Attached files
EXHIBIT
4.2
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IN RE MABVAX THERAPEUTICS HOLDINGS,
INC.
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C.A. No.
2018-0549-TMR
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FORM OF ORDER
VALIDATING
Petitioner’s Corporate Acts
Under 8 Del. C.
§
205
WHEREAS, Petitioner MabVax
Therapeutics Holdings, Inc. (“MabVax”) has filed a
Verified Petition for Relief under 8 Del. C. § 205 (the
“Petition”) seeking to have this Court validate certain
corporate acts by MabVax,
WHEREAS, this Court has determined
that the relief sought is appropriate and just,
IT IS HEREBY ORDERED, this
20th day of
September
2018,
1. All conversions of MabVax’s
preferred stock between June 30, 2014 and February 12, 2018, which
are listed on Exhibit B to
the Petition, are validated pursuant to 8 Del. C. § 205;
2. All shares of common stock issued
upon the conversions validated pursuant to Paragraph 1 hereof and
listed in Exhibit B to the
Petition are validated pursuant to 8 Del. C. § 205;
3. The corporate acts listed below,
which were purportedly approved by the stockholders of MabVax at
meetings of stockholders during the time period identified in
Paragraph 1 hereof, are validated pursuant to 8 Del. C. § 205. The corporate acts
to be validated under this paragraph are:
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a.
Elections of
Directors
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The
election on August 26, 2015 of Kenneth M. Cohen and Paul V. Maier
as Class III directors, with each to serve until the 2018 Annual
Meeting of Stockholders.
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The
election on June 29, 2016 of J. David Hansen, Philip O. Livingston,
M.D., and Thomas C. Varvaro as Class I directors, with each to
serve until the 2019 Annual Meeting of
Stockholders.
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The
election on June 12, 2017 of Jeffrey F. Eisenberg and Jeffrey V.
Ravetch, M.D., Ph.D., as Class II directors, with each to serve
until the 2020 Annual Meeting of Stockholders.
b.
The Filing of,
and Amendments and/or Restatements Effected by, the Following
Documents Filed with the Office of the Secretary of State of the
State of Delaware (the “State
Office”)
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Amended and Restated Certificate of
Incorporation of MabVax, filed with the State Office on September
8, 2014.
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Certificate of Amendment of Amended
and Restated Certificate of Incorporation of MabVax, filed with the
State Office on September 8, 2014.
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Certificate of Amendment of Amended
and Restated Certificate of Incorporation of MabVax, filed with the
State Office on August 16, 2016.
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Certificate of Amendment of Amended
and Restated Certificate of Incorporation of MabVax, filed with the
State Office on February 14, 2018.
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c.
Amendments to
MabVax’s Amended and Restated 2014 Employee, Director and
Consultant Equity Incentive Plan
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Second Amended and Restated 2014
Employee, Director and Consultant Equity Incentive Plan, including
increasing the number of shares issuable thereunder to 8,360,789
shares, which was approved by the stockholders of MabVax on August
26, 2015.
●
Fourth Amended and Restated 2014
Employee, Director and Consultant Equity Incentive Plan, including
increasing the number of shares issuable thereunder to 4,128,406
shares, which was approved by the stockholders of MabVax on June
12, 2017.
●
Fifth
Amended and Restated 2014 Employee, Director and Consultant Equity
Incentive Plan, including increasing the number of shares issuable
thereunder to 6,128,406 shares, which was approved by the
stockholders of MabVax on October 2, 2017.
●
Amendment to the Fifth Amended and
Restated 2014 Employee, Director and Consultant Equity Incentive
Plan, including increasing the number of shares issuable thereunder
to 10,128,406 shares, which was approved by the stockholders of
MabVax on December 1, 2017.
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d.
Corporate
authorization, for stock exchange purposes, of certain potential
issuances of common stock, the ratification of certain prior
issuances of common stock and certain issuances of
securities
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The
potential issuance, approved by the stockholders on October 2,
2017, of up to an aggregate of 3,400,000 shares of common stock, in
excess of 19.99% of the number of shares of common stock that were
issued and outstanding on August 11, 2017, consisting of (i)
2,386,360 shares of common stock issuable upon conversion of Series
J Preferred Stock, issued to investors in a financing consummated
in August 2017 and (ii) 1,013,640 shares of common stock available
for issuance under designated but unissued shares of Series J
Preferred Stock.
●
The
potential issuance, approved by the stockholders on October 2,
2017, of up to 6,500,000 shares of common stock upon conversion of
Series K Preferred Stock issuable in connection with a financing
consummated in August 2017, in excess of 19.99% of the number of
shares of common stock that were issued and outstanding on August
11, 2017.
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The
issuance, approved by the stockholders on October 2, 2017, of
securities in one or more non-public offerings where the maximum
discount at which securities will be offered will be equivalent to
a discount of 30% below the market price of the common stock, as
required by and in accordance with Nasdaq Marketplace Rule
5635(d).
●
The
issuance, approved by the stockholders on October 2, 2017, of
securities in one or more non-public offerings where the maximum
discount at which securities will be offered will be equivalent to
a discount of 20% below the market price of the common stock, as
required by and in accordance with Nasdaq Marketplace Rule
5635(d).
●
The
potential issuance, approved by the stockholders on December 1,
2017, 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.
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Ratification of the issuance,
approved by the stockholders on December 1, 2017, 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.
4. This Order validates the corporate
acts referenced in the foregoing Paragraphs, effective as of the
time each such act was originally taken and notwithstanding any
failures of authorization or potential failures of authorization
described in, or resulting from the matters described in, the
Petition.
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By:
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/s/ Montgomery-Reeves
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Vice Chancellor
Montgomery-Reeves
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