Exhibit
10.12
MASTER TERMINATION
AGREEMENT
THIS MASTER TERMINATION
AGREEMENT (this
“Agreement”) is entered into effective as of June 20,
2008 (the “Signing Date”) by and between The Trustees
of Columbia University in the City of New York, a New York
corporation (“Columbia”) and Omnimmune Corp., a Texas
corporation (the “Company”).
RECITALS
WHEREAS , Columbia and Company entered into that certain
License Agreement dated as of February 1, 2005, as amended as of
March 29, 2005, June 10, 2005 and January 31, 2007 (collectively,
the “License Agreement”); that certain Stock Purchase
Agreement dated as of February 1, 2005 (the “Stock Purchase
Agreement”); and, along with certain other parties thereto,
that certain Amended and Restated Stockholders Agreement dated as
of February 1, 2005 (the “Stockholders
Agreement”);
WHEREAS , the Company has requested, and Columbia has
agreed to the termination of the Stock Purchase Agreement, the
termination of the Stockholders Agreement, and an amendment of the
License Agreement, as amended through and including the Third
Amendment thereto (the “License Agreement”), in
accordance with that certain Fourth Amendment to the License
Agreement, a copy of which is attached hereto and marked as Exhibit
“A” (the “Fourth Amendment”), and certain
waivers of possible defaults that could be claimed in connection
with the Performance Obligations (as defined below); and
WHEREAS , in connection with the foregoing transactions
Columbia desires to transfer to Company and Company desires to
accept such transfer of the entirety of Company’s common
stock held by Columbia, whereupon Columbia shall have no further
equity interest or claim to any such equity in Company.
AGREEMENTS
NOW, THEREFORE
, in consideration of the mutual
covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1.
Termination of Stock Purchase
Agreement . Effective upon the Effective Date
(as defined below) and without further action on the part of the
Company or Columbia, the Stock Purchase Agreement shall be
terminated and of no further force and effect, and no party thereto
shall have any further obligations whatsoever thereunder to any
other party.
2.
Termination of Stockholders
Agreement . Pursuant to the Termination
Agreement (Stockholders Agreement) among each of the parties to the
Stockholders Agreement, a copy of which is attached hereto and
marked as Exhibit “B” (the “Termination Agreement
(Stockholders Agreement)”), dated as of the 31
st day of May 2008 (the “Effective
Date”), each of the parties to the Stockholders Agreement,
including Columbia and the Company (which have executed the
Termination Agreement (Stockholders Agreement) on the
date hereof), shall (a) release each of the other parties to the
Stockholders Agreement from his or its respective rights,
restrictions and obligations set forth in the Stockholders
Agreement as and to the extent any and all such rights,
restrictions and obligations may run in favor of or otherwise
benefit of such party; and (b) consent and agree to the termination
of the Stockholders Agreement upon the Effective Date, without
further action on the part of any such party, and that, upon such
date, the Stockholders Agreement shall be terminated and of no
further force and effect, and no party thereto shall have any
further obligations whatsoever thereunder to any other
party. Effective as of the date of this Agreement and as
of immediately prior to the Effective Date, the Company represents
and warrants to, and covenants and agrees with, Columbia that there
are, and will not be, any parties to the Stockholders Agreement,
other than the persons and entities listed as parties to the
Termination Agreement (Stockholders Agreement), and that no other
person or entity has any rights in respect of the termination of
the Stockholders Agreement and the other matters provided for in
the Termination Agreement (Stockholders Agreement).
3.
Conveyance of Shares of Common
Stock . Effective as of the Signing Date,
Columbia hereby sells, assigns and transfers to Company, without
representation or warranty, any and all right, title and interest
of Columbia in and to 424,100 shares of Company common stock that
Company had agreed to, but did not, issue to Columbia, and all of
the shares of Company common stock represented by Share
Certificates nos. C-29 and C-40 (the “Columbia
Certificates”), representing in the aggregate 572,580 shares
of Company common stock (without taking into account any split of
Company’s shares of common stock)(collectively, the
“Columbia Shares”). Company hereby accepts
all such sales, assignments and transfers of the Columbia Shares
described in this Section 3 as of the Signing
Date. Following such transactions, Columbia shall have
no further claim whatsoever to any shares of Company’s common
stock or any other right to equity therein, including, without
limitation, the Columbia Shares. As soon as reasonably practicable
following the Signing Date, Columbia shall deliver to Company the
Columbia Certificates, duly endorsed or accompanied by a stock
power duly executed on behalf of Columbia, effecting the sale,
assignment and transfer of the Columbia Shares to Company, without
representation or warranty.
4.
Possible
Defaults . Without making any admission whatsoever as to
whether it may have failed to satisfy its obligations thereunder,
Company acknowledges its performance obligations under the
following Sections of the Stock Purchase Agreement and License
Agreement, respectively, solely as they relate to the matters
specified below with respect to each such Section (collectively,
the “Performance Obligations”):
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Stock Purchase Agreement–
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Section 2.2(a): Relating to
Company’s obligation to notify Columbia of certain amendments
to its Articles of Incorporation; and
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Sections 6.1 & 6.2: Relating to
Company’s obligations in connection with the exercise by
Columbia of its preemptive rights (together, the obligations
referred to in clause (a)(i) above and this clause (a)(ii) shall be
referred to as the “Stock Purchase Performance
Obligations”); and
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Section 6(a)(i): Relating to certain
required expenditures for research and development;
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Section 6(a)(ii): Relating to certain
minimum funding requirements;
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Section 6(a)(iv)(a): Relating to the
timing of certain FDA filings;
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Section 6(a)(v)(a): Relating to the timing
of certain animal studies;
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Section 16(a)(i): Relating to
Company’s obligation to pay fully and promptly amounts due
under Section 3, 4 or 7; and
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Section 16(a)(iii): Relating to certain
defaults created under the License Agreement by virtue of acts or
omissions relating to the Stock Purchase Performance Obligations
under the Stock Purchase Agreement (together, the obligations
referred to in clauses (b)(i) through (v) above and this clause
(b)(vi) shall be referred to as the “License Performance
Obligations”).
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Columbia hereby (a) waives (i) any and all
defaults that may have occurred on account of any act or omission
on the part of Company in connection with (1) the Stock Purchase
Performance Obligations through the Effective Date and
(2) the License PerformanceObligations through the Signing Date,
and (ii) any and all rights of enforcement Columbia may have in
connection therewith, to include its options described under
Sections 6(b), (c) and (d) of the License Agreement; and (b)
confirms that the License Agreement, as amended by the Fourth
Amendment, is and remains in full force and effect. The
Company represents and warrants to, and covenants and agrees with,
Columbia that the Company has not, and will not have, breached any
of its obligations under (x) the License Agreement effective as of
the Signing Date as of immediately prior to the Signing Date, or
(y) the Stock Purchase Agreement and Stockholders
Agreement effective as of the Effective Date and as of immediately
prior to the Effective Date; provided that such representations,
warranties, covenants and agreements do not, and will not, apply to
the Performance Obligations.
5.
Intentionally
Omitted .
6.
Governing Law;
Jurisdiction . This Agreement shall be construed
under and governed by the law of New York, excluding any choice of
law provisions which would direct the application of any other
state’s laws. The parties agree that any and all
claims arising under this Agreement or relating thereto shall be
heard and determined exclusively in the United States District
Court for the Southern District of New York or in the courts of the
State of New York located in the City and County of New York, and
the parties agree to submit themselves to the personal jurisdiction
of those courts and not to raise any objection to venue being had
in those courts.
7.
Entire
Agreement . This Agreement shall constitute the
entire agreement between the parties with respect to the subject
matter hereof and supersede all prior or contemporaneous agreements
and understandings among the parties with respect
thereto. The foregoing is without limitation as to the
effect of the Fourth Amendment and the Termination Agreement
(Stockholders Agreement). No addition to or modification
of any provision of this Agreement shall be binding upon any party
hereto unless made in writing and signed by all parties
hereto.
8.
Counterparts
. This Agreement may be executed and
delivered in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same
agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or by electronic mail
shall be effective as delivery of a manually executed counterpart
hereof.
9.
Binding Agreement; Third-Party
Beneficiaries . This Agreement shall be binding
upon, and inure to the benefit of each of the parties and their
respective successors and assigns; provided that this Agreement may
not be assigned by either party other than to a successor by
operation of law. There are no third-party beneficiaries
of or with respect to this Agreement or any rights granted
herein.
10.
Severability
. If any portion of this Agreement or
application thereof is held invalid, the invalidity shall not
affect other provisions of this Agreement that can be given effect
without the invalid provision or application and, to this end, the
provisions of this Agreement are declared to be
severable.
[Remainder of this page
intentionally left blank.]
IN WITNESS WHEREOF , the parties have caused this Agreement to be
executed as of the date first written above.
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Columbia
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The Trustees of
Columbia University in the City of New York, a New York
corporation
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/s/ Orin
Herskowitz
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Authorized
Officer
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COMPANY
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OMNIMMUNE
CORP. , a Texas
corporation
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By:
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/s/ Harris
A.
Lichtenstein
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Name: Harris A.
Lichtenstein
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Title: Chief
Executive Officer
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EXHIBIT A
FOURTH AMENDMENT
TO
LICENSE AGREEMENT
THIS FOURTH AMENDMENT TO THE
LICENSE AGREEMENT (the
“Amendment”), is entered into as of the ___ day of June
2008 and made effective as of the Signing Date (for purposes of
this Amendment, such term shall have the meaning set forth in that
certain Master Termination Agreement of even date herewith among
the parties hereto (the “Master Termination
Agreement”), by and between The Trustees of Columbia
University in the City of New York, a New York corporation
(“Columbia”), and Omnimmune Corp., a Texas corporation
(the “Company”) (together, Columbia and Company shall
be referred to as the “Parties”). For
purposes of this Amendment, the phrase “License
Agreement” shall mean that certain License Agreement entered
into by and between the Columbia and Company as of the 1
st day of February 2005, as amended March 29, 2005;
June 10, 2005 and January 31, 2007; and unless otherwise defined
herein, capitalized terms and phrases shall have the meaning
ascribed thereto in the License Agreement.
WHEREAS , the Company has requested, and Columbia has
agreed, to amend the License Agreement upon the terms and
conditio
