UNDERWRITER’S WARRANT AGREEMENT
Exhibit
4.4
FORM
OF
Underwriter’s
Warrant 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 certain other persons (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 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
up to 350,000 shares of Common Stock (the “Warrants”) 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 warrants identical to the Firm
Warrants sold in the Offering; and
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 the FINRA
Conduct Rules including the Holder.
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
Recitals. The
above recitals are true and correct. The Offering has been registered under
a
registration statement on Form SB-2 (File No. 333-147167) 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”), up to 350,000 shares of Common Stock of the
Company at an initial exercise price (subject to adjustment as provided in
Section 5 hereof) of $2.40 per share (the “Exercise Price” or “Purchase Price”),
subject to the terms and conditions of this Agreement.
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
thereto, 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 the
amount that is the result of the Exercise Price multiplied by the number of
shares of Common Stock that are the subject of each Holder’s Warrant (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 the amount that
is the result of the number of shares of Common Stock 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 effect an exercise of the Warrants
and 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 shares of Common Stock 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 shares of Common Stock to be issued to the
Holder;
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Y
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=
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the
number of shares of Common Stock with respect to which this 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 share of Common Stock on any date shall mean, (i) if the shares of
Common Stock 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 shares of Common Stock are no longer quoted on a Nasdaq market 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 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 and the
Holders. “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.
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2.4
Restrictions on
Exercise. If for any reason a registration statement for the
issuance of the shares 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 certificates for shares of Common Stock 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 Warrants. 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
NASD 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.
Adjustments to
Exercise Price and Number of Securities.
5.1
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.
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 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 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
Warrant Shares then issuable upon exercise in full of the relevant Warrant
(the
“Alternate Consideration”) in lieu of Common Stock. 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 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 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
Adjustment in Number
of Securities. Upon each adjustment of the Exercise Price
pursuant to the provisions of this Section 5, the number of securities issuable
upon the exercise of each Warrant shall be adjusted to the nearest full amount
by multiplying a number equal to the Exercise Price in effect immediately prior
to such adjustment by the number of securities issuable upon exercise of the
Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
5.4
No Adjustment of
Exercise Price in Certain Cases. No adjustment of the Exercise
Price shall be made if the amount of said adjustment shall be less than $.01
per
Share; provided, however, that in such case any adjustment that would otherwise
be required then to be made shall be carried forward and shall be made at the
time of and together with the next subsequent adjustment which, together with
any adjustment so carried forward, shall amount to at least $.01 per
Share.
5.5
Notice of
Adjustment. In each case of an adjustment or readjustment of
the Exercise Price or the number of any securities issuable upon exercise of
the
Warrants, 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 shares of Common Stock or type of Alternate Consideration
issuable upon exercise of each 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, a copy of each such
certificate.
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
Common Stock 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 Common Stock (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.
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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.
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.
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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 the Warrants or the Common Stock underlying this Warrant.
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 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
6,
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 6. 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 shares of Common Stock 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, at the Company’s option, by rounding any
fraction up to the nearest whole number of shares of Common Stock 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 Warrants, such number of shares of Common Stock or
other securities, properties or rights as shall be issuable upon the exercise
under this Warrant Certificate. The Company covenants and agrees that, upon
exercise of the Warrants, and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercise shall be duly
authorized, validly issued, fully paid, non-assessable 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 shares of Common Stock 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 Common Stock are then listed and/or quoted,
including Nasdaq and the American Stock Exchange.
9.
Notices to Warrant
Holder. Nothing contained in this Agreement shall be construed
as conferring upon the Holder of the Warrants 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.
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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:
|
|
Golenbock
Xxxxxxx Xxxxx Xxxx & Xxxxxx LLP
|
|
000
Xxxxxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attn:
Xxxxxx X. Xxxxxxx, Esq.
|
|
Fax:
(000) 000-0000
|
|
Tel:
(000) 000-0000
|
(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
|
|
Attn:
Chief Financial Officer
|
|
Fax:
(000) 000-0000
|
|
With
a copy to:
|
|
Xxxxxx
& Xxxxxx LLP
|
|
0000
Xxxxxx, Xxxxx 0000
|
|
Xxxxxxx,
Xxxxx 00000
|
|
Attn: Xxxxxxx
X. Xxxxxx
|
|
Tel: (000)
000-0000
|
|
Fax: (000)
000-0000
|
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.
9
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.
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. | |||
|
Date
|
By:
|
||
| Xxxxx X. XxXxxxxxxx | |||
| Chief Executive Officer | |||
| Holder | |||
|
Date
|
By:
|
||
| Name: | |||
| Title: | |||
10
EXHIBIT
A
FORM
OF SUBSCRIPTION (CASH EXERCISE)
(To
be
signed only upon exercise of Warrant)
|
TO:
|
|
|
0000
Xxxxx Xxxxxxxx Xxxx Xxxxx
|
|
|
Xxx
Xxxxxxxxx, Xxxxx 00000
|
|
|
Fax:
(000) 000-0000
|
The
undersigned holder of Warrant Certificate Number ________________ (the “Warrant
Certificate”), representing
Warrants (as defined in the Warrant Certificate) of Opexa Therapeutics, Inc.
(the “Company”), which Warrant Certificate is being delivered herewith, hereby
irrevocably elects to purchase ______________ Shares (as defined in the Warrant
Certificate), 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 Shares 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 Xxxx Xxxxx
|
||
|
Xxx
Xxxxxxxxx, Xxxxx 00000
|
||
|
Fax:
(000) 000-0000
|
The
undersigned holder of Warrant Certificate number _________________ (the “Warrant
Certificate”), representing ____________________ Warrants (as defined 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 Agreement”)) the Warrant Certificate with respect to __________________
Shares (as defined in the Warrant Certificate), all in accordance with the
Warrant Certificate and the Warrant Agreement. Certificates for the Shares
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
|
|
