Contract
Exhibit 10.2
THIS
NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS NOTE
AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE OR THE COMMON SHARES
ISSUABLE UPON CONVERSION OF THE NOTE UNDER SAID ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO OMNIMMUNE HOLDINGS, INC. THAT SUCH REGISTRATION IS
NOT REQUIRED.
| Principal Amount: $_____________ | Issue Date: January __, 2010 |
FOR VALUE
RECEIVED, OMNIMMUNE HOLDINGS, INC., a Delaware corporation (hereinafter called
"Borrower"), hereby promises to pay to ____________, ___________, ________,
_______, telecopier _____________ (the “Holder”), or order, without demand, the
sum of _____________ Dollars ($____________), with simple interest accruing
thereon, on the fifth anniversary of the issuance of the first Note of like
tenor} (the "Maturity Date"), if not paid sooner.
This Note
has been entered into pursuant to the terms of a subscription agreement between
the Borrower and the Holder, dated of even date herewith (the “Subscription
Agreement”), and shall be governed by the terms of such Subscription
Agreement. Unless otherwise separately defined herein, all
capitalized terms used in this Note shall have the same meaning as is set forth
in the Subscription Agreement. The following terms shall apply to
this Note:
ARTICLE
I
GENERAL
PROVISIONS
1.1 Payment Grace
Period. The Borrower shall have a ten (10) business day grace
period to pay any monetary amounts due under this Note, after which grace period
and during the pendency of an Event of Default (as defined in Article III) a
default interest rate of twelve percent (12%) per annum shall apply to the
amounts owed hereunder.
1.2 Conversion
Privileges. The Conversion Privileges set forth in Article II
shall remain in full force and effect immediately from the date hereof and until
the Note is paid in full regardless of the occurrence of an Event of
Default. The Note shall be payable in full on the Maturity Date,
unless previously converted into Common Stock in accordance with Article II
hereof; provided, that if an Event of Default has occurred that has not been
timely cured, the Holder may extend the Maturity Date an amount of time equal to
the duration of the Event of Default.
1.3 Interest
Rate. Simple interest payable on this Note shall accrue
at the annual rate of ten percent (10%) and be payable at the request of the
Holder upon or after each conversion of principal pursuant to Article II, and on
the Maturity Date, accelerated or otherwise, when the principal and remaining
accrued but unpaid interest shall be due and payable, or sooner as described
below.
ARTICLE
II
CONVERSION
RIGHTS
The
Holder shall have the right to convert the principal due under this Note into
Shares of the Borrower's Common Stock, $0.0001 par value per share (“Common
Stock”) as set forth below.
2.1. Conversion into the
Borrower's Common Stock.
(a) The
Holder shall have the right from and after the issuance of this Note and then at
any time until this Note is fully paid, to convert any outstanding and unpaid
principal portion of this Note, at the election of the Holder (the date of
giving of such notice of conversion being a "Conversion Date") into fully paid
and nonassessable shares of Common Stock as such stock exists on the date of
issuance of this Note, or any shares of capital stock of Borrower into which
such Common Stock shall hereafter be changed or reclassified, at the conversion
price as defined in Section 2.1(b) hereof (the "Conversion Price"), determined
as provided herein. Upon delivery to the Borrower of a completed
Notice of Conversion, a form of which is annexed hereto, Borrower shall issue
and deliver to the Holder within three (3) business days after the Conversion
Date (such third day being the “Delivery Date”) that number of shares of Common
Stock for the portion of the Note converted in accordance with the
foregoing. The number of shares of Common Stock to be issued upon
each conversion of this Note shall be determined by dividing that portion of the
principal of the Note to be converted, by the Conversion Price.
(b) Subject
to adjustment as provided in Section 2.1(c) hereof, the Conversion Price per
share shall be $0.01.
(c)
The Conversion Price and number and kind of shares or other securities to be
issued upon conversion determined pursuant to Section 2.1(a), shall be subject
to adjustment from time to time upon the happening of certain events while this
conversion right remains outstanding, as follows:
X. Xxxxxx,
Sale of Assets, etc. If the Borrower at any time shall consolidate
with or merge into or sell or convey all or substantially all its assets to any
other corporation, this Note, as to the unpaid principal portion thereof and
accrued interest thereon, shall thereafter be deemed to evidence the right to
purchase such number and kind of shares or other securities and property as
would have been issuable or distributable on account of such consolidation,
merger, sale or conveyance, upon or with respect to the securities subject to
the conversion or purchase right immediately prior to such consolidation,
merger, sale or conveyance. The foregoing provision shall similarly
apply to successive transactions of a similar nature by any such successor or
purchaser. Without limiting the generality of the foregoing, the
anti-dilution provisions of this Section shall apply to such securities of such
successor or purchaser after any such consolidation, merger, sale or
conveyance.
B. Reclassification,
etc. If the Borrower at any time shall, by reclassification or
otherwise, change the Common Stock into the same or a different number of
securities of any class or classes that may be issued or outstanding, this Note,
as to the unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock immediately prior to such
reclassification or other change.
C. Stock
Splits, Combinations and Dividends. If the shares of Common Stock are
subdivided or combined into a greater or smaller number of shares of Common
Stock, or if a dividend is paid on the Common Stock in shares of Common Stock,
the Conversion Price shall be proportionately reduced in case of subdivision of
shares or stock dividend or proportionately increased in the case of combination
of shares, in each such case by the ratio which the total number of shares of
Common Stock outstanding immediately after such event bears to the total number
of shares of Common Stock outstanding immediately prior to such
event.
(d) Whenever
the Conversion Price is adjusted pursuant to Section 2.1(c) above, the Borrower
shall promptly mail to the Holder a notice setting forth the Conversion Price
after such adjustment and setting forth a statement of the facts requiring such
adjustment.
(e) Subject
to availability of sufficient authorized and unissued shares of Common Stock,
Borrower will reserve from its authorized and unissued Common Stock the number
of shares of Common Stock during the time periods and in the amounts described
in the Subscription Agreement. Borrower represents that upon
issuance, such shares will be duly and validly issued, fully paid and
non-assessable. Xxxxxxxx agrees that its issuance of this Note shall
constitute full authority to its officers, agents, and transfer agents who are
charged with the duty of executing and issuing stock certificates to execute and
issue the necessary certificates for shares of Common Stock upon the conversion
of this Note.
2.2 Method of
Conversion. This Note may be converted by the Holder in whole
or in part as described in Section 2.1(a) hereof and the Subscription
Agreement. Upon partial conversion of this Note, a new Note
containing the same date and provisions of this Note shall, at the request of
the Holder, be issued by the Borrower to the Holder for the principal balance of
this Note and interest which shall not have been converted or paid.
2.3 Maximum
Conversion. The Holder shall not be entitled to convert on a
Conversion Date that amount of the Note in connection with that number of shares
of Common Stock which would be in excess of the number of shares of Common Stock
which would result in beneficial ownership by the Holder and its affiliates of
more than 4.99% of the outstanding shares of Common Stock of the Borrower on
such Conversion Date. For the purposes of the provision to the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13d-3 thereunder. Subject to the foregoing,
the Holder shall not be limited to aggregate conversions of only 4.99% and
aggregate conversion by the Holder may exceed 4.99%. The Holder shall
have the authority and obligation to determine whether the restriction contained
in this Section 2.3 will limit any conversion hereunder and to the extent that
the Holder determines that the limitation contained in this Section applies, the
determination of which portion of the Notes are convertible shall be the
responsibility and obligation of the Holder. The Holder may waive the
conversion limitation described in this Section 2.3, in whole or in part, upon
and effective after 61 days prior written notice to the Borrower to increase
such percentage to up to 9.99%. The Holder may allocate which of the
equity of the Borrower deemed beneficially owned by the Holder shall be included
in the 4.99% amount or up to 9.99% amount as described above.
2.4. Limitation
on Conversion Rights. Holder acknowledges and understands that,
unless and until there is an increase in the authorized share capital of the
Company, the number of shares of Common Stock into which all outstanding options, warrants and
convertible securities would be convertible upon consummation of the
transactions contemplated by the Subscription Agreement and the Term Sheet (as
defined in the Subscription Agreement) would substantially exceed the total
number of currently authorized shares of the Company. Accordingly,
pending an increase in authorized share capital, there may not be sufficient
authorized shares available for issuance upon receipt by the Company of a
request for conversion of the Notes. Notwithstanding any
other provision hereof or of the Subscription Agreement, Xxxxxx agrees and
acknowledges that the right to convert shall be subject to the availability of a
sufficient number of authorized and unissued shares of Commons Stock of the
Company to accommodate the conversion as measured at the time a
request for conversion is made.
ARTICLE
III
EVENT
OF DEFAULT
The
occurrence of any of the following events of default ("Event of Default") shall,
at the option of the Holder hereof, make all sums of principal and interest then
remaining unpaid hereon and all other amounts payable hereunder immediately due
and payable, upon demand, without presentment, or grace period, all of which
hereby are expressly waived, except as set forth below:
3.1 Failure to Pay Principal or
Interest. The Borrower fails to pay any installment of
principal, interest or other sum due under this Note when due and such failure
continues for a period of ten (10) business days after the due
date. The ten (10) day period described in this Section 3.1 is the
same ten (10) business day period described in Section 1.1 hereof.
3.2 Breach of
Covenant. The Borrower breaches any material covenant or other
material term or condition of the Subscription Agreement or this Note in any
material respect and such breach, if subject to cure, continues for a period of
ten (10) business days after written notice to the Borrower from the
Holder.
3.3 Breach of Representations
and Warranties. Any material representation or warranty of the
Borrower made herein, in the Subscription Agreement, or in any agreement,
statement or certificate given in writing pursuant hereto or in connection
therewith shall be false or misleading in any material respect as of the date
made and the Closing Date.
3.4 Receiver or
Trustee. The Borrower shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed without the consent of the
Borrower is not dismissed within sixty (60) days of appointment.
3.5 Judgments. Any
money judgment, writ or similar final process or non-appealable order of final
judgment shall be entered or filed against Borrower or any of its property or
other assets for more than $150,000, and shall remain unpaid, unvacated,
unbonded or unstayed for a period of forty-five (45) days.
3.6 Bankruptcy. Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Borrower and if instituted against Borrower are not dismissed within
sixty (60) days of initiation.
3.7
Delisting. Failure
of the Common Stock to be listed for trading or quotation on a Principal Market,
which delisting remains uncured for ten or more consecutive days.
3.8 Non-Payment. A
default by the Borrower, occurring following the Issue Date, under
any one or more obligations in an aggregate monetary amount in excess of
$200,000 for more than forty-five (45) days after the due date, unless the
Borrower is contesting the validity of such obligation in good faith, or except
as described on Schedule 5(q) to the Subscription Agreement, or except for
obligations where the Borrower and creditor have agreed to alternative payment
terms. This provision shall not apply with respect to any purported
obligation under the Company’s license agreement with Ohio State University, as
described in the Company’s public filings.
3.9 Stop
Trade. An SEC or judicial stop trade order or Principal Market
trading suspension that lasts for ten or more consecutive trading
days.
3.10 Failure to Deliver Common
Stock or Replacement Note. Subject to Section 2.4 hereof,
Xxxxxxxx's failure to timely deliver Common Stock to the Holder pursuant to and
in the form required by this Note and Sections 7 and 11 of the Subscription
Agreement, or, if required, a replacement Note for ten business days beyond the
required delivery date or any stated cure period, whichever is
later.
3.11 Reservation
Default. Subject to Section 2.4 hereof , failure by the
Borrower to have reserved for issuance upon conversion of the Note the amount of
Common Stock as set forth in this Note.
3.12 Cross
Default. A default by the Borrower of a material term,
covenant, warranty or undertaking of any other agreement to which the Borrower
and Holder are parties, if any, or the occurrence of a material event of default
under any such other agreement which is not cured after any required notice
and/or cure period.
ARTICLE
IV
MISCELLANEOUS
4.1 Failure or Indulgence Not
Waiver. No failure or delay on the part of Holder hereof in
the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
4.2 Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Borrower to: Omnimmune
Holdings, Inc., 0000 Xxxx Xxx Xxxxx, Xxxxx 000, Xxxxxxx, XX , Attn: Xxxxxx X.
Xxxxxxxxxxxx, CEO, telecopier: (000) 000-0000, with a copy by telecopier only
to: Xxxxxx + Xxxxxx LLP, 000 Xxxxx 0 Xxxxx, Xxxxxxxxx, XX 00000, Attn: Xxxx
Xxxxx, Esq., telecopier: (000) 000-0000, and (ii) if to the Holder, to the name,
address and telecopy number set forth on the front page of this Note, with a
copy by telecopier only to Xxxxxx X. Xxxxxxxx, 0000 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopier number: (000) 000-0000.
4.3 Amendment
Provision. The term "Note" and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or
supplemented.
4.4 Assignability. This
Note shall be binding upon the Borrower and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and
assigns.
4.5 Cost of
Collection. If default is made in the payment of this Note,
Borrower shall pay the Holder hereof reasonable costs of collection, including
reasonable attorneys' fees.
4.6 Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York. Any action brought
by either party against the other concerning the transactions contemplated by
this Agreement shall be brought only in the civil or state courts of New York or
in the federal courts located in the State and county of New
York. Both parties and the individual signing this Agreement on
behalf of the Borrower agree to submit to the jurisdiction of such
courts. The prevailing party shall be entitled to recover from the
other party its reasonable attorney's fees and costs.
4.7 Maximum
Payments. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that
the rate of interest required to be paid or other charges hereunder exceed the
maximum permitted by such law, any payments in excess of such maximum shall be
credited against amounts owed by the Borrower to the Holder and thus refunded to
the Borrower.
4.8 Shareholder
Status. The Holder shall not have rights as a shareholder of
the Borrower with respect to unconverted portions of this
Note. However, the Holder will have all the rights of a shareholder
of the Borrower with respect to the shares of Common Stock to be received by
Holder after delivery by the Holder of a Conversion Notice to the
Borrower.
IN WITNESS WHEREOF, Xxxxxxxx
has caused this Note to be signed in its name by an authorized officer as of the
____ day of January 2010.
By:________________________________
Name:
Title:
WITNESS:
______________________________________
NOTICE OF
CONVERSION
(To be
executed by the Registered Holder in order to convert the Note)
The
undersigned hereby elects to convert $_________ of the principal and $_________
of the interest due on the Note issued by Omnimmune Holdings, Inc. on January
__, 2010 into Shares of Common Stock of Omnimmune Holdings, Inc. (the
"Borrower") according to the conditions set forth in such Note, as of the date
written below.
Date of
Conversion:___________________________________________________________________
Conversion
Price:_____________________________________________________________________
Shares To
Be
Delivered:________________________________________________________________
Signature:___________________________________________________________________________
Print
Name:__________________________________________________________________________
Address:____________________________________________________________________________
___________________________________________________________________________
