REAFFIRMATION AGREEMENT
Exhibit
10.39
This
REAFFIRMATION AGREEMENT, dated as of August 30, 2006 (this “Agreement”),
is
made by Uluru Inc., a Nevada corporation (the “Parent”)
and
Uluru Delaware Inc. (f/k/a Uluru Inc. and the successor by merger with Uluru
Acquisition Corp.), a Delaware corporation (the “Guarantor”)
in
favor of the Buyers (as defined below). Capitalized terms used herein but not
specifically defined herein shall have the meanings ascribed to them in the
Debentures referred to below.
WHEREAS,
on or around October 12, 2005, Oxford Ventures, Inc., a Nevada corporation
(now
known as Uluru Inc., a Nevada corporation) and the Buyers identified on the
signature pages thereto (collectively, the “Buyers”)
entered into a Securities Purchase Agreement (as amended to date, the
“Securities
Purchase Agreement”)
pursuant to which Oxford Ventures, Inc., a Nevada corporation, issued and the
Buyers purchased, at the first closing, Convertible Debentures in an amount
up
to $13,000,000;
WHEREAS,
on or around October 12, 2005, Uluru Acquisition Corp, a Nevada corporation
entered into the Guaranty Agreement (the “Original
Guaranty”)
in
favor of the buyers listed on Schedule I thereto;
WHEREAS,
to secure the Obligations of the Guarantor to the Buyers, the Guarantor and
the
Buyers entered into that certain Security Agreement, dated on or around October,
12, 2005 (the “Security
Agreement”)
pursuant to which, among other things, the Guarantor granted to the Buyer a
security interest in and to the Pledged Property (as defined in the Security
Agreement); WHEREAS, to secure the Obligations of the Parent to the Buyers,
the
Parent and the Buyers entered into that certain Guarantor Security Agreement,
dated on or around October, 12, 2005 (the “Parent
Security Agreement”)
pursuant to which, among other things, the Parent granted to the Buyer a
security interest in and to the Pledged Property (as defined in the Parent
Security Agreement);
WHEREAS,
on March 31, 2006, Oxford Ventures, Inc., a Nevada corporation changed its
name
to Uluru, Inc., a Nevada corporation;
WHEREAS,
on March 31, 2006, Uluru Acquisition Corp., a Delaware corporation merged with
and into Uluru Inc., a Delaware corporation, and on June 8, 2006, Uluru Inc.,
a
Delaware corporation, changed its name to Uluru Delaware Inc.;
WHEREAS,
on the date hereof, the Securities Purchase Agreement will be amended to provide
for the purchase of Convertible Debentures at the second closing in an aggregate
amount of $3,000,000 and, in connection therewith, (i) the Convertible
Debentures issued to the Buyers will be amended and restated (the Convertible
Debentures issued to the Buyers, as amended and restated, are hereinafter
referred to as the “Debentures”) and (ii) the Investor Registration Rights
Agreement, dated on or around October 12, 2005, by and among the Company and
the
Buyers will be amended and restated (the “Amended
and Restated Investor Registration Rights Agreement”)
WHEREAS,
on the date hereof, the Guarantor will enter into the Amended and Restated
Guaranty Agreement (the “Amended
and Restated Guaranty”)
in
favor of the Buyers; and
WHEREAS,
the Guarantor is a wholly owned subsidiary of the Parent.
NOW
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1.
Reaffirmation
and Confirmation.
(a)
The
Parent hereby (i) acknowledges, confirms and agrees that the Parent Security
Agreement (A) remains in full force and effect as security for the Obligations
(as defined in the Parent Security Agreement), which includes the accrued but
unpaid Liquidated Damages (as defined in the Amended and Restated Investor
Registration Rights Agreement) specified in Section 2(e) of the Amended and
Restated Investor Registration Rights Agreement, (B) is the valid and binding
obligation of the Parent, and (C) is not subject to offset, deduction, defense
or claim against any Buyer, and (ii) confirms, ratifies and reaffirms that
the
security interest granted to the Buyer, pursuant to the Parent Security
Agreement in all of its right, title, and interest in all then existing and
thereafter acquired or arising Pledged Collateral described therein, in order
to
secure prompt payment and performance of the Obligations (as defined in the
Parent Security Agreement), is continuing and is and shall remain unimpaired
and
continue to constitute a first priority security interest in favor of the
Buyers, with the same force, effect and priority in effect both immediately
prior to and after entering into this Agreement, the Amended and Restated
Guaranty, the Debentures and the Parent Security Agreement.
(b)
The
Guarantor hereby (i) acknowledges, confirms and agrees that the Security
Agreement (A) remains in full force and effect as security for the Obligations
(as defined in the Security Agreement), which includes the accrued but unpaid
Liquidated Damages specified in Section 2(e) of the Amended and Restated
Investor Registration Rights Agreement, (B) is the valid and binding obligation
of the Guarantor, and (C) is not subject to offset, deduction, defense or claim
against any Buyer, and (ii) confirms, ratifies and reaffirms that the security
interest granted to the Buyers, pursuant to the Security Agreement in all of
its
right, title, and interest in all then existing and thereafter acquired or
arising Pledged Collateral described therein, in order to secure prompt payment
and performance of the Obligations (as defined in the Security Agreement),
is
continuing and is and shall remain unimpaired and continue to constitute a
first
priority security interest in favor of the Buyers, with the same force, effect
and priority in effect both immediately prior to and after entering into this
Agreement, the Amended and Restated Guaranty, the Debentures and the Security
Agreement.
2.
General
Provisions.
(a)
This
Agreement does not and shall not affect any of the obligations of the parties
hereto arising from the Debentures, all of which obligations shall remain in
full force and effect. The execution, delivery and effectiveness of this
Agreement shall not operate as a waiver of any right, power or remedy of any
Buyer under the Debenture issued to it or any document executed in connection
therewith, nor constitute a waiver of any provision of the Debenture or any
other document relating thereto. This Agreement is for the benefit of each
of
the Buyers and is enforceable by the Buyers against the Guarantor and the
Parent.
(b)
Representations
and Warranties.
Each of
the Guarantor and the Parent represents and warrants that (i) the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary action, (ii) it has duly executed and delivered this Agreement, and
(iii) this Agreement is a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally and
by general equitable principles (whether enforcement is sought by proceedings
at
law or in equity).
(c)
Counterparts.
This
Agreement may be executed by one or more of the parties hereto in any number
of
separate counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile or electronic mail shall be equally
effective as delivery of an original executed counterpart.
(d)
CHOICE
OF LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS
OR
CHOICE OF LAW PRINCIPLES THEREOF.
(e)
JURY
TRIAL WAIVER.
EACH
PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
OR
STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of this
30th day of August, 2006.
ULURU
INC., a Nevada corporation
By:
/s/
Xxxxx X. Xxxx
Xxxxx
X.
Xxxx
Chief
Executive Officer
ULURU
DELAWARE INC., a Delaware corporation
By:
/s/
Xxxxx X. Xxxx
Xxxxx
X.
Xxxx
Chief
Executive Officer
CORNELL
CAPITAL PARTNERS, LP
By:
Yorkville Advisors, LLC, its General Partner
By: /s/
Xx
Xxxxxx
Name:
Xx
Xxxxxx
Title:
Chief Financial Officer
PRENOX,
LLC
By:
Prentice Capital Management, LP its Manager
By:
/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
General Counsel
