ex4-10.htm


    Exhibit 4.10


     

    NEITHER
THIS CONVERTIBLE PROMISSORY NOTE NOR THE SECURITIES FOR WHICH IT MAY BE
EXCHANGED HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR THE SECURITIES LAWS OF ANY STATE AND NEITHER THIS NOTE NOR SUCH
SECURITIES MAY BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND LAWS UNLESS MAKER RECEIVES AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT SUCH REGISTRATION IS NOT
REQUIRED.

    


    10% CONVERTIBLE PROMISSORY
NOTE

     

    Houston,
Texas

     

    $[_______] Issue
Date:  [___________]

    


    FOR VALUE RECEIVED, the
undersigned, Omnimmune Corp., a Texas corporation (“Maker”), promises to pay to
[____________________________________], a [_____________________] (“Payee”;
Payee and any subsequent holder(s) hereof are individually and collectively
referred to as “Holder”), or order, the sum of [___________] Dollars
($[_______]), together with interest thereon from and after the date hereof
until paid in full, all as hereinafter provided.

    


    1.           Interest and Principal
Payments.

    


    (a)           Payment in Cash or
Securities.  This Note is payable in either:

    


    
      	
              (i)  

            	
              Immediately
      available funds on written demand by Holder at any time on or after that
      date which is the earlier of: (1) twenty-four (24) months after the Issue
      Date set forth herein above, or (2) upon receipt by Maker of financing,
      whether through debt or equity, resulting in gross proceeds of at least
      $5.0 million; or

            


    

    


    
      	
              (ii)  

            	
              Securities
      of Maker in accordance with Section 2
below.

            


    

     

    (b)           Interest.  From
and including the date hereof to and including the date this Note is paid or
otherwise discharged, the unpaid principal amount of this Note shall bear simple
interest per annum at ten percent (10%), computed on the basis of a year of
three hundred sixty (360) days.

    


    (c)           Tender.  All
payments of principal and interest shall be made in lawful money of the United
States of America (except as otherwise provided in Sections 1(a), above, and 2,
below) and shall be made to Holder at Holder’s address set forth in Section 7 or
at such other place as Holder may designate to Maker in writing.

    


    2.           Conversion
of Note.

    


    (a) Definitions.  For
purposes of this Note, the following terms shall have the meaning ascribed
thereto:

    


    “Offering”
shall mean the offering in which this Note was purchased.

    


    “Qualified
Financing” shall mean the closing of any equity financing completed by Maker
subsequent to the closing of the Offering involving the sale and issuance (or
any series of integrated sales and issuances) by Maker to third parties of
shares of its capital stock resulting in gross proceeds to Maker of not less
than Five Hundred Thousand Dollars ($500,000).

    


    (b) Conversion.  At
the closing of a Qualified Financing, the face amount of this Note shall be
convertible, at the option of the Holder, into equity of the Maker at the price
and in accordance with the terms of such Qualified Financing.

    


    (c) Payment of
Interest.  Upon conversion of this Note and deliverance to the
Holder of the full amount of unencumbered securities, Maker shall be forever
released from all its obligations and liabilities under this Note, except that
Maker shall be obligated to pay Holder, within thirty (30) days after the date
of such conversion, any interest accrued and unpaid to and including the date of
such conversion, and no more.

    


    (d) Maker’s Right of Prepayment
Without Penalty.  It is agreed and understood by Holder that
Maker reserves the right and option at any time after the date hereof and during
the term of this Note to prepay the principal and interest hereunder in cash
without penalty; provided, however, that Maker
may only exercise its right to prepay this Note after having first delivered to
Holder ten (10) days prior written notice of its intent to do so.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    3.           Exchange Procedures;
Reservation of Shares; Taxes.

    


    (a) Delivery of
Certificate.  In the case of Holder's election to convert this
Note into Maker’s securities as provided under Section 2, Holder shall deliver a
written notice of such election to Maker in which Holder shall so indicate such
election.  Any conversion shall be deemed to have been made at the
close of business on the date the recipient is deemed to have received such
notice.  Upon the exchange of this Note, Maker shall, as soon as
practicable, take all such steps as may be necessary to issue such equity, in
exchange for this Note, and thereafter deliver to Holder a certificate or
certificates for the equity to which Holder shall be entitled against receipt of
this Note, duly endorsed for cancellation.

    


    (b) Holder Not Deemed a
Stockholder.  Unless and until this Note is converted or
exchanged as set forth herein, Holder shall not be entitled to vote or receive
dividends or be deemed the holder of equity of the Company for any purpose
(other than to the extent that Holder may previously own shares of equity of the
Company, prior to or exclusive from the conversion of this Note), nor shall
anything contained in this Note be construed to confer upon the Holder any of
the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate actions (whether any reorganization, issue of
stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance of record to the Holder of the
securities which it is then entitled to receive upon the due exercise of its
right to convert this Note, as aforesaid.

    


    (c) Reservation of
Shares.  Maker covenants that, at the exchange date, it will
make available out of its authorized equity, solely for the purpose of issue
upon exchange of this Note, such equity as shall then be issuable upon the
exchange of this Note.

    


    (d) Validity of
Issuance.  Maker covenants that all securities issued hereunder
shall, at the time of delivery, be duly and validly issued, fully paid and
nonassessable.

    


    (e) Taxes.  Holder
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of securities upon the conversion of this Note.  Holder shall
also pay any tax which is due because the securities are issued in a name other
than Payee’s name and any income taxes, capital gains taxes or other similar
taxes.

    


    (f) No Fractional
Shares.  Instead of any fractional shares of any equity which
would otherwise be issuable upon conversion of this Note, Maker shall pay in
cash the amount of outstanding principal that is not so converted, such payment
to be in the form a check payable to Holder.  The holder of fractional
interests shall not be entitled to any rights as security holders of Maker in
respect of such fractional interests.

    


    4.           Events of
Default.  The occurrence or
existence of any one of the following events or conditions shall constitute an
“Event of Default”:

    


    (a)           Maker
shall fail to pay the principal of, or interest on, this Note when the same
becomes due and payable in accordance with the terms hereof and such amount
remains unpaid for ten (10) days after the due date thereof;

    


    (b)           Maker
fails to observe or perform any other covenant or agreement, or a material
breach of any representation or warranty on the part of Maker contained in this
Note or contained in that certain Subscription Agreement entered into in
connection with the sale of this Note which failure continues for a period of
thirty (30) days after the date of written notice thereof from Holder;
or

    


    (c)           Maker
makes a general assignment for the benefit of its creditors or applies to any
tribunal for the appointment of a trustee or receiver of a substantial part of
the assets of Maker, or commences any proceedings relating to Maker under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debts,
dissolution or other liquidation law of any jurisdiction; or any such
application is filed, or any such proceedings are commenced against Maker and
Maker indicates its consent to such proceedings, or an order or decree is
entered by a court of competent jurisdiction appointing such trustee or
receiver, or adjudicating Maker bankrupt or insolvent, or approving the petition
in any such proceedings, and such order or decree remains unstayed and in effect
for ninety (90) days.

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    5.           Remedies.

    


    (a)           If
an Event of Default occurs and is continuing, Holder may, by notice in writing
to Maker, declare the entire unpaid principal of the Note to be due and payable
immediately, and upon any such declaration the principal and unpaid interest on
the Note shall become and be immediately due and payable, and Holder may
thereupon proceed to protect and enforce its rights either by suit in equity or
by action at law or by other appropriate proceedings, whether for specific
performance (to the extent permitted by law) of any covenant or agreement
contained herein or in aid of the exercise of any power granted herein, or
proceed to enforce the payment of this Note or to enforce any other legal or
equitable right of Holder.

    


    (b)           Following
the occurrence and during the continuance of an Event of Default, the Company
shall pay interest on this Note in an amount equal to twelve percent (12%) per
month, and all outstanding obligations under this Note, including unpaid
interest, shall continue to accrue interest at such additional interest rate
from the date of such Event of Default until the date such Event of Default is
cured or waived.

    


    (b)           In
the event this Note is placed in the hands of an attorney for collection or for
enforcement, or in the event that Holder incurs any costs incident to the
collection of any indebtedness evidenced hereby, Maker agrees to pay all
reasonable attorneys’ fees and expenses, all court and other costs and the
reasonable costs of any other collection efforts.  Forbearance to
exercise the remedies set forth herein with respect to any failure or breach of
Maker shall not constitute a waiver by Holder of any of such
remedies.

    


    6.           Expenses.  Each of Maker and
Payee shall bear its own costs incurred in connection with the negotiation,
documentation and execution of this Note, the closing of the transactions
contemplated herein, and any amendment, waiver, consent, supplement or
modification hereto.

    


    7.           Notices.  All notices,
requests, consents and other communications required or permitted under this
Note shall be in writing and shall be deemed to have been delivered three (3)
days after the date mailed, postage prepaid, by certified mail, return receipt
requested, or on the date personally delivered:

    


    
      	
              If
      to Maker, to:

              Omnimmune
      Corp.

              Attn:  Chief
      Executive Officer

              4600
      Post Oak Place

              Suite
      352

              Houston,
      Texas  77027

               

              with
      a copy to:

               

              Frank
      McDaniel, Esq.

              McDaniel
      & Henry, LLP

              PO
      Box 681235

              Marietta,
      Georgia   30068-0021

            	
              If
      to Payee, to:

              ________________
      

              ________________

              ________________

               

            


    

    


    If to any
Holder other than Payee, to such address as may have been designated by notice
given Maker by such Holder.  Maker, Payee or any other Holder may
designate a different address by notice given in accordance with the
foregoing.

    


    8.           Governing Law. This Note and the
rights and obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Texas
(without regard to principles of conflicts of laws) and applicable federal
law.

    


     

    Omnimmune
Corp.

    By:                                                                     


    Harris A.
Lichtenstein, Ph.D., President

     

    ACCEPTED
AND AGREED TO:

    


    


    


    [___________]