a5571729ex4_5.htm


    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:

     

    
      	
               

            	
              1.Grant
                and Period.

            


    

     

    1.1           Recital.  The
      above recitals are true and correct. The Offering has been registered under
      a
      registration statement on Form SB-2 (File No. 333-147167) (“Registration
      Statement”) which was declared effective by the Securities and Exchange
      Commission (the “Commission”) on __________ __, 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.

     

    
      	
               

            	
              2.Exercise
                of Warrant.

            


    

     

    2.1           Full
      Exercise.  Except as provided in Section 2.3 below, the
      Holder shall effect an exercise of the Warrants by surrendering to the Company
      this Agreement, together with a Subscription in the form of Exhibit A attached
      hereto, duly executed by such Holder, at any time prior to the Expiration Time,
      at the Company’s principal office, accompanied by payment in cash or by
      certified or official bank check payable to the order of the Company in the
      amount of the aggregate purchase price (the “Aggregate Price”), subject to any
      adjustments provided for in this Agreement. The Aggregate Price shall be an
      amount that is the result of the Exercise Price multiplied by the number of
      Public Warrants that are the subject of each Holder’s Agreement (as adjusted as
      hereinafter provided).

     

    2.2           Partial
      Exercise.  The Warrants may also be exercised from time to time in
      part by surrendering this Agreement in the manner specified in Sections 2.1
      or
      2.3 hereof, except that the Purchase Price payable shall be an amount that
      is
      the result of the number of Public Warrants being purchased hereunder multiplied
      by the Exercise Price, subject to any adjustments provided for in this
      Agreement. Upon any such partial exercise, the Company, at its expense, will
      forthwith issue to the Holder a new Agreement of like tenor calling in the
      aggregate for the number of securities (as constituted as of the date hereof)
      for which this Agreement shall not have been exercised, issued in the name
      of
      the Holder or as such Holder (upon payment by such Holder of any applicable
      transfer taxes) may direct.

     

    2.3           Cashless
      Exercise.  The Holder may pay the Exercise Price through a
      cashless exercise (a “Cashless Exercise”), as hereinafter provided, in its sole
      discretion. The Holder may effect a Cashless Exercise of the Warrants by
      surrendering to the Company this Agreement, together with a Subscription in
      the
      form of Exhibit B attached hereto, duly executed by such Holder, at any time
      prior to the Expiration Time, at the Company’s principal office, upon which the
      Company shall issue to the Holder the number of Public Warrants determined
      as
      follows:

     

    
      	 	 	 	 
	 	
              X

            	
              =

            	
              Y
                x
                (A-B)/A

            
	 	 	 	 
	
              where

            	
              X

            	
              =

            	
              the
                number of Public Warrants to be issued to the Holder;

            
	 	 	 	 
	 	
              Y

            	
              =

            	
              the
                number of Public Warrants with respect to which the Warrant is being
                exercised;

            
	 	 	 	 
	 	
              A

            	
              =

            	
              the
                Market Price as of the Date of Exercise; and

            
	 	 	 	 
	 	
              B

            	
              =

            	
              the
                Exercise Price.

            
	 	 	 	 


    

     

    
      
        
        

      

      
        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. 

     

    
      	
               

            	
              5.
                Certain Events. 

            


    

     

    5.1           Amendments.  If
      the Company amends the class of Public Warrants or the number of Public Warrants
      and exercise price thereof are adjusted, then this Warrant will become
      exercisable for such Public Warrants, as amended and/or adjusted.

     

    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.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

    

    5.3           Notice
      of Adjustment.  In each case of an adjustment or readjustment of
      the type of securities issuable upon exercise of the Warrants pursuant to
      Section 6.2, the Company shall promptly give written notice of such adjustment
      or readjustment.

     

    
      	
               

            	
              6.
                Registration Rights.

            


    

     

    6.1           Demand
      Registration.

     

    6.1.1           Grant
      of Right.  The Company, upon written demand (“Initial Demand
      Notice”) of the Holder(s) of at least 51% of the Warrants and/or the underlying
      Public Warrants and/or the underlying securities (“Majority Holders”), agrees to
      register on one occasion, all or any portion of the Warrants requested by the
      Majority Holders in the Initial Demand Notice and all of the securities
      underlying such Warrants, including the Public Warrants and  Common
      Stock, the Warrants, the Public Warrants and the Common Stock underlying the
      Public Warrants (collectively, the “Registrable Securities”).  On such
      occasion, the Company will file a registration statement or a post-effective
      amendment to the Registration Statement covering the Registrable Securities
      within thirty days after receipt of the Initial Demand Notice and use its best
      efforts to have such registration statement or post-effective amendment declared
      effective as soon as possible thereafter.  The demand for registration
      may be made at any time during a period of five years beginning on the Effective
      Date.  The Company covenants and agrees to give written notice of its
      receipt of any Initial Demand Notice by any Holder(s) to all other registered
      Holders of the Warrants and/or the Registrable Securities within ten days from
      the date of the receipt of any such Initial Demand Notice.

     

    6.1.2           Terms.  The
      Company shall bear all fees and expenses attendant to registering the
      Registrable Securities, including the expenses of any one legal counsel selected
      by the Holders to represent them in connection with the sale of the Registrable
      Securities, but the Holders shall pay any and all underwriting
      commissions.  The Company agrees to use its reasonable best efforts to
      qualify or register the Registrable Securities in such states as are reasonably
      requested by the Majority Holder(s); provided, however, that in no event shall
      the Company be required to register the Registrable Securities in a state in
      which such registration would cause (i) the Company to be obligated to qualify
      to do business in such state, or would subject the Company to taxation as a
      foreign corporation doing business in such jurisdiction or (ii) the principal
      stockholders of the Company to be obligated to escrow their shares of capital
      stock of the Company.  The Company shall cause any registration
      statement or post-effective amendment filed pursuant to the demand rights
      granted under Section 6.1.1 to remain effective for a period of nine consecutive
      months from the effective date of such registration statement or post-effective
      amendment.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

       

    

    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.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    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.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

       

    

    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.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    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.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

       

    

    
      
        	 	
                With
                  a copy to:

              
	 	 
	 	
                Andrew
                  D. Hudders, Esq.

              
	 	
                Golenbock
                  Eiseman Assor Bell & Peskoe LLP

              
	 	
                437
                  Madison Avenue

              
	 	
                New
                  York, New York  10022

              
	 	
                Fax:
                  (212) 754-0330

              
	 	 


      

       

      (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.

       

      
        	 	
                Opexa
                  Therapeutics, Inc.

              
	 	
                2635
                  North Crescent Ridge Drive

              
	 	
                The
                  Woodlands, Texas  77381

              
	 	
                Fax:
                  (281) 872-8585

              
	 	 
	 	
                With
                  a copy to:

              


      

       

      
        
          	 	
                  Vinson
                    & Elkins, LLP

                
	 	
                  1001
                    Fannin, Suite 2300

                
	 	
                  Houston,
                    Texas 77002

                
	 	
                  Tel:  (713)
                    758-3487

                
	 	
                  Fax:  (713)
                    615-5487

                
	 	
                  Attention:  Michael
                    C. Blaney

                


        
 

    

    
    

    11.
      Entire Agreement: Modification.  This Agreement (and the
      Underwriting Agreement to the extent applicable) contains the entire
      understanding between the parties hereto with respect to the subject matter
      hereof, and the terms and provisions of this Agreement may only be modified,
      waived or amended in writing. Any modification, waiver or amendment executed
      by
      the Company and a majority of Holders shall be binding on all Holders. Notice
      of
      any modification, waiver or amendment shall be promptly provided to any Holder
      not consenting to such modification, waiver or amendment. 

     

    12.
      Successors.  All the covenants and provisions of this Agreement
      shall be binding upon and inure to the benefit of the Company, the Holders
      and
      their respective successors and assigns hereunder. 

     

    13.
      Governing Law; Submission to Jurisdiction.  This Agreement
      shall be governed by and construed in accordance with the internal laws of
      the
      State of New York without regard to the conflicts of laws principles thereof.
      The parties hereto hereby irrevocably agree that any suit or proceeding arising
      directly and/or indirectly pursuant to or under this Agreement, shall be brought
      solely in a federal or state court located in the City, County and State of
      New
      York. By its execution hereof, the parties hereby covenant and irrevocably
      submit to the in personam jurisdiction of the federal and state courts located
      in the City, County and State of New York and agree that any process in any
      such
      action may be served upon any of them personally, or by certified mail or
      registered mail upon them or their agent, return receipt requested, with the
      same full force and effect as if personally served upon them in New York City.
      The parties hereto waive any claim that any such jurisdiction is not a
      convenient forum for any such suit or proceeding and any defense or lack of
      in
      personam jurisdiction with respect thereto. In the event of any such action
      or
      proceeding, the party prevailing therein shall be entitled to payment from
      the
      other party hereto of its reasonable counsel fees and disbursements in an amount
      judicially determined. 

     

    14.
      Severability.  If any provision of this Agreement shall be held
      to be invalid or unenforceable, such invalidity or unenforceability shall not
      affect any other provision of this Agreement. 

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

       

    

    15.
      Captions.  The caption headings of the sections of this
      Agreement are for convenience of reference only and are not intended, nor should
      they be construed as, a part of this Agreement and shall be given no substantive
      effect. 

     

    16.
      Benefits of This Agreement.  Nothing in this Agreement shall be
      construed to give to any person or corporation other than the Company and any
      registered Holder(s) of the Warrant Certificates any legal or equitable right,
      remedy or claim under this Agreement; and this Agreement shall be for the sole
      and exclusive benefit of the Company and any Holder(s) of the Warrant
      Certificates. 

     

    17.
      Counterparts.  This Agreement may be executed in any
      number of counterparts and each of such counterparts shall for all purposes
      be
      deemed to be an original, and such counterparts shall together constitute but
      one and the same instrument. 

     

    IN
      WITNESS HEREOF, the parties hereto have caused this Agreement to be
      duly executed, as of the day and year first above written.

    
       

      
        
          	 	
                  OPEXA
                    THERAPEUTICS, INC.

                
	 	 
	
                  By:

                	 
	
                  Name:

                	 
	
                  Title:

                	 


        

      

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

    

     

    EXHIBIT
      A

     

    FORM
      OF SUBSCRIPTION (CASH EXERCISE)

     

    (To
      be
      signed only upon exercise of Warrants)

     

    
      	 	 
	
              TO:

            	
              Opexa
                Therapeutics, Inc.

            
	 	
              2635
                North Crescent Ridge Drive

            
	 	
              The
                Woodlands, Texas  77381

            
	 	 


    

     

    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:

            	
              Opexa
                Therapeutics, Inc.

            
	 	
              2635
                North Crescent Ridge Drive

            
	 	
              The
                Woodlands, Texas  77381

            
	 	 


    

     

    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