Exhibit 10.1





 







Exhibit 10.40


 



SUBSCRIPTION AGREEMENT


 


THIS SUBSCRIPTION AGREEMENT (the
“Agreement”) made
this           day
of , 201 by and between MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “Company”), and the
undersigned subscriber (the “Subscriber”), who, for and
in consideration of the mutual promises and covenants set forth
herein, do hereto agree as follows:


 


1.     Subscription.   The Subscriber hereby subscribes for
____ shares (the “Shares”) of the Company’s
common stock, par value $0.01 per share (the “Common
Stock”), at a price of $___ per Share, and herewith tenders
to the Company by certified bank funds for the subscription in
the amount of US $             , which
the Subscriber tenders herewith as payment for the Shares.
Certificates representing the Shares purchased by the Subscriber
will not be issued to the Investor; instead, such Shares will be
credited to the Subscriber using customary procedures for
book-entry transfer through the facilities of The Depository Trust
Company. Settlement for the Shares shall occur via
Deposit/Withdrawal at Custodian. The provisions set forth in
Exhibit A hereto shall be incorporated herein by reference as if
set forth fully herein.


 


The
undersigned understands that the contemplated sale of the Shares
offered hereby is part of a sale of up to $2,500,000 of Common
Stock of the Company at ___ per share (the
“Offering”).  THERE IS NO MINIMUM AMOUNT THAT
MUST BE SOLD AND THERE WILL BE NO ESCROW OF
SUBSCRIPTIONS.


 


This
Agreement is an offer by the Subscriber to subscribe for the
securities offered by the Company, and, subject to the terms
hereof, shall become a contract for the sale of said securities
upon acceptance thereof by the Company.


 


2.     Acknowledgements. 


 


(a) The Subscriber
acknowledges that, prior to signing this Agreement and making this
offer to purchase, he or she has received the prospectus relating
to the Offering filed with the Securities and Exchange Commission
(the “Prospectus”) and that he or she understands the
risks of and other considerations relevant to, a purchase of the
Shares, including those described under the caption “Risk
Factors” in the Prospectus.


 


(b) The Subscriber has
the requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Subscriber and the
consummation by it of the transactions contemplated hereunder have
been duly authorized by all necessary action on the part of the
Subscriber. This Agreement has been executed by the Subscriber and,
when delivered in accordance with the terms hereof, will constitute
a valid and binding obligation of the Subscriber enforceable
against the Subscriber in accordance with its terms.


 


(c) The Subscriber
understands that nothing in this Agreement or any other materials
presented to the Subscriber in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. The
Subscriber has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares.


 


(d) The making,
execution and performance of this Agreement by the Subscriber and
the consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under,
(i) the charter, bylaws or other organizational documents of
such Subscriber, as applicable, or (ii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any court,
administrative agency, regulatory body, government or governmental
agency or body, domestic or foreign, having jurisdiction over such
Subscriber or its properties, except for any conflict, breach,
violation or default which is not reasonably likely to have a
material adverse effect on such Subscriber’s performance of
its obligations hereunder or the consummation of the transactions
contemplated hereby.


 


(e) If the Subscriber
is acquiring Shares as a fiduciary or agent for one or more
Subscriber accounts, it represents that is has sole investment
discretion with respect to each such account and it has full power
to make the foregoing representations, warranties, acknowledgements
and agreements on behalf of such account.


 


(f) The Subscriber
acknowledges that no action had been or will be taken in any
jurisdiction outside the United States by the Company that would
permit an offering of the Shares, or possession or distribution of
offering materials in connection with the issue of the Shares, in
any jurisdiction outside the United States where action for that
purpose is required. Each Subscriber outside the United States will
comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers
Shares or has in its possession or distributes any offering
material, in all cases at its own expense.


 


3.     Acceptance
of Subscription and Delivery of Shares. This Agreement is
made subject to the Company’s discretionary right to accept
or reject the subscription herein. If the Company for any reason
rejects this subscription, the subscription will be refunded in
full, without interest, and this Agreement shall be null, void and
of no effect. Acceptance of this subscription by the Company will
be evidenced by the execution hereof by an officer of the Company.
Delivery of the Shares subscribed for herein will be made within
two (2) days following the acceptance of this subscription by the
Company.


 


4.
    Governing
Law. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law that
would require the application of the laws of any other
jurisdiction.


 



Signature Page Follows


 


 




 








 






 

 



Signature page to Subscription Agreement


 


Number
of Shares:


 


Purchase
Price Per Share: $


 


Aggregate
Purchase Price:


 


Please
confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that
purpose.


 


Dated
as of:


 


	
 


	

                             
                                         
                         


	

SUBSCRIBER


 


	

By:______________________________________


	

 


Print
Name:_______________________________


	

 


Title:_____________________________________







 


Name in
which Shares are to be registered:


 


Mailing
Address:


 


Taxpayer
Identification Number:


 


Agreed
and Accepted this         
day of         ,
201 :


 


	
 


	

MABVAX
THERAPEUTICS HOLDINGS, INC.


 


	

By:
_______________________________________


	

  


  Title:                        
                                         
                







 


 


 


 


 


 


 




 








 






 

 



EXHIBIT
A


 



TO BE COMPLETED BY SUBSCRIBER



DWAC SETTLEMENT


 


Delivery
by electronic book-entry at The Depository Trust Company
(“DTC”),
registered in the Subscriber’s name and address as set forth
on the signature page of the Agreement to which this Exhibit A is attached, and
released by Computershare Trust Company, N.A., the Company’s
transfer agent (the “Transfer Agent”), to the
Subscriber at the Closing.


 


	
 

	
 

	
 


	

Name of
DTC Participant (broker-dealer at which the account or accounts to
be credited with the Shares are maintained):

	
 

	
 


	
 

	
 


	

DTC
Participant Number:

	
 

	
 


	
 

	
 


	

Name of
Account at DTC Participant being credited with the
Shares:

	
 

	
 


	
 

	
 


	

Account
Number at DTC Participant being credited with the
Shares:

	
 

	
 







 



NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE
AGREEMENT TO WHICH THIS EXHIBIT A
IS ATTACHED BY THE SUBSCRIBER AND
THE COMPANY, THE SUBSCRIBER SHALL:


 


	
 

	
 

	
 


	
 

	
 


	


(I)

	
 

	


DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) ON THE CLOSING
DATE INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR
ACCOUNTS WITH THE SHARES, AND


	
 

	
 


	


(II)

	
 

	


REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE SUBSCRIBER
TO THE FOLLOWING ACCOUNT:







 


 


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