Unassociated Document


    Exhibit
      4.4

     

    FORM
      OF

     

    UNDERWRITER’S
      WARRANT AGREEMENT

     

    Underwriter’s
      Warrant Agreement (the “Agreement”), dated as of ____ , 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 ____ __,
      2008 (the “Underwriting Agreement”) whereby the Company has agreed to issue and
      sell to 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
      up to [450,000] 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 $______;

     

    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]
      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
      __________ ___, 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 __________ ___, 2008 and expiring on __________
      ___, 2012 (the “Expiration Time”), up to [450,000]
      shares of Common Stock of the Company at an initial exercise price (subject
      to
      adjustment as provided in Section 5 hereof) of $________ per share [120%
      of the price per share of the Firm Shares] (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:

     

    
      	 	 	 	 
	 	
              X

            	
              =

            	
              Y
                x
                (A-B)/A

            
	 	 	 	 
	
              where

            	
              X

            	
              =

            	
              the
                number of shares of Common Stock to be issued to the
                Holder;

            
	 	 	 	 
	 	
              Y

            	
              =

            	
              the
                number of shares of Common Stock with respect to which this Warrant
                is
                being exercised;

            
	 	 	 	 
	 	
              A

            	
              =

            	
              the
                Market Price as of the Date of Exercise; and

            
	 	 	 	 
	 	
              B

            	
              =

            	
              the
                Exercise Price.

            
	 	 	 	 


    

     

    “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.

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

       

    

    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.

     

    
      	 	
              With
                a copy to:

            
	 	 
	 	
              Golenbock
                Eiseman Assor Bell & Peskoe LLP

            
	 	
              437
                Madison Avenue

            
	 	
              New
                York, NY  10022

            
	 	
              Attn:
                Andrew D. Hudders, Esq.

            
	 	
              Fax:
                (212) 754-0330

            
	 	
              Tel:
                (212) 907-7300

            


    

     

    (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 Prime

            
	 	
              The
                Woodlands, Texas 77381

            
	 	
              Attn:
                Chief Financial Officer

            
	 	
              Fax:
                (281) 872-8585

            


    

    


    
      	 	
              With
                a copy to:

            
	 	 
	 	
              Vinson
                & Elkins LLP

            
	 	
              1001
                Fannin, Suite 2300

            
	 	
              Houston,
                Texas 77002

            
	 	
              Attn:  Michael
                C. Blaney

            
	 	
              Tel:  (713)
                758-3487

            
	 	
              Fax:  (713)
                615-5487

            
	 	 


    

     

    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.

              
	 	 
	
                By:

              	 
	
                Name:

              	 
	
                Title:

              	 


      

    

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

     

    EXHIBIT
      A

     

    FORM
      OF SUBSCRIPTION (CASH EXERCISE)

     

    (To
      be
      signed only upon exercise of Warrant)

    


    
      	
              TO:

            	
              Opexa
                Therapeutics, Inc.

            
	 	
              2635
                North Crescent Rope Prime

            
	 	
              The
                Woodlands, Texas  77381

            
	 	
              Fax:
                (281) 872-8585

               

            


    

     

    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:

            	
              Opexa
                Therapeutics, Inc.

            	 
	 	
              2635
                North Crescent Rope Prime

            	 
	 	
              The
                Woodlands, Texas  77381

            	 
	 	
              Fax:
                (281) 872-8585

               

            	 


    

     

    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