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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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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Definitive Additional Materials
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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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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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Fee paid previously with preliminary materials.
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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 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 12, 2017
May 5, 2017
To the stockholders of MabVax Therapeutics Holdings,
Inc.:
Notice
is hereby given that the Annual Meeting of Stockholders (the
“Annual Meeting”) of MabVax Therapeutics Holdings,
Inc., a Delaware corporation (the “Company”), will be
held on June 12, 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
elect two
Class II directors to serve until the 2020 Annual Meeting of
Stockholders;
2)
To grant the Board of Directors
the authority to amend our Third Amended and Restated 2014
Employee, Director and Consultant Equity Incentive Plan to increase
the number of shares available for issuance thereunder to
4,128,406 from
2,159,352;
3)
To
ratify the appointment of CohnReznick LLP as our independent
registered public accounting firm for our fiscal year ending
December 31, 2017;
4)
To
authorize the adjournment of the Annual Meeting if necessary or
appropriate, including to solicit additional proxies if there are
not sufficient votes at the time of the Annual Meeting or
adjournment or postponement thereof to approve any of the foregoing
proposals; and
5)
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 April 18, 2017 as the
record date (the “Record Date”) for determination of
stockholders entitled to notice and to vote at the Annual Meeting
and any adjournment thereof. Holders of the Company’s common
stock, Series D Convertible Preferred Stock, Series E Convertible
Preferred Stock, and Series F Convertible Preferred Stock as of the
Record Date, are entitled to vote at the Annual Meeting. This
notice, the Proxy Statement, proxy card, and Annual Report on
Form 10-K for the year ended December 31, 2016 (the “Annual
Report”) will be first sent or made available to stockholders
on or about May 5, 2017.
Your
vote is important. Whether or not you plan to attend the Annual
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 Annual 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
ANNUAL MEETING OF STOCKHOLDERS
June 12, 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 Annual Meeting of Stockholders (the “Annual
Meeting”) of the Company, to be held on June 12, 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 Annual Meeting, you will be asked to consider and vote upon the
following matters:
1)
To
elect two Class II directors to serve until the 2020 Annual Meeting
of Stockholders (Proposal 1);
2)
To grant the Board of Directors
the authority to amend our Third Amended and Restated 2014
Employee, Director and Consultant Equity Incentive Plan to increase
the number of shares available for issuance thereunder to
4,128,406 from 2,159,352
(Proposal
2);
3)
To
ratify the appointment of CohnReznick LLP as our independent
registered public accounting firm for our fiscal year ending
December 31, 2017 (Proposal 3);
4)
To
authorize
the adjournment of the Annual Meeting if necessary or appropriate,
including to solicit additional proxies if there are not sufficient
votes at the time of the Annual Meeting or adjournment or
postponement thereof to approve any of the foregoing proposals
(Proposal 4); and
5)
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 April 18,
2017 as the record date (the “Record Date”) for
determining stockholders entitled to notice of and to vote at the
Annual Meeting and any adjournment thereof. The notice of the
Annual Meeting (the “Notice”), this Proxy Statement,
the proxy card and the Annual Report on form 10-K for the fiscal
year ended December 31, 2016 (“Annual Report”) will be
first sent or made available to stockholders on or about May 5,
2017.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
THE ANNUAL MEETING TO BE HELD ON JUNE 12, 2017: THE NOTICE, PROXY
STATEMENT, PROXY CARD AND THE ANNUAL REPORT 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 Annual Meeting.
What Is Included in these Materials?
These
materials include the Notice, the Proxy Statement, a proxy card,
and the Annual Report as filed with the Securities and Exchange
Commission (the “SEC”) on March 1, 2017.
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
Annual Report 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 annual 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 Annual Report 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 Annual Report, 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 April 18, 2017 as the
Record Date for a determination of stockholders entitled to notice
of, and to vote at, the Annual 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 F Convertible Preferred Stock, par value
$0.01 (the “Series F Preferred Stock” and, collectively
with the Common Stock and Series D Preferred Stock and Series E
Preferred Stock, the “Voting Capital”) may vote on each
proposal that may come before the Annual Meeting subject to
beneficial ownership limitations governing the Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred
Stock.
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, Series E Preferred Stock and Series F 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 132,489 shares of
Series D Preferred Stock outstanding. Taking into account
conversion limitations, none 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, none 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 F 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 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 665,281 shares of
Series F Preferred Stock outstanding. Taking into account
conversion limitations, none of the shares of the Series F
Preferred Stock can be voted by the holders thereof as of the
Record Date.
On
the Record Date, there were 6,434,348 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 Meeting?
Record
holders and beneficial owners may attend the Annual
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 Annual 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 Annual
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 meeting and not revoked will be
voted at the Annual Meeting as you instruct in a proxy delivered
before the Annual 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
Annual Meeting and all matters incident to the conduct of the
meeting. If you are a registered stockholder and attend the
meeting, you may deliver your completed proxy card in person.
“Street name” stockholders who wish to vote at the
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 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 Annual 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 Annual
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 Annual Meeting. If there is not a quorum at the
Annual Meeting, we may adjourn the 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 Annual 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”?
With
the exception of the ratification of the appointment of CohnReznick
LLP as our independent registered public accounting firm for our
fiscal year ending December 31, 2017 and the authorization of
adjournment of the Annual Meeting, all of the other proposals to be
voted upon at the Annual Meeting are considered
non-routine.
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, and
therefore will have the same effect as negative
votes.
How Many Votes Are Needed for Each Proposal to Pass?
Proposal
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Vote Required
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Broker
Discretionary
Vote Allowed
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Election of two Class II directors to serve until the 2020 Annual
Meeting of Stockholders
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Plurality of the votes cast (the three directors receiving the most
“For” votes)
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No
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Authorization of the Board of Directors to approve an amendment to
our Third Amended and Restated 2014 Employee, Director and
Consultant Equity Incentive Plan to increase the number of shares
available for issuance thereunder to 4,128,406 from
2,159,352
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A majority of the votes cast
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No
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Ratification of the appointment of CohnReznick LLP as our
independent registered public accounting firm for our fiscal year
ending December 31, 2017
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A majority of the votes cast
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Yes
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Adjournment of the Annual 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 Annual 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 the election of the two Class II directors,
for
the authorization of the Board of Directors to approve an amendment
to our Third Amended and Restated 2014 Employee, Director and
Consultant Equity Incentive Plan to increase the number of shares
available for issuance thereunder to 4,128,406 from
2,159,352, for the ratification of the appointment of
CohnReznick LLP as our independent registered public accounting
firm for the year ending December 31, 2017, and for the adjournment
of the Annual Meeting.
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 Annual
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 Annual
Meeting.
How can I find out the Results of the Voting at the Annual
Meeting?
Preliminary
voting results will be announced at the Annual 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
meeting.
What Is the Deadline to Propose Actions for Consideration or to
Nominate Individuals to Serve as Directors at the 2018 Annual
Meeting?
Requirements for Stockholder
Proposals to Be Considered for Inclusion in the Company’s
Proxy Materials. Any
appropriate proposal submitted by a stockholder and intended to be
presented at the 2018 Annual Meeting must be submitted in writing
to the Company’s Secretary at 11535 Sorrento Valley Rd.,
Suite 400, San Diego, CA 92121, and received no later
than March 31, 2018, to be includable in the Company’s
Proxy Statement and related proxy for the 2018 Annual Meeting. A
stockholder proposal will need to comply with the SEC regulations
under Rule 14a-8 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), regarding the inclusion
of stockholder proposals in company-sponsored proxy materials.
Although the Board of Directors will consider stockholder
proposals, we reserve the right to omit from our Proxy Statement,
or to vote against, stockholder proposals that we are not required
to include under the Exchange Act, including
Rule 14a-8.
Requirements for Stockholder
Proposals to Be Brought Before the 2018 Annual Meeting of
Stockholders and Director Nominations. Stockholders intending to present a proposal
at the 2018 Annual Meeting of Stockholders but not intending to
have included in the Proxy Statement and form of proxy relating to
the 2018 Annual Meeting of stockholders, as well as any director
nominations, must submit such proposals to the Company, ATTN: Chief
Executive Officer, 11535 Sorrento Valley Rd., Suite 400, San Diego,
CA 92121, no earlier than March 1, 2018 and no later than March 31,
2018.
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 1 (Mr.
Eisenberg and Dr. Ravetch each has an interest) and Proposal 2
(members of our Board of Directors and our executive officers will
be eligible for equity incentive awards and otherwise to
participate in our plan).
PROPOSAL 1:
ELECTION OF CLASS II DIRECTORS
Two
Class II directors are to be elected at the Annual Meeting to serve
until the 2020 Annual Meeting of Stockholders. Unless otherwise
instructed, the persons named in the accompanying proxy intend to
vote the shares represented by the proxy for the election of the
nominees listed below. Although it is not contemplated that any
nominee will decline or be unable to serve as a director, in such
event, proxies will be voted by the proxy holder for such other
persons as may be designated by the Board of Directors, unless the
Board of Directors reduces the number of Class II directors to be
elected. For
the Annual Meeting, the Board of Directors has reduced the number
of Class II directors to be elected. Election of Class II
directors requires a plurality of the votes cast at the Annual
Meeting.
The
following table sets forth the nominees for Class II director on
the Board of Directors. It also provides certain information about
the nominees as of the Record Date.
Nominees for Class II Directors
Name
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Age
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Position
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Director Since
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Jeffrey F. Eisenberg
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51
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Director
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February 2016
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Jeffrey V. Ravetch, M.D., Ph.D.
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65
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Director
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July 2014
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The
following is a summary of the biographical information of our Class
II director nominees:
Jeffrey F.
Eisenberg, 51, has served as a
member of our Board of Directors since February
2016. Mr. Eisenberg has served in a variety of
senior management positions, and has developed significant
experience in the areas of corporate transactions, strategic
alliances, product development, commercialization, manufacturing
and talent management. From November 1998 to December
2015 Mr. Eisenberg held various executive management positions
including President, Chief Executive Officer and a board member of
Noven Pharmaceuticals, Inc., the U.S. prescription pharmaceutical
division of Hisamitsu Pharmaceutical Inc., a Japanese
pharmaceutical company and the world's largest manufacturer of
transdermal drug patches. Mr. Eisenberg led the
post-acquisition integration of JDS Pharmaceuticals, a private
specialty pharmaceutical company purchased by Noven in 1997, as
well as the integration of Noven and Hisamitsu following the 2009
acquisition. From 2007 to August 2014 Mr. Eisenberg also
served as President of Novogyne Pharmaceuticals, a Women's Health
commercial joint venture between Noven and Novartis Pharmaceuticals
Corporation. Mr. Eisenberg was appointed President and Chief
Executive Officer of Noven following Hisamitsu's acquisition of
Noven. Prior to Noven Pharmaceuticals, Inc., Mr.
Eisenberg gained extensive legal experience serving as Associate
General Counsel and then as Acting General Counsel of IVAX
Corporation, at the time a publicly-traded pharmaceutical company
with global operations. Prior to serving at IVAX, Mr. Eisenberg was
a lawyer in the corporate securities department of
the Florida law firm of Steel Hector & Davis, where
he began his professional career in 1990.
Mr.
Eisenberg is an expert in corporate governance, having advised the
boards of IVAX, Noven and others through several significant
internal and external issues, including mergers and acquisitions,
corporate financings, strategic alliances, CEO transitions,
securities class action lawsuits, FDA warning letters and consent
decrees, and development and implementation of corporate governance
policies. Mr. Eisenberg holds a BS, Economics degree from the
Wharton School of the University of Pennsylvania, and a JD
degree from Columbia University Law School. We
believe that Mr. Eisenberg’s extensive experience in
corporate transactions, product development, corporate governance
and executive leadership, qualifies him to serve as a member of our
Board of Directors.
Jeffrey V.
Ravetch, M.D., Ph.D., 65, serves as a member of our Board of Directors and,
prior to the Merger, served as a member of the Board of Directors
of MabVax Therapeutics, Inc. since March 2014. Dr.
Ravetch has served as the Theresa and Eugene Lang Professor at the
Rockefeller University and Head of the Leonard Wagner Laboratory of
Molecular Genetics and Immunology since 1997. Dr. Ravetch, a native
of New York City, received his undergraduate training in molecular
biophysics and biochemistry at Yale University, earning his B.S.
degree in 1973, working with Donald M. Crothers on the
thermodynamic and kinetic properties of synthetic
oligoribonucleotides. Dr. Ravetch continued his training at the
Rockefeller University—Cornell Medical School MD/Ph.D.
program, earning his doctorate in 1978 in genetics with Norton
Zinder and Peter Model, investigating the genetics of viral
replication and gene expression for the single stranded DNA
bacteriophage f1 and in 1979 he earned his M.D. from Cornell
University Medical School. Dr. Ravetch pursued postdoctoral studies
at the NIH with Phil Leder where he identified and characterized
the genes for human antibodies and the DNA elements involved in
switch recombination. From 1982 to 1996 Dr. Ravetch was a member of
the faculty of Memorial Sloan-Kettering Cancer Center and Cornell
Medical College. His laboratory has focused on the mechanisms by
which antibodies mediate their diverse biological activities in
vivo, establishing the pre-eminence of FcR pathways in host
defense, inflammation and tolerance and describing novel inhibitory
signaling pathways to account for the paradoxical roles of
antibodies as promoting and suppressing inflammation. His work
extended into clinical applications for the treatment of
neoplastic, inflammatory and infectious
diseases.
Dr.
Ravetch has received numerous awards including the
Burroughs-Wellcome Scholar Award, the Pew Scholar Award, the Boyer
Award, the NIH Merit Award, the Lee C. Howley, Sr. Prize (2004),
the AAI-Huang Foundation Meritorious Career Award (2005), the
William B. Coley Award (2007), the Sanofi-Pasteur Award (2012) and
the Gairdner International Prize (2012). He has presented numerous
named lectures including the Kunkel Lecture, the Ecker Lecture, the
Goidl Lecture, the Grabar Lecture, the Dyer Lecture and the
Heidelberger/Kabat Lecture. He has received an honorary doctorate
from Freidrich-Alexander University, Nuremberg/Erlangen. He is a
member of National Academy of Sciences (2006), the Institute of
Medicine (2007), a Fellow of the American Academy of Arts and
Sciences (2008) and a Fellow of the American Association for the
Advancement of Science (2009).
Dr.
Ravetch has contributed extensively to the scientific community by
serving as a member of the Scientific Advisory Boards of the Cancer
Research Institute, the Irvington Institute for Medical Research
and the Damon Runyon Foundation. He has been active in
biotechnology for the last two decades, having served as a
consultant or member of the Scientific Advisory Boards of
Millennium Pharmaceuticals, Exelexis Pharmaceuticals, Regeneron
Pharmaceuticals, Medimmune, Genentech, Novartis, Merck, Micromet,
Xencor, Suppremol, Igenica, Portola Pharmaceuticals and Momenta
Pharmaceuticals, Inc. We believe Dr. Ravetch’s extensive
scientific knowledge and training qualify him to serve as a member
of our Board of Directors.
DIRECTORS AND OFFICERS
Set
forth below is certain information regarding our directors and
executive officers. Our Board of Directors is comprised of
eight directors, and is divided among three classes, Class I, Class
II and Class III. Directors in Class I will serve until the 2019
Annual Meeting of Stockholders and until their respective
successors have been duly elected and qualified, or until such
director’s earlier resignation, removal or
death. Class II directors, upon election at this Annual
Meeting, will serve until the 2020 Annual Meeting of Stockholders
and until their respective successors have been duly elected and
qualified, or until such director’s earlier resignation,
removal or death. Class III directors will serve until the 2018
Annual Meeting of Stockholders and until their respective
successors have been duly elected and qualified, or until such
director’s earlier resignation, removal or death. All
officers serve at the pleasure of the Board.
The
following table sets forth certain information concerning our
current directors and executive officers (except for Mr. Eisenberg
and Dr. Ravetch who are listed above):
Name
|
|
Position
|
|
|
|
J. David Hansen
|
|
Chairman (Class I), President and Chief Executive
Officer
|
|
|
Robert E. Hoffman
|
|
Director (Class II, not standing for
re-election)
|
|
|
Philip O. Livingston, M.D.
|
|
Director (Class I), Chief Science Officer
|
|
|
Jeffrey V. Ravetch, M.D., Ph.D.
|
|
Director (Class II)
|
|
|
Thomas C. Varvaro
|
|
Director (Class I)
|
|
|
Kenneth M. Cohen
|
|
Director (Class III)
|
|
|
|
Paul V. Maier
|
|
Director (Class III)
|
|
|
|
Jeffrey F. Eisenberg
|
|
Director (Class II)
|
|
|
Gregory P. Hanson CMA, MBA
|
|
Chief Financial Officer
|
|
|
Paul W. Maffuid, Ph.D.
|
|
Executive Vice President of Research and Development
|
|
|
|
Paul F. Resnick, M.D., MBA
|
|
Vice President and Chief Business Officer
|
The
following is a summary of the background of each of our other
directors and executive officers.
J. David
Hansen, 65, serves as our
President, Chief Executive Officer, and as Chairman of our Board of
Directors and, prior to the merger with Telik, Inc. on July 8, 2014
(the “Merger”), served as President, Chief Executive
Officer, and Chairman of the Board of Directors of MabVax
Therapeutics, Inc. after co-founding the Company in 2006. Mr.
Hansen is an experienced biopharmaceutical executive with more than
30 years of industry experience. He has held senior management
roles in both private start-up companies as well as small to
mid-sized public companies. His senior level experience includes
executive management, finance and accounting, corporate
development, sales and marketing. During his career, Mr. Hansen has
executed a wide variety of in and out licensing agreements,
research and development collaborations, joint ventures,
divestitures, and acquisitions. Mr. Hansen has developed expertise
in the therapeutic areas of immunology, oncology, and infectious
disease. Mr. Hansen gained executive management experience at
several life sciences companies prior to co-founding the Company
that make him particularly suited for his leadership role in the
Company. For example, he was a corporate officer of Avanir
Pharmaceuticals where he held the titles of Vice President of
Commercial Development, Senior Vice President of Corporate
Development, and President and Chief Operations Officer of the
Avanir Subsidiary Xenerex Biosciences. Prior to Avanir, Mr. Hansen
served in multiple roles at Dura Pharmaceuticals including National
Sales Director, Director of Marketing, and Director of Business
Development. He has additional management experience with Merck
& Co. (Schering-Plough), Key Pharmaceuticals, and Bristol Myers
Squibb. We believe that Mr. Hansen’s extensive experience
with public and private pharmaceutical companies in a leadership
role qualifies him to serve as the Chairman of our Board of
Directors and as our President and Chief Executive
Officer.
Kenneth M. Cohen,
61, serves as a member of our Board of Directors and, prior
to the Merger, served as a member of the Board of Directors of
MabVax Therapeutics, Inc. since July of 2014. Since
2007, Mr. Cohen has served either as a board member, executive
officer or advisor to various companies, entrepreneurs and
investors in the life sciences area. From January 2011
to August 2014, he served as a member of the Board of Directors of
Adamis Pharmaceuticals Corporation (Nasdaq: ADMP). He was a
co-founder of publicly held Somaxon Pharmaceuticals, and served as
its President and CEO from 2003 through 2007 and continued as a
director until June 2008. Prior to Somaxon Pharmaceuticals, Mr.
Cohen gained executive management and board experience through
various executive positions that make him suitable for membership
on the Board of Directors of the Company. For example,
he was President and CEO of Synbiotics Corporation; Executive Vice
President and Chief Operating Officer for Canji Incorporated, a
human gene-therapy company that was acquired by Schering-Plough
Corporation; Vice President of Business Affairs at Argus
Pharmaceuticals, Inc.; and Vice President of Marketing and Business
Development for LifeCell Corporation. Mr. Cohen began
his career at Eli Lilly and Company where, among many different
responsibilities over ten years, he directed business planning for
the Medical Instrument Systems Division and managed the launch of
Prozac. He received an A.B. in biology and chemistry from Dartmouth
College and an M.B.A. from the Wharton School of the University of
Pennsylvania. We believe that Mr. Cohen’s 20 years of
experience serving as an executive officer including chief
executive officer of several life sciences companies, and serving
as a member of the board of several life sciences companies
qualifies him to serve as a member of the Board of
Directors.
Robert E.
Hoffman, 51, has served as a
member of our Board of Directors since
September 2014 and will not be standing for re-election. Mr.
Hoffman is Chief Financial Officer and Senior Vice President
Finance at Heron Therapeutics (NasdaqCM: HRTX), a position he has
held since April 2016. From September 2016 to April 2017 Mr.
Hoffman served as Executive Vice President and Chief Financial
Officer of Innovus Pharmaceuticals, Inc. From July 2015 to
September 2016 Mr. Hoffman was Chief Financial Officer of
AnaptysBio, Inc., a biopharmaceutical company. Prior to
AnaptysBio Mr. Hoffman was the Senior Vice President, Finance and
Chief Financial Officer of Arena Pharmaceuticals, Inc. (Nasdaq:
ARNA) until July 2015 and has held other finance and accounting
management roles at Arena since 1997, except that from March 2011
to August 2011, Mr. Hoffman served as Chief Financial Officer for
Polaris Group, a privately held drug development company. Mr.
Hoffman is currently a member of the board of directors of
CombiMatrix Corporation, a molecular diagnostics company and Kura
Oncology, Inc. a biopharmaceutical company. He also currently
serves as a member of the Financial Accounting Standards
Board’s Small Business Advisory Committee and the steering
committee of the Association of Bioscience Financial Officers. In
addition, Mr. Hoffman is a member and a former director and
President of the San Diego Chapter of Financial Executives
International. Mr. Hoffman holds a B.B.A. from St. Bonaventure
University, and is licensed as a C.P.A. (inactive) in the State of
California. We believe Mr. Hoffman’s 17 years of experience
in serving as an executive officer of a publicly traded life
sciences company and service as a member of the board of directors
of two life sciences companies qualifies him to serve as a member
of our Board of Directors, and as an Audit Committee financial
expert.
Philip
O. Livingston, M.D., 74,
serves as a member of
our Board of Directors and our Chief Science Officer and, prior to
the Merger, served as a member of the Board of Directors and Chief
Science Officer of MabVax Therapeutics, Inc. since 2012. He
received his MD degree from Harvard Medical School and was
Professor of Medicine in the Joan and Sanford Weill Medical College
at Cornell University and Attending Physician and Member in
Memorial Sloan-Kettering Cancer Center where he treated melanoma
patients and ran the Cancer Vaccinology Laboratory research lab for
over 30 years until his retirement from MSK October 1, 2011. Dr.
Livingston’s research focused on: identification of suitable
targets for immunotherapy of a variety of cancers, construction of
polyvalent conjugate vaccines specifically designed to augment
antibody responses against these targets, and identification of
optimal immunological adjuvants to further augment the potency of
these vaccines. He has over 108 publications and 4 issued patents
and 3 pending patent applications concerning cancer vaccines. Dr.
Livingston helped establish MabVax Therapeutics, Inc., and another
biotech company, Adjuvance Technologies, Inc. We believe that Dr.
Livingston’s extensive expertise in immunotherapy qualifies
him to serve as a member of our Board of Directors and our Chief
Science Officer.
Paul V. Maier, 69, joined
our Board of Directors in July 2014. Since 2007, Mr.
Maier has served as a member of the Board of Directors of
International Stem Cell Corporation (OTCQB: ISCO) and currently
serves as the Chairperson of its Audit Committee and as a member of
its Compensation and Governance Committees. Since 2012 Mr. Maier
has served as Chairman of the Audit Committee and a member of the
Governance Committee of the Board of Directors of Apricus
Biosciences, Inc. (Nasdaq: APRI). Since 2015, Mr. Maier has served
as Chairman of the Audit Committee and member of the Compensation
Committee of the Board of Directors of Ritter Pharmaceuticals
(Nasdaq: RTTR). Mr. Maier also serves as a Director of Biological
Dynamics, a private life science company. From 2009 to
June 2014, Mr. Maier served as the CFO of Sequenom, Inc., (acquired
by Laboratory Corporation of America Holdings). Prior to Sequenom,
Inc., Mr. Maier gained executive management experience
through various management positions that make him suitable for
membership on the Board of Directors of the Company. For
example, Mr. Maier served
as Senior Vice President and CFO of Ligand Pharmaceuticals, Inc.,
where he helped build Ligand from a venture stage company to a
commercial, integrated biopharmaceutical
organization. Prior to Ligand Pharmaceuticals, Inc., he
held various management and finance positions at ICN
Pharmaceuticals. Mr. Maier received his M.B.A. from Harvard
Business School and a B.S. from Pennsylvania State University. We
believe that Mr. Maier’s over 25 years of experience in life
sciences as a chief financial officer and serving on the board of
several life sciences public companies qualifies him to serve as a
member of the Board of Directors and as chair of the Audit
Committee.
Thomas C. Varvaro, 47, has served as a member of our Board of
Directors since April 2015. Mr. Varvaro has served as
the CFO of ChromaDex Corp. (Nasdaq: CDXC) since January 2004 and as
its Secretary since March 2006. He also has served as a director of
ChromaDex Corporation from March 2006 until May 2010. Mr. Varvaro
is responsible for overseeing all aspects of ChromaDex’s
accounting, information technology, intellectual property
management and human resources management. Mr. Varvaro has
extensive process-mapping and business process improvement skills,
along with a solid information technology background that includes
management and implementation experiences ranging from custom
application design to enterprise wide system deployment. Mr.
Varvaro also has hands-on experience in integrating acquisitions
and in new facility startups. In working with manufacturing
organizations, Mr. Varvaro has overseen plant automation, reporting
and bar code tracking implementations. Mr. Varvaro also has broad
legal experience in intellectual property, contract and employment
law. Prior to ChromaDex, Mr. Varvaro gained substantial management
experience in several positions that make him suitable for
membership on the Board of Directors of the Company. For
example, he was employed by
Fast Heat Inc., a Chicago, Illinois based Global supplier to the
plastics, HVAC, packaging, and food processing industries, where he
began as controller and was promoted to chief information officer
and then chief financial officer during his tenure. During his time
there Mr. Varvaro was responsible for all financial matters
including accounting, risk management and human resources. Earlier
in his career Mr. Varvaro gained additional experience in other
areas of information technology and accounting
roles. For example, Mr. Varvaro was employed by Maple
Leaf Bakery, Inc., Chicago, Illinois, during its rise to becoming a
national leader in specialty bakery products. During his tenure,
Mr. Varvaro served in information technology and accounting roles,
helping to shepherd the company from a single facility to national
leader in specialty food products. Mr. Varvaro has a B.S. in
Accounting from University of Illinois, Urbana-Champaign and is a
Certified Public Accountant. We believe Mr.
Varvaro’s extensive industry experience as an officer and
director, as well as his extensive financial and accounting
training and management experience qualify him to serve as a member
of our Board of Directors, and as an Audit Committee financial
expert.
Gregory P.
Hanson, CMA, MBA, 70, serves as our CFO, and prior to the
Merger served as CFO of MabVax Therapeutics, Inc. since February of
2014. Mr. Hanson has over 30 years' experience serving as
CFO/financial executive/board member of public and private life
sciences and hi tech companies. Since October 2016, Mr.
Hanson has served as a member of the board of directors of WCCT,
Inc., a private pharmaceutical contract research organization. From
January 2008 to February 2014 Mr. Hanson was Managing Director of
First Cornerstone, a board and management advisory service to
companies and executives. From November 2009 to November
2016, Mr. Hanson served as Advisory Board Member of Menon
International, Inc., and from October 2011 to September 2016,
served on the Life Sciences Advisory Board of Brinson Patrick
Securities, a boutique investment bank. Mr. Hanson is
Past-President and 10-year Member of the Board of Directors of San
Diego Financial Executives International (FEI), and a member of the
Capital Formation Committee at BIOCOM since 2011. Earlier in his
career, Mr. Hanson gained substantial executive management
experience that helped qualify him in his role as
CFO. For example, he served as Senior Vice President of
Brinson Patrick Securities, where he opened the San Diego branch
and introduced at-the-market financing strategies to public life
sciences companies. Prior to Brinson Patrick Securities, Mr. Hanson
served as Senior Vice President and CFO of Mast Therapeutics
(MSTX—NYSE MKT), and prior to Mast Therapeutics was Vice
President and CFO, Chief Accounting Officer, Compliance Officer and
Corporate Secretary of Avanir Pharmaceuticals, Inc. (acquired by
Otsuka Holdings Co., Ltd.), the developer of the cold sore product
Abreva™, and Neudexta™, for the treatment of
Pseudobulbar Affect, or PBA, a central nervous system disorder.
During his career, Mr. Hanson has completed approximately $1
billion in financing, licensing and partnering arrangements. Mr.
Hanson was a founding and 6-year member of the Small Business
Advisory Committee to the Financial Accounting Standards Board, and
has spoken at various national conferences, industry organizations
and panels on financing strategy and mergers and acquisitions, and
twice spoken to the SEC’s Committee on Improvements to
Financial Reporting.
Mr.
Hanson has passed the examination for Certified Public Accountants
and is a Certified Management Accountant. He has an MBA
with distinction from the University of Michigan, and a BS in
Mechanical Engineering from Kansas State
University. From 2008 to September 2016 Mr. Hanson
maintained Series 7 & Series 63 securities
licenses.
Paul W.
Maffuid, Ph.D., 61,
serves as Executive Vice President of Research and Development. Dr.
Maffuid joined the Company in July 2014. Dr. Maffuid is
an experienced biopharmaceutical executive with more than 30 years
of pharmaceutical industry experience. From 2011 to June 2014, he
worked for AAIPHARMA Services Corporation where he held various
management positions including Executive Vice President, Pharma
Operations. His responsibilities included formulation, process
development, technology transfer, stability and analytical services
for clients developing biologic and small molecule therapeutics. He
was a member of the Executive Team that transformed a declining
business into one of the world’s leading providers of
integrated development services for the biopharmaceutical
sector. Dr. Maffuid has gained extensive experience to
qualify him in his executive leadership role over research and
development at the Company. For example, prior to
joining AAIPHARMA he was the founder of Biopharmalogics, Inc. a
consulting service providing Chemistry Manufacturing and Controls
(CMC) as well as Drug Metabolism-Pharmacokinetics (DMPK) services
for the development of pharmaceutical products which he operated
from 2008 to 2011. Earlier in his career Dr. Maffuid was Senior
Vice President of Irvine Pharmaceutical Services, Inc., and Vice
President of Pharmaceutical Development for Arena Pharmaceuticals.
While at Arena Pharmaceuticals Dr. Maffuid was a member of the
Executive Management team responsible for all CMC and DMPK in
support of discovery, development, and commercial operations. He
led the design and construction of a 40,000 sq. ft. cGMP compliant
pilot manufacturing facility. Dr. Maffuid had management roles at
Magellan Laboratories, Cabrillo Laboratories, and Amylin
Pharmaceuticals.
Paul F.
Resnick, M.D., MBA, 60, serves
as Vice President and Chief Business Officer. Dr.
Resnick joined the Company in March 2016. From January
2013 to March 2016 Dr. Resnick was Senior Vice President, Business
Development for Juventas Therapeutics, where he was responsible for
business and commercial strategy and working with executive
management overseeing corporate clinical development, and financial
and business strategies. From February 2012 to December
2012, Dr. Resnick was an advisor to several companies in the life
sciences area. From January 2008 to January 2012 he was
Vice President, Business Development for Intellikine, Inc.
(acquired by Takeda Pharmaceuticals), responsible for managing
alliances and leading the business development strategy that
resulted in securing an acquisition by Takeda
Pharmaceuticals. During Dr. Resnick’s career, he
has gained extensive experience to qualify him in his executive
leadership role for business development for the
Company. For example, Dr. Resnick held Senior Director
positions for Worldwide Business Development, and for Strategic
Alliances, at Pfizer Inc., where he was responsible for networking
with leaders from biotechnology companies, universities, and
research institutions to gain early insights into emerging
technologies, and for leading technical and business diligence,
negotiations, and alliance management of science and technology
initiatives for Pfizer’s Biotechnology and Bio-innovation
Center. Prior to Pfizer Dr. Resnick held Director and
Senior Director positions at Rinat Neuroscience (acquired by
Pfizer), Intermune, Inc. and Roche Pharmaceuticals. Dr.
Resnick has an M.D. from The Medical College of Wisconsin and an
MBA from The Wharton School of the University of
Pennsylvania.
Director Independence
After
review of all relevant transactions or relationships between each
director and nominee for director, or any of his or her family
members, and the Company, its senior management and its Independent
Registered Public Accounting Firm, the Board of Directors has
determined that all of the Company’s directors are
independent, as of December 31, 2016 within the meaning of the
applicable SEC rules and the NASDAQ listing standards, except Mr.
Hansen, the Chairman of the Board of Directors and Chief Executive
Officer and President of the Company, Dr. Livingston, Chief Science
Officer of the Company; and Dr. Ravetch.
Family Relationships
None
of our directors are related by blood, marriage, or adoption to any
other director, executive officer, or other key
employees.
Other
Directorships
Other
than as disclosed above, none of the directors of the Company are
also directors of issuers with a class of securities registered
under Section 12 of the Exchange Act (or which otherwise are
required to file periodic reports under the Exchange
Act).
Legal Proceedings
We
are not aware of any of our directors or officers being involved in
any legal proceedings in the past ten years relating to any matters
in bankruptcy, insolvency, criminal proceedings (other than traffic
and other minor offenses) or being subject to any of the items set
forth under Item 401(f) of Regulation S-K.
Board Leadership Structure
The
Board of Directors is currently chaired by the President and Chief
Executive Officer of the Company, Mr. Hansen. The Company believes
that combining the positions of Chief Executive Officer and
Chairman of the Board of Directors helps to ensure that the Board
of Directors and management act with a common purpose. Integrating
the positions of Chief Executive Officer and Chairman can provide a
clear chain of command to execute the Company’s strategic
initiatives. The Company also believes that it is advantageous to
have a Chairman with an extensive history with and knowledge of the
Company, and extensive technical and industry experience.
Notwithstanding the combined role of Chief Executive Officer and
Chairman, key strategic initiatives and decisions involving the
Company are discussed and approved by the entire Board of
Directors. In addition, meetings of the independent directors of
the Company are regularly held, which Mr. Hansen does not attend.
The Company believes that the current leadership structure and
processes maintains an effective oversight of management and
independence of the Board of Directors as a whole without separate
designation of a lead independent director. However, the Board of
Directors will continue to monitor its functioning and will
consider appropriate changes to ensure the effective independent
function of the Board of Directors in its oversight
responsibilities.
Role of the Board in Risk Oversight
One
of the Board of Director’s key functions is informed
oversight of the Company’s risk management process. The Board
of Directors does not have a standing risk management committee,
but rather administers this oversight function directly through the
Board of Directors as a whole, as well as through various Board of
Directors standing committees that address risks inherent in their
respective areas of oversight. In particular, our Board of
Directors is responsible for monitoring and assessing strategic
risk exposure, including a determination of the nature and level of
risk appropriate for the Company. The Audit Committee considers and
discusses with management the Company’s major financial risk
exposures and related monitoring and control of such exposures as
well as compliance with legal and regulatory requirements. The
Nominating & Governance Committee monitors the effectiveness of
our corporate governance guidelines. The Compensation Committee
assesses and monitors whether our compensation policies and
programs have the potential to encourage excessive risk-taking. Any
findings regarding material risk exposure to the Company are
reported to and discussed with the Board of Directors.
Independence of the Board of Directors and its Committees
|
After
review of all relevant transactions or relationships between each
director and nominee for director, or any of his or her family
members, and the Company, its senior management and its Independent
Registered Public Accounting Firm, the Board of Directors has
determined that all of the Company’s directors and the
Company’s nominees for director are independent within the
meaning of the applicable NASDAQ listing standards, except Mr.
Hansen, the Chairman of the Board of Directors, Chief Executive
Officer and President, of the Company; Dr. Livingston, Chief
Science Officer; and Dr. Ravetch.
As
required under the NASDAQ listing standards, the Company’s
independent directors meet in regularly scheduled executive
sessions at which only independent directors are present. The Board
of Directors met 6 times and acted by unanimous written consent 11
times during the fiscal year ended December 31,
2016. Each member of the Board of Directors attended 75%
or more of the aggregate of the meetings of the Board of Directors
held in the last fiscal year during the period for which he was a
director and of the meetings of the committees on which he served
held in the last fiscal year during the period for which he was a
committee member, except Philip Livingston who was unable to attend
certain meetings due to travel and other commitments.
The
Board of Directors has three committees: the Audit Committee, the
Compensation Committee and the Nominating & Governance
Committee. Below is a description of each committee of the Board of
Directors. The Board of Directors has determined that each member
of each committee meets the applicable rules and regulations
regarding “independence” and that each member is free
of any relationship that would interfere with his individual
exercise of independent judgment regarding the
Company.
Audit Committee
The
Audit Committee of the Board of Directors oversees the
Company’s corporate accounting and financial reporting
process. For this purpose, the Audit Committee performs several
functions. The Audit Committee, among other things: evaluates the
performance, and assesses the qualifications, of the Independent
Registered Public Accounting Firm; determines and pre-approves the
engagement of the Independent Registered Public Accounting Firm to
perform all proposed audit, review and attest services; reviews and
pre-approves the retention of the Independent Registered Public
Accounting Firm to perform any proposed, permissible non-audit
services; determines whether to retain or terminate the existing
Independent Registered Public Accounting Firm or to appoint and
engage a new Independent Registered Public Accounting Firm for the
ensuing year; confers with management and the Independent
Registered Public Accounting Firm regarding the effectiveness of
internal controls over financial reporting; establishes procedures,
as required under applicable law, for the receipt, retention and
treatment of complaints received by the Company regarding
accounting, internal accounting controls or auditing matters and
the confidential and anonymous submission by employees of concerns
regarding questionable accounting or auditing matters; reviews the
financial statements to be included in the Company’s Annual
Report on Form 10-K and recommends whether or not such financial
statements should be so included; and discusses with management and
the Independent Registered Public Accounting Firm the results of
the annual audit and review of the Company’s quarterly
financial statements.
The Audit Committee is currently composed of four
outside directors: Mr. Maier, Mr. Cohen, Mr. Hoffman and Mr.
Varvaro, as of December 31, 2016. The Audit Committee met 5
times during the fiscal year ended December 31, 2016.
The Audit Committee Charter was last amended in March 2015 and is
available on the Company’s website,
www.mabvax.com.
The
Board of Directors periodically reviews the NASDAQ listing
standards’ definition of independence for Audit Committee
members and has determined that all members of the Company’s
Audit Committee are independent (as independence is currently
defined in Rule 5605(c)(2)(A) of the NASDAQ listing standards and
Rule 10A-3(b)(1) of the Securities Exchange Act of 1934, as
amended). The Board of Directors has determined that Mr. Maier
qualifies as an “audit committee financial expert,” as
defined in applicable SEC rules. The Board of Directors made a
qualitative assessment of Mr. Maier’s level of knowledge and
experience based on several factors, including his formal education
and his service in executive capacities having financial oversight
responsibilities. These positions include Chief Financial Officer,
Senior Vice President, and member of the boards of directors and
audit committees of, several biotechnology and genomics companies,
pursuant to which he has experience preparing, reviewing and
supervising the preparation of financial reports. In addition, Mr.
Maier holds an M.B.A from Harvard Business School. For further
information on Mr. Maier’s experience, please see his
biography above.
Compensation Committee
The
Compensation Committee of the Board of Directors reviews, modifies
and approves the overall compensation strategy and policies for the
Company. The Compensation Committee, among other things: reviews
and approves corporate performance goals and objectives relevant to
the compensation of the Company’s officers; determines and
approves the compensation and other terms of employment of the
Company’s Chief Executive Officer; determines and approves
the compensation and other terms of employment of the other
officers of the Company; and administers the Company’s stock
option and purchase plans, pension and profit sharing plans and
other similar programs.
As of December 31, 2016, the Compensation
Committee was composed of four outside directors: Mr. Cohen, Mr.
Eisenberg, Mr. Hoffman, and Mr. Varvaro. On May 6, 2016,
Mr. Eisenberg was appointed to the Compensation
Committee. All members of the Compensation Committee are
independent (as independence is currently defined in Rule
5605(a)(2) of the NASDAQ listing standards). The Compensation
Committee met 4 times and acted
3 times by written consent
during the fiscal year ended December 31, 2016. The Compensation
Committee Charter was last amended in March 2015 and is available
on the Company’s website, www.mabvax.com.
Compensation Committee Interlocks and Insider
Participation
No
member of our compensation committee has at any time been an
employee of ours. None of our executive officers serves as a member
of the board of directors or compensation committee of any entity
that has one or more executive officers serving as a member of our
board of directors or compensation committee.
When
appropriate, the Compensation Committee may, in carrying out its
responsibilities, form and delegate authority to subcommittees. The
Chief Executive Officer plays a role in determining the
compensation of our other executive officers by evaluating the
performance of those executive officers. The Chief Executive
Officer’s evaluations are then reviewed by discussing
executive performance with the Compensation Committee. This process
leads to a recommendation for any changes in salary, bonus terms
and equity awards, if any, based on performance, which
recommendations are then reviewed and approved by the Compensation
Committee.
The
Compensation Committee has the authority, at the Company’s
expense, to select, retain, terminate and set the fees and other
terms of the Company’s relationship with any outside advisors
who assist it in carrying out its responsibilities, including
compensation consultants or independent legal counsel.
The
Compensation Committee retains a consulting firm directly, although
in carrying out assignments, the consulting firm also interacts
with Company management when necessary and appropriate to obtain
compensation and performance data for the executives and the
Company. In addition, the consultant may, in its discretion, seek
input and feedback from management regarding its consulting work
product prior to presentation to the Compensation Committee to
confirm alignment with the Company’s business strategy and/or
identify data questions or other similar issues.
Our
Compensation Committee generally does not have a specific target
amount of compensation for individual Named Executive Officers
relative to a peer group of companies, but it considers peer data
for purposes of assessing the competitiveness of the executive
compensation program. An individual Named Executive Officer may
earn more than or less than the market median depending on factors
described below, including the individual’s experience and
background, role, and past and future performance.
With respect to 2016, the compensation program for
our Named Executive Officers, overall was at the
17th
percentile, with a range of less than
one percentile to the 36th
percentile for total direct
compensation compared to a peer group of similar
companies. The Company paid cash bonuses to its Named
Executive Officers in 2017 for 2016 for performance based on the
Company achieving 70% of its performance goals, including
initiating clinical trials for the human antibody, designated
MVT-5873, and the PET imaging agent, designated as MVT-2163,
submitting to the U.S. Food and Drug Administration an
investigational new drug application for a radioimmunotherapy
product, designated as MVT-1075, raising non-dilutive capital to
fund operations for the year, and advancing other pre-clinical
antibody candidates in the pipeline. With respect to
2015, the compensation program for our Named Executive Officers, on
an individual basis and overall was at the 37th
percentile for total direct
compensation compared to a peer group of similar
companies. The Company paid cash bonuses to its Named
Executive Officers in 2016 for 2015 for performance based on the
Company achieving 75% of its performance goals. The
Compensation Committee retained Barney and Barney, a Marsh McLennan
Agency, in both 2016 and 2015 as compensation consultants and
considers their recommendations in evaluating the timing and mix of
the Company’s cash and equity
compensation.
Compensation Philosophy, Objectives and Development
Our
overall compensation philosophy and objective for 2017 is to
maintain a compensation program for our Named Executive Officers
that helps us attract, motivate and retain qualified individuals to
perform at the highest of professional levels and to contribute to
our growth and success, which we believe will result in enhancing
stockholder value. The compensation program for our Named Executive
Officers is designed to provide them with compensation
opportunities that are tied to our overall corporate performance.
Their compensation includes three key elements: (i) base
salary; (ii) performance-based cash incentives; and
(iii) a mix of stock-based compensation. Our Named Executive
Officers are also entitled to health and welfare benefits, and they
may be entitled to receive additional benefits upon termination of
their employment.
The
main principles of our compensation strategy include the
following:
●
|
Compensation
decisions are driven by a pay-for-performance
philosophy;
|
●
|
Compensation
should reflect corporate performance; and
|
●
|
Higher
compensation can be earned through an individual’s and the
company’s extraordinary performance both before incentives
are granted and after they are granted.
|
Compensation Committee Interlocks and Insider
Participation
Each
of Jeffrey Eisenberg, Robert E. Hoffman, Kenneth M. Cohen and
Thomas Varvaro served on our compensation committee in 2016. No
member of our compensation committee has at any time been an
employee of ours. None of our executive officers serves as a member
of the board of directors or compensation committee of any entity
that has one or more executive officers serving as a member of our
board of directors or compensation committee.
Nominating & Governance Committee
The
Nominating & Governance Committee of the Board of Directors is
responsible for, among other things: identifying, reviewing and
evaluating candidates to serve as directors of the Company;
reviewing, evaluating and considering incumbent directors;
recommending to the Board of Directors for selection candidates for
election to the Board of Directors; making recommendations to the
Board of Directors regarding the membership of the committees of
the Board of Directors; and assessing the performance of the Board
of Directors.
The
Nominating & Governance Committee is currently composed of five
outside directors: Messrs. Cohen, Eisenberg, Hoffman, Maier and
Varvaro, as of December 31, 2016. On May 6, 2016, Mr.
Eisenberg was appointed to the Nominating & Governance
Committee. All members of the Nominating &
Governance Committee are independent (as independence is currently
defined in Rule 5605(a)(2) of the NASDAQ listing standards). The
Nominating & Governance Committee met 3 times during the fiscal
year ended December 31, 2016. The Nominating & Governance
Committee Charter was last amended in March 2015 and is available
on the Company’s website, www.mabvax.com.
The
Nominating & Governance Committee has not established any
specific minimum qualifications that must be met for recommendation
for a position on the Board of Directors. Instead, in considering
candidates for director the Nominating & Governance Committee
will generally consider all relevant factors, including among
others the candidate’s applicable education, expertise and
demonstrated excellence in his or her field, the usefulness of the
expertise to the Company, the availability of the candidate to
devote sufficient time and attention to the affairs of the Company,
the candidate’s reputation for personal integrity and ethics
and the candidate’s ability to exercise sound business
judgment. Other relevant factors, including diversity, experience
and skills, will also be considered. Candidates for director are
reviewed in the context of the existing membership of the Board of
Directors (including the qualities and skills of the existing
directors), the operating requirements of the Company and the
long-term interests of its stockholders.
The
Nominating & Governance Committee considers each
director’s executive experience leading biopharmaceutical
companies, his familiarity and experience with the various
operational, scientific and/or financial aspects of managing
companies in our industry, and his involvement in building
collaborative biopharmaceutical development and commercialization
relationships.
With
respect to diversity, the Nominating & Governance Committee
seeks a diverse group of individuals who have executive leadership
experience in life sciences companies, and a complementary mix of
backgrounds and skills necessary to provide meaningful oversight of
the Company’s activities. As a clinical stage drug
development company focused on discovering and developing small
molecule drugs, we seek directors who have experience in the
medical, regulatory and pharmaceutical industries in general, and
also look for individuals who have experience with the operational
issues that we face in our dealings with clinical and pre-clinical
drug development, collaborations with third parties and
commercialization and manufacturing issues. Some of our directors
have strong financial backgrounds and experience in dealing with
public companies, to help us in our evaluation of our operations
and our financial model. We also face unique challenges as we
implement our strategy to develop, manufacture and commercialize
our products by entering into relationships with pharmaceutical
companies. The Nominating & Governance Committee annually
reviews the Board’s composition in light of the
Company’s changing requirements. The Nominating &
Governance Committee uses the Board of Director’s network of
contacts when compiling a list of potential director candidates and
may also engage outside consultants. Pursuant to its charter, the
Nominating & Governance Committee will consider, but not
necessarily recommend to the Board of Directors, potential director
candidates recommended by stockholders. All potential director
candidates are evaluated based on the factors set forth above, and
the Nominating & Governance Committee has established no
special procedure for the consideration of director candidates
recommended by stockholders.
Stockholders
who wish to recommend individuals for consideration by the
Nominating Committee to become nominees for election to the Board
of Directors may do so by delivering a written recommendation to
the Nominating Committee at the following address: 11535 Sorrento
Valley Road, Suite 400, San Diego, California 92121, at least 120
days prior to the anniversary date of the mailing of the
Company’s proxy statement for the last annual meeting of
stockholders. The deadline for recommending directors for
nomination at the 2018 annual meeting of stockholders is March 31,
2018. Submissions must include the full name of the proposed
nominee, a description of the proposed nominee’s business
experience for at least the previous five years, complete
biographical information, a description of the proposed
nominee’s qualifications as a director and a representation
that the nominating stockholder is a beneficial or record owner of
the Common Stock. Any such submission must be accompanied by the
written consent of the proposed nominee to be named as a nominee
and to serve as a director if elected.
Under
the Company’s bylaws, in order for nominations or other
business to be properly brought before an annual meeting directly
by a stockholder, the stockholder must give timely notice to the
Secretary of the corporation and have complied with the
Company’s bylaws, as well as the laws and regulations
applicable to the delivery of proxy statements and form of proxy to
the stockholders. To be timely, such notice must be
delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the
one hundred twentieth (120th) day prior to the first anniversary of
the preceding year’s annual meeting; provided, however, that
in the event that the date of the annual meeting is advanced more
than thirty (30) days prior to or delayed by more than thirty (30)
days after the anniversary of the preceding year’s annual
meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred
twentieth (120th) day prior to such annual meeting and not later
than the close of business on the later of the ninetieth (90th) day
prior to such annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is
first made
Director Nominations
There
have been no material changes to the procedures by which
stockholder may recommend nominees to the Board of Directors since
our last disclosure of these procedures.
Stockholder Communications with the Board of Directors
The
Nominating & Governance Committee of the Board of Directors has
adopted a process by which stockholders may communicate with the
Board of Directors or any of its individual directors. Stockholders
who wish to communicate with the Board of Directors may do so by
sending a written communication addressed as follows: Board
Communication, MabVax Therapeutics Holdings, Inc., 11535 Sorrento
Valley Rd., Suite 400, San Diego, CA 92121. All communications must
state the number and class(es) of shares owned by the stockholder
making the communication. The Company’s Secretary
or other officer will review each communication and forward the
communication to the Board of Directors, to any individual director
to whom the communication is addressed, and/or to any other officer
of the Company considered to be necessary or
appropriate.
Attendance at Annual Meeting
It
is the Company’s current policy to require directors to
attend the Annual Meeting absent extraordinary circumstances. The
2016 annual meeting of stockholders held on June 29, 2016 was
attended by all the members of the Board of
Directors.
Code of Conduct
We
have adopted the MabVax Therapeutic Holdings, Inc. Code of Conduct,
a code of ethics with which every person who works for us is
expected to comply, including without limitation our principal
executive officer, principal financial officer, principal
accounting officer or controller or persons performing similar
functions.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires
our directors and executive officers, and persons who own more than
ten percent of a registered class of our equity securities, to file
with the SEC initial reports of ownership and reports of changes in
ownership of our common stock and our other equity securities.
Officers, directors and greater than ten percent stockholders are
required by SEC regulations to furnish us with copies of all
Section 16(a) forms they file.
Based solely on a review of the copies of such
forms furnished to us during 2016, SEC filings and certain written
representations that no other reports were required during the
fiscal year ended December 31, 2016, our officers, directors and
greater than ten percent stockholders complied with all applicable
Section 16(a) filing requirement, except for Kenneth M.
Cohen, Jeffrey F. Eisenberg, Robert E. Hoffman, Paul V. Maier, Jeffrey V.
Ravetch, and Thomas C.
Varvaro who were late on a
Section 16(a) filing that took place on July 28,
2016.
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF
DIRECTORS
The
Audit Committee, on behalf of the Board, serves as an independent
and objective party to monitor and provide general oversight of the
integrity of our financial statements, our independent registered
public accounting firm’s qualifications and independence, the
performance of our independent registered public accounting firm,
our compliance with legal and regulatory requirements and our
standards of business conduct. The Audit Committee performs these
oversight responsibilities in accordance with its Audit Committee
Charter.
Our
management is responsible for preparing our financial statements
and our financial reporting process. Our independent registered
public accounting firm is responsible for expressing an opinion on
the conformity of our audited financial statements to generally
accepted accounting principles in the United States of America. The
Audit Committee met with our independent registered public
accounting firm, with and without management present, to discuss
the results of their examinations and the overall quality of our
financial reporting.
In
this context, the Audit Committee has reviewed and discussed our
audited financial statements for the year ended December 31, 2016
with management and with our independent registered public
accounting firm. The Audit Committee has discussed with our
independent registered public accounting firm the matters required
to be discussed by Statement on Auditing Standards No. 61
(Communications with Audit Committees), which includes, among other
items, matters related to the conduct of the audit of our annual
financial statements.
The
Audit Committee has received the written disclosures and the letter
from the independent registered public accounting firm required by
applicable requirements of the Public Company Accounting Oversight
Board regarding such independent registered public accounting
firm's communications with the Audit Committee concerning
independence, and has discussed with the independent registered
public accounting firm its independence from us and our
management.
Based
on its review of the audited financial statements and the various
discussions noted above, the Audit Committee recommended to the
Board of Directors that our audited financial statements be
included in our Annual Report on Form 10-K for the year ended
December 31, 2016.
Each
of the members of the Audit Committee is independent as defined
under the standards of the Commission and NASDAQ listing standards,
and each of Messrs. Maier, Hoffman, and Varvaro qualifies as an
Audit Committee financial expert in accordance with the
requirements of the NASDAQ listing standards and of such rules of
the Commission.
Respectfully
submitted by the Audit Committee,
Paul
V. Maier, Chairman
Kenneth
M. Cohen
Robert
E. Hoffman
Thomas
C. Varvaro
The
foregoing Audit Committee Report does not constitute soliciting
material and shall not be deemed filed or incorporated by reference
into any other filing of our company under the Securities Act of
1933, as amended (the “Securities Act”), or the
Exchange Act, except to the extent we specifically incorporate this
Audit Committee Report by reference therein.
EXECUTIVE COMPENSATION
2016 Summary Compensation Table
The
following table sets forth, for the fiscal years 2016 and 2015,
compensation awarded or paid to, or earned by, our Chief Executive
Officers, our Chief Financial Officer and our other two executive
officers at December 31, 2016 (the “Named Executive
Officers” or “NEOs”).
Name and Principal Position
|
|
Year
|
|
|
Restricted Stock Unit
Awards
($)(3)
|
|
All Other Compensation
($)
|
|
J.
David Hansen
|
|
2016
|
404,746
|
141,400
|
—
|
393,702
|
35,717
|
975,565
|
President,
Chief Executive Officer and Chairman
|
|
2015
|
375,601
|
149,625
|
2,077,475
|
1,493,194
|
87,770
|
4,183,665
|
Gregory
P. Hanson
|
|
2016
|
299,342
|
62,790
|
—
|
99,743
|
15,055
|
476,930
|
Chief
Financial Officer
|
|
2015
|
271,819
|
77,175
|
1,075,480
|
773,006
|
19,742
|
2,217,222
|
Wolfgang
W. Scholz, Ph.D.
|
|
|
|
|
|
|
|
|
Vice President, Antibody Discovery
(1)
|
|
2015
|
225,443
|
43,125
|
700,925
|
503,793
|
13,950
|
1,487,236
|
Paul
W. Maffuid
|
|
2016
|
294,519
|
61,950
|
—
|
91,213
|
34,121
|
481,803
|
Vice
President, Pharmaceutical Development and Operations
|
|
2015
|
268,154
|
53,438
|
768,200
|
552,147
|
33,476
|
1,675,415
|
Paul
F. Resnick
|
|
2016
|
212,000
|
44,094
|
—
|
323,532
|
20,680
|
600,306
|
Vice President, Chief Business Officer
(2)
|
|
2015
|
—
|
—
|
—
|
—
|
—
|
—
|
(1)
|
Effective as of March 8, 2016, Dr. Scholz is no longer considered a
NEO.
|
(2)
|
Mr. Resnick was appointed as Vice President and Chief Business
Officer of the Company in March 2016.
|
(3)
|
The amounts in this column represent the aggregate full grant date
fair value of restricted stock units (RSUs) granted. Such RSU
awards were granted during 2015 with vesting dates after
2015.
|
(4)
|
The amounts in this column represent the aggregate full grant date
fair values of stock options granted, computed in accordance with
Accounting Standards Codification 718, or ASC 718,
“Compensation—Stock Compensation” using the
Black-Scholes option valuation model.
|
Outstanding Equity Awards at 2016 Fiscal Year-End
The
following table summarizes the number of outstanding equity awards
held by each of our Named Executive Officers at December 31, 2016
and after giving effect to a 1-for-7.4 reverse stock split on
August 16, 2016. Each option grant is shown separately for each
Named Executive Officer. The vesting schedule for each option grant
is shown following this table.
Name and Principal Position
|
|
Number
of Securities Underlying Unexercised Options Exercisable
(#)
|
Number
of Securities Underlying Unexercised Options Un-exercisable
(#)
|
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised
Unearned Options (#)
|
Option
Exercise Price per Share ($)
|
|
Number of Shares or Units of Stock That Have Not Vested
(#)
|
Market
Value of Shares or Units of Stock That Have Not Vested
($)
|
|
2/1/2010
|
1,690
|
-0-
|
-0-
|
5.33
|
2/1/2020
|
-0-
|
-0-
|
President, Chief Executive Officer
|
2/28/2013
|
3,239
|
141
|
-0-
|
10.66
|
2/28/2023
|
-0-
|
-0-
|
|
4/2/2015
|
40,687
|
81,374
|
-0-
|
17.02
|
4/2/2025
|
81,374
|
275,044
|
|
2/16/2016
|
-0-
|
67,569
|
-0-
|
3.63
|
2/16/2026
|
-0-
|
-0-
|
|
8/29/2016
|
-0-
|
63,400
|
-0-
|
5.00
|
8/29/2026
|
-0-
|
-0-
|
|
3/13/2014
|
1,807
|
822
|
-0-
|
59.94
|
3/13/2024
|
-0-
|
-0-
|
|
4/2/2015
|
21,063
|
42,127
|
-0-
|
17.02
|
4/2/2025
|
42,127
|
142,389
|
|
2/16/2016
|
-0-
|
2,703
|
-0-
|
3.63
|
2/16/2026
|
-0-
|
-0-
|
|
8/29/2016
|
-0-
|
26,400
|
-0-
|
5.00
|
8/29/2026
|
-0-
|
-0-
|
Wolfgang W. Scholz, Ph.D. (1)
|
2/1/2010
|
939
|
-0-
|
-0-
|
5.33
|
2/1/2020
|
-0-
|
-0-
|
|
2/28/2013
|
2,160
|
94
|
-0-
|
10.66
|
2/28/2023
|
-0-
|
-0-
|
|
4/2/2015
|
13,728
|
27,455
|
-0-
|
17.02
|
4/2/2025
|
27,455
|
92,798
|
|
2/16/2016
|
-0-
|
8,109
|
-0-
|
3.63
|
2/16/2026
|
-0-
|
-0-
|
|
8/29/2016
|
-0-
|
18,800
|
-0-
|
5.00
|
8/29/2026
|
-0-
|
-0-
|
|
9/8/2014
|
1,056
|
822
|
-0-
|
62.75
|
9/8/2024
|
-0-
|
-0-
|
Executive Vice President,
|
4/2/2015
|
15,045
|
30,091
|
-0-
|
17.02
|
4/2/2025
|
30,091
|
101,708
|
Research and
Development
|
2/16/2016
|
-0-
|
8,109
|
-0-
|
3.63
|
2/16/2026
|
-0-
|
-0-
|
|
8/29/2016
|
-0-
|
20,100
|
-0-
|
5.00
|
8/29/2026
|
-0-
|
-0-
|
|
3/16/2016
|
-0-
|
45,406
|
-0-
|
5.48
|
3/16/2026
|
-0-
|
-0-
|
|
3/16/2016
|
-0-
|
30,271
|
-0-
|
12.95
|
3/16/2026
|
-0-
|
-0-
|
|
8/29/2016
|
-0-
|
15,200
|
-0-
|
5.00
|
8/29/2026
|
-0-
|
-0-
|
(1)
|
Effective as of March 8, 2016, Mr. Scholz is no longer considered a
NEO.
|
|
(2)
|
Mr. Resnick was appointed as Vice President and Chief Business
Officer of the Company in March 2016.
|
Retirement Plans
The
Company does not maintain any defined benefit or defined
contribution pension or retirement plans, other than a 401(k) Plan
that is offered through our payroll provider. The Company made no
matching contributions to the 401(k) Plan in 2015 or
2016.
Hansen Employment Agreement
The
employment agreement with Mr. Hansen (the "Hansen Employment
Agreement"), which became effective July 1, 2014, has an initial
term of 3 years, with an option to renew or extend the terms if
notice is provided by either Mr. Hansen or the Company at least 60
days prior to the end of the term. Under the terms of his
agreement, Mr. Hansen received an initial base salary of
$315,660. Mr. Hansen’s base salary may be
increased at the discretion of the Board of Directors or the
Compensation Committee. Mr. Hansen is also entitled to an annual
cash bonus, based on certain performance-based objectives
established by the Compensation Committee of the
Board.
The
Hansen Employment Agreement may be terminated upon death,
disability, with or without Cause (as defined by the Hansen
Employment Agreement) by the Company, with Good Reason (as defined
in the Hansen Employment Agreement), and upon a Change in Control
(as defined in the Employment Agreement), by Mr. Hansen or at
either party’s election not to renew the employment
agreement. In the event the Hansen Employment Agreement is
terminated as a result of Mr. Hansen’s death, Mr.
Hansen’s authorized representative shall be entitled to
receive all Accrued Obligations (as defined in the employment
agreement), full acceleration of vesting of all issued and
outstanding stock options, benefits for up to one year, any unpaid
annual bonus amounts and a pro rata bonus payment. In the event the
Hansen Employment Agreement is terminated by the Company for
Disability or without Cause, by Mr. Hansen for Good Reason,
non-renewal by the Company or in connection with a Change in
Control, Mr. Hansen would be entitled to receive all Accrued
Obligations, full acceleration of vesting of all issued and
outstanding stock options, unpaid bonus amounts and a pro rata
bonus payment, benefits for up to one year or until Mr. Hansen
obtains coverage through subsequent employment (whichever is
earlier) and severance payments equal to Mr. Hansen’s annual
base salary payable in 12 equal monthly installments. In the event
the employment agreement is terminated by the Company for Cause,
without Good Reason by Mr. Hansen, or the parties elect not to
renew the agreement, Mr. Hansen will be entitled to payment of any
base salary earned but unpaid through the date of termination and
any other payment or benefit to which he is entitled under the
applicable terms of any applicable company arrangement during the
30-day period following the termination of the Hansen Employment
Agreement.
Hanson Employment Agreement
The
employment agreement with Mr. Hanson (the "Hanson Employment
Agreement"), which became effective July 1, 2014, has an initial
term of 3 years, with an option to renew or extend the terms if
notice is provided by either Mr. Hanson or us at least 60 days
prior to the end of the term. Under the terms of his agreement, Mr.
Hanson was entitled to receive an initial annual base salary of
$215,000, which may be increased at the discretion of the Board of
Directors or the Compensation Committee. Mr. Hanson is also
entitled to an annual cash bonus, based on certain
performance-based objectives established by the Company. In
addition, prior to the merger MabVax Therapeutics had granted Mr.
Hanson options which are currently exercisable to purchase up to
2,629 shares of the Company common stock at an exercise price of
$59.94 under the terms of the Company 2014 Employee, Director and
Consultant Equity Incentive Plan as assumed by the Company pursuant
to the Merger Agreement.
The
Hanson Employment Agreement may be terminated upon death,
disability, with or without Cause (as defined by the Hanson
Employment Agreement) by the Company, with Good Reason (as defined
in the Hanson Employment Agreement), and upon a Change in Control
(as defined in the Employment Agreement), by Mr. Hanson or at
either party’s election not to renew the employment
agreement. In the event the Hanson Employment Agreement is
terminated as a result of Mr. Hanson’s death, Mr.
Hanson’s authorized representative shall be entitled to
receive all Accrued Obligations (as defined in the employment
agreement), full acceleration of vesting of all issued and
outstanding stock options, benefits for up to 1 year, any unpaid
annual bonus amounts and a pro rata bonus payment. In the event the
Hanson Employment Agreement is terminated by the Company for
Disability or without Cause, by Mr. Hanson for Good Reason,
non-renewal by the Company or in connection with a Change in
Control, Mr. Hanson would be entitled to receive all Accrued
Obligations, full acceleration of vesting of all issued and
outstanding stock options, unpaid bonus amounts and a pro rata
bonus payment, benefits for up to one year or until Mr. Hanson
obtains coverage through subsequent employment (whichever is
earlier) and severance payments equal to Mr. Hanson’s annual
base salary payable in 12 equal monthly installments. In the event
the employment agreement is terminated by the Company for Cause,
without Good Reason by Mr. Hanson, or the parties elect not to
renew the agreement, Mr. Hanson will be entitled to payment of any
base salary earned but unpaid through the date of termination and
any other payment or benefit to which he is entitled under the
applicable terms of any applicable company arrangement during the
30-day period following the termination of the Hanson Employment
Agreement.
Maffuid Employment Agreement
On
July 21, 2014, we entered into an Employment Agreement with Paul
Maffuid, Ph.D., or the Maffuid Employment Agreement. The Maffuid
Employment Agreement has an initial term of 3 years, with an option
to renew or extend the terms if notice is provided by either Dr.
Maffuid or the Company at least 60 days prior to the end of the
term. Under the terms of his agreement, Dr. Maffuid was entitled to
receive an initial base salary of $225,000 which may be increased
at the discretion of the Board of Directors or the Compensation
Committee. Dr. Maffuid is also entitled to an annual bonus, based
on certain performance-based objectives established by the
Company’s Chief Executive Officer. In addition, the Company
previously granted Dr. Maffuid options to purchase up to 1,878
shares of the Company’s common stock at an exercise price of
$62.75 per share under the terms of the Amended and Restated 2014
Employee, Director and Consultant Equity Incentive Plan which was
assumed by the Company pursuant to the Merger
Agreement.
The
Maffuid Employment Agreement may be terminated upon death,
disability, with or without Cause (as defined by the Maffuid
Employment Agreement) by the Company, with Good Reason (as defined
in the Maffuid Employment Agreement and upon a Change in Control
(as defined in the Employment Agreement), by Dr. Maffuid or at
either party’s election not to renew the employment
agreement. In the event the Maffuid Employment Agreement is
terminated as a result of Dr. Maffuid’s death, Dr.
Maffuid’s authorized representative shall be entitled to
receive all Accrued Obligations (as defined in the employment
agreement), full acceleration of vesting of all issued and
outstanding stock options, benefits for up to 1 year, any unpaid
annual bonus amounts and a pro rata bonus payment. In the event the
Maffuid Employment Agreement is terminated by the Company for
Disability or without Cause, by Dr. Maffuid for Good Reason,
non-renewal by the Company or in connection with a Change in
Control, Dr. Maffuid would be entitled to receive all Accrued
Obligations, full acceleration of vesting of all issued and
outstanding stock options, unpaid bonus amounts and a pro rata
bonus payment, benefits for up to one year or until Dr. Maffuid
obtains coverage through subsequent employment (whichever is
earlier) and severance payments equal to Dr. Maffuid’s annual
base salary payable in 12 equal monthly installments. In the event
the employment agreement is terminated by the Company for Cause,
without Good Reason by Dr. Maffuid, or the parties elect not to
renew the agreement, Dr. Maffuid will be entitled to payment of any
base salary earned but unpaid through the date of termination and
any other payment or benefit to which he is entitled under the
applicable terms of any applicable company arrangement during the
30-day period following the termination of the Maffuid Employment
Agreement.
Resnick Employment Agreement
On
March 16, 2016, we entered into an Employment Agreement with Paul
F. Resnick, M.D., or the Resnick Employment
Agreement. The Resnick Employment Agreement provides
that Dr. Resnick’s employment is “at-will” and is
not for any specified term or length of time. Under the terms of
his agreement, Dr. Resnick was entitled to receive an initial base
salary of $265,000 which may be increased at the discretion of the
Company. Dr. Resnick is also entitled to an annual bonus of up to
30% of his base salary. In connection with hiring Dr. Resnick, the
Company granted Dr. Resnick options to purchase up to 30,271 shares
of the Company’s common stock at an exercise price of
$12.95 per share and 45,406 shares of the Company’s
common stock at an exercise price of $5.48 per share under the
terms of the Amended and Restated 2014 Employee, Director and
Consultant Equity Incentive Plan.
The
Resnick Employment Agreement may be terminated upon death,
disability, with or without Cause (as defined by the Resnick
Employment Agreement) by the Company, with Good Reason (as defined
in the Resnick Employment Agreement), and upon a Change in Control
(as defined in the Employment Agreement) or at either party’s
election to terminate upon 30 days’ prior written notice. In
the event the Resnick Employment Agreement is terminated as a
result of Dr. Resnick’s death, Dr. Resnick’s authorized
representative shall be entitled to receive all Accrued Obligations
(as defined in the employment agreement), full acceleration of
vesting of all issued and outstanding stock options, benefits for
up to 1 year, any unpaid annual bonus amounts and a pro rata bonus
payment. In the event the Resnick Employment Agreement is
terminated by the Company for Disability or without Cause, by Dr.
Resnick for Good Reason, or in connection with a Change in Control,
Dr. Resnick would be entitled to receive all Accrued Obligations,
full acceleration of vesting of all issued and outstanding stock
options, unpaid bonus amounts and a pro rata bonus payment,
benefits for up to one year or until Dr. Resnick obtains coverage
through subsequent employment (whichever is earlier) and severance
payments equal to Dr. Resnick’s annual base salary payable in
12 equal monthly installments.
2015 Management Bonus Plan
On
April 2, 2015, our Compensation Committee approved the 2015
Management Bonus Plan outlining maximum target bonuses of the base
salaries of certain of our executive officers. Under the
terms of the 2015 Management Bonus Plan, the Company’s Chief
Executive Officer shall receive a maximum target bonus of up to 50%
of his annual base salary, the Chief Financial Officer shall
receive a maximum target bonus of up to 35% of his annual base
salary and the Company’s Vice President shall receive a
maximum target bonus of up to 25% of his annual base salary.
On February 16, 2016, our Compensation Committee approved a 2016
Management Bonus Plan outlining maximum target bonuses of the base
salaries of certain of our executive officers. Under the terms of
the 2016 Management Plan, the Company's Chief Executive Officer
shall receive a maximum target bonus of up to 50% of his annual
base salary, and the Chief Financial Officer and each of the
Company's Vice Presidents of Discovery and Development shall
receive a maximum target bonus of up to 30% of his annual base
salary.
DIRECTOR
COMPENSATION
Non-employee
directors do not receive any separate compensation for their board
of director activities, other than Dr. Ravetch. In April
2015, Dr. Ravetch received 17,770 shares of fully vested
restricted common stock valued at $302,450 in exchange for future
services of at least one year. On April 1, 2016, we
entered into a two-year consulting agreement with Dr. Ravetch,
whereby Dr. Ravetch will provide key technology, predevelopment,
corporate development, and other consulting services in exchange
for $100,000 in cash compensation each year of the
agreement. During the year ended December 31, 2016,
non-named-executive-officer directors received the compensation
described below for their services as director.
2016 Director Compensation Table
Name of Director
|
Fees Earned or Paid in Cash ($)
|
|
|
|
Philip
O. Livingston, M.D. (2)
|
—
|
—
|
$—
|
$—
|
Robert
E. Hoffman (4)(7)
|
$31,500
|
$27,778
|
$—
|
$59,278
|
Jeffrey
Ravetch, M.D. (4)(5)
|
$26,000
|
$74,412
|
$—
|
$100,412
|
Paul
V. Maier (4)(7)
|
$38,500
|
$27,778
|
$—
|
$66,278
|
Kenneth
M. Cohen (4)(7)
|
$34,500
|
$27,778
|
$—
|
$62,278
|
Tom
Varvaro (4)(8)
|
$26,000
|
$26,812
|
$—
|
$52,812
|
Jeffrey
F. Eisenberg (6)
|
$16,703
|
$38,939
|
$—
|
$55,642
|
(1)
|
The amounts in this column represent the aggregate full grant date
fair values of stock options granted to each of the non-employee
directors computed in accordance with Accounting Standards
Codification 718, or ASC 718, “Compensation—Stock
Compensation,” excluding the effect of estimated forfeitures.
The amounts reported for these options may not represent the actual
economic values that the Company’s non-employee directors
will realize from these options, as the actual value realized will
depend on the Company’s performance, stock price and their
continued services.
|
(2)
|
Dr. Livingston does not receive any cash compensation as a
director. Dr. Livingston’s employee compensation in
2016 consisted of $60,000 in cash compensation. In addition,
Dr. Livingston received 700 options on August 29, 2016. Dr.
Livingston had 3,705 options outstanding at December 31,
2016.
|
(3)
|
Represents the aggregate grant date fair value of restricted stock
and restricted stock units granted in accordance with Accounting
Standards Codification 718, or ASC 718,
“Compensation—Stock Compensation.”
|
(4)
|
Non-employee directors serving on the board during 2016 were each
granted 4,730 options on June 29, 2016 at an exercise price of
$4.07 per share with a grant date fair value of $13,437 vesting
over one year. In addition, Mr. Cohen, Mr. Hoffman, Mr. Maier and
Dr. Ravetch each were granted 4,100 options, and Mr. Varvaro was
granted 3,800 options on August 29, 2016 at an exercise price of
$5.00 with grant date fair values of $14,431 and $13,375,
respectively, vesting over three years.
|
(5)
|
In addition to the options granted to all non-employee directors,
on November 3, 2016, Dr. Ravetch was granted 17,500 options with an
exercise price of $3.75 per share with a grant date fair value of
$46,544 vesting over three years. Dr. Ravetch has 37,192 options
and 3,086 restricted stock units outstanding at December 31,
2016.
|
(6)
|
Mr. Eisenberg was appointed to the board of directors in February
of 2016. In addition to the options granted to all non-employee
directors, he was granted 6,757 options on February 19, 2016 at an
exercise price of $3.70 per share with a grant date fair value of
$17,407 vesting over three years, 4,730 options on June 29, 2016 at
an exercise price of $4.07 per share with a grant date fair value
of $13,347 vesting over one year, and 2,300 options on August 29,
2016 at an exercise price of $5.00 with a grant date fair value of
$8,095 vesting over three years. Mr. Eisenberg had 13,787 awards
outstanding at December 31, 2016.
|
(7)
|
Mr. Hoffman, Mr. Maier and Mr. Cohen each had a total of
19,692 options and 3,086 restricted stock units outstanding at
December 31, 2016.
|
(8)
|
Mr. Varvaro had a total of 17,889 options and 3,086 restricted
stock units outstanding at December 31, 2016.
|
Amended and Restated Director Compensation
Policy
In
2015, under our Non-Employee Director Compensation Policy, or the
Policy, members of the Board of Directors who are not employees of,
or compensated consultants to the Company or any of its affiliates
(an “Outside Director”), were entitled to receive
certain stock option grants.
Under
the Policy, each newly appointed or elected Outside Director was
granted a non-qualified stock option to purchase up to 1,502 shares
of our common stock on the date of his or her initial appointment
or election to our Board of Directors. These initial option grants
were fully vested on the date of the grant, and had an exercise
price equal to the fair market value of shares of our common stock
as determined in the Stock Plan on the date of grant.
Under
the Policy in 2015, our Outside Directors were entitled to receive
annual cash payments of $12,000 payable on a monthly pro-rata basis
and cash payments of $1,250 per meeting attended in person and $750
per meeting attended telephonically. On April 3, 2015, the Board
ratified the Compensation Committee’s amendment to the Policy
and implementation of the below compensation for all Outside
Directors:
●
Each Non-employee Board member shall receive a cash retainer of
$24,000 per year. Chairmen of each committee shall receive an
additional cash retainer as follows: (i) $12,000 for the Chairman
of the Audit Committee; (ii) $8,000 for the Chairman of the
Compensation Committee; and (iii) $5,000 for the Chairman of the
Nominating Committee. All such retainers will be paid on a
quarterly basis;
●
Each current Board member received a one-time grant, and each new
member going forward shall receive an initial one time grant of:
9,257 shares of common stock, half of which shall be comprised of
restricted stock units and half of which shall be comprised of
stock option with three-year annual vesting; and
●
Each Non-employee Board member will also receive an automatic
annual grant of 4,780 stock options, with one year
vesting.
On April 3, 2015, the Board approved
the following Non-Employee Director Policy with respect to an
incumbent non-employee member of the Board that is replaced before
their term expires:
●
A one-time issuance of 2,703 restricted shares of common
stock;
●
The issuance of all vested options and restricted stock grants held
on such date; and
●
The payment of all earned but unpaid cash compensation for their
services on the Board and its committees, as of such
date.
On
February 16, 2016, the Compensation Committee of the Board of
Directors of the Company approved the following
amendments to Company's policy for compensating non-employee
members of the Board:
●
The initial equity grant upon first appointment (or election) of
future non-employee directors to the Board shall be a 10-year
option to purchase 6,757 shares of the Company's common stock,
under the Company's Second Amended and Restated 2014 Equity
Incentive Plan with 3-year annual vesting and a strike price equal
the closing price of the Company's common stock on the effective
date of the appointment (or election);
●
The annual cash retainer for each non-employee director, paid
quarterly, is increased by $1,000 per calendar quarter to a total
of $7,000 per quarter, effective April 1, 2016; and
●
The additional annual cash retainer for the chairperson of each of
the Audit, Compensation, and Nominating and Governance Committees,
paid quarterly, is increased by $1,000 per calendar year, such that
each chairperson retainer shall be as follows, effective April 1,
2016: Audit Committee: $13,000; Compensation Committee: $9,000;
Nominating and Governance Committee: $6,000
On
August 25, 2016, the Compensation Committee of the Board of
Directors of the Company approved the following amendments to
Company's policy for compensating non-employee members of the
Board:
●
The initial equity
grant upon first appointment (or election) of future non-employee
directors to the Board shall be a 10-year option to purchase 25,000
shares of the Company's common stock, under the Company's Second
Amended and Restated 2014 Equity Incentive Plan with 3-year annual
vesting and a strike price equal the closing price of the Company's
common stock on the effective date of the appointment (or
election);
●
The additional
automatic annual option grant to each non-employee director on the
date of the Company's annual meeting shall be a 10-year option to
purchase 17,500 shares of the Company's common stock, under the
Company's Second Amended and Restated 2014 Equity Incentive Plan
with 1-year vesting and a strike price equal the closing price of
the Company's common stock on the date of the annual
meeting.
On
February 6, 2017, the Compensation Committee of the Board of
Directors of the Company approved the following amendments to
Company's policy for compensating non-employee members of the
Board:
●
The initial equity
grant upon first appointment (or election) of future non-employee
directors to the Board shall be a 10-year option to purchase 30,000
shares of the Company's Common Stock, under the Company's Second
Amended and Restated 2014 Equity Incentive Plan with 3-year annual
vesting and a strike price equal the closing price of the Company's
common stock on the effective date of the appointment (or
election);
●
The additional
automatic annual option grant to each non-employee director on the
date of the Company's annual meeting shall be a 10-year option to
purchase 20,000 shares of the Company's Common Stock, under the
Company's Second Amended and Restated 2014 Equity Incentive Plan
with 1-year vesting and a strike price equal the closing price of
the Company's common stock on the date of the annual
meeting.
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 6,434,348 shares outstanding as of April 18,
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
|
|
|
Dr. Phillip Frost, M.D. (12)
|
422,334
|
6.56%
|
Barry Honig
(13)
|
391,648
|
6.09%
|
Michael Brauser (14)
|
342,614
|
5.32%
|
Directors and Executive Officers
|
|
|
Philip O. Livingston, M.D. (1)
|
196,286
|
3.05%
|
Jeffrey Ravetch, M.D., Ph.D. (2)
|
12,404
|
*
|
J. David Hansen (3)
|
176,678
|
2.70%
|
Robert E. Hoffman (4)
|
13,756
|
*
|
Kenneth M. Cohen (5)
|
23,113
|
*
|
Paul V. Maier (6)
|
13,080
|
*
|
Gregory P. Hanson (7)
|
80,608
|
1.24%
|
Paul W. Maffuid, Ph.D. (8)
|
59,469
|
*%
|
Thomas C. Varvaro (9)
|
10,902
|
*
|
Jeffrey F. Eisenberg (10)
|
2,253
|
*
|
Paul Resnick (11)
|
25,226
|
*
|
All executive officers and directors as a group (11
persons)
|
613,775
|
9.13%
|
*
|
Less than 1%.
|
(1)
|
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,
and (iv) 3,005 shares subject to options exercisable within 60 days
of April 18, 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.
|
(2)
|
Includes 9,318 shares subject to options exercisable within 60
days of April 18, 2017.
|
(3)
|
Includes 108,967 shares subject to options exercisable within 60
days of April 18, 2017, and 6,238 common stock warrants purchased
in the August 2016 financing transaction.
|
|
|
(4)
|
Includes 9,318 shares subject to options exercisable within 60 days
of April 18, 2017.
|
|
|
(5)
|
Includes 9,318 shares subject to options exercisable within 60 days
of April 18, 2017, and 6,238 common stock warrants purchased in the
August 2016 financing transaction.
|
|
|
(6)
|
Includes 9,318 shares subject to options exercisable within 60 days
of April 18, 2017.
|
(7)
|
Includes 45,054 shares subject to options exercisable within 60
days of April 18, 2017, and 6,238 common stock warrants purchased
in the August 2016 financing transaction.
|
(8)
|
Includes 34,007 shares subject to options exercisable within 60
days of April 18, 2017, and 4,158 common stock warrants purchased
by the executive in the August 2016 financing
transaction.
|
(9)
|
Includes 7,816 shares subject to options exercisable within 60 days
of April 18, 2017.
|
(10)
|
Includes 2,253 shares subject to options exercisable within 60 days
of April 18, 2017.
|
(11)
|
Includes 25,226 shares subject to options exercisable within 60
days of April 18, 2017.
|
(12)
|
Based solely upon a Schedule 13G/A filed with the SEC on February
3, 2017. Represents 422,334 shares of common stock held by
Frost Gamma Investments Trust (“FGIT”). Excludes (i)
596,000 shares of common stock underlying Series D Convertible
Preferred Stock held by FGIT which contains a 4.99% beneficial
ownership blocker and (ii) 505,890 shares of common stock
underlying warrants held by FGIT which contains a 4.99% beneficial
ownership blocker.
Dr. Frost is the trustee of FGIT. Frost Gamma L.P. is the sole and
exclusive beneficiary of FGIT. Dr. Frost is one of two limited
partners of Frost Gamma L.P. The general partner of Frost Gamma
L.P. is Frost Gamma, Inc., and the sole shareholder of Frost Gamma,
Inc. is Frost-Nevada Corporation. Dr. Frost is the sole shareholder
of Frost-Nevada Corporation. The reporting person disclaims
beneficial ownership of these securities, except to the extent of
any pecuniary interest therein and this report shall not be deemed
an admission that the reporting person is the beneficial owner of
these securities for purposes of Section 16 or for any other
purpose.
|
(13)
|
Based solely upon a Schedule 13G filed with the SEC on February 17,
2017. Represents (i) 61,537 shares of common stock held by
GRQ Consultants, Inc. Roth 401K FBO Barry Honig (“Roth
401K”), for which Barry Honig is trustee and over which
securities he holds voting and dispositive power, (ii) 36,000
shares of common stock held by GRQ Consultants, Inc. 401K
(“401K”), for which Barry Honig is trustee and over
which securities he holds voting and dispositive power and (iii)
47,074 shares of common stock held by Barry & Renee Honig
Charitable Foundation (the “Foundation”), for which
Barry Honig is trustee and over which securities he holds voting
and dispositive power. Does not include (i) 103,950 shares of
common stock issuable upon conversion of the Company’s Series
F Convertible Preferred Stock held by Roth 401K or (ii) 145,530
shares of common stock issuable upon conversion of the
Company’s Series F Convertible Preferred Stock held by GRQ
Consultants, Inc. Roth 401K FBO Renee Honig (“Renee
401K”), for which Barry Honig’s spouse, Renee Honig, is
trustee and over which securities she holds voting and dispositive
power. The Series F Convertible Preferred Stock contains a 4.99%
beneficial ownership blocker. Additionally, does not include (i)
207,900 shares of common stock underlying warrants held by Roth
401K, (ii) 70,166 shares of common stock underlying warrants held
by 401K, (iii) 415,800 shares of common stock underlying warrants
held by Renee 401K or (iv) 62,370 shares of common stock underlying
warrants held by the Foundation. All of these warrants contain a
4.99% beneficial ownership blocker.
|
(14)
|
Based solely upon a Schedule 13G filed with the SEC on February 2,
2017. Includes 5,000 shares of common stock held by Michael
& Betsy Brauser Tenants by Entirety (“MBTBE”) and
248,582 shares of common stock held by Grander Holdings, Inc. 401K
of which the reporting person is a trustee (“Grander
401K”). Excludes 513,514 shares of common stock underlying
Series D Convertible Preferred Stock held by Brauser which contains
a 4.99% beneficial ownership blocker; (ii) 207,900 shares of common
stock underlying Series F Convertible Preferred Stock held by
Grander 401K which contains a 4.99% beneficial ownership blocker
and (iii) 415,800 shares of common stock underlying warrants held
by Grander 401K which contain a 4.99% beneficial ownership
blocker.
|
Securities Authorized for Issuance under Equity Compensation
Plans
The
following table provides certain information with respect to all
the Company’s equity compensation plans in effect as of
December 31, 2016.
|
|
|
|
Plan Category
|
Number of
Securities
to be Issued
Upon Exercise
of Outstanding
Options,
Warrants and Rights
|
Weighted-average
Exercise
Price of
Outstanding
Options,
Warrants and Rights
|
Number of
Securities
Remaining
Available
for Future
Issuance Under
Equity
Compensation Plans
(Excluding Securities
Reflected in Column (a)
|
Equity
compensation plans approved by security holders (1)
|
851,376
|
$10.94
|
66,693
|
Equity
compensation plans not approved by security holders
|
—
|
N/A
|
—
|
Total
|
851,376
|
|
66,693
|
(1)
|
The information presented in this table is as of December 31, 2016
and after giving effect to a 1-for-7.4 reverse stock split on
August 16, 2016.
|
CERTAIN RELATIONSHIPS
AND RELATED PARTY TRANSACTIONS
We
entered into Separation and Release Agreements and are and were
parties to the employment agreements with each of our officers as
set forth in the section entitled “Executive and Director
Compensation” above. Pursuant to our Audit Committee Charter,
the Audit Committee is responsible for reviewing and approving,
prior to our entry into any such transaction, all transactions in
which we are a participant and in which any parties related to us
have or will have a direct or indirect material
interest.
Ravetch Grant
On April
3, 2015, the Board approved the issuance of an additional
restricted stock award of 17,770 shares to Jeffrey
Ravetch. This award is for future services covering at least a
one-year period. The award was granted in addition to the prior
award to Dr. Ravetch on April 2, 2015 of: (i) 4,628 restricted
shares and (ii) options to purchase 4,628 shares of common stock
with an exercise price of $17.02 per share, for a total grant
of 27,028 restricted shares and options.
Livingston Grant
On
March 23, 2015, the Board of Directors approved a restricted stock
award by the Company of 135,135 shares of common stock, to be
negotiated with Phil Livingston, Ph.D. for his continuing service
to the Company. On April 4, 2015, the Company awarded
and issued the shares to Dr. Livingston by virtue of a common stock
purchase agreement, in exchange for Dr. Livingston’s ongoing
services as a member of the Company’s Board of
Directors. On May 13, 2015, the Compensation Committee
of the Board clarified that the award is being granted in
consideration for at least one year of Dr. Livingston’s
services.
Ravetch Agreement
On
April 1, 2016, we entered into a consulting agreement with Dr.
Ravetch to provide key technology and product development, as well
as corporate development and consulting services, in addition to
his services as a Board member. The term of the
agreement is 2 years beginning January 1, 2016, and Dr. Ravetch
will receive $100,000 cash compensation per year.
Director Independence
After
review of all relevant transactions or relationships between each
director and nominee for director, or any of his or her family
members, and the Company, its senior management and its Independent
Registered Public Accounting Firm, the Board of Directors has
determined that all of the Company’s directors are
independent, as of December 31, 2016 within the meaning of the
applicable SEC rules and the NASDAQ listing standards, except Mr.
Hansen, the Chairman of the Board of Directors and Chief Executive
Officer and President of the Company, Dr. Livingston, Chief Science
Officer of the Company; and Dr. Ravetch.
Vote Required
The
affirmative vote of a plurality of shares of the Voting Capital
present at the Annual Meeting is required for approval of all the
director nominees.
The Board of Directors unanimously recommends a vote FOR the
election of all the above director nominees.
PROPOSAL 2:
TO GRANT THE BOARD OF DIRECTORS THE
AUTHORITY TO AMEND OUR THIRD AMENDED
AND RESTATED 2014 EMPLOYEE, DIRECTOR
AND CONSULTANT EQUITY INVENTIVE PLAN
TO
INCREASE THE NUMBER OF SHARES AVAILABLE FOR ISSUANCE THEREUNDER
TO
4,128,406 FROM
2,159,352
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 (the
“Plan”) by our stockholders in the merger with MabVax
Therapeutics, Inc. on July 8, 2014. On March 27, 2015, the
Board approved a further amendment (the “Second
Amendment”) to the Plan to increase the number of shares
available for issuance thereunder to 1,129,837 from 21,361 in
support of the Company's growth and desire to attract and retain
qualified individuals for management and other positions. The
stockholders approved the Second Amendment on August 26, 2015 at
the Company’s annual meeting of stockholders. On September
22, 2016, the Board ratified an automatic increase in the number of
shares reserved for issuance under the Plan to 1,208,307 from
1,129,837. On January 1, 2017, the Board approved a further
amendment for an automatic increase (the “Third
Amendment”) to the Plan to increase the number of shares
available for issuance thereunder to 2,159,352 from 1,208,307.
In light of increases in headcount and desire to retain employees
and consultants, the Board is recommending and submitting this
amendment (the “Fourth Amendment”) to our stockholders
for approval.
We
are seeking stockholder approval of the Fourth Amendment to
increase the number of shares issuable pursuant to the Plan to
4,128,406 from 2,159,352. In determining the amount of the increase
contemplated by the proposed Fourth Amendment to the Plan, the
Board has taken into consideration the 67% growth in number of
full time employees (from 15 to 25) in the last year, plans for
continued growth, and desire to continue to retain the flexibility
to offer incentives to our officers, directors, and
consultants.The maximum number of shares to be granted
to any one individual in a calendar year shall be limited to
900,000. The Fourth Amended and Restated 2014 Employee,
Director and Consultant Equity Incentive Plan is shown in Appendix
A.
Upon
stockholder approval, an additional 1,969,054 shares of Common
Stock will be available for issuance under the Plan, the purpose of
which will be to enable us to continue to grow, attract and retain
new talent, and to continue to incentivize our officers, directors,
and consultants, thereby attracting, retaining and motivating 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.
Approval of the Fourth Amendment will permit the
Company to continue to use and offer incentives to eligible
participants in order to motivate and reward those providing
services to the Company or any subsidiary. If this
Proposal 2 is not approved, the Plan will continue in full force
with the current amount of shares available for issuance
thereunder. Complete copies of the Plan, including the amendment to
the Plan can be obtained from the Secretary of the Company.
Vote Required
Approval of the
grant to the Board of Directors of the authority to amend our Third
Amended and Restated 2014 Employee, Director and Consultant Equity
Incentive Plan to increase the number of shares available for
issuance thereunder to 4,128,406 from 2,159,352 will require the
affirmative vote of a majority of the shares of Voting Capital
present at the Annual Meeting.
The Board of Directors unanimously recommends a vote FOR the
approval of the amendment to the Plan.
PROPOSAL 3:
RATIFICATION OF THE APPOINTMENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Our
Audit Committee has appointed CohnReznick, LLP
(“CohnReznick”), to serve as our independent registered
public accounting firm for the year ending December 31,
2017. The Board proposes that the stockholders ratify
this appointment.
Changes in the Company’s Certifying Accountant
On
August 20, 2014, the Company engaged CohnReznick, as its new
independent registered public accounting firm. The decision to
engage CohnReznick as the Company’s independent registered
public accounting firm was previously approved by the
Company’s Audit Committee. During each of the two fiscal
years ended December 31, 2012 and 2013 and through
August 20, 2014, the date of CohnReznick’s engagement,
neither the Company nor anyone on its behalf has consulted with
CohnReznick regarding either: (i) the application of
accounting principles to a specified transaction, either completed
or proposed, or the type of audit opinion that might be rendered on
the Company’s financial statements, and neither a written
report was provided to the Company nor oral advice was
provided by CohnReznick that was an important factor the Company
considered in reaching a decision as to any accounting, auditing or
financial reporting issue; or (ii) any matter that was the
subject of a disagreement, as that term is defined in
Item 304(a)(1)(iv) of Regulation S-K and the related
instructions to Item 304 of Regulation S-K, or a reportable
event, as that term is defined in Item 304(a)(1)(v) of
Regulation S-K.
The
selection of our independent registered public accounting firm is
not required to be submitted to a vote of our stockholders for
ratification. However, the Company is submitting this
matter to the stockholders as a matter of good corporate
governance. Even if the appointment is ratified, the
Board may, in its discretion, appoint a different independent
registered public accounting firm at any time during the year if
they determine that such a change would be in the best interests of
the Company and its stockholders. If the appointment is
not ratified, the Board will consider its options.
Representatives
of CohnReznick are expected to be present via telephone conference
call at the Annual Meeting. He or she will have the
opportunity to make a statement if desired and is expected to be
available to respond to appropriate questions.
Fees Paid to Auditor
The
following summarizes the fees billed by our independent registered
public accounting firm for audit, tax and other professional
services for the years ended December 31, 2016 and
2015:
|
|
|
|
|
|
Audit
Fees
|
$251,213
|
$216,875
|
Audit-Related
Fees(1)
|
—
|
—
|
Tax
Fees(2)
|
—
|
—
|
All
Other Fees(3)
|
—
|
—
|
Total
Fees
|
$251,213
|
$216,875
|
(1)
|
Audit-related fees consist of fees billed for assurance and related
services that are reasonably related to the performance of the
audit or review of our consolidated financial statements and are
not reported under “Audit Fees.” In addition, the
amounts include fees for services that are normally provided by the
auditor in connection with Statutory and regulatory filings and
engagements for the years identified.
|
(2)
|
Tax Fees consist of fees billed for professional services rendered
in connection with tax compliance, tax advice, and tax planning. We
incurred no such fees in the fiscal years ended December 31, 2016
and 2015.
|
(3)
|
Other fees consist of fees for products and services other than the
services reported above. There were no other fees for services by
our independent registered public accounting firms for the fiscal
years ended December 31, 2016 and 2015.
|
Audit Committee Pre-approval Policies and Procedures
Our
Audit Committee assists the Board in overseeing and monitoring the
integrity of the Company’s financial reporting process, its
compliance with legal and regulatory requirements and the quality
of its internal and external audit processes. The role and
responsibilities of the Audit Committee are set forth in a written
charter adopted by the Board, which is available on our website at
www.mabvax.com. The Audit Committee is responsible for selecting,
retaining and determining the compensation of our independent
public accountant, approving the services they will perform, and
reviewing the performance of the independent public accountant. The
Audit Committee reviews with management and our independent public
accountant our annual financial statements on Form 10-K and our
quarterly financial statements on Forms 10-Q. The Audit Committee
reviews and reassesses the charter annually and recommends any
changes to the Board for approval. The Audit Committee is
responsible for overseeing our overall financial reporting process.
In fulfilling its responsibilities for the financial statements for
fiscal year 2016, the Audit Committee took the following
actions:
●
|
reviewed
and discussed the audited financial statements for the fiscal year
ended December 31, 2016 with management and CohnReznick LLP
(“CohnReznick”), our independent public
accountant;
|
●
|
discussed
with CohnReznick the matters required to be discussed in accordance
with the rules set forth by the Public Company Accounting Oversight
Board (“PCAOB”), relating to the conduct of the audit;
and
|
●
|
received
written disclosures and the letter from CohnReznick regarding its
independence as required by applicable requirements of the PCAOB
regarding CohnReznick's communications with the Audit Committee and
the Audit Committee further discussed with CohnReznick its
independence. The Audit Committee also considered the status of
pending litigation, taxation matters and other areas of oversight
relating to the financial reporting and audit process that the
Audit Committee determined appropriate.
|
Our
Audit Committee approved all services that our independent
accountants provided to us in the past three fiscal
years.
Vote Required
Approval of the
ratification of the appointment of
CohnReznick as the Company’s independent registered public
accounting firm for the fiscal year ending December 31,
2017 will require the affirmative vote of a majority of the
shares of Voting Capital present at the Annual
Meeting.
The Board of Directors unanimously recommends a vote FOR
ratification of the appointment of CohnReznick as the
Company’s independent registered public accounting firm for
the fiscal year ending December 31, 2017.
PROPOSAL 4:
ADJOURNMENT
At
the Annual Meeting, we may ask our stockholders to vote on a
proposal to adjourn the Annual 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 Annual Meeting or any
adjournment or postponement of the Annual Meeting to approve any of
the other proposals.
If
at the Annual 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 Annual
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 Annual 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
Annual Meeting of the time, date and place of the adjourned
meeting.
Any
adjournment of the Annual Meeting will allow our stockholders who
have already sent in their proxies to revoke them at any time prior
to their use at the Annual Meeting as adjourned.
If
we adjourn the Annual 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
Approval of the adjournment of the Annual Meeting
if necessary or appropriate will require the affirmative
vote of a majority of the shares of Voting Capital present at the
Annual Meeting.
The Board of Directors unanimously recommends a vote FOR
authorization to adjourn the Annual 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 Annual Meeting, other than that described
above. As to other business, if any, that may properly come before
the Annual 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 accompanies this
Proxy Statement. In addition, this Proxy Statement, as well as our
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
Appendix A
FOURTH AMENDED AND RESTATED MABVAX THERAPEUTICS HOLDINGS,
INC.
2014 EMPLOYEE, DIRECTOR AND CONSULTANT EQUITY INCENTIVE
PLAN
Unless
otherwise specified or unless the context otherwise requires, the
following terms, as used in this Fourth Amended and Restated MabVax
Therapeutics Holdings, Inc. 2014 Employee, Director and Consultant
Equity Incentive Plan, have the following meanings:
Administrator means the Board
of Directors, unless it has delegated power to act on its behalf to
the Committee, in which case the Administrator means the
Committee.
Affiliate means a corporation
which, for purposes of Section 424 of the Code, is a parent or
subsidiary of the Company, direct or indirect.
Agreement means an agreement
between the Company and a Participant delivered pursuant to the
Plan and pertaining to a Stock Right, in such form as the
Administrator shall approve.
Board of Directors means the
Board of Directors of the Company.
California Participant means a
Participant who resides in the State of California.
Cause means, with respect to a
Participant (a) dishonesty with respect to the Company or any
Affiliate, (b) insubordination, substantial malfeasance or
non-feasance of duty, (c) unauthorized disclosure of
confidential information, (d) breach by a Participant of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or similar agreement between the Participant and
the Company or any Affiliate, and (e) conduct substantially
prejudicial to the business of the Company or any Affiliate;
provided, however, that any provision in an agreement between a
Participant and the Company or an Affiliate, which contains a
conflicting definition of Cause for termination and which is in
effect at the time of such termination, shall supersede this
definition with respect to that Participant. The determination of
the Administrator as to the existence of Cause will be conclusive
on the Participant and the Company.
Change of Control means the
occurrence of any of the following events; provided, however, that
any provision in an agreement between a Participant and the Company
or an Affiliate, which contains a conflicting definition of Change
of Control and which is in effect at the time of such termination,
shall supersede this definition with respect to that
Participant:
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(i)
|
Ownership. Any “Person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “Beneficial Owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the total
voting power represented by the Company’s then outstanding
voting securities (excluding for this purpose any such voting
securities held by the Company or its Affiliates or by any employee
benefit plan of the Company) pursuant to a transaction or a series
of related transactions which the Board of Directors does not
approve or is not required to approve; or
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(ii)
|
Merger/Sale of Assets. (A) A merger or consolidation of
the Company whether or not approved by the Board of Directors,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity
or the parent of such corporation) more than 50% of the total
voting power represented by the voting securities of the Company or
such surviving entity or parent of such corporation, as the case
may be, outstanding immediately after such merger or consolidation;
or (B) the sale or disposition by the Company of all or
substantially all of the Company’s assets in a transaction
requiring shareholder approval; or
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(iii)
|
provided,
that if any payment or benefit payable hereunder upon or following
a Change of Control would be required to comply with the
limitations of Section 409A(a)(2)(A)(v) of the Code in order
to avoid an additional tax under Section 409A of the Code,
such payment or benefit shall be made only if such Change in
Control constitutes a change in ownership or control of the
Company, or a change in ownership of the Company’s assets in
accordance with Section 409A of the Code.
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Code means the United States
Internal Revenue Code of 1986, as amended including any successor
statute, regulation and guidance thereto.
Committee means the committee
of the Board of Directors to which the Board of Directors has
delegated power to act under or pursuant to the provisions of the
Plan the composition of which shall at all times satisfy the
provisions of Section 162(m) of the Code.
Common Stock means shares of
the Company’s common stock, $0.01 par value per
share.
Company means MabVax
Therapeutics Holdings, Inc., a Delaware corporation.
Consultant means any natural
person who is an advisor or consultant that provides bona fide
services to the Company or its Affiliates, provided that such
services are not in connection with the offer or sale of securities
in a capital raising transaction, and do not directly or indirectly
promote or maintain a market for the Company’s or its
Affiliates’ securities.
Disability or Disabled means permanent and
total disability as defined in Section 22(e)(3) of the
Code.
Employee means any employee of
the Company or of an Affiliate (including, without limitation, an
employee who is also serving as an officer or director of the
Company or of an Affiliate), designated by the Administrator to be
eligible to be granted one or more Stock Rights under the
Plan.
Exchange Act means the
Securities Exchange Act of 1934, as amended.
Fair Market Value of a Share of
Common Stock means:
(1) If
the Common Stock is listed on a national securities exchange or
traded in the over-the-counter market and sales prices are
regularly reported for the Common Stock, the closing or, if not
applicable, the last price of the Common Stock on the composite
tape or other comparable reporting system for the trading day on
the applicable date and if such applicable date is not a trading
day, the last market trading day prior to such date;
(2) If
the Common Stock is not traded on a national securities exchange
but is traded on the over-the-counter market, if sales prices are
not regularly reported for the Common Stock for the trading day
referred to in clause (1), and if bid and asked prices for the
Common Stock are regularly reported, the mean between the bid and
the asked price for the Common Stock at the close of trading in the
over-the-counter market for the trading day on which Common Stock
was traded on the applicable date and if such applicable date is
not a trading day, the last market trading day prior to such date;
and
(3) If
the Common Stock is neither listed on a national securities
exchange nor traded in the over-the-counter market, such value as
the Administrator, in good faith, shall determine.
ISO means an option intended to
qualify as an incentive stock option under Section 422 of the
Code.
Non-Qualified Option means an
option which is not intended to qualify as an ISO.
Option means an ISO or
Non-Qualified Option granted under the Plan.
Participant means an Employee,
director or Consultant of the Company or an Affiliate to whom one
or more Stock Rights are granted under the Plan. As used herein,
“Participant” shall include “Participant’s
Survivors” where the context requires.
Performance Based Award means a
Stock Grant or Stock-Based Award which vests based on the
attainment of written Performance Goals as set forth in Paragraph 9
hereof.
Performance Goals means
performance goals based on one or more of the following criteria:
(i) pre-tax income or after-tax income; (ii) income or
earnings including operating income, earnings before or after
taxes, interest, depreciation, amortization, and/or extraordinary
or special items; (iii) net income excluding amortization of
intangible assets, depreciation and impairment of goodwill and
intangible assets and/or excluding charges attributable to the
adoption of new accounting pronouncements; (iv) earnings or
book value per share (basic or diluted); (v) return on assets
(gross or net), return on investment, return on capital, return on
invested capital or return on equity; (vi) return on revenues;
(vii) cash flow, free cash flow, cash flow return on
investment (discounted or otherwise), net cash provided by
operations, or cash flow in excess of cost of capital;
(viii) economic value created; (ix) operating margin or
profit margin; (x) stock price or total shareholder return;
(xi) income or earnings from continuing operations;
(xii) cost targets, reductions and savings, expense
management, productivity and efficiencies; (xiii) operational
objectives, consisting of one or more objectives based on achieving
progress in research and development programs or achieving
regulatory milestones related to development and or approval of
products; and (xiv) strategic business criteria, consisting of
one or more objectives based on meeting specified market
penetration or market share of one or more products or customers,
geographic business expansion, customer satisfaction, employee
satisfaction, human resources management, supervision of
litigation, information technology, and goals relating to
acquisitions, divestitures, joint ventures and similar
transactions. Where applicable, the Performance Goals may be
expressed in terms of a relative measure against a set of
identified peer group companies, attaining a specified level of the
particular criterion or the attainment of a percentage increase or
decrease in the particular criterion, and may be applied to one or
more of the Company or an Affiliate of the Company, or a division
or strategic business unit of the Company, all as determined by the
Committee. The Performance Goals may include a threshold level of
performance below which no Performance-Based Award will be issued
or no vesting will occur, levels of performance at which
Performance-Based Awards will be issued or specified vesting will
occur, and a maximum level of performance above which no additional
issuances will be made or at which full vesting will occur. Each of
the foregoing Performance Goals shall be evaluated in an
objectively determinable manner in accordance with
Section 162(m) of the Code and in accordance with generally
accepted accounting principles where applicable, unless otherwise
specified by the Committee, and shall be subject to certification
by the Committee. The Committee shall have the authority to make
equitable adjustments to the Performance Goals in recognition of
unusual or non-recurring events affecting the Company or any
Affiliate or the financial statements of the Company or any
Affiliate, in response to changes in applicable laws or
regulations, or to account for items of gain, loss or expense
determined to be extraordinary or unusual in nature or infrequent
in occurrence or related to the disposal of a segment of a business
or related to a change in accounting principles provided that any
such change shall at all times satisfy the provisions of
Section 162(m) of the Code.
Plan means this Fourth Amended
and Restated MabVax Therapeutics Holdings, Inc. 2014 Employee,
Director and Consultant Equity Incentive Plan.
Securities Act means the
Securities Act of 1933, as amended.
Shares means shares of the
Common Stock as to which Stock Rights have been or may be granted
under the Plan or any shares of capital stock into which the Shares
are changed or for which they are exchanged within the provisions
of Paragraph 3 of the Plan. The Shares issued under the Plan may be
authorized and unissued shares or shares held by the Company in its
treasury, or both.
Stock-Based Award means a grant
by the Company under the Plan of an equity award or an equity based
award which is not an Option or a Stock Grant, which the Committee
may, in its sole discretion, structure to qualify in whole or in
part as “performance-based compensation” under
Section 162(m) of the Code.
Stock Grant means a grant by
the Company of Shares under the Plan, which the Committee may, in
its sole discretion, structure to qualify in whole or in part as
“performance-based compensation” under
Section 162(m) of the Code.
Stock Right means a right to
Shares or the value of Shares of the Company granted pursuant to
the Plan — an ISO, a Non-Qualified Option, a Stock Grant or a
Stock-Based Award.
Survivor means a deceased
Participant’s legal representatives and/or any person or
persons who acquired the Participant’s rights to a Stock
Right by will or by the laws of descent and
distribution.
The
Plan is intended to encourage ownership of Shares by Employees and
directors of and certain Consultants to the Company and its
Affiliates in order to attract and retain such people, to induce
them to work for the benefit of the Company or of an Affiliate and
to provide additional incentive for them to promote the success of
the Company or of an Affiliate. The Plan provides for the granting
of ISOs, Non-Qualified Options, Stock Grants and Stock-Based
Awards.
3.
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SHARES SUBJECT TO
THE PLAN.
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(a) The
number of Shares which may be issued from time to time pursuant to
this Plan shall be 4,128,406, consisting of: 2,128,406 shares
representing 15% of the outstanding equity of the Company on
January 1, 2017, plus 2,000,000 pursuant to clauses (b)(ii)(x) and
(y) below.
(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) 1,081,082 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) 2,000,000; and (iii) an amount determined by the
Board.
(c) If
an Option ceases to be “outstanding”, in whole or in
part (other than by exercise), or if the Company shall reacquire
(at not more than its original issuance price) any Shares issued
pursuant to a Stock Grant or Stock-Based Award, or if any Stock
Right expires or is forfeited, cancelled, or otherwise terminated
or results in any Shares not being issued, the unissued or
reacquired Shares which were subject to such Stock Right shall
again be available for issuance from time to time pursuant to this
Plan. Notwithstanding the foregoing, if a Stock Right is exercised,
in whole or in part, by tender of Shares or if the Company or an
Affiliate’s tax withholding obligation is satisfied by
withholding Shares, the number of Shares deemed to have been issued
under the Plan for purposes of the limitation set forth in
Paragraph 3(a) above shall be the number of Shares that were
subject to the Stock Right or portion thereof, and not the net
number of Shares actually issued. However, in the case of ISOs, the
foregoing provisions shall be subject to any limitations under the
Code.
4.
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ADMINISTRATION OF
THE PLAN.
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The
Administrator of the Plan will be the Board of Directors, except to
the extent the Board of Directors delegates its authority to the
Committee, in which case the Committee shall be the Administrator.
Notwithstanding the foregoing, the Board of Directors may not take
any action that would cause any outstanding Stock Right that would
otherwise qualify as performance-based compensation under
Section 162(m) of the Code to fail to so qualify. Subject to
the provisions of the Plan, the Administrator is authorized
to:
(a)
Interpret the provisions of the Plan and all Stock Rights and to
make all rules and determinations which it deems necessary or
advisable for the administration of the Plan;
(b)
Determine which Employees, directors and Consultants shall be
granted Stock Rights;
(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 900,000 Shares be granted to
any Participant in any fiscal year;
(d)
Specify the terms and conditions upon which a Stock Right or Stock
Rights may be granted;
(e)
Determine Performance Goals no later than such time as required to
ensure that a Performance-Based Award which is intended to comply
with the requirements of Section 162(m) of the Code so
complies;
(f)
Amend any term or condition of any outstanding Stock Right, other
than reducing the exercise price or purchase price, including,
without limitation, to accelerate the vesting schedule, provided
that (i) such term or condition as amended is not prohibited
by the Plan; (ii) any such amendment shall not impair the
rights of a Participant under any Stock Right previously granted
without such Participant’s consent or in the event of death
of the Participant the Participant’s Survivors; and
(iii) any such amendment shall be made only after the
Administrator determines whether such amendment would cause any
adverse tax consequences to the Participant, including, but not
limited to, the annual vesting limitation contained in
Section 422(d) of the Code and described in Paragraph 6(b)(iv)
below with respect to ISOs and pursuant to Section 409A of the
Code;
(g)
Make any adjustments in the Performance Goals included in any
Performance-Based Awards provided that such adjustments comply with
the requirements of Section 162(m) of the Code;
and
(h)
Adopt any sub-plans applicable to residents of any specified
jurisdiction as it deems necessary or appropriate in order to
comply with or take advantage of any tax or other laws applicable
to the Company, any Affiliate or to Participants or to otherwise
facilitate the administration of the Plan, which sub-plans may
include additional restrictions or conditions applicable to Stock
Rights or Shares issuable pursuant to a Stock Right;
provided,
however, that all such interpretations, rules, determinations,
terms and conditions shall be made and prescribed in the context of
not causing any adverse tax consequences under Section 409A of
the Code and preserving the tax status under Section 422 of
the Code of those Options which are designated as ISOs and in
accordance with Section 162(m) of the Code for all other Stock
Rights to which the Committee has determined Section 162(m) is
applicable. Subject to the foregoing, the interpretation and
construction by the Administrator of any provisions of the Plan or
of any Stock Right granted under it shall be final, unless
otherwise determined by the Board of Directors, if the
Administrator is the Committee. In addition, if the Administrator
is the Committee, the Board of Directors may take any action under
the Plan that would otherwise be the responsibility of the
Committee.
To the
extent permitted under applicable law, the Board of Directors or
the Committee may allocate all or any portion of its
responsibilities and powers to any one or more of its members and
may delegate all or any portion of its responsibilities and powers
to any other person selected by it. The Board of Directors or the
Committee may revoke any such allocation or delegation at any time.
Notwithstanding the foregoing, only the Board of Directors or the
Committee shall be authorized to grant a Stock Right to any
director of the Company or to any “officer” of the
Company as defined by Rule 16a-1 under the Exchange
Act.
5.
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ELIGIBILITY FOR
PARTICIPATION.
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The
Administrator will, in its sole discretion, name the Participants
in the Plan; provided, however, that each Participant must be an
Employee, director or Consultant of the Company or of an Affiliate
at the time a Stock Right is granted. Notwithstanding the
foregoing, the Administrator may authorize the grant of a Stock
Right to a person not then an Employee, director or Consultant of
the Company or of an Affiliate; provided, however, that the actual
grant of such Stock Right shall be conditioned upon such person
becoming eligible to become a Participant at or prior to the time
of the execution of the Agreement evidencing such Stock Right. ISOs
may be granted only to Employees who are deemed to be residents of
the United States for tax purposes. Non-Qualified Options, Stock
Grants and Stock-Based Awards may be granted to any Employee,
director or Consultant of the Company or an Affiliate. The granting
of any Stock Right to any individual shall neither entitle that
individual to, nor disqualify him or her from, participation in any
other grant of Stock Rights or any grant under any other benefit
plan established by the Company or any Affiliate for Employees,
directors or Consultants.
6.
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TERMS AND
CONDITIONS OF OPTIONS.
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Each
Option shall be set forth in writing in an Option Agreement, duly
executed by the Company and, to the extent required by law or
requested by the Company, by the Participant. The Administrator may
provide that Options be granted subject to such terms and
conditions, consistent with the terms and conditions specifically
required under this Plan, as the Administrator may deem appropriate
including, without limitation, subsequent approval by the
shareholders of the Company of this Plan or any amendments thereto.
The Option Agreements shall be subject to at least the following
terms and conditions:
(a)
Non-Qualified
Options: Each Option intended to be a Non-Qualified Option
shall be subject to the terms and conditions which the
Administrator determines to be appropriate and in the best interest
of the Company, subject to the following minimum standards for any
such Non-Qualified Option:
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(i)
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Exercise Price: Each Option Agreement shall state the
exercise price (per share) of the Shares covered by each Option,
which exercise price shall be determined by the Administrator and
shall be at least equal to the Fair Market Value per share of
Common Stock on the date of grant of the Option.
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(ii)
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Number of Shares: Each Option Agreement shall state the
number of Shares to which it pertains.
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(iii)
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Vesting: Each Option Agreement shall state the date or dates
on which it first is exercisable and the date after which it may no
longer be exercised, and may provide that the Option rights accrue
or become exercisable in installments over a period of months or
years, or upon the occurrence of certain performance conditions or
the attainment of stated goals or events. For California
Participants for so long as the Common Stock is not deemed a
covered security pursuant to Section 18(b)(1) of the
Securities Act, the exercise period of the Option set forth in the
Option Agreement shall not be more than 120 months from the date of
grant.
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(iv)
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Additional Conditions: Exercise of any Option may be
conditioned upon the Participant’s execution of a Share
purchase agreement in form satisfactory to the Administrator
providing for certain protections for the Company and its other
shareholders, including requirements that:
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A.
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The
Participant’s or the Participant’s Survivors’
right to sell or transfer the Shares may be restricted;
and
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B.
|
The
Participant or the Participant’s Survivors may be required to
execute letters of investment intent and must also acknowledge that
the Shares will bear legends noting any applicable
restrictions.
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(v)
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Term of Option: Each Option shall terminate not more than
ten years from the date of the grant or at such earlier time as the
Option Agreement may provide.
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(b)
ISOs: Each Option
intended to be an ISO shall be issued only to an Employee who is
deemed to be a resident of the United States for tax purposes, and
shall be subject to the following terms and conditions, with such
additional restrictions or changes as the Administrator determines
are appropriate but not in conflict with Section 422 of the
Code and relevant regulations and rulings of the Internal Revenue
Service:
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(i)
|
Minimum standards: The ISO shall meet the minimum standards
required of Non-Qualified Options, as described in Paragraph 6(a)
above, except clause (i) and (v) thereunder.
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(ii)
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Exercise Price: Immediately before the ISO is granted, if
the Participant owns, directly or by reason of the applicable
attribution rules in Section 424(d) of the Code:
|
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A.
|
10%
or less of the
total combined voting power of all classes of stock of the Company
or an Affiliate, the exercise price per share of the Shares covered
by each ISO shall not be less than 100% of the Fair Market Value
per share of the Common Stock on the date of grant of the Option;
or
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B.
|
More
than 10% of the total combined voting power of all classes of stock
of the Company or an Affiliate, the exercise price per share of the
Shares covered by each ISO shall not be less than 110% of the Fair
Market Value per share of the Common Stock on the date of grant of
the Option.
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(iii)
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Term of Option: For Participants who own:
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A.
|
10%
or less of the
total combined voting power of all classes of stock of the Company
or an Affiliate, each ISO shall terminate not more than ten years
from the date of the grant or at such earlier time as the Option
Agreement may provide; or
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B.
|
More
than 10% of the total combined voting power of all classes of stock
of the Company or an Affiliate, each ISO shall terminate not more
than five years from the date of the grant or at such earlier time
as the Option Agreement may provide.
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(iv)
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Limitation on Yearly Exercise: The Option Agreements shall
restrict the amount of ISOs which may become exercisable in any
calendar year (under this or any other ISO plan of the Company or
an Affiliate) so that the aggregate Fair Market Value (determined
on the date each ISO is granted) of the stock with respect to which
ISOs are exercisable for the first time by the Participant in any
calendar year does not exceed $100,000.
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7.
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TERMS AND
CONDITIONS OF STOCK GRANTS.
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Each
Stock Grant to a Participant shall state the principal terms in an
Agreement duly executed by the Company and, to the extent required
by law or requested by the Company, by the Participant. For
California Participants for so long as the Common Stock is not
deemed a covered security pursuant to Section 18(b)(1) of the
Securities Act, each Stock Grant shall be issued within ten
(10) years from the earlier of the date the Plan is adopted or
approved by the Company’s shareholders. The Agreement shall
be in a form approved by the Administrator and shall contain terms
and conditions which the Administrator determines to be appropriate
and in the best interest of the Company, subject to the following
minimum standards:
(a)
Each Agreement shall state the purchase price per share, if any, of
the Shares covered by each Stock Grant, which purchase price shall
be determined by the Administrator but shall not be less than the
minimum consideration required by the Delaware Corporation Law, if
any, on the date of the grant of the Stock Grant;
(b)
Each Agreement shall state the number of Shares to which the Stock
Grant pertains; and
(c)
Each Agreement shall include the terms of any right of the Company
to restrict or reacquire the Shares subject to the Stock Grant ,
including the time period or attainment of Performance Goals or
such other performance criteria upon which such rights shall accrue
and the purchase price therefor, if any (such right, the
“Acquisition
Right”).
8.
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TERMS AND
CONDITIONS OF OTHER STOCK-BASED AWARDS.
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The
Administrator shall have the right to grant other Stock-Based
Awards based upon the Common Stock having such terms and conditions
as the Administrator may determine, including, without limitation,
the grant of Shares based upon certain conditions, the grant of
securities convertible into Shares and the grant of stock
appreciation rights, phantom stock awards or stock units. The
principal terms of each Stock-Based Award shall be set forth in an
Agreement, duly executed by the Company and, to the extent required
by law or requested by the Company, by the Participant. The
Agreement shall be in a form approved by the Administrator and
shall contain terms and conditions which the Administrator
determines to be appropriate and in the best interest of the
Company. Each Agreement shall include the terms of any right of the
Company including the right to terminate the Stock-Based Award
without the issuance of Shares, the terms of any vesting
conditions, Performance Goals or events upon which Shares shall be
issued. Under no circumstances may the Agreement covering stock
appreciation rights (a) have an exercise price (per share)
that is less than the Fair Market Value per share of Common Stock
on the date of grant or (b) expire more than ten years
following the date of grant.
The
Company intends that the Plan and any Stock-Based Awards granted
hereunder be exempt from the application of Section 409A of
the Code or meet the requirements of paragraphs (2), (3) and
(4) of subsection (a) of Section 409A of the Code,
to the extent applicable, and be operated in accordance with
Section 409A so that any compensation deferred under any
Stock-Based Award (and applicable investment earnings) shall not be
included in income under Section 409A of the Code. Any
ambiguities in the Plan shall be construed to effect the intent as
described in this Paragraph 8.
9.
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PERFORMANCE BASED
AWARDS.
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Notwithstanding
anything to the contrary herein, during any period when
Section 162(m) of the Code is applicable to the Company and
the Plan, Stock Rights granted under Paragraph 7 and Paragraph 8
may be granted by the Committee in a manner which is deductible by
the Company under Section 162(m) of the Code
(“Performance-Based Awards”). A Participant’s
Performance-Based Award shall be determined based on the attainment
of written Performance Goals, which must be objective and approved
by the Committee for a performance period of between one and five
years established by the Committee (I) while the outcome for
that performance period is substantially uncertain and (II) no more
than 90 days after the commencement of the performance period to
which the Performance Goal relates or, if less, the number of days
which is equal to 25% of the relevant performance period. The
Committee shall determine whether, with respect to a performance
period, the applicable Performance Goals have been met with respect
to a given Participant and, if they have, to so certify and
ascertain the amount of the applicable Performance-Based Award. No
Performance-Based Awards will be issued for such performance period
until such certification is made by the Committee. The number of
shares issued in respect of a Performance-Based Award to a given
Participant may be less than the amount determined by the
applicable Performance Goal formula, at the discretion of the
Committee. The number of shares issued in respect of a
Performance-Based Award determined by the Committee for a
performance period shall be paid to the Participant at such time as
determined by the Committee in its sole discretion after the end of
such performance period. Nothing in this Section shall prohibit the
Company from granting Stock-Based Awards subject to performance
criteria that do not comply with this Paragraph.
10.
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EXERCISE OF OPTIONS
AND ISSUE OF SHARES.
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An
Option (or any part or installment thereof) shall be exercised by
giving written notice to the Company or its designee (in a form
acceptable to the Administrator, which may include electronic
notice), together with provision for payment of the aggregate
exercise price in accordance with this Paragraph for the Shares as
to which the Option is being exercised, and upon compliance with
any other condition(s) set forth in the Option Agreement. Such
notice shall be signed by the person exercising the Option (which
signature may be provided electronically in a form acceptable to
the Administrator), shall state the number of Shares with respect
to which the Option is being exercised and shall contain any
representation required by the Plan or the Option Agreement.
Payment of the exercise price for the Shares as to which such
Option is being exercised shall be made (a) in United States
dollars in cash or by check, or (b) at the discretion of the
Administrator, through delivery of shares of Common Stock held for
at least six months (if required to avoid negative accounting
treatment) having a Fair Market Value equal as of the date of the
exercise to the aggregate cash exercise price for the number of
Shares as to which the Option is being exercised, or (c) at
the discretion of the Administrator, by having the Company retain
from the Shares otherwise issuable upon exercise of the Option, a
number of Shares having a Fair Market Value equal as of the date of
exercise to the aggregate exercise price for the number of Shares
as to which the Option is being exercised, or (d) at the
discretion of the Administrator, in accordance with a cashless
exercise program established with a securities brokerage firm, and
approved by the Administrator, or (e) at the discretion of the
Administrator, by any combination of (a), (b), (c) and
(d) above or (f) at the discretion of the Administrator,
by payment of such other lawful consideration as the Administrator
may determine. Notwithstanding the foregoing, the Administrator
shall accept only such payment on exercise of an ISO as is
permitted by Section 422 of the Code.
The
Company shall then reasonably promptly deliver the Shares as to
which such Option was exercised to the Participant (or to the
Participant’s Survivors, as the case may be). In determining
what constitutes “reasonably promptly,” it is expressly
understood that the issuance and delivery of the Shares may be
delayed by the Company in order to comply with any law or
regulation (including, without limitation, state securities or
“blue sky” laws) which requires the Company to take any
action with respect to the Shares prior to their issuance. The
Shares shall, upon delivery, be fully paid, non-assessable
Shares.
11.
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PAYMENT IN
CONNECTION WITH THE ISSUANCE OF STOCK GRANTS AND STOCK-BASED AWARDS
AND ISSUE OF SHARES.
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Any
Stock Grant or Stock-Based Award requiring payment of a purchase
price for the Shares as to which such Stock Grant or Stock-Based
Award is being granted shall be made (a) in United States
dollars in cash or by check, or (b) at the discretion of the
Administrator, through delivery of shares of Common Stock held for
at least six months (if required to avoid negative accounting
treatment) and having a Fair Market Value equal as of the date of
payment to the purchase price of the Stock Grant or Stock-Based
Award, or (c) at the discretion of the Administrator, by any
combination of (a) and (b) above; or (d) at the
discretion of the Administrator, by payment of such other lawful
consideration as the Administrator may determine.
The
Company shall when required by the applicable Agreement, reasonably
promptly deliver the Shares as to which such Stock Grant or
Stock-Based Award was made to the Participant (or to the
Participant’s Survivors, as the case may be), subject to any
escrow provision set forth in the applicable Agreement. In
determining what constitutes “reasonably promptly,” it
is expressly understood that the issuance and delivery of the
Shares may be delayed by the Company in order to comply with any
law or regulation (including, without limitation, state securities
or “blue sky” laws) which requires the Company to take
any action with respect to the Shares prior to their
issuance.
12.
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RIGHTS AS A
SHAREHOLDER.
|
No
Participant to whom a Stock Right has been granted shall have
rights as a shareholder with respect to any Shares covered by such
Stock Right except after due exercise of an Option or issuance of
Shares as set forth in any Agreement, tender of the aggregate
exercise or purchase price, if any, for the Shares being purchased
and registration of the Shares in the Company’s share
register in the name of the Participant.
13.
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ASSIGNABILITY AND
TRANSFERABILITY OF STOCK RIGHTS.
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By its
terms, a Stock Right granted to a Participant shall not be
transferable by the Participant other than (i) by will or by
the laws of descent and distribution, or (ii) as approved by
the Administrator in its discretion and set forth in the applicable
Agreement provided that no Stock Right may be transferred by a
Participant for value. Notwithstanding the foregoing, an ISO
transferred except in compliance with clause (i) above shall
no longer qualify as an ISO. The designation of a beneficiary of a
Stock Right by a Participant, with the prior approval of the
Administrator and in such form as the Administrator shall
prescribe, shall not be deemed a transfer prohibited by this
Paragraph. Except as provided above during the Participant’s
lifetime a Stock Right shall only be exercisable by or issued to
such Participant (or his or her legal representative) and shall not
be assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted transfer,
assignment, pledge, hypothecation or other disposition of any Stock
Right or of any rights granted thereunder contrary to the
provisions of this Plan, or the levy of any attachment or similar
process upon a Stock Right, shall be null and void.
14.
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EFFECT ON OPTIONS
OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR DEATH OR
DISABILITY.
|
Except
as otherwise provided in a Participant’s Option Agreement or
in any other agreement between a Participant and the Company or an
Affiliate, in the event of a termination of service (whether as an
Employee, director or Consultant) with the Company or an Affiliate
before the Participant has exercised an Option, the following rules
apply:
(a) A
Participant who ceases to be an Employee, director or Consultant of
the Company or of an Affiliate (for any reason other than
termination for Cause, Disability, or death for which events there
are special rules in Paragraphs 15, 16, and 17, respectively), may
exercise any Option granted to him or her to the extent that the
Option is exercisable on the date of such termination of service,
but only within such term as the Administrator has designated in a
Participant’s Option Agreement.
(b)
Except as provided in Subparagraph (c) below, or Paragraph 16
or 17, in no event may an Option intended to be an ISO, be
exercised later than three months after the date of the
Participant’s termination of employment. For Options granted
to California Participants for so long as the Common Stock is not
deemed a covered security pursuant to Section 18(b)(1) of the
Securities Act, an Option must be exercisable for at least thirty
(30) days from the date of a Participant’s termination
of employment.
(c) The
provisions of this Paragraph, and not the provisions of Paragraph
16 or 17, shall apply to a Participant who subsequently becomes
Disabled or dies after the termination of employment, director
status or consultancy; provided, however, in the case of a
Participant’s Disability or death within three months after
the termination of employment, director status or consultancy, the
Participant or the Participant’s Survivors may exercise the
Option within one year after the date of the Participant’s
termination of service, but in no event after the date of
expiration of the term of the Option.
(d)
Notwithstanding anything herein to the contrary, if subsequent to a
Participant’s termination of employment, termination of
director status or termination of consultancy, but prior to the
exercise of an Option, the Administrator determines that, either
prior or subsequent to the Participant’s termination, the
Participant engaged in conduct which would constitute Cause, then
such Participant shall forthwith cease to have any right to
exercise any Option.
(e) A
Participant to whom an Option has been granted under the Plan who
is absent from the Company or an Affiliate because of temporary
disability (any disability other than a Disability as defined in
Paragraph 1 hereof), or who is on leave of absence for any purpose,
shall not, during the period of any such absence, be deemed, by
virtue of such absence alone, to have terminated such
Participant’s employment, director status or consultancy with
the Company or with an Affiliate, except as the Administrator may
otherwise expressly provide; provided, however, that, for ISOs, any
leave of absence granted by the Administrator of greater than
ninety days, unless pursuant to a contract or statute that
guarantees the right to reemployment, shall cause such ISO to
become a Non-Qualified Option on the 181st day following such
leave of absence.
(f)
Except as required by law or as set forth in a Participant’s
Option Agreement, Options granted under the Plan shall not be
affected by any change of a Participant’s status within or
among the Company and any Affiliates, so long as the Participant
continues to be an Employee, director or Consultant of the Company
or any Affiliate.
15.
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EFFECT ON OPTIONS
OF TERMINATION OF SERVICE FOR CAUSE.
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Except
as otherwise provided in a Participant’s Option Agreement or
in any other agreement between a Participant and the Company or an
Affiliate, the following rules apply if the Participant’s
service (whether as an Employee, director or Consultant) with the
Company or an Affiliate is terminated for Cause prior to the time
that all his or her outstanding Options have been
exercised:
(a) All
outstanding Options as of the time the Participant is notified his
or her service is terminated for Cause will immediately be
forfeited.
(b)
Cause is not limited to events which have occurred prior to a
Participant’s termination of service, nor is it necessary
that the Administrator’s finding of Cause occur prior to
termination. If the Administrator determines, subsequent to a
Participant’s termination of service but prior to the
exercise of an Option, that either prior or subsequent to the
Participant’s termination the Participant engaged in conduct
which would constitute Cause, then the right to exercise any Option
is forfeited.
16.
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EFFECT ON OPTIONS
OF TERMINATION OF SERVICE FOR DISABILITY.
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Except
as otherwise provided in a Participant’s Option Agreement or
in any other agreement between a Participant and the Company or an
Affiliate:
(a) A
Participant who ceases to be an Employee, director or Consultant of
the Company or of an Affiliate by reason of Disability may exercise
any Option granted to such Participant:
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(i)
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To the
extent that the Option has become exercisable but has not been
exercised on the date of the Participant’s termination of
service due to Disability; and
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(ii)
|
In the
event rights to exercise the Option accrue periodically, to the
extent of a pro rata portion through the date of the
Participant’s termination of service due to Disability of any
additional vesting rights that would have accrued on the next
vesting date had the Participant not become Disabled. The proration
shall be based upon the number of days accrued in the current
vesting period prior to the date of the Participant’s
termination of service due to Disability.
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(b) A
Disabled Participant may exercise the Option only within the period
ending one year after the date of the Participant’s
termination of service due to Disability, notwithstanding that the
Participant might have been able to exercise the Option as to some
or all of the Shares on a later date if the Participant had not
been terminated due to Disability and had continued to be an
Employee, director or Consultant or, if earlier, within the
originally prescribed term of the Option. For Options granted to
California Participants for so long as the Common Stock is not
deemed a covered security pursuant to Section 18(b)(1) of the
Securities Act, a Participant may exercise such rights for at least
six (6) months from the date of termination of service due to
Disability.
(c) The
Administrator shall make the determination both of whether
Disability has occurred and the date of its occurrence (unless a
procedure for such determination is set forth in another agreement
between the Company and such Participant, in which case such
procedure shall be used for such determination). If requested, the
Participant shall be examined by a physician selected or approved
by the Administrator, the cost of which examination shall be paid
for by the Company.
17.
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EFFECT ON OPTIONS
OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR
CONSULTANT.
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Except
as otherwise provided in a Participant’s Option Agreement or
in any other agreement between a Participant and the Company or an
Affiliate:
(a) In
the event of the death of a Participant while the Participant is an
Employee, director or Consultant of the Company or of an Affiliate,
such Option may be exercised by the Participant’s
Survivors:
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(i)
|
To the
extent that the Option has become exercisable but has not been
exercised on the date of death; and
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(ii)
|
In the
event rights to exercise the Option accrue periodically, to the
extent of a pro rata portion through the date of death of any
additional vesting rights that would have accrued on the next
vesting date had the Participant not died. The proration shall be
based upon the number of days accrued in the current vesting period
prior to the Participant’s date of death.
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(b) If
the Participant’s Survivors wish to exercise the Option, they
must take all necessary steps to exercise the Option within one
year after the date of death of such Participant, notwithstanding
that the decedent might have been able to exercise the Option as to
some or all of the Shares on a later date if he or she had not died
and had continued to be an Employee, director or Consultant or, if
earlier, within the originally prescribed term of the Option. For
Options granted to California Participants for so long as the
Common Stock is not deemed a covered security pursuant to
Section 18(b)(1) of the Securities Act, the
Participant’s Survivors must be allowed to take all necessary
steps to exercise the Option for at least six (6) months from
the date of death of such Participant.
18.
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EFFECT OF
TERMINATION OF SERVICE ON STOCK GRANTS AND STOCK-BASED
AWARDS.
|
In the
event of a termination of service (whether as an Employee, director
or Consultant) with the Company or an Affiliate for any reason
before the Participant has accepted a Stock Grant or a Stock-Based
Award and paid the purchase price, if required, such grant shall
terminate.
For
purposes of this Paragraph 18 and Paragraph 19 below, a Participant
to whom a Stock Grant or a Stock-Based Award has been issued under
the Plan who is absent from work with the Company or with an
Affiliate because of temporary disability (any disability other
than a Disability as defined in Paragraph 1 hereof), or who is on
leave of absence for any purpose, shall not, during the period of
any such absence, be deemed, by virtue of such absence alone, to
have terminated such Participant’s employment, director
status or consultancy with the Company or with an Affiliate, except
as the Administrator may otherwise expressly provide.
In
addition, for purposes of this Paragraph 18 and Paragraph 19 below,
any change of employment or other service within or among the
Company and any Affiliates shall not be treated as a termination of
employment, director status or consultancy so long as the
Participant continues to be an Employee, director or Consultant of
the Company or any Affiliate.
19.
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EFFECT ON STOCK
GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE OTHER THAN
FOR CAUSE OR DEATH OR DISABILITY.
|
Except
as otherwise provided in a Participant’s Agreement or in any
other agreement between a Participant and the Company or an
Affiliate, in the event of a termination of service for any reason
(whether as an Employee, director or Consultant), other than
termination for Cause, Disability, or death for which events there
are special rules in Paragraphs 20, 21, and 22, respectively,
before all forfeiture provisions or Company rights of repurchase
shall have lapsed, then the Company shall have the right to cancel
or repurchase that number of Shares subject to a Stock Grant or a
Stock-Based Award as to which the Company’s forfeiture or
repurchase rights have not lapsed.
20.
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EFFECT ON STOCK
GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE FOR
CAUSE.
|
Except
as otherwise provided in a Participant’s Agreement or in any
other agreement between a Participant and the Company or an
Affiliate, the following rules apply if the Participant’s
service (whether as an Employee, director or Consultant) with the
Company or an Affiliate is terminated for Cause:
(a) All
Shares subject to any Stock Grant or Stock-Based Award that remain
subject to forfeiture provisions or as to which the Company shall
have a repurchase right shall be immediately forfeited to the
Company as of the time the Participant is notified his or her
service is terminated for Cause.
(b)
Cause is not limited to events which have occurred prior to a
Participant’s termination of service, nor is it necessary
that the Administrator’s finding of Cause occur prior to
termination. If the Administrator determines, subsequent to a
Participant’s termination of service, that either prior or
subsequent to the Participant’s termination the Participant
engaged in conduct which would constitute Cause, then all Shares
subject to any Stock Grant or Stock-Based Award that remained
subject to forfeiture provisions or as to which the Company had a
repurchase right on the date of termination shall be immediately
forfeited to the Company.
21.
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EFFECT ON STOCK
GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE FOR
DISABILITY.
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Except
as otherwise provided in a Participant’s Agreement or in any
other agreement between a Participant and the Company or an
Affiliate, the following rules apply if a Participant ceases to be
an Employee, director or Consultant of the Company or of an
Affiliate by reason of Disability: to the extent the forfeiture
provisions or the Company’s rights of repurchase have not
lapsed on the date of Disability, they shall be exercisable;
provided, however, that in the event such forfeiture provisions or
rights of repurchase lapse periodically, such provisions or rights
shall lapse to the extent of a pro rata portion of the Shares
subject to such Stock Grant or Stock-Based Award through the date
of Disability as would have lapsed had the Participant not become
Disabled. The proration shall be based upon the number of days
accrued prior to the date of Disability.
The
Administrator shall make the determination both as to whether
Disability has occurred and the date of its occurrence (unless a
procedure for such determination is set forth in another agreement
between the Company and such Participant, in which case such
procedure shall be used for such determination). If requested, the
Participant shall be examined by a physician selected or approved
by the Administrator, the cost of which examination shall be paid
for by the Company.
22.
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EFFECT ON STOCK
GRANTS AND STOCK-BASED AWARDS OF DEATH WHILE AN EMPLOYEE, DIRECTOR
OR CONSULTANT.
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Except
as otherwise provided in a Participant’s Agreement or in any
other agreement between a Participant and the Company or an
Affiliate, the following rules apply in the event of the death of a
Participant while the Participant is an Employee, director or
Consultant of the Company or of an Affiliate: to the extent the
forfeiture provisions or the Company’s rights of repurchase
have not lapsed on the date of death, they shall be exercisable;
provided, however, that in the event such forfeiture provisions or
rights of repurchase lapse periodically, such provisions or rights
shall lapse to the extent of a pro rata portion of the Shares
subject to such Stock Grant or Stock-Based Award through the date
of death as would have lapsed had the Participant not died. The
proration shall be based upon the number of days accrued prior to
the Participant’s date of death.
23.
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PURCHASE FOR
INVESTMENT.
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Unless
the offering and sale of the Shares shall have been effectively
registered under the Securities Act, the Company shall be under no
obligation to issue Shares under the Plan unless and until the
following conditions have been fulfilled:
(a) The
person who receives a Stock Right shall warrant to the Company,
prior to the receipt of Shares, that such person is acquiring such
Shares for his or her own account, for investment, and not with a
view to, or for sale in connection with, the distribution of any
such Shares, in which event the person acquiring such Shares shall
be bound by the provisions of the following legend (or a legend in
substantially similar form) which shall be endorsed upon the
certificate evidencing the Shares issued pursuant to such exercise
or such grant:
“The shares
represented by this certificate have been taken for investment and
they may not be sold or otherwise transferred by any person,
including a pledgee, unless (1) either (a) a Registration
Statement with respect to such shares shall be effective under the
Securities Act of 1933, as amended, or (b) the Company shall
have received an opinion of counsel satisfactory to it that an
exemption from registration under such Act is then available, and
(2) there shall have been compliance with all applicable state
securities laws.”
(b) At
the discretion of the Administrator, the Company shall have
received an opinion of its counsel that the Shares may be issued in
compliance with the Securities Act without registration
thereunder.
24.
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DISSOLUTION OR
LIQUIDATION OF THE COMPANY.
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Upon
the dissolution or liquidation of the Company, all Options granted
under this Plan which as of such date shall not have been exercised
and all Stock Grants and Stock-Based Awards which have not been
accepted, to the extent required under the applicable Agreement,
will terminate and become null and void; provided, however, that if
the rights of a Participant or a Participant’s Survivors have
not otherwise terminated and expired, the Participant or the
Participant’s Survivors will have the right immediately prior
to such dissolution or liquidation to exercise or accept any Stock
Right to the extent that the Stock Right is exercisable or subject
to acceptance as of the date immediately prior to such dissolution
or liquidation. Upon the dissolution or liquidation of the Company,
any outstanding Stock-Based Awards shall immediately terminate
unless otherwise determined by the Administrator or specifically
provided in the applicable Agreement.
Upon
the occurrence of any of the following events, a
Participant’s rights with respect to any Stock Right granted
to him or her hereunder shall be adjusted as hereinafter provided,
unless otherwise specifically provided in a Participant’s
Agreement:
(a)
Stock Dividends and Stock
Splits. If (i) the shares of Common Stock shall be
subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, or (ii) additional
shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to
such shares of Common Stock, each Stock Right and the number of
shares of Common Stock deliverable thereunder shall be
appropriately increased or decreased proportionately, and
appropriate adjustments shall be made including, in the exercise or
purchase price per share, to reflect such events. The number of
Shares subject to the limitations in Paragraph 3(a), 3(b) and 4(c)
shall also be proportionately adjusted upon the occurrence of such
events and the Performance Goals applicable to outstanding
Performance-Based Awards.
(b)
Corporate
Transactions. If the Company is to be consolidated with or
acquired by another entity in a merger, consolidation, or sale of
all or substantially all of the Company’s assets other than a
transaction to merely change the state of incorporation (a
“Corporate Transaction”), the Administrator or the
board of directors of any entity assuming the obligations of the
Company hereunder (the “Successor Board”), shall, as to
outstanding Options, either (i) make appropriate provision for
the continuation of such Options by substituting on an equitable
basis for the Shares then subject to such Options either the
consideration payable with respect to the outstanding shares of
Common Stock in connection with the Corporate Transaction or
securities of any successor or acquiring entity; or (ii) upon
written notice to the Participants, provide that such Options must
be exercised (either (A) to the extent then exercisable or,
(B) at the discretion of the Administrator, any such Options
being made partially or fully exercisable for purposes of this
Subparagraph), within a specified number of days of the date of
such notice, at the end of which period such Options which have not
been exercised shall terminate; or (iii) terminate such
Options in exchange for payment of an amount equal to the
consideration payable upon consummation of such Corporate
Transaction to a holder of the number of shares of Common Stock
into which such Option would have been exercisable (either
(A) to the extent then exercisable or, (B) at the
discretion of the Administrator, any such Options being made
partially or fully exercisable for purposes of this Subparagraph)
less the aggregate
exercise price thereof. For purposes of determining the payments to
be made pursuant to Subclause (iii) above, in the case of a
Corporate Transaction the consideration for which, in whole or in
part, is other than cash, the consideration other than cash shall
be valued at the fair value thereof as determined in good faith by
the Board of Directors.
Notwithstanding the
foregoing, in the event the Corporate Transaction also constitutes
a Change of Control, then all Options outstanding on the date of
the Corporate Transaction shall automatically vest in
full.
With
respect to outstanding Stock Grants, the Administrator or the
Successor Board, shall make appropriate provision for the
continuation of such Stock Grants on the same terms and conditions
by substituting on an equitable basis for the Shares then subject
to such Stock Grants either the consideration payable with respect
to the outstanding Shares of Common Stock in connection with the
Corporate Transaction or securities of any successor or acquiring
entity. In lieu of the foregoing, in connection with any Corporate
Transaction, the Administrator may provide that, upon consummation
of the Corporate Transaction, each outstanding Stock Grant shall be
terminated in exchange for payment of an amount equal to the
consideration payable upon consummation of such Corporate
Transaction to a holder of the number of shares of Common Stock
comprising such Stock Grant.
Notwithstanding the
foregoing, in the event the Corporate Transaction also constitutes
a Change of Control, then all Acquisition Rights with respect to
any Stock Grants will terminate and be of no further force and
effect.
In
taking any of the actions permitted under this Paragraph 25(b), the
Administrator shall not be obligated by the Plan to treat all Stock
Rights, all Stock Rights held by a Participant, or all Stock Rights
of the same type, identically.
(c)
Recapitalization or
Reorganization. In the event of a recapitalization or
reorganization of the Company other than a Corporate Transaction
pursuant to which securities of the Company or of another
corporation are issued with respect to the outstanding shares of
Common Stock, a Participant upon exercising an Option or accepting
a Stock Grant after the recapitalization or reorganization shall be
entitled to receive for the price paid upon such exercise or
acceptance if any, the number of replacement securities which would
have been received if such Option had been exercised or Stock Grant
accepted prior to such recapitalization or
reorganization.
(d)
Adjustments to Stock-Based
Awards. Upon the happening of any of the events described in
Subparagraphs (a), (b) or (c) above, any outstanding
Stock-Based Award shall be appropriately adjusted to reflect the
events described in such Subparagraphs. The Administrator or the
Successor Board shall determine the specific adjustments to be made
under this Paragraph 25, including, but not limited to the effect
of any, Corporate Transaction and Change of Control and, subject to
Paragraph 4, its determination shall be conclusive. Notwithstanding
the foregoing, in the event the Corporate Transaction also
constitutes a Change of Control, then all Stock-Based Awards which
are not Performance-Based Awards will automatically vest in
full.
(e)
Modification of
Options. Notwithstanding the foregoing, any adjustments made
pursuant to Subparagraph (a), (b) or (c) above with
respect to Options shall be made only after the Administrator
determines whether such adjustments would (i) constitute a
“modification” of any ISOs (as that term is defined in
Section 424(h) of the Code) or (ii) cause any adverse tax
consequences for the holders of Options, including, but not limited
to, pursuant to Section 409A of the Code. If the Administrator
determines that such adjustments made with respect to Options would
constitute a modification or other adverse tax consequence, it may
refrain from making such adjustments, unless the holder of an
Option specifically agrees in writing that such adjustment be made
and such writing indicates that the holder has full knowledge of
the consequences of such “modification” on his or her
income tax treatment with respect to the Option. This paragraph
shall not apply to the acceleration of the vesting of any ISO that
would cause any portion of the ISO to violate the annual vesting
limitation contained in Section 422(d) of the Code, as
described in Paragraph 6(b)(iv).
(f)
Modification of
Performance-Based Awards. Notwithstanding the foregoing,
with respect to any Performance-Based Award that is intended to
comply as “performance based compensation” under
Section 162(m) of the Code, the Committee may adjust
downwards, but not upwards, the number of Shares payable pursuant
to a Performance-Based Award, and the Committee may not waive the
achievement of the applicable Performance Goals except in the case
of death or disability of the Participant.
26.
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ISSUANCES OF
SECURITIES.
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Except
as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
shares subject to Stock Rights. Except as expressly provided
herein, no adjustments shall be made for dividends paid in cash or
in property (including without limitation, securities) of the
Company prior to any issuance of Shares pursuant to a Stock
Right.
No
fractional shares shall be issued under the Plan and the person
exercising a Stock Right shall receive from the Company cash in
lieu of such fractional shares equal to the Fair Market Value
thereof.
28.
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CONVERSION OF ISOs
INTO NON-QUALIFIED OPTIONS; TERMINATION OF
ISOs.
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The
Administrator, at the written request of any Participant, may in
its discretion take such actions as may be necessary to convert
such Participant’s ISOs (or any portions thereof) that have
not been exercised on the date of conversion into Non-Qualified
Options at any time prior to the expiration of such ISOs,
regardless of whether the Participant is an Employee of the Company
or an Affiliate at the time of such conversion. At the time of such
conversion, the Administrator (with the consent of the Participant)
may impose such conditions on the exercise of the resulting
Non-Qualified Options as the Administrator in its discretion may
determine, provided that such conditions shall not be inconsistent
with this Plan. Nothing in the Plan shall be deemed to give any
Participant the right to have such Participant’s ISOs
converted into Non-Qualified Options, and no such conversion shall
occur until and unless the Administrator takes appropriate action.
The Administrator, with the consent of the Participant, may also
terminate any portion of any ISO that has not been exercised at the
time of such conversion.
In the
event that any federal, state, or local income taxes, employment
taxes, Federal Insurance Contributions Act (“F.I.C.A.”)
withholdings or other amounts are required by applicable law or
governmental regulation to be withheld from the Participant’s
salary, wages or other remuneration in connection with the issuance
of a Stock Right or Shares under the Plan or for any other reason
required by law, the Company may withhold from the
Participant’s compensation, if any, or may require that the
Participant advance in cash to the Company, or to any Affiliate of
the Company which employs or employed the Participant, the
statutory minimum amount of such withholdings unless a different
withholding arrangement, including the use of shares of the
Company’s Common Stock or a promissory note, is authorized by
the Administrator (and permitted by law). For purposes hereof, the
fair market value of the shares withheld for purposes of payroll
withholding shall be determined in the manner set forth under the
definition of Fair Market Value provided in Paragraph 1 above, as
of the most recent practicable date prior to the date of exercise.
If the Fair Market Value of the shares withheld is less than the
amount of payroll withholdings required, the Participant may be
required to advance the difference in cash to the Company or the
Affiliate employer. The Administrator in its discretion may
condition the exercise of an Option for less than the then Fair
Market Value on the Participant’s payment of such additional
withholding.
30.
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NOTICE TO COMPANY
OF DISQUALIFYING DISPOSITION.
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Each
Employee who receives an ISO must agree to notify the Company in
writing immediately after the Employee makes a Disqualifying
Disposition of any Shares acquired pursuant to the exercise of an
ISO. A Disqualifying Disposition is defined in Section 424(c)
of the Code and includes any disposition (including any sale or
gift) of such Shares before the later of (a) two years after
the date the Employee was granted the ISO, or (b) one year
after the date the Employee acquired Shares by exercising the ISO,
except as otherwise provided in Section 424(c) of the Code. If the
Employee has died before such Shares are sold, these holding period
requirements do not apply and no Disqualifying Disposition can
occur thereafter.
31.
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EFFECTIVENESS AND
TERMINATION OF THE PLAN.
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The
Plan will terminate on February 12, 2024, the date which is
ten years from the earlier of the date of its
adoption by the Board of Directors and the date of its approval by
the shareholders of the Company. The Plan may be terminated at an
earlier date by vote of the shareholders or the Board of Directors
of the Company; provided, however, that any such earlier
termination shall not affect any Agreements executed prior to the
effective date of such termination. Termination of the Plan shall
not affect any Stock Rights theretofore granted.
32.
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AMENDMENT OF THE
PLAN AND AGREEMENTS.
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The
Plan may be amended by the shareholders of the Company. The Plan
may also be amended by the Administrator, including, without
limitation, to the extent necessary to qualify any or all
outstanding Stock Rights granted under the Plan or Stock Rights to
be granted under the Plan for favorable federal income tax
treatment as may be afforded incentive stock options under
Section 422 of the Code (including deferral of taxation upon
exercise), and to the extent necessary to qualify the Shares
issuable under the Plan for listing on any national securities
exchange or quotation in any national automated quotation system of
securities dealers and in order to continue to comply with
Section 162(m) of the Code; provided that any amendment
approved by the Administrator which the Administrator determines is
of a scope that requires shareholder approval shall be subject to
obtaining such shareholder approval. Other than as set forth in
Paragraph 25 of the Plan, the Administrator may not without
shareholder approval reduce the exercise price of an Option or
cancel any outstanding Option in exchange for a replacement option
having a lower exercise price, any Stock Grant, any other
Stock-Based Award or for cash. In addition, the Administrator not
take any other action that is considered a direct or indirect
“repricing” for purposes of the shareholder approval
rules of the applicable securities exchange or inter-dealer
quotation system on which the Shares are listed, including any
other action that is treated as a repricing under generally
accepted accounting principles. Any modification or amendment of
the Plan shall not, without the consent of a Participant, adversely
affect his or her rights under a Stock Right previously granted to
him or her. With the consent of the Participant affected, the
Administrator may amend outstanding Agreements in a manner which
may be adverse to the Participant but which is not inconsistent
with the Plan. In the discretion of the Administrator, outstanding
Agreements may be amended by the Administrator in a manner which is
not adverse to the Participant. Nothing in this Paragraph 32 shall
limit the Administrator’s authority to take any action
permitted pursuant to Paragraph 25.
33.
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EMPLOYMENT OR OTHER
RELATIONSHIP.
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Nothing
in this Plan or any Agreement shall be deemed to prevent the
Company or an Affiliate from terminating the employment,
consultancy or director status of a Participant, nor to prevent a
Participant from terminating his or her own employment, consultancy
or director status or to give any Participant a right to be
retained in employment or other service by the Company or any
Affiliate for any period of time.
If a
Participant is a “specified employee” as defined in
Section 409A of the Code (and as applied according to
procedures of the Company and its Affiliates) as of his separation
from service, to the extent any payment under this Plan or pursuant
to the grant of a Stock-Based Award constitutes deferred
compensation (after taking into account any applicable exemptions
from Section 409A of the Code), and to the extent required by
Section 409A of the Code, no payments due under this Plan or
pursuant to a Stock-Based Award may be made until the earlier of:
(i) the first day of the seventh month following the
Participant’s separation from service, or (ii) the
Participant’s date of death; provided, however, that any
payments delayed during this six-month period shall be paid in the
aggregate in a lump sum, without interest, on the first day of the
seventh month following the Participant’s separation from
service.
The
Administrator shall administer the Plan with a view toward ensuring
that Stock Rights under the Plan that are subject to
Section 409A of the Code comply with the requirements thereof
and that Options under the Plan be exempt from the requirements of
Section 409A of the Code, but neither the Administrator nor
any member of the Board, nor the Company nor any of its Affiliates,
nor any other person acting hereunder on behalf of the Company, the
Administrator or the Board shall be liable to a Participant or any
Survivor by reason of the acceleration of any income, or the
imposition of any additional tax or penalty, with respect to a
Stock Right, whether by reason of a failure to satisfy the
requirements of Section 409A of the Code or
otherwise.
Neither
the Board nor the Administrator, nor any members of either, nor any
employees of the Company or any parent, subsidiary, or other
Affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with
their responsibilities with respect to this Plan, and the Company
hereby agrees to indemnify the members of the Board, the members of
the Committee, and the employees of the Company and its parent or
subsidiaries in respect of any claim, loss, damage, or expense
(including reasonable counsel fees) arising from any such act,
omission, interpretation, construction or determination to the full
extent permitted by law.
This
Plan shall be construed and enforced in accordance with the law of
the State of Delaware.
MABVAX THERAPEUTICS HOLDINGS, INC.
11535 Sorrento Valley Road, Ste. 400
San Diego, California 92121
(858) 259-9405
PROXY FOR ANNUAL MEETING OF STOCKHOLDERS
June 12, 2017
THE BOARD OF DIRECTORS OF MABVAX THERAPEUTICS HOLDINGS, INC.
SOLICITS THIS PROXY
The undersigned, revoking any previous proxies relating to these
shares, hereby acknowledges receipt of the Notice and Proxy
Statement in connection with the 2017 Annual Meeting of
Stockholders to be held at 10:00 a.m. (local time) on June 12,
2017, at 11535 Sorrento Valley Road, Ste. 400, San Diego,
California 92121, and hereby appoints J. David Hansen, our Chief
Executive Officer, and Gregory P. Hanson, our Chief Financial
Officer, with full power to act alone, and each of them (with full
power to act alone), as attorneys and proxies of the undersigned,
with power of substitution to each, to vote all shares of the
common stock (including shares of common stock underlying shares of
Series D Convertible Preferred Stock, Series E Convertible
Preferred Stock and Series F Convertible Preferred Stock) of MabVax
Therapeutics Holdings, Inc. registered in the name provided in this
Proxy which the undersigned is entitled to vote at the Annual
Meeting of Stockholders, and at any adjournments of the meeting,
with all the powers the undersigned would have if personally
present at the meeting. Without limiting the general authorization
given by this Proxy, the proxies are, and each of them is,
instructed to vote or act as follows on the proposals set forth in
this Proxy.
This Proxy when executed will be voted in the manner directed
herein. If no direction is made this Proxy will be voted in
accordance with the recommendation of the Board of
Directors.·☑
Please mark votes as in this
example.
The Board of Directors recommends you vote FOR the following
nominees:
1. To elect the following two persons to
serve as Class II directors until the 2020 Annual Meeting of
Stockholders.
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Jeffrey
F. Eisenberg
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☐
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FOR
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☐
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WITHHOLD
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Jeffrey
V. Ravetch, MD, PhD
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☐
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FOR
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☐
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WITHHOLD
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The Board of Directors recommends you vote FOR the following
proposals:
2. To grant the Board of Directors the
authority to amend our Third Amended and Restated 2014 Employee,
Director and Consultant Equity Incentive Plan to increase
the number of shares available for issuance thereunder to 4,128,406
from 2,159,352;
☐
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FOR
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☐
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AGAINST
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☐
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ABSTAIN
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3. To ratify the appointment of CohnReznick
LLP as our independent registered public accounting firm for our
fiscal year ending December 31, 2017; and
☐
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FOR
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☐
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AGAINST
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☐
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ABSTAIN
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4. To
authorize the adjournment of the Annual Meeting if necessary or
appropriate, including soliciting additional proxies in the event
that there are not sufficient votes at the time of the Annual
Meeting or adjournment or postponement thereof to approve any of
the foregoing proposals.
☐
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FOR
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☐
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AGAINST
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☐
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ABSTAIN
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In their discretion the proxies are
authorized to vote upon such other matters as may properly come
before the meeting or any adjournments of the meeting.
Please
sign exactly as name(s) appears on this Proxy. When shares are held
jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full
title as such. If the signer is a corporation, please sign full
corporate name by duly authorized officer, giving full title as
such. If signer is a partnership, please sign in partnership name
by authorized person.
Signature:
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Date:
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Signature:
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Date:
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PLEASE CAST YOUR VOTE AS SOON AS POSSIBLE!