FORM OF UNDERWRITER’S WARRANT TO ACQUIRE WARRANTS AGREEMENT
Exhibit
4.5
FORM
OF
UNDERWRITER’S
WARRANT TO ACQUIRE WARRANTS AGREEMENT
Underwriter’s
Warrant To Acquire Warrants Agreement (the “Agreement”), dated as of _____ __ ,
200__, 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 ______ __, 200__ (the “Underwriting Agreement”) whereby the Company has
agreed to issue and sell to the Underwriters an aggregate of
[4,500,000]shares of common stock of the Company (the
“Firm Shares” or in the singular a “Firm Share”) and an aggregate of
[4,500,000] 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 ____ 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 [450,000] shares of Common Stock,
equal to ten percent (10%) of the Firm Shares sold in the Offering, at a price
per share of $______;
WHEREAS,
pursuant to Section ____ 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 [450,000]
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 $_____, 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
____ , 2007 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:
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1.Grant
and Period.
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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 __________ __, 200__ (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 _________, 200__ and expiring on __________,
20__ (the “Expiration Time”), [450,000] Public Warrants at an exercise price of
$.____ 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.
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2.Exercise
of Warrant.
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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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2
“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 _____ days 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.
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5.
Certain Events.
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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.
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.
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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.
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6.
Registration Rights.
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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 ______ 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
_____ 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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Xxxxxx
X. Xxxxxxx, Esq.
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Golenbock
Xxxxxxx Assor Xxxx & Xxxxxx LLP
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000) 000-0000
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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.
|
0000
Xxxxx Xxxxxxxx Xxxxx Xxxxx
|
|
|
Xxx
Xxxxxxxxx, Xxxxx 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
With
a copy to:
|
|
Xxxxxx
& Xxxxxx, LLP
|
|
|
0000
Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Tel: (000)
000-0000
|
|
|
Fax: (000)
000-0000
|
|
|
Attention: Xxxxxxx
X. Xxxxxx
|
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.
EXHIBIT
A
FORM
OF SUBSCRIPTION (CASH EXERCISE)
(To
be
signed only upon exercise of Warrants)
|
TO:
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxx Xxxxx
|
|
|
Xxx
Xxxxxxxxx, Xxxxx 00000
|
|
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:
|
By:
|
|
|
Name:
|
|
|
Social
Security Number or Tax Identification Number:
|
|
|
Date:
|
|
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant Certificate)
|
Address
|
|
|
Social
Security Number or
Tax
Identification Number
|
|
EXHIBIT
B
FORM
OF SUBSCRIPTION (CASHLESS EXERCISE)
|
TO:
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxx Xxxxx
|
|
|
Xxx
Xxxxxxxxx, Xxxxx 00000
|
|
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:
|
By:
|
|
|
Name:
|
|
|
Social
Security Number or Tax Identification Number:
|
|
|
Date:
|
|
(Signature
must conform in all respects to name of Holder as specified on the face of
the
Warrant Certificate)
|
Address
|
|
|
Social
Security Number or
Tax
Identification Number
|
|
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:
|
|
|
(Signature
must conform in all respects to name of Holder as specified on
the face of
the Warrant Certificate)
|
||
|
Social
Security Number or Other Identifying Number of Assignee
|
||
