Subscription Agent Agreement, dated February 25, 2015, by and between Opexa Therapeutics, Inc. and Continental Stock Transfer & Trust Company

Rights Offering - The Company is offering (the “Rights Offering”) non-transferable rights (the “Subscription Rights”) pursuant to which the holders thereof (the “Rights Holders”) are entitled to subscribe for Units, (the “Units”), each Unit comprised of one share of the Company’s common stock, $0.01 par value (the “Common Stock”) and one warrant to purchase an additional share of Common Stock (the “Warrants”). Such Subscription Rights are being distributed to all shareholders of record of Common Stock (“Record Date Shareholders”) as of 5:00 p.m., Eastern Time, on March 13, 2015 (the “Record Date”), as well as to Series L warrant holders of the Company who are entitled to participate in the Rights Offering pursuant to the terms of their warrants (“Participating Warrant Holders”). The Subscription Rights, Units, Common Stock and Warrants are described in a prospectus dated February 25, 2015 (the “Prospectus”). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Prospectus.

 

 

As described in the Prospectus, the Company is issuing to Record Date Shareholders and the Participating Warrant Holders Rights to subscribe for up to 28,776,419 Units. Each Record Date Shareholder is being issued one Subscription Right for each share of Common Stock owned on the Record Date and each Participating Warrant Holder is being issued one Subscription Right for each share of Common Stock into which the warrants held by such Participating Warrant Holder are exercisable as of the Record Date. No fractional Subscription Rights will be issued, and any fractional Subscription Rights resulting from the issuance of the Subscription Rights will be rounded down to the next whole Subscription Right. The Subscription Rights entitle each Rights Holder to acquire one Unit for every Subscription Right held, which is referred to as the basic subscription right (the “Basic Subscription Right”). Subscription Rights may be exercised at any time during the subscription period (the “Subscription Period”), which commences on March 16, 2015 and ends at 5:00 p.m., Eastern Time, on April 8, 2015, the expiration date, unless extended by the Company (as may be so extended, the “Expiration Date”).

 

 

The subscription price for the Units (the “Subscription Price”) is $0.70.

 

 

Units not subscribed for by Rights Holders as part of the Basic Subscription Rights (the “Remaining Securities”) will be offered, by means of the over-subscription privilege (the “Over-Subscription Privilege”) to the Rights Holders, in each case only to the extent such Rights Holder has fully exercised the Subscription Rights issued to it and wishes to acquire more than the number of Units they are entitled to purchase pursuant to the Basic Subscription Right and on the terms and subject to the conditions set forth in the Prospectus, including as to proration and stock ownership limitations. The Subscription Rights will be evidenced by Subscription Rights certificates (the “Subscription Rights Certificates”).

 

(b) As soon as practicable after the Expiration Date you shall calculate the number of shares of Units to which each subscriber is entitled pursuant to the Over-Subscription Privilege. The Over-Subscription Privilege may only be exercised by holders who subscribe to all the Units that can be subscribed for under the Basic Subscription Right. The remaining securities will be available for issuance pursuant to the Over-Subscription Privilege. Where there are sufficient Remaining Securities to satisfy all additional subscriptions by holders exercising their rights under the Over-Subscription Privilege, each holder shall be allotted the number of additional securities subscribed for. If Over-Subscription Privilege requests exceed the number of Units available, however, the available Units will be allocated pro rata among record holders exercising the Over-Subscription Privilege in proportion to the number of shares of Common Stock or underlying Series L warrants each of those record holders owned on the Record Date, relative to the number of shares owned or underlying Series L warrants on the Record Date by all record holders exercising the Over-Subscription Privilege. If this pro rata allocation results in any record holder receiving a greater number of shares than the record holder subscribed for pursuant to the exercise of the Over-Subscription Privilege, then such record holder will be allocated only that number of Units for which the record holder oversubscribed, and the remaining Units will be allocated among all other record holders exercising the Over-Subscription Privilege on the same pro rata basis described above. The proration process will be repeated until all Units have been allocated. Any fractional Remaining Securities to which persons exercising their Over-Subscription Privilege would otherwise be entitled pursuant to such allocation shall be rounded down to the next whole Unit.

 

 

(c) Upon calculating the number of Remaining Securities to which each subscriber is entitled pursuant to the Over-Subscription Privilege and the amount overpaid, if any, by each subscriber, you shall, as soon as practicable, furnish a list of all such information to the Company.

 

 

(d) Upon calculating the number of Remaining Securities to which each subscriber is entitled pursuant to the Over-Subscription Privilege and assuming payment for the additional Remaining Securities subscribed for has been delivered, you shall mail, as contemplated in subparagraph (a) above, the certificates representing the additional securities which the subscriber has been allotted. If a lesser number of Remaining Securities is allotted to a subscriber under the Over-Subscription Privilege than the subscriber has tendered payment for, you shall remit the difference to the subscriber without interest or deduction at the same time as certificates representing the securities allotted pursuant to the Over-Subscription Privilege are mailed.

 

 

(e) Funds received by you pursuant to the Basic Subscription Right and the Over-Subscription Privilege shall be held by you in a segregated account. Upon mailing certificates representing the securities and refunding subscribers for additional securities subscribed for but not allocated, if any, you shall promptly remit to the Company all funds received in payment of the Subscription Price for Units sold in the Rights Offering.