NEITHER THIS
CONVERTIBLE DEMAND PROMISSORY NOTE NOR THE SECURITIES FOR WHICH IT
MAY BE EXCHANGED HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF
ANY STATE AND NEITHER THIS NOTE NOR SUCH SECURITIES MAY BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND LAWS UNLESS MAKER RECEIVES AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT SUCH REGISTRATION IS
NOT REQUIRED.
AMENDED AND
RESTATED
CONVERTIBLE DEMAND PROMISSORY
NOTE
Houston, Texas
$[_______] Issue Date: March 1,
2008
FOR VALUE RECEIVED , the undersigned, Omnimmune Corp., a
Texas corporation (“Maker”), promises to pay to
[____________________________________], a [_____________________]
(“Payee”; Payee and any subsequent holder(s) hereof are
individually and collectively referred to as “Holder”),
or order, the sum of [___________] Dollars ($[_______]), together
with interest thereon from and after the date hereof until paid in
full, all as hereinafter provided.
1.
Interest and Principal Payments .
(a)
Payment in Cash or Common Stock . This Note is
payable in either:
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Immediately available funds on written demand by
Holder at any time on or after the earlier of either:
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(A) the date on which Maker either (1) shall
have closed on a Qualified Financing (as defined below) or (2)
otherwise shall have cash on hand in an amount equal to not less
than Ten Million Dollars ($10,000,000); or
(B) February 28, 2013 (the “Maturity
Date”); or
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Shares of Maker’s Common Stock at any time
at the option of the Holder in accordance with Section 2
below.
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(b)
Interest . From and including the date hereof to
and including the date this Note is paid or otherwise discharged,
the unpaid principal amount of this Note shall bear simple interest
per annum at ten percent (10%), computed on the basis of a year of
three hundred sixty (360) days.
(c)
Tender . All payments of principal and interest
shall be made in lawful money of the United States of America
(except as otherwise provided in Sections 1(a), above, and 2,
below) and shall be made to Holder at Holder’s address set
forth in Section 7 or at such other place as Holder may designate
to Maker in writing.
(d)
Maker’s Right of Prepayment Without Penalty
. It is agreed and understood by Holder that Maker
reserves the right and option at any time after the date hereof and
during the term of this Note to prepay the principal and interest
hereunder without penalty; provided, however , that Maker
may only exercise its right to prepay this Note after having first
delivered to Holder ten (10) days prior written notice of its
intent to do so, during which period Holder may elect to convert
this note to Common Stock in accordance with the terms
hereof.
2.
Conversion of Note .
(a) Definitions
. For purposes of this Note, the following terms and
phrases shall have the meaning ascribed thereto:
“Common Stock” shall have the
meaning ascribed thereto in Maker’s Articles of
Incorporation, as amended; and
“Qualified Financing” shall mean the
closing of any equity financing (including any debt financing that
is convertible into Maker’s capital stock) completed by Maker
after the date hereof involving the sale and issuance (or any
series of integrated sales and issuances) by Maker to third parties
of shares of its capital stock resulting in net proceeds to Maker
of not less than Ten Million Dollars ($10,000,000).
(b) Conversion
. At any time at the option of Holder upon five (5)
day’s prior written notice, Holder may convert the entire
outstanding principal due hereunder into Omnimmune Common Stock by
the cancellation of this Note in exchange for the issuance of that
number of shares of Common Stock as shall equal (i) the then
outstanding principal amount of the Note on the date fixed for any
such conversion; divided by (ii) $0.1781 (the
“Conversion Price”), as adjusted for the split of
Common Stock at a split ratio of 2.8072-for-1, effective as of
March 26, 2008.
(c) Payment of
Interest . Upon conversion of this Note, Maker shall
be forever released from all its obligations and liabilities under
this Note, except that Maker shall be obligated to pay Holder,
within thrity (30) days after the date of such conversion, any
interest accrued and unpaid to and including the date of such
conversion, and no more.
(d) Conversion
Price Adjustments .
(1)
Capital Adjustments
. In case Maker shall at
any time after March 26, 2008: (i) declare a dividend on the
outstanding Common Stock payable in shares of its capital stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then, in
each case, other than the split of Common Stock effective as of
March 26, 2008 for which the Conversion Price has been adjusted,
the Conversion Price in effect, at the time of the record date for
such dividend or of the effective date of such subdivision or
combination, shall be proportionately adjusted so that the Holder
shall be entitled to receive the aggregate number and kind of
shares upon conversion hereof as in effect immediately prior to
such dividend, subdivision or combination, which, if the Note had
been converted immediately prior to such time, the Holder would
have owned upon such conversion and been entitled to receive by
virtue of such dividend, subdivision, or
combination. Such adjustment shall be made successively
whenever any event listed above shall occur. Any
adjustment under this paragraph shall become effective at the close
of business on the date the dividend, subdivision or combination
becomes effective.
(2)
Merger, Consolidation or Sale of
Assets . If
Maker is a party to a reorganization, a merger or consolidation
with or into another corporation, or the sale of Maker’s
properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such transaction, lawful provision
shall be made so that this Note shall pertain and apply to the
securities and/or other property to which the holder of the number
of shares of Common Stock of Maker then covered by this Note would
have been entitled had this Note been converted in whole
immediately prior to the effective date of such reorganization,
merger, consolidation or sale. In any such case,
appropriate adjustm
