ex4-12.htm


    Exhibit
4.12

     

    NEITHER
THIS CONVERTIBLE DEMAND 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.

    


    AMENDED AND
RESTATED

     

    CONVERTIBLE DEMAND
PROMISSORY NOTE

     

    Houston,
Texas

     

    


    $581,200 Issue Date:  March
1, 2008

    


               FOR VALUE RECEIVED, the
undersigned, Omnimmune Corp., a Texas corporation (“Maker”), promises to pay to
Margie Chassman, an individual residing in the State of New York (“Payee”; Payee
and any subsequent holder(s) hereof are individually and collectively referred
to as “Holder”), or order, the sum of Five Hundred Eighty One Thousand, Two
Hundred and 00/100 Dollars ($581,200), 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 Common
Stock.  This Note is payable in either:

    


    
      	
              (i)  

            	
              Immediately
      available funds on written demand by Holder at any time on or after the
      earlier of:

            


    

    


    
      	
              (A)  

            	
              As
      to one-half (1/2) of the principal and interest due and payable hereunder,
      the date on which Maker shall have closed on any equity financing
      (including any debt financing that is convertible into Maker’s capital
      stock) completed by Maker after the date hereof involving the sale and
      issuance (or any series of integrated sales and issuances) by Maker to
      third parties of shares of its capital stock (“Qualified Financing”)
      resulting in net proceeds to Maker of not less than Three Million Dollars
      ($3,000,000); and

            


    

    


    
      	
              (B)  

            	
              As
      to the balance of principal and interest remaining outstanding hereunder,
      the date on which Maker shall have closed on any Qualified Financing
      resulting in net proceeds to Maker of not less than Five Million Dollars
      ($5,000,000); or

            


    

    


    
      	
              (C)  

            	
              As
      to the balance of principal and interest remaining outstanding hereunder,
      February 28, 2013 (the “Maturity Date”);
or

            


    

    


    
      	
              (ii)  

            	
              Shares
      of Maker’s common stock, as defined in Makers’ Articles of Incorporation,
      as amended (“Common Stock”), at any time at the option of the Holder 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.

    


    (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 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, during which
period Holder may elect to convert this note to Common Stock in accordance with
the terms hereof.

    


    2.           Conversion
of Note.  

    


    (a) Conversion.  At
any time at the option of Holder upon five (5) day’s prior written notice,
Holder may convert the entire outstanding principal due hereunder into Omnimmune
Common Stock by the cancellation of this Note in exchange for the issuance of
that number of shares of such Common Stock as shall equal (i) the then
outstanding principal amount of the Note on the date fixed for any such
conversion; divided by (ii) $0.1781 (the “Conversion Price”), as adjusted for
the split of Omnimmune’s Common Stock at a split ratio of 2.8072-for-1,
effective as of March 26, 2008.

    


    (b) Payment of
Interest.  Upon conversion of this Note, 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.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c) Conversion Price
Adjustments.

    


    (i) Capital
Adjustments.  In case Maker shall at any time after March 26,
2008: (i) declare a dividend on the outstanding Common Stock payable in shares
of its capital stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then, in
each case, other than the split of Common Stock effective as of March 26, 2008
for which the Conversion Price has been adjusted, the Conversion Price in
effect, at the time of the record date for such dividend or of the effective
date of such subdivision or combination, shall be proportionately adjusted so
that the Holder shall be entitled to receive the aggregate number and kind of
shares upon conversion hereof as in effect immediately prior to such dividend,
subdivision or combination, which, if the Note had been converted immediately
prior to such time, the Holder would have owned upon such conversion and been
entitled to receive by virtue of such dividend, subdivision, or
combination.  Such adjustment shall be made successively whenever any
event listed above shall occur.  Any adjustment under this paragraph
shall become effective at the close of business on the date the dividend,
subdivision or combination becomes effective.

     

    (ii) Merger, Consolidation or Sale of
Assets.  If Maker is a party to a reorganization, a merger or
consolidation with or into another corporation, or the sale of Maker’s
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such transaction, lawful provision shall be made so that this
Note shall pertain and apply to the securities and/or other property to which
the holder of the number of shares of Common Stock of Maker then covered by this
Note would have been entitled had this Note been converted in whole immediately
prior to the effective date of such reorganization, merger, consolidation or
sale.  In any such case, appropriate adjustment shall be made in the
application of the provisions of this Note with respect to the rights and
interests of the Holder after the reorganization, merger, consolidation or sale
to the end that the provisions of this Note shall be applicable after that
event, as near as reasonably may be, in relation to any securities or other
property deliverable after that event upon conversion of this Note. Maker shall
not effect any such reorganization, merger, consolidation or sale unless upon or
prior to the consummation thereof the successor corporation, or if Maker shall
be the surviving corporation but is not the issuer of the shares of stock or
other securities or property to be delivered to holders of shares of the Common
Stock outstanding at the effective time thereof, then such issuer, shall assume
by written instrument the obligation to deliver to the Holder such shares of
stock, securities, cash or other property as the Holder shall be entitled to in
accordance with the foregoing provisions.

     

    (iii) De Minimis
Adjustments.  No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.01 in the Conversion Price; provided, however, that any
adjustment less than this amount which is not made shall be carried forward and
shall be made at the time of and together with any subsequent adjustment which,
on a cumulative basis, amounts to an adjustment of at least this
amount.

     

    (iv) Notice to Holder of
Adjustment.  Whenever the Conversion Price is adjusted as
herein provided, Maker shall cause to be mailed to the Holder a notice (i)
stating that the Conversion price has been adjusted, (ii) setting forth the
Conversion Price as adjusted, and (iii) showing in reasonable detail the
computations and the facts upon which such adjustment is based.

    


    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 Common Stock 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 for shares of Common Stock,
Maker shall, as soon as practicable, take all such steps as may be necessary to
issue such Stock, in exchange for this Note, and thereafter deliver to Holder a
certificate or certificates for the number of shares of Stock to which Holder
shall be entitled against receipt of this Note, duly endorsed for
cancellation.

    


    (b) Noteholder Not Deemed a
Stockholder.  Unless and until this Note is converted or
exchanged into Common Stock as set forth herein, Holder shall not be entitled to
vote or receive dividends or be deemed the holder of Common Stock of the Company
for any purpose (other than to the extent that Holder may previously own shares
of Common Stock 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 Common Stock 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 Common Stock, solely for the purpose of
issue upon exchange of this Note for Common Stock, such number of shares of
Common Stock as shall then be issuable upon the exchange of this
Note.

    


    (d) Validity of
Issuance.  Maker covenants that all shares of Common Stock
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 Common Stock upon the conversion of such Holder’s
Note.  Holder shall also pay any tax which is due because the Common
Stock is 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 Common Stock
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 on the part of Maker
contained in this Note which failure continues for a period of sixty (60) 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)           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:

               

              Margie
      Chassman

              465
      W. 23rd
      St. #12-J

              New
      York, NY 10011

            


    

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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.

    


    9.           Entire
Agreement.  This Note shall
constitute the entire agreement between the parties with respect to the
indebtedness represented hereby and shall supersede and replace all prior
promissory notes, arrangements, agreements and understandings with respect to
the subject matter hereof, including without limitation, that certain
Convertible Demand Promissory Note dated as of March 1, 2008, the original of
which must be surrendered to and in the possession of Maker prior to any payment
on or conversion of this Note.

    


    This
Note shall be valid upon cancellation and surrender to Maker of the original
Convertible Demand Promissory Note dated March 1, 2008 in the principal amount
of $581,200.

    


                                                                               Omnimmune
Corp.

    


    


                                                                               By: /s/ Harris A.
Lichtenstein                      


                                                                      Harris
A. Lichtenstein, Ph.D.

                                                                                      President

    


    


    


    ACCEPTED
AND AGREED TO:

    


    /s/ Margie
Chassman                                                           

    Margie
Chassman