Attached files
Exhibit
3.2
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
THE
0% SERIES L CONVERTIBLE PREFERRED STOCK
OF
MABVAX THERAPEUTICS HOLDINGS, INC.
A Delaware Corporation
MabVax
Therapeutics Holdings, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the
“Company”), in accordance with the provisions of
Section 103 thereof, DOES HEREBY CERTIFY:
1. The
name of the Company is MabVax Therapeutics Holdings,
Inc.
2. A
Certificate of Designation for Series L Convertible Preferred Stock
of the Corporation (the “Certificate of Designation”)
was filed with the Secretary of State for the State of Delaware on
October 16, 2017, and the Certificate of Designation requires
correction as permitted by subsection (f) of Section 103 of the
General Corporation Law of the State of Delaware.
3. The
inaccuracy or defect of the Certificate of Designation is that the
said Certificate of Designation inadvertently omitted a sentence
relating to shareholder approval of conversions from Section 4
“Conversion.”
4. The
Certificate of Designation is corrected by replacing Section 4 in
its entirety with the following:
4. Conversion. Each Preferred
Share shall be convertible into validly issued, fully paid and
non-assessable shares of Common Stock (as defined below) on the
terms and conditions set forth in this Section 4. Notwithstanding
anything herein to the contrary, if the Company has not obtained
the approval of its shareholders in accordance with the rules of
the Nasdaq Stock Market LLC for the conversion of the Preferred
Shares, then the Company may not issue upon conversion of the
Preferred Shares any shares of Common Stock.
(a) Holder’s Conversion
Right. Subject to the provisions of Section 4(e), at any
time or times on or after the Initial Issuance Date, each Holder
shall be entitled to convert any whole number of Preferred Shares
into validly issued, fully paid and non-assessable shares of Common
Stock in accordance with Section 4(c) at the Conversion Rate (as
defined below).
(b) Conversion Rate. The number of
validly issued, fully paid and non-assessable shares of Common
Stock issuable upon conversion of each Preferred Share pursuant to
Section 4(a) shall be determined according to the following formula
(the “Conversion
Rate”):
Base
Amount
Conversion
Price
No fractional
shares of Common Stock are to be issued upon the conversion of any
Preferred Shares. If the issuance would result in the issuance of a
fraction of a share of Common Stock, the Company shall round such
fraction of a share of Common Stock up to the nearest whole
share.
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(c) Mechanics of Conversion. The
conversion of each Preferred Share shall be conducted in the
following manner:
(i) Holder’s Conversion. To
convert a Preferred Share into validly issued, fully paid and
non-assessable shares of Common Stock on any date (a
“Conversion
Date”), a Holder shall deliver (whether via facsimile
or otherwise), for receipt on or prior to 11:59 p.m., New York
time, on such date, a copy of an executed notice of conversion of
the share(s) of Preferred Shares subject to such conversion in the
form attached hereto as Exhibit I
(the “Conversion
Notice”) to the Company. If required by Section
4(c)(vi), within five (5) Trading Days following a conversion of
any such Preferred Shares as aforesaid, such Holder shall surrender
to a nationally recognized overnight delivery service for delivery
to the Company the original certificates representing the share(s)
of Preferred Shares (the “Preferred Share Certificates”) so
converted as aforesaid.
(ii) Company’s Response. On or
before the first (1st) Trading Day
following the date of receipt of a Conversion Notice, the Company
shall transmit by facsimile an acknowledgment of confirmation, in
the form attached hereto as Exhibit II,
of receipt of such Conversion Notice to such Holder and the
Transfer Agent, which confirmation shall constitute an instruction
to the Transfer Agent to process such Conversion Notice in
accordance with the terms herein. On or before the second
(2nd)
Trading Day following the date of receipt by the Company of such
Conversion Notice, the Company shall (1) provided that the Transfer
Agent is participating in DTC Fast Automated Securities Transfer
Program, credit such aggregate number of shares of Common Stock to
which such Holder shall be entitled to such Holder’s or its
designee’s balance account with DTC through its
Deposit/Withdrawal at Custodian system, or (2) if the Transfer
Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and deliver (via reputable overnight
courier) to the address as specified in such Conversion Notice, a
certificate, registered in the name of such Holder or its designee,
for the number of shares of Common Stock to which such Holder shall
be entitled. If the number of Preferred Shares represented by the
Preferred Share Certificate(s) submitted for conversion pursuant to
Section 4(c)(vi) is
greater than the number of Preferred Shares being converted, then
the Company shall if requested by such Holder, as soon as
practicable and in no event later than three (3) Trading Days after
receipt of the Preferred Share Certificate(s) and at its own
expense, issue and deliver to such Holder (or its designee) a new
Preferred Share Certificate representing the number of Preferred
Shares not converted.
(iii) Record Holder. The Person or
Persons entitled to receive the shares of Common Stock issuable
upon a conversion of Preferred Shares shall be treated for all
purposes as the record holder or holders of such shares of Common
Stock on the Conversion Date.
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(iv) Company’s Failure to Timely
Convert. If the Company shall fail, for any reason or for no
reason, to issue to a Holder within three (3) Trading Days after
the Company’s receipt of a Conversion Notice (whether via
facsimile or otherwise) (the “Share Delivery Deadline”), a
certificate for the number of shares of Common Stock to which such
Holder is entitled and register such shares of Common Stock on the
Company’s share register or to credit such Holder’s or
its designee’s balance account with DTC for such number of
shares of Common Stock to which such Holder is entitled upon such
Holder’s conversion of any Preferred Shares (as the case may
be) (a “Conversion
Failure”), then, in addition to all other remedies
available to such Holder, such Holder, upon written notice to the
Company, may void its Conversion Notice with respect to, and retain
or have returned (as the case may be) any Preferred Shares that
have not been converted pursuant to such Holder’s Conversion
Notice, provided that the voiding of a Conversion Notice shall not
affect the Company’s obligations to make any payments which
have accrued prior to the date of such notice pursuant to the terms
of this Certificate of Designations or otherwise and (y) the
Company shall pay in cash to such Holder on each day after such
third (3rd) Trading Day that
the issuance of such shares of Common Stock is not timely effected
an amount equal to 1.5% of the product of (A) the aggregate number
of shares of Common Stock not issued to such Holder on a timely
basis and to which the Holder is entitled and (B) the Closing Sale
Price of the Common Stock on the Trading Day immediately preceding
the last possible date on which the Company could have issued such
shares of Common Stock to the Holder without violating Section
4(c). In addition to the foregoing, if within three (3) Trading
Days after the Company’s receipt of a Conversion Notice
(whether via facsimile or otherwise), the Company shall fail to
issue and deliver a certificate to such Holder and register such
shares of Common Stock on the Company’s share register or
credit such Holder’s or its designee’s balance account
with DTC for the number of shares of Common Stock to which such
Holder is entitled upon such Holder’s conversion hereunder
(as the case may be), and if on or after such third (3rd) Trading Day such
Holder (or any other Person in respect, or on behalf, of such
Holder) purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by such
Holder of all or any portion of the number of shares of Common
Stock, or a sale of a number of shares of Common Stock equal to all
or any portion of the number of shares of Common Stock, issuable
upon such conversion that such Holder so anticipated receiving from
the Company, then, in addition to all other remedies available to
such Holder, the Company shall, within three (3) Business Days
after such Holder’s request and in such Holder’s
discretion, either (i) pay cash to such Holder in an amount equal
to such Holder’s total purchase price (including brokerage
commissions and other out-of-pocket expenses, if any) for the
shares of Common Stock so purchased (including, without limitation,
by any other Person in respect, or on behalf, of such Holder) (the
“Buy-In Price”),
at which point the Company’s obligation to so issue and
deliver such certificate or credit such Holder’s balance
account with DTC for the number of shares of Common Stock to which
such Holder is entitled upon such Holder’s conversion
hereunder (as the case may be) (and to issue such shares of Common
Stock) shall terminate, or (ii) promptly honor its obligation to so
issue and deliver to such Holder a certificate or certificates
representing such shares of Common Stock or credit such
Holder’s balance account with DTC for the number of shares of
Common Stock to which such Holder is entitled upon such
Holder’s conversion hereunder (as the case may be) and pay
cash to such Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of shares of
Common Stock multiplied by (B) the lowest Closing Sale Price of the
Common Stock on any Trading Day during the period commencing on the
date of the applicable Conversion Notice and ending on the date of
such issuance and payment under this clause (ii).
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(v) Pro Rata Conversion; Dispute.
In the event the Company receives a Conversion Notice from more
than one Holder for the same Conversion Date and the Company can
convert some, but not all, of such Preferred Shares submitted for
conversion, the Company shall convert from each Holder electing to
have Preferred Shares converted on such date a pro rata amount of
such Holder’s Preferred Shares submitted for conversion on
such date based on the number of Preferred Shares submitted for
conversion on such date by such Holder relative to the aggregate
number of Preferred Shares submitted for conversion on such date.
In the event of a dispute as to the number of shares of Common
Stock issuable to a Holder in connection with a conversion of
Preferred Shares, the Company shall issue to such Holder the number
of shares of Common Stock not in dispute and resolve such dispute
in accordance with Section 22.
(vi) Book-Entry. Notwithstanding
anything to the contrary set forth in this Section 4, upon
conversion of any Preferred Shares in accordance with the terms
hereof, no Holder thereof shall be required to physically surrender
the certificate representing the Preferred Shares to the Company
following conversion thereof unless (A) the full or remaining
number of Preferred Shares represented by the certificate are being
converted (in which event such certificate(s) shall be delivered to
the Company as contemplated by this Section 4(c)(vi)) or (B) such
Holder has provided the Company with prior written notice (which
notice may be included in a Conversion Notice) requesting
reissuance of Preferred Shares upon physical surrender of any
Preferred Shares. Each Holder and the Company shall maintain
records showing the number of Preferred Shares so converted by such
Holder and the dates of such conversions or shall use such other
method, reasonably satisfactory to such Holder and theCompany, so
as not to require physical surrender of the certificate
representing the Preferred Shares upon each such conversion. In the
event of any dispute or discrepancy, such records of such Holder
establishing the number of Preferred Shares to which the record
holder is entitled shall be controlling and determinative in the
absence of manifest error. A Holder and any transferee or assignee,
by acceptance of a certificate, acknowledge and agree that, by
reason of the provisions of this paragraph, following conversion of
any Preferred Shares, the number of Preferred Shares represented by
such certificate may be less than the number of Preferred Shares
stated on the face thereof. Each certificate for Preferred Shares
shall bear the following legend:
ANY
TRANSFEREE OR ASSIGNEE OF THIS CERTIFICATE SHOULD CAREFULLY REVIEW
THE TERMS OF THE CORPORATION’S CERTIFICATE OF DESIGNATIONS
RELATING TO THE SHARES OF SERIES L PREFERRED STOCK REPRESENTED BY
THIS CERTIFICATE, INCLUDING SECTION 4(c)(vi) THEREOF. THE NUMBER OF
SHARES OF SERIES L PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES L PREFERRED STOCK
STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(vi) OF THE
CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES L
PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
(d) Taxes. The Company shall pay
any and all documentary, stamp, transfer (but only in respect of
the registered holder thereof), issuance and other similar taxes
that may be payable with respect to the issuance and delivery of
shares of Common Stock upon the conversion of Preferred
Shares.
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(e) Limitation on Beneficial
Ownership. Notwithstanding anything to the contrary
contained in this Certificate of Designations, the Preferred Shares
held by a Holder shall not be convertible by such Holder, and the
Company shall not effect any conversion of any Preferred Shares
held by such Holder, to the extent (but only to the extent) that
such Holder or any of its affiliates would beneficially own in
excess of 4.99% (the “Maximum
Percentage”) of the Common Stock. To the extent
the above limitation applies, the determination of whether the
Preferred Shares held by such Holder shall be convertible
(vis-à-vis other convertible, exercisable or exchangeable
securities owned by such Holder or any of its affiliates) and of
which such securities shall be convertible, exercisable or
exchangeable (as among all such securities owned by such Holder and
its affiliates) shall, subject to such Maximum Percentage
limitation, be determined on the basis of the first submission to
the Company for conversion, exercise or exchange (as the case may
be). No prior inability of a Holder to convert Preferred Shares, or
of the Company to issue shares of Common Stock to such Holder,
pursuant to this Section 4(e) shall have any effect on the
applicability of the provisions of this Section 4(e) with
respect to any subsequent determination of convertibility or
issuance (as the case may be). For purposes of this Section 4(e),
beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of
percentage ownership) shall be determined in accordance with
Section 13(d) of the 1934 Act and the rules and regulations
promulgated thereunder. The provisions of this Section 4(e) shall
be implemented in a manner otherwise than in strict conformity with
the terms of this Section 4(e) to correct this Section 4(e) (or any
portion hereof) which may be defective or inconsistent with the
intended Maximum Percentage beneficial ownership limitation herein
contained or to make changes or supplements necessary or desirable
to properly give effect to such Maximum Percentage limitation. The
limitations contained in this Section 4(e) shall apply to a
successor holder of Preferred Shares. The holders of Common Stock
shall be third party beneficiaries of this Section 4(e) and the
Company may not waive this Section 4(e). For any reason at any
time, upon the written or oral request of a Holder, the Company
shall within two (2) Business Days confirm orally and in writing to
such Holder the number of shares of Common Stock then outstanding,
including by virtue of any prior conversion or exercise of
convertible or exercisable securities into Common Stock, including,
without limitation, pursuant to this Certificate of Designations.
By written notice to the Company, any Holder may increase or
decrease the Maximum Percentage to any other percentage not in
excess of 9.99% specified in such notice; provided that (i) any
such increase will not be effective until the 61st day after such
notice is delivered to the Company, and (ii) any such increase or
decrease will apply only to such Holder sending such notice and not
to any other Holder. For purposes hereof, in determining the number
of outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in (1)
the Company’s most recent Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
public filing with the Securities and Exchange Commission, as the
case may be, (2) a more recent public announcement by the Company,
or (3) any other notice by the Company setting forth the number of
shares of Common Stock outstanding. For any reason at any time,
upon the written or oral request of a holder of Preferred Shares,
the Company shall within three (3) Business Days confirm orally and
in writing to such holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including the
Preferred Shares, by the Holder and its Affiliates since the date
as of which such number of outstanding shares of Common Stock was
reported, that in any event are convertible or exercisable, as the
case may be, into shares of the Company’s Common Stock within
60 days’ of such calculation and that are not subject to a
limitation on conversion or exercise analogous to the limitation
contained herein. The provisions of this paragraph shall be
construed and implemented in a manner in accordance with Section
13(d) of the 1934 Act and the rules and regulations promulgated
thereunder.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Company has caused this Certificate of
Correction to be executed as of the 18th day of October
2017.
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MABVAX
THERAPEUTICS HOLDINGS, INC.
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By:
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/s/ J. David
Hansen
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Name:
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J.
David Hansen
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Title:
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President
and Chief Executive Officer
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