ex10-1.htm


    
      Exhibit
10.1

       

      
        

      



    
       

      OMNIMMUNE
HOLDINGS, INC.

    

    


    
      CONSULTING
AGREEMENT

       

       

        
          

        

      

    

    
      


    

    


    THIS CONSULTING AGREEMENT (the “Agreement”)
is made and entered into as of the date indicated below (the “Effective Date”)
between Omnimmune Holdings, Inc., a Delaware corporation (“Omnimmune”), and
Becker Advisors, Ltd., a New Jersey corporation (“Contractor”) and Howard
Becker, individually (“Becker”)(together with Contractor, the
“Consultant”).   Omnimmune and Consultant are sometimes
collectively referred to in this Agreement as the “Parties.”

    


    OMNIMMUNE
HOLDINGS, INC.

    


    Authorized
Signature:/s/ Harris
A. Lichtenstein

    


    Printed
Name:  Harris A. Lichtenstein, Ph.D.

    


    Position:  President


     

    Address:

    


    4600 Post
Oak Place, Suite 352

    Houston,
TX 77027

    


    Telephone
No.: (713) 622-8400

    Facsimile
No.: (713) 626-7566

     

    
      	
              CONSULTANT

               

              BECKER
      ADVISORS, LTD.

               

               

              Authorized
      Signature: /s/ Howard
      Becker           
      

              Printed
      Name:  Howard Becker 

              Position:
      President/CEO

               

              ____________________________                  
      

              Howard
      Becker, in his individual capacity

               

               

               

            	
              Address:

               

              29
      Old Short Hills Road

              Millburn,
      NJ 07041

               

              Telephone
      No.: (917) 553-7784

              Facsimile
      No.: (212) 656-1752

              Email:
      hbecker@beckeradvisors.com

            


    

     

    TODAY’S
DATE:            AUGUST 12,
2008

    


    ADDITIONAL
TERMS AND CONDITIONS OF THIS AGREEMENT BEGIN ON THE FOLLOWING PAGE.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TERMS AND
CONDITIONS

    


    


    Omnimmune
wishes to engage Contractor to provide certain Services (defined below) to
Omnimmune and Omnimmune Corp., a Delaware corporation and wholly owned
subsidiary of Omnimmune (“Omnimmune Corp.” and together with Omnimmune,
“Company”) and Contractor wishes to provide the Services to Omnimmune, all
pursuant to the terms and conditions set forth in this Agreement;

     

    In
consideration of the benefits they will each receive as a result of the
relationship created by this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound by this Agreement, hereto hereby agree as
follows:

     

    1. Definitions.  The
following are the definitions for certain defined terms used in this
Agreement:

     

    
      	
              (a)  

            	
              “Proprietary
      Information” shall mean any and all nonpublic proprietary technical
      and nontechnical data, information, agreements, documents, intellectual
      property and other property of Company or any affiliate thereof and any
      and all proprietary rights relating thereto, which is of tangible or
      intangible value to Company or any affiliate thereof and is not public
      information or is not generally known or available to Company's
      competitors, but is known only to Company or its affiliates and their
      employees, independent contractors or agents to whom it must be confided
      in order to apply it to the uses intended, including, without limitation,
      all business methods, practices and concepts; business and financial
      information and records, including, without limitation, accounting
      records, tax returns, financial statements, projections, forecasts or
      other budgets, other financial data or plans, business plans and
      strategies; product plans, customer lists and other customer-related information; vendor or
      supplier lists and other vendor or supplier-related information; computer or data
      base files; passwords or other access codes; software and operating code
      or source code relating thereto; any and all contractors, subcontractors;
      inventions and invention-related reports, analyses, notes,
      interpretations, formulae, processes, and patent applications, and the
      proprietary rights thereto; the terms of this Agreement and any other
      agreement between the Parties; and Work
Product.

            


    

     

    
      	
              (b)  

            	
              “Trade Secrets” shall
      mean Proprietary Information (including, but not limited to a business
      information, technical or non-technical data, formulas, patterns
      compilations, programs, devices, methods, techniques, drawings, processes,
      financial data, financial plans, product plans, lists of actual or
      potential customers or suppliers) that:  (a) derives
      economic value, actual or potential, from not being generally known to,
      and not being readily ascertainable by proper means by, other persons who
      can obtain economic value from its disclosure or use; and (b) is the
      subject of efforts that are reasonable under the circumstances to maintain
      its secrecy.  To the extent that applicable law mandates a
      definition of “trade secret” inconsistent with the foregoing definition,
      then the foregoing definition shall be construed in such a manner as to be
      consistent with the mandated definition under applicable
    law.

            


    

     

    
      	
              (c)  

            	
              “Work Product” shall
      mean all of Consultant's right, title, and interest in and to any and all
      Proprietary Information and Trade Secrets (and all proprietary rights with
      respect thereto), whether or not patentable or registrable under copyright
      or similar statutes, that was or is developed, made, conceived or reduced
      to practice or learned by Consultant, either alone or jointly with others,
      during the period of Services for engagement with Company or within
      twelve (12) months after
      termination of such Services or
engagement.

            


    

     

    2. Services.  Consultant
hereby agrees during the “Term” (as defined in Section 5) to perform the
“Services” set forth in Schedule A to
this Agreement.  Consultant agrees to perform the Services in a
diligent, timely, effective and professional manner.  Consultant
agrees to provide Omnimmune with periodic information regarding the status of
and progress with respect to the Services, as and to the extent reasonably
requested by Omnimmune as described on Schedule A.

     

    3. Restrictive
Covenants.

     

    
      	
              (a)  

            	
              Nonuse
      and Nondisclosure.  Consultant acknowledges that it may be
      exposed to certain Proprietary Information and Trade Secrets and the
      proprietary rights thereto during the Term, and its unauthorized use or
      disclosure of such information, data or rights could cause immediate and
      irreparable harm to Company.  Accordingly, except to the extent
      that it is required to use such information or data to perform its
      obligations as a consultant of Omnimmune,  Consultant agrees
      that it shall not (and shall take full responsibility for ensuring that
      none of its agents), without the express and duly authorized written
      consent of Omnimmune, which consent may be withheld, delayed, denied or
      conditioned in Omnimmune’s sole and absolute discretion, use or modify for
      use, directly or indirectly, in any way for any Person, any Proprietary
      Information or Trade Secrets or the proprietary rights thereto, during the
      Term and following the termination of this
      Agreement.  Consultant agrees that any Proprietary Information
      or Trade Secrets or the proprietary rights thereto shall remain the
      exclusive property of Company, and Consultant shall not have any ownership
      interest therein. In addition, except to the extent it is required to use
      such information or data to perform its obligations as an independent
      contractor of Omnimmune, Consultant agrees that it shall not (and shall
      take full responsibility for ensuring that none of its agents), without
      the express and duly authorized written consent of Omnimmune,
      redistribute, market, publish, disclose or divulge to any other Person,
      (i) any of Company's Proprietary Information and proprietary rights
      thereto during the Term and for a period of three (3) years immediately
      thereafter; and (ii) any of Company's Trade Secrets and proprietary rights
      thereto at any time during which such information shall constitute a Trade
      Secret (whether before, during or after termination of this
      Agreement).

            


    

     

    
      	
              (b)  

            	
              Limitation
      on Solicitation of Customers and Personnel. During the Term and for a
      period of three (3) years immediately thereafter, Consultant shall not,
      directly or indirectly, alone or in conjunction with any other person,
      (i) solicit any actual or actively sought prospective client or
      customer of Company with whom or which Consultant had contact during the
      Term or with respect to whom or which Consultant was provided Proprietary
      Information by Company during the Term (an “Omnimmune Customer”) for the
      purpose of providing such Omnimmune Customer products or services that are
      substantially similar to or competitive with Company’s business,
      (ii) solicit any employee, other personnel or independent contractor
      of Company (a “Protected Person”) for the purpose of encouraging such
      Protected Person to sever an employment, contractual or other relationship
      with Company or (iii) hire or otherwise retain a Protected Person to
      perform services of a nature substantially similar to that which such
      Protected Person performed for Company within a three (3) year period
      prior to any such hiring or
engagement.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4. No Conflicting
Obligation.  Consultant represents that its performance of all
the terms of this Agreement and as a Consultant of Omnimmune does not and will
not breach any agreement between it and any other person or
entity.  Consultant has not entered into, and it agrees it will not
enter into, any agreement either written or oral in conflict
herewith.  Consultant shall, during the Term, diligently promote the
interests of Company.  Consultant shall serve Omnimmune to the best of
its ability, faithfully, honestly, diligently and efficiently.

     

    5. Term.  Unless
terminated earlier as provided below, the term of Contractor's relationship with
Omnimmune pursuant to this Agreement (the “Term”) shall commence as of the
Effective Date and continue for an initial period of time as set forth on Schedule B (the
“Initial Term”).  Notwithstanding anything to the contrary in this
Agreement, Omnimmune may terminate the Term (i) at any time, without cause, upon
thirty (30) days prior written notice of such termination to Contractor, or (ii)
immediately “for cause” if Consultant is in material breach of any provision of
this Agreement or otherwise has engaged in conduct that poses a material risk to
Company or its customers.  In the event of a termination without cause
of the Agreement by Omnimmune during the Term hereof, or in the event Omnimmune
elects not to renew the Initial Term or any subsequent Term as provided herein,
in either event Contractor shall be entitled to a termination payment equal to
three month’s consulting fees hereunder.  References in this Agreement
to “Term” shall refer to the Initial Term and any and all Renewal
Terms.

     

    6. Independent Contractor
Relationship.  Consultant shall perform the Services under the
general direction of Omnimmune but Consultant shall determine, in Consultant's
sole discretion, the manner and means by which the Services are
accomplished.  The Parties expressly agree that Consultant's
relationship with Omnimmune and each of its affiliates during the Term shall be
that of an independent contractor, and under no circumstances shall Consultant,
or any of Consultant's employees or agents, be deemed an employee, partner,
agent or joint venture of Omnimmune or any of its affiliates.

     

    7. Return of Company
Documents.  At the conclusion of the Term, for any reason set
forth in Section 5, or for no reason at all, Consultant will promptly
deliver to Omnimmune all drawings, notes, memoranda, specifications, devices,
formulas, and documents, together with all copies thereof, and any other
material (and regardless of whether any of the foregoing is kept in physical or
electronic form) containing or disclosing any Proprietary Information and Trade
Secrets, including, without limitation, Work Products, and any and all other
Company property, along with any and all proprietary rights relating thereto of
Company.  Consultant further agrees that any property situated on
Company's premises and owned by Company, including disks and other storage
media, filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice.

     

    8. Payment for
Services.  The compensation to be paid by Omnimmune to
Contractor is set forth on Schedule C to
this Agreement (the “Compensation”).  The Compensation shall
constitute Contractor's sole compensation for performing the Services for
Omnimmune.  Schedule C also
sets forth any arrangements between Omnimmune and Contractor with respect to
expenses that are to be borne by Omnimmune or with respect to which Consultant
may seek reimbursement. Contractor agrees to give Omnimmune at least fifteen
(15) days prior notice of any travel expenses with respect to which Contractor
seeks reimbursement (to the extent such reimbursement is permitted by Schedule C).  Notwithstanding
any provision in this Agreement to the contrary, in no event shall Omnimmune
have any obligation to pay Becker or any other Person for any services he may
perform for or on behalf of Contractor in the discharge of its duties under this
Agreement.

     

    9. Indemnity.  Omnimmune
agrees to indemnify, defend and hold harmless Consultant, and its officers,
directors, employees, and agents from and against any claims, demands,
investigations, suits or actions for any and all liabilities, losses, damages,
penalties, costs or expenses (including without limitation court costs, legal
fees, awards or settlements) arising out of or in connection with this Agreement
and the performance by Consultant of its duties hereunder; provided, however, that
Omnimmune’s indemnity obligations under this Section will not apply to the
extent arising directly from Consultant’s gross negligence, willful malfeasance
or willful or intentional misconduct or other act or omission in breach of this
Agreement.

     

    10. Remedies.

     

    
      	
              (a)  

            	
              Tolling.  Consultant
      hereby expressly acknowledges and agrees that in the event the
      enforceability of any of the terms of this Agreement shall be challenged
      in court or pursuant to arbitration and Consultant is not enjoined (either
      temporarily or permanently) from breaching any of the restraints set forth
      in this Agreement, then if a court of competent jurisdiction or
      arbitration panel finds subsequently that the challenged restraint is
      enforceable, the time period of the restraint shall be deemed tolled upon
      the filing of the lawsuit challenging the enforceability of the restraint
      until the dispute is finally resolved and all periods of appeal have
      expired.

            


    

     

    
      	
              (b)  

            	
              Ancillary
      Provisions.  Sections 3 and 7 of this Agreement shall be
      construed as an agreement ancillary to the other provisions of this
      Agreement, and the existence of any claim or cause of action of Consultant
      against Company, whether predicated on this Agreement or otherwise, shall
      not constitute a defense to the enforcement by Omnimmune of such
      Sections.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    11. Binding Effect and Assignability.  The
rights and obli­gations of Omnimmune under this Agreement shall inure to the
benefit of and shall be binding upon any affiliates, successor or assign of or
to the business of Company.  Neither this Agreement nor any rights or
obligations of Consultant shall be transferable or assignable by Consultant
without Omnimmune's prior written consent, and any attempted transfer or
assignment hereof by Consultant not in accordance herewith shall be null and
void.

     

    12. Severability.  All
Sections, sub-Sections, paragraphs, terms and provisions of this Agreement are
severable, and the unenforceability or invalidity of any of the terms,
provisions, Sections, sub-Sections or paragraphs of this Agreement shall
not affect the validity or enforceability of the remaining terms, provisions,
Sections, sub-Sections or paragraphs of this Agreement, but such remaining
terms, provisions, Sections, sub-Sections or paragraphs shall be
interpreted and construed in such a manner as to carry out fully the intention
of the Parties.

     

    13. Captions and
Counterparts.  The Section headings in this Agreement are
for convenience of reference only and shall not affect the meaning or
interpretation hereof.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which shall together constitute one and the same instrument.

     

    14. Notices.  Any
notice or other communication required or permitted hereunder shall be in
writing and shall be deemed to have been duly given on the date of service if
personally served or if telecopied (if telecopied on a business day and during
business hours at the place of receipt and if receipt is confirmed) three (3)
days after mailed if mailed by reputable international overnight delivery
service, postage prepaid and in any event addressed to the address set forth in
the signature clause to this Agreement or to such other address as shall be
designated by written notice issued pursuant hereto.

     

    15. Recovery of Attorney's
Fees.  In the event of any litigation arising from or relating
to this Agreement, the prevailing party in such litigation proceedings shall be
entitled to recover, from the non-prevailing party, the prevailing party's
reasonable costs and attorney's fees, in addition to all other legal or
equitable remedies to which it may otherwise be entitled.

     

    16. Waiver.  The
waiver by any party to this Agreement of a default or breach of any Section,
sub-Section or provision of this Agreement shall not operate or be
construed as a waiver of any prior or subsequent default or breach of the same
or of a different Section, sub-Section or provision by any party
hereto.

     

    17. Governing
Law.  It is the intention of the parties hereto that this
Agreement and the performance hereunder be construed in accordance with and
under and pursuant to the laws of the State of Delaware, United States of
America.

     

    18. Entire
Agreement.  This Agreement, including the Schedules attached
hereto, contains the complete agreement concerning the arrangement between
Omnimmune and Consultant as of the date hereof.

     

    19. Schedules.  Attached
to this Agreement and incorporated herein by reference are three schedules, A
(Services), B (Term), C (Compensation), D (Expenses), E
(Miscellaneous).

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    SCHEDULE
A

    SERVICES

    


    Consultant
is to provide the following services (the “Services”), as requested by Omnimmune
from time to time during the course of this Agreement:

    


    Contractor
shall retain the services of Becker (and no other Person) to serve in the
capacity of an officer of Omnimmune, initially with the title Chief Operating
Officer, and as an officer of Omnimmune Corp., if appointed by the board of
directors thereof, in which capacity he will advise and otherwise assist
Omnimmune, Omnimmune Corp. and their management in connection with various
matters related to Omnimmune’s financings, whether debt or equity, any third
party transactions, various SEC related compliance matters, interaction with
Omnimmune’s attorneys and advisors, negotiation and implementation of third
party agreements, investor relations, and other similar activities, functions
and responsibilities related to the running of the public company.  Howard
Becker shall report to the Chief Executive Officer of Omnimmune (or if that
position remains unfilled, to the President or Board of Directors). 
Omnimmune acknowledges that Consultant, including its principal, Howard Becker,
shall at no time be acting as an attorney for Omnimmune or Omnimmune Corp. or
providing legal advice.

    


    


    Consistent
with the foregoing, Consultant jointly and severally, hereby represents and
warrants that Becker owns all of the issued and outstanding ownership interests
in Contractor and is the sole officer and is authorized to act for and on behalf
of Contractor.  Consultant, jointly and severally, agrees to notify
Omnimmune before any transfer, pledge, hypothecation, or other disposition of
ownership interest in Contractor is made either by Contractor or Becker, and
that Consultant shall in no event undertake to provide or otherwise satisfy or
attempt to satisfy its obligations under this Agreement by or through the
services of any Person other than Becker without the prior written consent of
Omnimmune.

     

    SCHEDULE
B

    TERM

    


    
      	
              (1)  

            	
              All
      work will be performed under the direction of Omnimmune’s
      President.

            


    

    


    
      	
              (2)  

            	
              This
      Agreement shall be effective as of close of business, August 12, 2008 and
      shall continue through and including July 31, 2009.  This
      Agreement shall be automatically renewed thereafter for successive one
      year periods unless terminated in writing by either party on no less than
      30 days advance written notice.

            


    

    


    
      	
              (3)  

            	
              Consultant
      shall perform the Services under the general direction of the
      President, but
      Consultant shall determine, in Consultant's sole discretion, the manner
      and means by which the Services are accomplished.  Consultant is
      an independent contractor and is not an agent or employee of Company and
      has no authority under this contract to bind Company by contract or
      otherwise.  Insomuch as Consultant is not an employee of
      Company, and therefore Omnimmune will not retain any withholding or other
      employee taxes and Omnimmune will not provide any employee benefits,
      including but not limited to medical or dental insurance, vacation pay, or
      sick pay.

            


    

    


    SCHEDULE
C

    COMPENSATION

    


    
      	
              (1)  

            	
              Consultant
      agrees to provide services to Omnimmune, as more fully described in
      Schedule A, at the direction of Omnimmune’s President.  In
      exchange, Omnimmune will pay Contractor Seven Thousand Five Hundred
      Dollars ($7,500) on a monthly basis (the “Monthly Fee”), with one-half of
      such amount being paid in advance on the first and fifteenth of each
      calendar month.  For purposes of this Agreement, the first
      installment to be paid under this agreement shall due and payable on
      August 15, 2008, covering the days from August 13, 2008, to and including
      August 31st, totaling $4,500.  In addition to the forgoing,
      Company shall pay Contractor a signing bonus in the amount of $3,000, with
      the amount due on August 15th, being a total of $7,500. The next payment
      due under this Agreement shall be on September 1st, covering the period
      from September 1st through September
      15th.  .  Notwithstanding the foregoing, each of the
      Parties acknowledge that Company has advanced Contractor the amount of
      $7,500, which shall be credited against the amounts due
      hereunder.

            


    

    


    
      	
              (2)  

            	
              It
      is contemplated that Consultant shall provide between 50 and 80 hours per
      month in the performance of the
Services.

            


    

    


    
      	
              (3)  

            	
              The
      parties acknowledge the possibility that the services which Omnimmune
      desires Consultant to perform hereunder may necessitate the expenditure of
      more time per month than the 50 to 80 hours per month currently
      contemplated.  In the event that Consultant is called upon to
      perform more than the above range during any month hereof, Company shall
      pay Consultant on a pro rata basis for the time expended in excess of 80
      hours, calculated based upon a 40 hour week at an annual rate of
      $180,000.   (By way of example, if Consultant expends 120
      hours in one month in the rendition of services for Omnimmune, Consultant
      shall receive total consulting fees of $11,250 for that month rather than
      $7,500).   Any such excess payments shall be made within 15
      days of receipt of an appropriate invoice
  therefore.

            


    

    


    
      	
              (4)  

            	
              Consultant
      agrees to submit an activity report describing work performed to
      Omnimmune’s President upon request.

            


    

    


    
      	
              (5)  

            	
              Simultaneously
      with the execution hereof, Becker and Omnimmune shall enter into a
      Nonqualified Stock Option Agreement, substantially in the form attached
      hereto as Exhibit A (the “Option Agreement”).  Pursuant to the
      terms of the Option Agreement, Becker shall have the right to purchase
      100,000 shares of Omnimmune Common Stock at a strike price
      of  $2.50 per share.

            


    

    


    
      	
              (6)  

            	
              Contractor
      or Becker, as applicable, shall be eligible for bonuses, in cash or stock,
      during the Term hereof, as determined by Company’s Board of Directors in
      its sole and absolute discretion.

            


    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
D

    EXPENSES

    


    
      	
              (1)  

            	
              Omnimmune
      shall reimburse Contractor for all of its reasonable, out-of-pocket
      expenses incurred in the rendition of the services hereunder, provided, however, that
      Contractor shall have submitted an expense report in form satisfactory to
      the Company with such receipts or other substantiation as reasonably
      required by the Company.

            


    

    


    
      	
              (2)  

            	
              Omnimmune
      shall provide Contractor with a rental allowance of $1,100 per month
      during the term of this Agreement for the rental of office space to be
      utilized by Consultant to perform services for Omnimmune
      hereunder.  This allowance shall be paid, at Contractor’s
      direction, either to Contractor or to the particular
    landlord.

            


    

    


    SCHEDULE
D

    MISCELLANEOUS

    


    The
parties agree and acknowledge that Consultant and/or its principal, Howard
Becker, is currently serving as an officer and director of other public
companies, and that nothing in this Agreement shall prevent Consultant from
continuing in such roles, and take on additional engagements, so long as any
such engagements do not conflict with the Consultant’s duties or the performance
of its obligations hereunder.