Exhibit 99.3
Put
and call Agreement
THIS put
and call Agreement (this “Agreement”) is made and entered into as of July 29, 2015 by and between Xxxxxxx
X. Xxxxx (“Xxxxx”) and Centric Capital Ventures LLC, a Delaware limited liability company (“Centric”).
WHEREAS, Sacks currently beneficially owns 2,000,000
shares (the “Shares”) of Common Stock, par value $0.001 per share (the “Common Stock”), of
ULURU Inc., a Nevada corporation (“ULURU”), which he acquired under the Assignment Agreement, dated as of January
31, 2014, among Sacks, IPMD GmbH (“IPMD”) and The Punch Trust (“TPT”), pursuant to which
IPMD assigned to Sacks and TPT its rights and interests to purchase up to 3,000,000 shares of Common Stock as detailed in a warrant
dated December 21, 2012, as amended;
WHEREAS, the Common Stock is currently illiquid
and does not trade on a national stock exchange and the Share price has been relatively volatile since date the Shares were first
acquired by Sacks;
WHEREAS, the average per share price of the
Common Stock over the four weeks prior to the date of this Agreement was below $0.45 per share;
WHEREAS, pursuant to the Stockholders’
Agreement, dated as of January 31, 2014, by and among Sacks, IPMD and TPT, as amended by Amendment to Stockholders’ Agreement,
dated as of July 27, 2015 (the “Stockholders’ Agreement”), certain transfers of Shares by Sacks are subject
to rights of first refusal and co-sale, however, a transfer of Shares to Centric would be exempt from such restrictions;
WHEREAS, Sacks may transfer rights under the
Registration Rights Agreement, dated as of January 31, 2014, by and among Sacks, TPT and ULURU (the “Registration Rights
Agreement”), to Centric;
WHEREAS, once exercisable, the Put Right (as
defined below) would provide Sacks with the opportunity for immediate liquidity with respect to the Shares; and
WHEREAS, the parties hereto desire to set forth
in this Agreement certain rights and obligations with respect to the Shares.
NOW, THEREFORE, in consideration of the mutual
promises and conditions hereinafter set forth, the parties hereto agree as follows:
1. Right
to Put.
(a) General. At any time on or after January 1, 2016 but prior to July 31, 2022, Sacks shall have the right to sell to Centric and Centric agrees
to purchase from Sacks, for the Put Payment Amount (as defined below), all or any portion of the Shares as indicated in a Put Notice
(as defined below) from Sacks (the “Put Right”).
(b) Method
of Exercise. Sacks may exercise the Put Right by delivering to Centric a notice of his intent to sell Shares pursuant to Section
1(a) in the form attached hereto as Exhibit A (the “Put Notice”). In the event that the initial Put Notice
does not provide for the purchase of all of the Shares, from time to time thereafter, Sacks may deliver subsequent Put Notices,
provided, however, no Put Notice may be delivered sooner than three months following the delivery of the prior Put Notice. If,
within five Business Days of receiving a Put Notice, Centric notifies Sacks that it has engaged in one or more transactions in
ULURU securities (each, a “Sale Transaction”) during the prior six months that could be matched against the
purchase of Shares upon the exercise of the Put Right and trigger liability for Centric under Section 16(b) of the Securities Exchange
Act of 1934 (“Section 16(b)”), then such Put Notice shall be deemed rescinded and Sacks may not deliver another
Put Notice until the Business Day after the expiration of the six month period following the latest Sale Transaction (the “Put
Blackout Period”). Following any such Put Notice rescission, Centric shall not voluntarily enter into any additional
Sale Transactions sooner than one month following the end of the Put Blackout Period.
(c) Closing. The closing of each purchase and sale pursuant to the exercise of the Put Right shall be held on a date mutually agreed to by Sacks
and Centric, which shall be no later than the tenth Business Day (as defined below) after Sacks’ delivery to Centric of the
Put Notice (the “Put Closing”). On or before the date of the Put Closing, (i) Centric shall (A) cause
the Put Payment Amount in immediately available funds to be deposited in escrow with an escrow agent mutually agreeable to Sacks
and Centric (the “Escrow Agent”) by wire transfer to the Escrow Agent’s account provided in writing to
Sacks and Centric (the “Escrow Account”) and (B) deliver executed Joinder Documents (as defined below) to the
Escrow Agent, and (ii) Sacks shall deliver to the Escrow Agent a copy of the Put Notice and a certificate representing the Shares
to be sold, which certificate shall be issued in Centric’s name (or in the name of Centric’s nominee if notice of such
issuance shall have been provided by Centric to Sacks and the Escrow Agent). Following the Escrow Agent’s receipt of such
documents and the Put Payment Amount, the Escrow Agent shall transfer the Put Payment Amount to Sacks at an account provided in
writing by Sacks to the Escrow Agent, deliver to Centric the certificate representing the Shares sold pursuant to the exercised
Put Right and deliver the Joinder Documents to the parties to the Stockholders’ Agreement and Registration Rights Agreement
as provided therein.
2. Right
to Call.
(a) General. At any time on or after August 1, 2016 but prior to July 31, 2022, Centric shall have the right to purchase from Sacks and Sacks
agrees to sell to Centric, for the Call Payment Amount (as defined below), all or any portion of the Shares as indicated in a Call
Notice (as defined below) from Centric (the “Call Right”).
(b) Method
of Exercise. Centric may exercise the Call Right by delivering to Sacks a notice of its intent to purchase Shares pursuant
to Section 2(a) in the form attached hereto as Exhibit B (the “Call Notice”). In the event that
the initial Call Notice does not provide for the purchase of all of the Shares, from time to time thereafter, Centric may deliver
subsequent Call Notices, provided, however, no Call Notice may be delivered sooner than three months following the delivery of
the prior Call Notice. If, within five Business Days of receiving a Call Notice, Sacks notifies Centric that he has engaged in
one or more transactions in ULURU securities
(each, a “Purchase Transaction”) during the prior
six months that could be matched against the sale of Shares upon the exercise of the Call Right and trigger liability for Sacks
under Section 16(b), then such Call Notice shall be deemed rescinded and Centric may not deliver another Call Notice until the
Business Day after the expiration of the six month period following the latest Purchase Transaction (the “Call Blackout
Period”). Following any such Call Notice rescission, Sacks shall not voluntarily enter into any additional Purchase Transactions
sooner than one month following the end of the Call Blackout Period.
(c) Closing. The closing of each purchase and sale pursuant to the exercise of the Call Right shall be held on a date mutually agreed to by
Sacks and Centric, which shall be no later than the tenth Business Day after Centric’s delivery to Sacks of the Call Notice
(the “Call Closing”). On or before the date of the Call Closing, (i) Centric shall (A) cause the Call Payment
Amount in immediately available funds to be deposited in the Escrow Account by wire transfer, and (B) deliver to the Escrow Agent
a copy of the Call Notice and executed Joinder Documents, and (ii) Sacks shall deliver to the Escrow Agent a certificate representing
the Shares to be purchased, which certificate shall be issued in Centric’s name (or in the name of Centric’s nominee
if notice of such issuance shall have been provided by Centric to Sacks and the Escrow Agent). Following the Escrow Agent’s
receipt of such documents and the Call Payment Amount, the Escrow Agent shall transfer the Call Payment Amount to Sacks at an account
provided in writing by Sacks to the Escrow Agent, deliver to Centric the certificate representing the Shares sold pursuant to the
exercised Call Right and deliver the Joinder Documents to the parties to the Stockholders’ Agreement and Registration Rights
Agreement as provided therein.
3. Actions
under the Stockholders’ Agreement and Registration Rights Agreement.
In connection with any Put Closing or Call
Closing, all of Sacks’ rights under the Stockholders’ Agreement and Registration Rights Agreement with respect to
the Shares being so purchased shall be transferred to Centric effective as of the date of such Put Closing or Call Closing. Prior
to any Put Closing or Call Closing, Sacks shall provide the applicable notices to the Company, TPT and IPMD required under the
Stockholders’ Agreement and the Registration Rights Agreement and Centric shall have executed and delivered to the Escrow
Agent a counterpart signature page to such agreements, or joinder agreements, as confirmation that Centric shall be bound by all
of the terms and conditions of the Stockholders’ Agreement and Registration Rights Agreement, as applicable (the “Joinder
Documents”). The forms of Joinder Documents shall be provided by Sacks to Centric, and shall be reasonably acceptable
to Centric.
4. Miscellaneous.
(a) Certain
Definitions. For purposes of this Agreement:
(i) “Business
Day” shall mean a day other than a Saturday, Sunday or other day on which banks are authorized or required by law to
close in each of New York City, London and Johannesburg.
(ii) “Call
Payment Amount” shall equal $0.60 per Share (subject to appropriate adjustment in the event of any stock dividend, stock
split,
reverse stock split, combination, merger, consolidation
or other similar transaction with respect to the Common Stock or ULURU).
(iii) “Put
Payment Amount” shall equal $0.25 per Share (subject to appropriate adjustment in the event of any stock dividend, stock
split, reverse stock split, combination, merger, consolidation or other similar transaction with respect to the Common Stock or
ULURU).
(b) Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
(c) Governing
Law. This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its conflicts of law principles.
(d) Counterparts;
Electronic Delivery. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of
which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including
pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and
be valid and effective for all purposes.
(e) Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(f) Notices. Unless the parties otherwise agree, (i) all notices and other communications, waivers, consents and amendments given or made pursuant
to this Agreement shall be delivered via email to Sacks at xxxxxxxxxx@xxxxx.xxx and to Centric at xxxxxxxxx@xxxxxxxxxxxxxx.xxx
and (ii) certificates evidencing Shares purchased upon exercise of a Put Right or Call Right shall be delivered to Centric at the
address notified by Centric from time to time. In the event that Sacks delivers a Put Notice and Centric delivers a Call Notice
on the same day, then the operative exercise shall be the first notice to have been delivered, based on Greenwich Mean Time.
(g) Consent
Required to Amend, Terminate or Waive. This Agreement may be amended or terminated and the observance of any term hereof may
be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument
executed by Sacks and Centric.
(h) Specific
Enforcement. Each party acknowledges and agrees that each party hereto will be irreparably damaged in the event any of the
provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise breached. Accordingly, each of the parties hereto shall be entitled to an injunction to prevent breaches of this Agreement, and to specific
enforcement of this Agreement and its terms and provisions in any action instituted in any court of the United States or any state
having subject matter
jurisdiction (without the need to provide any bond or other security). Further, each party waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach. All
remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
(i) Attorneys’
Fees. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery
and performance of the Agreement. If any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and disbursements in
addition to any other relief to which such party may be entitled.
(j) Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to either party under this Agreement, upon
any breach or default of the other party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or
of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver
of any other breach or default theretofore or thereafter occurring. All remedies, either under this Agreement or by law or otherwise
afforded to either party, shall be cumulative and not alternative.
(k) Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision,
each of which shall remain in full force and effect and in lieu of such invalid or unenforceable provisions there shall be automatically
added as part of this Agreement a valid and enforceable provision as similar in terms to the invalid or unenforceable provision
as possible considering the intent of the parties hereto and the bargained for consideration or benefits to be received by each
party hereto.
(l) Entire
Agreement. This Agreement (including the Exhibits hereto) constitutes the full and entire understanding and agreement between
the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof
existing between the parties is expressly canceled.
(m) Certain
Adjustments. In the event of any issuance of additional shares of Common Stock to Sacks or a change effected to reduce the
number of shares of Common Stock (including, without limitation, in connection with any stock split, stock dividend, reverse stock
split or other combination, recapitalization, reorganization or the like), such new or adjusted shares shall be considered “Shares”
and become subject to this Agreement.
(n) Further
Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at
the request of the other party, to execute and deliver any further instruments or documents and to take all such further action
as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated
hereby and to otherwise carry out the intent of the parties hereunder.
Waiver
of Jury Trial: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, THE Shares OR THE SUBJECT MATTER HEREOF. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed
this Put and Call Agreement as of the date first written above.
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/s/ Xxxxxxx X. Xxxxx |
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Xxxxxxx X. Xxxxx |
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CENTRIC CAPTIAL VENTURES LLC |
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By: |
/s/ Xxxxxxx X. Xxxxx |
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Xxxxxxx X. Xxxxx |
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Managing Member |
SIGNATURE PAGE TO PUT
and call Agreement
Exhibit
A
Put Notice
In accordance with
the Put and Call Agreement dated as of July 29, 2015 (the “Put and Call Agreement”), by and between Xxxxxxx
X. Xxxxx (“Sacks”) and Centric Capital Ventures LLC (“Centric”), Sacks hereby exercises his
right to sell to Centric, and shall sell to Centric, upon receipt of $________ (representing the Put Payment Amount), ________
shares of Common Stock.
The Put Payment Amount
is to be paid, and the Put Closing is to be consummated, in the manner set forth in the Put and Call Agreement.
All capitalized terms
used and not otherwise defined herein shall have the respective meanings assigned to them in the Put and Call Agreement.
Dated:
_________________
Exhibit
B
Call Notice
In accordance with the
Put and Call Agreement dated as of July 29, 2015 (the “Put and Call Agreement”), by and between Xxxxxxx X. Xxxxx
(“Sacks”) and Centric Capital Ventures LLC (“Centric”), Centric hereby exercises its right
to purchase from Sacks, and shall purchase from Sacks, upon payment of $___________ (representing the Call Payment Amount), ________
shares of Common Stock.
The Call Payment Amount
is to be paid, and the Call Closing is to be consummated, in the manner set forth in the Put and Call Agreement.
All capitalized terms used
and not otherwise defined herein shall have the respective meanings assigned to them in the Put and Call Agreement.
Dated:
_________________
CENTRIC
CAPITAL VENTURES LLC
| By: |
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Xxxxxxx X. Xxxxx |
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Managing Member |
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