Agreement
Exhibit
10.22
Agreement
Reference
is made to that certain (A)(i) Securities Purchase Agreement (the “Securities
Purchase Agreement”),
(ii)
Security Agreement (“Security
Agreement”),
(iii)
Collateral Assignment (“Collateral
Assignment”),
(iv)
Guarantor Security Agreement (“Guarantor
Security Agreement”),
(v)
Escrow Agreement (“Escrow
Agreement”),
(vi)
Escrow Shares Escrow Agreement (“Escrow
Shares Agreement”),
and
(vii) Irrevocable Transfer Agent Instructions, each dated as of October 12,
2005, and each by and among Uluru Inc. (f/k/a Oxford Ventures, Inc.), a Nevada
corporation (the “Company”),
or
Uluru Delaware Inc. (f/k/a Uluru Inc. and the successor by merger with Uluru
Acquisition Corp.), a Delaware corporation (the “Subsidiary”),
and
Highgate House Funds, Ltd (whose interests were subsequently transferred
to
Cornell Capital Partners, LP (“Cornell”)),
Prenox, LLC (“Prenox”)
and
the various other parties, if any, thereto, and (B)(i) a Amendment Agreement
to
the Securities Purchase Agreement (the “Amendment
Agreement”),
(ii)
Amended and Restated Guaranty Agreement (the “Guaranty
Agreement”),
and
(iii) Amended and Restated Registration Rights Agreement (the “Registration
Rights Agreement”),
each
dated as of August 30, 2006, by and among the Company and/or the Subsidiary,
and
Cornell and Prenox and the various other parties, if any, thereto. Capitalized
terms used herein and not otherwise defined are defined in the Securities
Purchase Agreement.
WHEREAS,
in
connection with the Securities Purchase Agreement and the Amendment Agreement
thereto, the Company has issued (i) a 10% secured convertible debenture due
December 31, 2007 to Prenox in the original principal amount of $13,000,000
(the
“Prenox
Debenture”),
and
(ii) a 10% secured convertible debenture due December 31, 2007 to Cornell
in the
original principal amount of $3,000,000 (the “Cornell
Debenture”
and
collectively with the Prenox Debenture, the “Debentures”);
WHEREAS,
the
Company desires to use $13,000,000 of the proceeds from the sale of common
stock
of the Company pursuant to the Common Stock Purchase Agreement (“Common
Stock Purchase Agreement”)
of
even date herewith by and among the Company and the parties named on Schedule
1
attached thereto (the “Purchasers”)
towards the partial repayment of the Debentures;
WHEREAS,
Prenox
and Cornell desire to be Purchasers under the Common Stock Purchase Agreement
and purchase common stock of the Company in accordance therewith for
consideration consisting solely of the cancellation and surrender of
indebtedness due and owing to Prenox and Cornell by the Company under the
Debentures.
WHEREAS,
as of
the date hereof, the total repayment amount pursuant to the Debentures are
as
set forth below:
|
Holder:
|
Outstanding
Principal:
|
Redemption
Premium:
|
Total
Repayment Amount:
|
Per
Diem Interest Accrual
|
|
Prenox
|
$
13,000,000
|
$
2,600,000
|
$
15,600,000
|
$
3,611.11
|
|
Cornell
|
$
3,000,000
|
$
600,000
|
$
3,600,000
|
$
833.33
|
Now
therefore, in consideration of the foregoing and other consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
| 1. |
The
Company shall repay the Prenox Debenture in full on the date hereof
as
follows:
|
(i) The
Company shall pay Prenox $10,600,000 by wire transfer of immediately available
funds in accordance with the wire instructions attached hereto as Exhibit
A.
(ii)
The
Company shall accept Prenox’s subscription to purchase 5,263,157 shares of
common stock of the Company pursuant to the Common Stock Purchase Agreement
for
consideration consisting solely of the cancellation and surrender of $5,000,000
of the indebtedness due and owing to Prenox and the Company shall issue such
shares of common stock to Prenox at the closing of the Common Stock Purchase
Agreement.
(iii)
The
Company shall pay Prenox $3,611.11 per day in accrued and unpaid interest
due
and owing to Prenox for each day that elapses between December 1, 2006 and
the
date such payment is made by wire transfer of immediately available funds
in
accordance with the wire instructions attached hereto as Exhibit A. The sum
of
the amounts in this Section 1(i), (ii), and (iii) shall be referred to herein
as
the “Prenox
Payoff Amount”).
| 2. |
The
Company shall repay the Cornell Debenture in full on the date hereof
as
follows:
|
(i) The
Company shall pay Cornell $2,400,000 by wire transfer of immediately available
funds in accordance with the wire instructions attached hereto as Exhibit
A.
(ii)
The
Company shall accept Cornell’s subscription to purchase 1,263,157 shares of
common stock of the Company pursuant to the Common Stock Purchase Agreement
for
consideration consisting solely of the cancellation and surrender of $1,200,000
of the indebtedness due and owing to Cornell and the Company shall issue
such
shares of common stock to Cornell at the closing of the Common Stock Purchase
Agreement.
(iii)
The
Company shall pay Cornell $833.33 per day in accrued and unpaid interest
due and
owing to Cornell for each day that elapses between December 1, 2006 and the
date
such payment is made by wire transfer of immediately available funds in
accordance with the wire instructions attached hereto as Exhibit A. The sum
of
the amounts in this Section 2(i), (ii), and (iii) shall be referred to herein
as
the “Cornell
Payoff Amount”).
| 3. |
Prenox
and Cornell hereby (i) acknowledge and agree that full payment of
the
Prenox Payoff Amount and the Cornell Payoff Amount (collectively,
the
“Payoff
Amount”)
will constitute payment in full of all of the obligations of the
Company
under the Debentures, (ii) release, effective upon the receipt of
the
Payoff Amount, all security interests, liens, and guaranties which
the
Company and the Subsidiary may have granted to the Prenox and Cornell
pursuant to the Security Agreement, the Collateral Assignment, the
Guarantor Security Agreement, and the Guaranty Agreement, (iii) agree
that, effective upon receipt of the Payoff Amount, neither the Company
nor
any successor entity to the Company shall have any further liabilities
or
obligations under the Debentures, (iv) agree that, effective upon
receipt
of the Payoff Amount to waive any and all rights to collect Liquidated
Damages (as defined in the Registration Rights Agreement) that may
have
accrued pursuant to the Registration Rights Agreement. Prenox and
Cornell,
upon receipt of the Payoff Amount, authorize the Company and the
Subsidiary to file all necessary UCC-3 termination statements effecting
the foregoing releases, discharges and terminations. Prenox and Cornell
shall provide the Company will any instruments and documents and
take such
further actions as may be reasonably requested by the Company to
fully
effect the foregoing releases, discharges and terminations.
|
| 4. |
Each
of the (i) Securities Purchase Agreement, (ii) Security Agreement,
(iii)
Collateral Assignment, (iv) Guarantor Security Agreement, (v) Escrow
Agreement, (vi) Escrow Shares Agreement, (v) Irrevocable Transfer
Agent
Instructions, (vi) Guaranty Agreement, and (vii) Registration Rights
Agreement and any and all agreements related to the forgoing agreements
shall be terminated and each party to such agreements shall release
the
other parties thereto from any and all obligations under such agreements.
For the avoidance of doubt, nothing contained in this Agreement shall
be
deemed to terminate, cancel, amend or modify the outstanding warrants
previously issued by the Company to Prenox and Cornell, which warrants
shall remain outstanding and in full force and effect in accordance
with
their terms.
|
| 5. |
Prenox
and Cornell shall authorize the Escrow Agent to return any Escrow
Shares
being held pursuant to the Escrow Shares Agreement to the Company
for
cancellation.
|
| 6. |
All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal
laws of
the State of New York, without giving effect to any choice of law
or
conflict of law provision or rule (whether of the State of New York
or any
other jurisdictions) that would cause the application of the laws
of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal
courts sitting in The City of New York, Borough of Manhattan, for
the
adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action
or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding
is
brought in an inconvenient forum or that the venue of such suit,
action or
proceeding is improper. 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. 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
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
this
6th
day of
December, 2006.
ULURU
INC., a Nevada corporation
By:__/s/
Xxxxx X. Gray_____________
Xxxxx
X.
Xxxx
Chief
Executive Officer
ULURU
DELAWARE INC., a Delaware corporation
By:__/s/
Xxxxx X. Gray_____________
Xxxxx
X.
Xxxx
Chief
Executive Officer
CORNELL
CAPITAL PARTNERS, LP
By:
Yorkville Advisors, LLC, its General Partner
By:___/s/
Xxxx Angelo______________
Name:
Xxxx Xxxxxx
Title:
Portfolio Manager
PRENOX,
LLC
By:
Prentice Capital Management, LP, its Manager
By:____/s/
Xxxxxxx Hoffman_________
Name:
Xxxxxxx Xxxxxxx
Title:
General Counsel
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EXHIBIT
A
WIRE
INSTUCTIONS
PRENOX:
|
Bank:
First Republic Bank
|
|
|
ABA
#: 000 000 000
|
|
|
Account
Name: Prenox LLC
|
|
|
Account
#: 979 000 768 15
|
|
CORNELL:
Wachovia
Bank
Downtown
Financial Center
000
Xxxxxx Xxxxxx, XX0000
Xxxxxx
Xxxx XX 00000
000-000-0000
Contact
Name: Xx. Xxxxx Xxxxxxx
ABA/Routing#
031 201
467
Swift
code: XXXXXX00 - for
international wires
Account#
2000018639380
Beneficiary:
Cornell
Capital Partners, LP
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