Ex 10-1





 











 Exhibit
10.1

 




SECURITIES PURCHASE AGREEMENT



 


This Securities Purchase Agreement (this
“Agreement”)
is dated as of January __, 2018 between MabVax Therapeutics
Holdings, Inc., a Delaware corporation (the
“Company”),
and each purchaser identified on the signature pages hereto (each,
including its successors and permitted assigns, a
“Purchaser”
and collectively, the “Purchasers”).


 



PREAMBLE



 


WHEREAS, subject to the terms and conditions set
forth in this Agreement and pursuant to Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506
promulgated thereunder or Regulation S promulgated under the
Securities Act, the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more
fully described in this Agreement (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 each Purchaser agree as follows:



 



ARTICLE I.



DEFINITIONS



 


1.1       Definitions.
In addition to the terms defined elsewhere in this Agreement, for
all purposes of this Agreement, the following terms have the
meanings set forth in this Section 1.1:



 


“Accredited
Investor” shall have the
meaning ascribed to it in Section 3.2(c).


 


“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed
under Rule 405 under the Securities Act.


 


“Board of
Directors” means the
board of directors of the Company.


 


“Business
Day” means any day except
any Saturday, any Sunday, any day which is a federal legal holiday
in the United States or any day on which banking institutions in
the State of New York are authorized or required by law or other
governmental action to close.


 


“Certificate of
Designation” means the
Certificate of Designations, Preferences and Rights of the
Preferred Shares to be filed prior to the Closing by the Company
with the Secretary of State of Delaware, in the form of
Exhibit
A attached
hereto.


 


“Closing”
means the closing of the purchase and sale of the Securities
pursuant to Section 2.1.


 


“Closing
Date” means the Trading
Day on which all of the Transaction Documents have been executed
and delivered by the applicable parties thereto, and all conditions
precedent to (i) the Purchasers’ obligations to pay the
Subscription Amount at such Closing and (ii) the Company’s
obligations to deliver the Securities to be issued and sold at such
Closing, in each case, have been satisfied or waived, but in no
event later than the third Trading Day following the date hereof in
the case of such Closing.


 


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


 


“Common
Stock” means the common
stock of the Company, $0.01 par value per share, and any other
class of securities into which such securities may hereafter be
reclassified or changed.


 


 




 

-1-








 






 


“Company
Counsel” means such firm
or firms as may from time to time provide legal services to the
Company.


 


 “Conversion
Shares” means the shares
of the Company’s Common Stock issuable upon conversion of the
Preferred Shares.


 


 “Exchange
Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


 “FCPA”
means the Foreign Corrupt Practices Act of 1977, as
amended.


 


 “GAAP”
shall have the meaning ascribed to such term in Section
3.1(g).


 


 “Liens”
means a lien, charge pledge, security interest, encumbrance, right
of first refusal, preemptive right or other
restriction.


 


“Majority in
Interest” shall have the
meaning ascribed to such term in Section 5.5.


 


“Material Adverse
Effect” shall have the
meaning assigned to such term in Section
3.1(b).


 


“Maximum Rate” shall have
the meaning ascribed to such term in Section 5.21.


 


 “Offering”
shall have the meaning ascribed to such term in the
Preamble.


 


“Per Unit Purchase
Price” equals $0.75 per
Unit, subject to adjustment for reverse and forward stock splits,
stock dividends, and other similar transactions affecting the
Common Stock that occur after the date of this Agreement and prior
to Closing.


 


“Person”
means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any
kind.


 


“Preferred
Shares” means the
Company’s newly designated Series M Convertible Preferred
Stock, par value $0.01 per share, which are convertible into shares
of Common Stock, with such rights and designations as set forth in
the form of Certificate of Designations.


 


“Proceeding”
means an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or
partial proceeding, such as a deposition), whether commenced or
threatened.


 


“Registration Rights
Agreement” means the
Registration Rights Agreement, dated the date hereof, among the
Company and the Purchasers, in the form of Exhibit C
attached hereto.


 


“Registration
Statement” means a
registration statement meeting the requirements set forth in the
Registration Rights Agreement and covering the resale of the Shares
and Warrant Shares by each Purchaser as provided for in the
Registration Rights Agreement.


 


“Required
Approvals” shall have the
meaning ascribed to such term in Section
3.1(e).


 


“Rule
144” means Rule 144
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.


 


 




 

-2-








 






 


“SEC
Reports” shall
mean all reports, schedules, forms, statements and other
documents filed by the Company under the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the three (3)
months preceding the date hereof, including the exhibits thereto
and documents incorporated by reference therein, which have been
available on EDGAR not less than five (5) days before the Closing
Date.


 


“Securities”
means the Units, Shares, Conversion Shares, the Warrants and the
Warrant Shares.


 


“Securities
Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder.


 


“Securities Laws” means
the securities laws of the United States or any state thereof and
the rules and regulations promulgated thereunder.

 


“Shares”
means the shares of Common Stock or, at the election of each
Purchaser, Preferred Shares delivered to the Purchasers, as the
case may be, pursuant to this Agreement in connection with the
Closing.


 


“Short
Sales” means all
“short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the
location and/or reservation of borrowable shares of Common
Stock). 


 


“Subscription
Amount” means, as to each
Purchaser at the Closing, the aggregate amount of cash
consideration to be paid for Units purchased hereunder at the
Closing as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in
immediately available funds.


 


“Subsidiary”
means any subsidiary of the Company and shall, where applicable and
with regard to future events, also include any direct or indirect
subsidiary of the Company formed or acquired after the date
hereof.


 


“Termination Date” shall
have the meaning ascribed to such term in Section 2.1.

 


“Trading Day” means a day
on which the principal Trading Market is open for trading;
provided, that in the event that the Common Stock is not listed or
quoted for trading on a Trading Market on the date in question,
then Trading Day shall mean a Business Day.

 


“Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE MKT,
the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the New York Stock Exchange, the OTC Bulletin
Board, the OTCQB or the OTCQX (or any successors to any of the
foregoing).


 


“Transaction
Documents” means this
Agreement, the Certificate of Designations, the Registration Rights
Agreement, the Warrants, all exhibits and schedules thereto and
hereto and any other documents or agreements executed in connection
with the transactions contemplated hereunder.


 


“Transfer
Agent” means
Computershare Trust Company, N.A. Its address is 250 Royall Street,
Canton, MA 02021, and any successor transfer agent of the
Company.


 


“Unit Purchase
Price” shall have the
meaning ascribed to such term in Section 2.1.


 


 




 

-3-








 






 


“VWAP”
means, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted
average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is
then listed or quoted as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New
York City time)), (b)  if the OTC Bulletin Board is not a
Trading Market, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC
Bulletin Board, (c) if the Common Stock is not then listed or
quoted for trading on the OTC Bulletin Board and if prices for the
Common Stock are then reported on the OTCQX, OTCQB or OTC Pink
Marketplace maintained by the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting
prices), the volume weighted average price of the Common Stock on
the first such facility (or a similar organization or agency
succeeding to its functions of reporting prices), or (d) in
all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by
the Purchasers of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.


 


“Warrants”
means, collectively, the Common Stock purchase warrants delivered
to the Purchasers at the Closing in the form of Exhibit B
attached hereto.


 


“Warrant
Shares” means the shares
of Common Stock issuable upon exercise of the Warrants,
provided that any share of Common Stock issued upon exercise of the
Warrants shall not constitute an issued Warrant Share for purposes
of this Agreement after such share has been irrevocably sold
pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 without further restrictions
or conditions to transfer pursuant to Rule 144.



 



ARTICLE II.



PURCHASE AND SALE



 


2.1           Closing. 
On one or more Closing Dates, upon the terms and subject to the
conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the
Company agrees to sell, and each of the Purchasers, severally and
not jointly, agrees to purchase the Units for an aggregate
purchase price up to a maximum of $2,750,000
(“Purchase
Price”), each consisting
of one share of Common Stock (or, at the election of any Purchaser
who, as a result of the ownership of the Common Stock would hold in
excess of 4.99% of the Company’s issued and outstanding
Common Stock, the equivalent amount of Preferred Shares) together
with Warrants to purchase in the aggregate shares of Common Stock
equal to seventy percent (70%) of the subscribed Shares (in the
event a Purchaser elects to receive Preferred Shares, seventy
percent (70%) of the Conversion Shares) (each such purchase and
sale being the “Closing”),
at the Per Unit Purchase Price. Prior to the Closing, each
Purchaser shall deliver to the Company, inter alia,
such Purchaser’s Subscription Amount as set forth on the
signature page hereto executed by such Purchaser by a wire transfer
of immediately available funds, and the Company shall, on the
Closing Date, cause the Company to deliver to each
Purchaser, inter alia,
a certificate representing the number of Shares and Warrants
purchased by each such Purchaser at the Closing as determined
pursuant to Section 2.2(a). The Company and each Purchaser shall
also deliver the other items set forth in Section 2.2 deliverable
at the Closing. Upon satisfaction of the covenants and conditions
set forth in Sections 2.2 and 2.3, the Closings shall occur at the
offices of Company Counsel or such other location as the parties
shall mutually agree. Notwithstanding anything herein to the
contrary, each Closing Date shall occur on or before February 28,
2018 (such outside date, “Termination Date”). If
any Closing is not held on or before the Termination Date, (i) all
subscription documents executed by the Company or a Purchaser shall
be returned to the Company or such Purchaser, as applicable, and
(ii) each Subscription Amount shall be returned, without interest
or deduction to the Purchaser who delivered such Subscription
Amount. If a Closing is not held on or before the Termination Date,
the Company shall cause all subscription documents and funds to be
returned, without interest or deduction to each prospective
Purchaser.


 


 




 

-4-








 






 


2.2          Deliveries.



 


(a)           On
the Closing Date, the Company shall deliver or cause to be
delivered to the Purchasers the following:



 


(i)    
this Agreement and the Registration Rights Agreement each duly
executed by the Company, to the Purchasers;


 


(ii)
certificates evidencing a number of applicable Shares equal to such
Purchaser’s Subscription Amount divided by the Unit Purchase
Price registered in the name of such Purchaser;


 


(iii)
a Warrant registered in the name of such Purchaser to purchase up
to a number of shares of Common Stock equal to 70% of such
Purchaser’s shares of Common Stock purchased (or, if
Preferred Shares elected, Conversion Shares) on the date hereof,
with an exercise price equal to $0.90, subject to adjustment
therein; and


 


(iv)
file stamped evidence from the Secretary of State of the State of
Delaware of the Certificate of Designation.


 


(b)          On
or prior to the applicable Closing Date, each Purchaser shall
deliver or cause to be delivered to the Company the
following:



  

(i) such
Purchaser’s Subscription Amount by wire transfer to the
account previously specified by the Company; and


 

(ii) this
Agreement and the Registration Rights Agreement each duly executed
by the Purchaser



  


2.3           Closing
Conditions.



 


(a)           The
obligations of the Company hereunder in connection with the
Closing, unless waived by a Majority in Interest, are subject to
the following conditions being met:



 


(i)          the
accuracy in all material respects when made and on the Closing Date
of the representations and warranties of the Purchasers contained
herein (unless as of a specific date therein in which case they
shall be accurate as of such date);



 


(ii)         all
conditions, obligations, covenants and agreements of each Purchaser
under this Agreement required to be performed at or prior to the
Closing Date shall have been performed in all material respects;
and



 


(iii)      the
delivery by each Purchaser of the items set forth in Section 2.2(b)
of this Agreement.


 


(b)              The
respective independent obligations of a Purchaser hereunder in
connection with the Closing, unless waived by such Purchaser, are
subject to the following conditions being met:



 


(i)           the
accuracy in all material respects (when made and on the Closing
Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein in which case they
shall be accurate as of such date);



 


(ii)          all
Required Approvals, obligations, covenants and agreements of the
Company under this Agreement required to be performed at or prior
to the Closing Date shall have been performed;



 


(iii)         the
delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement; and



 


(iv)         there
shall have been no Material Adverse Effect with respect to the
Company since the date hereof and the Closing Date.


 


 


 




 

-5-








 






 



ARTICLE III.



REPRESENTATIONS AND WARRANTIES



 


3.1          Representations
and Warranties of the Company.
Except as set forth in the SEC Reports, which shall be deemed a
part hereof, the Company hereby makes the following representations
and warranties to each Purchaser as of the date of this Agreement
and as of the Closing Date:



 


(a)           Subsidiaries. 
All of the direct and indirect subsidiaries of the Company are set
forth in the SEC Reports. The Company owns, directly or indirectly,
a majority of the capital stock or other equity interests of each
Subsidiary free and clear of any Liens, subject to restrictions
under applicable laws, and all of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.


 


(b)           Organization
and Qualification.  The
Company and each of the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization,
with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.  Neither the Company nor any Subsidiary is in
violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other
organizational or charter documents.  Each of the Company and
the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not reasonably be expected to result in: (i) a
material adverse effect on the legality, validity or enforceability
of any Transaction Document, (ii) a material adverse effect on the
results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken
as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a
timely basis its obligations under any Transaction Document (any of
(i), (ii) or (iii), a “Material Adverse
Effect”) and to the best
of the Company’s knowledge no Proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.



 


(c)           Authorization;
Enforcement.  The Company
has the requisite corporate power and authority to enter into and
to consummate the transactions contemplated by this Agreement and
each of the other Transaction Documents and otherwise to carry out
its obligations hereunder and thereunder.  The execution and
delivery of each of this Agreement and the other Transaction
Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Company and
no further action is required by the Company, the Board of
Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required
Approvals. This Agreement and each other Transaction Document
to which it is a party has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with
the terms hereof and thereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except: (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other laws of general
application affecting enforcement of creditors’ rights
generally, and (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable
remedies.


 


(d)           No
Conflicts.  The execution,
delivery and performance by the Company of this Agreement and the
other Transaction Documents to which it is a party, the issuance
and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby do not and will not:
(i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, (ii) conflict
with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) by the Company or any
Subsidiary under, result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including Securities Laws), or
by which any property or asset of the Company or a Subsidiary is
bound or affected; except in the case of each of clauses (ii) and
(iii), such as reasonably be expected to result in a Material
Adverse Effect.



 


 




 

-6-








 






 


(e)           Filings,
Consents and Approvals.  The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other provincial or foreign or
domestic federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and
performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.5 of this
Agreement, (ii) the filing with the Commission pursuant to the
Registration Rights Agreement, (iii) the notice and/or
application(s) to each applicable Trading Market for the issuance
and sale of the Securities and the listing of the Shares and
Underlying Shares (as defined below) for trading thereon in the
time and manner required thereby, all of which shall have been
effectuated prior to the Closing, (iv) the filing of the
Certificate of Designation with the Secretary of State of the State
of Delaware, (v) the
filing of a Form D with the Commission and (vi) the consent of the
lead investor in the May 17, 2017 public offering (collectively,
the “Required
Approvals”).



 


(f)           Issuance
of the Securities.  The
Securities are restricted securities and have been duly authorized
and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid
and nonassessable, free and clear of all Liens other than
restrictions on transfer provided for under the Securities Act, the
Exchange Act, in the Transaction Documents and as provided
herein.


 


(g)           Form
8-K; Financial Statements.
The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company
under the Securities Act and the Exchange Act, including pursuant
to Sections 12(b), 12(g), 13(a) or 15(d) thereof, for the six (6)
months preceding the date hereof. The
Form 8-K described in Section 4.3, upon its filing, will comply in
all material respects with the requirements of the Exchange Act,
and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
latest audited financial statements of the Company included in the
SEC Reports, if any, comply in all material respects with
applicable accounting requirements and the rules and regulations of
the Commission with respect thereto as in effect at the time of
filing.  Such financial statements have been prepared in
accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods
involved (“GAAP”),
except as may be otherwise specified in such financial statements
or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP and are subject to
normal, immaterial, year-end audit adjustments, and fairly present
in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.


 


(h)          Certain
Fees. There are no brokerage or
finder’s fees or commissions that are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by the
Transaction Documents. The Purchasers shall have no obligation with
respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions
contemplated by the Transaction Documents


 




 

-7-








 






 


3.2          Representations
and Warranties of the Purchasers.  Each Purchaser, for itself and for no
other Purchaser, hereby represents and warrants as of the date
hereof and as of the Closing Date to the Company as follows (unless
as of a specific date therein):



 


(a)           Organization;
Authority.  Such
Purchaser is either an individual or an entity duly incorporated or
formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right,
corporate, partnership, limited liability company or similar power
and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution and
delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as
applicable, on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with
the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance
with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by
applicable law. If such Purchaser is an entity, the address of its
principal place of business is as set forth on the signature page
hereto, and if such Purchaser is an individual, the address of its
principal residence is as set forth on the signature page
hereto.



 


(b)           Understandings
or Arrangements. Such Purchaser understands that the
Securities are “restricted securities” and have not
been registered under the Securities Act or any applicable state
securities law and is acquiring the Securities as principal for its
own account and not with a view to or for distributing or reselling
such Securities or any part thereof in violation of the Securities
Act or any applicable state securities law, has no present
intention of distributing any of such Securities in violation of
the Securities Act or any applicable state securities law and has
no direct or indirect arrangement or understandings with any other
persons to distribute or regarding the distribution of such
Securities in violation of the Securities Act or any applicable
state securities law (this representation and warranty not limiting
such Purchaser’s right to sell the Securities pursuant to a
registration statement or otherwise in compliance with applicable
federal and state securities laws). Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its
business.



 


(c)           Purchaser
Status.  At the
time such Purchaser was offered the Securities, it was, and as of
the date hereof it is, and on each date on which it exercises any
Warrants it will be either: (i) an “accredited
investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act or (ii) a
“qualified institutional buyer” as defined in Rule
144A(a) under the Securities Act. Such Purchaser is not required to
be registered as a broker-dealer under Section 15 of the Exchange
Act. Such Purchaser has the authority and is duly and legally
qualified to purchase and own the Securities. Such Purchaser is
able to bear the risk of such investment for an indefinite period
and to afford a complete loss thereof. Such Purchaser has provided
the information in the Accredited Investor Questionnaire attached
hereto as Exhibit D
(the “Investor
Questionnaire”). The information set forth on the
signature pages hereto and the Investor Questionnaire regarding
such Purchaser is true and complete in all respects. Except as
disclosed in the Investor Questionnaire, such Purchaser has had no
position, office or other material relationship within the past
three years with the Company or Persons (as defined below) known to
such Purchaser to be affiliates of the Company, and is not a member
of the Financial Industry Regulatory Authority or an
“associated person” (as such term is defined under the
FINRA Membership and Registration Rules Section
1011). 


 


(d)           Experience
of Such Purchaser. 
Such Purchaser, either alone or together with its representatives,
has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Securities, and has so
evaluated the merits and risks of such investment. Such Purchaser
is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete
loss of such investment.


 




 

-8-








 






 






 


(e)           Information
on Company. Such Purchaser has been furnished with or has
had access to the EDGAR Website of the Commission to the
Company’s filings made with the Commission during the period
from the date that is two (2) years preceding the date hereof
through the tenth business day preceding the Closing Date in which
such Purchaser purchases Securities hereunder, including but not
limited to the Risk Factor section of the Company’s filings
and reports made with the Commission.   In addition,
such Purchaser may have received in writing from the Company such
other information concerning its operations, financial condition
and other matters as such Purchaser has requested, identified
thereon as OTHER WRITTEN INFORMATION (such other information is
collectively, the “Other Written
Information”), and considered all factors such
Purchaser deems material in deciding on the advisability of
investing in the Securities.  Such Purchaser was afforded
(i) the opportunity to ask such questions as such Purchaser deemed
necessary of, and to receive answers from, representatives of the
Company concerning the merits and risks of acquiring the
Securities; (ii) the right of access to information about the
Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable
such Purchaser to evaluate the Securities; and (iii) the
opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense
that is necessary to make an informed investment decision with
respect to acquiring the Securities.



 


(f)           Certain
Transactions and Confidentiality.  Such Purchaser understands and
agrees that the Securities have not been registered under the
Securities Act or any applicable state securities laws, by reason
of their issuance in a transaction that does not require
registration under the Securities Act, and that such Securities
must be held indefinitely unless a subsequent disposition is
registered under the Securities Act or any applicable state
securities laws or is exempt from such registration. Such Purchaser
understands and agrees that the Securities are being offered and
sold to such Purchaser in reliance on specific exemptions from the
registration requirements of United States federal and state
securities laws and regulations and that the Company is relying in
part upon the truth and accuracy of, and such Purchaser’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Purchaser set forth
herein in order to determine the availability of such exemptions
and the eligibility of such Purchaser to acquire the
Securities.



 


(g)           Communication
of Offer. Such Purchaser is not purchasing the Securities as
a result of any “general solicitation” or
“general advertising,” as such terms are defined in
Regulation D, which includes, but is not limited to, any
advertisement, article, notice or other communication regarding the
Securities published in any newspaper, magazine or similar media or
on the internet or broadcast over television, radio or the internet
or presented at any seminar or any other general solicitation or
general advertisement.


 



 

-9-







 






 


(h)     
     No Governmental Review. Such
Purchaser understands that no United States federal or state agency
or any other governmental or state agency has passed on or made
recommendations or endorsement of the Securities or the suitability
of the investment in the Securities nor have such authorities
passed upon or endorsed the merits of the offering of the
Securities.


 


(i)             
No Conflicts. The
execution, delivery and performance of this Agreement and
performance under the other Transaction Documents and the
consummation by such Purchaser of the transactions contemplated
hereby and thereby or relating hereto or thereto do not and will
not (i) result in a violation of such Purchaser’s charter
documents, bylaws or other organizational documents, if applicable,
(ii) conflict with nor constitute a default (or an event which with
notice or lapse of time or both would become a default) under any
agreement to which such Purchaser is a party, nor (iii) result in a
violation of any law, rule, or regulation, or any order, judgment
or decree of any court or governmental agency applicable to such
Purchaser or its properties (except for such conflicts, defaults
and violations as would not, individually or in the aggregate, have
a material adverse effect on such Purchaser). Such Purchaser is not
required to obtain any consent, authorization or order of, or make
any filing or registration with, any court or governmental agency
in order for it to execute, deliver or perform any of its
obligations under this Agreement or perform under the other
Transaction Documents nor to purchase the Securities in accordance
with the terms hereof, provided that for purposes of the
representation made in this sentence, such Purchaser is assuming
and relying upon the accuracy of the relevant representations and
agreements of the Company herein.


 


(j)             
Certain Transactions and
Confidentiality. Other than consummating the transactions
contemplated hereunder, such Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to
any understanding with such Purchaser, executed any purchases or
sales, including Short Sales, of the securities of the Company
during the period commencing as of the time that such Purchaser
first received a written term sheet of the Offering from the
Company setting forth the material terms of the transactions
contemplated hereunder and ending immediately prior to the
execution hereof. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets,
the representation set forth above shall only apply with respect to
the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Securities covered by this
Agreement. Other than to other Persons party to this Agreement,
such Purchaser has maintained the confidentiality of all
disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).
Notwithstanding the foregoing, for avoidance of doubt, nothing
contained herein shall constitute a representation or warranty, or
preclude any actions, with respect to the identification of the
availability of, or securing of, available shares to borrow in
order to effect Short Sales or similar transactions after the
Closing Date.


 


(k)           
Pre-Existing
Relationships. The
Purchaser represents and warrants that: (i) the Purchaser has a
prior substantial pre-existing relationship with the Company, the
Purchaser is not investing in the Offering in connection with or as
a result of any registration statement filed with the SEC by the
Company and (ii) no Securities were offered or sold to it by
means of any form of general solicitation or general advertising,
and in connection therewith, the Purchaser did not (A) receive or
review any advertisement, article, notice or other communication
published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally
available; or (B) attend any seminar meeting or industry investor
conference whose attendees were invited by any general solicitation
or general advertising; or (C) observe any website or filing of the
Company with the Commission in which any offering of securities by
the Company was described and as a result learned of any offering
of securities by the Company.


 


(l)           
Non-U.S. Person. To
the extent the Purchaser is not a U.S. Person (a “Reg S
Person”), such Purchaser hereby represents that the
representations contained in paragraphs (1) through (6) of this
Section 3.2(l) are true and correct with respect to such
Purchaser.


 


 




 

-10-








 






 


(1)           (i)
the issuance and sale to such Reg S Person of the Securities is
intended to be exempt from the registration requirements of the
Securities Act, pursuant to the provisions of Regulation S; (ii) it
is not a “U.S. Person,” as such term is defined in
Regulation S, and is not acquiring the Securities for the account
or benefit of any U.S. Person; and (iii) the offer and sale of the
Securities has not taken place, and is not taking place, within the
United States of America or its territories or possessions. Such
Reg S Person acknowledges that the offer and sale of the Securities
has taken place, and is taking place in an “offshore
transaction,” as such term is defined in Regulation
S.

 


(2)           Such
Reg S Person acknowledges and agrees that, pursuant to the
provisions of Regulation S, the Securities cannot be sold, assigned, transferred, conveyed,
pledged or otherwise disposed of to any U.S. Person or within the
United States of America or its territories or possessions for a
period of one year from and after the Closing Date, unless
such Securities are registered
for sale in the United States pursuant to an effective registration
statement under the Securities Act or another exemption from such
registration is available. Such Reg S Person acknowledges that it
has not engaged in any hedging transactions with regard to
the Securities.

 


(3)           Such
Reg S Person consents to the placement of a legend on any
certificate, note or other document evidencing the Securities and
understands that the Company shall be required to refuse to
register any transfer of securities not made in accordance with
applicable U.S. securities laws.

 


(4)           Such
Reg S Person is not a “distributor” of securities, as
that term is defined in Regulation S, nor a dealer in
securities.

 


(5)           Such
Reg S Person understands that the Securities have not been registered under the Securities Act,
or the securities laws of any state and are subject to substantial
restrictions on resale or transfer. The Securities
are “restricted
securities” within the meaning of Regulation S and Rule 144,
promulgated under the Securities Act.

 


(6)           Such
Reg S Person makes the representations, declarations and warranties
as contained in this Section 3.2(l) with the intent that the same
shall be relied upon by the Company in determining its suitability
as a purchaser of such Securities.


 


(m)
Survival. The
foregoing representations and warranties shall survive the Closing
Date.


 


The
Company acknowledges and agrees that the representations contained
in Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transaction contemplated hereby.


 



ARTICLE IV.



OTHER AGREEMENTS OF THE PARTIES



 


4.1         Transfer
Restrictions.


 


(a)           Securities
Laws. The Securities may only
be disposed of in compliance with state and federal securities
laws.  In connection with any transfer of Securities other
than pursuant to an effective registration statement or Rule 144,
to the Company or to an Affiliate of a Purchaser or in connection
with a pledge as contemplated in Section 4.1(c), the Company may
require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor and reasonably acceptable to
the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
Securities under the Securities Act.  As a condition of such
transfer, any such transferee shall agree in writing to be bound by
the terms of this Agreement, and the Registration Rights Agreement,
and shall have the rights and obligations of a Purchaser under this
Agreement and the other Transaction Documents.



 


(b)          Legend.
The Purchasers agree to the
imprinting, so long as is required by this Section 4.1, of a legend
on any of the Securities in the following form:



 


 


 




 

-11-








 






 



For U.S. Persons:


 


[NEITHER]
THIS SECURITY [NOR THE SECURITIES [FOR] WHICH THIS SECURITY IS
EXERCISABLE] HAS [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
APPLICABLE STATE SECURITIES LAWS, 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.  TO
THE EXTENT PERMITTED BY APPLICABLE SECURITIES LAWS, THIS SECURITY
[AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A
REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION
THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.


 


For
Non-U.S. Persons:

 


THESE
SECURITIES [AND THE SECURITIES FOR WHICH THIS SECURITY IS
EXERCISABLE] WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”)
PURSUANT TO REGULATION S UNDER THE 1933 ACT. ACCORDINGLY, NONE OF
THE SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN
REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS,
AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS
DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT)
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN ACCORDANCE WITH THE 1933 ACT.

 


(c)                    Pledge.
The Company acknowledges and agrees that a Purchaser may from time
to time pledge pursuant to a bona fide margin agreement with a
registered broker-dealer or grant a security interest in some or
all of the Securities to a financial institution that is an
“accredited investor” as defined in Rule 501(a) under
the Securities Act and who agrees to be bound by the provisions of
this Agreement and the Registration Rights Agreement and, if
required under the terms of such arrangement, such Purchaser may
transfer pledge or secure Securities to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval
of the Company and no legal opinion of legal counsel of the
pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At
such Purchaser’s expense, the Company will execute and
deliver such reasonable documentation as a pledgee or secured party
of Securities may reasonably request in connection with a pledge or
transfer of the Securities including, if the Securities are subject
to registration pursuant to the Registration Rights Agreement, the
preparation and filing of any required prospectus supplement under
Rule 424(b)(3) under the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.


 


 




 

-12-








 






 


(d)                    Company
will accept an opinion of counsel to Purchaser (reasonably
acceptable to Company and Transfer Agent) and upon acceptance by
Transfer Agent, certificates evidencing the Conversion Shares and
the Warrant Shares (collectively, the “Underlying
Shares”) shall not contain any legend (including the legend
set forth in Section 4.1(b) hereof): (i) while a registration
statement (including the Registration Statement) covering the
resale of such security is effective under the Securities Act, (ii)
following any sale of such Underlying Shares pursuant to Rule 144
(assuming cashless exercise of the Warrants, solely with respect to
any Warrant Shares), (iii) if such Underlying Shares are eligible
for sale under Rule 144 (assuming cashless exercise of the
Warrants, solely with respect to any Warrant Shares), or (iv) if
such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission), unless
counsel to the Company shall have rendered such opinion. The
Company shall cause its counsel to issue a legal opinion to the
Transfer Agent or the Purchaser promptly after the Effective Date
if required by the Transfer Agent to effect the removal of the
legend hereunder.


 


4.2      Conversion/Exercise
Procedures. The form of Notice
of Exercise included in the Warrants and the form of Conversion
Notice included in the Certificate of Designation, as the case may
be, set forth the totality of the procedures required of the
Purchasers in order to exercise the Warrants or convert the
Preferred Shares, as applicable. Without limiting the preceding
sentences, no ink-original Notice of Exercise or Conversion Notice
shall be required, nor shall any medallion guarantee (or other type
of guarantee or notarization) of any Notice of Exercise or
Conversion Notice form be required in order to exercise the
Warrants or convert the Preferred Shares. No additional legal
opinion, other information or instructions shall be required of the
Purchasers to exercise their Warrants or convert their Preferred
Shares. The Company shall honor exercises of the Warrants and
conversion of the Preferred Shares and shall deliver the underlying
shares of Common Stock in accordance with the terms, conditions and
time periods set forth in the Transaction
Documents.   


  


4.3          Securities
Laws Disclosure; Publicity.  The Company shall, by 9:00 a.m.
(New York City time) on the third (3d) Trading Day immediately
following the Closing Date, issue a press release disclosing the
material terms of the transactions contemplated hereby, and shall
file a Current Report on Form 8-K including the Transaction
Documents as exhibits thereto within the time period required by
the Exchange Act. From and after the issuance of such press release
and Form 8-K, the Company represents to the Purchasers that it
shall have publicly disclosed all material, non-public information
delivered to any of the Purchasers by the Company or any of its
Subsidiaries, or any of their respective officers, directors,
employees or agents in connection with the transactions
contemplated by the Transaction Documents existing as of the
Closing Date. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of
any Purchaser in any filing with the Commission or any regulatory
agency or Trading Market unless the name of such Purchaser is
already included in the body of the Transaction Documents, without
the prior written consent of such Purchaser, except: (a) as
required by federal securities law in connection with the filing of
final Transaction Documents with the Commission, (b) pursuant to
the Registration Rights Agreement and (c) to the extent such
disclosure is required by law or Trading Market
regulations).


 


4.4       Use
of Proceeds.  The Company
will use the net proceeds to the Company from the sale of the
Shares and Warrants hereunder for general corporate purposes and
working capital.


 


 




 

-13-








 








 

 

4.5           
Form D;
Blue Sky Filings.  The
Company agrees to timely file a Form D with respect to the sale of
the Securities by the Company under this Agreement as required
under Regulation D. The Company shall take such action as the
Company shall reasonably determine is necessary in order to obtain
an exemption for, or to qualify the Securities for, sale to the
Purchasers at the Closing under applicable securities or
“Blue Sky” laws of the states of the United States, and
shall provide evidence of such actions promptly upon request of any
Purchaser.


 


4.6           
Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with
the other Purchasers, covenants that neither it, nor any Affiliate
acting on its behalf or pursuant to any understanding with it will
execute any purchases or sales, including Short Sales, of any of
the Company’s securities during the period commencing with
the execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly
disclosed or required to be disclosed, whichever occurs first, in
the Form 8-K described in Section 4.3.  Each Purchaser,
severally and not jointly with the other Purchasers, covenants that
until such time as the transactions contemplated by this Agreement
are publicly disclosed or required to be publicly disclosed,
whichever occurs first, by the Company in such Form 8-K, such
Purchaser will maintain the confidentiality of the existence and
terms of this transaction and the information included in the
Transaction Documents. Notwithstanding the foregoing, and
notwithstanding anything contained in this Agreement to the
contrary, the Company expressly acknowledges and agrees that (i) no
Purchaser makes any representation, warranty or covenant hereby
that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by
this Agreement are required to be disclosed in the Form 8-K
described in Section 4.3, (ii) no Purchaser shall be restricted or
prohibited from effecting any transactions in any securities of the
Company in accordance with applicable Securities Laws from and
after the time that the transactions contemplated by this Agreement
are first disclosed or required to be disclosed, whichever occurs
first, in the Form 8-K described in Section 4.5, and (iii) no
Purchaser shall have any duty of confidentiality to the Company or
its Subsidiaries after the filing of such Form 8-K or after the
date such Form 8-K is required to have been filed, whichever occurs
first.  Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets,
the covenant set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the
investment decision to purchase the Securities covered by this
Agreement.




 


 




 

-14-








 






 



ARTICLE V.



MISCELLANEOUS



 


5.1         Termination. 
This Agreement may be terminated by any Purchaser, as to such
Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other
Purchasers, by written notice given at any time to the Company,
prior to the occurrence of a Closing with respect to such
Purchaser’s Subscription Agreement. In the event of any
termination by a Purchaser under this Section 5.1, the Company
shall promptly (and in any event within two (2) Business Days of
such termination) refund such Purchaser’s entire subscription
amount.



 


5.2         Fees
and Expenses.  Except as
expressly set forth in the Transaction Documents, each party shall
pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery
and performance of this Agreement.  Except as set forth in the
Warrants, the Company shall pay all Transfer Agent fees, stamp
taxes and other similar taxes and duties levied in connection with
the delivery of any Securities to the
Purchasers.



 


5.3         Entire
Agreement.  The
Transaction Documents, together with the exhibits and schedules
thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.


 


5.4         Notices. 
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by
hand delivery, telegram, or facsimile, addressed as set forth below
or to such other address as such party shall have specified most
recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business
day following the date of mailing by express courier service,
prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: MabVax
Therapeutics Holdings, Inc., 11535 Sorrento Valley Road, Suite 400,
San Diego, CA 92121, Attn: Chief Financial Officer, with a
copy by fax only to (which shall not constitute notice): Company
Counsel, and (ii) if to the Purchasers, to: the addresses and fax
numbers indicated on the signature pages hereto.


 


5.5           Amendments;
Waivers.  No
provision of this Agreement may be waived, modified, supplemented
or amended except in a written instrument signed, in the case of an
amendment, by the Company and the Purchasers holding at least a
majority of the component of the affected Securities (Shares or
Warrants) purchased hereunder and which are materially adversely
affected by such waiver, modification, supplement or amendment then
outstanding (such majority being the “Majority in
Interest”) or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought. No waiver
of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
As employed herein,
“consent” shall mean consent of the Majority in
Interest on the date such consent is requested or
required.


 


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



 


5.7           Successors
and Assigns.  This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.  The
Company may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of each Purchaser
(other than by merger).  Any Purchaser may assign any or all
of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Securities, provided that such
transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction
Documents that apply to the
“Purchasers.” 



 


 




 

-15-








 






 


5.8           No
Third-Party Beneficiaries.  This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof
be enforced by, any other Person, except as otherwise provided for
herein.



 


5.9           Governing
Law.  All questions
concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof.  Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereto and each individual signing any
Transaction Document on behalf of the Company hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for
the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it,
he or she is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper or is an
inconvenient venue for such proceeding.  Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof.  Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law.  If either party shall commence an
action or proceeding to enforce any provisions of the Transaction
Documents, then, the prevailing party in such action, suit or
proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.


 


5.10         Survival. 
The representations and warranties contained herein shall survive
the Closing and the delivery of the Securities at the Closings for
the applicable statute of limitations.



 


5.11         Execution. 
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 each other party, it being
understood that the 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.



 


5.12         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.



 


5.13         Rescission
and Withdrawal Right. 
Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does
not timely perform its related obligations within the periods
therein provided, then such Purchaser may rescind or withdraw, in
its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in
part without prejudice to its future actions and rights; provided,
however, that in the case of a rescission of an exercise of a
Warrant, the applicable Purchaser shall be required to return any
Warrant Shares subject to any such rescinded exercise notice
concurrently with the return to such Purchaser of the aggregate
exercise price paid to the Company for such Warrant Shares and the
restoration of such Purchaser’s right to acquire such Warrant
Shares pursuant to such Purchaser’s Warrant (including,
issuance of a replacement warrant certificate evidencing such
restored right).


 




 

-16-








 






 


5.14         Replacement
of Securities.  If any
certificate or instrument evidencing any Securities is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon surrender and
cancellation thereof (in the case of mutilation), or in lieu of and
substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft, destruction, or mutilation, and of the
ownership of such Security.  The
applicant for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs
(including customary indemnity and bonds) associated with the
issuance of such replacement Securities.



 


5.15         Remedies. 
In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, each of
the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents.  The parties
agree that monetary damages may not be adequate compensation for
any loss incurred by reason of any breach of obligations contained
in the Transaction Documents and hereby agree to waive and not to
assert in any action for specific performance of any such
obligation the defense that a remedy at law would be
adequate.



 


5.16         Payment
Set Aside.  To the extent
that the Company makes a payment or payments to any Purchaser
pursuant to any Transaction Document or a Purchaser enforces or
exercises its rights thereunder, and such payment or payments or
the proceeds of such enforcement or exercise or any part thereof
are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.



 


5.17         Legal
Representation. Each Purchaser acknowledges that it has been
represented by independent legal counsel in the preparation of the
Agreement. Each Purchaser recognizes and acknowledges that counsel
to the Company has represented other shareholders of the Company,
and may, in the future, represent others in connection with various
legal matters and each Purchaser waives any conflicts of interest
and other allegations that it has not been represented by its own
counsel.


 


5.18         Saturdays,
Sundays, Holidays, etc. 
   If the last or appointed day for the taking of
any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken
or such right may be exercised on the next succeeding Business
Day.



 


5.19         Construction.
The parties agree that each of them and/or their respective counsel
have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the
Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in
any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and
other similar transactions of the Common Stock that occur after the
date of this Agreement.


 


5.20        
Usury. To the extent it may
lawfully do so, the Company hereby agrees not to insist upon or
plead or in any manner whatsoever claim, and will resist any and
all efforts to be compelled to take the benefit or advantage of,
usury laws wherever enacted, now or at any time hereafter in force,
in connection with any claim, action or proceeding that may be
brought by any Purchaser in order to enforce any right or remedy
under any Transaction Document. Notwithstanding any provision to
the contrary contained in any Transaction Document, it is expressly
agreed and provided that the total liability of the Company under
the Transaction Documents for payments in the nature of interest
shall not exceed the maximum lawful rate authorized under
applicable law (the “Maximum Rate”), and,
without limiting the foregoing, in no event shall any rate of
interest or default interest, or both of them, when aggregated with
any other sums in the nature of interest that the Company may be
obligated to pay under the Transaction Documents exceed such
Maximum Rate. It is agreed that if the maximum contract rate of
interest allowed by law and applicable to the Transaction Documents
is increased or decreased by statute or any official governmental
action subsequent to the date hereof, the new maximum contract rate
of interest allowed by law will be the Maximum Rate applicable to
the Transaction Documents from the Closing Date thereof forward,
unless such application is precluded by applicable law. If under
any circumstances whatsoever, interest in excess of the Maximum
Rate is paid by the Company to any Purchaser with respect to
indebtedness evidenced by the Transaction Documents, such excess
shall be applied by such Purchaser to the unpaid principal balance
of any such indebtedness or be refunded to the Company, the manner
of handling such excess to be at such Purchaser’s
election.



 


5.21         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.


 


5.22              Equitable
Adjustment. Trading volume
amounts, price/volume amounts and similar figures in the
Transaction Documents shall be equitably adjusted (but without
duplication) to offset the effect of stock splits, similar events
and as otherwise described in this Agreement and
Warrants. 


 



(Signature Pages Follow)


 




 

-17-








 






IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.


 


 


	


MABVAX THERAPEUTICS HOLDINGS, INC.

	
 

	


Address for Notice:


 


	
 

	
 

	

 



11535 Sorrento Valley Road, Suite 400



San Diego, CA 92121


 


	


By: 

	
 

	
 

	
 


	


Name:

	
 

	
 

	
 


	


Title: 

	
 

	
 

	
 


	
 

	
 

	
 


	


With a copy to (which shall not constitute notice):

	
 

	
 


	
 

	
 

	
 


	

Harvey
J. Kesner, Esq.


Sichenzia
Ross Ference Kesner LLP


1185
Avenue of the Americas, 37th Floor


New
York, NY 10036

	
 

	
 







 


 


 



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK



SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 


 




 

-18-








 






 

 


[PURCHASER
SIGNATURE PAGES TO MABVAX THERAPEUTICS HOLDINGS, INC.


SECURITIES
PURCHASE AGREEMENT]


 


IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.


 


Name of
Purchaser: ________________________________________________________________


 


 


 


Signature
of Authorized Signatory of Purchaser:
__________________________________________


 


 


Name of
Authorized Signatory:
_______________________________________________________


 


 


Title
of Authorized Signatory:
________________________________________________________


 


 


Address
for Delivery of Securities to Purchaser (if not same as address for
notice):


 


______________________________________________________________________________


 


______________________________________________________________________________


 


______________________________________________________________________________


 


 


 


 


 


Subscription
Amount: US$________________


 



□ Shares of Common Stock at $0.75 per Unit:
___________________


 


OR



□ Shares of Series M Preferred Stock at $0.75 per
Unit: ___________________


 


PLUS


 


Warrants:
___________________


 


EIN
Number, if applicable, will be provided under separate
cover.


 




 

-19-








 






 



EXHIBITS


 



Exhibit
A                       

Form of Certificate
of Designation







Exhibit
B                       

Form of
Warrant







Exhibit
C                       

Registration Rights
Agreement







Exhibit
D                       

Form of Investor
Questionnaire






 


 


 




 

-20-








 






 



EXHIBIT D


 



ACCREDITED INVESTOR QUESTIONNAIRE



IN CONNECTION WITH INVESTMENT IN UNITS OF MABVAX THERAPEUTICS
HOLDINGS, INC.,



A DELAWARE CORPORATION



PURSUANT TO SECURITIES PURCHASE AGREEMENT DATED , 2018

 


 



To:          



MabVax Therapeutics
Holdings, Inc.






11535
Sorrento Valley Road, Suite 400


San
Diego, CA 92121


Fax:
[ ]

 



INSTRUCTIONS

 


PLEASE
ANSWER ALL QUESTIONS. If the appropriate answer is
“None” or “Not Applicable”, so state.
Please print or type your answers to all questions. Attach
additional sheets if necessary to complete your answers to any
item.

 


Your
answers will be kept strictly confidential at all times. However,
MabVax Therapeutics Holdings, Inc. (collectively, the
“Company”) may present this Questionnaire to such
parties as it deems appropriate in order to assure itself that the
offer and sale of securities of the Company will not result in a
violation of the registration provisions of the Securities Act of
1933, as amended, or a violation of the securities laws of any
state.

 



1.            

Please provide the
following information:





 



Name:                                                                                                                                           





 



Name of additional
purchaser:                                                                                                                                           





 


(Please
complete information in Question 5)

 


Date of
birth, or if other than an individual, year of organization or
incorporation:

 


 

 


 

 



2.            

Residence address,
or if other than an individual, principal office
address:





 


 

 


 

 


 

 



Telephone
number:                                                                                                                                           





 



Social Security
Number:                                                                                                                                           





 



Taxpayer
Identification
Number:                                                                                                                                           





 



3. Business
address:                                                                                                                                           





 


 

 


 

 



Business telephone
number:                                                                                                                                           





 



4. Send mail
to:                                            

Residence
______                                                       

Business
_______






 




 

-21-








 






 

 



5.            

With respect to
tenants in common, joint tenants and tenants by the entirety,
complete only if information differs from that above:





 



Residence
address:                                                                                                                                           





 


 

 


 

 



Telephone
number:                                                                                                                                           





 



Social Security
Number:                                                                                                                                           





 



Taxpayer
Identification
Number:                                                                                                                                           





 



Business
address:                                                                                                                                           





 


 

 


 

 



Business telephone
number:                                                                                                                                           





 



Send Mail
to:                                            

Residence
_______                                                       

Business
_______





 



6.            

Please describe
your present or most recent business or occupation and indicate
such information as the nature of your employment, how long you
have been employed there, the principal business of your employer,
the principal activities under your management or supervision and
the scope (e.g. dollar volume, industry rank, etc.) of such
activities:





 


 

 


 

 


 

 


 

 



7.            

Please state
whether you (i) are associated with or affiliated with a member of
the Financial Industry Regulatory Association, Inc.
(“FINRA”), (ii) are an owner of stock or other
securities of FINRA member (other than stock or other securities
purchased on the open market), or (iii) have made a subordinated
loan to any FINRA member:





 



_______                                            

_______





 



Yes                                            

No





 


If you
answered yes to any of (i) – (iii) above, please indicate the
applicable answer and briefly describe the facts
below:

 


 

 


 

 


 

 



8A.            

Applicable to
Individuals ONLY. Please answer the following questions concerning
your financial condition as an “accredited investor”
(within the meaning of Rule 501 of Regulation D). If the purchaser
is more than one individual, each individual must initial an answer
where the question indicates a “yes” or
“no” response and must answer any other question fully,
indicating to which individual such answer applies. If the
purchaser is purchasing jointly with his or her spouse, one answer
may be indicated for the couple as a whole:






 




 

-22-








 






 

 



8.1            

Does your net
worth* (or joint net worth with your spouse) exceed
$1,000,000?





 



_______                                            

_______





 



Yes                                            

No





 



8.2            

Did you have an
individual income** in excess of $200,000 or joint income together
with your spouse in excess of $300,000 in each of the two most
recent years and do you reasonably expect to reach the same income
level in the current year?





 



_______                                            

_______





 



Yes                                            

No





 



8.3            

Are you an
executive officer of the Company?





 



_______                                            

_______





 



Yes                                            

No





 


* For
purposes hereof, net worth shall be deemed to include ALL of your
assets, liquid or illiquid MINUS any liabilities.

 


** For
purposes hereof, the term “income” is not limited to
“adjusted gross income” as that term is defined for
federal income tax purposes, but rather includes certain items of
income which are deducted in computing “adjusted gross
income”. For investors who are salaried employees, the gross
salary of such investor, minus any significant expenses personally
incurred by such investor in connection with earning the salary,
plus any income from any other source including unearned income, is
a fair measure of “income” for purposes hereof. For
investors who are self-employed, “income” is generally
construed to mean total revenues received during the calendar year
minus significant expenses incurred in connection with earning such
revenues.

 



8.B            

Applicable to
Corporations, Partnerships, Trusts, Limited Liability Companies and
other Entities ONLY:





 


The
purchaser is an accredited investor because the purchaser falls
within at least one of the following categories (Check all
appropriate lines):

 



___ 

(i) a bank as
defined in Section 3(a)(2) of the Act or a savings and loan
association or other institution as defined in Section 3(a)(5)(A)
of the Act whether acting in its individual or fiduciary
capacity;





 



___ 

(ii) a
broker-dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended;





 



___ 

(iii) an insurance
company as defined in Section 2(13) of the Act;





 



___ 

(iv) an investment
company registered under the Investment Company Act of 1940, as
amended (the “Investment Act”) or a business
development company as defined in Section 2(a)(48) of the
Investment Act;





 



___ 

(v) a Small
Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958, as amended;





 



___ 

(vi) a plan
established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, where such plan has
total assets in excess of $5,000,000;






 




 

-23-








 






 

 



___ 

(vii) an employee
benefit plan within the meaning of Title 1 of the Employee
Retirement Income Security Act of 1974, as amended (the
“Employee Act”), where the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of the Employee
Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or an employee
benefit plan that has total assets in excess of $5,000,000, or a
self-directed plan the investment decisions of which are made
solely by persons that are accredited investors;





 



___ 

(viii) a private
business development company, as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940, as amended;





 



___            

(ix) an
organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, a Massachusetts or similar business trust, or
a partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000;





 



___ 

(x) a trust, with
total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is
directed by a “sophisticated” person, as described in
Rule 506(b)(2)(ii) promulgated under the Act, who has such
knowledge and experience in financial and business matters that he
or she is capable of evaluating the merits and risks of the
prospective investment;





 



___ 

(xi) an entity in
which all of the equity investors are persons or entities described
above (“accredited investors”). ALL EQUITY OWNERS MUST
COMPLETE “EXHIBIT A” ATTACHED HERETO.





 



9.A            

Do you have
sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks
associated with investing in the Company?





 



_______                                            

_______





 



Yes                                            

No





 


ANSWER
QUESTION 9B ONLY IF THE ANSWER TO QUESTION 9A WAS
“NO.”

 



9.B            

If the answer to
Question 9A was “NO,” do you have a financial or
investment adviser (a) that is acting in the capacity as a
purchaser representative and (b) who has sufficient knowledge and
experience in financial and business matters so as to be capable of
evaluating the merits and risks associated with investing in the
Company?





 



_______                                            

_______





 



Yes                                            

No





 


If you
have a financial or investment adviser(s), please identify each
such person and indicate his or her business address and telephone
number in the space below. (Each such person must complete, and you
must review and acknowledge, a separate Purchaser Representative
Questionnaire which will be supplied at your request).

 


 

 


 

 



10.            

You have the right,
will be afforded an opportunity, and are encouraged to investigate
the Company and review relevant factors and documents pertaining to
the officers of the Company, and the Company and its business and
to ask questions of a qualified representative of the Company
regarding this investment and the properties, operations, and
methods of doing business of the Company.






 




 

-24-








 






 

 


Have you or has your purchaser
representative, if any, conducted any such investigation, sought
such documents or asked questions of a qualified representative of
the Company regarding this investment and the properties,
operations, and methods of doing business of the
Company?

 



_______                                            

_______





 



Yes                                            

No





 



If so, briefly
describe:                                                                                                                                           





 


 

 


If so,
have you completed your investigation and/or received satisfactory
answers to your questions?

 



_______                                            

_______





 



Yes                                            

No





 



11.            

Do you understand
the nature of an investment in the Company and the risks associated
with such an investment?





 



_______                                            

_______





 



Yes                                            

No





 



12.            

Do you understand
that there is no guarantee of any financial return on this
investment and that you will be exposed to the risk of losing your
entire investment?





 



_______                                            

_______





 



Yes                                            

No





 


 

 



13.            

Do you understand
that this investment is not liquid?





 



_______                                            

_______





 



Yes                                            

No





 



14.            

Do you have
adequate means of providing for your current needs and personal
contingencies in view of the fact that this is not a liquid
investment?





 



_______                                            

_______





 



Yes                                            

No





 



15.            

Are you aware of
the Company’s business affairs and financial condition, and
have you acquired all such information about the Company as you
deem necessary and appropriate to enable you to reach an informed
and knowledgeable decision to acquire the Interests?





 



_______                                            

_______





 



Yes                                            

No





 



16.            

Do you have a
“pre-existing relationship” with the Company or any of
the officers of the Company?





 



_______                                            

_______





 



Yes                                            

No





 


(For
purposes hereof, “pre-existing relationship” means any
relationship consisting of personal or business contacts of a
nature and duration such as would enable a reasonably prudent
investor to be aware of the character, business acumen, and general
business and financial circumstances of the person with whom such
relationship exists.)

 


If so,
please name the individual or other person with whom you have a
pre-existing relationship and describe the
relationship:

 


______________________________________________________________________________

 


______________________________________________________________________________


 




 

-25-








 







17.            

Exceptions
to the representations and warranties made in Section 3.2 of the
Securities Purchase Agreement (if no exceptions, write
“none” – if left blank, the response will be
deemed to be “none”):
___________________________________________________





 

 



_____________________________________________________________________________

 


Dated:
_______________, 2018

 


If
purchaser is one or more individuals (all individuals must
sign):

 


 

 


(Type
or print name of prospective purchaser)

 


 

 


Signature
of prospective purchaser

 


 

 


Social
Security Number

 


 

 


(Type
or print name of additional purchaser)

 


 

 


Signature
of spouse, joint tenant, tenant in common or other signature, if
required

 


 

 


Social
Security Number


 




 

-26-








 







Annex A

 



Definition of Accredited Investor

 


The
securities will only be sold to investors who represent in writing
in the Securities Purchase Agreement that they are accredited
investors, as defined in Regulation D, Rule 501 under the Act which
definition is set forth below:

 



1.            

A natural person
whose net worth, or joint net worth with spouse, at the time of
purchase exceeds $1 million (excluding home); or





 



2.            

A natural person
whose individual gross income exceeded $200,000 or whose joint
income with that person’s spouse exceeded $300,000 in each of
the last two years, and who reasonably expects to exceed such
income level in the current year; or





 



3.            

A trust with total
assets in excess of $5 million, not formed for the specific purpose
of acquiring the securities offered, whose purchase is directed by
a sophisticated person described in Regulation D; or





 



4.            

A director or
executive officer of the Company; or





 



5.            

The investor is an
entity, all of the owners of which are accredited investors;
or





 



6.            

(a) bank as defined
in Section 3(a)(2) of the Act, or any savings and loan association
or other institution as defined in Section 3(a)(5)(A) of the Act,
(b) any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, (c) an insurance Company as
defined in Section 2(13) of the Act, (d) an investment Company
registered under the Investment Company Act of 1940 or a business
development Company as defined in Section 2(a)(48) of such Act, (e)
a Small Business Investment Company licensed by the United States
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958, (f) an employee benefit plan
established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political
subdivisions, if such plan has total assets in excess of $5
million, (g) an employee benefit plan within the meaning of Title I
of the Employee Retirement Income Securities Act of 1974, and the
employee benefit plan has assets in excess of $5 million, or the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, that is either a bank, savings and loan
institution, insurance Company, or registered investment advisor,
or, if a self-directed plan, with an investment decisions made
solely by persons that are accredited investors, (h) a private
business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940, or (i) an organization
described in Section 501(c)(3) of the Internal Revenue code,
corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with assets in excess of $5
million.





 


 


 




 

-27-








 





 


EXHIBIT
“A” TO ACCREDITED INVESTOR QUESTIONNAIRE

 


ACCREDITED
CORPORATIONS, PARTNERSHIPS, LIMITED LIABILITY COMPANIES, TRUSTS OR
OTHER ENTITIES INITIALING QUESTION 8B(xi) MUST PROVIDE THE
FOLLOWING INFORMATION.

 


I
hereby certify that set forth below is a complete list of all
equity owners in __________________ [NAME OF ENTITY], a
                                              
[TYPE OF ENTITY] formed pursuant to the laws of the State
of                                    
.. I also certify that EACH
SUCH OWNER HAS INITIALED THE SPACE OPPOSITE HIS OR HER NAME
and that each such owner understands that by initialing that space
he or she is representing that he or she is an accredited
individual investor satisfying the test for accredited individual
investors indicated under “Type of Accredited
Investor.”

 


 


__________________________________________


signature of
authorized corporate officer, general partner or
trustee

 


Name of Equity
Owner                                                                           Type
of Accredited Investor1

 



1.                                                                                                                                           





 



2.                                                                                                                                           





 



3.                                                                                                                                           





 



4.                                                                                                                                           





 



5.                                                                                                                                           





 



6.                                                                                                                                           





 



7.                                                                                                                                           





 



8.                                                                                                                                           





 



9.                                                                                                                                           





 



10.                                                                                                                                           





 


 


 



1            

Indicate which
Subparagraph of 8.1 - 8.3 the equity owner satisfies.








 

-28-