DEMAND PROMISSORY
NOTE
Houston, Texas
$287,768.40 Issue Date: October 31,
2008
RECITALS
WHEREAS , Omnimmune Holdings, Inc., a Delaware
corporation (the “Company”) has retained the services
of McDaniel & Henry, LLP, a Georgia limited liability
partnership (the “Firm) to perform certain legal services for
and on its behalf (the “Services”);
WHEREAS , Company has accrued the amount of Two Hundred
Eighty Seven Thousand Seven Hundred Sixty Eight Dollars
($287,768.40), which amount is now past due;
WHEREAS , the Firm has agreed to permit Company to pay
such amount out of future financings in exchange for this Demand
Promissory Note (the “Note”) and the terms and
conditions described herein.
NOW THEREFORE, FOR VALUE RECEIVED , the undersigned, the
Company (hereinafter “Maker”), promises to pay to the
Firm (hereinafter “Payee”; Payee and any subsequent
holder(s) hereof are individually and collectively referred to as
“Holder”), or order, the sum of Two Hundred Eighty
Seven Thousand Seven Hundred Sixty Eight Dollars ($287,768.40),
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 . This Note is payable on written demand by
Holder in immediately available funds at any time on or after the
earlier of:
(A)
Qualified Financings
.
(I) Initial
Qualified Financing . As to principal and interest
due and payable hereunder in an amount equal to 50% of the first
$200,000 received from a Qualified Financing, plus 20% of all
amounts raised above $400,000, the date on which Maker closes on a
Qualified Financing, after the date hereof (the “Initial
Qualified Financing”); and
(II) Subsequent
Qualified Financings . As to the lesser of the
balance of principal and interest due and payable hereunder or 20%
of the gross proceeds of each Qualified Financing following the
Initial Qualified Financing (a “Subsequent Financing”),
the date on which Maker closes on any Subsequent Qualified
Financing;
(B)
Significant
Transaction . As to the balance of principal and
interest, if any, remaining outstanding, upon and coincident with
the earlier to occur of a Significant Transaction (as defined
below); or
(C)
Maturity Date
. As to the balance of
principal and interest, if any, remaining outstanding, June 30,
2009 (the “Maturity Date”).
(b)
Interest Allocation
. A portion of each
payment in cash hereunder shall allocated first to accrued but
unpaid interest as of each such cash payment date.
(c)
Interest . From and including the date hereof
to and including the date this Note is paid or otherwise discharged
in full, the unpaid principal amount of this Note shall bear simple
interest at 10% per annum, computed on the basis of a year of 360
days; provided, however, that upon the occurrence, and during the
continuance of an Event of Default under Section 3 hereunder, this
Note shall bear simple interest at 12% per annum, computed on the
basis of a year of 360 days.
(d)
Tender . All payments of principal and
interest shall be made in lawful money of the United States of
America and shall be made to Holder at Holder’s address set
forth in Section 8 or at such other place as Holder may designate
to Maker in writing.
(e)
Right of Prepayment
. Maker shall have the
right to prepay this Note at any time during the term hereof
without penalty.
(f)
Obligation to Notify
. Maker shall notify
Holder of any Significant Transaction or Qualified Financing of
which Holder does not otherwise have actual notice through
Holder’s role as counsel or through participation on the
Board of Directors of Maker not less than thirty (30) days prior to
the date thereof and provide Holder with any and all documents
relating thereto within 48 hours of being requested by
Holder.
2.
Definitions. For purposes of this Note, the following
terms and phrases shall have the meaning ascribed
thereto:
(a) “Qualified
Financing” shall mean any transaction (or any series of
integrated transactions) with a third party that results in the
infusion, contribution or investment into or receipt by Maker or
any affiliate thereof of capital, including, without limitation,
from debt financing, equity financing or the licensing or
sublicensing of all or any part of the technology (e.g., licensed
patents, knowhow or materials) licensed by Maker under any license
agreement or otherwise owned by it.
(b) “Significant
Transaction” shall mean either of the following:
|
|
Any transaction or series of
transactio
|
