Holder the Series G Preferred
Stock, in such amounts and to such persons as are set forth on
Schedule A. Upon
Closing, any and all obligations of the Company to Holder under the
Exchange Securities shall be fully satisfied (including any rights
related to the Exchange Securities
under the Subscription Agreement) and Holder will have no remaining
rights, powers, privileges, remedies or interests under the
Exchange Securities.


 




 

-1-








 






 


3.   
Further Assurances.
Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.

 


4.   
Registered
Securities. The Holder and the Company understand and agree
that the Series G Preferred Stock will be issued and the shares of
Common Stock issuable upon conversion of the Series G Preferred
Stock (the “Conversion Shares” and, together with the
Series G Preferred Stock, the “Securities”) when
issued, shall be issued pursuant to the Registration Statement and
the Holder shall have all the rights and remedies pursuant to the
Securities Act relative to the purchase of shares offered and sold
pursuant to the Registration Statement. Due to the registration and
qualification under the Securities Act and applicable state
securities laws, the Series G Preferred Stock shall have no
restrictions or legends other than those required pursuant to the
Registration Statement and the Common Stock issuable upon
conversion of the Series G Preferred Stock shall be registered
securities for all purposes pursuant to and subject to the
limitations of only the Registration Statement and prospectus a
part thereof.


 


5.   
Additional
Acknowledgments.


 


a. The
Company shall within four (4) Trading Days immediately following
the date hereof (a) file a Current Report on Form 8-K, including
the Exchange Documents as exhibits thereto, with the Securities and
Exchange Commission (the “Commission”) within the time
required by the Exchange Act. The Company and the Holder shall
consult with each other in issuing any press releases with respect
to the transactions contemplated hereby, and neither the Company
nor the Holder shall issue any such press release nor otherwise
make any such public statement without the prior consent of the
Company, with respect to any press release of the Holder, or
without the prior consent of the Holder, with respect to any press
release of the Company, which consent shall not unreasonably be
withheld or delayed, except if such disclosure is required by law,
in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly
disclose the name of the Holder, or include the name of the Holder
in any filing with the Commission or any regulatory agency or
Trading Market, without the prior written consent of the Holder,
except (a) as required by federal securities law in connection with
the filing of final Exchange Documents (including signature pages
thereto) with the Commission and (b) to the extent such disclosure
is required by law or Trading Market regulations, in which case the
Company shall provide the Holder with prior notice of such
disclosure permitted under this Section 5(a).


 


b.
Except with respect to the material terms and conditions of the
transactions contemplated by the Exchange Documents, the Company
covenants and agrees that neither it, nor any other Person acting
on its behalf, will provide Holder or its agents or counsel with
any information that the Company believes constitutes material
non-public information, unless prior thereto Holder shall have
entered into a written agreement with the Company regarding the
confidentiality and use of such information. The Company
understands and confirms that Holder shall be relying on the
foregoing covenant in effecting transactions in securities of the
Company.



 


c. 
Conversion
Procedures. The form of Notice of Conversion included in the
G Certificate of Designations sets forth the totality of the
procedures required of the Holder in order to convert the Series G
Preferred Stock. No additional legal opinion, other information or
instructions shall be required of the Holder to convert its Series
G Preferred Stock. The Company shall honor conversions of the
Series G Preferred Stock and shall deliver the Conversion Shares in
accordance with the terms, conditions and time periods set forth in
the Exchange Documents.


 


d. 
Preservation of Corporate
Existence. The Company shall preserve and maintain its
corporate existence, rights, privileges and franchises in the
jurisdiction of its incorporation, and qualify and remain
qualified, as a foreign corporation in each jurisdiction in which
such qualification is necessary in view of its business or
operations and where the failure to qualify or remain qualified
might reasonably have a Material Adverse Effect upon the financial
condition, business or operations of the Company taken as a
whole.


 




 

-2-








 






 


 


6.   
Release by the Holder;
Termination of Subscription Agreement; Waiver of Registration
Rights.


 


a.  In
consideration of the foregoing, Holder releases and discharges the
Company, the Company’s officers, directors, principals,
control persons, past and present employees, insurers, successors,
and assigns (“Company Parties”) from all actions, cause
of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law,
admiralty or equity, which against Company Parties ever had, now
have or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatsoever, whether or not known or
unknown, arising under the Exchange Securities Subscription
Agreement.  It being understood that this Section shall be
limited in all respects to only matters arising under or related to
the Exchange Securities and the Subscription Agreement and shall
under no circumstances constitute a release, waiver or discharge
with respect to the Securities or any Exchange Documents or limit
the Holder from taking action for matters with respect to the
Securities, any Exchange Document or events that may arise in the
future.


 


b.  As further
consideration of the foregoing, Holder and the Company hereby
acknowledge and agree that the Subscription Agreement, and all
rights, covenants, agreements and obligations contained therein, is
hereby terminated and of no further force or effect. The Holder and
the Company hereby agree and confirm that the Holder’s
agreement to terminate the Company’s obligations under the
Subscription Agreement shall constitute an agreement to terminate
pursuant to Section 9(e) of the Subscription Agreement and, upon
the Company independently obtaining similar agreements from such
Other Holders as would constitute the requisite “Required
Holders” (as defined in the Subscription Agreement), such
termination shall be considered a termination of the Purchas
Agreement with respect to all parties thereto.


 


c.  As further
consideration of the foregoing, Holder hereby waives, only on
behalf of itself its rights under that certain Registration Rights
Agreement, dated as of May 3, 2017, by and between the Company and
the Holder, as amended from time to time (the “Registration
Rights Agreement”), restricting the Company’s ability
to grant additional registration rights to Holder or any other
person or entity, providing the parties thereto with any notice
relating to the filing of any additional registration statements by
the Company and requiring that the Company include any Registrable
Securities (as defined therein) in any future registration
statement filed by the Company. The Holder and the Company hereby
agree and confirm that the Holder’s agreement to waive the
Company’s obligations under the Registration Rights Agreement
shall constitute a waiver pursuant to Section 6(f) of the
Registration Rights Agreement and, upon the Company independently
obtaining similar waivers from such Other Holders as would
constitute the requisite “Required Holders” (as defined
in the Registration Rights Agreement), such waiver shall be
considered a waiver of the Company’s obligations under the
Registration Rights Agreement with respect to all parties
thereto.


 


 7.   

Miscellaneous.


 


a. 
Successors and
Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and
assigns.

 


b.  Governing
Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by and construed under the laws of the State of New York
without regard to the choice of law principles thereof. Each party
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the State of New York located
in The City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or therewith or
with any transaction contemplated hereby or thereby, and hereby
irrevocably waives any objection that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.

 


c. 
Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.

 




 

-3-








 






 


d. 
Counterparts/Execution.
This Agreement may be executed in two or more identical
counterparts, all of which 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. In the event
that any signature is delivered by facsimile transmission or by an
e-mail which contains an electronic file of an executed signature
page, such signature page 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 electronic file signature page (as the case may be)
were an original thereof.

 


e. 
Notices. Any notice
or communication permitted or required hereunder shall be in
writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile, to the respective parties as set
forth below, or to such other address as either party may notify
the other in writing.

 



If to the Company,
to: 

MabVax Therapeutics
Holdings, Inc.







 


11535
Sorrento Valley Road, Ste. 400







 


San
Diego, CA 92121







 


Attention:
Chief Executive Officer






 


If to
Holder, to the address set forth on the signature page of the
Holder

 


f. 
Expenses. The
parties hereto shall pay their own costs and expenses in connection
herewith.

 


g.
Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof and
thereof, superseding all prior agreements or understandings,
whether written or oral, between or among the parties. This
Agreement may be amended, modified, superseded, cancelled, renewed
or extended, and the terms and conditions hereof may be waived,
only by a written instrument signed by all parties, or, in the case
of a waiver, by the party waiving compliance. Except as expressly
stated herein, no delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any
right, power or privilege hereunder preclude any other or future
exercise of any other right, power or privilege
hereunder.

 


h. 
Headings. The
headings used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.

 




 

-4-








 






 


i.  Independent Nature of
the Holder’s Obligations and Rights. The obligations of the Holder under the Exchange
Documents are several and not joint with the obligations of any
other holder of Series H Preferred Stock (each, an “Other
Holder”) under any other agreement to exchange Series H
Preferred Stock (each, an “Other Agreement”), and the
Holder shall not be responsible in any way for the performance of
the obligations of any Other Holders under any Other Agreement.
Nothing contained herein or in any Other Agreement, and no action
taken by the Holder pursuant hereto or any Other Holder pursuant to
any Other Agreement, shall be deemed to constitute the Holder or
any Other Holder as, and the Company acknowledges that the Holder
and the Other Holders do not so constitute, a partnership, an
association, a joint venture or any other kind of group or entity,
or create a presumption that the Holder and any Other Holder are in
any way acting in concert or as a group or entity with respect to
such obligations or the transactions contemplated by the Exchange
Documents, any other agreement or any matters, and the Company
acknowledges that the Holder and the Other Holders are not acting
in concert or as a group or entity, and the Company shall not
assert any such claim, with respect to such obligations or the
transactions contemplated by the Exchange Documents and any Other
Agreement. The decision of the Holder to acquire the Securities
pursuant to the Exchange Documents has been made by the Holder
independently of any Other Holder. The Holder acknowledges that no
Other Holder has acted as agent for the Holder in connection with
the Holder making its acquisition hereunder and that no Other
Holder will be acting as agent of the Holder in connection with
monitoring the Holder’s Securities or enforcing its rights
under the Exchange Documents. The Company and the Holder confirm
that the Holder has independently participated with the Company in
the negotiation of the transaction contemplated hereby with the
advice of its own counsel and advisors. The Holder shall be
entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this
Agreement or out of any of the Other Agreements, and it shall not
be necessary for any Other Holder to be joined as an additional
party in any proceeding for such purpose. To the
extent that any of the Other Holders and the Company enter into the
same or similar documents, all such matters are solely in the
control of the Company, not the action or decision of the Holder,
and would be solely for the convenience of the Company and not because it was required or requested to do
so by the Holder or any Other
Holder. For clarification purposes only and without implication
that the contrary would otherwise be true, the transactions
contemplated by the Exchange Documents include only the transaction
between the Company and the Holder and do not include any other
transaction between the Company and any Other
Holder.

 


 


(Signature
Pages Follow)


 


 


 


 


 




 

-5-








 






 


IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed as of the day and year
first above written.


 


MABVAX
THERAPEUTICS HOLDINGS, INC.


 


 


 


By:____________________________________


Name:


Title:


 


 


HOLDER:
[_________]


 


 


 


By:____________________________________


 


 


 


Address
for Notices:


__________________________________________


__________________________________________


__________________________________________


__________________________________________


 


Address
for delivery of Securities:


__________________________________________


__________________________________________


__________________________________________


__________________________________________


 


 


 




 

-6-








 






 


SCHEDULE
A


 


	

 


 


 


 


 


 



Name and Address 
of Holder

	

 


 


 


 


 



Number of Shares of Series H Preferred Stock to be
Exchanged

	

 


 


 


 



Number of Shares of Series G



Preferred Stock to be Issued


	
 

	
 

	
 







 


 


 


 


 



 

-7-







 






 


 


 EXHIBIT
A



 


[Attached
separately]



 


 








 

-8-







 





 

 

 

EXHIBIT
B


 

[Attached
separately]



 


 


 


 


 




 

-9-