LOCK-UP AGREEMENT
Exhibit 10.4
LOCK-UP
AGREEMENT (this “Agreement”), dated as of this 20th day of January
2010, by and between XXXXXX XXXXXXXX (“Xxxxxxxx”), and OMNIMMUNE HOLDINGS, INC.
(the “Company”).
W I T N E S S E T H
WHEREAS,
Xxxxxxxx beneficially owns and holds certain shares of common stock, par value
$.0001 per share (the “Common Stock”) of the Company and certain promissory
notes of the Company, a portion of which are convertible into shares of the
Common Stock of the Company (the “Xxxxxxxx Notes”); and
WHEREAS,
certain parties affiliated with, and/or otherwise controlled by Xxxxxxxx and her
affiliates, whether directly or indirectly, (collectively, the “Additional
Parties”), currently hold or own certain shares of Common Stock and/or certain
notes or other securities convertible into Common Stock; and
WHEREAS,
in connection with Xxxxxxxx’x standby commitment with respect to a financing by
the Company through the sale of convertible notes in the principal amount of
$500,000, and as part of the Company’s agreed upon recapitalization of its
capital structure. as described in tha certain term Sheet between the Company
and Xxxxxx Xxxxxxxx of even date herewith, the Company has agreed to adjust the
conversion price on up to $800,000 principal amount of the Xxxxxxxx Notes to
$0.01 per share of Common Stock, subject to Xxxxxxxx’x agreement to limit her
sales of Common Stock and Xxxxxxxx Notes of the Company, and to bind the
Additional Parties to the terms of this lock-up, all in accordance with this
Agreement .
NOW
THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants and agreements hereinafter set forth, the parties hereto
do hereby agree as follows:
1. Lock-Up.
(a) Xxxxxxxx agrees, for herself and on behalf of the
Additional Parties, that for a period of twenty-four (24) months following the
date hereof (the “Lock-Up Period”), Xxxxxxxx and the Additional Parties will
not, without the prior written consent of the Company, sell, offer to sell,
contract or agree to sell, hypothecate, pledge or otherwise dispose of or agree
to dispose of, directly or indirectly, any shares of Common Stock or any notes
or other securities convertible into Common Stock, including the Xxxxxxxx Notes,
except as provided herein. The foregoing sentence shall not apply to
(a) bona fide gifts, provided the recipient thereof agrees in writing to be
bound by the terms of this Agreement, (b) dispositions to any trust for the
direct or indirect benefit of the undersigned and/or the immediate family of
Xxxxxxxx, and (c) disposition of up to $25,000 principal amount of the Notes to
Xxxxxxxx’x attorney, provided that such attorney agrees in writing to be bound
by the terms of this Agreement. In addition, to the extent that any
Common Stock held by any of the Additional Parties represents “Founders’ Stock”
acquired by an original investor prior to the completion of the
merger that resulted in the Company becoming a public company, such Additional
Parties shall not be subject to the restrictions of this Lock-Up solely with
respect to such original Founders’ shares. With the
exeption of the notes or shares reprenting the Leak-Out Amount (asd defined
below), all shares of Common Stock, Xxxxxxxx Notes and other convertible notes
that are covered by and subject to the terms of this Lock-upshall bear an
appropriate legend evidencing the limitations concerning the sale,
pledge or other transfer thereof, both under appropriate securities laws and the
terms of this Lock-Up Agreement.
(b) Notwithstanding
the provisions of paragraph (a) of this Section 1, during the Lock-Up
Period, Xxxxxxxx may sell shares of Common Stock, including shares into which
any Xxxxxxxx Notes have been converted, or the Xxxxxxxx Notes
themselves, provided that the aggregate number of shares that she may
sell in any calendar quarter during the Lock-Up Period may not exceed 3,000,000
shares of Common Stock, inclusive of shares into which any transferred Xxxxxxxx
Note is convertible (the “Leak-Out Amount”), and provided further that the
shares represented by the Leak-Out Amount, including those into which any
Xxxxxxxx Note is convertible, may only be sold to Xxxxx X Xxxxxx and/or BullBear
Ventures (collectively, “Xxxxxx”) in a private sale or series of private sales,
it being understood that there shall be no contractual restriction on Xxxxxx’x
ability to immediately re-sell the acquired shares that comprise the
Leak-Out Amount, including through the public
markets. Notwithstanding the foregoing, all parties agree and
acknowledge that the transfer of the Leak-Out Amount to Xxxxxx, and all
subsequent sales of the Notes or the Underlying Shares by Xxxxxx, are subject to
compliance with all applicable securities laws, including the Securities Act of
1933, as amended.
(c) Xxxxxxxx represents that she has the
power and authority to bind the Additional Parties to this Lock-Up Agreement and
that she shall be responsible for any sale of stock or notes by the Additional
Parties which violate the terms of this Agreement.
2. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed
therein.
3. Counterparts.
This
Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
Agreement.
4. Notices.
All
notices hereunder shall be in writing and shall be deemed to have been duly
given (a) when delivered personally, (b) upon receipt of a transmission
confirmation (with a confirming copy delivered personally or sent by overnight
courier) if sent by facsimile or like transmission, or (c) on the next business
day when sent by Federal Express, United Parcel Service, U.S. Express Mail or
other reputable overnight courier for guaranteed next day delivery, as
follows.
If to
Xxxxxxxx: at her address shown on the books and records
of the Company.
If to the
Company: at 0000 Xxxx Xxx Xxxxx, Xxxxx 000, Xxxxxxx, XX
, Attn: Xxxxxx X. Xxxxxxxxxxxx, CEO.
Either
party may change the address to which notices are to be sent to it by giving
written notice of such change of address to the other party in the manner above
provided for giving notice.
IN
WITNESS WHEREOF, the parties hereto have executed this instrument as of the date
and year first above written.
/s/ Xxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxxx, for herself and on
behalf of
the Additional Parties
By:/s/ Xxxxxx X.
Xxxxxxxxxxxx
Xxxxxx X.
Xxxxxxxxxxxx, CEO
