TERMINATION AGREEMENT
Exhibit
10.6
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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(a)
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Section
3(e): Relating to timing of certain ’07 & ‘08 payments to
ASRI;
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(b)
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Section
6(a)(i): Relating to certain required expenditures for research and
development;
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(c)
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Section
6(a)(ii): Relating to certain minimum funding
requirements;
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(d)
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Section
6(a)(iv)(a): Relating to the timing of certain FDA
filings;
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(e)
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Section
8: Relating to certain sponsored research funding obligations;
and
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(f)
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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 Second Amendment to the contrary, this Agreement and the Second
Amendment, which is to be executed by and between ARSI and Company of even date
herewith, shall become and thereafter be null and void if Company fails to
timely satisfy each of the Conditions Subsequent.
6. Governing
Law. This Agreement
shall be construed under and governed by the law of Pennsylvania, excluding any
choice of law provisions which would direct the application of any other state’s
laws.
7. Entire
Agreement. This Agreement
shall constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings
among the parties with respect thereto. 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. Third-Party
Beneficiaries. Each of the
respective successors and assigns of the Company shall be deemed to be a
third-party beneficiary of or with respect to this Agreement or any rights
granted herein, and no other person shall be deemed to be a third-party
beneficiary of this Agreement.
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.
IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed as of the date first written
above.
ASRI
Allegheny-Singer
Research Institute, a Pennsylvania nonprofit corporation
/s/ Xxxx
Cornman________________________
Authorized
Officer
COMPANY
OMNIMMUNE CORP.
By:/s/ Harris A.
Lichtenstein_______________
Name:
Xxxxxx X. Xxxxxxxxxxxx
Title:
Chief Executive Officer
EXHIBIT
A
SECOND
AMENDMENT
TO
AMENDED
AND RESTATED LICENSE AGREEMENT
THIS SECOND AMENDMENT TO THE AMENDED
AND RESTATED LICENSE AGREEMENT (the “Amendment”), effective as of the ___
day of May 2008, is entered into by and between Allegheny-Singer Research
Institute, a Pennsylvania nonprofit corporation (“ASRI”), and Omnimmune Corp., a
Texas corporation (the “Company”)(together, ASRI and Company shall be referred
to as the “Parties”). For purposes of this Amendment, the phrase
“License Agreement” shall mean that certain Amended and Restated License
Agreement entered into by and between the ASRI and Company as of the 1st day of
February 2005, as amended January 31, 2007; and unless otherwise defined herein,
capitalized terms and phrases shall have the meaning ascribed thereto in the
License Agreement.
WHEREAS, each of the Parties
to this Amendment hereby acknowledge that Company intends to enter into a
Placement Agent Agreement with New Castle Financial Services, LLC; and as a
condition thereto, Company and ASRI must first enter into this
Amendment;
NOW THEREFORE, for good and
valuable consideration, including, without limitation, the promises and the
mutual covenants contained herein, the Parties agree as follows:
Section
1. Amendments. Each of the Parties hereby agrees to amend
the License Agreement as follows:
(a) Subsection
(c) of Section 2 of the License Agreement, entitled “License Grant” is hereby
amended by deleting the phrase “non-exclusive” from the first sentence thereof
and in lieu thereof the following phrase shall be
added: “non-exclusive or exclusive…”;
(b) Section
3(e), entitled “License Maintenance Fees,” shall be amended by deleting in the
entirety the phrase “$50,000 on or before February 1, 2008,” and in lieu
thereof, adding the following phrase: “$50,000 on or before June 30,
2008”;
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(c)
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Section
6, entitled “Best Efforts,” shall be amended as
follows:
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(1)
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Subsection
6(a)(i) shall be amended by deleting the date “February 1, 2007,” and in
lieu thereof adding the date “September 1,
2009”;
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(2)
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Subsection
6(a)(ii) shall be deleted in its entirety and in lieu thereof the
following phrase shall be added: “Section
Reserved”;
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(3)
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Subsection
6(a)(iii) shall be amended by deleting the date “February 1, 2009,” and in
lieu thereof adding the date “August 1,
2010”;
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(4)
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Subsection
6(a)(iv)(a) shall be amended by deleting the date “February 1, 2007,” and
in lieu thereof adding the date “September 1,
2009”;
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(5)
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Subsection
6(a)(iv)(b) shall be amended by deleting the date “February 1, 2009,” and
in lieu thereof adding the date “February 1,
2011”;
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(6)
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Subsection
6(a)(iv)(c) shall be amended by deleting the date “February 1, 2010,” and
in lieu thereof adding the date “February 1,
2012”;
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(7)
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Subsection
6(a)(v)(a) shall be amended by deleting the dates “February 1, 2007” and
“February 1, 2009,” and in lieu thereof adding the dates “February 1,
2011” and February 1, 2012,”
respectively;
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(8)
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Subsection
6(a)(v)(b) shall be amended by deleting the date “February 1, 2009,” and
in lieu thereof adding the date “February 1,
2012”;
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(9)
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Subsection
6(a)(v)(c) shall be amended by deleting the date “February 1, 2010,” and
in lieu thereof adding the date “February 1, 2014”;
and
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(10)
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Subsection
6(a)(v)(d) shall be amended by deleting the date “February 1, 2012,” and
in lieu thereof adding the date “February 1, 2016”;
and
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(d) Section
8, entitled “Sponsored Research” shall be deleted in its entirety, and in lieu
thereof, the following phrase shall be added: “Section
Reserved.”
(e) Section
18, entitled “Breach and Cure” shall be amended to delete therefrom in its
entirety subsection 18(a)(iii).
(f) Section
20, entitled “Assignment” shall be amended to delete the first sentence thereof
in its entirety and in lieu thereof, adding the following new
sentence:
This
Agreement may not be assigned by Company without the written consent of ASRI,
which consent shall not be unreasonably delayed, denied, withheld or
conditioned. Notwithstanding any provision in this Agreement to the
contrary, this Agreement may be assigned as a result of any transaction or
series or related transactions that results in the assignment of Omnimmune’s
assets by operation of law, whether by merger or otherwise, or that would occur
as part of or in connection with the sale of all or substantially all of its
assets.
Section
2. Each
of the Parties to this Amendment acknowledge and agree that, except as modified
hereby, all of the terms and provisions of the Agreement shall remain in full
force and effect.
Section
3. This
Amendment is the sole agreement between the Parties as to the amendment and
modification of the Agreement as described herein.
Section
4. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same
instrument. Invalidation of any one or more of the provisions of this
Amendment shall in no way affect any of the other provisions of this Amendment,
which shall remain in full force and effect.
Section
5. This
Amendment shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective heirs, executors, successors, personal
representatives and assigns.
Section
6. Should
a conflict arise or otherwise exist between the terms and conditions of the
License Agreement and this Amendment or any interpretation thereof, each of the
Parties agree that the terms and conditions of this Amendment shall
prevail.
IN WITNESS WHEREOF, the
Parties have executed this Amendment as of the date first above
written.
ASRI
Allegheny-Singer
Research Institute, a Pennsylvania nonprofit corporation
By: [Exhibit Version Only – Not
for Signature]
Name:
______________________________
Title:
_______________________________
COMPANY
Omnimmune
Corp., a Texas corporation
By: [Exhibit Version Only – Not
for Signature]
Name:
______________________________
Title:
_______________________________
