ex10-12.htm


    Exhibit
10.12

     

    MASTER
TERMINATION AGREEMENT

    


    THIS MASTER TERMINATION AGREEMENT
(this “Agreement”) is entered into effective as of June 20, 2008 (the
“Signing Date”) by and between The Trustees of Columbia University in the City
of New York, a New York corporation (“Columbia”) and Omnimmune Corp., a Texas
corporation (the “Company”).

    


    RECITALS

    


    WHEREAS, Columbia and Company
entered into that certain License Agreement dated as of February 1, 2005, as
amended as of March 29, 2005, June 10, 2005 and January 31, 2007 (collectively,
the “License Agreement”); that certain Stock Purchase Agreement dated as of
February 1, 2005 (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, the Company has
requested, and Columbia has agreed to the termination of the Stock Purchase
Agreement, the termination of the Stockholders Agreement, and an amendment of
the License Agreement, as amended through and including the Third Amendment
thereto (the “License Agreement”), in accordance with that certain Fourth
Amendment to the License Agreement, a copy of which is attached hereto and
marked as Exhibit “A” (the “Fourth Amendment”), and certain waivers of possible
defaults that could be claimed in connection with the Performance Obligations
(as defined below); and

    


    WHEREAS, in connection with
the foregoing transactions Columbia desires to transfer to Company and Company
desires to accept such transfer of the entirety of Company’s common stock held
by Columbia, whereupon Columbia shall have no further equity interest or claim
to any such equity in Company.

    


    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.  Effective upon
the Effective Date (as defined below) and without further action on the part of
the Company or Columbia, the Stock Purchase 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.

     

    2. Termination
of Stockholders Agreement.  Pursuant to the
Termination Agreement (Stockholders Agreement) among each of the parties to the
Stockholders Agreement, a copy of which is attached hereto and marked as Exhibit
“B” (the “Termination Agreement (Stockholders Agreement)”), dated as of the
31st
day of May 2008 (the “Effective Date”), each of the parties to the Stockholders
Agreement, including Columbia and the Company (which have executed the
Termination Agreement (Stockholders Agreement)  on the date hereof),
shall (a) release each of the other parties to the Stockholders Agreement 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 of such
party; and (b) consent and agree to the termination of the Stockholders
Agreement upon the Effective Date, without further action on the part of any
such party, and that, upon such date, 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.  Effective as of the date of this Agreement and as of
immediately prior to the Effective Date, the Company represents and warrants to,
and covenants and agrees with, Columbia that there are, and will not be, any
parties to the Stockholders Agreement, other than the persons and entities
listed as parties to the Termination Agreement (Stockholders Agreement), and
that no other person or entity has any rights in respect of the termination of
the Stockholders Agreement and the other matters provided for in the Termination
Agreement (Stockholders Agreement).

     

    3. Conveyance
of Shares of Common Stock.  Effective as of the Signing Date,
Columbia hereby sells, assigns and transfers to Company, without representation
or warranty, any and all right, title and interest of Columbia in and to 424,100
shares of Company common stock that Company had agreed to, but did not, issue to
Columbia, and all of the shares of Company common stock represented by Share
Certificates nos. C-29 and C-40 (the “Columbia Certificates”), representing in
the aggregate 572,580 shares of Company common stock (without taking into
account any split of Company’s shares of common stock)(collectively, the
“Columbia Shares”).  Company hereby accepts all such sales,
assignments and transfers of the Columbia Shares described in this Section 3 as
of the Signing Date.  Following such transactions, Columbia shall have
no further claim whatsoever to any shares of Company’s common stock or any other
right to equity therein, including, without limitation, the Columbia Shares. As
soon as reasonably practicable following the Signing Date, Columbia shall
deliver to Company the Columbia Certificates, duly endorsed or accompanied by a
stock power duly executed on behalf of Columbia, effecting the sale, assignment
and transfer of the Columbia Shares to Company, without representation or
warranty.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    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 Stock Purchase Agreement and License Agreement,
respectively, solely as they relate to the matters specified below with respect
to each such Section (collectively, the “Performance Obligations”):

     

    
      	
              (a)  

            	
              Stock
      Purchase Agreement–

            


    

     

    
      	
              (i)  

            	
              Section
      2.2(a):  Relating to Company’s obligation to notify Columbia of
      certain amendments to its Articles of Incorporation;
  and

            


    

     

    
      	
              (ii)  

            	
              Sections
      6.1 & 6.2:  Relating to Company’s obligations in connection
      with the exercise by Columbia of its preemptive rights (together, the
      obligations referred to in clause (a)(i) above and this clause (a)(ii)
      shall be referred to as the “Stock Purchase Performance Obligations”);
      and

            


    

     

    
      	
              (b)  

            	
              License
      Agreement–

            


    

     

    
      	
              (i)  

            	
              Section
      6(a)(i):  Relating to certain required expenditures for research and
      development;

            


    

     

    
      	
              (ii)  

            	
              Section
      6(a)(ii):  Relating to certain minimum funding
      requirements;

            


    

     

    
      	
              (iii)  

            	
              Section
      6(a)(iv)(a):  Relating to the timing of certain FDA
      filings;

            


    

     

    
      	
              (iv)  

            	
              Section
      6(a)(v)(a):  Relating to the timing of certain animal
      studies;

            


    

     

    
      	
              (v)  

            	
              Section
      16(a)(i):  Relating to Company’s obligation to pay fully and
      promptly amounts due under Section 3, 4 or 7;
  and

            


    

     

    
      	
              (vi)  

            	
              Section
      16(a)(iii):  Relating to certain defaults created under the License
      Agreement by virtue of acts or omissions relating to the Stock Purchase
      Performance Obligations under the Stock Purchase Agreement (together, the
      obligations referred to in clauses (b)(i) through (v) above and this
      clause (b)(vi) shall be referred to as the “License Performance
      Obligations”).

            


    

     

    Columbia
hereby (a) waives (i) any and all defaults that may have occurred on account of
any act or omission on the part of Company in connection with (1) the Stock
Purchase Performance  Obligations through the Effective Date and (2)
the License PerformanceObligations through the Signing Date, and (ii) any and
all rights of enforcement Columbia may have in connection therewith, to include
its options described under Sections 6(b), (c) and (d) of the License Agreement;
and (b) confirms that the License Agreement, as amended by the Fourth Amendment,
is and remains in full force and effect.  The Company represents and
warrants to, and covenants and agrees with, Columbia that the Company has not,
and will not have, breached any of its obligations under (x) the License
Agreement effective as of the Signing Date as of immediately prior to the
Signing Date, or (y) the  Stock Purchase Agreement and Stockholders
Agreement effective as of the Effective Date and as of immediately prior to the
Effective Date; provided that such representations, warranties, covenants and
agreements do not, and will not, apply to the Performance
Obligations.

     

    5. Intentionally
Omitted.

     

    6. Governing
Law; Jurisdiction.  This Agreement
shall be construed under and governed by the law of New York, excluding any
choice of law provisions which would direct the application of any other state’s
laws.  The parties agree that any and all claims arising under this
Agreement or relating thereto shall be heard and determined exclusively in the
United States District Court for the Southern District of New York or in the
courts of the State of New York located in the City and County of New York, and
the parties agree to submit themselves to the personal jurisdiction of those
courts and not to raise any objection to venue being had in those
courts.

     

    7. Entire
Agreement.  This Agreement
shall constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior or contemporaneous agreements and
understandings among the parties with respect thereto.  The foregoing
is without limitation as to the effect of the Fourth Amendment and the
Termination Agreement (Stockholders Agreement).  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. Binding
Agreement; Third-Party Beneficiaries.  This Agreement
shall be binding upon, and inure to the benefit of each of the parties and their
respective successors and assigns; provided that this Agreement may not be
assigned by either party other than to a successor by operation of
law.  There are no third-party beneficiaries of or with respect to
this Agreement or any rights granted herein.

     

    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.

    


    [Remainder
of this page intentionally left blank.]

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed as of the date first written
above.

     

    


     

    
      	 	 	Columbia
	 	 	
            
	 	 	The Trustees of
      Columbia University in the City of New York, a New York
    corporation
	 	 	 
	 	 	/s/
      Orin
      Herskowitz                               
      
	 	 	Authorized
      Officer
	 	 	 
	 	 	COMPANY
	 	 	 
	 	 	OMNIMMUNE CORP., a Texas
      corporation
	 	 	 
	 	
              By: 
      

            	/s/
      Harris A.
      Lichtenstein                      
      
	 	 	Name: Harris A.
      Lichtenstein
	 	 	Title: Chief
      Executive Officer


    

     

     

    


    


     

     

    


     

    


     

    


    


     

         

         

     

     

     

     

     

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
A

    


    FOURTH
AMENDMENT

    TO

    LICENSE
AGREEMENT

    


    THIS FOURTH AMENDMENT TO THE LICENSE
AGREEMENT (the “Amendment”), is entered into as of the ___ day of June
2008 and made effective as of the Signing Date (for purposes of this Amendment,
such term shall have the meaning set forth in that certain Master Termination
Agreement of even date herewith among the parties hereto (the “Master
Termination Agreement”), by and between The Trustees of Columbia University in
the City of New York, a New York corporation (“Columbia”), and Omnimmune Corp.,
a Texas corporation (the “Company”) (together, Columbia and Company shall be
referred to as the “Parties”).  For purposes of this Amendment, the
phrase “License Agreement” shall mean that certain License Agreement entered
into by and between the Columbia and Company as of the 1st day of
February 2005, as amended March 29, 2005; June 10, 2005 and January 31, 2007;
and unless otherwise defined herein, capitalized terms and phrases shall have
the meaning ascribed thereto in the License Agreement.

    


    WHEREAS, the Company has
requested, and Columbia has agreed, to amend the License Agreement upon the
terms and conditions set forth in 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.  Effective upon the Signing Date, the
License Agreement is hereby amended as follows:

    


    
      	
              (a)  

            	
              Section
      1, entitled “Definitions,” shall be amended by deleting in its entirety
      Subsection 1a., thereof entitled “Affiliate,” and in lieu thereof, the
      following new section shall be
added:

            


    

    


    a. “Affiliate”
means, with respect to any person or entity, a person or entity that directly or
indirectly controls, is controlled by or is under common control with such
person or entity.  For purposes of this definition, “control” shall
mean beneficial ownership (direct or indirect) of more than 50% of the
outstanding voting stock or other voting rights entitled to elect directors (or
in the case of an entity that is not a corporation the election or appointment
of the management thereof).

     

    
      	
              (b)  

            	
              Section
      3, entitled “Royalties and Payments,” shall be amended as
      follows:

            


    

    


    a. In
consideration of the license granted under Section 2.a of this Agreement, the
Company shall pay to Columbia:

    


    
      	
              (i)  

            	
              a
      reimbursement in the amount of $25,000 for past patent expenses, upon the
      initial $1,000,000 of sales of Licensed Products by Company, its
      successors or Sublicensees or any of their respective Affiliates (or any
      combination thereof);

            


    

    


    
      	
              (ii)  

            	
              a
      running royalty, to be determined on a Territory (as defined below) by
      Territory basis, equal to the greater of either 1% or the Pass-Thru
      Multiple (as defined below) of Net Sales of all Licensed Products that
      involve use of Licensed Material or Licensed Information but are not
      covered by a Claim of a Licensed Patent (the “Non-Patented Products”) for
      a term of ten (10) years from the date of the First Sale of each
      Non-Patented Product; provided, however, that
      in no event shall the running royalty under this Subsection (ii) exceed
      2%; and

            


    

    


    
      	
              (iii)  

            	
               a
      running royalty, to be determined on a Territory by Territory basis, equal
      to the greatest of (1) 2%, (2) the Pass-Thru Multiple, if applicable, or
      (3) the Transaction Multiple (as defined below), if applicable, of Net
      Sales of all Licensed Products covered by a Claim of a Licensed Patent
      licensed hereunder to the Company (the “Patented Products”), for a period
      of ten (10) years from the date of First Sale of each new Patented Product
      in a Territory or the last to expire Licensed Patent in such Territory,
      whichever is longer; provided, however, that
      in no event shall the running royalty under this Subsection (iii) exceed
      4%.

            


    

    


    
      	
              (a)  

            	
              Definitions.  For
      purposes of this Section 3.a, the following term and phrases shall have
      the meaning ascribed thereto:

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    
      	
              (1)  

            	
              “Acquisition”
      shall mean the initial consummation of any of the following, effected,
      directly or indirectly, in one or more transactions:  (x) any
      sale, lease, license or other transfer or disposition of all or a majority
      of the business or assets of the Company, including, without limitation,
      by means of any revenue sharing, participation or other arrangement that
      confers all or a majority of the benefits and economic indicia of
      ownership of such business or assets; or (y) any merger, consolidation,
      conversion, other business combination, share exchange, sale or other
      transfer or disposition of shares, spin-off, spin-out, contractual
      transfer of control or voting power, reorganization, recapitalization or
      other transaction or transactions involving the Company, if after giving
      effect to any such transaction or transactions described in this clause
      (y) the holders of record or beneficial owners of the voting shares of, or
      other voting interests in, the Company prior to the first such transaction
      no longer hold or own beneficially (in substantially the same percentages)
      a majority of the voting shares of, or other voting interests in, the
      Company (a “Control Shift”); provided that neither issuances by the
      Company of its capital stock (whether as an original issuance or from
      treasury shares) to investors, solely for bona fide equity financing
      purposes nor any Control Shift that may occur solely by means of (aa) the
      private placement of up to 3,200,000 Units (as such term is defined in the
      PAA (as defined below) conducted pursuant to that certain
      Placement  Agency Agreement, dated June 20, 2008, between the
      Company and New Castle Financial Services, LLC, as such agreement is in
      effect on the date hereof, and/or (bb) the merger of the Company into a
      wholly-owned subsidiary Roughneck Supplies, Inc. (the “Merger Sub”),
      pursuant to a Merger Agreement between the Company and Roughneck Supplies,
      Inc. (or any successor thereof) and the Merger Sub., substantially upon
      the terms disclosed in the draft Confidential Private Placement Memorandum
      with respect to the sale of  up to $8 million of units, furnished to
      Columbia on the date hereof, shall, in and of themselves, be deemed to be
      an Acquisition. Without limitation as to Section 20, the term “Company,”
      as used in this definition, shall include any Successor
      Issuer.

            


    

     

    
      	
              (2)  

            	
              “Acquisition
      Pass-Thru Multiple” shall mean the Pass- Thru Multiple required to be paid
      by Company in respect of Net Sales under any sublicense between Company
      and any person or entity that is or becomes an Acquiring Sublicensee (as
      defined below), whether or not such sublicense remains in effect following
      an Acquisition.

            


    

     

    
      	
              (3)  

            	
              “Acquiring
      Sublicensee” shall mean, any Sublicensee (including any Affiliate of any
      Sublicensee) that has entered into any Acquisition
      transaction.

            


    

     

    
      	
              (4)  

            	
              “Pass-Thru
      Multiple” shall mean the product of the Pass-Thru Percentage (as defined
      below) multiplied by the royalty rate required to be paid by any
      Sublicensee to Company on account of Net Sales of, in the case of Section
      3.a(ii) above, Non-Patented Licensed Products or, in the case of Section
      3.a(iii) above, Patented Products, as the case may be;
  and

            


    

     

    
      	
              (5)  

            	
              “Pass-Thru
      Percentage” shall mean that percentage rate as may be applicable under
      Section 3.b below, for either sublicensed therapeutics or sublicensed
      diagnostics and in effect from time to time
  thereunder.

            


    

     

    Example:  if
prior to the first animal efficacy study Company were to sublicense a Patented
Product to a pharmaceutical company in exchange for a $1,000,000 upfront license
fee and a 15% sublicense royalty on Net Sales, then, in the absence of an
Acquisition, Company would owe Columbia the following amounts:

     

    A
sublicense fee on Sublicense Revenue equal to 22.5% of $1,000,000

     

    A
running royalty of the greater of 2% of Net Sales or 3.375% (22.5% x 15%) of Net
Sales.

     

    The foregoing example is provided
solely for illustration purposes.

     

     

    
      	
              (6)  

            	
               “Successor
      Issuer” shall mean any issuer of securities issued to holders of the
      voting shares of, or other voting interests in, the Company directly or
      indirectly in consideration for such shares of, or interests in, the
      Company.

            


    

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	
              (7)  

            	
              “Territory”
      shall mean any defined area under the jurisdiction or considered to be the
      possession of a recognized government (e.g., the area
      described as the United States of
America).

            


    

    


     

    
      	
              (8)  

            	
              “Transaction
      Multiple” shall mean the greater of
either:

            


    

    


     

    
      	
              a.  

            	
              the
      Acquisition Pass-Thru Multiple; or

            


    

    


     

    
      	
              b.  

            	
              in
      the case of an Acquisition other than by an Acquiring Sublicensee, three
      percent (3%) of Net Sales of Patented Products sold for therapeutic
      purposes (whether or not such products are also sold for diagnostic
      purposes); provided, however, that
      in the case where the Acquisition occurs at a point in time where the
      Pass-Thru Percentage of 12.5% is applicable, then in such case, three
      percent (3%) shall be reduced to two and one-half percent
      (2.5%)).

            


    

    


     

    
      	
              (b)  

            	
              If
      more than one Licensed Patent covers a Licensed Product, no additional
      royalties will be paid by Company than if the Licensed Product is covered
      by one Licensed Patent.

            


    

    


    
      	
              (c)  

            	
              If,
      after review at any stage of prosecution, Company and Columbia amend this
      Agreement in writing that all claims issued or pending either do not cover
      a Licensed Product, or are deemed unpatentable, then the royalty to
      Columbia under Section 3a(ii) hereof shall be reduced to one percent (1%)
      of Net Sales on such Licensed Product.  Notwithstanding the
      foregoing, if a patent subsequently issues from such applications, then
      the royalty due to Columbia shall return to the original two percent (2%)
      of Net Sales on such Licensed Product, beginning on the date of such
      issue.

            


    

    


    b.           For
the avoidance of doubt with respect to the royalties to be paid by Licensee
under Sections 3a(ii) and (iii) of this Agreement, if Licensee
owes  running royalties under either such Section with respect to Net
Sales by a Sublicensee and Net Sales by Licensee itself, Licensee owes the
royalties at the same “greatest of” running royalty rate on all such sales
(prior to giving effect to Section 3c), notwithstanding that the definitions of
“Pass-Through Multiple” and “Transaction Multiple” (and any underlying
definitions) are defined on the basis of Sublicensee or Licensee
transactions.  In addition, on all other gross revenues to the extent
included in Sublicense Revenue as defined above in Section 1q (other than
royalties on Net Sales), fees, payments and consideration, or any part thereof,
received by Company from Sublicensee as full or partial consideration for the
grant of any sublicense by Company pursuant to Section 2.b, the Company shall
pay to Columbia a percentage of Sublicense Revenue received by the Company
and/or its Affiliates from its Sublicensees according to the following
schedule:

     

    


    From sublicensed
therapeutics:

    


    22.5%
with respect to a sublicense entered into before the first animal efficacy study
of the Licensed Products;

    


    17.5%
with respect to a sublicense entered into after first animal efficacy study of
the Licensed Products; or

    


    12.5%
with respect to a sublicense entered into after first human clinical trial of
the Licensed Products;

    


    From sublicensed
diagnostics:

    


    17.5%
with respect to a sublicense entered into before diagnostic clinical trial of
the Licensed Products; or

     

    


    12.5%
with respect to a sublicense entered into after diagnostic clinical trial of the
Licensed Products.

    


    For the
avoidance of doubt, in the event any Sublicense Revenue derives from a Licensed
Product sold for both diagnostic and therapeutic purposes, then such product
shall be deemed to be both a sublicensed therapeutic and a sublicensed
diagnostic, and the Company shall pay Columbia with respect to all Sublicense
Revenue derived from such Licensed Product the greater of the two otherwise
applicable percentages in this Section 3.b with respect to diagnostics and
therapeutics.

    


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    c.           Notwithstanding
any provision of this Agreement to the contrary, the amount of any running
royalties in excess of 1% payable by Company under Section 3.a(ii)
in  respect of Net Sales of any Licensed Product shall be reduced by
fifty percent (50%) of any running royalty payments made by the Company to third
parties in respect of know how or other proprietary rights or information
involved in the use of such Licensed Product, and the amount of any running
royalties in excess of 2% payable by Company under Section 3.a(iii) in respect
of Net Sales of any Licensed Product shall be reduced, in any Territory, by
fifty percent (50%) of any running royalty payments made by Company to third
parties in respect of Claims covering such Licensed Product in such Territory,
but only if and to the extent that such know how or other proprietary rights or
information or patent rights, as applicable, are licensed after the Signing Date
from such third parties by Company and are necessary to make, use, offer for
sale, sell or import such Licensed Product (but excluding, without limitation,
any third-party licenses related to packaging or similar uses).

     

    d.           Minimum
Annual Royalties -  Company shall pay to Columbia minimum royalties
for sales of Licensed Products  according to the following schedule,
all of which payments shall be credited towards and offset against royalties and
payments due with respect to  Sublicense Revenue before any such
payments are due to Columbia:

    


    
      	
               
      

            	
              (i)

            	
              $37,500
      on each anniversary after the First Sale of the first Licensed Product
      based on diagnostic purpose; and

            


    

    


    
      	
               
      

            	
              (ii)

            	
              $112,500,000
      on each anniversary after the First Sale of the first Licensed Product
      based on therapeutic purpose.

            


    

    


    
      	
               
      

            	
              (iii)

            	
              For
      the avoidance of doubt, in the event a product is sold for both diagnostic
      purposes and therapeutic purposes, then both the payments under Sections
      3.d(i) and 3.d(ii) are due.

            


    

    


    e.           Licensed
Product(s) Derived From More Than One Licensed Patent - If a Licensed Product is
derived from more than one Licensed Patent and/or uses more than one Licensed
Material, Company is obligated to pay only one royalty to Columbia, the highest
royalty applicable.

    


    f.           License
Maintenance Fees - Company shall pay annual license maintenance fees according
to the schedule below:

    


    $52,500 on or before May 1,
2009;

    


    $75,000
on or before May 1, 2010; and

    


    $60,000
each first of May thereafter.

    


    The
foregoing maintenance fees shall be due and payable until Company pays Columbia
the minimum royalties under Section 3.d(i) and 3.d(ii) hereof on an annual
basis.

    


    g.           Milestone
Payment.  Upon and coincident with the date on which a New Drug
Application (“NDA”) for a Licensed Product is granted by the FDA (as such
process is contemplated in Section 505 of the Federal Food, Drug & Cosmetic
Act) or a similar approval is granted for a Licensed Product in any Territory in
which a Licensed Product is covered by a Claim of a Licensed Patent, Company
shall pay Columbia the amount of $500,000.

    


    


    (b)           Section
6, entitled “Best Efforts,” shall be amended as follows:

    


    
      	
              (1)  

            	
              Subsection
      6(a)(i) shall be amended by deleting the date “February 1, 2008,” and in
      lieu thereof adding the date “September 1,
  2009”;

            


    

    


    
      	
              (2)  

            	
              Subsection
      6(a)(ii) shall be amended by deleting the date “February 1, 2007,” and in
      lieu thereof adding the date “September 1,
  2009”;

            


    

    


    
      	
              (3)  

            	
              Subsection
      6(a)(iii) shall be amended by deleting the date “February 1, 2010,” and in
      lieu thereof adding the date “August 1,
2010”;

            


    

    


    
      	
              (4)  

            	
              Subsection
      6(a)(iv)(a) shall be amended by deleting the date “February 1, 2008,” and
      in lieu thereof adding the date “September 1,
  2009”;

            


    

    


    
      	
              (5)  

            	
              Subsection
      6(a)(iv)(b) shall be amended by deleting the date “February 1, 2010,” and
      in lieu thereof adding the date “February 1,
  2011”;

            


    

    


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    
      	
              (6)  

            	
              Subsection
      6(a)(iv)(c) shall be amended by deleting the date “February 1, 2011,” and
      in lieu thereof adding the date “February 1,
  2012”;

            


    

    


    
      	
              (7)  

            	
              Subsection
      6(a)(v)(a) shall be amended by deleting the dates “February 1, 2008” and
      “February 1, 2010,” and in lieu thereof adding the dates “February 1,
      2011” and February 1, 2012,”
respectively;

            


    

    


    
      	
              (8)  

            	
              Subsection
      6(a)(v)(b) shall be amended by deleting the date “February 1, 2010,” and
      in lieu thereof adding the date “February 1,
  2012”;

            


    

    


    
      	
              (9)  

            	
              Subsection
      6(a)(v)(c) shall be amended by deleting the date “February 1, 2011,” and
      in lieu thereof adding the date “February 1, 2014”;
  and

            


    

    


    
      	
              (10)  

            	
              Subsection
      6(a)(v)(d) shall be amended by deleting the date “February 1, 2013,” and
      in lieu thereof adding the date “February 1, 2016”;
  and

            


    

    


    
      	
              (d)  

            	
              Section
      16, entitled “Breach and Cure” shall be amended to delete therefrom in its
      entirety Subsection 16(a)(iii).

            


    

    


    
      	
              (e)  

            	
              Section
      17, entitled “Term of Agreement,” shall be amended to delete therefrom in
      its entirety Subsection 17(a) and, in lieu thereof, the following new
      Subsection 17(a) shall be added:

            


    

    


    This
Agreement shall be effective as of the date first recited above and shall
continue in full force and effect until its expiration or termination in
accordance with this Section 17.

    


    Section
2.                      This
Amendment shall not be effective until the Signing Date, and shall be of no
force and effect unless the Signing Date occurs on or prior to August 1,
2008.  Each of the Parties to this Amendment acknowledge and agree
that, except as modified hereby, all of the terms and provisions of the License
Agreement shall remain in full force and effect.

    


     

    Section
3.                      This
Amendment and the License Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior or contemporaneous agreements and understandings among the parties with
respect thereto.  The foregoing is without limitation as to the effect
of the Fourth Amendment and the Termination Agreement (Stockholders
Agreement).  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.

     

    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.  Delivery of an executed counterpart of a signature page
to this Amendment by facsimile or by electronic mail shall be effective as
delivery of a manually executed counterpart hereof.  If any portion of
this Amendment or application thereof is held invalid, the invalidity shall not
affect other provisions of this Amendment that can be given effect without the
invalid provision or application and, to this end, the provisions of this
Amendment are declared to be severable.

    


    Section
5.                      This
Amendment shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective successors and assigns in accordance with Section 20
of the License.

    


    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.

    


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    IN WITNESS WHEREOF, the
Parties have executed this Amendment as of the date first above
written.

    


    Columbia

    


    The
Trustees of Columbia University in the City of New York, a New York
corporation

    


    By:                                                                

    Name:
______________________________

    Title:
_______________________________

    


    


    


    COMPANY

    


    Omnimmune
Corp., a Texas corporation

    


    


    By:                                                                

    Name:
______________________________

    Title:
_______________________________

    
 

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        9