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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act
of 1934
(Amendment
No. )
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Filed by
the Registrant [X]
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Filed
by a Party other than the Registrant [
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Check
the appropriate box:
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[
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Preliminary
Proxy Statement
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[
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Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
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[X]
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Definitive
Proxy Statement
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[
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Definitive
Additional Materials
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[
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Soliciting
Material under §240.14a-12
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MABVAX THERAPEUTICS
HOLDINGS, INC.
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(Name
of Registrant as Specified in Its Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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[X]
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No
fee required.
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[
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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[
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Fee
paid previously with preliminary materials.
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[
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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(3)
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Filing
Party:
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(4)
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Date
Filed:
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MABVAX THERAPEUTICS HOLDINGS, INC.
11535 Sorrento Valley Rd., Suite 400
San Diego, CA 92121
(858) 259-9405
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON NOVEMBER 22, 2017
November 13,
2017
To
the stockholders of MabVax Therapeutics Holdings,
Inc.:
Notice is hereby given that the Special Meeting of
Stockholders (the “Special Meeting”) of MabVax
Therapeutics Holdings, Inc., a Delaware corporation (the
“Company”), will be held on
November 22, 2017, at 10:00 a.m. local time, at
11535 Sorrento Valley Rd., Suite 400, San Diego, CA 92121 for the
following purposes, as more fully described in the accompanying
proxy statement (the “Proxy
Statement”):
1)
To
approve the potential issuance of up to an aggregate of 9,666,667
shares of common stock, in excess of 19.99% of the number of shares
of common stock that were issued and outstanding on October 17,
2017, upon the conversion of 58,000 shares of the Company’s
newly authorized Series L Convertible Preferred Stock, which were
issued to certain holders of the Company’s Preferred Stock
pursuant to Exchange Agreements dated October 18,
2017;
2)
To
ratify the issuance of up to an aggregate of 2,900,000 restricted
shares of common stock to certain investors in the Company’s
May 2017 public offering, in excess of 19.99% of the number of
shares of common stock that were issued and outstanding on May 3,
2017, including 1,968,664 shares of common stock underlying the
Company’s Series I Convertible Preferred Stock;
3)
To
authorize an amendment to the
Company’s Fifth Amended and Restated 2014 Employee,
Director and Consultant Equity Incentive Plan to increase the
number of shares available for issuance thereunder to 10,128,406
shares from 6,128,406 shares, representing an increase of 4,000,000
shares, to increase the number of shares available for issuance
under the “evergreen” provision and to increase the
number of shares issuable to any one participant in any fiscal year
to
3,600,000 shares, representing an increase of 2,600,000
shares
; and
4)
To
transact other business that may properly come before the meeting
and any postponement(s) or adjournment(s) thereof.
Pursuant
to the amended and restated bylaws of the Company, the Board of
Directors has fixed the close of business on November 10, 2017 as
the record date (the “Record Date”) for determination
of stockholders entitled to notice and to vote at the Special
Meeting and any adjournment thereof. Holders of the Company’s
common stock and Series D through Series L Convertible Preferred
Stock as of the Record Date, are entitled to vote at the Special
Meeting. This notice, the Proxy Statement, and proxy card
will be first sent or made available to stockholders on or about
November 14, 2017.
Your
vote is important. Whether or not you plan to attend the Special
Meeting, please vote your shares by promptly completing, signing
and returning the enclosed proxy card using the enclosed envelope.
The enclosed envelope requires no postage if mailed within the
United States. You may also vote your shares over telephone or the
internet in accordance with the instructions on the proxy card. Any
stockholder attending the Special Meeting may vote in person, even
if you have already returned a proxy card or voting instruction
card.
BY
ORDER OF THE BOARD OF DIRECTORS
/s/
J.
David Hansen
J.
David Hansen
Chairman
of the Board of Directors
MABVAX THERAPEUTICS HOLDINGS, INC.
11535 Sorrento Valley Rd., Suite 400
San Diego, CA 92121
(859) 259-9405
PROXY STATEMENT
FOR
SPECIAL MEETING OF STOCKHOLDERS
November 22, 2017
The
enclosed proxy is solicited by the board of directors (“Board
of Directors”) of MabVax Therapeutics Holdings, Inc., a
Delaware corporation (the “Company”), in connection
with the Special Meeting of Stockholders (the “Special
Meeting”) of the Company, to be held on November 22, 2017, at
10:00 a.m. local time, at 11535 Sorrento Valley Rd., Suite
400, San Diego, CA 92121. The principal executive office of the
Company is located at 11535 Sorrento Valley Rd., Suite 400, San
Diego, CA 92121, and its telephone number is (858)
259-9405.
At
the Special Meeting, you will be asked to consider and vote upon
the following matters:
1)
To
approve the potential issuance of up to an aggregate of 9,666,667
shares of common stock, in excess of 19.99% of the number of shares
of common stock that were issued and outstanding on October 17,
2017, upon the conversion of 58,000 shares of the Company’s
newly authorized Series L Convertible Preferred Stock, which were
issued to certain holders of the Company’s Preferred Stock
pursuant to Exchange Agreements dated October 18,
2017;
2)
To
ratify
the issuance of up to an aggregate of 2,900,000 restricted shares
of common stock to certain investors in the Company’s May
2017 public offering, in excess of 19.99% of the number of shares
of common stock that were issued and outstanding on May 3, 2017,
including 1,968,664 shares of common stock underlying the
Company’s Series I Convertible Preferred Stock
3)
To
authorize an amendment to the Company’s Fifth Amended
and Restated 2014 Employee, Director and Consultant Equity
Incentive Plan to increase the number of shares available for
issuance thereunder to 10,128,406 shares from 6,128,406 shares,
representing an increase of 4,000,000 shares
,
to increase the number of shares available for issuance under the
“evergreen” provision and to increase the number of
shares issuable to any one participant in any fiscal year to
3,600,000 shares, representing an increase of 2,600,000 shares;
and
4)
To
transact other business that may properly come before the meeting
and any postponement(s) or adjournment(s) thereof.
The
Board of Directors has fixed the close of business on November 10,
2017 as the Record Date for determining stockholders entitled to
notice of and to vote at the Special Meeting and any adjournment
thereof. The notice of the Special Meeting (the
“Notice”), this Proxy Statement, and the proxy card
will be first sent or made available to stockholders on or about
November 14, 2017.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
THE SPECIAL MEETING TO BE HELD ON NOVEMBER 22, 2017: THE NOTICE,
PROXY STATEMENT AND PROXY CARD ARE AVAILABLE AT
WWW.MABVAX.COM.
QUESTIONS AND ANSWERS ABOUT THIS PROXY MATERIAL AND
VOTING
Why am I Receiving these Materials?
This
Proxy Statement and the accompanying materials are being furnished
with respect to the solicitation of proxies by the Board of
Directors of the Company for the Special Meeting.
What Is Included in these Materials?
These
materials include the Notice, the Proxy Statement and a proxy
card.
I Share an Address with Another Stockholder and We Received Only
One Paper Copy of the Proxy Materials. How May I Obtain an
Additional Copy of the Proxy Materials?
The
Company has adopted a procedure called “householding”,
which the SEC has approved. Under this procedure, the Company is
delivering a single copy of the Notice, the Proxy Statement and the
proxy card to multiple stockholders who share the same address
unless the Company has received contrary instructions from one or
more of the stockholders. This procedure reduces the
Company’s printing and mailing costs, and the environmental
impact of the Company’s Special Meetings. Stockholders who
participate in householding will continue to be able to access and
receive separate proxy cards. Upon written or oral request, the
Company will deliver promptly a separate copy of the Notice,
the Proxy Statement and the proxy card to any stockholder at a
shared address to which the Company delivered a single copy of any
of these documents.
To
receive a separate copy of the Notice, the Proxy Statement and
the proxy card, stockholders may write or speak to the Company at
the following address and phone number:
MabVax
Therapeutics Holdings, Inc.
11535
Sorrento Valley Rd., Suite 400
San
Diego, CA 92121
Attn:
Secretary
Phone:
(858) 259-9405
Stockholders
who hold shares in “street name” (as described below)
may contact their brokerage firm, bank, broker-dealer or other
similar organization to request information about
householding.
Who Is Entitled to Vote?
Our Board has fixed the close of business
on
November 10
, 2017 as the
Record Date for a determination of stockholders entitled to notice
of, and to vote at, the Special Meeting or any adjournment
thereof. Holders of the Company’s common stock,
par value $0.01 per share (the “Common Stock”), Series
D Convertible Preferred Stock, par value $0.01 per share (the
“Series D Preferred Stock”), Series E Convertible
Preferred Stock, par value $0.01 (the “Series E Preferred
Stock”), Series I Convertible Preferred Stock, par value
$0.01 (the “Series I Preferred Stock”), Series J
Convertible Preferred Stock, par value $0.01 (the “Series J
Preferred Stock”), Series K Convertible Preferred Stock, par
value $0.01 (the “Series K Preferred Stock”), and
Series L Convertible Preferred Stock, par value $0.01 (the
“Series L Preferred Stock” and, collectively with the
Common Stock and Series D Preferred Stock through Series L
Preferred Stock, the “Voting Capital”) may vote on each
proposal that may come before the Special Meeting subject to
beneficial ownership limitations governing the Series D Preferred
Stock through Series L Preferred Stock; provided, however,
that none of the 9,666,667 shares of Common Stock underlying the
Series L Preferred Stock may be counted towards approval of
Proposal 1 and may only be counted as present for purposes of
determining a quorum and provided further
,
that the 1,605,324 shares of Common Stock
issued or issuable to certain
investors in the Company’s May 2017 public offering
,
as described in Proposal 2, held by the original owners as of the
Record Date will not be counted towards approval of Proposal 2 and
may only be counted as present for purposes of determining a
quorum
.
Holders
of Common Stock are entitled to one vote per share on all matters
to be voted on by stockholders and holders of Series D Preferred
Stock through Series L Preferred Stock are entitled to vote on all
matters on an as converted basis with the holders of our Common
Stock, subject to certain conversion limitations.
Each share of Series D Preferred Stock is
convertible into 13.51 shares of Common Stock subject to adjustment
in the event of stock splits, stock dividends, combination of
shares and similar recapitalization transactions. The Company is
prohibited from effecting the conversion of the Series D preferred
stock to the extent that, as a result of such conversion, the
holder beneficially owns more than 4.99% (provided that certain
investors elected to block their beneficial ownership initially at
2.49%), in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series D preferred stock. On the Record Date,
there were
44,104
shares of
Series D Preferred Stock outstanding. Taking into account
conversion limitations,
44,104
of the shares of the Series D Preferred Stock can
be voted by the holders thereof as of the Record
Date.
Each share of Series E Preferred Stock is
convertible into 15.59 shares of Common Stock. The conversion ratio
is subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of the Series E Preferred Stock to the extent that, as a
result of such conversion, the holder beneficially owns more than
4.99%, in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series E Preferred Stock. On the Record Date,
there were
33,333
shares of
Series E Preferred Stock outstanding. Taking into account
conversion limitations,
33,333
of the shares
of the Series E Preferred Stock can be voted by the holders
thereof as of the Record Date.
Each share of Series I Preferred Stock is
convertible into 1 share of Common Stock. The conversion ratio is
subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of the Series I Preferred Stock to the extent that, as a
result of such conversion, the holder beneficially owns more than
4.99%, in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series I Preferred Stock. On the Record Date,
there were
798,460
shares of
Series I Preferred Stock outstanding. Taking into account
conversion limitations, 587,304
of the shares of the Series I Preferred Stock
can be voted by the holders thereof as of the Record Date, except
that none may be voted in regard to Proposal 2.
Each share of Series J Preferred Stock is
convertible into 1,000 shares of Common Stock. The conversion ratio
is subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of the Series J Preferred Stock to the extent that, as a
result of such conversion, the holder beneficially owns more than
4.99%, in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series J Preferred Stock. On the Record Date,
there were
772.73
shares of
Series J Preferred Stock outstanding. Taking into account
conversion limitations,
501.13
of the shares of the Series J Preferred Stock
can be voted by the holders thereof as of the Record
Date.
Each share of Series K Preferred Stock is
convertible into 100 shares of Common Stock. The conversion ratio
is subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of the Series K Preferred Stock to the extent that, as a
result of such conversion, the holder beneficially owns more than
4.99%, in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series K Preferred Stock. On the Record Date,
there were
63,150
shares of
Series K Preferred Stock outstanding. Taking into account
conversion limitations,
32,615
of the shares of the Series K Preferred Stock
can be voted by the holders thereof as of the Record
Date.
Each share of Series L Preferred Stock is
convertible into 166.67 shares of Common Stock. The conversion
ratio is subject to adjustment in the event of stock splits, stock
dividends, combination of shares and similar recapitalization
transactions. The Company is prohibited from effecting the
conversion of the Series L Preferred Stock to the extent that, as a
result of such conversion, the holder beneficially owns more than
4.99%, in the aggregate, of the issued and outstanding shares of
the Company’s Common Stock calculated immediately after
giving effect to the issuance of shares of Common Stock upon the
conversion of the Series L Preferred Stock. On the Record Date,
there were
58,000
shares of Series L Preferred Stock
outstanding. Taking into account conversion limitations,
541.41
of the shares of the
Series L Preferred Stock can be voted by the holders thereof as of
the Record Date, except that none may be voted in regard to
Proposal 1.
On the Record Date, there were 20,588,765
shares of Common Stock
outstanding.
What Is the Difference Between Holding Shares as a Record Holder
and as a Beneficial Owner (Holding Shares in Street
Name)?
If
your shares are registered in your name with our transfer agent,
Computershare, you are the “record holder” of those
shares. If you are a record holder, these proxy
materials have been provided directly to you by the
Company.
If
your shares are held in a stock brokerage account, a bank or other
holder of record, you are considered the “beneficial
owner” of those shares held in “street
name.” If your shares are held in street name,
these proxy materials have been forwarded to you by that
organization. As the beneficial owner, you have the
right to instruct this organization on how to vote your
shares.
Who May Attend the Special Meeting?
Record
holders and beneficial owners may attend the Special
Meeting. If your shares are held in street name, you
will need to bring a copy of a brokerage statement or other
documentation reflecting your stock ownership as of the Record
Date.
How Do I Vote?
Stockholders of Record
For
your convenience, our record holders have four methods of
voting:
1.
Vote by
Internet
. The website address
for Internet voting is on your vote instruction
form.
2.
Vote by
mail
. Mark, date,
sign and mail promptly the enclosed proxy card (a postage-paid
envelope is provided for mailing in the United
States).
3.
Vote by
telephone
. You may vote by
proxy by calling the toll-free number found on the vote instruction
form.
4.
Vote in
person
. Attend and vote at the
Special Meeting.
Beneficial Owners of Shares Held in Street Name
For
your convenience, our beneficial owners have four methods of
voting:
1.
Vote by
Internet
. The website address
for Internet voting is on your vote instruction
form.
2.
Vote by
mail
. Mark, date,
sign and mail promptly your vote instruction form (a postage-paid
envelope is provided for mailing in the United
States).
3.
Vote by
telephone
. You may vote by
proxy by calling the toll-free number found on the vote instruction
form.
4.
Vote in
person
. Obtain a valid legal
proxy from the organization that holds your shares and attend and
vote at the Special Meeting.
If
you vote by Internet or by telephone, please DO NOT mail your proxy
card.
All
shares entitled to vote and represented by a properly completed and
executed proxy received before the Special Meeting and not revoked
will be voted at the Special Meeting as you instruct in a proxy
delivered before the Special Meeting. If you do not indicate how
your shares should be voted on a matter, the shares represented by
your properly completed and executed proxy will be voted as the
Board of Directors recommends on each of the enumerated proposals
and with regard to any other matters that may be properly presented
at the Special Meeting and all matters incident to the conduct of
the Special Meeting. If you are a registered stockholder and attend
the Special Meeting, you may deliver your completed proxy card in
person. “Street name” stockholders who wish to vote at
the Special Meeting will need to obtain a proxy form from the
institution that holds their shares. All votes will be tabulated by
the inspector of elections appointed for the Special Meeting, who
will separately tabulate affirmative and negative votes,
abstentions and broker non-votes.
Is My Vote Confidential?
Yes,
your vote is confidential. Only the following persons have access
to your vote: the inspector of elections, individuals who help with
processing and counting your votes, and persons who need access for
legal reasons. Occasionally, stockholders provide
written comments on their proxy cards, which may be forwarded to
the Company’s management and the Board of
Directors.
What Constitutes a Quorum?
To
carry on business at the Special Meeting, we must have a
quorum. A quorum is present when a majority of the
shares entitled to vote, as of the Record Date, are represented in
person or by proxy. Thus, holders of the Voting
Capital representing a majority of votes must be represented in
person or by proxy to have a quorum. Your shares will be
counted towards the quorum only if you submit a valid proxy (or one
is submitted on your behalf by your broker, bank or other nominee)
or if you vote in person at the Special
Meeting. Abstentions and broker non-votes will be
counted towards the quorum requirement. Shares owned by
us are not considered outstanding or considered to be present at
the Special Meeting. If there is not a quorum at the
Special Meeting, we may adjourn the Special Meeting.
What is a Broker Non-Vote?
If
your shares are held in street name, you must instruct the
organization who holds your shares how to vote your
shares. If you do not provide voting instructions, your
shares will not be voted on any non-routine
proposal. This vote is called a “broker
non-vote.” If you sign your proxy card but do not
provide instructions on how your broker should vote, your broker
will vote your shares as recommended by our Board of
Directors. Broker non-votes are not included in the
tabulation of the voting results of any of the proposals and,
therefore, do not effect these proposals.
Brokers
cannot use discretionary authority to vote shares on any proposals
to be considered at the Special Meeting if they have not received
instructions from their clients. Please submit your vote
instruction form so your vote is counted.
Which Proposals Are Considered “Routine” or
“Non-Routine”?
All
of the proposals to be voted upon at the Special Meeting are
considered non-routine except for Proposal 4, adjournment of the
Special Meeting.
What is an Abstention?
An
abstention is a stockholder’s affirmative choice to decline
to vote on a proposal. Abstentions and broker non-votes
will not be counted as having been voted on the
proposals.
How Many Votes Are Needed for Each Proposal to Pass?
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Proposal
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Vote Required
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Broker Discretionary Vote Allowed
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To approve the potential issuance of up to an
aggregate of 9,666,667 shares of
Common Stock
, in excess of 19.99% of the number of shares
of
Common Stock that were
issued and outstanding on October 17, 2017, upon conversion of
58,000 shares of Series L Preferred Stock, issued to certain
holders of Preferred Stock pursuant to Exchange Agreements dated
October 18, 2017
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A majority of the votes cast; provided,
however,
that none of the 9,666,667 shares of Common Stock
underlying the Series L Preferred Stock may be counted towards
approval of this proposal and may only be counted as present for
purposes of determining a quorum
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No
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To
ratify the issuance of up to an aggregate of 2,900,000 restricted
shares of common stock to certain investors in the Company’s
May 2017 public offering, in excess of 19.99% of the number of
shares of common stock that were issued and outstanding on May 3,
2017, including 1,968,664 shares of common stock underlying the
Company’s Series I Preferred Stock
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A majority of the votes cast; provided,
however,
that the 1,605,324 shares of Common Stock
issued or issuable to certain
investors in the Company’s May 2017 public offering
,
as described in this proposal, held by the original owners as of
the Record Date will not be counted towards approval of this
proposal and may only be counted as present for purposes of
determining a quorum
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No
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To
approve an amendment to the Fifth Amended and Restated MabVax
Therapeutics Holdings, Inc. 2014 Employee, Director and Consultant
Equity Incentive Plan, increasing the reservation of shares of
Common Stock for issuance thereunder to 10,128,406 shares from
6,128,406 shares
, to increase the number of shares available for
issuance under the “evergreen” provision and to
increase the number of shares issuable to any one participant in
any fiscal year to
3,600,000 shares,
representing an
increase of 2,600,000 shares
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A
majority of the votes cast
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No
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Adjournment of the Special Meeting
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A
majority of the votes cast
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Yes
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What Are the Voting Procedures?
In
voting by proxy, you may vote in favor of or against the proposal,
or you may abstain from voting on the proposal. You
should specify your respective choices on the accompanying proxy
card or your vote instruction form.
All shares represented by proxy will be voted at
the Special Meeting in accordance with the choices specified on the
proxy, and where no choice is specified, in accordance with the
recommendations of the Board of Directors. Thus, where no choice is
specified, the proxies will be voted FOR (1) to approve the
potential issuance of up to 9,666,667 shares of Common Stock upon
conversion of Series L Preferred Stock issued to certain holders of
Preferred Stock pursuant to Exchange Agreements dated October 17,
2017, in excess of 19.99% of the number of shares of Common Stock
that were issued and outstanding on October 18, 2017; (2) to ratify
the issuance of up to an aggregate of 2,900,000 restricted shares
of common stock to certain investors in the Company’s May
2017 public offering, in excess of 19.99% of the number of shares
of common stock that were issued and outstanding on May 3, 2017,
including 1,968,664 shares of common stock underlying the
Company’s Series I Preferred Stock; and (3) to authorize the
amendment of the Fifth Amended and Restated MabVax Therapeutics
Holdings, Inc. 2014 Employee, Director and Consultant Equity
Incentive Plan, increasing the reservation of shares of Common
Stock for issuance thereunder to
10,128,406 shares from
6,128,406 shares
, increasing the
number of shares available for issuance under the
“evergreen” provision and increasing the number of
shares issuable to any one participant to
3,600,000 shares
from 1,000,000 shares
.
Is My Proxy Revocable?
You
may revoke your proxy and reclaim your right to vote at any time
before it is voted by giving written notice to the Secretary of the
Company, by delivering a properly completed, later-dated proxy card
or vote instruction form or by voting in person at the Special
Meeting. All written notices of revocation and other
communications with respect to revocations of proxies should be
addressed to: MabVax Therapeutics Holdings, Inc., 11535 Sorrento
Valley Rd., Suite 400, San Diego, CA 92121, Attention: Secretary,
or by facsimile at (858) 792-7375.
Who Is Paying for the Expenses Involved in Preparing and Mailing
this Proxy Statement?
All
of the expenses involved in preparing, assembling and mailing these
proxy materials and all costs of soliciting proxies will be paid by
us. In addition to the solicitation by mail, proxies may
be solicited by our officers and other employees by telephone or in
person. Such persons will receive no compensation for
their services other than their regular
salaries. Arrangements will also be made with brokerage
houses and other custodians, nominees and fiduciaries to forward
solicitation materials to the beneficial owners of the shares held
of record by such persons, and we may reimburse such persons for
reasonable out of pocket expenses incurred by them in so
doing.
Do I Have Dissenters’ Rights of Appraisal?
The
Company’s stockholders do not have appraisal rights under
Delaware law or under the governing documents of the Company with
respect to the matters to be voted upon at the Special
Meeting.
How can I find out the Results of the Voting at the Special
Meeting?
Preliminary
voting results will be announced at the Special Meeting. Final
voting results will be published in a Current Report on
Form 8-K, which we will file within four business days of the
Special Meeting.
What Interest Do Officers and Directors Have in Matters to Be Acted
Upon?
Members
of the Board of Directors and executive officers of the Company do
not have any interest in any proposal that is not shared by all
other stockholders of the Company except for Proposal 6 (members of
our Board of Directors and our executive officers will be eligible
for equity incentive awards and otherwise to participate in our
plan).
SECURITY OWNERSHIP OF
CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The following table
sets forth information known to us concerning the beneficial
ownership of our Common Stock for:
●
each person known
by us to beneficially own more than 5% of our Common
Stock;
●
each of our
executive officers; and
●
all of our
directors and executive officers as a group.
Beneficial
ownership is determined in accordance with the rules and
regulations of the SEC. In general, a person is deemed to be the
beneficial owner of (i) any shares of the Company’s Common
Stock over which such person has sole or shared voting power or
investment power, plus (ii) any shares which such person has the
right to acquire beneficial ownership of within 60 days of the
above date, whether through the exercise of options, warrants or
otherwise. Percentage ownership calculations for beneficial
ownership are based on 20,588,765 shares outstanding as of November
10, 2017, adjusted as required by rules promulgated by the
SEC.
|
Name and Address of Beneficial Owner
|
Number of Shares of Common Stock
|
Percentage of Common Stock
|
|
5% Stockholders
|
|
|
|
None
|
|
|
|
Directors and Executive Officers
|
|
|
|
J. David Hansen
(1)
|
1,427,911
|
6.51
%
|
|
Philip O. Livingston, M.D.
(2)
|
346,519
|
1.67
%
|
|
Gregory P. Hanson CMA
(3)
|
541,457
|
2.57
%
|
|
Kenneth M. Cohen
(4)
|
174,480
|
*
|
|
Paul W. Maffuid, Ph.D.
(5)
|
474,478
|
2.26
%
|
|
Paul V. Maier
(6)
|
164,447
|
*
|
|
Thomas C. Varvaro
(7)
|
162,169
|
*
|
|
Jeffrey F. Eisenberg
(8)
|
153,020
|
*
|
|
Paul Resnick
M.D.
(9)
|
60,237
|
*
|
|
All executive officers and directors as a group (9
persons)
|
3,504,718
|
14.76
%
|
|
(1)
|
Includes 727,210 restricted stock units vesting within 60 days of
November 10, 2017 and 630,100 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(2)
|
Consists of (i) 176,675 shares held by RTP Venture Fund, (ii)
14,885 shares held by Philip O. Livingston, (iii) 1,721 shares held
by the Joan L. Tweedy 2011 Revocable Trust, or the Tweedy Trust,
(iv) 100,000 restricted stock units vesting within 60 days of
November 10, 2017, and (v) 53,238 shares subject to options
exercisable within 60 days of November 10, 2017 held by Philip O.
Livingston. Voting and dispositive decisions of RTP Venture Fund,
LLC are made by Philip Livingston, and Philip O. Livingston is a
trustee of the Tweedy Trust. The address for RTP Venture Fund, LLC
is 156 E. 79th Street, Apt. 6C, New York, NY 10075.
|
|
(3)
|
Includes 449,159 restricted stock units vesting within 60 days of
November 10, 2017 and 53,964 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(4)
|
Includes (i) 100,000 restricted stock units vesting within 60 days
of November 10, 2017, (ii) 60,685 shares subject to options
exercisable within 60 days of November 10, 2017, and (iii) 6,238
common stock warrants purchased in the August 2016 financing
transaction.
|
|
(5)
|
Includes 406,382 restricted stock units vesting within 60 days of
November 10, 2017 and 40,785 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(6)
|
Includes 100,000 restricted stock units vesting within 60 days of
November 10, 2017 and 60,685 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(7)
|
Includes 100,000 restricted stock units vesting within 60 days of
November 10, 2017 and 59,083 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(8)
|
Includes 100,000 restricted stock units vesting within 60 days of
November 10, 2017 and 53,020 shares subject to options exercisable
within 60 days of November 10, 2017.
|
|
(9)
|
Includes 29,944 restricted stock units vesting within 60 days of
November 10, 2017 and 30,293 shares subject to options exercisable
within 60 days of November 10, 2017.
|
PROPOSAL 1:
TO APPROVE THE POTENTIAL ISSUANCE OF UP TO AN AGGREGATE OF
9,666,667 SHARES OF COMMON STOCK, IN EXCESS OF 19.99% OF THE NUMBER
OF SHARES OF COMMON STOCK THAT WERE ISSUED AND OUTSTANDING ON
OCTOBER 17, 2017, UPON THE CONVERSION OF 58,000 SHARES OF THE
COMPANY’S NEWLY AUTHORIZED SERIES L PREFERRED STOCK, WHICH
WERE ISSUED TO CERTAIN HOLDERS OF THE COMPANY’S PREFERRED
STOCK PURSUANT TO EXCHANGE AGREEMENTS DATED OCTOBER 18,
2017
On
October 18, 2017, the Company entered into separate exchange
agreements with certain holders of the Company’s Preferred
Stock, pursuant to which the Company issued 58,000 newly authorized
shares of Series L Convertible Stock in exchange for all of the
outstanding shares of Series F Preferred Stock, Series G Preferred
Stock and Series H Preferred Stock (together with the Series F
Preferred Stock and Series G Preferred Stock, the “Exchange
Securities”) pursuant to Section 3(a)(9) of the Securities
Act of 1933, as amended (the “Exchange”).
Nasdaq Marketplace Rule 5635(d) requires
stockholder approval of any issuances or potential issuances of
Common Stock (or securities convertible or exercisable into Common
Stock) sold in private transactions if the number of shares sold is
equal to or exceeds 20% or more of presently outstanding Common
Stock and the price per share is less than the greater of book
value or market value of the Common Stock (“Shareholder
Approval”). As of the date of the Exchange, the per share
purchase price for the shares underlying the Series L Preferred
Stock was less than the greater of book value or market value of
the Common Stock. The Certificate of Designations, Preferences and
Rights of the 0% Series L Preferred Stock (the “Series L
Certificate of Designation”) contains a blocker that provides
that, prior to Shareholder Approval, no Conversion Shares may be
issued upon conversion of the Series L Preferred
Stock
.
In
order to permit the conversion of the Series L Preferred Stock in
accordance with applicable listing rules of The Nasdaq Capital
Market, the Company agreed to hold a special meeting of
stockholders for the purpose of obtaining Shareholder Approval to
allow for conversions of the Series L Preferred Stock, with the
recommendation of the Company’s Board of Directors that such
proposal be approved. Pursuant to The Nasdaq Capital Market
regulations, the shares of Common Stock issuable upon conversion of
the Series L Preferred Stock shall not be counted towards approval
of this proposal.
Description of the Exchange
On
October 18, 2017, the Company entered into separate securities
exchange agreements (the “Exchange Agreements”) with
certain holders of the Company’s Series F, G and H Preferred
Stock (the “Holders”), pursuant to which the Holders
shall receive 58,000 shares of the newly authorized Series L
Preferred Stock in exchange for all of the outstanding 665,281
shares of Series F Preferred Stock, 1,000,000 shares of Series G
Preferred Stock and 850 shares of Series H Preferred Stock,
pursuant to Section 3(a)(9) of the Securities Act of 1933, as
amended.
Pursuant to the Exchange Agreements, the Company
has agreed to
use its reasonable best efforts to have a
“resale” registration statement (the
“Registration Statement”) filed within ten (10)
calendar days of the closing of the Exchange Agreements and
declared effective by the SEC as soon as possible and, in any
event, by thirty (30) calendar days (the “Effectiveness
Date”) of the date of filing of the Registration Statement
(the “Filing Date”). Subject to the terms and
conditions set forth in the Exchange Agreement, the Company is
obligated to pay to the Holders a fee of one (1%) percent per month
of the stated value of the Series L Preferred Shares, payable in
cash, up to a maximum of six (6%) percent, on the Filing Date and
the Effectiveness Date if the registration obligations set forth
herein have not been met, and pro-rata for each month, or partial
month, in excess of the Filing Date and/or
the Effectiveness Date that the Registration Statement
has not been declared effective.
In addition,
pursuant to Rule 144 promulgated by the SEC pursuant to the
Securities Act and the rules and regulations promulgated
thereunder, as such Rule 144 may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule 144, the holding period
of the Exchange Securities tacks back to the date of issuance of
the respective Exchange Securities.
Description of the Series L Preferred Stock
On October 16, 2017, in connection with the
Exchange, the Company filed the Series L Certificate of Designation
with the Delaware Secretary of State, designating 58,000 shares of
preferred stock as Series L Preferred Stock. On October 17, 2017,
the Company filed a Certificate of Correction of the Series L
Certificate of Designation (the “Certificate of
Correction”) which corrected the Series L Certificate of
Designation to include a conversion blocker as required by the
applicable rules of the Nasdaq Capital Market and voting rights
which entitles each Holder of the Series L Preferred Stock to vote
on all matters submitted to shareholders of the Company,
subject to the limitations set forth in the Certificate of
Correction
.
The
shares of Series L Preferred Stock are convertible into shares of
Common Stock based on a conversion calculation equal to the stated
value of the Series L Preferred Stock, plus all accrued and unpaid
dividends (the “Base Amount”), if any, on such Series L
Preferred Stock, as of such date of determination, divided by the
conversion price. The stated value of each share of Series L
Preferred Stock is $100 and the initial conversion price is $0.60
per share, each subject to adjustment for stock splits, stock
dividends, recapitalizations, combinations, subdivisions or other
similar events.
The
holders of Series L Preferred Stock will be entitled to receive
dividends if and when declared by our board of directors. The
Series L Preferred Stock shall participate on an “as
converted” basis, with all dividends declared on our Common
Stock. In addition, if we grant, issue or sell any
rights to purchase our securities pro rata to all our record
holders of our Common Stock, each holder will be entitled to
acquire such securities applicable to the granted purchase rights
as if the holder had held the number of shares of Common Stock
acquirable upon complete conversion of all Series L Preferred Stock
then held.
We
are prohibited from effecting a conversion of the Series L
Preferred Stock to the extent that, as a result of such conversion,
the holder would beneficially own more than 4.99% of the number of
shares of Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon conversion of the
Series L Preferred Stock, which beneficial ownership limitation may
be increased by the holder up to, but not exceeding, 9.99%. Each
holder is entitled to vote on all matters submitted to stockholders
of the Company, and shall have the number of votes equal to the
number of shares of Common Stock issuable upon conversion of such
holder’s Series L Preferred Stock, substituting the
consolidated closing bid price of the Common Stock on October 13,
2017 for the then-applicable conversion price, and not in
excess of the beneficial ownership limitations.
Prior
to obtaining Shareholder Approval, the Company shall not issue any
shares of Common Stock upon conversion of the Series L Preferred
Stock.
Holders
of Series L Preferred Stock will be entitled to a preferential
payment of cash per share equal to the greater of 100% of the Base
Amount on the date of payment or the amount per share had the
holders converted such preferred shares immediately prior to the
date of payment upon the liquidation, dissolution or winding up of
the affairs of the Company, or a consolidation or merger of the
Company with or into any other corporation or corporations, or a
sale of all or substantially all of the assets of the Company, or
the effectuation by the Company of a transaction or series of
transactions in which more than 50% of the voting shares of the
Company is disposed of or conveyed.
Certain Effects
The
following table sets forth certain material effects to the Company
related to the Exchange and the issuance of shares of Common Stock
upon conversion of the Series L Preferred Stock.
|
Number of shares of
Common Stock outstanding immediately prior to the closing of the
Exchange
|
19,919,261
|
|
Number of shares of
Common Stock issuable assuming approval of Proposal 1
|
9,666,667
|
|
Percentage of total
issued and outstanding Common Stock immediately prior to the
closing of the Exchange that is issuable pursuant to the Exchange,
assuming full conversion of the Conversion Shares subject to the
Nasdaq conversion blocker
|
48.5%
(1)
|
|
|
|
|
|
|
|
Market price per
share of Common Stock on October 17, 2017, immediately prior to the
Exchange
|
$
0.73
|
|
Market price per
share of Common Stock on November 9, 2017
|
$
0.65
|
|
________________
|
|
(1) Not adjusted
for any beneficial ownership limitations
No Appraisal Rights
Under
the Delaware General Corporation Law, our stockholders are not
entitled to appraisal rights with respect to the Reverse Split, and
we will not independently provide our stockholders with any such
rights.
Vote Required
The
affirmative vote of a majority of the votes cast in connection with
Proposal No. 1; provided, however, that pursuant to the listing
rules of The Nasdaq Capital Market, none of the up to 9,666,667
shares issuable upon conversion of the Series L Preferred Stock may
be counted towards approval of this Proposal 1 and may only be
counted as present for purposes of determining a
quorum.
The Board of Directors unanimously recommends a vote FOR the
approval of the potential issuance of up to an aggregate of
9,666,667 shares of Common Stock, in excess of 19.99% of the number
of shares of Common Stock that were issued and outstanding on
October 17, 2017, upon the conversion of 58,000 shares of the
Company’s newly authorized Series L Preferred Stock, which
were issued to certain holders of the Company’s Preferred
Stock pursuant to exchange agreements dated October 18,
2017.
PROPOSAL 2:
TO RATIFY THE ISSUANCE OF UP TO AN AGGREGATE OF 2,900,000
RESTRICTED SHARES OF COMMON STOCK TO CERTAIN INVESTORS IN THE
COMPANY’S MAY 2017 PUBLIC OFFERING, IN EXCESS OF 19.99% OF
THE NUMBER OF SHARES OF COMMON STOCK THAT WERE ISSUED AND
OUTSTANDING ON MAY 3, 2017, INCLUDING 1,968,664 SHARES OF COMMON
STOCK UNDERLYING THE COMPANY’S SERIES I PREFERRED
STOCK
In connection with the Company’s registered
public offering that closed on May 19, 2017 (the “May 2017
Public Offering”), on May 18, 2017, the Company entered into
a Letter Agreement (the “Letter Agreement”) with the
lead investor (the “Lead Investor”) of the
Company’s August 2016 public offering (the “August 2016
Public Offering”) in order to obtain the Lead
Investor’s approval to certain actions. The Company agreed to
issue 2,900,000 shares of Common Stock in connection with obtaining
required Lead Investor approval including
1,968,664
shares upon conversion of the Company’s
Series I Preferred Stock.
Description of the Letter Agreement
Shares
of Common Stock were agreed to be issued to investors in the August
2016 Public Offering who (1) held 100% of their shares and (2)
agreed to make additional investments in the Company’s May
2017 Public Offering.
The
Lead Investor, who qualified for additional shares as set forth in
the prior paragraph, received 290,000 shares and the balance were
issuable pro rata to the investors who elected to purchase the
Company’s Series F Preferred Stock in the August 2016 Public
Offering.
Description of the Series I Preferred Stock
On May 26, 2017, in connection with the Letter
Agreement, the Company filed the Certificate of Designations,
Preferences, Rights and Limitations of Series I Preferred Stock
(the “Series I Certificate of Designations”) with the
Delaware Secretary of State, designating 1,968,664 shares of
preferred stock as Series I Preferred Stock in connection with the
issuances described above, for holders that would hold in excess of
4.99% after issuance of the outstanding Common Stock of the
Company.
The stated value of each share of Series I
Preferred Stock is $0.01 and the conversion rate is one (1) share
of common stock for one (1) share of Series I Preferred Stock, each
subject to adjustment for stock splits, stock dividends,
recapitalizations, combinations, subdivisions or other similar
events. In the event of a liquidation, dissolution or winding up of
the Company, each share of Series I Preferred Stock will be
entitled to a per share preferential payment equal to the par
value, or $0.01 per share. All shares of the Company’s
capital stock will be junior in rank to the Series I Preferred
Stock at the time of creation, with respect to the preferences as
to dividends, distributions and payments upon the liquidation,
dissolution and winding-up of the Company, except for the
Company’s Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, and Series H
Preferred Stock.
The
holders of Series I Preferred Stock will be entitled to receive
dividends if and when declared by our board of directors. The
Series I Preferred Stock shall participate on an “as
converted” basis, with all dividends declared on our Common
Stock.
We
are prohibited from effecting a conversion of the Series I
Preferred Stock to the extent that, as a result of such conversion,
the holder would beneficially own more than 4.99% of the number of
shares of Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon conversion of the
Series I Preferred Stock, which beneficial ownership limitation may
be increased by the holder up to, but not exceeding, 9.99%. Each
holder is entitled to vote on all matters submitted to stockholders
of the Company, and shall have the number of votes equal to the
number of shares of Common Stock issuable upon conversion of such
holder’s Series I Preferred Stock, and not in excess of
the beneficial ownership limitations.
Each
holder of Series I Preferred Stock shall be entitled to receive,
for each share thereof, out of assets of the Corporation legally
available therefor, a preferential amount in cash equal to (and not
more than) the Stated Value immediately prior to the date of
payment upon the liquidation, dissolution or winding up of the
affairs of the Company, or a consolidation or merger of the Company
with or into any other corporation or corporations, or a sale of
all or substantially all of the assets of the Company, or the
effectuation by the Company of a transaction or series of
transactions in which more than 50% of the voting shares of the
Company is disposed of or conveyed.
Certain Effects
The
following table sets forth certain material effects to the Company
related to the issuance ratified in this proposal.
|
Number of shares of
Common Stock outstanding immediately prior to May 3, 2017
(1)
|
6,434,348
|
|
Number of shares of
Common Stock outstanding following the May Public Offering
(2)
(3)
|
8,777,206
|
|
Number of shares of
Common Stock outstanding following the issuance ratified in this
proposal
(3)
(4)
|
12,162,920
|
|
Market price per
share of Common Stock on May 3, 2017
|
$
1.98
|
|
Market price per
share of Common Stock on November 9, 2017
|
$
0.65
|
(1)
On May 3, 2017, the
Company issued 850 shares of Series H Preferred Stock, convertible
into an aggregate of 485,714 shares of common stock, in a private
placement.
(2)
Includes 1,000,000
shares of common stock underlying the Series G Preferred Stock
issued in the
May 2017 Public
Offering, and excludes 485,714 shares of common stock issuable upon
conversion of the Series H Preferred Stock.
(3)
Not adjusted for
any beneficial ownership limitations.
(4)
Includes
1,968,664
shares of common
stock underlying the Series I Preferred Stock, and includes 485,714
shares of common stock issuable upon conversion of the Series H
Preferred Stock.
No Appraisal Rights
Under
the Delaware General Corporation Law, our stockholders are not
entitled to appraisal rights with respect to the Reverse Split, and
we will not independently provide our stockholders with any such
rights.
Vote Required
The affirmative vote of a majority of the votes
cast in connection with Proposal No. 2; provided, however, that
pursuant to the listing rules of The
NASDAQ
Stock Market LLC,
the 1,605,324 shares of
Common Stock held by the original owners
(including shares of Common Stock underlying the
Series I Preferred Stock) will not be counted towards approval of
this Proposal 2 and may only be counted as present for purposes of
determining a quorum.
The Board of Directors unanimously recommends a vote FOR the
ratification of the issuance of up to an aggregate of 2,900,000
restricted shares of common stock to certain investors in the
Company’s May 2017 public offering, in excess of 19.99% of
the number of shares of common stock that were issued and
outstanding on May 3, 2017, including 1,968,664 shares of common
stock underlying the Company’s Series I Preferred
Stock.
PROPOSAL 3:
TO AUTHORIZE AN AMENDMENT TO THE
COMPANY’S FIFTH AMENDED AND RESTATED 2014 EMPLOYEE, DIRECTOR
AND CONSULTANT EQUITY INCENTIVE PLAN TO INCREASE THE NUMBER OF
SHARES AVAILABLE FOR ISSUANCE THEREUNDER TO 10,128,406 SHARES FROM
6,128,406 SHARES, REPRESENTING AN INCREASE OF 4,000,000 SHARES, TO
INCREASE THE NUMBER OF SHARES AVAILABLE FOR ISSUANCE UNDER THE
“EVERGREEN” PROVISION AND TO INCREASE THE NUMBER OF
SHARES ISSUABLE TO ANY ONE PARTICIPANT IN ANY FISCAL YEAR TO
3,600,000 SHARES, REPRESENTING AN INCREASE OF 2,600,000
SHARES
The
Company's 2014 Employee, Director and Consultant Equity Incentive
Plan was approved by our Board in June 2014 and became effective
and adopted as the amended 2014 Stock Incentive Plan by our
stockholders in the merger with MabVax Therapeutics, Inc. on July
8, 2014. On October 2, 2017, the stockholders approved the Fifth
Amended and Restated 2014 Employee, Director and Consultant Equity
Incentive Plan (the “Fifth Amended and Restated EIP”)
and the reservation of 6,128,406 shares of common stock for
issuance thereunder. We are seeking stockholder approval of an
amendment to the Fifth Amended and Restated EIP to:
●
increase
the number of shares issuable pursuant to the Fifth Amended and
Restated EIP to 10,128,406 from 6,128,406, representing an increase
of 4,000,000 shares;
●
revise the Fifth Amended and Restated
EIP’s
“evergreen” provision to reserve
additional shares for issuance under the plan on an annual basis
commencing on the first day of fiscal 2016 and ending on the second
day of fiscal 2024, such that the number of shares that may be
issued under the plan shall be increased by an amount equal to the
lesser of: (i) 4,000,000 or the equivalent of such number of shares
after the administrator, in its sole discretion, has interpreted
the effect of any stock split, stock dividend, combination,
recapitalization or similar transaction in accordance with the
Fifth Amended and Restated EIP, representing an increase of 918,916
shares; (ii) the number of shares necessary such that the
total shares reserved under the Fifth Amended and Restated EIP
equals (x) 15% of the number of outstanding shares of Common
Stock on such date (assuming the conversion of all outstanding
convertible securities and exercise of all outstanding warrants)
plus (y) 4,000,000, representing an increase of 2,000,000
shares; and (iii) an amount determined by the
Board
; and
●
increase the number of shares issuable to any one
participant in any fiscal year to
3,600,000 shares,
representing an increase of 2,600,000 shares
.
Sections 3(a), 3(b) and 4(c) of the
Fifth
Amended and Restated EIP shall be amended and restated in their
entirety as set forth below.
|
3.
|
SHARES SUBJECT TO
THE PLAN.
|
|
|
|
(a) The number of
Shares which may be issued from time to time pursuant to this Plan
shall be 10,128,406.
(b) Notwithstanding
Subparagraph (a) above, on the first day of each fiscal year
of the Company during the period beginning in fiscal year 2016, and
ending on the second day of fiscal year 2024, the number of Shares
that may be issued from time to time pursuant to the Plan, shall be
increased by an amount equal to the lesser of (i) 4,000,000 or
the equivalent of such number of Shares after the Administrator, in
its sole discretion, has interpreted the effect of any stock split,
stock dividend, combination, recapitalization or similar
transaction in accordance with Paragraph 25 of the Plan;
(ii) the number of Shares necessary such that the total Shares
reserved under this Plan equals (x) 15% of the number of
outstanding shares of Common Stock on such date (assuming the
conversion of all outstanding shares of Preferred Stock and other
outstanding convertible securities and exercise of all outstanding
warrants to purchase common stock) plus (y) 4,000,000; and
(iii) an amount determined by the Board.
|
4.
|
ADMINISTRATION OF
THE PLAN.
|
(c) Determine the
number of Shares for which a Stock Right or Stock Rights shall be
granted, provided, however, that in no event shall Stock Rights
with respect to more than 3,600,000 Shares be granted to any
Participant in any fiscal year;
The
Board is recommending this Proposal 3 to our stockholders for
approval.
Reasons
for this Proposed Amendment
We are seeking
stockholder approval of this amendment to the Fifth Amended and
Restated EIP. In determining the amounts of the increase in the
number of shares available for issuance under the plan, the shares
available for issuance under the “evergreen” provision
and the shares that may be granted to any one participant in any
fiscal year, the Board has taken into consideration
the significant increases in the number of shares of our
Common Stock available to become issued and outstanding since the
original adoption of the Fifth Amended and Restated Plan
and the desire to continue to retain the flexibility to issue
awards that represent a reasonable percentage of our Common Stock
issuable to plan participants when desired by the
Board. As of November 10, 2017, there were approximately
40.5 million shares of our Common Stock outstanding on a
fully-diluted basis (assuming conversion of all the issued and
outstanding shares of convertible preferred stock and exercise of
all issued and outstanding warrants without regard to any
beneficial or conversion limitations). Assuming the approval of
this increase, the total number of shares of our Common Stock
available for issuance under the Fifth Amended and Restated EIP
will be
10,128,406
, which
represents 25% of the total issued and outstanding shares of Common
Stock on a fully diluted basis, assuming all of the
10,128,406
shares available under this
amendment to the Fifth Amended and Restated EIP have been
issued.
The purpose of this
increase is to continue to be able to attract, retain and motivate
executive officers and other employees and certain consultants.
Upon stockholder approval, additional
4,000,000
shares of Common Stock will be
reserved for issuance under this amendment to the Fifth Amended and
Restated EIP, the number of shares subject to the Plan will be
maintained at a stable level pursuant to the
“evergreen” provision and the number of shares
available to be issued to any one participant in any one fiscal
year will be increased to 3,600,000, which will enable us to
continue to grant equity awards to our officers, employees and
consultants at levels determined by the Board to be necessary to
attract, retain and motivate the individuals who will be critical
to the Company’s success in achieving its business objectives
and thereby creating greater value for all our
stockholders.
Furthermore, we
believe that equity compensation aligns the interests of our
management and other employees with the interests of our other
stockholders, particularly when the awards are performance-based.
Equity awards are a key component of our incentive compensation
program. We believe that option grants have been critical in
attracting and retaining talented employees and officers, aligning
their interests with those of stockholders, and focusing key
employees on the long-term growth of the Company. We anticipate
that option grants and other forms of equity awards such as
restricted stock awards may become an increasing component in
similarly motivating our consultants.
Approval of this
amendment to the Fifth Amended and Restated EIP will permit the
Company to continue to use stock-based compensation to align
stockholder and employee interests and to motivate employees and
others providing services to the Company or any subsidiary. If
this Proposal 2 is not approved, the
Fifth Amended and Restated EIP
will
continue in full force with the current amount of shares available
for issuance thereunder. Complete copies of the
Fifth Amended and Restated EIP
, including
the amendment described in this proposal, can be obtained from the
Secretary of the Company.
Vote Required
The
affirmative vote of a majority of the votes cast in connection with
Proposal No. 3.
The Board of Directors unanimously
recommends a vote FOR the approval of the amendment to the Fifth
Amended and Restated MabVax Therapeutics Holdings, Inc. 2014
Employee, Director and Consultant Equity Incentive Plan, increasing
the reservation of shares of Common Stock for issuance thereunder
to 10,128,406 from 6,128,406 shares,
increasing the
number of shares available for issuance under the
“evergreen” provision and increasing the number of
shares that may be granted to any one participant
in any
fiscal year to 3,600,000 from 1,000,000 shares
.
PROPOSAL 4:
ADJOURNMENT
At
the Special Meeting, we may ask our stockholders to vote on a
proposal to adjourn the Special Meeting if necessary or appropriate
in the sole discretion of our Board of Directors, including to
solicit additional proxies in the event that there are not
sufficient votes at the time of the Special Meeting or any
adjournment or postponement of the Special Meeting to approve any
of the other proposals.
If
at the Special Meeting the number of shares of our Voting Capital
present or represented by proxy and voting in favor of a proposal
is insufficient to approve such proposal, then our Board of
Directors may hold a vote on each proposal that has garnered
sufficient votes, if any, and then move to adjourn the Special
Meeting as to the remaining proposals in order to solicit
additional proxies in favor of those remaining
proposals.
Alternatively,
even if there are sufficient shares of our Voting Capital present
or represented by proxy voting in favor of all of the proposals,
our Board of Directors may hold a vote on the adjournment proposal
if, in its sole discretion, it determines that it is necessary or
appropriate for any reason to adjourn the Special Meeting to a
later date and time. In that event, the Company will ask its
stockholders to vote only upon the adjournment proposal and not any
other proposal.
Any
adjournment may be made without notice (if the adjournment is not
for more than thirty days and a new Record Date is not fixed for
the adjourned meeting), other than by an announcement made at the
Special Meeting of the time, date and place of the adjourned
meeting.
Any
adjournment of the Special Meeting will allow our stockholders who
have already sent in their proxies to revoke them at any time prior
to their use at the Special Meeting as adjourned.
If
we adjourn the Special Meeting to a later date, we will transact
the same business and, unless we must fix a new Record Date, only
the stockholders who were eligible to vote at the original meeting
will be permitted to vote at the adjourned meeting.
Vote Required
The
affirmative vote of a majority of the votes cast in connection with
Proposal No. 4.
The Board of Directors unanimously recommends a vote FOR
authorization to adjourn the Special Meeting if necessary or
appropriate.
OTHER BUSINESS
As
of the date of this Proxy Statement, the management of the Company
has no knowledge of any business that may be presented for
consideration at the Special Meeting, other than that described
above. As to other business, if any, that may properly come before
the Special Meeting, or any adjournment thereof, it is intended
that the Proxy hereby solicited will be voted in respect of such
business in accordance with the judgment of the Proxy
holders.
ANNUAL REPORT
A
copy of the Company’s 2016 Annual Report is available on our
Internet website at www.mabvax.com.
|
|
BY
ORDER OF THE BOARD OF DIRECTORS
/s/ J. David
Hansen
J.
David Hansen
Chairman
of the Board of Directors
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