10-K/A 1 a5965440.htm OPEXA THERAPEUTICS, INC. 10-K/A a5965440.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 10-K/A
 
Amendment No. 1
 
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the fiscal year ended December 31, 2008
 
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
 
Commission File Number: 001-33004
 
LOGO
Opexa Therapeutics, Inc.
 
(Exact Name of Registrant as Specified in Its Charter)

 
Texas
76-0333165
(State or Other Jurisdiction of
(IRS Employer
Incorporation or Organization)
Identification No.)
 
2635 N Crescent Ridge Drive, The Woodlands, Texas
77381
(Address of Principal Executive Offices)
(Zip Code)
 
Registrant’s Telephone Number, Including Area Code: (281) 272-9331
 
Securities registered pursuant to Section 12(b) of the Act: Series E Warrant
 
Securities registered pursuant to Section 12(g) of the Act: Common Stock
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ¨    No  þ
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ¨    No  þ
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.    Yes   þ     No   ¨
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   þ
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one):
 
¨  Large accelerated
 filer
¨  Accelerated
 filer
¨  Non-accelerated filer
þ  Smaller reporting
 company
       
   
(Do not check if a smaller reporting
 company)
  
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ¨    No  þ
 
As of April 13, 2009, 12,245,858 shares of the registrant’s common stock, par value $0.50 per share, were outstanding. The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of April 13, 2009 based upon the closing price as of such date was approximately $4.4 million.
 
 
 
 
 
 
EXPLANATORY NOTE

This amendment to the Annual Report on Form 10-K for the year ended December 31, 2008, filed by Opexa Therapeutics, Inc.., a Texas corporation (the “Registrant”), with the United States Securities and Exchange Commission (the “Commission”) on April 15, 2009 (the “Annual Report”), is filed for the purposes of including the auditor’s consent which was inadvertently omitted from the Annual Report filed with the Commission on April 15, 2009.
 
 
 
 
 
 

PART IV
 
EXHIBITS FINANCIAL STATEMENT SCHEDULES.
 
 
 
3.
List of Exhibits
 
 
Exhibit 2.1
 Stock Purchase Agreement effective as of May 5, 2004 (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed June 4, 2004).
   
Exhibit 2.2
 Agreement and Plan of Reorganization (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on 8-K filed October 8, 2004).
   
Exhibit 3.1
 Articles of Amendment and Restatement of the Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 19, 2006).
   
Exhibit 3.3
 Amended and Restated By-laws (incorporated by reference to Exhibit 2.2 to the Company’s Registration Statement on Form 10-SB (File No. 000-25513), initially filed March 8, 1999).
   
Exhibit 4.1
 Form of Common Stock Certificate (incorporated by reference to Exhibit 2.3 to the Company’s Registration Statement on Form 10-SB (File No. 000-25513), initially filed March 8, 1999).
   
Exhibit 4.2
 Form of Series E Warrant (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed December 20, 2007).
   
Exhibit 4.3
 Warrant Agent Agreement for Series E Warrant (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed February 14, 2008).
   
Exhibit 4.4
 Form of Underwriters’ Warrant Agreement (incorporated by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed February 14, 2008).
   
Exhibit 4.5
 Form of Underwriters’ Warrant to Acquire Warrants Agreement (incorporated by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed February 14, 2008).
   
Exhibit 10.1
 June 2004 Compensatory Stock Option Plan (incorporated by reference to Exhibit B to the Company’s Definitive Information Statement filed on June 29, 2004).
   
Exhibit 10.2
 Amended and Restated Employment Agreement dated June 15, 2006, between the Company and David McWilliams (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-QSB filed August 14, 2006).
   
Exhibit 10.3
 Amendment to Employment Agreement dated May 9, 2008, between the Company and David McWilliams (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed May 13, 2008).
   
Exhibit 10.4
 Employment Agreement dated May 9, 2008, between the Company and Lynne Hohlfeld (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed May 13, 2008).
   
Exhibit 10.5
 Employment Agreement dated May 9, 2008, between the Company and Jim C. Williams, Ph.D (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed May 13, 2008).
   
Exhibit 10.6
 Employment Agreement dated May 9, 2008, between the Company and Donna R. Rill (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed May 13, 2008).
   
Exhibit 10.7
 Employment Agreement dated June 16, 2008, between the Company and Neil K. Warma (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 18, 2008).
   
Exhibit 10.12
 Form of Warrant Agreement (incorporated by reference to Exhibit 10.13 to the Company’s Annual Report on Form 10-KSB filed April 15, 2005).
   
Exhibit 10.13
 License Agreement dated September 5, 2001 between the Company and Baylor College of Medicine (incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-KSB filed April 15, 2005).
   
Exhibit 10.14
 Second Amended and Restated License Agreement with University of Chicago (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed August 3, 2007).
   
Exhibit 10.17
 Form of Series C Common Stock Purchase Warrant (incorporated by reference to Exhibit 10.17 to Form SB-2 filed July 19, 2005).
   
Exhibit 10.18
 Securities Purchase Agreement dated June 17, 2005 by and among the Company and the Investors named therein (incorporated by reference to Exhibit 10.18 to Form SB-2 filed July 19, 2005).
   
Exhibit 10.19
 Registration Rights Agreement dated June 17, 2005 by and among the purchasers of common stock named therein (incorporated by reference to Exhibit 10.19 to Form SB-2 filed July 19, 2005).
   
Exhibit 10.20
 Securities Purchase Agreement dated June 30, 2005 by and among the Company and the purchasers of common stock named therein (incorporated by reference to Exhibit 10.20 to Form SB-2 filed July 19, 2005).
   
Exhibit 10.21
 Securities Purchase Agreement dated July 15, 2005 by and among the Company and the Investors named therein (incorporated by reference to Exhibit 10.21 to Form SB-2 filed July 19, 2005).
   
Exhibit 10.22
 Registration Rights Agreement dated July 15, 2005 by and among the Company and the Investors named therein (incorporated by reference to Exhibit 10.22 to Form SB-2 filed July 19, 2005).
 
 
 
 

Exhibit 10.23
 License Agreement dated January 13, 2006 by the Company and Shanghai Institute for Biological Services (incorporated by reference to Exhibit 10.23 to Amendment No. 1 to Form SB-2 filed February 9, 2006).
   
Exhibit 10.24
 Lease dated August 19, 2005 by the Company and Dirk D. Laukien (incorporated by reference to Exhibit 10.13 to the Company’s Annual Report on Form 10-KSB filed March 31, 2006).
   
Exhibit 10.25
 Form of Warrant Agreement issued to brokers in connection with 2005 offerings (incorporated by reference to Exhibit 10.25 to Amendment No. 2 to Form SB-2 filed April 11, 2006).
   
Exhibit 10.26
 Purchase Agreement dated April 11, 2006 by and among the Company and the Investors named herein (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed April 18, 2006).
   
Exhibit 10.28
 Form of Warrant issued in connection with April 2006 financing (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed April 18, 2006).
   
Exhibit 10.29
 Form of Broker Stock Purchase Warrant issued to MDB Capital Group LLC (incorporated by reference to Exhibit 10.5 of the Company’s Current Report on Form 8-K filed April 18, 2006).
   
Exhibit 10.30
 Second Amended and Restated License Agreement dated July 31, 2007 between the Company and the University of Chicago (incorporated by reference to Exhibit 10.1 of the Company’s Report on Form 8-K filed August 3,, 2007).
   
Exhibit 10.31
 Unit Purchase Agreement dated August 8, 2008 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed August 12, 2008).
   
Exhibit 10.32
 Registration Rights Agreement dated August 8, 2008 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed August 12, 2008).
   
Exhibit 10.33
 Form of Warrant issued in connection with August 8, 2008 financing (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed August 12, 2008).
   
Exhibit 23.1*
 Consent of Malone & Bailey, P.C.
   
Exhibit 31.1*
 Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
   
Exhibit 32.1*
 Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
*
Filed herewith
 

 
 
 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
SIGNATURES
 
 
  OPEXA THERAPEUTICS, INC.  
     
  By:   /s/ NEIL K. WARMA  
      Neil K. Warma  
      President and Chief Executive Officer  
      (Principal Executive Officer)  
      Acting Chief Financial Officer  
      (Principal Financial and Accounting Officer)  
         
     
Date: May 14, 2009
  
 
Pursuant to the requirements of the Securities Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacity and on the dates indicated.
 
Signature
  
Title
  
Date
         
/S/  NEIL K. WARMA
  
President and Chief Executive Officer
  
May 14, 2009
Neil K. Warma
  
(Principal Executive Officer)
    
   
Acting Chief Financial Officer
    
   
(Principal Financial and Accounting Officer)
    
         
/S/  DAVID HUNG
  
Director
  
May 14, 2009
David Hung
        
         
/S/  DAVID E. JORDEN
  
Director
  
May 14, 2009
David E. Jorden
        
         
/S/  DAVID B. MCWILLIAMS
  
Director
  
May 14, 2009
David B. McWilliams
        
         
/S/  MICHAEL S. RICHMAN
  
Director
  
May 14, 2009
Michael S. Richman
        
         
/S/  SCOTT B. SEAMAN
  
Director
  
May 14, 2009
Scott B. Seaman