Exhibit
10.6
TERMINATION
AGREEMENT
THIS TERMINATION AGREEMENT
(this “Agreement”) is
entered into effective as of June 20, 2008 (the “Effective
Date”) by and between Allegheny-Singer Research Institute, a
Pennsylvania nonprofit corporation (“ASRI”) and
Omnimmune Corp., a Texas corporation (the
“Company”).
RECITALS
WHEREAS , ASRI and Company entered into that certain
Amended and Restated License Agreement dated as of February 1,
2005, as amended as of January 31, 2007 (collectively, the
“License Agreement”); that certain Stock Purchase
Agreement dated as of January 15, 1999 (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 , Company is in negotiations with New Castle
Financial Services, LLC (“New Castle”) regarding its
assistance in raising new capital on Company’s behalf
pursuant to the terms of a Placement Agent Agreement (the
“Placement Agent Agreement”), the execution and
delivery of which has been conditioned on Company first securing
from ASRI the termination of the Stock Purchase Agreement and
Stockholders Agreement, an amendment of the License Agreement in
accordance with that certain Second Amendment to the Amended and
Restated License Agreement, a copy of which is attached hereto and
marked as Exhibit “A” (the “Second
Amendment”), and a waiver of any possible defaults that could
be claimed in connection with the Performance Obligations (as
defined below); and
WHEREAS , based on the forgoing, ASRI has agreed to
enter into this Agreement, provided that the terms and conditions
of this Agreement are subject to Company’s satisfaction of
the following conditions subsequent: (1) Within thirty
(30) days of the Effective Date, each of Company and New Castle
shall have entered into the Placement Agent Agreement; (2) Company
shall have issued to ASRI in accordance with this Agreement
1,450,424 shares of its common stock (the “Additional
Shares”), which shares represented approximately 1.0% of the
common stock of the Company on a fully diluted basis as of March
26, 2007, as adjusted for a 2.8072-for-one split of the
Company’s common stock effective as of March 26, 2008; and
(3) Company shall have paid timely ASRI the amount of $50,000 in
satisfaction of its obligation under Section 3(e), as amended by
the Second Amendment, provided that such payment be paid on such
earlier date as may coincide with the first distribution to the
Company’s operating account, either from an escrow account or
otherwise, of proceeds from any offering by New Castle
under the Placement Agent Agreement (collectively, the
“Conditions Subsequent”).
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 . The Stock Purchase Agreement is
hereby 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 . ASRI hereby releases each of the
other parties 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
ASRI. Further, ASRI hereby consents to and
agrees to the termination of the Stockholders Agreement, and, upon
receipt of the consent of the requisite parties required by Section
5.6 thereof, 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.
3.
Confirmation of Shares of
Common Stock . Company hereby agrees to issue to
ASRI the Additional Shares as soon as reasonably practicable, but
in no event later than thirty (30) days from the Effective
Date. Subject to the foregoing, ASRI hereby agrees that
together with the Additional Shares, it owns 2,612,605 shares of
Company’s common stock (on a post-split basis), and has no
claim whatsoever to any further shares of Company’s common
stock.
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 License Agreement (collectively, the
“Performance Obligations”):
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Section 3(e):
Relating to timing of certain ’07 & ‘08
payments to ASRI;
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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
8: Relating to certain sponsored research funding
obligations; and
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Section
18(a)(i) & (iii): Relating to certain defaults under the
License Agreement and the Stock Purchase Agreement and Stockholders
Agreement.
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ASRI hereby waives any and all defaults that may
have occurred on account of any act or omission on the part of
Company in connection with the Performance Obligations through the
Effective Date, and any and all rights of enforcement ASRI may have
in connection therewith, to include its options described under
Sections 6(b), (c) and (d) of the License Agreement; and confirms
that the License Agreement is and remains in full force and
effect.
5.
Satisfaction of Conditions
Subsequent. Notwithstanding any provision in this
Agreement or the
