INVESTOR REGISTRATION RIGHTS AGREEMENT
Exhibit
10.37
THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
“Agreement”),
dated as of August 30, 2006, by and among ULURU
INC. (f/k/a
Oxford Ventures, Inc.), a Nevada corporation (the “Company”), and the
undersigned investors listed on Schedule I attached hereto (each, an
“Investor”
and
collectively, the “Investors”).
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the parties
hereto dated October 12, 2005 (the “Securities
Purchase Agreement”),
the
Company issued and sold to the Investors at the First Closing (i) secured
convertible debentures (the “Convertible
Debentures”)
which
are convertible into shares of the Company’s common stock, par value $0.001 per
share (the “Common
Stock”),
as is
provided for in the Convertible Debentures and (ii) warrants (the “First
Closing Warrants”)
to
purchase 5,000,000 shares of Common Stock. Capitalized terms not defined
herein
shall have the meaning ascribed to them in the Securities Purchase
Agreement.
B. To
induce
the Investors to execute and deliver the Securities Purchase Agreement, the
Company agreed to provide certain registration rights under the Securities
Act
of 1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “Securities
Act”),
and
applicable state securities laws, to the Investors pursuant to the terms
of the
Investor Registration Rights Agreement, dated as of October 12, 2005 (the
“Prior
Registration Rights Agreement”),
by
and among the Company and the Investors.
C. On
March
13, 2006 Highgate House Funds, Ltd. assigned to Cornell Capital Partners,
LP the
Convertible Debenture and First Closing Warrants issued to Highgate House
Funds,
Ltd. pursuant to the Securities Purchase Agreement and all of Highgate’s rights
and interests that Highgate had under the Prior Registration Rights Agreement.
D. Simultaneously
herewith, the Securities Purchase Agreement is being amended to provide that
the
Second Closing shall occur on the date hereof and, at the Second Closing,
(i)
Prenox, LLC shall provide an additional $3,000,000 of funding to the Company
in
exchange for (A) the issuance of an amended and restated Convertible Debenture
in the aggregate principal amount of $13,000,000 and (B) the issuance of
warrants (the “Second
Closing Warrants”)
and
together with the First Closing Warrants, the “Warrants”)
to
purchase 1,125,000 shares of Common Stock and (ii) the Convertible Debenture
held by Cornell Capital Partners, LP shall be amended and restated (the amended
and restated Convertible Debentures issued to Prenox, LLC and Cornell Capital
Partners, LP are referred to herein as the “Amended
and Restated Convertible Debentures”).
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Investors hereby agree as
follows:
| 1. |
DEFINITIONS.
|
As
used
in this Agreement, the following terms shall have the following
meanings:
(a) “Person”
means
a
corporation, a limited liability company, an association, a partnership,
an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
(b) “Register,”
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the Securities Act and pursuant
to Rule 415
under
the
Securities Act or any successor rule providing for offering securities on
a
continuous or delayed basis (“Rule
415”),
and
the
declaration or ordering of effectiveness of such Registration Statement(s)
by
the United States Securities and Exchange Commission (the “SEC”).
(c)
“Registrable
Securities”
means
(i) the shares of Common Stock issued or issuable upon conversion of the
Amended
and Restated Convertible Debentures, (ii) the shares of Common Stock issued
or
issuable upon exercise of the Warrants, and (iii) any shares of capital stock
of
the Company issued or issuable with respect to the Amended and Restated
Convertible Debentures (without regard to any limitations on conversion
contained therein), the Warrants (without regard to any limitations on exercise
contained therein) or the securities referred to in clauses (i) and (ii)
above
as a result of any stock split, stock dividend, recapitalization, exchange
or
similar event or otherwise.
(d)
“Registration
Statement”
means
a
registration statement under the Securities Act which covers the Registrable
Securities.
| 2. |
REGISTRATION.
|
(a)
Subject to the terms and conditions of this Agreement, the Company shall
prepare
and file, no later than seventy-five (75)
days
from
the date hereof (the “Scheduled
Filing Deadline”),
with
the SEC a registration statement on Form S-1 or SB-2 (or, if the Company
is then
eligible, on Form S-3) under the Securities Act (the “Initial
Registration Statement”)
for
the resale by the Investors of the Registrable Securities, which includes
at
least 30,000,000 Conversion Shares to be issued upon conversion of and/or
default under the Amended and Restated Convertible Debentures and 6,125,000
Warrant Shares to be issued upon exercise of the Warrants. The Company shall
keep the Registration Statement “Evergreen” for the life of the Amended and
Restated Convertible Debentures or until Rule 144(k) of the Securities Act
of
1933, as amended, is available to the Investor with respect to all of the
Registrable Securities, whichever is later. The Company shall retain, and
pay at
its sole expense, a law firm to file the Registration Statement from a list
of
approved law firms provided by the Investor. Prior to the filing of the
Registration Statement with the SEC, the Company shall furnish a copy of
the
Initial Registration Statement to the Investors for their review and comment.
The Investors shall furnish comments on the Initial Registration Statement
to
the Company within seventy-two (72) hours of the receipt thereof from the
Company.
(b)
Effectiveness
of the Initial Registration Statement.
The
Company shall use its best efforts (i) to have the Initial Registration
Statement declared effective by the SEC no later than one hundred twenty
(120)
days (one hundred fifty (150)
days
if
the Initial Registration Statement is reviewed by the SEC) after the date
hereof
(the “Scheduled
Effective Deadline”)
and
(ii) to insure that the Initial Registration Statement and any subsequent
Registration Statement remains in effect until all of the Registrable Securities
have been sold, subject to the terms and conditions of this Agreement. It
shall
be an event of default under the Amended and Restated Convertible Debentures
if
the Initial Registration Statement is not declared effective by the SEC within
one hundred fifty (150) days following the date hereof
(c)
Failure
to File or Obtain Effectiveness of the Registration Statement.
In the
event the Registration Statement is not filed by the Scheduled Filing Deadline
or is not declared effective by the SEC on or before the Scheduled Effective
Deadline, or if after the Registration Statement has been declared effective
by
the SEC, sales cannot be made pursuant to the Registration Statement (whether
because of a failure to keep the Registration Statement effective, failure
to
disclose such information as is necessary for sales to be made pursuant to
the
Registration Statement, failure to register sufficient shares of Common Stock
or
otherwise, except for any grace period provided in Section 3(e) hereof)
(“Maintenance
Failure”)
then
as partial relief for the damages to any holder of Registrable Securities
by
reason of any such delay in or reduction of its ability to sell the underlying
shares of Common Stock (which remedy shall not be exclusive of any other
remedies at law or in equity), the Company will pay as liquidated damages
(the
“Liquidated
Damages”)
and
not as a penalty, to the holder, a cash amount equal to two percent (2%)
per
month of the outstanding principal amount of the Amended and Restated
Convertible Debentures outstanding. The initial payment of Liquidated Damages
shall be made on the date the Scheduled Filing Deadline, Scheduled Effective
Deadline or Maintenance Failure occurs, and shall continue and be paid every
thirtieth (30th)
day
thereafter (or, if cured prior to any such subsequent thirtieth (30) day,
within
three (3) business days following such cure) until the Registration Statement
is
filed or declared effective or such Maintenance Failure is cured, as the
case
may be. Notwithstanding anything contained herein to the contrary, no Liquidated
Damages payments under this Agreement (excluding any accrued Liquidated Damages’
payments under the Prior Registration Rights Agreement pursuant to Section
2(e))
shall exceed, with respect to a particular Investor, twelve and one half
percent
(12.5%) of the principal amount of such Investor’s Amended and Restated
Convertible Debentures.
(d)
Liquidated
Damages.
The
Company and the Investor hereto acknowledge and agree that the sums payable
under subsection 2(c) above shall constitute liquidated damages and not
penalties and are in addition to all other rights of the Investor, including
the
right to call a default. The parties further acknowledge that (i) the amount
of
loss or damages likely to be incurred is incapable or is difficult to precisely
estimate, (ii) the amounts specified in such subsection bear a reasonable
relationship to, and are not plainly or grossly disproportionate to, the
probable loss likely to be incurred in connection with any failure by the
Company to file a Registration Statement or to obtain or maintain the
effectiveness of a Registration Statement, (iii) one of the reasons for the
Company and the Investor reaching an agreement as to such amounts was the
uncertainty and cost of litigation regarding the question of actual damages,
and
(iv) the Company and the Investor are sophisticated business parties and
have
been represented by sophisticated and able legal counsel and negotiated this
Agreement at arm’s length.
(e)
Accrued
Liquidated Damages.
As of
the date hereof, there are accrued Liquidated Damages owed to Prenox, LLC
and
Cornell Capital Partners, LP in the amount of $1,450,000 and $435,000,
respectively, for the failure to timely file the Registration Statement under
the Prior Registration Rights Agreement. The Company and each Investor hereby
acknowledges and agrees that (i) payment of the accrued but unpaid Liquidated
Damages due and owing to such Investor shall be deferred until such time
as the
Amended and Restated Convertible Debenture held by such Investor becomes
due and
owing, whether at maturity, by acceleration or otherwise and, at such time,
such
accrued but unpaid Liquidated Damages shall be paid in full and (ii) the
accrued
but unpaid Liquidated Damages shall constitute Obligations (as defined in
the
Security Agreement). In connection with a financing pursuant to which the
Amended and Restated Convertible Debentures are redeemed in full in accordance
with the terms of the Amended and Restated Convertible Debentures, the Investors
and the Company shall enter into discussions regarding potential alternative
terms, settlement or other resolution of payment of such accrued but unpaid
Liquidated Damages set forth above, which such alternative terms of payment,
settlement or resolution shall be acceptable to the Investors in their sole
discretion.
| 3. |
RELATED
OBLIGATIONS.
|
(a)
The
Company shall keep the Registration Statement effective pursuant to Rule
415 at
all times until the date on which the Investors shall have sold all the
Registrable Securities covered by such Registration Statement (the “Registration
Period”),
which
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein,
or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading.
(b)
The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act,
as may
be necessary to keep such Registration Statement effective at all times during
the Registration Period, and, during such period, comply with the provisions
of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by such Registration Statement until such time as
all of
such Registrable Securities shall have been disposed of in accordance with
the
intended methods of disposition by the seller or sellers thereof as set forth
in
such Registration Statement. In the case of amendments and supplements to
a
Registration Statement which are required to be filed pursuant to this Agreement
(including pursuant to this Section 3(b)) by reason of the Company’s filing a
report on Form 10-KSB, Form 10-QSB or Form 8-K or any analogous report under
the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
the
Company shall incorporate such report by reference into the Registration
Statement, if applicable, or shall file such amendments or supplements with
the
SEC on the same day on which the Exchange Act report is filed which created
the
requirement for the Company to amend or supplement the Registration
Statement.
(c)
The
Company shall furnish to each Investor whose Registrable Securities are included
in any Registration Statement, without charge, (i) at least one (1) copy
of such
Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents
incorporated therein by reference, all exhibits and each preliminary prospectus,
(ii) ten (10) copies of the final prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other number
of
copies as such Investor may reasonably request) and (iii) such other documents
as such Investor may reasonably request from time to time in order to facilitate
the disposition of the Registrable Securities owned by such
Investor.
(d)
The
Company shall use its best efforts to (i) register and qualify the Registrable
Securities covered by a Registration Statement under such other securities
or
“blue sky” laws of such jurisdictions in the United States as any Investor
reasonably requests, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall
not be
required in connection therewith or as a condition thereto to (w) make any
change to its articles of incorporation or by-laws, (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify but
for
this Section 3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any
such
jurisdiction. The Company shall promptly notify each Investor who holds
Registrable Securities of the receipt by the Company of any notification
with
respect to the suspension of the registration or qualification of any of
the
Registrable Securities for sale under the securities or “blue sky” laws of any
jurisdiction in the United States or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
(e)
As
promptly as practicable after becoming aware of such event or development,
the
Company shall notify each Investor in writing of the happening of any event
as a
result of which the prospectus included in a Registration Statement, as then
in
effect, includes an untrue statement of a material fact or omission to state
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (provided that in no event shall such notice contain any material,
nonpublic information), and promptly prepare a supplement or amendment to
such
Registration Statement to correct such untrue statement or Omission, and
deliver
ten (10) copies of such supplement or amendment to each Investor.
Notwithstanding any provision of this Agreement to the contrary, if the Company
makes such a notification, the Company may suspend the use of any prospectus
contained in any Registration Statement for periods not to exceed forty five
(45)
business
days in any three month period or two periods not to exceed an aggregate
of
ninety (90) business days in any 12 month period in the event that the Company
determines, in the exercise of its reasonable discretion, confirmed by a
legal
opinion from outside counsel, that sales of Registrable Securities thereunder
could constitute violations of the Securities Act due to the Registration
Statement containing an untrue statement of a material fact or omission to
state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In each case the Company shall use commercially reasonable
efforts to remedy the deficiency in the Registration Statement within thirty
(30) business days. The Company shall also promptly notify each Investor
in
writing (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a Registration Statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to each Investor by facsimile on the same
day
of such effectiveness), (ii) of any request by the SEC for amendments or
supplements to a Registration Statement or related prospectus or related
information, and (iii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(f)
The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction within the United States of America and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension
at
the earliest possible moment and to notify each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(g)
The
Company shall make available for inspection by (i) any Investor and (ii)
one (1)
firm of accountants or other agents retained by the Investors (collectively,
the
“Inspectors”)
all
pertinent financial and other records, and pertinent corporate documents
and
properties of the Company (collectively, the “Records”),
as
shall be reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree,
and
each Investor hereby agrees, to hold in strict confidence and shall not make
any
disclosure (except to an Investor) or use any Record or other information
which
the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (a) the disclosure of
such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the Securities Act,
(b)
the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction,
or
(c) the information in such Records has been made generally available to
the
public other than by disclosure in violation of this or any other agreement
of
which the Inspector and the Investor has knowledge. Each Investor agrees
that it
shall, upon learning that disclosure of such Records is sought in or by a
court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential.
(h)
The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws,
(ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release
of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available
to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure
of
such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give
prompt
written notice to such Investor and allow such Investor, at the Investor’s
expense, to undertake appropriate action to prevent disclosure of, or to
obtain
a protective order for, such information.
(i)
The
Company shall use its best efforts either to cause all the Registrable
Securities covered by a Registration Statement (i) to be listed on each
securities exchange on which securities of the same class or series issued
by
the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or (ii) to
be
included for quotation on the National Association of Securities Dealers,
Inc.
OTC Bulletin Board for such Registrable Securities. The Company shall pay
all
fees and expenses in connection with satisfying its obligation under this
Section 3(i).
(j)
The
Company shall cooperate with the Investors who hold Registrable Securities
being
offered and, to the extent applicable, to facilitate the timely preparation
and
delivery of certificates to a transferee of an Investor (not bearing any
restrictive legend) representing the Registrable Securities to be offered
pursuant to a Registration Statement and enable such certificates to be in
such
denominations or amounts, as the case may be, as the Investors may reasonably
request and registered in such names as the Investors may request.
(k)
The
Company shall use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved
by
such other governmental agencies or authorities as may be necessary to
consummate the disposition of such Registrable Securities.
(1)
The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of
Rule 158 under the Securities Act) covering a twelve (12) month period beginning
not later than the first day of the Company’s fiscal quarter next following the
effective date of the Registration Statement.
(m)The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
(n)
Within two (2) business days after a Registration Statement which covers
Registrable Securities is declared effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement)
confirmation that such Registration Statement has been declared effective
by the
SEC in the form attached hereto as Exhibit
A.
| 4. |
OBLIGATIONS
OF THE INVESTORS.
|
Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(f) or the first
sentence of Section 3(e), such Investor will immediately discontinue disposition
of Registrable Securities pursuant to any Registration Statement(s) covering
such Registrable Securities until such Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(e) or receipt
of
notice from the Company that no supplement or amendment is required.
Notwithstanding anything to the contrary, the Company shall cause its transfer
agent to deliver unlegended certificates for shares of Common Stock to a
transferee of an Investor in accordance with the terms of the Securities
Purchase Agreement in connection with any sale of Registrable Securities
with
respect to which an Investor has entered into a contract for sale prior to
the
Investor’s receipt of a notice from the Company of the happening of any event of
the kind described in Section 3(f) or the first sentence of 3(e) and for
which
the Investor has not yet settled.
| 5. |
EXPENSES
OF REGISTRATION.
|
All
expenses incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration,
listing and qualifications fees, printers, legal and accounting fees shall
be
paid by the Company.
| 6. |
INDEMNIFICATION.
|
With
respect to Registrable Securities which are included in a Registration Statement
under this Agreement:
(a)
To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor, the directors, officers,
partners, employees, agents, representatives of, and each Person, if any,
who
controls any Investor within the meaning of the Securities Act or the Exchange
Act (each, an “Indemnified
Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by
or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”),
to
which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon: (i) any untrue statement or alleged untrue statement of
a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other “blue sky” laws of any jurisdiction in
which Registrable Securities are offered (“Blue
Sky Filing”),
or
the omission or alleged omission to state a material fact required to be
stated
therein or necessary to make the statements therein not misleading; (ii)
any
untrue statement or alleged untrue statement of a material fact contained
in any
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein
were
made, not misleading; or (iii) any violation or alleged violation by the
Company
of the Securities Act, the Exchange Act, any other law, including, without
limitation, any state securities law, or any rule or regulation there under
relating to the offer or sale of the Registrable Securities pursuant to a
Registration Statement (the matters in the foregoing clauses (i) through
(iii)
being, collectively, “Violations”).
The
Company shall reimburse the Investors and each such controlling person promptly
as such expenses are incurred and are due and payable, for any legal fees
or
disbursements or other reasonable expenses incurred by them in connection
with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (x) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Indemnified
Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall
not be
available to the extent such Claim is based on a failure of the Investor
to
deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company pursuant
to
Section 3(c); and (z) shall not apply to amounts paid in settlement of any
Claim
if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
the Indemnified Person and shall survive the transfer of the Registrable
Securities by the Investors.
(b)
In
connection with a Registration Statement, each Investor agrees to severally
and
not jointly indemnify, hold harmless and defend, to the same extent and in
the
same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers, employees, representatives, or agents and each Person,
if
any, who controls the Company within the meaning of the Securities Act or
the
Exchange Act (each an “Indemnified
Party”),
against any Claim or Indemnified Damages to which any of them may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar
as
such Claim or Indemnified Damages arise out of or is based upon any Violation,
in each case to the extent, and only to the extent, that such Violation occurs
in reliance upon and in conformity with written information furnished to
the
Company by such Investor expressly for use in connection with such Registration
Statement; and, subject to Section 6(d), such Investor will reimburse any
legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
such
Investor, which consent shall not be unreasonably withheld; provided, further,
however, that the Investor shall be liable under this Section 6(b) for only
that
amount of a Claim or Indemnified Damages as does not exceed the net proceeds
to
such Investor as a result of the sale of Registrable Securities pursuant
to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified
Party
and shall survive the transfer of the Registrable Securities by the Investors.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any prospectus shall
not inure to the benefit of any Indemnified Party if the untrue statement
or
omission of material fact contained in the prospectus was corrected and such
new
prospectus was delivered to each Investor prior to such Investor’s use of the
prospectus to which the Claim relates.
(c)
Promptly after receipt by an Indemnified Person or Indemnified Party under
this
Section 6 of notice of the commencement of any action or proceeding (including
any governmental action or proceeding) involving a Claim, such Indemnified
Person or Indemnified Party shall, if a Claim in respect thereof is to be
made
against any indemnifying party under this Section 6, deliver to the indemnifying
party a written notice of the commencement thereof, and the indemnifying
party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory
to
the indemnifying party and the Indemnified Person or the Indemnified Party,
as
the case may be; provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and expenses
of not more than one (1) counsel for such Indemnified Person or Indemnified
Party to be paid by the indemnifying party, if, in the reasonable opinion
of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person or Indemnified Party and the indemnifying party
would
be inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to
the
Indemnified Party or Indemnified Person which relates to such action or claim.
The indemnifying party shall keep the Indemnified Party or Indemnified Person
fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable
for any
settlement of any action, claim or proceeding effected without its prior
written
consent; provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without
the prior written consent of the Indemnified Party or Indemnified Person,
consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving
by
the claimant or plaintiff to such Indemnified Party or Indemnified Person
of a
release from all liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with
respect to all third parties, firms or corporations relating to the matter
for
which indemnification has been made. The failure to deliver written notice
to
the indemnifying party within a reasonable time of the commencement of any
such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend
such
action.
(d)
The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as
and
when bills are received or Indemnified Damages are incurred.
(e)
The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
| 7. |
CONTRIBUTION.
|
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with
respect
to any amounts for which it would otherwise be liable under Section 6 to
the
fullest extent permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty
of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by
such seller from the sale of such Registrable Securities.
| 8. |
REPORTS
UNDER THE EXHANGE ACT.
|
With
a
view to making available to the Investors the benefits of Rule 144 promulgated
under the Securities Act or any similar rule or regulation of the SEC that
may
at any time permit the Investors to sell securities of the Company to the
public
without registration (“Rule
144”)
the
Company agrees to:
(a)
Make
and keep public information available, as those terms are understood and
defined
in Rule 144;
(b)
file
with the SEC in a timely manner all reports and other documents required
of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements (it being understood that nothing herein
shall limit the Company’s obligations under Section 4(c) of the Securities
Purchase Agreement) and the filing of such reports and other documents as
are
required by the applicable provisions of Rule 144; and
(c)
furnish to each Investor so long as such Investor owns Registrable Securities,
promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act
and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of
the
Company and such other reports and documents so filed by the Company, and
(iii)
such other information as may be reasonably requested to permit the Investors
to
sell such securities pursuant to Rule 144 without registration.
| 9. |
AMENDMENT
OF REGISTRATION RIGHTS; ASSIGNMENT OF REGISTRATION RIGHTS.
|
(a)
Provisions of this Agreement may be amended and the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and Investors
who
then hold at least two-thirds (2/3) of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section 9 shall be binding upon
each
Investor and the Company. No such amendment shall be effective to the extent
that it applies to fewer than all of the holders of the Registrable Securities.
No consideration shall be offered or paid to any Person to amend or consent
to a
waiver or modification of any provision of any of this Agreement unless the
same
consideration also is offered to all of the parties to this
Agreement.
(b)
The
rights under this Agreement shall be automatically assignable by an Investor
to
any transferee of all or any portion of such Investor’s Registrable Securities
if: (i) the Investor agrees in writing with the transferee or assignee to
assign
such rights, and a copy of such agreement is furnished to the Company within
a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of
(a) the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act or applicable state securities laws; and (iv) at or before
the
time the Company receives the written notice contemplated by clause (ii)
of this
sentence the transferee or assignee agrees in writing with the Company to
be
bound by all of the provisions contained herein.
| 10. |
MISCELLANEOUS.
|
(a)
A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two (2) or more
Persons with respect to the same Registrable Securities, the Company shall
act
upon the basis of instructions, notice or election received from the registered
owner of such Registrable Securities.
(b)
Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party);
or (iii) one (1) business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party
to
receive the same. The addresses and facsimile numbers for such communications
shall be:
|
If
to the Company, to:
|
|
|
0000
Xxxxxxx Xxxxx
Xxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx X. Xxxx
Telephone:
(000) 000-0000
|
|
|
With
a copy to:
|
Xxxxxxx
XxXxxxxxx LLP
|
|
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
|
|
|
Attention:
Xxxx X. Xxxxxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
If
to an
Investor, to its address and facsimile number on the Schedule of Investors
attached hereto, with copies to such Investor’s representatives as set forth on
the Schedule of Investors or to such other address and/or facsimile number
and/or to the attention of such other person as the recipient party has
specified by written notice given to each other party five (5) days prior
to the
effectiveness of such change. Written confirmation of receipt (A) given by
the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image of the
first
page of such transmission or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
(c)
Failure of any party to exercise any right or remedy under this Agreement
or
otherwise, or delay by a party in exercising such right or remedy, shall
not
operate as a waiver thereof.
(d)
The
parties hereto acknowledge that the transactions contemplated by this Agreement
and the exhibits hereto bear a reasonable relation to the State of New York.
The
parties hereto agree that the internal laws of the State of New York shall
govern this Agreement and the exhibits hereto, including, but not limited
to,
all issues related to usury. Any action to enforce the terms of this Agreement
or any of its exhibits shall be brought exclusively in the state and/or federal
courts situated in the County and State of New York. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to
such
party at the address for such notices to it under this Agreement and agrees
that
such service shall constitute good and sufficient service of process and
notice
thereof. Nothing contained herein shall be deemed to limit in any way any
right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONISIECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(e)
This
Agreement, the Irrevocable Transfer Agent Instructions, the Securities Purchase
Agreement (including the amendment thereto) and related documents including
the
Amended and Restated Convertible Debentures, the Warrants, the Escrow Agreement
by and among the Company, the Investors set forth on the Schedule of Investors
attached hereto, and Gottbetter & Partners, LLP. (the “Escrow
Agreement”),
the
Escrow Shares Escrow Agreement, the Security Agreement and any other documents
executed in connection with the First Closing and/or Second Closing constitute
the entire agreement among the parties hereto with respect to the subject
matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This
Agreement, the Irrevocable Transfer Agent Instructions, the Securities Purchase
Agreement (including the amendment thereto) and related documents including
the
Amended and Restated Convertible Debenture, the Warrants, the Escrow Agreement,
the Escrow Shares Escrow Agreement, the Security Agreement and any other
documents executed in connection with the First Closing and/or Second Closing
supersede all prior agreements and understandings among the parties hereto
with
respect to the subject matter hereof and thereof (including the Prior
Registration Rights Agreement).
(f)
This
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(g)
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h)
This
Agreement may be executed in identical counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
(i)
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent and no rules of strict
construction will
be
applied against any party.
(j)
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other Person.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the
parties have caused this Investor Registration Rights Agreement to be duly
executed as of day and year first above written.
COMPANY:
Uluru,
Inc. (f/k/a Oxford Ventures, Inc.)
By:
/s/
Xxxxx X. Xxxx
Name:
Xxxxx
X. Xxxx
Title:
President
& CEO
INVESTORS:
Cornell
Capital Partners, LP
By:
Yorkville Advisors, LLC, its General Partner
By:
/s/
Xx
Xxxxxxx
Name:
Xx
Xxxxxxx
Title:
Chief
Financial Officer
Prenox,
LLC
By:
Prentice Capital
Management, LP, its Manager
By:
/s/
Xxxx Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
General
Counsel
SCHEDULE
I
SCHEDULE
OF INVESTORS
|
Name
|
Signature
|
Address/Facsimile
Number
of Investors
|
||
|
Cornell
Capital Partners, LP
|
By:
Yorkville Advisors, its General Partner
Name:
Xxxx Xxxxxx
Its:
Portfolio Manager
|
000
Xxxxxx Xxxxxx,
Xxxxx
0000 Xxxxxx Xxxx, XX 00000
Telephone:
(000) 000-0000
|
||
|
With
a copy to:
|
Xxxx
Xxxxx, Esq.
|
000
Xxxxxx Xxxxxx,
Xxxxx
0000 Xxxxxx Xxxx, XX 00000
Telephone:
(000) 000-0000
|
||
|
Prenox,
LLC.
|
By:
Prentice Capital Management LP, its Manager
Name:
Xxxxxx X. Xxxxxxx
Its:
General Counsel
|
000
Xxxxx Xxxxxx, 00xx
Xxxxx Xxx Xxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
Attention:
Re:
ULURU
INC.
Ladies
and Gentlemen:
We
are
counsel to Uluru Inc., a Nevada corporation (the “Company”),
and
have represented the Company in connection with that certain Securities Purchase
Agreement (the “Securities
Purchase Agreement”)
entered into by and among the Company and the investors named therein
(collectively, the “Investors”)
pursuant to which the Company issued to the Investors shares of its Common
Stock, par value $0.00 1 per share (the “Common
Stock”).
Pursuant to the Purchase Agreement, the Company also has entered into a
Registration Rights Agreement with the Investors (the “Investor
Registration Rights Agreement”)
pursuant to which the Company agreed, among other things, to register the
Registrable Securities (as defined in the Registration Rights Agreement)
under
the Securities Act of 1933, as amended (the “Securities Act”). In connection
with the Company’s obligations under the Registration Rights Agreement, on
,,
the
Company filed a Registration Statement on Form _________
(File No. 333-
)
(the
“Registration
Statement”)
with
the Securities and Exchange SEC (the “SEC”)
relating to the Registrable Securities which names each of the Investors
as a
selling stockholder there under.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the Securities Act at [ENTER
TIME
OF EFFECTIVENESS] on
[ENTER
DATE OF EFFECTIVENESS]
and we
have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that
any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC
and
the Registrable Securities are available for resale under the Securities
Act
pursuant to the Registration Statement.
Very
truly yours,
[Law
Firm]
By:
cc:
[LIST
NAMES OF INVESTORS]
