Texas
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001-33004
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76-0333165
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(IRS Employer Identification
No.)
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2635 Technology Forest Blvd., The Woodlands, Texas
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77381
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(281) 272-9331
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N/A
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(Former name or former address, if changed since last report)
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o
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
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Entry into a Material Definitive Agreement
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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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Item 3.02
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Unregistered Sales of Equity Securities
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Item 3.03
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Material Modification to Rights of Security Holders
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year
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Item 8.01
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Other Events.
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Item 9.01.
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Financial Statements and Exhibits.
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Exhibit No.
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Description
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3.1
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Restated Certificate of Formation of Opexa Therapeutics, Inc.
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4.1
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Form of Series I Warrant issued to investors.
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4.2
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Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Opexa Therapeutics, Inc.
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10.1
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Form of Note Purchase Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc. and the investors signatory thereto.
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10.2
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Form of 12% Convertible Secured Promissory Note issued to investors.
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10.3
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Form of Security Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc., the investors signatory thereto, and Alkek & Williams Ventures, Ltd. as collateral agent for the investors.
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10.4
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Deposit Account Control Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc., Alkek & Williams Ventures, Ltd. as collateral agent for the investors, and Wells Fargo Bank, National Association.
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10.5
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Form of Registration Rights Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc. and the investors signatory thereto.
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99.1
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Press Release issued by Opexa Therapeutics, Inc. on July 26, 2012.
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Dated: July 26, 2012 | OPEXA THERAPEUTICS, INC. | |
By: | /s/ Neil K. Warma | |
Neil K. Warma | ||
President & Chief Executive Officer |
Exhibit No.
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Description
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3.1
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Restated Certificate of Formation of Opexa Therapeutics, Inc.
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4.1
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Form of Series I Warrant issued to investors.
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4.2
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Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Opexa Therapeutics, Inc.
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10.1
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Form of Note Purchase Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc. and the investors signatory thereto.
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10.2
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Form of 12% Convertible Secured Promissory Note issued to investors.
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10.3
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Form of Security Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc., the investors signatory thereto, and Alkek & Williams Ventures, Ltd. as collateral agent for the investors.
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10.4
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Deposit Account Control Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc., Alkek & Williams Ventures, Ltd. as collateral agent for the investors, and Wells Fargo Bank, National Association.
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10.5
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Form of Registration Rights Agreement, dated July 25, 2012, by and among Opexa Therapeutics, Inc. and the investors signatory thereto.
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99.1
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Press Release issued by Opexa Therapeutics, Inc. on July 26, 2012.
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Name
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Address
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David E. Jorden
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2635 Technology Forest Blvd.
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The Woodlands, Texas 77381
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Gail J. Maderis
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2635 Technology Forest Blvd.
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The Woodlands, Texas 77381
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Michael S. Richman
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2635 Technology Forest Blvd.
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The Woodlands, Texas 77381
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Scott B. Seaman
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2635 Technology Forest Blvd.
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The Woodlands, Texas 77381
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Neil K. Warma
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2635 Technology Forest Blvd.
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The Woodlands, Texas 77381
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No. I-_______ | July 25, 2012 |
X = | Y x (A-B)/A |
where: | |
X = | the maximum number of Warrant Shares that may be issued to the Warrantholder; |
Y = | the number of Warrant Shares with respect to which the Warrant is being exercised; |
A = | the Market Price as of the Date of Exercise; and |
B = | the Exercise Price. |
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(i)
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the numerator of which shall be the Warrant Price Floor, and
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(ii)
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the denominator of which shall be the Actual Price;
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_______
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a “
Cash Exercise
” with respect to _________ Warrant Shares; and/or
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_______
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a “
Cashless Exercise
” with respect to _______ Warrant Shares.
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By:
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Printed Name:
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Title (if applicable):
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Entity Name
(if applicable):
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1)
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Designation, Amount and Rank
.
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a)
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Series A Preferred Stock
. The shares of the series of preferred stock shall be designated as “Series A Convertible Preferred Stock” (the “
Series A Preferred Stock
”) and the number of shares constituting the Series A Preferred Stock shall be 80,000. Such number of shares may be increased or decreased by resolution of the Board of Directors of the Company (the “
Board of Directors
”);
provided
,
however
, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Company convertible into Series A Preferred Stock.
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b)
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Rank
. Notwithstanding any provision herein to the contrary: (i) the rights of the shares of the Company’s common stock, par value $0.01 per share (the “
Common Stock
”), and any other equity securities of the Company designated as ranking junior to the Series A Preferred Stock shall be subject to the preferences and relative rights of the Series A Preferred Stock; and (ii) without limiting the provisions of
Section 4(b)
, the rights of the Series A Preferred Stock shall be subject to the preferences and relative rights of any other equity securities of the Company designated by the Company as ranking senior to or pari passu with the Series A Preferred Stock.
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2)
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Dividends; Share Repurchases
.
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a)
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Accruing Dividends
. From and after the date of the issuance of any shares of Series A Preferred Stock, but terminating as of the Dividend Termination (as defined below), a dividend at the rate per annum of eight percent (8%) of the Series A Original Issue Price (as defined below) for each share of Series A Preferred Stock shall accrue on such outstanding shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock) (the “
Accruing Dividends
”). The “
Dividend Termination
” is the earlier of (i) the Automatic Conversion (as defined below), regardless of whether all shares of Series A Preferred Stock are converted (
i.e.
, due to
Section 5(b)
), (ii) any Liquidation (as defined below) or (iii) any Deemed Liquidation Event (as defined below). Accruing Dividends shall be cumulative and shall accrue from day to day whether or not earned or declared, and whether or not there are profits, surplus or other funds legally available for the payment of dividends, and shall be paid semi-annually on the 30
th
day of June and the 31
st
day of December of each year (with the first payment of Accruing Dividends on a semi-annual payment date to be prorated based on the number of days occurring between the date on which each share of Series A Preferred Stock was issued and such semi-annual payment date), although if any such payment date is not a Trading Day (as defined below), then the actual payment date shall be the next Trading Day. The Accruing Dividends may be paid either in cash or in shares of Common Stock, as determined in the sole discretion of the Board of Directors, provided that, if paid in Common Stock, (a) there is an effective registration statement under the Securities Act of 1933 for the resale of such shares and (b) the shares of Common Stock are then traded upon the NASDAQ Capital Market. For purposes of the payment of the Accruing Dividends in shares of Common Stock, each share of Common Stock shall be deemed to have a value equal to the volume weighted average price for the Common Stock on the Trading Market for the five (5) Trading Days ending three (3) Trading Days prior to any payment date at issue, where “
Trading Day
” means a day on which the Common Stock is traded on the Trading Market, and “
Trading Market
” means the NASDAQ Capital Market (or, if the NASDAQ Capital Market is not the primary market on which the Common Stock is then traded, such other market or exchange on which the Common Stock is then primarily listed or quoted or quoted for trading).
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b)
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Other Dividends
. The Company shall not declare, pay or set aside any dividends or other distributions on shares of Common Stock (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (i) all Accruing Dividends have been fully paid to date (
i.e.
, through the most recent payment date pursuant to
Section 2(a)
) and (ii) the holders of the Series A Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend or distribution on each outstanding share of Series A Preferred Stock in an amount equal to the product of (A) the dividend or distribution payable on each share of Common Stock and (B) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or distribution.
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c)
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Share Repurchases
. The Company may not purchase any shares of Common Stock or any other equity securities of the Company designated as ranking junior to the Series A Preferred Stock unless the holders of at least two thirds (66-2/3%) of the outstanding shares of Series A Preferred Stock approve otherwise (by written consent or affirmative vote), other than repurchases of stock from former employees, officers, directors or consultants who performed services for the Company pursuant to any agreement under which the Company has the option or right to repurchase such shares in connection with the cessation of such employment or service.
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3)
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Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales
.
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a)
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Liquidation
. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company (a “
Liquidation
”), the holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its shareholders, before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) $100.00, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock (the “
Series A Original Issue Price
”), plus any Accruing Dividends accrued but unpaid thereon together with any other dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of Series A Preferred Stock been converted into Common Stock pursuant to
Section 5
immediately prior to such Liquidation (the amount payable pursuant to this sentence is hereinafter referred to as the “
Series A Liquidation Amount
”);
provided
,
however
, that following the Automatic Conversion, the Series A Liquidation Amount shall be solely as provided in the foregoing clause (ii). Following payment to the holders of Series A Preferred Stock of the Series A Liquidation Amount, such holders shall not be entitled to any further payment. If upon any Liquidation the assets of the Company available for distribution to the holders of Series A Preferred Stock shall be insufficient to pay the holders of shares of Series A Preferred Stock the full amount to which they shall be entitled under this
Section 3(a)
, the holders of shares of Series A Preferred Stock shall share ratably in any distribution of the assets available for distribution to the holders of Series A Preferred Stock in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
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b)
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Deemed Liquidation Event
. Each of the following events shall be considered a “
Deemed Liquidation Event
” unless the holders of at least two thirds (66-2/3%) of the outstanding shares of Series A Preferred Stock approve otherwise (by written consent or affirmative vote):
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i)
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a merger or consolidation in which the Company or a subsidiary of the Company is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation, except that any such merger or consolidation involving the Company or a subsidiary in which the shares of capital stock of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (A) the surviving or resulting corporation or (B) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation (
provided
that, for the purpose of this
Section 3(b)(i)
, all shares of Common Stock issuable upon (x) exercise of rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities (as defined below) (“
Options
”) outstanding immediately prior to such merger or consolidation, or (y) conversion of any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options (“
Convertible Securities
”) outstanding immediately prior to such merger or consolidation, shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of Common Stock are converted or exchanged); or
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ii)
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the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company.
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c)
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Amount Deemed Paid
. The amount deemed paid or distributed to the holders of capital stock of the Company upon any Liquidation or Deemed Liquidation Event shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Company or the acquiring person, firm or other entity. If the amount deemed paid or distributed under this
Section 3(c)
is made in property other than in cash, the value of such distribution shall be the fair market value of such property, determined as follows:
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i)
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For securities not subject to investment letters or other similar restrictions on free marketability: (A) if traded on the NASDAQ Capital Market or other securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the thirty (30) day period ending three (3) days prior to the closing of such transaction; (B) if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid prices over the thirty (30) day period ending three (3) days prior to the closing of such transaction; or (C) if there is no active public market, the value shall be the fair market value thereof as determined in good faith by the Board of Directors.
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ii)
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The method of valuation of securities subject to investment letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a shareholder’s status as an affiliate or former affiliate) shall take into account an appropriate discount (as determined in good faith by the Board of Directors) from the market value as determined pursuant to clause (i) above so as to reflect the approximate fair market value thereof. The value of such property, rights or securities shall be determined in good faith by the Board of Directors.
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d)
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Allocation of Escrow
. In the event of a Deemed Liquidation Event, if any portion of the consideration payable to the shareholders of the Company is placed into escrow and/or is payable to the shareholders of the Company subject to contingencies, the relevant agreement shall provide that (i) the portion of such consideration that is not placed in escrow and not subject to any contingencies (the “
Initial Consideration
”) shall be allocated among the shareholders of the Company in accordance with this
Section
3)
as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event and (ii) any additional consideration which becomes payable to the shareholders of the Company upon release from escrow or satisfaction of contingencies shall be allocated among the shareholders of the Company in accordance with this
Section
3)
after taking into account the previous payment of the Initial Consideration as part of the same transaction.
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4)
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Voting
.
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a)
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Non-Voting
. The holders of Series A Preferred Stock shall not be entitled to vote on any matter except as otherwise expressly provided for in
Section 4(b)
or required by applicable law.
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b)
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Protective Provision
. At any time when the number of shares of Series A Preferred Stock outstanding is equal to or greater than 50% of the total number of shares of Series A Preferred Stock ever issued by the Company (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock), the Company shall not, directly or indirectly by amendment, merger, consolidation or otherwise, (i) amend, alter or repeal any provision of the Certificate of Formation in a manner that adversely affects the powers, preferences or rights of the Series A Preferred Stock, (ii) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock unless the same ranks junior or pari passu to the Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends and rights of redemption, or (iii) increase the authorized number of shares of any additional class or series of capital stock unless the same ranks junior or pari passu to the Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends and rights of redemption, unless the holders of at least two thirds (66-2/3%) of the outstanding shares of Series A Preferred Stock approve (by written consent or affirmative vote).
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5)
|
Conversion
.
|
a)
|
Events of Conversion
. Subject to the limitation set forth in
Section 5(b)
, each share of Series A Preferred Stock shall be convertible, without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A Original Issue Price for such share of Series A Preferred Stock by the Series A Conversion Price (as defined below) in effect at the time of conversion, as follows:
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i)
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As to the shares of Series A Preferred Stock of any holder, at the option and at the sole discretion of such holder so long as notice is delivered by such holder to the Company (pursuant to
Section 5(e)
) prior to the day which is five (5) days prior to the Redemption Date (as defined below);
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ii)
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As to all shares of Series A Preferred Stock, upon the earlier of the following (the “
Automatic Conversion
”): (A) such time, at any time following the Series A Designation Date (defined below), as the shares of Common Stock trade on the Trading Market with a per share closing price on the Trading Day of at least $4.00 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock) for at least twenty (20) consecutive Trading Days [note: since this clause is measured from the Series A Designation Date, it is possible that shares of Series A Preferred Stock will be deemed converted immediately upon issuance if the requirements of this clause have been satisfied prior to such issuance]; or (B) the date and time, or the occurrence of an event, approved (by written consent or affirmative vote) by the holders of at least two thirds (66-2/3%) of the then outstanding shares of Series A Preferred Stock.
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b)
|
Limitation on Conversion
. Shares of Series A Preferred Stock held by each holder thereof shall not be converted pursuant to
Section 5(a)
to the extent that, after giving effect to such conversion, such holder (together with any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such holder, as such terms are used in and construed under Rule 144 under the Securities Act of 1933 and the rules and regulations promulgated thereunder - each an “
Affiliate
”) would (i) beneficially own shares of Common Stock in excess of 19.9% of the shares of Common Stock outstanding (immediately after giving effect to the issuance of shares of Common Stock upon conversion of the shares of Series A Preferred Stock then subject to, or with respect to which a request has been made for, conversion pursuant to
Section 5(a)
) or (ii) control in excess of 19.9% of the total voting power of the Company’s securities outstanding (immediately after giving effect to the issuance to the issuance of shares of Common Stock upon conversion of the shares of Series A Preferred Stock then subject to, or with respect to which a request has been made for, conversion pursuant to
Section 5(a)
) that are entitled to vote on a matter being voted on by holders of Common Stock, unless and until the Company obtains shareholder approval permitting such issuances in accordance with applicable rules of the NASDAQ Stock Market;
provided
,
however
, that such limitations on conversion shall not apply to any conversion in connection with and subject to completion of the following if, upon completion, the subject holder and its Affiliates would not exceed the specified limits: (i) any offering of securities by the Company or its shareholders (including, without limitation, the subject holder); and (ii) a
bona fide
third party tender offer for the Company securities. For purposes of this
Section 5(b)
, beneficial ownership shall (x) exclude such number of shares of Common Stock that would be issuable upon exercise or conversion of the unexercised or non-converted portion of any securities of the Company (including, without limitation, options, warrants, shares of Series A Preferred Stock and other convertible securities such as convertible promissory notes) except for a limitation on conversion or exercise analogous to the limitation contained in the first sentence of this
Section 5(b)
and (y) otherwise be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934 (and the rules promulgated thereunder). [Note: If the limitation contained in the first sentence of this
Section 5(b)
applies to any conversion, then the Company shall nonetheless issue to any holder at issue such number of shares of Common Stock as may be issued below the limitation.] Upon the written request of any holder of shares of the Series A Preferred Stock, the Company shall within two (2) Trading Days confirm in writing to such holder the number of shares of Common Stock then outstanding.
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c)
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Conversion Price
. The “
Series A Conversion Price
” shall initially be $0.80, but the Series A Conversion Price, and the rate at which shares of Series A Preferred Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided below.
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d)
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No Fractional Shares
. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu of any fractional shares to which a holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock a holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.
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e)
|
Mechanics for Optional Conversion
. Before any holder of shares of Series A Preferred Stock shall be entitled to convert such shares pursuant to the provisions of
Section 5(a)(i)
and receive a certificate or certificates evidencing the shares of Common Stock into which such shares of Series A Preferred Stock are convertible, such holder shall give written notice of the same to the Company at its principal executive offices and shall surrender the certificate or certificates evidencing such shares, duly endorsed, at such offices of the Company. The Company shall, as soon as practicable thereafter, issue and deliver at such offices to such holder a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled. Any such conversion shall be deemed to have been made immediately prior to the close of business on the date of the holder’s surrender of the certificate or certificates evidencing such holder’s shares of Series A Preferred Stock to be converted, and such holder shall be treated for all purposes as the holder of the shares of Common Stock issuable upon such conversion as of such date.
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f)
|
Mechanics for Automatic Conversion
. Upon the Automatic Conversion (or, as applicable, as soon thereafter as and to the extent that the limitation set forth in
Section 5(b)
does not apply), the outstanding shares of Series A Preferred Stock at issue shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company;
provided
,
however
, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series A Preferred Stock are delivered to the Company at its principal executive offices, or the holder notifies the Company that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the outstanding shares of Series A Preferred Stock at issue, the holders of such shares of Series A Preferred Stock shall surrender the certificates representing such shares to the Company at its principal executive offices. Thereupon, there shall be issued and delivered to each such holder promptly at such office and in each such holder’s name as shown on such surrendered certificate or certificates, a certificate or certificates for the number of shares of Common Stock into which the shares of Series A Preferred Stock surrendered were convertible on the date on which such automatic conversion occurred.
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g)
|
Reserved Shares
. The Company shall at all times when the Series A Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Series A Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, the Company shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite shareholder approval of any necessary amendment to the Certificate of Formation.
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h)
|
Issue Taxes
. The Company shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series A Preferred Stock pursuant to this
Section 5
;
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 shares of Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid.
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i)
|
Adjustments to Series A Conversion Price
.
|
i)
|
If the Company shall at any time or from time to time after the filing of this Certificate (the “
Series A Designation Date
”) effect a subdivision of the outstanding Common Stock, the Series A Conversion Price in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Company shall at any time or from time to time after the Series A Designation Date combine the outstanding shares of Common Stock, the Series A Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.
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ii)
|
In the event the Company at any time or from time to time after the Series A Designation Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Series A Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Series A Conversion Price then in effect by a fraction:
|
a.
|
the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and
|
b.
|
the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.
|
iii)
|
If, as of the close of business on December 31, 2012, the Company has not entered into an agreement with a partner or potential partner pursuant to which the Company has received, or will receive, at least $5 million in funding (x) for use toward the clinical development of Tcelna
TM
or (y) in return for granting a license, other rights, or an option to license or otherwise acquire rights with respect to Tcelna
TM
(as determined in the reasonable discretion of the Board of Directors), then the then applicable Series A Conversion Price shall be adjusted, in the event of the closing of a Down Financing (as defined below), to be the Down Financing Per Share Price (as defined below) or, if higher, $0.780625 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction affecting the Common Stock after the Series A Designation Date). A “
Down Financing
” is the first issuance of securities by the Company (other than any financing involving the issuance of Series A Preferred Stock or securities convertible into Series A Preferred Stock) primarily for the purpose of raising capital which occurs following the Series A Designation Date and in which the Company issues shares of Common Stock or Common Stock Equivalents (as defined below) entitling any person to acquire shares of Common Stock at a price per share (determined in the reasonable discretion of the Board of Directors and in accordance with this
Section 5(i)(iii)
) less than the then applicable Series A Conversion Price (such lower price, the “
Down Financing Per Share Price
”). “
Common Stock Equivalents
” mean any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. If any shares of Common Stock or any warrants or other rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or security convertible into or exchangeable for Common Stock (such warrants, rights or options being called “
Options
” and such convertible or exchangeable stock or securities being called “
Convertible Securities
”) shall be issued or issuable for cash, the consideration received therefor shall be deemed to be the gross proceeds therefor. If any shares of Common Stock, Options or Convertible Securities shall be issued or issuable for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair market value of such consideration as determined in good faith by the Board of Directors. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Options by the parties thereto, such Options shall be deemed to have been issued for such consideration as determined in good faith by the Board of Directors. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “
Additional Rights
”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined in good faith by the Board of Directors). Notwithstanding the foregoing, and without limitation, the following activities are deemed not to be eligible for consideration as an issuance of securities by the Company primarily for the purpose of raising capital: (1) the issuance of securities upon the exercise or conversion of any Common Stock Equivalents issued by the Company prior to the Series A Designation Date; (2) securities issued with approval of a majority of the members of the Board of Directors or a majority of the members of a committee of directors established for such purpose, pursuant to options, stock or similar awards to employees, directors, and consultants; (3) securities issued to any bank or equipment lessor in connection with a financing or equipment lease; or (4) securities issued pursuant to a “
Strategic Transaction
” approved by a majority of the Board of Directors. A “
Strategic Transaction
” shall mean any transaction with an acquiror, acquisition target company or merger partner, or a joint venture, corporate alliance, research agreement or licensing transaction, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital.
|
iv)
|
Upon the occurrence of each adjustment or readjustment of the Series A Conversion Price pursuant to this
Section 5
, the Company at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Series A Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, as promptly as reasonably practicable after the written request at any time of any holder of Series A Preferred Stock (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the Series A Conversion Price then in effect, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Series A Preferred Stock.
|
j)
|
Other Adjustments
.
|
i)
|
In the event the Company at any time or from time to time after the initial issuance of the Series A Preferred Stock shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of
Section 2(b)
do not apply to such dividend or distribution, then and in each such event the holders of Series A Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Series A Preferred Stock had been converted into Common Stock on the date of such event.
|
ii)
|
If after the Series A Designation Date there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Company in which the Common Stock (but not the Series A Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by
Section 3(a)
or
Section 3(b)
), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Series A Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock issuable upon conversion of one share of Series A Preferred Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions in this
Section 5
with respect to the rights and interests thereafter of the holders of the Series A Preferred Stock, to the end that the provisions set forth in this
Section 5
(including provisions with respect to changes in and other adjustments of the Series A Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Series A Preferred Stock.
|
6)
|
Acquired Shares
.
Any shares of Series A Preferred Stock that are acquired by the Company or any of its subsidiaries shall automatically and immediately be (i) retired as shares of Series A Preferred Stock and (ii) resume their status as authorized but unissued shares of the Company’s preferred stock.
|
7)
|
Waiver
.
Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set forth herein may be waived on behalf of all holders of Series A Preferred Stock (both present and future) by the approval (by written consent or affirmative vote) of the holders of at least two thirds (66-2/3%) of the shares of Series A Preferred Stock then outstanding.
|
8)
|
Notices
.
Any notice required or permitted by the provisions of this Certificate to be given to a holder of shares of Series A Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Company, or given by electronic communication in compliance with the provisions of applicable law, and shall be deemed sent upon such mailing or electronic transmission.
|
/s/ Neil K. Warma
|
|
Neil K. Warma
|
|
Chief Executive Officer
|
THE COMPANY : | ||
OPEXA THERAPEUTICS, INC.
|
||
By:
|
||
Name:
|
Neil K. Warma | |
Title:
|
President and Chief Executive Officer |
THE INVESTORS:
|
|||||
By:
|
|||||
Printed Name:
|
|||||
Title (if applicable):
|
|||||
Entity Name
(if applicable):
|
Aggregate Purchase Price: | $ | ||
Closing Date (if multiple tranches): |
Address for Notices: | |||
Attention: | |||
Facsimile: | |||
Email: |
Investor
|
Principal
amount
of
Note
|
Number of
shares
subject to Warrant
|
||||||
Alkek & Williams Ventures Ltd.
|
$ | 500,000 | 468,750 | |||||
Albert and Margaret Alkek Foundation
|
$ | 300,000 | 281,250 | |||||
DLD Family Investments, LLC
|
$ | 500,000 | 468,750 | |||||
Charles E. Sheedy
|
$ | 250,000 | 234,375 | |||||
George McDaniel
|
$ | 200,000 | 187,500 | |||||
Robert & Susan deRose Family Trust 11/16/86
|
$ | 100,000 | 93,750 | |||||
David L. Anderson
|
$ | 75,000 | 70,313 | |||||
The Arnold Corporation
|
$ | 200,000 | 187,500 | |||||
Paul Anthony Jacobs & Nancy E. Jacobs Joint Trust U/A dated 10/16/97
|
$ | 100,000 | 93,750 | |||||
J.R. Seward Revocable Trust DTD 11/05/97
|
$ | 100,000 | 93,750 | |||||
Mossman Partners LP
|
$ | 50,000 | 46,875 | |||||
Arrow Realty, LLC
|
$ | 200,000 | 187,500 | |||||
William F. Miller III
|
$ | 50,000 | 46,875 | |||||
Tom Juda and Nancy Juda Living Trust
|
$ | 300,000 | 281,250 | |||||
JMJ Financial
|
$ | 500,000 | 468,750 | |||||
Neil K. Warma
|
$ | 15,000 | 14,063 | |||||
David E. Jorden
|
$ | 115,000 | 107,813 | |||||
DIT Equity Holdings, LLC
|
$ | 100,000 | 93,750 | |||||
Brio Capital L.P.
|
$ | 300,000 | 281,250 | |||||
The James P Miscoll Bypass Trust
|
$ | 30,000 | 28,125 | |||||
Iroquois Master Fund Ltd.
|
$ | 100,000 | 93,750 | |||||
Total
|
$ | 4,085,000 | 3,829,688 |
1.
|
Unaudited monthly income statements comparing the Company’s actual performance to its budgeted performance;
|
2.
|
A bank statement pertaining to the Company’s segregated cash account (minimum $1,000,000), which the Company will use its commercially reasonable efforts to cause the bank to send directly to the Investors;
|
3.
|
Borrower’s Certificate that includes:
|
a.
|
A representation from the Company’s Chief Financial Officer that the Company (i) is meeting all of its financial obligations on a timely basis, and (ii) that the Company is not past due on its rent payable under the terms of its real property lease(s), payroll, taxes, insurance, utilities, licensing fees (if any), accounts payable to any of its major suppliers, and equipment leases; and
|
b.
|
A list of any accounts payable for which the Company is then currently more than thirty (30) days past due.
|
4.
|
A list of the Company’s non-segregated cash balances.
|
$____________ | July 25, 2012 |
OPEXA THERAPEUTICS, INC. | ||
By:
|
||
Name: | Neil K. Warma | |
Title: | President and Chief Executive Officer |
THE COMPANY:
|
||
OPEXA THERAPEUTICS, INC.
|
||
By:
|
||
Name:
|
Neil K. Warma
|
|
Title:
|
President and Chief Executive Officer
|
|
COLLATERAL AGENT AND INVESTOR:
|
||
ALKEK & WILLIAMS VENTURES, LTD.,
|
||
a Texas limited partnership
|
||
By:
|
||
Name:
|
||
Title:
|
THE INVESTORS:
|
||||||
By:
|
||||||
Printed Name:
|
||||||
Title (if applicable):
|
||||||
Entity Name
(if applicable):
|
DEPOSIT ACCOUNT CONTROL AGREEMENT
(
Access Restricted Immediately)
|
1.
|
Secured Party’s Interest in Collateral Accounts.
Secured Party represents that it is either (i) an investor who has extended credit to Company and has been granted a security interest in the Collateral Accounts or (ii) such an investor and the agent for a group of such investors. Company hereby confirms the security interest granted by Company to Secured Party in all of Company’s right, title and interest in and to the Collateral Accounts and all sums now or hereafter on deposit in or payable or withdrawable from the Collateral Accounts (the “
Collateral Account Funds
”). In furtherance of the intentions of the parties hereto, this Agreement constitutes written notice by Secured Party to Bank of Secured Party’s security interest in the Collateral Accounts.
|
2.
|
Secured Party Control.
Bank, Secured Party and Company each agree that Bank will comply with instructions given to Bank by Secured Party directing disposition of funds in the Collateral Accounts (“
Disposition Instructions
”) without further consent by Company. Except as otherwise required by law, Bank will not agree with any third party to comply with instructions for disposition of funds in the Collateral Accounts originated by such third party.
|
3.
|
No Company Access to Collateral Accounts.
Unless separately agreed to in writing by Secured Party, Company agrees that it will not be able to make debits or withdrawals from or otherwise have access to the Collateral Accounts or any Collateral Account Funds, and that Secured Party will have exclusive access to the Collateral Accounts and Collateral Account Funds.
|
4.
|
Transfers in Response to Disposition Instructions.
Notwithstanding the provisions of the “Secured Party Control” section of this Agreement, unless Bank separately agrees in writing to the contrary, Bank will have no obligation to disburse funds in response to Disposition Instructions other than by the appropriate disbursement method expressly set forth in this Section 4. If at the time this Agreement is originally executed, Secured Party has fully completed wire transfer instructions for a transfer destination account (“
Destination Account
”) on the initial signature page of this Agreement, including the Destination Account number and the name and ABA number of the financial institution at which the Destination Account is maintained, then Bank agrees, on each day on which Bank is open to conduct its regular banking business, other than a Saturday, Sunday or public holiday (each a “
Business Day
”) during the term of this Agreement, to transfer to the Destination Account by standing wire (or alternative funds transfer method acceptable to Bank in its sole discretion) the full amount of the collected and available balance in the Collateral Accounts at the beginning of such Business Day. Secured Party may at any time instruct Bank to discontinue transferring funds to the original Destination Account and begin transferring funds to a new Destination Account, in accordance with the notice provisions of this Agreement. Bank will comply with such notice within a reasonable period of time not to exceed two (2) Business Days. Except as otherwise expressly set forth in this Section 4, Bank will have no obligation to disburse funds in response to Disposition Instructions other than by cashier’s check payable to Secured Party. Any disposition of funds which Bank makes under this Section 4 or otherwise in response to Disposition Instructions is subject to Bank’s standard policies, procedures and documentation governing the type of disposition made; provided, however, that in no circumstances will any such disposition require Company’s consent. To the extent any Collateral Account is a certificate of deposit or time deposit, Bank will be entitled to deduct any applicable early withdrawal penalty prior to disbursing funds from such account in response to Disposition Instructions. To the extent Secured Party requests that funds be transferred from any Collateral Account in a currency different from the currency denomination of the Collateral Account, the funds transfer will be made after currency conversion at Bank’s then current buying rate for exchange applicable to the new currency.
|
5.
|
Lockboxes.
To the extent items deposited to a Collateral Account have been received in one or more post office lockboxes maintained for Company by Bank (each a “
Lockbox
”) and processed by Bank for deposit, Company acknowledges that Company has granted Secured Party a security interest in all such items (the “
Remittances
”). During the term of this Agreement, Company will have no right or ability to instruct Bank regarding the receipt, processing or deposit of Remittances, and Secured Party alone will have the right and ability to so instruct Bank. Company and Secured Party acknowledge and agree that Bank’s operation of each Lockbox, and the receipt, retrieval, processing and deposit of Remittances, will at all times be governed by Bank’s Master Agreement for Treasury Management Services or other applicable treasury management services agreement, and by Bank’s applicable standard lockbox Service Description.
|
6.
|
Balance Reports and Bank Statements.
Bank agrees, at the request of Secured Party on any Business Day, to make available to Secured Party a report (“
Balance Report
”) showing the opening available balance in the Collateral Accounts as of the beginning of such Business Day, by a transmission method determined by Bank, in Bank’s sole discretion. Company expressly consents to this transmission of information. Bank will, on receiving a written request from Secured Party, send to Secured Party by United States mail, at the address indicated for Secured Party after its signature to this Agreement, duplicate copies of all periodic statements on the Collateral Accounts which are subsequently sent to Company.
|
7.
|
Returned Items.
Secured Party and Company understand and agree that the face amount (“
Returned Item Amount
”) of each Returned Item will be paid by Bank debiting the Collateral Account to which the Returned Item was originally credited, without prior notice to Secured Party or Company. As used in this Agreement, the term “
Returned Item
” means (i) any item deposited to a Collateral Account and returned unpaid, whether for insufficient funds or for any other reason, and without regard to timeliness of the return or the occurrence or timeliness of any drawee’s notice of non-payment; (ii) any item subject to a claim against Bank of breach of transfer or presentment warranty under the Uniform Commercial Code (as adopted in the applicable state) or Regulation CC (12 C.F.R. §229), as in effect from time to time; (iii) any automated clearing house (“
ACH
”) entry credited to a Collateral Account and returned unpaid or subject to an adjustment entry under applicable clearing house rules, whether for insufficient funds or for any other reason, and without regard to timeliness of the return or adjustment; (iv) any credit to a Collateral Account from a merchant card transaction, against which a contractual demand for chargeback has been made; and (v) any credit to a Collateral Account made in error. Company agrees to pay all Returned Item Amounts immediately on demand, without setoff or counterclaim, to the extent there are not sufficient funds in the applicable Collateral Account to cover the Returned Item Amounts on the day Bank attempts to debit them from the Collateral Account. Secured Party agrees to pay all Returned Item Amounts within fifteen (15) calendar days after demand, without setoff or counterclaim, to the extent that (i) the Returned Item Amounts are not paid in full by Company within five (5) calendar days after demand on Company by Bank, and (ii) Secured Party has received proceeds from the corresponding Returned Items under this Agreement.
|
8.
|
[Reserved.]
|
9.
|
Bank Fees.
Company agrees to pay all Bank’s fees and charges for the maintenance and administration of the Collateral Accounts and for the treasury management and other account services provided with respect to the Collateral Accounts and any Lockboxes (collectively “
Bank Fees
”), including, but not limited to, the fees for (a) Balance Reports provided on the Collateral Accounts, (b) funds transfer services received with respect to the Collateral Accounts, (c) lockbox processing services, (d) Returned Items, (e) funds advanced to cover overdrafts in the Collateral Accounts (but without Bank being in any way obligated to make any such advances), and (f) duplicate bank statements. The Bank Fees will be paid by Bank debiting one or more of the Collateral Accounts on the Business Day that the Bank Fees are due, without notice to Secured Party or Company. If there are not sufficient funds in the Collateral Accounts to cover fully the Bank Fees on the Business Day Bank attempts to debit them from the Collateral Accounts, such shortfall or the amount of such Bank Fees will be paid by Company to Bank, without setoff or counterclaim, within five (5) calendar days after demand from Bank. Secured Party agrees to pay any Bank Fees within fifteen (15) calendar days after demand, without setoff or counterclaim, to the extent such Bank Fees are not paid in full by Company within five (5) calendar days after demand on Company by Bank.
|
10.
|
Account Documentation.
Except as specifically provided in this Agreement, Secured Party and Company agree that the Collateral Accounts will be subject to, and Bank’s operation of the Collateral Accounts will be in accordance with, the terms of Bank’s applicable deposit account agreement governing the Collateral Accounts (“
Account Agreement
”). In addition to the Account Agreement, each Collateral Account operated as a “
Multi-Currency Account
” will be governed by Bank’s Master Agreement for Treasury Management Services or other applicable treasury management services agreement, and by Bank’s Multi-Currency Account Service Description in effect from time to time. All documentation referenced in this Agreement as governing any Collateral Account or the processing of any Remittances is hereinafter collectively referred to as the “
Account Documentation
”.
|
11.
|
Partial Subordination of Bank’s Rights.
Bank hereby subordinates to the security interest of Secured Party in the Collateral Accounts (i) any security interest which Bank may have or acquire in the Collateral Accounts, and (ii) any right which Bank may have or acquire to set off or otherwise apply any Collateral Account Funds against the payment of any indebtedness from time to time owing to Bank from Company, except for debits to the Collateral Accounts permitted under this Agreement for the payment of Returned Item Amounts or Bank Fees.
|
12.
|
Bankruptcy Notice; Effect of Filing.
If Bank at any time receives notice of the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Company, Bank will continue to comply with its obligations under this Agreement, except to the extent that any action required of Bank under this Agreement is prohibited under applicable bankruptcy laws or regulations or is stayed pursuant to the automatic stay imposed under the United States Bankruptcy Code or by order of any court or agency. With respect to any obligation of Secured Party hereunder which requires prior demand on Company, the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Company will automatically eliminate the necessity of such demand on Company by Bank, and will immediately entitle Bank to make demand on Secured Party with the same effect as if demand had been made on Company and the time for Company’s performance had expired.
|
13.
|
Legal Process, Legal Notices and Court Orders.
Bank will comply with any legal process, legal notice or court order it receives in relation to a Collateral Account if Bank determines in its sole discretion that the legal process, legal notice or court order is legally binding on it.
|
14.
|
Indemnification.
Company will indemnify, defend and hold harmless Bank, its officers, directors, employees, and agents (collectively, the “
Indemnified Parties
”) from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively “
Losses and Liabilities
”) Bank may suffer or incur as a result of or in connection with (a) Bank complying with any binding legal process, legal notice or court order referred to in the immediately preceding section of this Agreement, (b) Bank following any instruction or request of Secured Party, including but not limited to any Disposition Instructions, or (c) Bank complying with its obligations under this Agreement, except to the extent such Losses and Liabilities are caused by Bank’s gross negligence or willful misconduct. To the extent such obligations of indemnity are not satisfied by Company within five (5) days after demand on Company by Bank, Secured Party will indemnify, defend and hold harmless Bank and the other Indemnified Parties against any and all Losses and Liabilities Bank may suffer or incur as a result of or in connection with Bank following any instruction or request of Secured Party, except to the extent such Losses and Liabilities are caused by Bank’s gross negligence or willful misconduct.
|
15.
|
Bank’s Responsibility.
This Agreement does not create any obligations of Bank, and Bank makes no express or implied representations or warranties with respect to its obligations under this Agreement, except for those expressly set forth herein. In particular, Bank need not investigate whether Secured Party is entitled under Secured Party’s agreements with Company to give Disposition Instructions. Bank may rely on any and all notices and communications it believes are given by the appropriate party. Bank will not be liable to Company, Secured Party or any other party for any Losses and Liabilities caused by (i) circumstances beyond Bank’s reasonable control (including, without limitation, computer malfunctions, interruptions of communication facilities, labor difficulties, acts of God, wars, or terrorist attacks) or (ii) any other circumstances, except to the extent such Losses and Liabilities are directly caused by Bank’s gross negligence or willful misconduct.
In no event will Bank be liable for any indirect, special, consequential or punitive damages, whether or not the likelihood of such damages was known to Bank, and regardless of the form of the claim or action, or the legal theory on which it is based. Any action against Bank by Company or Secured Party under or related to this Agreement must be brought within twelve (12) months after the cause of action accrues.
|
16.
|
Termination.
This Agreement may be terminated by Secured Party or Bank at any time by either of them giving thirty (30) calendar days prior written notice of such termination to the other parties to this Agreement at their contact addresses specified after their signatures to this Agreement; provided, however, that this Agreement may be terminated immediately upon written notice (i) from Bank to Company and Secured Party should Company or Secured Party fail to make any payment when due to Bank from Company or Secured Party under the terms of this Agreement, or (ii) from Secured Party to Bank on termination or release of Secured Party’s security interest in the Collateral Accounts; provided that any notice from Secured Party under clause (ii) of this sentence must contain Secured Party’s acknowledgement of the termination or release of its security interest in the Collateral Accounts. Company’s and Secured Party’s respective obligations to report errors in funds transfers and bank statements and to pay Returned Item Amounts and Bank Fees, as well as the indemnifications made, and the limitations on the liability of Bank accepted, by Company and Secured Party under this Agreement will continue after the termination of this Agreement with respect to all the circumstances to which they are applicable, existing or occurring before such termination, and any liability of any party to this Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of such party prior to such termination will also survive such termination. Upon any termination of this Agreement, (i) Bank will transfer all collected and available balances in the Collateral Accounts on the date of such termination in accordance with Secured Party’s written instructions, and (ii) Bank will close any Lockbox and forward any mail received at the Lockbox unopened to such address as is communicated to Bank by Secured Party under the notice provisions of this Agreement for a period of three (3) months after the effective termination date, unless otherwise arranged between Secured Party and Bank, provided that Bank’s fees with respect to such disposition must be prepaid directly to Bank at the time of termination by cashier’s check payable to Bank or other payment method acceptable to Bank in its sole discretion.
|
17.
|
Modifications, Amendments, and Waivers.
This Agreement may not be modified or amended, or any provision thereof waived, except in a writing signed by all the parties to this Agreement.
|
18.
|
Notices.
All notices from one party to another must be in writing, must be delivered to Company, Secured Party and/or Bank at their contact addresses specified after their signatures to this Agreement, or any other address of any party communicated to the other parties in writing, and will be effective on receipt. Any notice sent by a party to this Agreement to another party must also be sent to all other parties to this Agreement. Bank is authorized by Company and Secured Party to act on any instructions or notices received by Bank if (a) such instructions or notices purport to be made in the name of Secured Party, (b) Bank reasonably believes that they are so made, and (c) they do not conflict with the terms of this Agreement as such terms may be amended from time to time, unless such conflicting instructions or notices are supported by a court order.
|
19.
|
Successors and Assigns.
Neither Company nor Secured Party may assign or transfer its rights or obligations under this Agreement to any person or entity without the prior written consent of Bank, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Secured Party may transfer its rights and duties under this Agreement to (i) a transferee to which, by contract or operation of law, Secured Party transfers substantially all of its rights and duties under the financing or other arrangements between Secured Party and Company, or (ii) if Secured Party is acting as a representative in whose favor a security interest is created or provided for, a transferee that is a successor representative; provided that as between Bank and Secured Party, Secured Party will not be released from its obligations under this Agreement unless and until Bank receives any such transferee’s binding written agreement to assume all of Secured Party’s obligations hereunder. Bank may not assign or transfer its rights or obligations under this Agreement to any person or entity without the prior written consent of Secured Party, which consent will not be unreasonably withheld or delayed; provided, however, that no such consent will be required if such assignment or transfer takes place as part of a merger, acquisition or corporate reorganization affecting Bank.
|
20.
|
Governing Law.
This Agreement will be governed by and be construed in accordance with the laws of the state in which the office of Bank that maintains the Collateral Accounts is located, without regard to conflict of laws principles. This state will also be deemed to be Bank’s jurisdiction, for purposes of Article 9 of the Uniform Commercial Code as it applies to this Agreement.
|
21.
|
Severability.
To the extent that the terms of this Agreement are inconsistent with, or prohibited or unenforceable under, any applicable law or regulation, they will be deemed ineffective only to the extent of such prohibition or unenforceability, and will be deemed modified and applied in a manner consistent with such law or regulation. Any provision of this Agreement which is deemed unenforceable or invalid in any jurisdiction will not affect the enforceability or validity of the remaining provisions of this Agreement or the same provision in any other jurisdiction.
|
22.
|
Counterparts.
This Agreement may be executed in any number of counterparts each of which will be an original with the same effect as if the signatures were on the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopier or electronic image scan transmission (such as a “pdf” file) will be effective as delivery of a manually executed counterpart of the Agreement.
|
23.
|
Entire Agreement.
This Agreement, together with the Account Documentation, contains the entire and only agreement among all the parties to this Agreement and between Bank and Company, on the one hand, and Bank and Secured Party, on the other hand, with respect to (a) the interest of Secured Party in the Collateral Accounts and Collateral Account Funds, and (b) Bank’s obligations to Secured Party in connection with the Collateral Accounts and Collateral Account Funds.
|
Date: July 25, 2012
|
|
Collateral Account Numbers:
|
|
Destination Account Number:
|
____________________
|
Bank of Destination Account:
Account name:
Reference Data:
Frequency (Daily or Weekly):
Balance (Intraday or Start of Day):
|
[Insert bank name
and
bank ABA number]
________________
________________
________________
________________
|
OPEXA THERAPEUTICS, INC.
|
ALKEK & WILLIAMS VENTURES, LTD.
|
|
By: /s/ Neil K. Warma
|
By: /s/ Scott B. Seaman
|
|
Name: Neil K. Warma
|
Name: Scott B. Seaman
|
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Title: President and Chief Executive Officer
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Title: Attorney In Fact
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Address for Notices:
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Address for Notices:
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2635 Technology Forest Boulevard
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1100 Louisiana – Suite 5250
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The Woodlands, TX 77381
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Houston, TX 77002
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Attention: Neil K. Warma, President and Chief Executive Officer
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Attention: Scott B. Seaman, Attorney In Fact
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WELLS FARGO BANK, NATIONAL ASSOCIATION
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By: /s/ John Whisnant
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Name: John Whisnant
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Title: Business Banking Manager
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Address for Notices:
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1000 Louisiana Street – 7
th
Floor
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Houston, TX 77002
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Attention: John Whisnant, Business Banking Manager
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with copy to:
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J. Michael Wright
Sr. Business Relationship Manager
21 Waterway - Suite 600
The Woodlands, TX 77380
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Sandy Thomas
Business Associate
17317 North Freeway – 1
st
Floor
Houston, TX 77090
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Rebecca Arseneau
Business Banking Manager
21 Waterway - Suite 600
The Woodlands, TX 77380
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Glenn V. Godkin
Regional President
1000 Louisiana Street – 7
th
Floor
Houston, TX 77002
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THE COMPANY: | ||
OPEXA THERAPEUTICS, INC. | ||
By: | ||
Name: | Neil K. Warma | |
Title: | President and Chief Executive Officer |
THE INVESTORS:
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By:
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Printed Name:
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Title (if applicable):
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Entity Name
(if applicable):
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted by law.
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THE INVESTORS:
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By:
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Dated: | ||||||
Printed Name:
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Title (if applicable):
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Entity Name
(if applicable):
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a reporting company under the Exchange Act
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a majority owned subsidiary of a reporting company under the Exchange Act,
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a registered investment fund under the 1940 Act.
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purchased the securities to be resold in the ordinary course of business; and
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had no agreements or understandings, directly or indirectly, with any
person
to distribute the securities at the time of their purchase.
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None
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o
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Advisor
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o
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Officer
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o
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Director
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o
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Trustee
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o
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Founder
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o
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Registered Representative
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o
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5% Stockholder
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o
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Employee
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o | |
Immediate Family
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o
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Broker/Dealer
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o
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Promoter
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o
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Consultant
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o
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Finder
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o
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Bridge Lender
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o
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General Partner
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o
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Limited Partner
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o
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Equity Investor
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o
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Client or Customer
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o
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Subordinated Debt Holder
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o
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Other
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o
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Title of Equity Security
(include warrants, options and convertible debt)
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Number of Shares
Beneficially Owned
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Common Stock
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Other
(i.e., warrants, options or
convertible debt)
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Sole voting power
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Shared voting power
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Sole investment power
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Shared investment power
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Description of
Transaction
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Persons Involved
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Nature of
Interest
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Amount of
Transaction
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Amount of
Interest
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