ex10-21.htm


    Exhibit 10.21


    
       

      OMNIMMUNE
CORP.

    

    


    
      CONSULTING
AGREEMENT

    

    
      


    

    


    THIS CONSULTING AGREEMENT (the “Agreement”)
is made and entered into as of the date indicated below (the “Effective Date”)
between OMNIMMUNE CORP., a Texas corporation (“Omnimmune”), and Mark Germain, a
resident of the State of New York (“Consultant”).  Omnimmune and
Consultant are sometimes collectively referred to in this Agreement as the
“Parties.”

    


    


    


    OMNIMMUNE
CORP.

    


    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

               

              Authorized
      Signature: /s/ Mark S. Germain          
      

               

              Printed
      Name:  Mark Germain 

               

               

               

               

               

               

               

               

            	
              Address:

               

              15  Bank
      Street, Apt. 102-I

              White
      Plains, NY 10606

               

               

            
	 
      	 
      


    

    


    EFFECTIVE
DATE:   March 1,
2008

    


    


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

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    TERMS AND
CONDITIONS

    


    


    Omnimmune
wishes to engage Consultant to provide certain Services (defined below) to
Omnimmune, and Consultant 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 proprietary technical and
      nontechnical data, information, agreements, documents or other property of
      Omnimmune or any affiliate thereof, other than “Trade Secrets,” and
      proprietary rights thereto, which is of tangible or intangible value to
      Omnimmune or any affiliate thereof and is not public information or is not
      generally known or available to Omnimmune's competitors, but is known only
      to Omnimmune 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.

            


    

     

    
      	
              (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.

            


    

     

    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)  

            	
              Nondisclosure.  Consultant
      acknowledges that he may be exposed to certain Proprietary Information and
      Trade Secrets and the proprietary rights thereto during the Term, and his
      unauthorized use or disclosure of such information, data or rights could
      cause immediate and irreparable harm to Omnimmune.  Accordingly,
      except to the extent that he is required to use such information or data
      to perform his obligations as a consultant of
      Omnimmune,  Consultant agrees that he shall not (and shall take
      full responsibility for ensuring that none of his 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 of this Agreement 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 Omnimmune, and
      Consultant shall not have any ownership interest therein. In addition,
      except to the extent he is required to use such information or data to
      perform his obligations as an independent contractor of Omnimmune,
      Consultant agrees that he shall not (and shall take full responsibility
      for ensuring that none of his agents), without the express and duly
      authorized written consent of Omnimmune, redistribute, market, publish,
      disclose or divulge to any other Person, (i) any of Omnimmune's
      Proprietary Information and proprietary rights thereto during the Term and
      for a period of three (3) years immediately thereafter; and (ii) any of
      Omnimmune'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 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, solicit
      any employee, other personnel or independent contractor of Omnimmune (a
      “Protected Person”) for the purpose of encouraging such Protected Person
      to sever an employment, contractual or other relationship with Omnimmune
      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 Omnimmune within a three (3) year period prior to any
      such hiring or engagement.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4. Term.  Unless
terminated earlier as provided below, the term of Consultant'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  immediately “for cause”
following written notice and Consultant’s failure to cure the same within thirty
(30) days thereafter if Consultant is in material breach of any provision of
this Agreement or otherwise has engaged in conduct that poses a material risk to
Omnimmune or its customers. References in this Agreement to “Term” shall
refer to the Initial Term and any and all Renewal Terms.

     

    5. 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.

     

    6. Payment for
Services.  The compensation to be paid by Omnimmune to
Consultant is set forth on Schedule C to
this Agreement (the “Compensation”).  The Compensation shall
constitute Consultant's sole compensation for performing the Services for
Omnimmune.  Schedule C also
sets forth any arrangements between Omnimmune and Consultant with respect to
expenses that are to be borne by Omnimmune or with respect to which Consultant
may seek reimbursement. Consultant agrees to give Omnimmune at least fifteen
(15) days prior notice of any travel expenses with respect to which Consultant
seeks reimbursement (to the extent such reimbursement is permitted by Schedule C).

     

    7. 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 or willful
malfeasance.

     

    8. 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.  Section 3 of this Agreement and this Section 8
      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 Omnimmune, whether predicated on this Agreement or
      otherwise, shall not constitute a defense to the enforcement by Omnimmune
      of such Sections.

            


    

     

    9. 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 Omnimmune.  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.

     

    10. 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.

     

    11. 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.

     

    12. 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.

     

    13. 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.

     

    14. 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.

     

    15. 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 Texas, United States of
America.

     

    16. Entire
Agreement.  This Agreement contains the complete agreement
concerning the arrangement between Omnimmune and Consultant as of the date
hereof.

     

    17. Schedules.  Attached
to this Agreement and incorporated herein by reference are three schedules, A
(Services), B (Term), C (Compensation).

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    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:  Consult,
advise and otherwise assist Omnimmune and its management in connection with
various matters related to Omnimmune’s business operations, including, without
limitation, clinical trials, product development, financings, whether debt or
equity, third party transactions and various compliance matters.

    


    


    SCHEDULE
B

    TERM

    


    
      	
              (1)  

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

            


    

    


    
      	
              (2)  

            	
              This
      Agreement shall commence on March 1, 2008 and shall continue for a period
      of ten (10) years, through and including February 28,
      2018.  This Agreement shall be automatically renewed 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 Omnimmune and
      has no authority under this contract to bind Omnimmune by contract or
      otherwise.  Insomuch as Consultant is not an employee of
      Omnimmune, 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)  

            	
              Monthly
      Fee.  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 Consultant Ten
      Thousand Dollars ($10,000) on a monthly basis (the “Monthly
      Fee”).  It is contemplated that Consultant shall provide no less
      than 10 hours per month in the performance of the
  Services.

            


    

    


    
      	
              (2)  

            	
              Revenue
      Percentage Payment.  In the event that the Company (a) initiates
      one or more transactions with one or more third parties during the Term
      and (b) consummates such transaction or transactions during the Term or
      within twenty-four (24) months from the applicable Termination Date of
      this Agreement, from which the Company receives any Revenues (each a
      “Transaction”), Consultant shall be entitled to a revenue percentage
      payment equal to two percent (2%) of such Revenues from each such
      Transaction, payable to Consultant within thirty (30) days of
      receipt by the Company of such Revenues and without regard to the
      applicable Termination Date of this Agreement (the “Revenue Percentage
      Payment”).

            


    

    


    For the
purposes of this Agreement, “Revenues” shall mean the consideration, if any,
paid to the Company or for the Company’s benefit ( including, without
limitation, (i) any lump sum payment or series of related lump sum payments from
a third party in consideration for the third party acquiring an interest in the
future revenues of a product or technology owned or controlled by the Company,
and (ii) capital contributions or other payments into partnerships or joint
ventures with the Company by a partner, collaborator or other third party,
whether in cash or in kind (valued at fair market value)) in exchange for the
licensing, sublicensing, or transfer of technology, or to develop technology or
products of, or with, the Company, including, without limitation, license fees,
milestone payments and premiums paid on purchases, whether equity or debt, of
the capital stock of the Company, provided, that such
premiums shall include only the amount paid greater than the fair market value
of such capital stock.

    


    
      	
              (3)  

            	
              Payment
      will be due on the first day of each month during the
  Term.

            


    

    


    
      	
              (4)  

            	
              Consultant
      shall be entitled to an appropriate award of stock options, to be
      negotiated in good faith by the parties following the execution hereof,
      but prior to the contemplated
  merger.   

            


    

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXPENSES

    


    Omnimmune
shall reimburse Consultant for all of its reasonable, out-of-pocket expenses
incurred in the rendition of the services hereunder, provided, however, that
Consultant shall have submitted an expense report in form satisfactory to the
Company with such receipts or other substantiation as reasonably required by the
Company.   Notwithstanding any provision in this Agreement to the
contrary, any and all expenses in excess of $3,000 shall require the prior
written approval of Omnimmune’s chief executive officer or his or her
designee.