WARRANT AGREEMENT
Exhibit
4.3
THIS
WARRANT AGREEMENT (the
“Agreement”) is dated February 13, 2008, between Opexa Therapeutics, Inc., a
Delaware corporation (the “Company”) and Continental Stock Transfer &
Trust Company, acting as warrant agent (the “Warrant Agent”).
WHEREAS,
the Company proposes
to issue warrants (collectively with any Additional Warrants, the “Series E
Warrants”) to acquire up to 4,375,000 shares, subject to adjustment as provided
herein, of common stock, $ .50 par value (“Common Stock”), of the Company
(collectively, the “Warrant Shares”);
WHEREAS,
each Series E
Warrant shall represent the right to purchase from the Company, at an initial
price of $2.00 per share (the “Exercise Price”), the number of shares
specified on the certificates evidencing the Series E Warrants (the
“Warrant Certificates”); and
WHEREAS,
Continental Stock
Transfer & Trust Company is willing to serve as the Warrant Agent in
connection with the issuance of Warrant Certificates and the other matters
as
provided herein.
NOW,
THEREFORE, in
consideration of the foregoing and for the purpose of defining the terms
and
provisions of the Series E Warrants and the respective rights and
obligations thereunder of the Company, the Warrant Agent and the record holders
from time to time of the Series E Warrants (the “Holders”), the parties
hereby agree as follows:
1.
Definitions. For
the purposes hereof, the following terms shall have the following
meanings:
“Business
Day” means any day except Saturday, Sunday and any day which shall be a federal
legal holiday in the United States or a day on which banking institutions
in The
City of New York are authorized or required by law or other government action
to
close.
“Date
of
Exercise” means the date on which the Holder shall have delivered to the Company
(i) a Warrant Certificate, (ii) the Form of Election to Purchase
attached thereto (with the Warrant Shares Exercise Log attached to it),
appropriately completed and duly signed, and (iii) in the case of a Cash
Exercise, payment of the Exercise Price in accordance with Section 9 for
the
number of Warrant Shares so indicated by the Holder to be
purchased.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated
thereunder.
“Expiration
Date” means the date five years after the Initial Issuance Date.
“Initial
Issuance Date” means February 19, 2008.
“Market
Price” of a share of Common Stock on any date shall mean, (i) if the shares
of Common Stock are traded on the Nasdaq Global Market or Nasdaq Capital
Market,
the last bid price reported on that date; (ii) if the shares of Common
Stock are no longer quoted on Nasdaq and are listed on any other national
securities exchange, the last sale price of the Common Stock reported by
such
exchange on that date; (iii) if the shares of Common Stock are not quoted
on a
any such market or listed on any such exchange and the shares of Common Stock
are traded in the over-the-counter market, the last price reported on such
day
by the OTC Bulletin Board; (iv) if the shares of Common Stock are not
quoted on a 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, in
good faith, by the Board of Directors of the Company.
“Person”
means a corporation, association, partnership, limited liability corporation,
organization, business, individual, government or political subdivision thereof
or governmental agency.
“Trading
Day” means (i) a day on which the shares of Common Stock are traded on the
Nasdaq Global Market, Nasdaq Capital Market, New York Stock Exchange or American
Stock Exchange on which the shares of Common Stock are then listed or quoted,
or
(ii) if the shares of Common Stock are not listed on a any such exchange or
market, a day on which the shares of Common Stock are traded in the
over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if
the shares of Common Stock are not quoted on the OTC Bulletin Board, a day
on
which the shares of Common Stock are quoted 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); provided,
that in the event that the shares of Common Stock are not listed or quoted
as
set forth in clause (i), (ii) or (iii) hereof, then Trading Day shall mean
a Business Day.
2.
Form of Warrant
Certificates.
(a)
Form. The
Warrant Certificates shall be issued in registered form only as definitive
Warrant Certificates and shall be substantially in the form attached hereto
as
Exhibit A, shall be dated the date of issuance thereof (whether upon
initial issuance, register of transfer, exchange or replacement) and shall
bear
such legends and endorsements typed, stamped, printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the
provisions of this Agreement. Warrant Certificates evidencing Series E Warrants
to purchase the number of shares of Common Stock specified on each Warrant
Certificate shall be signed by, or bear the facsimile signature of, the Chairman
of the Board, Chief Executive Officer, President, any Vice President, Treasurer
or Secretary of the Company. In the event the person whose facsimile signature
has been placed upon any Warrant Certificate shall have ceased to serve in
the
capacity in which such person signed the Warrant Certificate before such
Warrant
Certificate is issued, it may be issued with the same effect as if he or
she had
not ceased to be such at the date of issuance.
(b)
Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant Certificate shall be
invalid
and of no effect and may not be exercised by the holder thereof. Such signature
by the Warrant Agent upon any Warrant Certificate executed by the Company
shall
be conclusive evidence that such Warrant Certificate has been duly issued
under
the terms of this Agreement.
2
(c)
Warrant
Register. The Warrant Agent shall maintain books (the “Warrant
Register”), for the registration of original issuance and the registration of
transfer of Warrant Certificates. Upon the initial issuance of the Warrant
Certificates, the Warrant Agent shall issue and register the Warrant
Certificates in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions delivered to
the
Warrant Agent by the Company. The Company and the Warrant Agent may deem
and
treat the registered Holder of each Warrant Certificate as the absolute owner
of
the Series E Warrants represented thereby for the purpose of any exercise
thereof or any distribution to the Holder, and for all other purposes, absent
actual notice to the contrary.
(d)
Registration of
Transfers. The Warrant Agent shall register the transfer of
any portion of a Warrant Certificate in the Warrant Register, upon surrender
of
the Warrant Certificate, with the Form of Assignment attached thereto duly
completed and signed, to the Company at its address specified herein. Upon
any
such registration or transfer, a new Warrant Certificate substantially in
the
form attached hereto as Exhibit A (any such new Warrant Certificate, a “New
Warrant Certificate”), evidencing the portion of the Warrant Certificate so
transferred shall be issued to the transferee and a New Warrant Certificate
evidencing the remaining portion of the Warrant Certificate not so transferred,
if any, shall be issued to the transferring Holder. The delivery of the New
Warrant Certificate by the Company to the transferee thereof shall be deemed
to
constitute acceptance by such transferee of all of the rights and obligations
of
a holder of a Warrant Certificate.
3.
Term of Series E
Warrants. Subject to the terms of Section 4, Series E
Warrants shall be exercisable by the registered Holder at any time and from
time
to time on or after the Initial Issuance Date to and including the Expiration
Date. At 5:00 p.m., Houston time on the Expiration Date, any portion of a
Series E Warrant not exercised prior thereto shall be and become void and
of no value.
4.
Exercise of
Series E Warrants and Delivery of Warrant Shares.
(a)
If an effective registration statement is then available for the issuance
of the
Warrant Shares and the exercise is permitted in the state of the residence
of
the registered Holder, a registered Holder may only exercise the Series E
Warrants through a cash exercise (a “Cash Exercise”). If an effective
registration statement is not then available for the issuance of the Warrant
Shares under the Federal securities laws or the state “blue sky” laws of the
state of the residence of the registered Holder, then a registered Holder
may
exercise the Series E Warrants through either (i) through a cashless
exercise (a “Cashless Exercise”) pursuant to Section 4(b) below or
(ii) through a Cash Exercise after making customary representations
requested by the Company regarding investment intent and accredited status
and
agreeing to customary transfer restrictions requested by the Company to ensure
compliance by the Company with applicable securities laws.
3
(b)
The Holder shall effect a Cashless Exercise by surrendering Warrant Certificates
to the Warrant Agent and noting on the Form of Election to Purchase that
the
Holder wishes to effect a Cashless Exercise, upon which the Company shall
issue,
or cause to be issued, to the Holder the number of Warrant Shares determined
as
follows:
|
X
|
=
|
Y
x
(A-B)/A
|
|
where:
|
||
|
X
|
=
|
the
number of Warrant Shares to be issued to the Holder;
|
|
Y
|
=
|
the
number of Warrant Shares with respect to which the Warrant Certificates
are being exercised;
|
|
A
|
=
|
the
Market Price as of the Date of Exercise; and
|
|
B
|
=
|
the
Exercise Price.
|
(c)
At such times, and upon such representations and agreements, if applicable,
upon
surrender of a Warrant Certificate and delivery of the Form of Election to
Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent
at
its address for notice set forth in Section 14, and, in the case of a Cash
Exercise, upon payment of the Exercise Price multiplied by the number of
Warrant
Shares that the Holder intends to purchase thereunder (which must be a whole
number) in accordance with Section 9 (the “Aggregate Exercise Price”), the
Company shall promptly issue and deliver to the Holder a certificate for
the
Warrant Shares issuable upon such exercise. Any Person so designated by the
Holder to receive Warrant Shares shall be deemed to have become holder of
record
of such Warrant Shares as of the Date of Exercise of the relevant Warrant
Certificate. For so long as there is a then effective registration statement
covering the issuance of the Warrant Shares or if a Holder effects a Cashless
Exercise, the Warrant Shares shall be issued free of all restrictive legends,
and the Company shall, upon request of the Holder, if available, use
commercially reasonable efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions. If there is not a then
effective registration statement covering the issuance of the Warrant Shares
and
a Holder effects a Cash Exercise, the Warrant Shares shall be issued in
certificated form and include customary legends regarding transfer restrictions
deemed appropriate by the Company. If fewer than all Warrant Shares issuable
upon exercise of the relevant Warrant Certificate are purchased on such Date
of
Exercise, then the Company will execute and deliver to the Holder or its
assigns
a New Warrant Certificate (dated the date thereof) evidencing the unexercised
portion of the relevant Warrant Certificate.
5.
Charges, Taxes
and
Expenses. Issuance and delivery of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer
tax,
or transfer agent fee in respect of the issuance of such certificates, all
of
which taxes shall be paid by the Company; provided, however, that the Company
shall not be obligated to pay any tax which may be payable in respect of
any
transfer involved in the registration of any certificates for Warrant Shares
or
Series E Warrants in a name other than that of the Holder. The Holder shall
be responsible for all other tax liabilities that may arise as a result of
holding or transferring any Warrant Certificate or receiving Warrant Shares
upon
exercise thereof.
4
6.
Replacement of
Warrant
Certificate. If any Warrant Certificate is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation thereof, or in lieu of and
substitution for such Warrant Certificate, a New Warrant Certificate, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity, if requested.
Applicants for a New Warrant Certificate under such circumstances shall also
comply with such other reasonable regulations and procedures and pay such
other
reasonable third-party costs as the Company may prescribe.
7.
Reservation of
Warrant
Shares. The Company covenants that it will at all times
reserve and keep available out of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of all outstanding Series E Warrants as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of all outstanding Series E Warrants (taking into account
the adjustments and restrictions of Section 8). The Company covenants that
all Warrant Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the terms hereof,
be
duly and validly authorized and issued, and be fully paid and
nonassessable.
8.
Certain
Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of each Series E Warrant then outstanding are
subject to adjustment from time to time as set forth in this
Section 8.
(a)
Stock Dividends and
Splits. If the Company, (i) pays a stock dividend on its
Common Stock, (ii) subdivides outstanding shares of Common Stock into a
greater number of shares, or (iii) combines outstanding shares of Common
Stock into a lesser number of shares, then in each such case the Exercise
Price
shall be multiplied by a fraction of which the numerator shall be the number
of
shares of Common Stock outstanding immediately before such event and of which
the denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to clause (i) of
this paragraph shall become effective immediately after the record date for
the
determination of shareholders entitled to receive such dividend, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
(b)
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 Common Stock are permitted
to
tender or exchange their shares for other securities, cash or property, or
(iv) the Company effects any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (in any
such
case, an “Extraordinary Transaction”), then each Holder’s Series E Warrants will
become the right thereafter to receive, upon exercise of his or her Series
E
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 Warrant Shares then
issuable upon exercise in full of the relevant Series E Warrant (the “Alternate
Consideration”) in lieu of Common Stock. The aggregate Exercise Price for each
Series E 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
Common
Stock 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 Series E Warrant following such Extraordinary
Transaction. In addition, at the request of each Holder, upon surrender of
such
Holder’s Series E 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 Series E Warrant (or any such replacement security)
will
be similarly adjusted upon any subsequent transaction analogous to a
Extraordinary Transaction.
5
(c)
Number of Warrant
Shares. Simultaneously with any adjustment to the Exercise
Price pursuant to paragraph (a) of this Section, the number of Warrant
Shares that may be purchased upon exercise of each Series E Warrant shall
be increased or decreased proportionately, as the case may be, so that after
such adjustment the aggregate Exercise Price payable hereunder for the adjusted
number of Warrant Shares shall be the same as the aggregate Exercise Price
in
effect immediately prior to such adjustment.
(d)
Calculations. All
calculations under this Section 8 shall be made to the nearest cent or the
nearest 1/100th of a share, as applicable.
(e)
Notice of
Adjustments. Upon the occurrence of each adjustment pursuant
to this Section 8, the Company at its expense will promptly calculate such
adjustment in accordance with the terms of this Agreement and prepare a
certificate setting forth such adjustment, including a statement of the adjusted
Exercise Price and adjusted number of Warrant Shares or type of Alternate
Consideration issuable upon exercise of each Series E Warrant (as
applicable), describing the transactions giving rise to such adjustments
and
showing in detail the facts upon which such adjustment is based. The Company
will promptly deliver to each Holder who makes a request in writing and to
the
Warrant Agent, a copy of each such certificate.
(f)
Notice of Corporate
Events. If the Company (i) declares a dividend or any
other distribution of cash, securities or other property in respect of its
Common Stock (other than a dividend payable solely in shares of Common Stock)
or
(ii) authorizes the voluntary dissolution, liquidation or winding up of the
affairs of the Company, then the Company shall deliver to each Holder a notice
describing the material terms and conditions of such dividend, distribution
or
transaction. Notwithstanding anything to the contrary in this Section 8(f),
the failure to deliver any notice under this Section 8(f) or any defect
therein shall not affect the validity of the corporate action required to
be
described in such notice. Until the exercise of its, his or her Series E
Warrant or any portion of such Series E Warrant, a Holder shall not have
nor exercise any rights by virtue of ownership of a Series E Warrant as a
shareholder of the Company (including without limitation the right to
notification of shareholder meetings or the right to receive any notice or
other
communication concerning the business and affairs of the Company other than
as
provided in this Section 8(f)).
6
9.
Payment of Exercise
Price. The Holder shall pay the Aggregate Exercise Price by
paying, in lawful money of the United States, in cash, certified check or
bank
draft payable to the order of the Company (or as otherwise agreed to by the
Company) delivered to the Warrant Agent together with the Warrant Certificate
and Form of Election to Purchase.
10.
Company Call
Right. Notwithstanding any other provision contained in this
Warrant Agreement to the contrary, in the event that the average closing
bid
prices per share of Common Stock, as quoted on the Nasdaq Global Market (or
such
other exchange or stock market on which the Common Stock may then be listed
or
quoted) over a period of 20 consecutive Trading Days, equals or exceeds
200% of the Exercise Price (appropriately adjusted for any stock split, reverse
stock split, stock dividend or other reclassification or combination of the
Common Stock occurring after the date hereof), the Company, upon thirty
(30) calendar days prior written notice (the “Notice Period”) given to the
Holder within 10 Business Days of the end of such 20 consecutive Trading
Day period, may call the Series E Warrants, in whole and not in part, at a
redemption price equal to $0.01 per share of Common Stock then purchasable
pursuant to the Series E Warrants called for redemption. The Holder shall
have the right to exercise the Series E Warrants prior to the end of the
Notice Period. As of the last day of the Notice Period, any Series E
Warrants timely and validly called for redemption by the Company shall terminate
and permanently cease to be exercisable and the Holders shall then be entitled
only to receive the redemption price.
Notwithstanding
the ability of the
Company to call the Series E Warrants for redemption, the Company agrees
that the Series E Warrants underlying any warrant agreement issued to the
underwriters and their designees and transferees in connection with the public
offering in which the Series E Warrants were issued will not be subject to
the call right and redemption set forth herein.
11.
Holder not Deemed
a
Stockholder. Except as otherwise specifically provided herein,
the Holder, solely in such Person’s capacity as a Holder, shall not be entitled
to vote or receive dividends or be deemed the holder of share capital of
the
Company for any purpose, nor shall anything contained in the Series E
Warrants be construed to confer upon the Holder, solely in such Person’s
capacity as a Holder, any of the rights of a stockholder of the Company or
any
right to vote, give or withhold consent to any corporate action (whether
any
reorganization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings, receive dividends
or subscription rights, or otherwise, prior to the issuance to the Holder
of the
Warrant Shares to which Person is then entitled to receive upon the due exercise
of the Series E Warrants.
7
12.
No Fractional
Shares. No fractional shares will be issued in connection with
any exercise of a Series E Warrant. In lieu of any fractional shares which
would otherwise be issuable, the Company shall pay cash equal to the product
of
such fraction multiplied by the Market Price on the Date of
Exercise.
13.
Exchange Act
Filings. The Holder agrees and acknowledges that it shall have
sole responsibility for making any applicable filings with the U.S. Securities
and Exchange Commission pursuant to Sections 13 and 16 of the Exchange Act
as a result of its acquisition of any Series E Warrant and the Warrant
Shares and any future retention or transfer thereof.
14.
Notices. Any
and all notices or other communications or deliveries hereunder (including
without limitation any Exercise Notice) shall be in writing and shall be
deemed
given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
number
specified in this Section prior to 5:00 p.m. (Houston time) on a Trading
Day, (ii) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than
5:00 p.m. (Houston time) on any Trading Day, (iii) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. The addresses for such communications shall
be:
if
to the
Company:
0000
Xxxxx Xxxxxxxx Xxxxx
Xxxxx
Xxx
Xxxxxxxxx, Xxxxx 00000
Attn:
Chief Financial
Officer
Facsimile
No.: (000)
000-0000
if
to the
Warrant Agent:
Continental
Stock Transfer & Trust
Company
00
Xxxxxxx Xxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Office of General
Counsel
if
to the
Holder:
to
the
address or facsimile number appearing on the Warrant Register or such other
address or facsimile number as the Holder may provide to the Company in
accordance with this Section 14.
8
15.
Warrant
Agent.
(a)
The Company and the Warrant Agent hereby agree that the Warrant Agent will
serve
as an agent of the Company as set forth in this Agreement.
(b)
The Warrant Agent shall not by any act hereunder be deemed to make any
representation as to validity or authorization of the Series E Warrants or
the Warrant Certificates (except as to its countersignature thereon) or of
any
securities or other property delivered upon exercise of any Series E
Warrant, or as to the number or kind or amount of securities or other property
deliverable upon exercise of any Series E Warrant or the correctness of the
representations of the Company made in such certificates that the Warrant
Agent
receives.
(c)
The Warrant Agent shall not have any duty to calculate or determine any required
adjustments with respect to the Exercise Price or the kind and amount of
securities or other property receivable by Holders upon the exercise of
Series E Warrants, nor to determine the accuracy or correctness of any such
calculation.
(d)
The Warrant Agent shall not (i) be liable for any recital or statement of
fact contained herein or in the Warrant Certificates or for any action taken,
suffered or omitted by it in good faith in the belief that any Warrant
Certificate or any other document or any signature is genuine or properly
authorized, (ii) be responsible for any failure by the Company to comply
with any of its obligations contained in this Agreement or in the Warrant
Certificates, (iii) be liable for any act or omission in connection with
this Agreement except for its own gross negligence or willful misconduct
or
(iv) have any responsibility to determine whether a transfer of a
Series E Warrant complies with applicable securities laws.
(e)
The Warrant Agent is hereby authorized to accept instructions with respect
to
the performance of its duties hereunder from the Chief Executive Officer,
the
President, any Vice President, the Treasurer, or the Secretary or any Assistant
Secretary of the Company and to apply to any such officer for written
instructions (which will then be promptly given) and the Warrant Agent shall
not
be liable for any action taken or suffered to be taken by it in good faith
in
accordance with the instructions of any such officer, except for its own
gross
negligence or willful misconduct, but in its discretion the Warrant Agent
may in
lieu thereof accept other evidence of such or may require such further or
additional evidence as it may deem reasonable.
(f)
The Warrant Agent may exercise any of the rights and powers hereby vested
in it
or perform any duty hereunder either itself or by or through its attorneys,
agents or employees, provided reasonable care has been exercised in the
selection and in the continued employment of any persons. The Warrant Agent
shall not be under any obligation or duty to institute, appear in or defend
any
action, suit or legal proceeding in respect hereof, unless first indemnified
to
its satisfaction. The Warrant Agent shall promptly notify the Company in
writing
of any claim made or action, suit or proceeding instituted against or arising
out of or in connection with this Agreement.
9
(g)
The Company will take such action as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
(h)
The Warrant Agent shall act solely as agent of the Company hereunder. The
Warrant Agent shall only be liable for the failure to perform such duties
as are
specifically set forth herein.
(i)
The Warrant Agent may consult with legal counsel satisfactory to it (who
may be
legal counsel for the Company), and the Warrant Agent shall incur no liability
or responsibility to the Company or to any Holder for any action taken, suffered
or omitted by it in good faith in accordance with the opinion or advice of
such
counsel.
(j)
The Company agrees to pay to the Warrant Agent compensation for all services
rendered by the Warrant Agent hereunder as the Company and the Warrant Agent
may
agree from time to time, and to reimburse the Warrant Agent for reasonable
expenses incurred in connection with the execution and administration of
this
Agreement (including the reasonable compensation and expenses of its counsel),
and further agrees to indemnify the Warrant Agent for, and hold it harmless
against, any loss, liability or expense incurred without gross negligence,
bad
faith or willful misconduct on its part, arising out of or in connection
with
the acceptance and administration of this Agreement.
(k)
The Warrant Agent, and any shareholder, director, officer or employee of
the
Warrant Agent, may buy, sell or deal in any of the Series E Warrants or
other securities of the Company or its Affiliates or become pecuniarily
interested in transactions in which the Company or its Affiliates may be
interested, or contract with or lend money to the Company or its Affiliates
or
otherwise act as fully and freely as though it were not the Warrant Agent
under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting
in
any other capacity for the Company or for any other Person.
(l)
No resignation or removal of the Warrant Agent and no appointment of a successor
warrant agent shall become effective until the acceptance of appointment
by the
successor warrant agent as provided herein. The Warrant Agent may resign
its
duties and be discharged from all further duties and liability hereunder
(except
liability arising as a result of the Warrant Agent’s own gross negligence or
willful misconduct) after giving written notice to the Company. The Company
may
remove the Warrant Agent upon written notice, and the Warrant Agent shall
thereupon in like manner be discharged from all further duties and liabilities
hereunder, except as aforesaid. The Warrant Agent shall, at the Company’s
expense, cause to be mailed (by first class mail, postage prepaid) to each
Holder of a Series E Warrant at such Holder’s last address as shown on the
register of the Company maintained by the Warrant Agent a copy of said notice
of
resignation or notice of removal, as the case may be. Upon such resignation
or
removal, the Company shall appoint in writing a new warrant agent. If the
Company fails to do so within a period of 30 days after it has been
notified in writing of such resignation by the resigning Warrant Agent or
after
such removal, then the resigning Warrant Agent or the Holder of any
Series E Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. After acceptance in writing of such
appointment by the new warrant agent, it shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named herein
as
the Warrant Agent. Not later than the effective date of any such appointment,
the Company shall give notice thereof to the resigning or removed Warrant
Agent.
Failure to give any notice provided for in this Section 15(l), however, or
any
defect therein, shall not affect the legality or validity of the resignation
of
the Warrant Agent or the appointment of a new warrant agent, as the case
may
be.
10
(m)
Any corporation into which the Warrant Agent or any new warrant agent may
be
merged or any corporation resulting from any consolidation to which the Warrant
Agent or any new warrant agent shall be a party or any corporation to which
the
Warrant Agent transfers substantially all of its corporate trust business
shall
be a successor Warrant Agent under this Agreement without any further act,
provided that such corporation (i) would be eligible for appointment as
successor to the Warrant Agent under the provisions of Section 15(l) or
(ii) is a wholly owned subsidiary of the Warrant Agent. Any such successor
Warrant Agent shall promptly cause notice of its succession as Warrant Agent
to
be mailed (by first class mail, postage prepaid) to each Holder in accordance
with Section 14.
16.
Miscellaneous.
(a)
Successors and
Assigns. This Agreement shall be binding on and inure to the
benefit of the Company, the Warrant Agent and the Holders, and their respective
successors and assigns. Subject to the preceding sentence, nothing in this
Agreement shall be construed to give to any Person other than the Company,
the
Warrant Agent and the Holders any legal or equitable right, remedy or cause
of
action under this Agreement.
(b)
Amendments and
Waivers. The Company may, without the consent of the Holders,
by supplemental agreement or otherwise, (i) make any changes or corrections
in this Agreement that are required to cure any ambiguity or to correct or
supplement any provision herein which may be defective or inconsistent with
any
other provision herein or (ii) add to the covenants and agreements of the
Company for the benefit of the Holders, or surrender any rights or power
reserved to or conferred upon the Company in this Agreement; provided that,
in
the case of (i) or (ii), such changes or corrections shall not adversely
affect
the interests of Holders of then outstanding Series E Warrants in any material
respect. The Company may, with the consent, in writing or at a meeting, of
the
Holders of outstanding Series E Warrants exercisable for two-thirds of the
Warrant Shares, amend in any way, by supplemental agreement or otherwise,
this
Agreement and/or all of the outstanding Warrant Certificates; provided, however,
that no such amendment shall adversely affect any Series E Warrant
differently than it affects all other Series E Warrants, unless the Holder
thereof consents thereto. The Warrant Agent shall at the request of the Company,
and without need of independent inquiry as to whether such supplemental
agreement is permitted by the terms of this Section 16(b), join with the
Company in the execution and delivery of any such supplemental agreements,
but
shall not be required to join in such execution and delivery for such
supplemental agreement to become effective.
11
(c)
Choice of Law,
etc. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State
of New
York, without regard to the principles of conflicts of law thereof. Each
party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out
of
or relating to this Agreement or the transactions contemplated hereby. If
either
party shall commence an action or proceeding to enforce any provisions of
this
Agreement, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of
such
action or proceeding.
(d)
Interpretation. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(e)
Severability. In
case any one or more of the provisions of this Agreement shall be invalid
or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon
a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
(f)
Additional Series E
Warrants. The Company may from time to time issue additional warrants
(the “Additional Warrants”) under this Warrant Agreement, without requiring the
consent of any Holder, with the same terms as the warrants initially issued
hereunder.
[The
remainder of this page has been left intentionally blank.]
12
IN
WITNESS WHEREOF, the
parties has caused this Agreement to be duly executed by its authorized officer
as of the date first indicated above.
|
|
By:
|
||
| Name: Xxxxx X. XxXxxxxxxx | |||
| Title: President | |||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |||
|
|
By:
|
||
| Name: Xxxx X. Xxxxx, Xx. | |||
| Title: Vice President | |||
Exhibit
A
EXERCISABLE
ON OR AFTER FEBRUARY 19, 2008
AND
ON OR
BEFORE FEBRUARY 19, 2013
|
No.
_________
|
Series E
Warrant to Purchase ________
Shares
|
Series E
Warrant Certificate
WARRANTS
TO ACQUIRE COMMON STOCK OF OPEXA THERAPEUTICS, INC.
This
Series E Warrant Certificate certifies that,
_________________________________, or registered assigns, is the registered
holder of a Series E Warrant (the “Warrant”) to acquire from Opexa
Therapeutics, Inc., a Delaware corporation (the “Company”), the number of fully
paid and non-assessable shares of Common Stock, $.50 par value, of the Company
(the “Common Stock”) specified above for consideration equal to $ 2.00 (the
“Exercise Price”) per share of Common Stock. The Series E Warrant evidenced
by this Series E Warrant Certificate shall not be exercisable after and
shall terminate and become void as of 5:00 P.M., Houston time, on February
19,
2013 (the “Expiration Date”).
The
Series E Warrant evidenced by this Series E Warrant Certificate is
part of a duly authorized issue of warrants expiring on the Expiration Date
entitling the Holder hereof to receive shares of Common Stock, and is issued
or
to be issued pursuant to a Warrant Agreement dated February 19, 2008 (the
“Warrant Agreement”), duly executed and delivered by the Company to Continental
Stock Transfer & Trust Company, as warrant agent (the “Warrant Agent”,
which term includes any successor Warrant Agent under the Warrant Agreement),
which Warrant Agreement is hereby incorporated by reference in and made a
part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the Holders (“Holders” meaning, from time to
time, the registered holders of the warrant issued thereunder). To the extent
any provisions of this Series E Warrant Certificate conflicts with any
provision of the Warrant Agreement, the provisions of the Warrant Agreement
shall apply. A copy of the Warrant Agreement may be obtained by the Holder
hereof upon written request to the Company at 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxx Xxxxxxxxx, Xxxxx 00000 Attention: Investor Relations. Capitalized
terms not defined herein have the meanings ascribed thereto in the Warrant
Agreement.
This
Series E Warrant may be exercised, in whole or in part, at any time on or
after February 19, 2008 and on or before the Expiration Date, subject to
the
terms of the Warrant Agreement, by surrendering this Warrant Certificate,
with
the Form of Election to Purchase set forth hereon properly completed and
executed, together with payment of the Aggregate Exercise Price in accordance
with Section 9 of the Warrant Agreement in the case of a Cash Exercise.
Each exercise must be for a whole number of Warrant Shares. In the event
that
upon any exercise of the Series E Warrant evidenced hereby the number of
shares of Common Stock acquired shall be less than the total number of shares
of
Common Stock which may be purchased pursuant to this Series E Warrant,
there shall be issued to the Holder hereof or such Holder’s assignee a new
Series E Warrant Certificate evidencing the unexercised portion of this
Series E Warrant.
Exhibit
A -- Page 1
The
Warrant Agreement provides that upon the occurrence of certain events the
Exercise Price set forth on this Series E Warrant Certificate may, subject
to certain conditions, be adjusted, and that upon the occurrence of certain
events the number of shares of Common Stock and/or the type of securities
or
other property issuable upon the exercise of this Series E Warrant shall be
adjusted. No fractions of a share of Common Stock will be issued upon the
exercise of this Series E Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
The
Warrant Agreement provides in certain circumstances for a call right on the
part
of the Company, pursuant to which this Series E Warrant may be
terminated.
Series E
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the
registered Holder thereof in person or by such Holder’s legal representative or
attorney duly appointed and authorized in writing, may be exchanged, in the
manner and subject to the limitations provided in the Warrant Agreement,
but
without payment of any service charge, for another Series E Warrant
Certificate or Series E Warrant Certificates of like tenor evidencing in
the aggregate the right to purchase a like number of Warrant
Shares.
Each
taker
and holder of this Series E Warrant Certificate, by taking or holding the
same, consents and agrees that the holder of this Series E Warrant
Certificate when duly endorsed in blank may be treated by the Company, the
Warrant Agent and all other persons dealing with this Series E Warrant
Certificate as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby or the person entitled
to the
transfer hereof on the register of the Company maintained by the Warrant
Agent,
any notice to the contrary notwithstanding, provided that until such transfer
on
such register, the Company and the Warrant Agent may treat the registered
Holder
hereof as the owner for all purposes.
This
Series E Warrant does not entitle any Holder to any of the rights of a
shareholder of the Company.
This
Series E Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This
Series E Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant
Agent.
[The
remainder of this page has been left intentionally blank.]
Exhibit
A -- Page 2
IN
WITNESS WHEREOF, the
undersigned have caused this Series E Warrant Certificate to be executed as
of the date set forth below.
| OPEXA THERAPEUTICS, INC. | |||
|
|
By:
|
||
| Name: Xxxxx X. XxXxxxxxxx | |||
| Title: President | |||
|
|
By:
|
||
| Name: Xxxxx Xxxxxxxx | |||
| Title: Chief Financial Officer | |||
| Dated: |
| Countersigned: | |||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Exhibit
A -- Page 3
FORM
OF
ELECTION TO PURCHASE
In
accordance with the Series E Warrant Certificate enclosed with this Form of
Election to Purchase, the undersigned hereby irrevocably elects to exercise
the
Series E Warrant with respect to Warrant Shares in accordance with the
terms of the Warrant Agreement.
1.
Form of Exercise
Price. The Holder intends that payment of the Exercise Price
shall be made as:
a
Cash Exercise;
a
Cashless Exercise; or
The
Holder
understands that any Cashless Exercise is subject to compliance with all
the
terms of the Warrant Agreement.
2.
Payment of Exercise
Price. If the Holder has elected a Cash Exercise with respect
to some or all of the Warrant Shares to be issued pursuant hereto, the Holder
shall send via wire transfer to the account of the Company the sum of $
______________ in immediately available funds, which sum represents the
Aggregate Exercise Price (as defined in the Warrant Agreement) for the number
of
shares of Common Stock to which this Form of Election to Purchase relates,
together with any applicable taxes payable by the undersigned pursuant to
the
Series E Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of
|
Name:
|
_________________________________
|
|
Address:
|
_______________________________
|
|
_______________________________
|
|
|
_______________________________
|
|
|
_______________________________
|
|
|
Social
Security or Tax I.D.
No.: ______________
|
|
Form
of Election to Purchase
WARRANT
SHARES EXERCISE LOG
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
Warrant
Shares Exercise Log
FORM
OF
ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers
unto the
right represented by the within Series E Warrant Certificate to purchase
________________ shares of Common Stock of Opexa Therapeutics, Inc. to which
the
within Series E Warrant Certificate relates and appoints
________________________________ attorney to transfer said right on the books
of
Opexa Therapeutics, Inc. with full power of substitution in the
premises.
Dated: __________________,
20_____
|
(Signature
must conform in all respects to name of holder as specified on
the front
page of the Series E Warrant Certificate)
|
|
|
Address
of Transferee:
|
|
|
In
the presence of:
|
|
Form
of
Assignment
