MABVAX THERAPEUTICS HOLDINGS, INC. _______ Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
_______,
2017
Xxxxxxx & Company (UK) Ltd.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
MabVax Therapeutics Holdings, Inc., a Delaware
corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to Xxxxxxx & Company (UK) Ltd. (the
“Underwriter”),
an aggregate of _______ authorized but unissued shares (the
“Firm
Shares”) of common stock,
par value $0.01 per share (the “Common
Stock”), of the Company.
The Company also proposes to sell to the Underwriter, upon the
terms and conditions set forth in Section 4 hereof, up to an
additional _______ shares of Common Stock (the
“Option
Shares”). The Firm Shares
and the Option Shares are hereinafter collectively referred to as
the “Shares”).
The Shares are hereinafter sometimes referred to as the
“Securities.”
The
Company and the Underwriter hereby confirm their agreement as
follows:
1. Registration
Statement and Prospectus.
The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”)
a registration statement covering the Securities on Form S-1 (File
No. 333-216016) under the Securities Act of 1933, as amended (the
“Securities
Act”), and the rules and
regulations (the “Rules and
Regulations”) of the
Commission thereunder and such amendments to such registration
statement (including post effective amendments) as may have been
required to the date of this Agreement. Such registration
statement, as amended (including any post effective amendments),
has been declared effective by the Commission. Such registration
statement, including amendments thereto (including post effective
amendments thereto) and all documents and information deemed
to be a part of the Registration Statement through incorporation by
reference or otherwise at the time of
effectiveness thereof (the “Effective
Time”), the exhibits and
any schedules thereto at the Effective Time or thereafter during
the period of effectiveness and the documents and information
otherwise deemed to be a part thereof or included therein by the
Securities Act or otherwise pursuant to the Rules and Regulations
at the Effective Time or thereafter during the period of
effectiveness, is herein called the “Registration
Statement.” If the
Company has filed or files an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the
“Rule 462
Registration Statement”), then any reference herein to
the term Registration Statement shall include such Rule 462
Registration Statement. Any preliminary prospectus included in the
Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Securities Act is hereinafter called a
“Preliminary
Prospectus.” The Preliminary Prospectus relating to
the Securities that was included in the Registration Statement
immediately prior to the pricing of the offering contemplated
hereby is hereinafter called the “Pricing
Prospectus.”
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The
Company is filing with the Commission pursuant to Rule 424 under
the Securities Act a final prospectus relating to the Securities,
which includes the information permitted to be omitted therefrom at
the Effective Time by Rule 430A under the Securities Act. Such
final prospectus, as so filed, is hereinafter called the
“Final
Prospectus.” The Final Prospectus, the Pricing
Prospectus and any preliminary prospectus in the form in which they
were included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act is
hereinafter called a “Prospectus.”
2. Representations
and Warranties of the Company Regarding the
Offering.
(a) The
Company represents and warrants to, and agrees with, the
Underwriter, as of the date hereof and as of the Closing Date (as
defined in Section 4(c) below) and as of each Option Closing Date
(as defined in Section 4(b) below), as follows:
(i) No
Material Misstatements or Omissions. At each time of effectiveness, at the date
hereof, at the Closing Date, and at each Option Closing Date, if
any, the Registration Statement and any post-effective amendment
thereto complied or will comply in all material respects with the
requirements of the Securities Act and the Rules and Regulations
and did not, does not, and will not, as the case may be, contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Time of Sale Disclosure
Package (as defined below) as of the date hereof and at the Closing
Date and on each Option Closing Date, any roadshow or investor
presentations delivered to and approved by the Underwriter for use
in connection with the marketing of the offering of the Securities
(the “Marketing
Materials”), if any, and
the Final Prospectus, as amended or supplemented, as of its date,
at the time of filing pursuant to Rule 424(b) under the Securities
Act, at the Closing Date, and at each Option Closing Date, if any,
did not, does not 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 to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The representations and warranties set forth in the two
immediately preceding sentences shall not apply to statements in or
omissions from the Registration Statement, the Time of Sale
Disclosure Package or any Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by
the Underwriter specifically for use in the preparation thereof,
which written information is described in Section 7(f). The
Registration Statement contains all exhibits and schedules required
to be filed by the Securities Act or the Rules and Regulations.
No order preventing or suspending the
effectiveness or use of the Registration Statement or any
Prospectus is in effect and no proceedings for such purpose have
been instituted or are pending, or, to the knowledge of the
Company, are contemplated or threatened by the Commission.
“Time of Sale
Disclosure Package” means
the Prospectus most recently filed with the Commission before the
time of this Agreement and the description of the transaction
provided by the Underwriter, if any, in the form included on
Schedule
II.
(ii) Marketing
Materials. The Company has not distributed any prospectus or
other offering material in connection with the offering and sale of
the Securities other than the
Time of Sale Disclosure Package and the Marketing Materials. At the time of filing
of the Registration Statement and at the date hereof, the Company
was an “ineligible issuer,” as defined in Rule 405
under the Securities Act and an “excluded issuer” as
defined in Rule 164 under the Securities Act. As a result, the
Company is not eligible to use any “issuer free writing
prospectus” as defined in Rule
433 under the Securities Act in connection with the offering
of the Securities.
(iii) Financial
Statements. The financial
statements of the Company, together with the related notes,
included in the Registration Statement, the Time of Sale Disclosure
Package and the Final Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and the rules and
regulations of the Commission thereunder and fairly present the
financial condition of the Company as of the dates indicated and
the results of operations and changes in cash flows for the periods
therein specified in conformity with U.S. generally accepted
accounting principles (“GAAP”)
consistently applied throughout the periods involved. No other
financial statements, pro forma financial information or schedules
are required under the Securities Act, the Exchange Act or the
Rules and Regulations to be included in the Registration Statement,
the Time of Sale Disclosure Package or the Final
Prospectus.
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(iv) Independent
Accountants. To the
Company’s knowledge, CohnReznick LLP, which has expressed its
opinion with respect to the financial statements and schedules
included as a part of the Registration Statement and included in
the Registration Statement, the Time of Sale Disclosure Package and
the Final Prospectus, is an independent registered public
accounting firm with respect to the Company within the meaning of
the Securities Act and the Rules and
Regulations.
(v) Accounting
Controls. The Company and its subsidiaries maintain systems
of “internal control over financial reporting” (as
defined under Rules 13a-15 and 15d-15 under the Exchange Act) that
comply with the requirements of the Exchange Act and have been
designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with GAAP, including, but not limited to, internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (v) the interactive data in
eXtensible Business Reporting Language included or incorporated by
references in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus fairly present the information called for in all
material respects and are prepared in accordance with the
Commission’s rules and guidelines applicable thereto. Since
the date of the latest audited financial statements included in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting.
(vi) Forward-Looking
Statements. The Company had a reasonable basis for, and made
in good faith, each “forward-looking statement” (within
the meaning of Section 27A of the Securities Act or Section 21E of
the Exchange Act) contained or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package, the
Final Prospectus or the Marketing Materials.
(vii) Statistical
and Marketing-Related Data. All statistical or
market-related data included or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus, or included in the Marketing Materials, are based
on or derived from sources that the Company reasonably believes to
be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources, to the extent
required.
(viii) Approval
of Listing. The Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and is
approved for listing on The NASDAQ Capital Market
(“NASDAQ”).
There is no action pending by the
Company or, to the Company’s knowledge, NASDAQ to
delist the Common Stock from NASDAQ, nor has the Company received
any notification that the Nasdaq is contemplating terminating such
listing. When issued, the Shares will be listed on
NASDAQ.
(ix) Absence
of Manipulation. The Company has not taken, directly or
indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(x) Investment
Company Act. The Company is not
and, after giving effect to the offering and sale of the Securities
and the application of the net proceeds thereof, will not be an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
3. Representations
and Warranties Regarding the Company.
(a) The
Company represents and warrants to, and agrees with, the
Underwriter, as of the date hereof and as of the Closing Date and
as of each Option Closing Date, as follows:
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(i) Good
Standing. Each of the Company
and its subsidiaries has been duly organized and is validly
existing as a corporation or other entity in good standing under
the laws of its jurisdiction of organization. Each of the Company
and its subsidiaries has the power and authority (corporate or
otherwise) to own its properties and conduct its business as
currently being carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus,
and is duly qualified to do business as a foreign corporation or
other entity in good standing in each jurisdiction in which it owns
or leases real property or in which the conduct of its business
makes such qualification necessary, except where the failure to so
qualify would not have or be reasonably likely to result in a
material adverse effect upon the business, prospects, properties,
operations, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole,
or in its ability to perform its obligations under this Agreement
(“Material Adverse
Effect”).
(ii) Authorization.
The Company has the power and authority to (i) enter into this
Agreement, (ii)
authorize, issue and sell the Shares
as contemplated by this Agreement. This Agreement
has
been duly authorized by the Company
and when executed and delivered by the Company, will constitute the
valid, legal and binding obligations of the Company, enforceable
against the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles
of equity.
(iii) Contracts.
The execution, delivery and performance of this
Agreement and
the consummation of the transactions herein contemplated will not
(A) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any law, order, rule
or regulation to which the Company or any subsidiary is subject, or
by which any property or asset of the Company or any subsidiary is
bound or affected, (B) conflict with, result in any violation or
breach of, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to
others any right of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) (a
“Default Acceleration
Event”) of, any
agreement, lease, credit facility, debt, note, bond, mortgage,
indenture or other instrument (the “Contracts”)
or obligation 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, except to the
extent that such conflict, default, or Default Acceleration Event
not reasonably likely to result in a Material Adverse Effect, or
(C) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, the Company’s
Certificate of Incorporation or by-laws.
(iv)
No Violations of
Governing Documents. Neither
the Company nor any of its subsidiaries is in violation, breach or
default under its certificate of incorporation, by-laws or other
equivalent organizational or governing
documents.
(v) Consents.
No consents, approvals, orders, authorizations or filings are
required on the part of the Company in connection with (i) the
execution, delivery or performance of this Agreement, and (ii) the
issue and sale of the Securities, except (A) the registration under
the Securities Act of the Securities, which has been effected, (B)
such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or Blue Sky laws and the rules of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) in connection
with the purchase and distribution of the Securities by the
Underwriter, (C) such consents and approvals as have been obtained
and are in full force and effect, (D) filing of a Listing of
Additional Shares Application with The NASDAQ Stock Market, (E)
such consents and approvals as described in the Registration
Statement and (F) such consents, approvals, orders, authorizations
and filings the failure of which to make or obtain is not
reasonably likely to result in a Material Adverse
Effect.
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(vi) Capitalization.
The Company has an authorized capitalization as set forth in
the Registration Statement, the Time of Sale Disclosure Package and
the Final Prospectus. All of the issued and outstanding shares of
capital stock of the Company are duly authorized and validly
issued, fully paid and nonassessable, and have been issued in
compliance with all applicable securities laws, and conform to the description thereof in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus. All of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, except as set forth
in the Registration Statement, the Time of Sale Disclosure Package
and the Final Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims. Except for the issuances of options or restricted stock in
the ordinary course of business, since the respective dates as of
which information is provided in the Registration Statement, the
Time of Sale Disclosure Package or the Final Prospectus, the
Company has not entered into or granted any convertible or
exchangeable securities, options, warrants, agreements, contracts
or other rights in existence to purchase or acquire from the
Company any shares of the capital stock of the Company. The Shares,
when issued and paid for as provided herein, will be duly
authorized and validly issued, fully paid and nonassessable, will
be issued in compliance with all applicable securities laws, and
will be free of preemptive, registration or similar
rights and
will conform to the description of the capital stock of the Company
contained in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus.
(vii) Taxes.
Each of the Company and its subsidiaries has (a) filed all foreign,
federal, state and local tax returns (as hereinafter defined)
required to be filed with taxing authorities prior to the date
hereof or has duly obtained extensions of time for the filing
thereof and (b) paid all taxes (as hereinafter defined) shown as
due and payable on such returns that were filed and has paid all
taxes imposed on or assessed against the Company or such respective
subsidiary. The provisions for taxes payable, if any, shown on the
financial statements included in the Registration Statement, the
Time of Sale Disclosure Package and the Final Prospectus are
sufficient for all accrued and unpaid taxes, whether or not
disputed, and for all periods to and including the dates of such
consolidated financial statements. To the knowledge of the Company,
no issues have been raised (and are currently pending) by any
taxing authority in connection with any of the returns or taxes
asserted as due from the Company or its subsidiaries, and no
waivers of statutes of limitation with respect to the returns or
collection of taxes have been given by or requested from the
Company or its subsidiaries. The term “taxes” mean all federal,
state, local, foreign, and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits,
license, lease, service, service use, withholding, payroll,
employment, excise, severance, stamp, occupation, premium,
property, windfall profits, customs, duties or other taxes, fees,
assessments, or charges of any kind whatever, together with any
interest and any penalties, additions to tax, or additional amounts
with respect thereto. The term “returns” means all
returns, declarations, reports, statements, and other documents
required to be filed in respect to taxes.
(viii) Material
Change. Since the respective
dates as of which information is given in the Registration
Statement, the Time of Sale Disclosure Package or the Final
Prospectus, (a) neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions other than in
the ordinary course of business, (b) the Company has not declared
or paid any dividends or made any distribution of any kind with
respect to its capital stock; (c) there has not been any change in
the capital stock of the Company or any of its subsidiaries (other
than a change in the number of outstanding shares of Common Stock
due to the issuance of shares upon the exercise of outstanding
options or warrants, upon the
conversion of outstanding shares of preferred stock or other
convertible securities or the issuance of restricted stock awards
or restricted stock units under the Company’s existing stock
awards plan, or any new grants
thereof in the ordinary course of business), (d) there has not been any material change in
the Company’s long-term or short-term debt, and (e) there has
not been the occurrence of any Material Adverse
Effect.
(ix) Absence
of Proceedings. There is not
pending or, to the knowledge of the Company, threatened, any
action, suit or proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject before or by any
court or governmental agency, authority or body, or any arbitrator
or mediator, which is reasonably likely to result in a Material
Adverse Effect.
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(x) Permits.
The Company and each of its subsidiaries holds, and is in
compliance with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders
(“Permits”)
of any governmental or self-regulatory agency, authority or body
(including, without limitation, those administered by the Food and
Drug Administration of the U.S. Department of Health and Human
Services (the “FDA”) or by any foreign, federal, state or
local governmental or regulatory authority performing functions
similar to those performed by the FDA) required for the conduct of
its business, and all such Permits are in full force and
effect, in each case except where the failure to hold, or
comply with, any of them is not reasonably likely to result in a
Material Adverse Effect or adversely affect the consummation of the
transactions contemplated by this Agreement.
(xi) Good
Title. The Company and its
subsidiaries have good and marketable title to all property
(whether real or personal) described in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus as
being owned by them that are material to the business of the
Company, in each case free and clear of all liens, claims, security
interests, other encumbrances or defects, except those that are not
reasonably likely to result in a Material Adverse Effect. The
property held under lease by the Company and its subsidiaries is
held by them under valid, subsisting and enforceable leases with
only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business
of the Company and its subsidiaries.
(xii) Intellectual
Property. The Company and each
of its subsidiaries owns or possesses or has right to use all
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and similar rights
(“Intellectual
Property”) necessary for
the conduct of the business of the Company and its subsidiaries as
currently carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus. To the knowledge of the Company, no action or use by
the Company or any of its subsidiaries involves or gives rise to
any infringement of, or license or similar fees for, any
Intellectual Property of others, except where such action,
use, license or fee is not reasonably likely to result in a
Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice
alleging any such infringement or fee.
(xiii) Employment
Matters. There is (A) no unfair labor practice complaint
pending against the Company, or any of its subsidiaries, nor to the
Company’s knowledge, threatened against it or any of its
subsidiaries, before the National Labor Relations Board, any state
or local labor relation board or any foreign labor relations board,
and no grievance or arbitration proceeding arising out of or under
any collective bargaining agreement is so pending against the
Company or any of its subsidiaries, or, to the Company’s
knowledge, threatened against it and (B) no labor disturbance by
the employees of the Company or any of its subsidiaries exists or,
to the Company’s knowledge, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries principal suppliers,
manufacturers, customers or contractors, that could reasonably be
expected, singularly or in the aggregate, to have a Material
Adverse Effect. The Company is not aware that any key employee or
significant group of employees of the Company or any subsidiary
plans to terminate employment with the Company or any such
subsidiary.
(xiv) ERISA
Compliance. No “prohibited transaction” (as
defined in Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time
(the “Code”)) or
“accumulated funding deficiency” (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the thirty (30)-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred or could reasonably be expected to occur with respect to
any employee benefit plan of the Company or any of its subsidiaries
which would reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect. Each employee benefit
plan of the Company or any of its subsidiaries is in compliance in
all material respects with applicable law, including ERISA and the
Code. The Company and its subsidiaries have not incurred and could
not reasonably be expected to incur liability under Title IV of
ERISA with respect to the termination of, or withdrawal from, any
pension plan (as defined in ERISA). Each pension plan for which the
Company or any of its subsidiaries would have any liability that is
intended to be qualified under
Section 401(a) of the Code is so qualified, and, to the
Company’s knowledge, nothing has occurred, whether by action
or by failure to act, which could, singularly or in the aggregate,
cause the loss of such qualification.
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(xv) Environmental
Matters. The Company and its subsidiaries are in compliance
with all foreign, federal, state and local rules, laws and
regulations relating to the use, treatment, storage and disposal of
hazardous or toxic substances or waste and protection of health and
safety or the environment which are applicable to their businesses
(“Environmental
Laws”), except where the failure to comply has not had
and would not reasonably be expected to have, singularly or in the
aggregate, a Material Adverse Effect. There has been no storage,
generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances by, due to, or caused by the
Company or any of its subsidiaries (or, to the Company’s
knowledge, any other entity for whose acts or omissions the Company
or any of its subsidiaries is or may otherwise be liable) upon any
of the property now or previously owned or leased by the Company or
any of its subsidiaries, or upon any other property, in violation
of any law, statute, ordinance, rule, regulation, order, judgment,
decree or permit or which would, under any law, statute, ordinance,
rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any
violation or liability which has not had and would not reasonably
be expected to have, singularly or in the aggregate, a Material
Adverse Effect; and there has been no disposal, discharge, emission
or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes
or other hazardous substances with respect to which the Company or
any of its subsidiaries has knowledge. In the ordinary course of
business, the Company and its subsidiaries conduct periodic reviews
of the effect of Environmental Laws on their business and assets,
in the course of which they identify and evaluate associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or Governmental Permits
issued thereunder, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of
such reviews, the Company has reasonably concluded that such
associated costs and liabilities would not have, singularly or in
the aggregate, a Material Adverse Effect.
(xvi) SOX
Compliance. The Company is in compliance in all material
respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and all rules and regulations promulgated thereunder or
implementing the provisions thereof.
(xvii) Certain
Regulatory Matters. The clinical, pre-clinical and other
studies and tests conducted by or on behalf of or sponsored by the
Company or its subsidiaries that are described or referred to in
the Registration Statement, the Time of Sale Disclosure Package and
the Final Prospectus were and, if still pending, are being
conducted in accordance in all material respects with all statutes,
laws, rules and regulations, as applicable (including, without
limitation, those administered by the FDA or by any foreign,
federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA). The
descriptions of the results of such studies and tests that are
described or referred to in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus are accurate and
complete in all material respects and fairly present the published
data derived from such studies and tests, and each of the Company
and its subsidiaries has no knowledge of other studies or tests the
results of which are materially inconsistent with or otherwise call
into question the results described or referred to in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus. Except as described in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus, neither the Company nor its subsidiaries has received
any notices or other correspondence from the FDA or any other
foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the
FDA with respect to any ongoing clinical or pre-clinical studies or
tests requiring the termination or suspension of such studies or
tests. For the avoidance of doubt, the Company makes no
representation or warranty that the results of any studies, tests
or preclinical or clinical trials conducted by or on behalf of the
Company will be sufficient to obtain governmental approval from the
FDA or any foreign, state or local governmental body exercising
comparable authority. The Company has established and administers a
compliance program applicable to the Company and its subsidiaries,
to assist the Company, its subsidiaries and their directors,
officers and employees of the Company and its subsidiaries in
complying with applicable regulatory guidelines (including, without
limitation, those administered by the FDA and any other foreign,
federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA). Except
as would not be reasonably expected to result in a Material Adverse
Effect, neither the Company nor any of its subsidiaries has failed
to file with the applicable regulatory authorities (excluding the
FDA or any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those
performed by the FDA) any filing, declaration, listing,
registration, report or submission that is required to be so filed.
Neither the Company nor any of its subsidiaries has failed to file
with the FDA or any foreign, federal, state or local governmental
or regulatory authority performing functions similar to those
performed by the FDA, any filing, declaration, listing,
registration, report or submission that is required to be so filed.
All such filings were in material compliance with applicable laws
when filed and no deficiencies have been asserted by any applicable
regulatory authority (including, without limitation, the FDA or any
foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the
FDA) with respect to any such filings, declarations, listings,
registrations, reports or submissions.
-7-
(xviii)
Money Laundering Laws. The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental
Entity involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(xix) Foreign
Corrupt Practices Act. Neither the Company nor any of its
subsidiaries, nor any director or officer of the Company or any
subsidiary, nor, to the knowledge of the Company, any employee,
representative, agent, affiliate of the Company or any of its
subsidiaries or any other person acting on behalf of the Company or
any of its subsidiaries, is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company and, to the knowledge of the Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(xx) OFAC.
Neither the Company nor any of its subsidiaries, nor any director
or officer of the Company or any subsidiary, nor, to the knowledge
of the Company, any employee, representative, agent, affiliate of
the Company or any of its subsidiaries or any other person acting
on behalf of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering of
the Securities contemplated hereby, or lend, contribute or
otherwise make available such proceeds to any person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(xxi) Insurance.
The Company and each of its subsidiaries carries, or is covered by,
insurance in such amounts and covering such risks as is adequate
for the conduct of its business and the value of its properties and
as is customary for companies engaged in similar businesses in
similar industries.
(xxii) Books
and Records. The minute books of the Company and each of its
subsidiaries have been made available to the Underwriter and
counsel for the Underwriter, and such books (i) contain a complete
summary of all meetings and actions of the board of directors
(including each board committee) and stockholders of the Company
(or analogous governing bodies and interest holders, as
applicable), and each of its subsidiaries since the time of its
respective incorporation or organization through the date of the
latest meeting and action, and (ii) accurately in all material
respects reflect all transactions referred to in such
minutes.
(xxiii)
No Violation. Neither the
Company nor any its subsidiaries nor, to its knowledge, any other
party is in violation, breach or default of any Contract that
has resulted in or could reasonably be expected to result in a
Material Adverse Effect.
(xxiv)
Continued Business. No
supplier, customer, distributor or sales agent of the Company or
any subsidiary has notified the Company or any subsidiary that it
intends to discontinue or decrease the rate of business done with
the Company or any subsidiary, except where such discontinuation or
decrease has not resulted in and could not reasonably be expected
to result in a Material Adverse Effect.
-8-
(xxv) No
Finder’s Fee. There are no claims, payments,
issuances, arrangements or understandings for services in the
nature of a finder’s, consulting or origination fee with
respect to the introduction of the Company to the Underwriter or
the sale of the Securities hereunder or any other arrangements,
agreements, understandings, payments or issuances with respect to
the Company that may affect the Underwriter’s compensation,
as determined by FINRA.
(xxvi)
No Fees. Except as disclosed
to the Underwriter in writing, the Company has not made any direct
or indirect payments (in cash, securities or otherwise) to (i) any
person, as a finder’s fee, investing fee or otherwise, in
consideration of such person raising capital for the Company or
introducing to the Company persons who provided capital to the
Company, (ii) any FINRA member, or (iii) any person or entity that
has any direct or indirect affiliation or association with any
FINRA member within the 12-month period prior to the date on which
the Registration Statement was filed with the Commission
(“Filing
Date”) or thereafter.
(xxvii)
Proceeds. None of the net
proceeds of the offering will be paid by the Company to any
participating FINRA member or any affiliate or associate of any
participating FINRA member, except as specifically authorized
herein.
(xxviii)
No FINRA Affiliations. To
the Company’s knowledge and except as disclosed to the
Underwriter in writing, no (i) officer or director of the Company
or its subsidiaries, (ii) owner of 5% or more of any class of the
Company’s securities or (iii) owner of any amount of the
Company’s unregistered securities acquired within the 180-day
period prior to the Filing Date, has any direct or indirect
affiliation or association with any FINRA member. The Company will
advise the Underwriter and counsel to
the Underwriter if it becomes aware that any officer or
director of the Company or its subsidiaries or any owner of 5% or
more of any class of the Company’s securities is or becomes
an affiliate or associated person of a FINRA member participating
in the offering.
(xxix)
No Financial Advisor. Other
than the Underwriter, no person has the right to act as an
underwriter or as a financial advisor to the Company in connection
with the transactions contemplated hereby.
(xxx)
Certain Statements. The
statements set forth in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus under the captions
“Business—License and Development Agreements” and
“Business—Government Regulation,” insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects, and under the caption “Description of
Securities” insofar as they purport to constitute a summary
of (i) the terms of the Company’s outstanding securities,
(ii) the terms of the Shares, and (iii) the terms of the documents
referred to therein are accurate, complete and fair in all material
respects.
(xxxi)
No Registration
Rights. Except as described in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right
(other than rights which have been waived in writing or otherwise
satisfied) to require the Company to file a registration statement
under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(xxxii)
Prior Sales of Securities.
Except as set forth in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month
period preceding the date hereof, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, stock
option plans or other employee compensation plans or pursuant to
outstanding preferred stock, options, rights or warrants or other
outstanding convertible securities.
(b) Any
certificate signed by any officer of the Company and delivered to
the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to
the matters covered thereby.
-9-
4. Purchase,
Sale and Delivery of Shares.
(a) On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Underwriter, and
the Underwriter agrees to purchase from the Company the respective
numbers of Firm Shares set forth opposite the name of the
Underwriter in Schedule I hereto. The purchase price to
be paid by the Underwriter to the Company for each Firm Share shall
be shall be $___ 1per Firm Share with
respect to investors introduced to the Company by the Underwriter.
The purchase price to be paid by the Underwriter to the Company for
each Firm Share shall be $____ for each Firm Share with respect to
certain other investors (the “Other
Investors”).
Notwithstanding the foregoing, if the Other Investors participate
in the Offering for a minimum aggregate amount of $2,000,000, the
Underwriter shall receive a flat fee of $100,000 (but, for the
avoidance of doubt, will not receive any underwriting discount with
respect to the public offering price of the Firm Shares sold to
such Other Investors)
(b) The
Company hereby grants to the Underwriter the option to purchase
some or all of the Option Shares and, upon the basis
of the warranties and representations
and subject to the terms and conditions herein set forth, the
Underwriter shall have the right to purchase all or any portion of
the Option Shares as may be necessary to cover over-allotments made
in connection with the transactions contemplated hereby. The
purchase price to be paid by the Underwriter for the Option Shares
shall be $____ per share.
This option may be exercised by the
Underwriter at any time and from time to time on or before the
forty-fifth (45th)
day following the date hereof, by written notice to the Company
(the “Option
Notice”). The Option
Notice shall set forth the aggregate number of Option Shares
as to which the option is being
exercised, and the date and time when the Option Shares are to be
delivered (such date and time being herein referred to as the
“Option Closing
Date”);
provided, however, that the Option Closing Date shall not be
earlier than the Closing Date (as defined below) nor earlier than
the first business day after the date on which the option shall
have been exercised nor later than the fifth business day after the
date on which the option shall have been exercised unless the
Company and the Underwriter otherwise agree.
(c) Payment
of the purchase price for and delivery of the Option Shares shall
be made on an Option Closing Date in the same manner and at the
same office as the payment for the Firm Shares, as set forth in
subparagraph (d) below.
(d) The
Firm Shares will be delivered by the Company to the Underwriter
against payment of the purchase price therefor by wire transfer of
same day funds payable to the order of the Company at the offices
of Xxxxxxx & Company (UK) Ltd., 000 Xxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx, XX 00000, or such other location as may be mutually
acceptable, at 9:00 a.m. Eastern Time, on the third (or if the Firm
Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m. Eastern time, the fourth) full business day following the date
hereof, or at such other time and date as the Underwriter and the
Company determine pursuant to Rule 15c6-1(a) under the Exchange
Act, or, in the case of the Option Shares, at such date and time
set forth in the Option Notice. The time and date of delivery of
the Firm Shares is referred to herein as the
“Closing
Date.” On the Closing
Date, the Company shall deliver the Firm Shares, which shall be
registered in the name or names and shall be in such denominations
as the Underwriter may request at least one (1) business day before
the Closing Date, to the account of the Underwriter, which delivery
shall be made through the facilities of the Depository Trust
Company’s DWAC system.
5. Covenants.
(a) The
Company covenants and agrees with the Underwriter as
follows:
(i) The
Company shall prepare the Final Prospectus in a form approved by
the
1 93% of public offering price
-10-
Underwriter and
file such Final Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of
business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as
may be required by the Rules and Regulations.
(ii) During
the period beginning on the date hereof and ending on the later of
the Closing Date or such date as determined by the Underwriter the
Final Prospectus is no longer required by law to be delivered in
connection with sales by an underwriter or dealer (the
“Prospectus Delivery
Period”), prior to
amending or supplementing the Registration Statement, including any
Rule 462 Registration Statement, the Time of Sale Disclosure
Package or the Final Prospectus, the Company shall furnish to the
Underwriter for review and comment a copy of each such proposed
amendment or supplement, and the Company shall not file any such
proposed amendment or supplement to which the Underwriter
reasonably objects.
(iii) From
the date of this Agreement until the end of the Prospectus Delivery
Period, the Company shall promptly advise the Underwriter in
writing (A) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, (B) of
the time and date of any filing of any post-effective amendment to
the Registration Statement or any amendment or supplement to the
Time of Sale Disclosure Package or the Final Prospectus, (C) of the
time and date that any post-effective amendment to the Registration
Statement becomes effective and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending its
use or the use of the Time of Sale Disclosure Package or the Final
Prospectus, or of any proceedings to remove, suspend or terminate
from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or
designated for quotation, or of the threatening or initiation of
any proceedings for any of such purposes. If the Commission shall
enter any such stop order at any time during the Prospectus
Delivery Period, the Company will use its reasonable efforts to
obtain the lifting of such order at the earliest possible moment.
Additionally, the Company agrees that it shall comply with the
provisions of Rules 424(b), 430A, 430B or
430C as applicable, under the
Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under Rule 424(b) or Rule 433 were
received in a timely manner by the Commission (without reliance on
Rule 424(b)(8) or 164(b) of the Securities
Act).
(iv) (A)
During the Prospectus Delivery Period, the Company will comply with
all requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from time
to time in force, and by the Exchange Act, as now and hereafter
amended, so far as necessary to permit the continuance of sales of
or dealings in the Securities as contemplated by the provisions
hereof, the Time of Sale Disclosure Package, the Registration
Statement and the Final Prospectus. If during the Prospectus
Delivery Period any event occurs the result of which would cause
the Final Prospectus (or if the Final Prospectus is not yet
available to prospective purchasers, the Time of Sale Disclosure
Package ) to include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or
if during such period it is necessary or appropriate in the opinion
of the Company or its counsel or the Underwriter or counsel to the
Underwriter to amend the Registration Statement or supplement the
Final Prospectus (or if the Final Prospectus is not yet available
to prospective purchasers, the Time of Sale Disclosure
Package ) to comply with the Securities Act, the Company will
promptly notify the Underwriter, allow the Underwriter the opportunity to provide
reasonable comments on such amendment, prospectus supplement or
document, and will amend the Registration Statement or supplement
the Final Prospectus (or if the Final
Prospectus is not yet available to prospective purchasers, the Time
of Sale Disclosure Package) or file such document (at the expense
of the Company) so as to correct such statement or omission or
effect such compliance.
(v) The
Company shall take or cause to be taken all necessary action to
qualify the Securities for sale under the securities laws of such
jurisdictions as the Underwriter reasonably designates and to
continue such qualifications in effect so long as required for the
distribution of the Securities, except that the Company shall not
be required in connection therewith to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified, to execute a general consent to
service of
process in any state or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
subject.
-11-
(vi) The
Company will furnish to the Underwriter and counsel to the
Underwriter copies of the Registration Statement and each
Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the
Underwriter may from time to time reasonably
request.
(vii) The
Company will make generally available to its security holders as
soon as practicable, but in any event not later than 15 months
after the end of the Company’s current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month
period that shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Rules and
Regulations.
(viii) The
Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, will pay or cause to
be paid (A) all expenses (including transfer taxes allocated to the
respective transferees) incurred in connection with the delivery to
the Underwriter of the Securities (including all fees and expenses
of the registrar and transfer agent of the Shares, and the cost of
preparing and printing stock certificates), (B) all expenses and
fees (including, without limitation, fees and expenses of the
Company’s counsel) in connection with the preparation,
printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all
amendments, schedules, and exhibits thereto), the Securities, the
Time of Sale Disclosure Package, any Prospectus, the Final
Prospectus, and any amendment thereof or supplement thereto, (C)
the reasonable filing fees and reasonable disbursements of counsel
to the Underwriter incident to any required review and approval by
FINRA, of the terms of the sale of the Securities, (D) listing
fees, if any, and (E) all other costs and expenses incident to the
performance of the Company’s obligations hereunder that are
not otherwise specifically provided for herein. If the transactions
contemplated hereunder are consummated, the Company will reimburse
the Underwriter for the Underwriter’s reasonable
out-of-pocket expenses, including legal fees and disbursements, in
connection with the purchase and sale of the Securities
contemplated hereby up to an aggregate of $80,000 (including
amounts payable pursuant to clause (C)). If this Agreement is
terminated by the Company or the Underwriter in accordance with the
provisions of Section 9, the Company will reimburse the Underwriter
for all actual accountable and documented expenses (including, but
not limited to, reasonable fees and disbursements of counsel,
travel expenses, postage, facsimile and telephone charges) incurred
by the Underwriter in connection with its investigation, preparing
to market and marketing the Securities or in contemplation of
performing its obligations hereunder but in no event more than
$50,000 in the aggregate.
(ix) The
Company intends to apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in
the Registration Statement, the Time of Sale Disclosure Package and
the Final Prospectus.
(x) The
Company has not taken and will not take, directly or indirectly,
during the Prospectus Delivery Period, any action designed to or
which might reasonably be expected to cause or result in, or that
has constituted, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(xi) The
Company hereby agrees that, without the prior written consent of
the Underwriter, it will not,
during the period ending 90 days after the date hereof
(“Lock-Up
Period”), (i) offer, pledge, issue, sell, contract to
sell, purchase, contract to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock
or any securities convertible into or exercisable or exchangeable
for Common Stock; or (ii) enter into
any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise; or
(iii) file any registration statement with the Commission relating
to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding sentence shall not
apply to (1) the Securities to be sold hereunder, (2) the issuance
of Common Stock upon the exercise of options or warrants or the
conversion of outstanding preferred stock or other outstanding
convertible securities disclosed as outstanding in the Registration
Statement (excluding exhibits thereto), the Time of Sale Disclosure
Package, and the Final Prospectus, or (3) the issuance of employee
stock options not exercisable during
the Lock-Up Period and the grant of restricted stock awards or
restricted stock units or shares of Common Stock pursuant to equity
incentive plans described in the Registration Statement (excluding
exhibits thereto), the Time of Sale Disclosure Package, and the
Final Prospectus.
-12-
(xii) To
engage and maintain, at its expense, a registrar and transfer agent
for the Common Stock.
(xiii) To
not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected
to constitute, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any securities of the
Company to facilitate the sale or resale of the
Securities.
6. Conditions
of the Underwriter’s Obligation. The obligation of the Underwriter hereunder to
purchase the Shares is subject
to the accuracy, as of the date hereof and at all times
through the Closing Date, and on each Option Closing Date
(as if made on the Closing Date or such Option Closing Date, as
applicable), of and compliance with
all representations, warranties and agreements of the Company
contained herein, the performance by the Company of its obligations
hereunder and the following additional
conditions:
(a) If
filing of the Final Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, is required under
the Securities Act or the Rules and Regulations, the Company shall
have filed the Final Prospectus (or such amendment or supplement)
or such Issuer Free Writing Prospectus with the Commission in the
manner and within the time period so required (without reliance on
Rule 424(b)(8) or 164(b) under the Securities Act); the
Registration Statement shall remain effective; no stop order
suspending the effectiveness of the Registration Statement or any
part thereof, any Rule 462 Registration Statement, or any amendment
thereof, nor suspending or preventing the use of the Time of Sale
Disclosure Package, any Prospectus or the Final Prospectus shall
have been issued; no proceedings for the issuance of such an order
shall have been initiated or threatened by the Commission; any
request of the Commission or the Underwriter for additional
information (to be included in the Registration Statement, the Time
of Sale Disclosure Package, any Prospectus, the Final Prospectus or
otherwise) shall have been complied with to the satisfaction of the
Underwriter.
(b)
FINRA shall have raised no
objection to the fairness and reasonableness of the underwriting
terms and arrangements.
(c)
The Underwriter shall not have
reasonably determined, and
advised the Company, that the Registration Statement, the Time of
Sale Disclosure Package, any Prospectus, the Final Prospectus, or
any amendment thereof or supplement thereto, contains an untrue
statement of fact which, in the
reasonable opinion of the Underwriter, is material, or omits to state a fact
which, in the reasonable
opinion of the Underwriter, is
material and is required to be stated therein or necessary to make
the statements therein not misleading.
(d) On
or after the date hereof (i) no downgrading shall have occurred in
the rating accorded any of the Company’s securities by any
“nationally recognized statistical organization,” as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of
the Company’s securities.
(e) On
the Closing Date and on each Option Closing Date, there shall have
been furnished to the Underwriter the opinion and negative
assurance letters of Sichenzia Xxxx Xxxxxxx Xxxxxx LLP, counsel to
the Company, dated the Closing Date or the Option Closing Date, as
applicable, and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter.
(f) On
the Closing Date and on each Option Closing Date, there shall have
been furnished to the Underwriter the opinion of Xxxxx Day,
intellectual property counsel to the Company, dated the Closing
Date or the Option Closing Date, as applicable, and addressed to
the Underwriter, in form and substance reasonably satisfactory to
the Underwriter.
(g) On
the Closing Date and on each Option Closing Date, there shall have
been furnished to the Underwriter the opinion of Xxxxx Xxxxx Xxxx
Xxxxxx Xxxxxxx and Xxxxx PC, general counsel to the Company, dated
the Closing Date or the Option Closing Date, as applicable, and
addressed to the Underwriter, in form and substance reasonably
satisfactory to the Underwriter.
-13-
(h) On
the Closing Date and on each Option Closing Date, there shall have
been furnished to the Underwriter the negative assurance letter of
Xxxxxxxx Xxxxxx Xxxxxxx & Hampton LLP, counsel to the
Underwriter, dated the Closing Date or the Option Closing Date, as
applicable, and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter.
(i) The
Underwriter shall have received a letter of CohnReznick LLP, on the
date hereof and on the Closing Date and on each Option Closing
Date, addressed to the Underwriter, confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating
to the qualifications of accountants under Rule 2-01 of Regulation
S-X of the Commission, and confirming, as of the date of each such
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Registration Statement, the
Time of Sale Disclosure Package and the Final Prospectus, as of a
date not prior to the date hereof or more than five days prior to
the date of such letter), the conclusions and findings of said firm
with respect to the financial information and other matters
required by the Underwriter.
(j) On
the Closing Date and on each Option Closing Date, there shall have
been furnished to the Underwriter a certificate, dated the Closing
Date and on each Option Closing Date and addressed to the
Underwriter, signed by the chief executive officer and the chief
financial officer of the Company, in their capacity as officers of
the Company, to the effect that:
(i) The
representations and warranties of the Company in this Agreement
that are qualified by materiality or by reference to any Material
Adverse Effect are true and correct in all respects, and all other
representations and warranties of the Company in this Agreement are
true and correct, in all material respects, as if made at and as of
the Closing Date and on the Option Closing Date, and the Company
has complied in all material respects with all the agreements and
satisfied all the conditions on its part required to be performed
or satisfied at or prior to the Closing Date or on the Option
Closing Date, as applicable;
(ii) No
stop order or other order (A) suspending the effectiveness of the
Registration Statement or any part thereof or any amendment
thereof, (B) suspending the qualification of the
Securities for
offering or sale, or (C) suspending or preventing the use of the
Time of Sale Disclosure Package, any Prospectus or the Final
Prospectus, has been issued, and no proceeding for that purpose has
been instituted or, to their knowledge, is contemplated by the
Commission or any state or regulatory body; and
(iii) There
has been no occurrence of any event resulting or reasonably likely
to result in a Material Adverse Effect during the period from and
after the date of this Agreement and prior to the Closing Date
or on the Option Closing Date, as
applicable.
(k) On
or before the date hereof, the Underwriter shall have received duly
executed lock-up agreement, in the form set forth on
Exhibit A
hereto, by and between the Underwriter
and each of the parties specified in Schedule III.
(l) Nasdaq
shall have approved the listing of the Shares, subject to official
notice of issuance and satisfactory evidence thereof shall have
been provided to the Underwriter and its
counsel.
(m) The
Company shall have furnished to the Underwriter and its counsel
such additional documents, certificates and evidence as the
Underwriter or its counsel may have reasonably
requested.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Underwriter by notice to the Company at any
time at or prior to the Closing Date or on the Option Closing Date, as applicable,
and such termination shall be without liability of any party to any
other party, except that Section 5(a)(viii), Section 7 and Section
8 shall survive any such termination and remain in full force and
effect.
-14-
7.
Indemnification
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless the
Underwriter, its affiliates, directors and officers and employees,
and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any losses, claims, damages or
liabilities to which the Underwriter or such person may become
subject, under the Securities Act or otherwise (including in
settlement of any litigation if such settlement is effected with
the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness and at any
subsequent time pursuant to Rules 430A and 430B of the Rules and
Regulations, or arise out of or are based upon the omission from
the Registration Statement, or alleged omission to state therein, a
material fact required to be stated therein or necessary to make
the statements therein not misleading (ii) an untrue statement or
alleged untrue statement of a material fact contained in the Time
of Sale Disclosure Package, any Prospectus, the Final Prospectus,
or any amendment or supplement thereto, or the Marketing Materials
or in any other materials used in connection with the offering of
the Securities, or arise out of
or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, (iii) in whole or in part, any
inaccuracy in the representations and warranties of the Company
contained herein, or (iv) in whole or in part, any failure of the
Company to perform its obligations hereunder or under law, and will
reimburse the Underwriter for any legal or other expenses
reasonably incurred by it in connection with evaluating,
investigating or defending against such loss, claim, damage,
liability or action; provided,
however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Time of
Sale Disclosure Package, any Prospectus, the Final Prospectus, or
any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use in the preparation thereof, which
written information is described in Section
7(f).
(b) The
Underwriter will indemnify, defend and hold harmless the Company,
its affiliates, directors, officers and employees, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any losses,
claims, damages or liabilities to which the Company may become
subject, under the Securities Act or otherwise (including in
settlement of any litigation, if such settlement is effected with
the written consent of the Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Time of Sale Disclosure Package, any Prospectus, the
Final Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Time of Sale Disclosure Package,
any Prospectus, the Final Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for use in the preparation thereof, which written
information is described in Section 7(f), and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with evaluating, investigating, and defending
against any such loss, claim, damage, liability or action.
The obligation of the Underwriter to
indemnify the Company (including any controlling person, director
or officer thereof) shall be limited to the amount of the
underwriting discount applicable to the Shares to be purchased by
the Underwriter hereunder actually received by the
Underwriter.
-15-
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have to any
indemnified party except to the extent such indemnifying party has
been materially prejudiced by such failure. In case any such action
shall be brought against any indemnified party, and it shall notify
the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of the
indemnifying party’s election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof; provided, however, that if (i) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are
different from or in addition to those available to the
indemnifying party, (ii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party), or (iii) the
indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such
action within a reasonable time after receiving notice of the
commencement of the action, the indemnified party shall have the
right to employ a single counsel to represent it in any claim in
respect of which indemnity may be sought under subsection (a) or
(b) of this Section 7, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the
indemnifying party or parties and reimbursed to the indemnified
party as incurred.
The
indemnifying party under this Section 7 shall not be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is a party or could be named
and indemnity was or would be sought hereunder by such indemnified
party, unless such settlement, compromise or consent (a) includes
an unconditional release of such indemnified party from all
liability for claims that are the subject matter of such action,
suit or proceeding and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) If
the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred
to in subsection (a) or (b) above, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other from the
offering and sale of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriter on the other in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the
total underwriting discount received by the Underwriter, in each
case as set forth in the table on the cover page of the Final
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriter and the parties’ relevant intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriter agree
that it would not be just and equitable if contributions pursuant
to this subsection (d) were to be determined by pro rata allocation
or by any other method of allocation that does not take account of
the equitable considerations referred to in the first sentence of
this subsection (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
against any action or claim that is the subject of this subsection
(d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any
amount in excess of the amount of the of the underwriting discount
applicable to the Shares to be purchased by the Underwriter
hereunder actually received by the Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation.
-16-
(e) The
obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and
the benefits of such obligations shall extend, upon the same terms
and conditions, to each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act; and the obligations of the
Underwriter under this Section 7 shall be in addition to any
liability that the Underwriter may otherwise have and the benefits
of such obligations shall extend, upon the same terms and
conditions, to the Company, and its officers, directors and each
person who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange
Act.
(f) For
purposes of this Agreement, the Underwriter confirms, and the
Company acknowledges, that there is no information concerning the
Underwriter furnished in writing to the Company by the Underwriter
specifically for preparation of or inclusion in the Registration
Statement, the Time of Sale Disclosure Package, any Prospectus or
the Final Prospectus, other than the statement set forth in the
last paragraph on the cover page of the Prospectus, the marketing
and legal names of the Underwriter, and the statements set forth in
the “Underwriting” section of the Registration
Statement, the Time of Sale Disclosure Package, and the Final
Prospectus only insofar as such statements relate to the amount of
selling concession and re-allowance, if any, or to over-allotment,
stabilization and related activities that may be undertaken by the
Underwriter.
8. Representations
and Agreements to Survive Delivery. All representations, warranties, and agreements
of the Company contained herein or in certificates delivered pursuant
hereto, including, but not limited to, the agreements of the
Underwriter and the Company contained in Section 5(a)(viii) and
Section 7 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the
Underwriter or any controlling persons thereof, or the Company or
any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Shares
to and by the Underwriter
hereunder.
9. Termination
of this Agreement.
(a) The
Underwriter shall have the right to
terminate this Agreement by giving notice to the Company as
hereinafter specified at any time at or prior to the Closing Date
or any Option Closing Date (as to the Option Shares to be purchased
on such Option Closing Date only), if in the discretion of
the Underwriter, (i) there has
occurred any material adverse change in the securities markets or
any event, act or occurrence that has materially disrupted, or in
the opinion of the Underwriter,
will in the future materially disrupt, the securities markets or
there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as
to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the
Shares or
enforce contracts for the sale of the Shares, (ii)
trading in the Company’s Common Stock shall have been
suspended by the Commission, NASDAQ or the OTCQB or trading in
securities generally on the Nasdaq Stock Market, the NYSE or the
NYSE MKT shall have been suspended, (iii) minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the Nasdaq Stock Market,
the NYSE or NYSE MKT, by such exchange or by order of the
Commission or any other governmental authority having jurisdiction,
(iv) a banking moratorium shall have been declared by federal or
state authorities, (v) there shall have occurred any attack on,
outbreak or escalation of hostilities or act of terrorism involving
the United States, any declaration by the United States of a
national emergency or war, any substantial change or development
involving a prospective substantial change in United States or
international political, financial or economic conditions or any
other calamity or crisis, or (vi) the Company suffers any loss by
strike, fire, flood, earthquake, accident or other calamity,
whether or not covered by insurance, or (vii) in the judgment of
the Underwriter, there has
been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the
Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus, any material adverse change in the assets,
properties, condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company
and its subsidiaries considered as a whole, whether or not arising
in the ordinary course of business. Any such termination shall be
without liability of any party to any other party except that the
provisions of Section 5(a)(viii) and Section 7 hereof shall at all
times be effective and shall survive such
termination.
(b) If
the Underwriter elects to
terminate this Agreement as provided in this Section, the Company
shall be notified promptly by the Underwriter by telephone, confirmed by
letter.
-17-
10. [RESERVED]
11. Notices.
Except as otherwise provided herein, all communications hereunder
shall be in writing and, if to the Underwriter, shall be mailed,
delivered or telecopied to Xxxxxxx & Company (UK) Ltd., 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy
number: 000-000-0000, Attention: Managing Director; and if to the
Company, shall be mailed, delivered or telecopied to it at MabVax
Therapeutics Holdings, Inc., 00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000, telecopy number: 858-792-7375, Attention: J.
Xxxxx Xxxxxx, Chairman, President and CEO; or in each case to such
other address as the person to be notified may have requested in
writing. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice
of a new address for such purpose.
12. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors
and assigns and the controlling persons, officers and directors
referred to in Section 7. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation
any legal or equitable remedy or claim under or in respect of this
Agreement or any provision herein contained. The term
“successors and assigns” as herein used shall not
include any purchaser, as such purchaser, of any of the Shares from
the Underwriter.
13. Absence
of Fiduciary Relationship. The
Company acknowledges and agrees that: (a) the Underwriter has been
retained solely to act as underwriter in connection with the sale
of the Shares and that no fiduciary, advisory or agency
relationship between the Company and the Underwriter has been
created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Underwriter has advised or
is advising the Company on other matters; (b) the price and other
terms of the Shares set forth in this Agreement were established by
the Company following discussions and arms-length negotiations with
the Underwriter and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (c)
it has been advised that the Underwriter and its affiliates are
engaged in a broad range of transactions that may involve interests
that differ from those of the Company and that the Underwriter has
no obligation to disclose such interest and transactions to the
Company by virtue of any fiduciary, advisory or agency
relationship; and (d) it has been advised that the Underwriter is
acting, in respect of the transactions contemplated by this
Agreement, solely for the benefit of the Underwriter, and not on
behalf of the Company.
14. Amendments
and Waivers. No supplement,
modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The failure
of a party to exercise any right or remedy shall not be deemed or
constitute a waiver of such right or remedy in the future. No
waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision hereof
(regardless of whether similar), nor shall any such waiver be
deemed or constitute a continuing waiver unless otherwise expressly
provided.
15. Partial
Unenforceability. The
invalidity or unenforceability of any section, paragraph, clause or
provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph, clause or
provision.
16. Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York.
17. Submission
to Jurisdiction. The Company
irrevocably (a) submits to the jurisdiction of the Supreme Court of
the State of New York, New York county, or in the United States
District Court for the Southern District of New York for the
purpose of any suit, action, or other proceeding arising out of
this Agreement, or any of the agreements or transactions
contemplated by this Agreement, the Registration Statement, the
Time of Sale Disclosure Package, any Prospectus and the Final
Prospectus (each a “Proceeding”),
(b) agrees that all claims in respect
of any Proceeding may be heard and determined in any such court,
(c) waives, to the fullest extent permitted by law, any immunity
from jurisdiction of any such court or from any legal process
therein, (d) agrees not to commence any Proceeding other than in
such courts, and (e) waives, to the fullest extent permitted by
law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND
CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE REGISTRATION STATEMENT, THE TIME OF SALE DISCLOSURE
PACKAGE, ANY PROSPECTUS AND THE FINAL PROSPECTUS.
18. Counterparts.
This Agreement may be executed and
delivered (including by facsimile transmission or electronic mail)
in one or more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be
an original and all such counterparts shall together constitute one
and the same instrument.
[Signature
Page Follows]
-18-
Please
sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement
between the Company and the Underwriter in accordance with its
terms.
|
|
Very truly yours,
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|
|
|
|
|
|
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By:
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J. Xxxxx
Xxxxxx
Chairman,
President and CEO
|
Confirmed as of the date first above-mentioned.
XXXXXXX & COMPANY (UK) LTD.
By:
Name:
Title:
-19-
SCHEDULE I
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Name
|
|
Number
of Firm Shares to be Purchased
|
|
|
Number
of Option Shares to be Purchased
|
|
Xxxxxxx
& Company (UK) Ltd.
|
|
|
|
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|
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Total
|
|
|
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S-1
SCHEDULE II
Final Term Sheet
|
Issuer:
|
MabVax
Therapeutics Holdings, Inc. (the
“Company”)
|
|
Symbol:
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MBVX
|
|
Securities:
|
________
shares of common stock, par value $0.01 per share (the
“Common Stock”), of the Company.
|
|
|
|
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Public
offering price:
|
$____
per share of Common Stock
|
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Underwriting
discount:
|
$____
per share of Common Stock with respect to investors introduced to
the Company be Xxxxxxx & Company (UK) Ltd.
(“Xxxxxxx”). Xxxxxxx will also receive a fee of
$100,000 if certain investors participate in the offering in the
aggregate minimum amount of $2,000,000 (in lieu of any underwriting
discount).
|
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Overallotment
option:
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Up to
an additional _______ shares of Common Stock at a price of $____
per share.
|
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Expected
net proceeds:
|
Approximately
$____ million ($____ if the overallotment option is exercised in
full) (after deducting the underwriting discount and estimated
offering expenses payable by the Company)
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Trade
date:
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________,
2017
|
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Settlement
date:
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________,
2017
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Underwriter:
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Xxxxxxx
& Company (UK) Ltd.
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S-2
SCHEDULE III
List of officers, directors and stockholders executing lock-up
agreements
J.
Xxxxx Xxxxxx
Xxxxxxx
X. Xxxxx
Xxxxxxx
X. Xxxxxxxxx
Xxxxxx
X. Xxxxxxx
Xxxxxx
X. Xxxxxxxxxx, M.D.
Xxxx X.
Xxxxx
Xxxxxxx
X. Xxxxxxx, M.D., Ph.D.
Xxxxxx
X. Xxxxxxx
Xxxxxxx
X. Xxxxxx, CMA, MBA
Xxxx X.
Xxxxxxx, Ph.D.
Xxxx
Xxxxxxx, M.D., MBA
S-3
EXHIBIT A
Form of Lock-Up Agreement
_______,
2017
Xxxxxxx & Company (UK) Ltd.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies
and Gentlemen:
The
undersigned understands that you (the “Underwriter”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with MabVax
Therapeutics Holdings, Inc., a Delaware corporation (the
“Company”), relating to a
proposed offering of securities of the Company (the
“Offering”) including
shares of the Common Stock, par value $0.01 per share (the
“Common
Stock”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the
Underwriting Agreement.
In
consideration of the foregoing, and in order to induce you to
participate the Offering, and for other good and valuable
consideration receipt of which is hereby acknowledged, the
undersigned hereby agrees that, without the prior written consent
of the Underwriter (which consent may be withheld in its sole
discretion), the undersigned will not, during the period (the
“Lock-Up
Period”) beginning on the date hereof and ending on
the date 90 days after the date of the final prospectus relating to
the Offering (the “Final Prospectus”), (1)
offer, pledge, announce the intention to sell, sell, contract to
sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or
indirectly, or file (or participate in the filing of) a
registration statement with the Securities and Exchange Commission
in respect of, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for shares of
Common Stock (including without limitation, shares of Common Stock
which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and
Exchange Commission and securities which may be issued upon
exercise of a stock option or warrant), (2) enter into any swap or
other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the shares of, whether any
such transaction described in clause (1) or (2) above is to be
settled by delivery of shares of Common Stock or such other
securities, in cash or otherwise, (3) make any demand for or
exercise any right with respect to, the registration of any shares
of Common Stock or any security convertible into or exercisable or
exchangeable for shares of Common Stock, or (4) publicly announce
an intention to effect any transaction specific in clause (1), (2)
or (3) above.
Notwithstanding the
foregoing, the restrictions set forth in clause (1) and (2) above
shall not apply to (a) transfers (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in
writing by the restrictions set forth herein, or (ii) to any trust
for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, provided that the trustee of
the trust agrees to be bound in writing by the restrictions set
forth herein, and provided further that any such transfer shall not
involve a disposition for value, (b) the acquisition or exercise of
any stock option issued pursuant to the Company’s existing
stock option plan, including any exercise effected by the delivery
of shares of Common Stock of the Company held by the undersigned,
or (c) the purchase or sale of the Company’s securities
pursuant to a plan, contract or instruction that satisfies all of
the requirements of Rule 10b5-1(c)(1)(i)(B) that was in effect
prior to the date hereof. For purposes of this Lock-Up Agreement,
“immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin.
Additionally, and notwithstanding anything to the contrary herein,
the restrictions set forth herein shall not apply to
[_____]2 shares of common stock subject to a
restricted stock grant that will vest on April 4,
2017.
A-1
The
foregoing restrictions are expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which
is designed to or reasonably expected to lead to or result in a
sale or disposition of shares of Common Stock even if such
securities would be disposed of by someone other than the
undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or
grant of any right (including without limitation any put option or
put equivalent position or call option or call equivalent position)
with respect to any of the shares of Common Stock or with respect
to any security that includes, relates to, or derives any
significant part of its value from such shares.
The
undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All
authority herein conferred or agreed to be conferred and any
obligations of the undersigned shall be binding upon the
successors, assigns, heirs or personal representatives of the
undersigned.
The
undersigned also agrees and consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar
or depositary against the transfer of the undersigned’s
shares of Common Stock except in compliance with the foregoing
restrictions.
The
undersigned understands that, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than
the provisions thereof which survive termination) shall terminate
or be terminated prior to payment for and delivery of the
securities to be sold thereunder, the undersigned shall be released
from all obligations under this Lock-Up Agreement.
This
Lock-Up Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the
conflict of laws principles thereof.
_______________________________
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Very
truly yours,
________________________________
Name:
|
A-2