ex10-1.htm


    EXHIBIT
10.1

    


    DEMAND PROMISSORY
NOTE

     

    Houston,
Texas

     

    $287,768.40 Issue
Date: October 31, 2008

    


    RECITALS

     

    WHEREAS, Omnimmune Holdings,
Inc., a Delaware corporation (the “Company”) has retained the services of
McDaniel & Henry, LLP, a Georgia limited liability partnership (the “Firm)
to perform certain legal services for and on its behalf (the
“Services”);

     

    WHEREAS, Company has accrued
the amount of Two Hundred Eighty Seven Thousand Seven Hundred Sixty Eight
Dollars ($287,768.40), which amount is now past due;

     

    WHEREAS, the Firm has agreed
to permit Company to pay such amount out of future financings in exchange for
this Demand Promissory Note (the “Note”) and the terms and conditions described
herein.

     

    NOW THEREFORE, FOR VALUE RECEIVED, the
undersigned, the Company (hereinafter “Maker”), promises to pay to the Firm
(hereinafter “Payee”; Payee and any subsequent holder(s) hereof are individually
and collectively referred to as “Holder”), or order, the sum of Two Hundred
Eighty Seven Thousand Seven Hundred Sixty Eight Dollars ($287,768.40), 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.  This Note is payable on written demand by Holder in
immediately available funds at any time on or after the earlier of:

    


    (A) Qualified
Financings.

    


    (I) Initial Qualified
Financing.  As to principal and interest due and payable
hereunder in an amount equal to 50% of the first $200,000 received from a
Qualified Financing, plus 20% of all amounts raised above $400,000, the date on
which Maker closes on a Qualified Financing, after the date hereof (the “Initial
Qualified Financing”); and

    


    (II) Subsequent Qualified
Financings.  As to the lesser of the balance of principal and
interest due and payable hereunder or 20% of the gross proceeds of each
Qualified Financing following the Initial Qualified Financing (a “Subsequent
Financing”), the date on which Maker closes on any Subsequent Qualified
Financing;

    


    (B) Significant
Transaction.  As to the balance of principal and interest, if
any, remaining outstanding, upon and coincident with the earlier to occur of a
Significant Transaction (as defined below); or

    


    (C) Maturity Date.  As
to the balance of principal and interest, if any, remaining outstanding, June
30, 2009 (the “Maturity Date”).

     

    (b) Interest
Allocation.  A portion of each payment in cash hereunder shall
allocated first to accrued but unpaid interest as of each such cash payment
date.

    


    (c) Interest.  From and
including the date hereof to and including the date this Note is paid or
otherwise discharged in full, the unpaid principal amount of this Note shall
bear simple interest at 10% per annum, computed on the basis of a year of 360
days; provided, however, that upon the occurrence, and during the continuance of
an Event of Default under Section 3 hereunder, this Note shall bear simple
interest at 12% per annum, computed on the basis of a year of 360
days.

    


    (d) Tender.  All
payments of principal and interest shall be made in lawful money of the United
States of America and shall be made to Holder at Holder’s address set forth in
Section 8 or at such other place as Holder may designate to Maker in
writing.

    


    (e) Right of
Prepayment.  Maker shall have the right to prepay this Note at
any time during the term hereof without penalty.

    


    (f) Obligation to
Notify.  Maker shall notify Holder of any Significant
Transaction or Qualified Financing of which Holder does not otherwise have
actual notice through Holder’s role as counsel or through participation on the
Board of Directors of Maker not less than thirty (30) days prior to the date
thereof and provide Holder with any and all documents relating thereto within 48
hours of being requested by Holder.

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
 

    2.           Definitions.
For purposes of this Note, the following terms and phrases shall have the
meaning ascribed thereto:

    


    (a) “Qualified
Financing” shall mean any transaction (or any series of integrated transactions)
with a third party that results in the infusion, contribution or investment into
or receipt by Maker or any affiliate thereof of capital, including, without
limitation, from debt financing, equity financing or the licensing or
sublicensing of all or any part of the technology (e.g., licensed patents,
knowhow or materials) licensed by Maker under any license agreement or otherwise
owned by it.

    


    (b) “Significant
Transaction” shall mean either of the following:

    


    
      	
              i.  

            	
              Any
      transaction or series of transactions pursuant to which Maker sells,
      transfers, leases, exchanges or disposes of substantially all of its
      assets for cash or property, or for a combination of cash and property, or
      for other consideration; or

            


    

    


    
      	
              ii.  

            	
              Any
      transaction pursuant to which any person acquires by merger,
      consolidation, reorganization, division or other business combination or
      transaction, or by a purchase of an interest in Maker, an interest in
      Maker so that after such transaction, the shareholders of Maker
      immediately prior to such transaction no longer have a controlling voting
      interest in Maker.

            


    

    


    3. 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) business 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 thirty (30) days
(except in the case of its obligation under Section 1(f), in which case the
period shall be three (3) 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.

    


    4. Remedies. 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.  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.

    


    5. 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. 

    


    6. 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
      Holdings, Inc.

              Attn:  Chief
      Executive Officer

              4600
      Post Oak Place

              Suite
      352

              Houston,
      Texas  77027

            	
              If
      to Payee, to:

               

              McDaniel
      & Henry, LLP

              Attn:  Frank
      McDaniel, Esq.

              PO
      Box 681235

              Marietta,
      Georgia 30068-0021

            


    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    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.

    


    7. Governing
Law and Waiver of Jury Trial.  THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT
GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES. THE PARTIES HERETO WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE
ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS EMPLOYMENT AGREEMENT OR MATTERS
RELATED HERETO.

    


    8. Venue.  MAKER HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA SITTING IN COBB COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE DISTRICT OF GEORGIA, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW.  NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT HOLDER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AGAINST MAKER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.  MAKER AND HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT
REFERRED TO IN THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.  EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 7 OF THIS
NOTE.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO
THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.

     

     

    Omnimmune
Holdings, Inc.

     

    By: /s/ Harris A.
Lichtenstein                       


    Harris A.
Lichtenstein, Ph.D.

    President

     

     

     

    ACCEPTED
AND AGREED TO:

    


    McDaniel
& Henry, LLP

    


    By: /s/ Frank
McDaniel                        


    Frank
McDaniel

    Partner