Ex 10-2





 





 Exhibit
10.2







 



REGISTRATION RIGHTS AGREEMENT

 


THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of
January , 2018, among MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “Company”) and the
investor signatory hereto (the “Investor”). Capitalized
terms not otherwise defined herein shall have the meaning ascribed
to them in the Purchase Agreement (as defined below).


 


R
E C I T A L S

 


WHEREAS, the
Company and the Investor are parties to a Securities Purchase
Agreement (the “Purchase Agreement”),
dated as of the date hereof, as such may be amended and
supplemented from time to time;

 


WHEREAS, the
Investor’s obligations under the Purchase Agreement are
conditioned upon certain registration rights under the Securities
Act of 1933, as amended (the “Securities Act”);
and

 


WHEREAS, the
Investor and the Company desire to provide for the rights of
registration under the Securities Act as are provided herein upon
the execution and delivery of this Agreement by the Investor and
the Company.

 


NOW,
THEREFORE, in consideration of the promises, covenants and
conditions set forth herein, the parties hereto hereby agree as
follows:

 




1.

Registration
Rights.





 

1.1 Definitions. As used in this
Agreement, the following terms shall have the meanings set forth
below:

 

(a) “Commission” means the
United States Securities and Exchange Commission. per
share.

 

(b)   
“Common
Stock” means the Company’s common stock, $0.01
par value per share.

 

(c)    
“Effectiveness
Date” means the date that is the later of ninety 90
days after the Trigger Date or such date that the
Commission’s Exchange Act Section 8(a) examination (NY-9830
MabVax Therapeutics Holdings, Inc.) is deemed closed and no longer
pending.

 

(d)
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.

 

(e)
“Filing
Date” means the date that is thirty (30) days after
the Trigger Date.

 

(f) “Investor” means any
person owning Registrable Securities who becomes party to this
Agreement by executing a counterpart signature page hereto, or
other agreement in writing to be bound by the terms hereof, which
is accepted by the Company.


 


 






 


 




 

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(f) The terms
“register,” “registered” and
“registration” refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such
registration statement or document.


 

(g) “Registrable Securities”
means 100% of the Underlying Shares (as defined in the Purchase
Agreement) issued pursuant to the Purchase Agreement; provided, however, that Registrable
Securities shall not include any securities of the Company that
have previously been registered and remain subject to a currently
effective registration statement or which have been sold to the
public either pursuant to a registration statement or Rule 144, or
which have been sold in a private transaction in which the
transferor’s rights under this Section 1 are not assigned, or
which may be sold immediately without registration under the
Securities Act and without restriction or imitation pursuant to
Rule 144 and without the requirement to be in compliance with Rule
144(c)(1).

 

(h) “Rule 144” means Rule 144
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.

 

(i) “Rule 415” means Rule 415
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.

 

(j) “Trigger Date” means the
closing of the transactions contemplated by the Purchase
Agreement.

 




1.2

Company
Registration.





 

(a) On or prior to the
Filing Date, the Company shall prepare and file with the Commission
a registration statement covering the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415. The
registration statement shall be on Form S-1 or, if the Company is
so eligible, on Form S-3 (except if the Company is not then
eligible to register for resale the Registrable Securities on Form
S-1 or Form S-3, as the case may be, in which case such
registration shall be on another appropriate form in accordance
herewith) and shall contain (unless otherwise directed by the
Investor) substantially the “Plan of Distribution”
attached hereto as Annex
A. The Company shall cause the registration statement to
become effective and remain effective as provided herein. The
Company shall use its reasonable best efforts to cause the
registration statement to be declared effective under the
Securities Act as soon as possible and, in any event, by the
Effectiveness Date. The Company shall use its reasonable best
efforts to keep the registration statement continuously effective
under the Securities Act until all Registrable Securities covered
by such registration statement have been sold, or may be sold
without the requirement to be in compliance with Rule 144(c)(1) and
otherwise without restriction or limitation pursuant to Rule 144,
as determined by the counsel to the Company (the
“Effectiveness
Period”).

 

(b) The Company shall
pay to the Investor a fee equal to 1% of the Investor’s
investment, payable in cash, for every thirty (30) day period, up
to a maximum of 12%, (i) following the
Filing Date that the registration statement has not been filed and
(ii) following the Effectiveness Date that the registration
statement has not been declared effective; provided, however, that the Company shall
not be obligated to pay any such liquidated damages if (i) the
Registrable Securities that would other be covered by the
registration statement may be sold without the requirement to be in
compliance with Rule 144(c)(1) and otherwise without restriction or
limitation pursuant to Rule 144 under the Securities Act or (ii)
the Company is unable to fulfill its registration obligations as a
result of rules, regulations, positions or releases issued or
actions taken by the Commission pursuant to its authority with
respect to “Rule 415”, and the Company registers at
such time the maximum number of shares of Common Stock permissible
upon consultation with the staff of the Commission.

 


 


 




 

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(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, the Company shall file as
soon as reasonably practicable an additional registration statement
covering the resale of not less than the number of such Registrable
Securities.

 

(d) The Company shall
bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities
with respect to the registrations pursuant to this Section 1.2 for
each Investor, including (without limitation) all registration,
filing and qualification fees, printer’s fees, accounting
fees and fees and disbursements of counsel for the Company, but
excluding any brokerage or underwriting fees, discounts and
commissions relating to Registrable Securities and fees and
disbursements of counsel for the Investor.

 

(e) If at any time
during the Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities,
then the Company shall notify each Investor in writing at least
fifteen (15) days prior to the filing of any registration statement
under the Securities Act, in connection with a public offering of
shares of Common Stock (including, but not limited to, registration
statements relating to secondary offerings of securities of the
Company but excluding any registration statements (i) on Form S-4
or S-8 (or any successor or substantially similar form), or of any
employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to any such plan, or a
dividend reinvestment plan, (ii) otherwise
relating to any employee, benefit plan or corporate reorganization
or other transactions covered by Rule 145 promulgated under the
Securities Act, (iii) on any registration form which does not
permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the resale of the Registrable Securities. In the
event an Investor desires to include in any such registration
statement all or any part of the Registrable Securities held by
such Investor, the Investor shall within ten (10) days after the
above-described notice from the Company, so notify the Company in
writing, including the number of such Registrable Securities such
Investor wishes to include in such registration statement. If an
Investor decides not to include all of its Registrable Securities
in any registration statement thereafter filed by the Company such
Investor shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement
or registration statements as may be filed by the Company with
respect to the offering of the securities, all upon the terms and
conditions set forth herein.

 

1.3 Obligations of the Company.
Whenever required under this Section 1 to effect the registration
of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:


 

(a) Prepare and file
with the Commission a registration statement with respect to such
Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective and to keep such
registration statement effective during the Effectiveness
Period;

 


 


 




 

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(b) Prepare and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;


 

(c) Furnish to the
Investor such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable
Securities owned by them (provided that the Company would not be
required to print such prospectuses if readily available to
Investor from any electronic service, such as on the EDGAR filing
database maintained at www.sec.gov);


 

(d) Use its reasonable
best efforts to register and qualify the securities covered by such
registration statement under such other securities’ or blue
sky laws of such jurisdictions as shall be reasonably requested by
the Investor; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions;

 

(e) In the event of any
underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering (each
Investor participating in such underwriting shall also enter into
and perform its obligations under such an agreement);

 

(f) Promptly notify
each Investor holding Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act,
within one business day, (i) of the effectiveness of such
registration statement, or (ii) of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then
existing;

 

(g) Cause all such
Registrable Securities registered pursuant hereto to be listed on
each securities exchange or nationally recognized quotation system
on which similar securities issued by the Company are then listed;
and

 

(h) Provide a transfer
agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration.

 

1.4 Furnish Information. It shall
be a condition precedent to the Company’s obligations to take
any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Investor that such Investor
shall furnish to the Company such information regarding such
Investor, the Registrable Securities held by such Investor, and the
intended method of disposition of such securities in the form
attached to this Agreement as Annex B, or as otherwise reasonably
required by the Company or the managing underwriters, if any, to
effect the registration of such Investor’s Registrable
Securities.

 


 


 




 

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1.5 Delay of Registration. No
Investor shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.

 

1.6 Indemnification.

 

(a) To the extent
permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for
such Investor and each person, if any, who controls such Investor
or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become
subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively, a “Violation”): (i) any
untrue statement or alleged untrue statement of a material fact
contained in a registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments
or supplements thereto (collectively, the “Filings”), (ii) the
omission or alleged omission to state in the Filings a material
fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay any legal or other
expenses reasonably incurred by any person to be indemnified
pursuant to this Section 1.6(a) in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided,
however, that the
indemnity agreement contained in this Section 1.6(a) shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Investor,
underwriter or controlling person.

 

(b) To the extent
permitted by law, each Investor will indemnify and hold harmless
the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or
the Exchange Act, any underwriter, any other Investor selling
securities in such registration statement and any controlling
person of any such underwriter or other Investor, against any
losses, claims, damages or liabilities (joint or several) to which
any of the foregoing persons may become subject under the
Securities Act, the Exchange Act or other federal or state
securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are
based upon any Violation,
in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written
information furnished by such Investor expressly for use in
connection with such registration; and each such Investor will pay
any legal or other expenses reasonably incurred by any person to be
indemnified pursuant to this Section 1.6(b) in connection with
investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the indemnity
agreement contained in this Section 1.6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Investor (which consent shall not be unreasonably
withheld); provided, however, in no event shall any
indemnity under this subsection 1.6(b) exceed the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.

 


 


 




 

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(c) Promptly after
receipt by an indemnified party under this Section 1.6 of notice of
the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.6, deliver
to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this Section 1.6, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than
under this Section 1.6.

 

(d) If the
indemnification provided for in Sections 1.6(a) and (b) is held by
a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in
connection with the statements or omissions or alleged statements
or omissions that resulted in such loss, liability, claim or
expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. In no event shall any Investor
be required to contribute an amount in excess of the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.

 

(e) The obligations of
the Company and Investor under this Section 1.6 shall survive the
completion of any offering of Registrable Securities in a
registration statement under this Section 1, and
otherwise.

 


 


 




 

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1.7 Reports Under Securities Exchange
Act. With a view to making available the benefits of certain
rules and regulations of the Commission, including Rule 144, that
may at any time permit an Investor to sell securities of the
Company to the public without registration or pursuant to a
registration on Form S-1 or Form S-3, until all Registrable
Securities have been sold by the Investor, the Company agrees
to:

 

(a) make and keep
public information available, as those terms are understood and
defined in Rule 144;

 

(b) use reasonable best
efforts to file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities
Act and the Exchange Act; and

 

(c) furnish to any
Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 the
Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant
to Form S-1 or Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in
availing any Investor of any rule or regulation of the Commission
that permits the selling of any such securities without
registration or pursuant to such form.

 

1.8 Transfer or Assignment of Registration
Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 1 may be
transferred or assigned, but only with all related obligations, by
an Investor to a transferee or assignee who (a) acquires at least
25,000 shares of Common Stock (or such equivalent amount of
Preferred Shares) (subject to appropriate adjustment for stock
splits, stock dividends and combinations) from such transferring
Investor, unless waived in writing by the Company, or (b) holds
Registrable Securities immediately prior to such transfer or
assignment; provided, that
in the case of (a), (i) prior to such transfer or assignment, the
Company is furnished with written notice stating the name and
address of such transferee or assignee and identifying the
securities with respect to which such registration rights are being
transferred or assigned, (ii) such transferee or assignee agrees in
writing to be bound by and subject to the terms and conditions of
this Agreement and (iii) such transfer or assignment shall be
effective only if immediately following such transfer or assignment
the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act.

 




2.

Legend.





 

(a) Each certificate
representing Shares and/or Underlying Shares held by the Investor
shall be endorsed with the following legend:

 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY
SUCH SECURITIES.”

 


 




 

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(b) The legend set
forth above shall be removed, and the Company shall issue a
certificate without such legend to the transferee of the Shares
and/or Underlying Shares represented thereby, if, unless otherwise
required by state securities laws, (i) such Shares and/or
Underlying Shares have been sold under an effective registration
statement under the Securities Act, (ii) in connection with a sale,
assignment or other transfer, such holder provides the Company with
an opinion of counsel, reasonably acceptable to the Company, to the
effect that such sale, assignment or transfer is being made
pursuant to an exemption from the registration requirements of the
Securities Act, or (iii) such holder provides the Company with
reasonable assurance that the Shares and/or Underlying Shares are
being sold, assigned or transferred pursuant to Rule 144 or Rule
144A under the Securities Act.


 




3.

Miscellaneous.





 

3.1 Governing Law. The parties
hereby agree that any dispute which may arise between them arising
out of or in connection with this Agreement shall be adjudicated
only before a federal court located in the State of New York and
they hereby submit to the exclusive jurisdiction of the federal and
state courts of the State of New York with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any
objection they now or hereafter may have respecting the venue of
any such action or proceeding brought in such a court or respecting
the fact that such court is an inconvenient forum, relating to or
arising out of this Agreement or any acts or omissions relating to
the registration of the securities hereunder, and consent to the
service of process in any such action or legal proceeding by means
of registered or certified mail, return receipt requested, in care
of the address set forth below or such other address as the
undersigned shall furnish in writing to the other.

 

3.2 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY
JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY

 

3.3 Waivers and Amendments. This
Agreement may be terminated and any term of this Agreement may be
amended or waived (either generally or in a particular instance and
either retroactively or prospectively) with the written consent of
the Company and the Investor. Notwithstanding the foregoing,
additional parties may be added as Investors under this Agreement,
and the definition of Registrable Securities expanded, with the
written consent of the Company and the Investor. No such amendment
or waiver shall reduce the aforesaid percentage of the Registrable
Securities, the holders of which are required to consent to any
termination, amendment or waiver without the consent of the record
holders of all of the Registrable Securities. Any termination,
amendment or waiver effected in accordance with this Section 3.3
shall be binding upon each holder of Registrable Securities then
outstanding, each future holder of all such Registrable Securities
and the Company.

 


 


 




 

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3.4 Successors and Assigns. Except
as otherwise expressly provided herein, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the
parties hereto.


 

3.5 Entire Agreement. This
Agreement constitutes the full and entire understanding and
agreement among the parties with regard to the subject matter
hereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except
as specifically set forth herein.


 

3.6 Notices. All notices and other
communications required or permitted under this Agreement shall be
in writing and shall be delivered personally by hand or by
overnight courier, mailed by United States first-class mail,
postage prepaid, sent by facsimile or sent by electronic mail
directed (a) if to an Investor, at such Investor’s address,
facsimile number or electronic mail address set forth in the
Company’s records, or at such other address, facsimile number
or electronic mail address as such Investor may designate by ten
(10) days’ advance written notice to the other parties hereto
or (b) if to the Company, to its address, facsimile number or
electronic mail address set forth on its signature page to this
Agreement and directed to the attention of its President, or at
such other address, facsimile number or electronic mail address as
the Company may designate by ten (10) days’ advance written
notice to the other parties hereto. All such notices and other
communications shall be effective or deemed given upon delivery, on
the date that is three (3) days following the date of mailing, upon
confirmation of facsimile transfer or upon confirmation of
electronic mail delivery.

 

3.7 Interpretation. The words
“include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without limitation.”
The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or
interpreting this Agreement.

 

3.8 Severability. If one or more
provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this
Agreement, and the balance of the Agreement shall be interpreted as
if such provision were so excluded, and shall be enforceable in
accordance with its terms.

 


 

3.9 Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall
be an original, but all of which together shall constitute one
instrument.

 

3.10 Telecopy
Execution and Delivery. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more
parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar
electronic transmission device pursuant to which the signature of
or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.


 

 

 


[SIGNATURE
PAGE FOLLOWS]


 


 




 

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IN
WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, as of the date, month and
year first set forth above.

 


 

 


MABVAX
THERAPEUTICS HOLDINGS, INC.


 


 

 


 



By:                                                               



 







Name:
                                                              



 







Title:
                                                             



 








Address for
notice:






 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

 


[COMPANY
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]


 


 




 

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IN
WITNESS WHEREOF, the undersigned Investor has executed this
Agreement as of the date, month and year that such Investor became
the owner of Registrable Securities.

 


 

 


“Investor”


 

 


 

 


 

 

By:                                                               

Name


Title:


 


 

 



Address:


 

 


 


 

 


 


 

 


 

 


 

 



Telephone:                                                                





 


 

 



Facsimile:                                                                 





 


 

 



Email:                                                                







 





 


 


 


 


 


 


 


 


 


 


 


 

 


[INVESTOR
COUNTERPART SIGNATURE PAGE TO REGISTRATION RIGHTS
AGREEMENT]


 


 


 




 

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Annex A



Plan of Distribution

 


Each
selling stockholder of the common stock and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock on The NASDAQ Capital
Market or any other stock exchange, market or trading facility on
which the shares 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
shares:

 




●

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





 




●

block trades in
which the broker-dealer will attempt to sell the shares 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 entered into after the effective date of the registration
statement of which this prospectus is a part;





 




●

broker-dealers may
agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;





 




●

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 shares under Rule 144 under the
Securities Act of 1933, as amended, 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 shares, 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 common stock 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 common stock in the course of hedging
the positions they assume. The selling stockholders may also sell
shares of the common stock short and deliver these securities to
close out their short positions, or loan or pledge the common stock
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
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).

 


 


 




 

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The
selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be
“underwriters” within the meaning of the Securities Act
of 1933, as amended, 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 shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities
Act of 1933, as amended. Each selling stockholder has informed us
that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to
distribute the common stock.

 


We are
required to pay certain fees and expenses incurred by us incident
to the registration of the shares. We have agreed to indemnify the
selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act of
1933, as amended.

 


Because
selling stockholders may be deemed to be “underwriters”
within the meaning of the Securities Act of 1933, as amended, they
will be subject to the prospectus delivery requirements of the
Securities Act of 1933, as amended, including Rule 172 thereunder.
In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act of
1933, as amended may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting
in connection with the proposed sale of the resale shares by the
selling stockholders.

 


We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the shares may be resold by the selling
stockholders without registration and without the requirement to be
in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144 or (ii) all of the shares have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
shares 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 shares 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 Securities Exchange Act
of 1934, as amended, any person engaged in the distribution of the
resale shares 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
Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, including Regulation M,
which may limit the timing of purchases and sales of shares 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 of 1933, as amended).


 




 

-13-








 





 



Annex B


 


Selling
Securityholder Notice and Questionnaire


 


The
undersigned beneficial owner of common stock (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.

 


Certain
legal consequences arise from being named as a selling
securityholder 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 securityholder in the Registration Statement and
the related prospectus.

 


NOTICE

 


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


 


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 Securityholder


 

 


 

 


 

 

(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):




 

-14-








 





 


 




2.

Address
for Notices to Selling Securityholder:





 


 


 

 


 


	
 


 


Telephone:


	

Fax:


	

Contact
Person:






 




3.

Broker-Dealer
Status:






 

(a) Are you a
broker-dealer?


 



Yes                       

No





 

(b) If
“yes” to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?


 



Yes                       

No





 


Note:
If “no” to Section 3(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






 

(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 3(d), the Commission’s staff
has indicated that you should be identified as an underwriter in
the Registration Statement.


 

4. Beneficial
Ownership of Securities of the Company Owned by the Selling
Securityholder.

 



Except as set forth below in this Item 4, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Purchase
Agreement.


 




 

-15-








 





 



(a)            

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






 

 


 

 




5.

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:


 

 


 


 

 


The
undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the
Registration Statement remains effective.


 


By
signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5
and the inclusion of such information in the Registration Statement
and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related
prospectus.


 


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:

 


[SIGNATURE
PAGE FOR SELLING SECURITYHOLDER NOTICE AND
QUESTIONNAIRE]


 


 




 

-16-