FORM OF UNDERWRITER’S WARRANT TO ACQUIRE WARRANTS AGREEMENT
Exhibit
4.5
FORM
OF
Underwriter’s
Warrant To Acquire Warrants Agreement (the “Agreement”), dated as of February
19, 2008, between Opexa Therapeutics, Inc. (the “Company”) and _____________
(the “Holder”).
WITNESSETH:
WHEREAS,
the Company and MDB Capital Group, LLC and the other parties named therein
(collectively, the “Underwriters”) have entered into an underwriting agreement
dated February 13, 2008 (the “Underwriting Agreement”) whereby the Company has
agreed to issue and sell to the Underwriters an aggregate of 3,500,000 shares
of
common stock of the Company (the “Firm Shares” or in the singular a “Firm
Share”) and an aggregate of 3,500,000
Series E warrants (The “Firm Warrants” or in the singular a “Firm
Warrant”);
WHEREAS,
the Underwriters have agreed to make a public offering of the Firm Shares
and
the Firm Warrants, as those terms are described within the Underwriting
Agreement (the “Offering”);
WHEREAS,
pursuant to Section 4(k) of the Underwriting Agreement, the Company is obligated
to issue to the Underwriters as of the date hereof a warrant for the purchase
of
an aggregate of 350,000 shares
of Common Stock, equal to ten percent (10%) of the Firm Shares sold in the
Offering, at a price per share of $2.40;
WHEREAS,
pursuant to Section 4(k) of the Underwriting Agreement, the Company is also
obligated to issue to the Underwriters as of the date hereof warrants (the
“Warrants”) to acquire an aggregate of 350,000 Series
E warrants identical to the Series E warrants sold in the Offering (the “Public
Warrants” or in the singular a “Public Warrant”);
WHEREAS,
the exercise price for each Warrant for a Public Warrant is $.18, a price
that
is equal to 120% of the price per Public Warrant in the Offering;
WHEREAS
the Company has entered into a Warrant Agreement dated February 19, 2008
with
Continental Stock Transfer & Trust Company, acting as warrant agent for the
Series E Warrants;
WHEREAS,
the Warrants may only be issued to the Underwriters and/or member firms of
FINRA
that may participate in the Offering and the bona fide officers and partners
thereof as permitted by Rule 2710(c)(7)(A) and (B) (the “Rule”) of FINRA Conduct
Rules (each and each permitted transferee hereunder, a “Holder,” and
collectively, the “Holders”).
NOW,
THEREFORE, in consideration of the premises contained herein, the payment
to the
Company of $50, the agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Grant
and
Period.
1.1 Recital. The
above recitals are true and correct. The Offering has been registered under
a
registration statement on Form SB-2 (File No. 333-147167) (“Registration
Statement”) which was declared effective by the Securities and Exchange
Commission (the “Commission”) on February 13, 2008 (the “Effective
Date”).
1.2 Grant. The
Holder is hereby granted the right to purchase from the Company, at any time
during the period commencing on February 19, 2009 and expiring on February
19,
2013 (the “Expiration Time”), 350,000 Public Warrants at an exercise price of
$.18 per Public Warrant (the “Exercise Price” or “Purchase Price”), subject to
the terms and conditions of this Agreement.
1.3 Redemption
It is
agreed by the Company that its right to call the Public Warrants for redemption
shall not apply to the Public Warrants for which this Warrant may be
exercised. If the Public Warrants have been redeemed, then the
Company will issue warrants equivalent to the Public Warrant in lieu
thereof.
2. Exercise
of
Warrant.
2.1 Full
Exercise. Except as provided in Section 2.3 below, the
Holder shall effect an exercise of the Warrants by surrendering to the Company
this Agreement, together with a Subscription in the form of Exhibit A attached
hereto, duly executed by such Holder, at any time prior to the Expiration
Time,
at the Company’s principal office, accompanied by payment in cash or by
certified or official bank check payable to the order of the Company in the
amount of the aggregate purchase price (the “Aggregate Price”), subject to any
adjustments provided for in this Agreement. The Aggregate Price shall be
an
amount that is the result of the Exercise Price multiplied by the number
of
Public Warrants that are the subject of each Holder’s Agreement (as adjusted as
hereinafter provided).
2.2 Partial
Exercise. The Warrants may also be exercised from time to time
in part by surrendering this Agreement in the manner specified in Sections
2.1
or 2.3 hereof, except that the Purchase Price payable shall be an amount
that is
the result of the number of Public Warrants being purchased hereunder multiplied
by the Exercise Price, subject to any adjustments provided for in this
Agreement. Upon any such partial exercise, the Company, at its expense, will
forthwith issue to the Holder a new Agreement of like tenor calling in the
aggregate for the number of securities (as constituted as of the date hereof)
for which this Agreement shall not have been exercised, issued in the name
of
the Holder or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct.
2.3 Cashless
Exercise. The Holder may pay the Exercise Price through a
cashless exercise (a “Cashless Exercise”), as hereinafter provided, in its sole
discretion. The Holder may effect a Cashless Exercise of the Warrants by
surrendering to the Company this Agreement, together with a Subscription
in the
form of Exhibit B attached hereto, duly executed by such Holder, at any time
prior to the Expiration Time, at the Company’s principal office, upon which the
Company shall issue to the Holder the number of Public Warrants determined
as
follows:
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X
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=
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Y
x
(A-B)/A
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where
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X
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=
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the
number of Public Warrants to be issued to the Holder;
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Y
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=
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the
number of Public Warrants with respect to which the Warrant is
being
exercised;
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A
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=
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the
Market Price as of the Date of Exercise; and
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B
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=
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the
Exercise Price.
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“Market
Price” of a Public Warrant on any date shall mean, (i) if the Public Warrants
are traded on the Nasdaq Global Market, Nasdaq Global Select Market or the
Nasdaq Capital Market, the last bid price reported on that date; (ii) if
the
Public Warrants are no longer quoted on a Nasdaq market and are listed on
any
other national securities exchange, the last sale price of the Public Warrants
reported by such exchange on that date; (iii) if the Public Warrants are
not
quoted on a any such market or listed on any such exchange and the Public
Warrants are traded in the over-the-counter market, the last price reported
on
such day by the OTC Bulletin Board; (iv) if the Public Warrants are not quoted
on any such market, listed on any such exchange or quoted on the OTC Bulletin
Board, then the last price quoted on such day in the over-the-counter market
as
reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding its functions of reporting prices); or
(v) if
none of clauses (i)-(iv) are applicable, then as determined by taking the
Market
Price of a share of Common Stock as determined in the same manner as clauses
(i)
– (iv) and subtracting from that per share amount (y) the then exercise price
of
a Warrant and (z) the exercise price of the Public Warrant for a share of
Common
Stock. In the event that a Market Price may not be determined using
any of the foregoing, then the Market Price will be determined, in good faith,
by the Board of Directors and the Holders of the Warrant. “Date of Exercise”
means the date on which the Holder shall have delivered to the Company (i)
this
Warrant, (ii) the applicable Form of Subscription attached thereto,
appropriately completed and duly signed, and (iii) if applicable, payment
of the
Exercise Price.
2.4 Restrictions
on
Exercise. If for any reason a registration statement for the
issuance of the Series E Warrants is not effective at the time of exercise,
Holder will make customary representations to Company as may be required
to
qualify the issuance for exemption from the registration requirements of
the
Securities Act of 1933.
3. Issuance
of
Certificates. Upon the exercise of the Warrants, the issuance
of warrant certificates for the Public Warrants shall be made promptly (and,
in
any event within three business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Section 4 and Section 5 hereof) be issued in the name of, or in such names
as
may be directed by, the Holder thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificates in
a
name other than that of the Holder and the Company shall not be required
to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount
of
such tax or shall have established to the satisfaction of the Company that
such
tax has been paid.
4. Restriction
on Transfer of
Warrant. The Holder of a Warrant, by acceptance thereof,
covenants and agrees that the Warrants may not be sold, transferred, assigned,
pledged or hypothecated, or be the subject of any hedging, short sale,
derivative, put or call transaction that would result in the effective economic
disposition of the securities underlying the Warrants, in whole or in part,
for
a period of one year from the effectiveness of the Offering, except (a) to
a
FINRA member firm that participated in the Offering and the bona fide officers
or partners thereof, (b) by operation of law, or (c) by reason of reorganization
of the Company.
5. Certain
Events.
5.1 Amendments. If
the Company amends the class of Public Warrants or the number of Public Warrants
and exercise price thereof are adjusted, then this Warrant will become
exercisable for such Public Warrants, as amended and/or adjusted.
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5.2 Extraordinary
Transactions. If, (i) the Company effects any merger or
consolidation of the Company with or into another Person, (ii) the Company
effects any sale of all or substantially all of its assets in one or a series
of
related transactions, (iii) any tender offer or exchange offer by the Company
is
completed pursuant to which holders of Public Warrants are permitted to tender
or exchange their Public Warrants for other securities, cash or property,
or
(iv) the Company effects any reclassification of the Public Warrants or any
compulsory exchange pursuant to which the Public Warrants are effectively
converted into or exchanged for other securities, cash or property (in any
such
case, an “Extraordinary Transaction”), then each Holder’s Warrants will become
the right thereafter to receive, upon exercise of his or her Warrants, the
same
amount and kind of securities, cash or property as such Holder would have
been
entitled to receive upon the occurrence of such Extraordinary Transaction
if it
had been, immediately prior to such Extraordinary Transaction, the holder
of the
number of Public Warrants then issuable upon exercise in full of the relevant
Warrant (the “Alternate Consideration”) in lieu of Public Warrants. The
aggregate Exercise Price for each Warrant will not be affected by any such
Extraordinary Transaction, but the Company shall apportion such aggregate
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Public Warrants are given any choice as to the
securities, cash or property to be received in a Extraordinary Transaction,
then
each Holder, to the extent practicable, shall be given the same choice as
to the
Alternate Consideration it receives upon any exercise of his or her Warrant
following such Extraordinary Transaction. In addition, at the request of
each
Holder, upon surrender of such Holder’s Warrant, any successor to the Company or
surviving entity in such Extraordinary Transaction shall issue to such Holder
a
new warrant consistent with the foregoing provisions and evidencing the Holder’s
right to purchase the Alternate Consideration for the aggregate Exercise
Price
upon exercise thereof. Each Warrant (or any such replacement security) will
be
similarly adjusted upon any subsequent transaction analogous to a Extraordinary
Transaction.
5.3 Notice
of
Adjustment. In each case of an adjustment or readjustment of
the type of securities issuable upon exercise of the Warrants pursuant to
Section 6.2, the Company shall promptly give written notice of such adjustment
or readjustment.
6. Registration
Rights.
6.1 Demand
Registration.
6.1.1 Grant
of
Right. The Company, upon written demand (“Initial Demand
Notice”) of the Holder(s) of at least 51% of the Warrants and/or the underlying
Public Warrants and/or the underlying securities (“Majority Holders”), agrees to
register on one occasion, all or any portion of the Warrants requested by
the
Majority Holders in the Initial Demand Notice and all of the securities
underlying such Warrants, including the Public Warrants and Common
Stock, the Warrants, the Public Warrants and the Common Stock underlying
the
Public Warrants (collectively, the “Registrable Securities”). On such
occasion, the Company will file a registration statement or a post-effective
amendment to the Registration Statement covering the Registrable Securities
within thirty days after receipt of the Initial Demand Notice and use its
best
efforts to have such registration statement or post-effective amendment declared
effective as soon as possible thereafter. The demand for registration
may be made at any time during a period of five years beginning on the Effective
Date. The Company covenants and agrees to give written notice of its
receipt of any Initial Demand Notice by any Holder(s) to all other registered
Holders of the Warrants and/or the Registrable Securities within ten days
from
the date of the receipt of any such Initial Demand Notice.
6.1.2 Terms. The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses of any one legal counsel selected
by the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting
commissions. The Company agrees to use its reasonable best efforts to
qualify or register the Registrable Securities in such states as are reasonably
requested by the Majority Holder(s); provided, however, that in no event
shall
the Company be required to register the Registrable Securities in a state
in
which such registration would cause (i) the Company to be obligated to qualify
to do business in such state, or would subject the Company to taxation as
a
foreign corporation doing business in such jurisdiction or (ii) the principal
stockholders of the Company to be obligated to escrow their shares of capital
stock of the Company. The Company shall cause any registration
statement or post-effective amendment filed pursuant to the demand rights
granted under Section 6.1.1 to remain effective for a period of nine consecutive
months from the effective date of such registration statement or post-effective
amendment.
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6.2 “Piggy-Back”
Registration.
6.2.1 Grant
of
Right. In addition to the demand right of registration, the
Holders of the Warrants shall have the right for a period of seven years
commencing on the Effective Date, to include the Registrable Securities as
part
of any other registration of securities filed by the Company (other than
in
connection with a transaction contemplated by Rule 145(a) promulgated under
the
Act or pursuant to Form S-8); provided, however, that if, in the written
opinion
of the Company’s managing underwriter or underwriters, if any, for such
offering, the inclusion of the Registrable Securities, when added to the
securities being registered by the Company or the selling stockholder(s),
will
exceed the maximum amount of the Company’s securities which can be marketed (i)
at a price reasonably related to their then current market value, and (ii)
without materially and adversely affecting the entire offering, then the
Company
will still be required to include the Registrable Securities, but may require
the Holders to agree, in writing, to delay the sale of all or any portion
of the
Registrable Securities for a period of 90 days from the effective date of
the
offering, provided, further, that if the sale of any Registrable Securities
is
so delayed, then the number of securities to be sold by all stockholders
in such
public offering during such 90 day period shall be apportioned pro rata among
all such selling stockholders, including all holders of the Registrable
Securities, according to the total amount of securities of the Company owned
by
said selling stockholders, including all holders of the Registrable
Securities.
6.2.2 Terms. The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting commissions
related to the Registrable Securities. In the event of such a
proposed registration, the Company shall furnish the then Holders of outstanding
Registrable Securities with not less than fifteen days written notice prior
to
the proposed date of filing of such registration statement. Such
notice to the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the Warrant is
exercisable) by the Company until such time as all of the Registrable Securities
have been registered and sold. The holders of the Registrable
Securities shall exercise the “piggy back” rights provided for herein by giving
written notice, within ten (10) days of the receipt of the Company’s notice of
its intention to file a registration statement. The Company shall
cause any registration statement filed pursuant to the above “piggyback” rights
to remain effective for at least nine months from the date that the Holders
of
the Registrable Securities are first given the opportunity to sell all of
such
securities.
6.3 Damages. Should
the registration or the effectiveness thereof required by Sections 6.1 and
6.2
hereof be delayed by the Company or the Company otherwise fails to comply
with
such provisions, the Company shall, in addition to any other equitable or
other
relief available to the Holder(s), be liable for any and all incidental,
special
and consequential damages sustained by the Holder(s), including, but not
limited
to, the loss of any profits that might have been received by the holder upon
the
sale of shares of Warrants, Common Stock or Public Warrants (and shares of
Common Stock underlying the Public Warrants) underlying this
Warrant.
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6.4 General
Terms.
6.4.1 Indemnification. The
Company shall indemnify the Holder(s) of the Registrable Securities to be
sold
pursuant to any registration statement hereunder and each person, if any,
who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating,
preparing or defending against litigation, commenced or threatened, or any
claim
whatsoever whether arising out of any action between the underwriter and
the
Company or between the underwriter and any third party or otherwise) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement but only to the same extent and
with
the same effect as the provisions pursuant to which the Company has agreed
to
indemnify the underwriters contained in Section 6 of the Underwriting Agreement
between the Company, MDB Capital Group LLC and the other underwriters named
therein dated the Effective Date. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including all
reasonable attorneys’ fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement
to
the same extent and with the same effect as the provisions contained in Section
6 of the Underwriting Agreement pursuant to which the underwriters have agreed
to indemnify the Company.
6.4.2 Exercise
of
Warrant. Nothing contained in this Warrant shall be construed
as requiring the Holder(s) to exercise their Warrant or Public Warrants
underlying such Warrant prior to or after the initial filing of any registration
statement or the effectiveness thereof.
6.4.3 Documents
Delivered to
Holders. The Company shall furnish MDB Capital Group LLC, as
representative of the Holders participating in any of the foregoing offerings,
a
signed counterpart, addressed to the participating Holders, of (i) an opinion
of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an opinion
dated the date of the closing under any underwriting agreement related thereto),
and (ii) a “cold comfort” letter dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
a
letter dated the date of the closing under the underwriting agreement) signed
by
the independent public accountants who have issued a report on the Company’s
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants’ letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer’s counsel
and in accountants’ letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to
MDB Capital Group LLC, as representative of the Holders participating in
the
offering, the correspondence and memoranda described below and copies of
all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff
with
respect to the registration statement and permit MDB Capital Group LLC, as
representative of the Holders, to do such investigation, upon reasonable
advance
notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of FINRA. Such investigation
shall include access to books, records and properties and opportunities to
discuss the business of the Company with its officers and independent auditors,
all to such reasonable extent and at such reasonable times and as often as
MDB
Capital Group LLC, as representative of the Holders, shall reasonably
request. The Company shall not be required to disclose any
confidential information or other records to MDB Capital Group LLC, as
representative of the Holders, or to any other person, until and unless such
persons shall have entered into reasonable confidentiality agreements (in
form
and substance reasonably satisfactory to the Company), with the Company with
respect thereto.
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6.4.4 Underwriting
Agreement. The Company shall enter into an underwriting
agreement with the managing underwriter(s), if any, selected by any Holders
whose Registrable Securities are being registered pursuant to this Section
7,
which managing underwriter shall be reasonably acceptable to the
Company. Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and
shall
contain such representations, warranties and covenants by the Company and
such
other terms as are customarily contained in agreements of that type used
by the
managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such
Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution. Such Holders, however, shall agree to such
covenants and indemnification and contribution obligations for selling
stockholders as are customarily contained in agreements of that type used
by the
managing underwriter. Further, such Holders shall execute appropriate
custody agreements and otherwise cooperate fully in the preparation of the
registration statement and other documents relating to any offering in which
they include securities pursuant to this Section 7. Each Holder shall
also furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
6.4.5 Rule
144
Sale. Notwithstanding anything contained in this Section 6 to
the contrary, the Company shall have no obligation pursuant to Sections 6.1
or
6.2 for the registration of Registrable Securities held by any Holder (i)
where
such Holder would then be entitled to sell under Rule 144 within any three-month
period (or such other period prescribed under Rule 144 as may be provided
by
amendment thereof) all of the Registrable Securities then held by such Holder,
and (ii) where the number of Registrable Securities held by such Holder is
within the volume limitations under paragraph (e) of Rule 144 (calculated
as if
such Holder were an affiliate within the meaning of Rule 144).
6.4.6 Supplemental
Prospectus. Each Holder agrees, that upon receipt of any
notice from the Company of the happening of any event as a result of which
the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading in light of the circumstances then existing, such Holder will
immediately discontinue disposition of Registrable Securities pursuant to
the
Registration Statement covering such Registrable Securities until such Holder’s
receipt of the copies of a supplemental or amended prospectus, and, if so
desired by the Company, such Holder shall deliver to the Company (at the
expense
of the Company) or destroy (and deliver to the Company a certificate of such
destruction) all copies, other than permanent file copies then in such Holder’s
possession, of the prospectus covering such Registrable Securities current
at
the time of receipt of such notice.
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7. Elimination
of Fractional
Interest. The Company shall not be required to issue
certificates representing fractions of Public Warrants upon the exercise
of the
Warrants, nor shall it be required to issue script or pay cash in lieu of
fractional interests, it being the intent of the parties that all fractional
interests may be eliminated by rounding any fraction up to the nearest whole
number of Public Warrants or other securities, properties or rights, or in
lieu
thereof paying cash equal to such fractional interest.
8. Reservation,
Validity and
Listing. The Company covenants and agrees that during the
exercise period, the Company shall at all times reserve and keep available
out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Public Warrants that are issuable under the Warrants,
such number of shares of Common Stock or other securities, properties or
rights
as shall be issuable upon the exercise of the Public Warrants that are issuable
under the Warrants. The Company covenants and agrees that, upon exercise
of the
Warrants, and payment of the Exercise Price therefor, all Public Warrants
and
other securities issuable upon such exercise shall be duly authorized, validly
issued and not subject to the preemptive rights of any shareholder. As long
as
the Warrants shall be outstanding, the Company shall use its commercially
reasonable efforts to cause all Public Warrants issuable upon the exercise
of
the Warrants to be listed and quoted (subject to official notice of issuance)
on
all securities exchanges and systems on which the Public Warrants are then
listed and/or quoted, including Nasdaq.
9. Notices
to
Holders. Nothing contained in this Agreement shall be
construed as conferring upon the Holders the right to vote or to consent
or to
receive notice as a shareholder in respect of any meetings of shareholders
for
the election of directors or any other matter, or as having any rights
whatsoever as a shareholder of the Company. If, however, at any time prior
to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a)
the Company shall take a record of the holders of its shares of Common Stock
for
the purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company;
or
(b)
the Company shall offer to all the holders of its Common Stock any additional
shares of capital stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company, or any option, right
or
warrant to subscribe therefor; or
(c)
a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially
all
of its property, assets and business as an entirety shall be
proposed;
then,
in
any one or more of said events, the Company shall give to the extent practicable
written notice of such event at least 15 days prior to the date fixed as
a
record date of the date of closing the transfer books for the determination
of
the shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notices shall
specify such record date or the date of closing the transfer books, as the
case
may be.
10. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been duly given when sent by (i) facsimile;
or (ii) delivered personally or by overnight courier or mailed by registered
or
certified mail, return receipt requested:
(a)
If to the registered Holder, to the address of such Holder as shown on the
books
of the Company.
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With
a copy to:
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▇. ▇▇▇▇▇▇▇, Esq.
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Golenbock
▇▇▇▇▇▇▇ Assor ▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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(b)
If to the Company, to the address set forth below or to such other address
as
the Company may designate by notice to the Holders.
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Fax:
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With
a copy to:
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▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP
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Tel: (▇▇▇)
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Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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11. Entire
Agreement:
Modification. This Agreement (and the Underwriting Agreement
to the extent applicable) contains the entire understanding between the parties
hereto with respect to the subject matter hereof, and the terms and provisions
of this Agreement may only be modified, waived or amended in writing. Any
modification, waiver or amendment executed by the Company and a majority
of
Holders shall be binding on all Holders. Notice of any modification, waiver
or
amendment shall be promptly provided to any Holder not consenting to such
modification, waiver or amendment.
12. Successors. All
the covenants and provisions of this Agreement shall be binding upon and inure
to the benefit of the Company, the Holders and their respective successors
and
assigns hereunder.
13. Governing
Law; Submission to
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to the conflicts of laws principles thereof. The parties hereto hereby
irrevocably agree that any suit or proceeding arising directly and/or indirectly
pursuant to or under this Agreement, shall be brought solely in a federal or
state court located in the City, County and State of New York. By its execution
hereof, the parties hereby covenant and irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City, County and
State of New York and agree that any process in any such action may be served
upon any of them personally, or by certified mail or registered mail upon them
or their agent, return receipt requested, with the same full force and effect
as
if personally served upon them in New York City. The parties hereto waive any
claim that any such jurisdiction is not a convenient forum for any such suit
or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
14. Severability. If
any provision of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provision of
this
Agreement.
9
15. Captions. The
caption
headings of the sections of this Agreement are for convenience of reference
only
and are not intended, nor should they be construed as, a part of this Agreement
and shall be given no substantive effect.
16. Benefits
of This
Agreement. Nothing in this Agreement shall be construed to
give to any person or corporation other than the Company and any registered
Holder(s) of the Warrant Certificates any legal or equitable right, remedy
or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and any Holder(s) of the Warrant Certificates.
17. Counterparts. This
Agreement may be
executed in any number of counterparts and each of such counterparts shall
for
all purposes be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN
WITNESS HEREOF, the parties
hereto have caused this Agreement to be duly executed, as of the day and year
first above written.
| OPEXA THERAPEUTICS, INC. | |||
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By:
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| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Chief Executive Officer | |||
| HOLDER | |||
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By:
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| Title | |||
10
EXHIBIT
A
FORM
OF SUBSCRIPTION (CASH EXERCISE)
(To
be
signed only upon exercise of Warrants)
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TO:
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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The
undersigned holder of Warrant Certificate Number __________ (the “Warrant
Certificate”), representing the right to acquire _____________ Public Warrants
(as defined in the Warrant Agreement referred to in the Warrant Certificate)
of
Opexa Therapeutics, Inc. (the “Company”), which Warrant Certificate is being
delivered herewith, hereby irrevocably elects to purchase ___________ Public
Warrants, and herewith makes payment of $___________ therefor, all in accordance
with the Warrant Certificate and the Warrant Agreement referred to in the
Warrant Certificate. Certificates for the Public Warrants shall be issued in
the
name of _________________ and delivered to the following address:
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By:
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| Name: | |||
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Social
Security Number or Tax Identification Number:
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Date:
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(Signature
must conform in all respects to name of Holder as specified on the face of
the
Warrant Certificate)
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Address
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Social
Security Number or
Tax
Identification Number
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EXHIBIT
B
FORM
OF SUBSCRIPTION (CASHLESS EXERCISE)
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TO:
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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The
undersigned holder of Warrant Certificate Number __________ (the “Warrant
Certificate”), representing the right to acquire _____________ Public Warrants
(as defined in the Warrant Agreement referred to in the Warrant Certificate
) of
Opexa Therapeutics, Inc. (the “Company”), which Warrant Certificate is being
delivered herewith, hereby irrevocably elects to exercise (on a cashless
exercise basis in accordance with the formula set forth in Section 2.3 of the
Warrant Agreement referred to in the Warrant Certificate) the Warrant
Certificate with respect to ___________ Public Warrants, all in accordance
with
the Warrant Certificate and the Warrant Agreement referred to in the Warrant
Certificate. Certificates for the Public Warrants shall be issued in the name
of
_________________ and delivered to the following address:
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By:
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| Name: | |||
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Social
Security Number or Tax Identification Number:
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Date:
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(Signature
must conform in all respects to name of Holder as specified on the face of
the
Warrant Certificate)
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Address
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Social
Security Number or
Tax
Identification Number
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FORM
OF ASSIGNMENT
(To
be
exercised by the registered holder if such Holder desires to transfer the
Warrant Certificate)
FOR
VALUE
RECEIVED ________________________________________________ hereby sells, assigns
and transfers unto:
Print
Name of Transferee
Address
City
State Zip Code
this
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ____________________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
| Dated: | Signature: | ||||
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(Signature must conform in all respects to name of Holder as specified on the face of the Warrant Certificate) | ||||
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Social
Security Number or Other Identifying Number of Assignee
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