ASSET SALE AGREEMENT
Execution
Copy
THIS
ASSET SALE AGREEMENT (the "Agreement"),
is
made as of the 11th day of October, 2005, by and between ULURU, Inc., a Delaware
corporation ("ULURU"),
and
Access Pharmaceuticals, Inc., a Delaware corporation ("Access").
ULURU
and Access are sometimes individually referred to herein as the "Party"
and
collectively as the "Parties."
BACKGROUND
A. Access
has certain right, title and interest in and to the Takeda License Agreement
(as
hereinafter defined) and the Purchased Assets (as hereinafter defined), which
includes, without limitation, certain tangible and intangible property relating
to the manufacture, use, sale and distribution of the Products (as hereinafter
defined).
B. ULURU
desires to purchase and assume, and Access desires to sell and assign, the
Purchased Assets and the Takeda License Agreement, respectively, pursuant
to the
terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants,
agreements, guarantees and representations herein contained and intending
to be
legally bound, ULURU and Access agree as follows:
SECTION
1
DEFINITIONS
1.1 Definitions.
Where
used in this Agreement the following words or phrases shall have the meanings
set forth below:
| (a) |
"Access"
shall have the meaning set forth in the
Preamble.
|
| (b) |
"Access
Trade Dress"
means all trade dress relating to the Purchased Assets other than
trade
dress or marks relating to Access or its
logo.
|
| (c) |
"Access
Trademarks"
means (i) the Access name or any variations thereof or the names of
any Access Affiliates or any variations thereof and (ii) all Trademarks,
other than the Product Trademarks, currently used by Access or its
Affiliates in connection with the manufacture, marketing, sale and
distribution of their respective
products.
|
| (d) |
"Adverse
Experience(s)"
means any noxious, pathological or unintended change in anatomical,
physiological or metabolic function as indicated by physical signs,
symptoms and/or laboratory changes occurring in clinical trials,
post-marketing surveillance, or clinical practice during use of the
Products, or published in the medical literature, whether or not
considered causally related to the Products. This includes an exacerbation
of a pre-existing condition, intercurrent illness, drug interaction,
significant worsening of a disease under investigation or treatment,
and
significant failure of expected pharmacological or biological
action.
|
| (e) |
"Affiliate",
when used to indicate a relationship with any person or entity, means
(i) any corporation, firm, partnership or other entity, whether de
jure or de facto, which directly or indirectly owns, is owned by
or is
under common ownership with such person or entity to the extent of
at
least fifty percent (50%) of the equity (or such lesser percentage
which
is the maximum allowed to be owned by a foreign corporation in a
particular jurisdiction) having the power to vote on or direct the
affairs
of the entity, or (ii) any person, firm, partnership, corporation or
other entity actually controlled by, controlling or under common
control
with such person or entity.
|
| (f) |
"Agency"
or "Agencies"
means any U.S. or foreign governmental regulatory authority responsible
for granting approvals and clearance for manufacturing, marketing
and sale
of any Product.
|
| (g) |
"Agreement"
means this Asset Sale Agreement, together with the Schedules and
Exhibits
hereto, and any instrument amending this Agreement in accordance
with
Section 14.6; and the expression "Section" followed by a number refers
to
the specified Section of this Agreement.
|
| (h) |
"Amlexanox"
means the chemical compound of the formula
2-amino-7-isopropyl-5-oxo-5H-[1]benzopyrano-[2,3-b]-pyridine-3-carboxylic
acid (also known by Takeda Code No.:
AA-673).
|
| (i) |
"Ancillary
Agreements"
means any other agreement to be executed by ULURU and/or Access in
connection with this Agreement, including, without limitation, the
Xxxx of
Sale and Assignment Agreement, the Product Patents Assignment, the
Product
Trademarks Assignment and the License Agreement.
|
| (j) |
"Annual
Net Sales"
means gross revenues received by ULURU and its Affiliates on the
worldwide
sale of the Products in any calendar year, less (i) trade discounts
actually allowed; and (ii) when borne by ULURU or its Affiliates
in
connection with the sale, transportation and handling charges; sales,
use
and excise taxes; import duties, tariffs or other governmental charges;
and credits for claim or allowances, retroactive price reductions,
refunds, returns, and recalls. There shall not be any imputed gross
revenue for samples, free goods or other marketing programs whereby
the
Products are given away to induce sales thereof. For purposes of
determining Annual Net Sales, a sale shall be deemed to have occurred
when
the sale is invoiced or when the applicable Product is delivered,
whichever occurs first. In the case of the transfer or sale of the
Products by ULURU to an Affiliate, or by ULURU or its Affiliate to
their
respective distributor, or subdistributor for sale by such Affiliate,
distributor or subdistributor, Annual Net Sales shall be based upon
the
greater of the total invoice price charged by ULURU to such Affiliate,
distributor, subdistributor or the total invoice price charged by
such
Affiliate, distributor or subdistributor to its customers. Annual
Net
Sales for countries outside the U.S. shall be calculated by converting
to
U.S. currency using the exchange rate in effect on the last business
day
of each quarter as published in the Wall Street Journal. Annual Net
Sales
shall also include Licensee Net Sales.
|
| (k) |
"Aphthasol
Product"
means a topical oral paste formulation or mucoadhesive film formulation
containing Amlexanox currently approved by the FDA for use in the
treatment of aphthous ulcers.
|
| (l) |
"Assumed
Liabilities"
has the meaning set forth in Section
2.2(a).
|
| (m) |
"Xxxx
of Sale and Assignment Agreement"
means the xxxx of sale to be executed by Access and delivered to
ULURU at
Closing, substantially in the form of Exhibit
A
attached hereto.
|
| (n) |
"Closing"
and "Closing
Date"
have the meaning set forth in Section
13.1.
|
| (o) |
"Cumulative
Net Sales"
means gross revenues received by ULURU and its Affiliates on the
worldwide
sale of the Products, less (i) trade discounts actually allowed;
and (ii)
when borne by ULURU or its Affiliates in connection with the sale,
transportation and handling charges; sales, use and excise taxes;
import
duties, tariffs or other governmental charges; and credits for claim
or
allowances, retroactive price reductions, refunds, returns, and recalls.
There shall not be any imputed gross revenue for samples, free goods
or
other marketing programs whereby the Products are given away to induce
sales thereof. For purposes of determining Cumulative Net Sales,
a sale
shall be deemed to have occurred when the sale is invoiced or when
the
applicable Product is delivered, whichever occurs first. In the case
of
the transfer or sale of the Products by ULURU to an Affiliate, or
by ULURU
or its Affiliate to their respective distributor, or subdistributor
for
sale by such Affiliate,
distributor or subdistributor, Cumulative Net Sales shall be based
upon
the greater
of the total invoice price charged by ULURU to such Affiliate,
distributor, subdistributor or the total invoice price charged by
such
Affiliate, distributor or subdistributor to its customers. Cumulative
Net
Sales for countries outside the U.S. shall be calculated by converting
to
U.S. currency using the exchange rate in effect on the last business
day
of each quarter as
published in
the Wall
Street Journal.
Cumulative Net Sales shall also include Licensee Net
Sales.
|
| (p) |
"Dental
Product"
means [a
product developed for use in the oral cavity or implanted in the
oral
cavity including implantation in teeth utilizing the Licensed
Technology].
|
| (q) |
"Encumbrance"
has the meaning set forth in Section 5.3.
|
| (r) |
"Excluded
Assets"
shall mean all assets of Access other than the Purchased Assets and
the
Assumed Liabilities and any assets or contracts that by their terms
are
not assignable.
|
| (s) |
"Excluded
Intellectual Property"
means (i) Access Trademarks, (ii) the Access Trade Dress, (iii)
the Licensed Technology and (iv) any Intellectual Property that does
not relate to the Products.
|
| (t) |
"FDA"
means the U.S. Food and Drug
Administration.
|
| (u) |
"Finished
Goods"
means any Product packaged in sample and commercial sizes and ready
for
distribution to the ultimate customer.
|
| (v) |
"Intellectual
Property"
means all (i) Patents and U.S. and other registered designs;
(ii) U.S. and other mask works and copyrights in works of authorship
of any type, including, but not limited to, computer software and
industrial designs, registrations and applications for registration
thereof; (iii) Trademarks and trade dress; (iv) trade secrets,
know-how and other confidential or proprietary technical, business
and
other information, and all rights thereto in any and all jurisdictions,
to
limit the use or disclosure thereof; (v) rights to obtain and file
for patents and registrations thereof; and (vi) rights to xxx and
recover damages or obtain injunctive relief for infringement, dilution,
misappropriation, violation or breach
thereof.
|
| (w) |
"Inventory"
means Access's inventory of Finished Goods, an electronic accounting
of
which is set forth on Schedule
1.1(w)
attached hereto.
|
| (x) |
"Liabilities"
means any and all debts, liabilities and obligations, whether accrued
or
fixed, absolute or contingent, matured or unmatured, or determined
or
determinable, including those arising from any Claim or other action
by a
third party under any law, action or governmental order and those
arising
under any contract, agreement, arrangement, commitment or undertaking,
or
otherwise. For the purposes of this definition "Claim" shall mean
any
action (including, without limitation, any proceedings to establish
insurance coverage), claim, suit, arbitration or governmental,
administrative, or other proceeding or investigation or judgment
or
equitable relief.
|
| (y) |
"License
Agreement"
means that certain License Agreement, substantially in the form of
Exhibit
B
attached hereto, entered into by and between Access and ULURU as
of the
Closing Date, pursuant to which Access shall grant to ULURU a license
to
the Licensed Technology on the terms and conditions set forth
therein.
|
| (z) |
"Licensed
Technology"
means Access's nanoparticle aggregate technology, to which Access
shall
grant to ULURU a license pursuant to the License Agreement, as such
technology is further described in the License
Agreement.
|
| (aa) |
"Licensee"
means a licensee of, or other third party otherwise engaged by, ULURU
or
its Affiliates for the purpose of selling or distributing any
Product.
|
| (bb) |
"Licensee
Net Sales"
means
gross revenues received by a Licensee on the
sale of any Product as requested in the applicable license agreements
as
reported to Access or ULURU.
There shall not be any imputed gross revenue for
samples, free goods or other marketing programs whereby any Product
is
given away to induce sales thereof. For purposes of determining Licensee
Net Sales, a sale shall be deemed to have occurred when the sale
is
invoiced
or when a Product is delivered, whichever occurs first. In the case
of the
transfer or
sale of
a Product by the Licensee to an Affiliate, distributor or subdistributor
of the Licensee for
sales by such Affiliate, distributor or subdistributor, Licensee
Net Sales
shall be based upon the greater of the total invoice price charged
by the
Licensee to such Affiliate, distributor or subdistributor or the
total
invoice price charged by such Affiliate, distributor or subdistributor
to
its customers. Licensee Net Sales for countries outside the U.S.
shall be
calculated by converting to
U.S. currency using the exchange rate in effect on the last business
day
of each month as
published in
the Wall
Street Journal.
|
| (cc) |
"Manufacturing
Technology"
means all technology, trade secrets, research and development, formulae,
know-how, inventions, discoveries, processes, compositions, test
procedures, manufacturing procedures, techniques, developments,
enhancements and modifications, confidential, technical, or proprietary
information and knowledge not generally known to the public, whether
or
not patentable, commercially useful, or reducible to writing or practice
that enable Access to make, have made, use, offer for sale, sell
and
import any Product that is a Purchased Asset and are owned or controlled
by Access as of the Closing Date; provided
that Manufacturing Technology shall not include any Manufacturing
Technology relating to any Excluded
Assets.
|
| (dd) |
"Marketing
Materials"
means those marketing materials used by Access solely with respect
to the
Products in the U.S. that are in existence as of the Closing Date,
to the
extent such materials are within the possession or control of Access
and
relate to the Purchased Assets, as set forth on Schedule
1.1(dd).
|
| (ee) |
"Material
Adverse Effect"
means an event, change or occurrence which, individually or together
with
any other event, change or occurrence, has a material adverse effect
on
the Purchased Assets taken as a whole, but shall not include (i) any
adverse effect due to changes, after the date of this Agreement,
in
conditions generally affecting (A) the healthcare industry or
(B) the worldwide, U.S. or European economy as a whole, (ii) any
change or adverse effect caused by, or relating to, the announcement
of
this Agreement and the transactions contemplated by this Agreement
or
(iii) any adverse effect due to legal or regulatory changes effective
after the date of this Agreement.
|
| (ff) |
"Mucoadhesive
Product"
means an
erodible multi-layer strip or patch which adheres to the teeth or
the oral
mucosa for the purpose of controlled delivery of an active ingredient
either to the surface of the teeth or oral mucosa or for release
of the
active into the oral cavity.
|
| (gg) |
"NDA"
means a New Drug Application filed with the FDA pursuant to 21 C.F.R.,
Part 314, and all supplements, amendments, revisions thereto and
all
correspondence between Access and FDA relative
thereto.
|
| (hh) |
"Party"
or "Parties"
shall have the meaning set forth in the
Preamble.
|
| (ii) |
"Patents"
means all U.S. and foreign patents, patent applications and statutory
invention registrations (which, for the purposes of this Agreement,
shall
be deemed to include provisional applications, invention disclosures,
certificates of invention and applications for certificates of invention),
including reissues, divisions, continuations, continuations-in-part,
supplementary protection certificates, extensions and reexaminations
thereof, all inventions disclosed therein, all rights therein provided
by
international treaties and conventions, and all rights to obtain
and file
for patents and registrations thereto.
|
| (jj) |
"Premises
Agreement"
means that certain 0000 Xxxxxxxx Xxxxxxx License Agreement, to be
entered
into by and between Access and ULURU as of the Closing Date, substantially
in the form of Exhibit E attached hereto, pursuant to which ULURU
shall
sublease from Access certain space at the premises located at 0000
Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxx.
|
| (kk) |
"Products"
means, collectively, the Aphthasol Product, the Mucoadhesive Product
and
the ResiDerm Product and any product developed or sold under the
License
Agreement, and any improvements or corollaries
thereto.
|
| (ll) |
"Product Intellectual
Property"
means (i) all Product Patents, (ii) all Product Trademarks,
(iii) the Manufacturing Technology, (iv) the Product Trade
Dress, (v) the Marketing Materials, (vi) the domain name
"xxx.Xxxxxxxxx.xxx" and (vii) all other Intellectual Property
primarily related to the Products, but excluding (in all cases) Excluded
Intellectual Property, Excluded Assets and the "Technology and Know
How"
of Takeda, as such term is defined in Section 1.6 of the Takeda License
Agreement.
|
| (mm) |
"Product
Patents"
means those Patents set forth on Schedule 1.1(ll) attached
hereto.
|
| (nn) |
"Product
Patents Assignment"
means that assignment agreement to be executed by Access and delivered
to
ULURU at Closing, substantially in the form of Exhibit C attached
hereto.
|
| (oo) |
"Product
Registrations"
means registrations required by applicable Agencies in the U.S. relating
to the manufacture, sale and distribution of the Products in the
U.S. and
foreign countries, including, without limitation, NDAs relating to
the
Products.
|
| (pp) |
"Product
Trade Dress"
means, collectively, the current trade dress of each of the Products,
including, but not limited to, product packaging associated with
the sale
of the Products in the U.S., but excluding the Access Trade
Dress.
|
| (qq) |
"Product
Trademarks"
means those Trademarks set forth on Schedule 1.1(pp) attached
hereto.
|
| (rr) |
"Product
Trademarks Assignment"
means the assignment agreement to be executed by Access and delivered
to
ULURU at Closing, substantially in the form of Exhibit D attached
hereto.
|
| (ss) |
"Purchase
Price"
has the meaning set forth in
Section 3.1.
|
| (tt) |
"Purchased Assets"
has the meaning set forth in Section
2.1(a).
|
| (uu) |
"ResiDerm
Product"
means a topical formulation utilizing the proprietary zinc technology,
exemplified by Zindaclin, a zinc-clindamycin phosphate topical
product.
|
| (vv) |
"Retained
Liabilities"
has the meaning set forth in Section
2.2(b).
|
| (ww) |
"Scientific
and Regulatory Material"
means all technological, scientific, chemical, biological,
pharmacological, toxicological, regulatory and clinical trial materials
and information primarily related to the Products and all rights
thereto
in any and all jurisdictions to limit the use or disclosure thereof,
to
the extent such materials are within the possession or control of
Access.
|
| (xx) |
"Takeda"
means Takeda Chemical Industries, Ltd.
|
| (yy) |
"Takeda
License Agreement"
means the agreement, dated November 12, 1987, by and between Takeda
and
Chemex Pharmaceuticals, Inc. ("Chemex"), which is currently known
as
Access, a copy of which is attached hereto as Exhibit
F.
|
| (zz) |
"Tax"
or "Taxes" means any domestic, foreign, national, regional or local
income, gross receipts, payroll, withholding, license, unemployment,
premium, excise, real or personal property, capital stock, franchise,
profits, environmental, unemployment disability, social security,
severance, value added, sales, use, transfer, registration, alternative
or
add-on minimum, estimated or any other tax or similar governmental
charge
of any kind whatsoever, including interest, penalties, and additions
to
tax with respect thereto, whether disputed or
not.
|
| (aaa) |
"Tooth
Whitening Product" means a Mucoadhesive Product formulated with an
active
ingredient which adheres to the surface of teeth to enhance the whiteness
of the tooth surface.
|
| (bbb) |
"Tax
Return"
means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment
thereof.
|
| (ccc) |
"Trademarks"
means all U.S. and other trademarks, trade names, brand names, logotypes,
symbols, service marks, designs, domain names, URLs and tradenames,
including registrations and applications for registrations thereof
and all
renewals, modifications and extensions
thereof.
|
| (ddd) |
"Transition
Team"
shall have the meaning set forth in Section
8.2.
|
| (eee) |
"ULURU"
shall have the meaning set forth in the
Preamble.
|
| (fff) |
"U.S."
means the United States of America, its territories and possessions,
including without limitation the Commonwealth of Puerto Rico and
the
District of Columbia.
|
In
this
Agreement, words importing the singular number shall include the plural and
vice
versa, words importing a specific gender shall include the other genders
and
references to persons shall include corporations and one or more persons,
their
heirs, executors, administrators or assigns as the case may be. References
to
"including" shall mean "including but not limited to".
| 1.2 |
Currency.All
currency amounts referred to in this Agreement are in U.S.
Dollars.
|
| 1.3 |
Headings,
Etc.The
division of this Agreement into Sections and the insertion of headings
are
for convenience of reference only and shall not affect the interpretation
hereof.
|
SECTION
2
PURCHASED
ASSETS; LIABILITIES
2.1 Assets
to Be Sold and Purchased.
|
(a)
|
Upon
the terms and subject to the conditions of this Agreement, Access
agrees
to sell, assign, transfer, convey and deliver to ULURU and ULURU
agrees to
purchase from Access, all rights, title and interest of Access
and its
Affiliates in and to the following assets, regardless of where
such assets
are situated (the "Purchased
Assets"),
free and clear of all Encumbrances, except as set forth on Schedule
5.3:
|
| (i) |
all
Product Intellectual Property;
|
| (ii) |
the
Product Registrations, to the extent
transferable;
|
| (iii) |
the
Inventory;
|
| (iv) |
the
existing lists of all current trade/wholesale customers (including
the
address and contact information for each such customer) for the Products
and the pricing of the Products for such customers; provided,
however,
that Access shall retain all rights of access and ownership of such
information with respect to sales of Access's and Access's Affiliates'
other products;
|
| (v) |
copies
of Access's files pertaining to the Product Registrations and
correspondence with the FDA and other Agencies, in each case such
as is in
existence and in the possession or control of Access, as of the Closing
Date;
|
| (vi) |
all
Marketing Materials;
|
| (vii) |
all
Scientific and Regulatory Material;
|
| (viii) |
the
equipment, telephone numbers, internet or domain names or URL's associated
with Access's development, manufacture or commercialization of any
Product, as set forth on Schedule
2.1(a)(viii);
|
| (ix) |
all
contracts or agreements associated with the development, manufacture,
sale, license or commercialization of the Products that are by their
terms
assignable, except as set forth on Schedule
2.1(a)(ix);
|
| (x) |
records
and files that relate to the Products manufacturing and manufacturing
processes;
|
| (xi) |
all
communications to and from third parties relating to the Products
or the
Product Intellectual Property; and
|
| (xii) |
all
laboratory notebooks specifically related to the Purchased Assets
and
copies of pages from notebooks which are not specifically related
to the
Purchased Assets which include scientific data and results related
to the
Purchased Assets.
|
The
Parties expressly agree and acknowledge that the Purchased Assets shall not
include the Excluded Intellectual Property and the Excluded Assets and the
Takeda License Agreement.
| (b) |
ULURU
acknowledges and agrees that Access, at its own expense, may retain
one
(1) copy of all or part of the documentation that it delivers to
ULURU in
confidential, restricted ULURU files, for use in the event a dispute
arises between the Parties hereunder, in connection with fulfilling
its
obligations under this Agreement or in order to comply with applicable
law.
|
2.2 Liabilities.Except
as
set forth on Schedule 2.21
attached
hereto:
| (a) |
ULURU
agrees to assume, be responsible for and pay, perform and discharge,
when
due and whenever asserted, all Liabilities (other than the Retained
Liabilities) existing or arising in connection with the Purchased
Assets
and the Products, but only to the extent that such Liabilities arise
in
respect of circumstances or events occurring on or after the Closing
Date
(collectively, the "Assumed
Liabilities").
In addition, ULURU shall assume, be responsible for and pay, perform
and
discharge, when due and whenever asserted, all costs, expenses, exchanges
and rebates related to customer returns of any of the Products, including,
without limitation, Finished Goods, which occur or arise after the
Closing
Date. The foregoing costs, expenses, exchanges and rebates related
to
customer returns of the Products shall be included within the definition
of Assumed Liabilities. ULURU shall not assume any Liabilities relating
to
a breach contract, breach of warranty, tort, infringement or violation
of
law by Access, its Affiliates and/or its or their respective directors,
officers, employees and agents occurring prior to the Closing Date
and
arising out of any charge, complaint, action, suit, proceeding, hearing,
investigation, claim or demand.
|
| (b) |
Access
agrees to retain, be responsible for and pay, perform and discharge,
when
due and whenever asserted, all Liabilities (other than the Assumed
Liabilities) arising in connection with the Purchased Assets and
the
Products, but only to the extent such Liabilities arise in respect
of
circumstances or events occurring prior to the Closing Date (collectively,
the "Retained
Liabilities").
Notwithstanding the foregoing, Access shall not be responsible for
any
costs, expenses, exchanges and rebates relating to customer returns
of the
Products, including, without limitation, Finished Goods, occurring
after
the Closing Date. Access shall not retain any Liabilities relating
to a
breach of contract, breach of warranty, tort, infringement or violation
of
law by ULURU, its Affiliates and/or its or their respective directors,
officers, employees, agents or Licensees, occurring as of and after
the
Closing Date and arising out of any charge, complaint, action, suit,
proceeding, hearing, investigation, claim or
demand.
|
| (c) |
Subject
to the provisions of Section 9 below, ULURU shall be responsible
for all
Liabilities whatsoever other than the Retained
Liabilities.
|
| (d) |
Subject
to the provisions of Section 9 below, Access shall be responsible for
all Liabilities whatsoever other than the Assumed
Liabilities.
|
| 2.3 |
Proration.Access
and ULURU agree to prorate as of the Closing Date any amounts under
any
license agreement or other agreement relating to the Products which
become
due and payable after the Closing Date to the extent the benefit
is
attributable to the period prior to the Closing Date.
|
| 2.4 |
Ancillary
Agreements.Access
and ULURU acknowledge that this Agreement does not act as a conveyance,
transfer or assignment of any property but that all of the Purchased
Assets and the Takeda License Agreement are conveyed, transferred
or
assigned by way of the Xxxx of Sale and Assignment Agreement, the
Product
Patents Assignment, the Product Trademarks Assignment and other documents
delivered pursuant to the terms of this
Agreement.
|
| 2.5 |
Takeda
License Agreement.
|
| (a) |
Upon
the terms and subject to the conditions of this Agreement, and
notwithstanding anything to the contrary contained herein, Access
agrees
to assign, transfer, convey and deliver to ULURU
and ULURU agrees to assume from Access, on the Closing Date, all
rights,
Liabilities (other than the Retained Liabilities), title and interest
of
Access and its Affiliates in and to the Takeda License Agreement,
free and
clear of all Encumbrances, except as set forth in Schedule
5.3.
|
| (b) |
ULURU
agrees to assume, be responsible for and pay, perform and discharge,
when
due and whenever asserted, all Liabilities existing or arising in
connection with the Takeda License Agreement, but only to the extent
that
such Liabilities arise in respect of circumstances or events occurring
on
or after the Closing Date.
|
|
(c)
|
Access
agrees to retain, be responsible for and pay, perform and discharge,
when
due and whenever asserted, all Liabilities arising in connection
with the
Takeda License Agreement, but only to the extent such Liabilities
arise in
respect of circumstances or events occurring prior to the Closing
Date.
|
|
(d)
|
ULURU
shall be solely responsible for accounting and payment to Takeda,
in
accordance with Article VIII of the Takeda License Agreement, of
any
royalties payable to Takeda under the Takeda License Agreement
on Access's
Net Sales (as defined in the Takeda License Agreement) of the Aphthasol
Product after the Closing Date. ULURU shall deliver to Access a
copy of
any statement or royalty report required to be provided to Takeda
which
accounts for royalties payable to Takeda on Access's Net Sales
(as defined
in the Takeda License Agreement) of the Aphthasol
Product.
|
| 2.6 |
Third
Party Consents.Notwithstanding
anything herein to the contrary, the Parties acknowledge and agree
that
Access will not assign to ULURU any contract or agreement that by
its
terms requires, prior to such assignment, the consent of any other
contracting party thereto unless such consent has been obtained.
With
respect to each such contract or agreement not assigned on the Closing
Date, after the Closing Date Access shall, at ULURU's sole expense,
continue to deal with the other contracting party(ies) to such contract
or
agreement as the prime contracting party, and ULURU and Access shall
use
their best efforts to obtain the consent of all required parties
to the
assignment of such contract or agreement. Such contract or agreement
shall
be promptly assigned by Access to ULURU after receipt of such consent
after the Closing Date, and upon such assignment shall be deemed
a
Purchased Asset. Notwithstanding the absence of any such consent,
ULURU
shall be entitled to the benefits and subject to the burdens of any
such
contract or agreement accruing after the Closing Date, and ULURU
agrees to
perform all of the obligations of Access to be performed under any
such
contract or agreement after the Closing Date and to indemnify the
Access
Indemnified Parties (as defined in Section 9.1) against any Losses
(as
defined in Section 9.1) as a result of such performance or any
non-performance by ULURU of any such contract or
agreement.
|
SECTION
3
PURCHASE
PRICE
AND OTHER PAYMENTS
| 3.1 |
Purchase
Price.
The
Purchase Price payable in consideration for the acquisition of the
Purchased Assets shall be Thirteen Million Four Hundred Thousand
Dollars
($13,400,000) (the "Purchase
Price").
Such Purchase Price shall be paid by ULURU to Access as
follows:
|
| (a) |
Eight
Million Seven Hundred Thousand Dollars ($8,700,000) delivered to
Access by
ULURU at the Closing; provided that ULURU may deliver on behalf of
Access
an aggregate of up to $2,994,766.80 of such amount to Cornell Capital
Partners, LP and Highgate House Funds, Ltd. (plus an additional $504.96
for each day after October 11, 2005) in order to retire the Secured
Debentures of Access due March 30, 2006 held by Cornell Capital Partners,
LP and Highgate House Funds, Ltd.;
|
|
(b)
|
Three
Million Seven Hundred Thousand Dollars ($3,700,000) delivered to
Access by
ULURU on the date that is twelve (12) months after the Closing
Date;
provided that Three Hundred Thousand Dollars ($300,000) of such
amount
shall be accelerated and paid earlier upon the occurrence of any
of
:
|
(i) Notification
from the FDA that no PDUFA fees are payable for the Products
for the fiscal year ending September 30, 2006, or
(ii) ULURU
entering into an agreement or understanding (oral or written) with either
Takeda
or Zambon Group to defer amounts due and payable by ULURU to such parties
under
the agreements with such parties that are Purchased Assets hereunder,
or
(iii) The
consummation by ULURU on or prior to January 30, 2006 of the sale by ULURU
in a
Private Placement or PIPE offering, in one or more related transactions,
of
securities for an aggregate purchase price of at least Three Million Dollars
($3,000,000). For
purposes of clarity this excludes any proceeds related to any sale of securities
under a Standby Equity Distribution Agreement with Cornell Capital or the
initial financing of ULURU.
(c) One
Million Dollars ($1,000,000) upon the earliest to occur of:
(i) The
U.S.
launch of OraDisc A (or its substantial equivalent); or
(ii) The
U.S.
launch of OraDisc B (or its substantial equivalent); or
(iii) The
two
(2) year anniversary of the date of this Agreement.
3.2 Milestone
Payments.
| (a) |
In
further consideration for the transactions contemplated under this
Agreement and in addition to the Purchase Price, ULURU shall pay
to Access
the following non-refundable milestone payments in the form and manner
described below:
|
|
(i)
|
Within
five (5) business days after ULURU commences Phase II clinical
testing of
any drug Product or pivotal testing of any device Product, other
than a
Dental Product, utilizing the Licensed Technology that is the subject
matter of the License Agreement, ULURU shall pay Access the sum
of Three
Hundred Seventy Five Thousand Dollars ($375,000);
|
|
(ii)
|
Within
five (5) business days after ULURU commences Phase II clinical
testing of
any drug Product or pivotal testing of any device Product, other
than (A)
any Product for which it makes payment under Section 3.2(a)(i)
and/or (B)
a Dental Product, utilizing the Licensed Technology that is the
subject
matter of the License Agreement, ULURU shall pay Access the sum
of Three
Hundred Seventy Five Thousand Dollars
($375,000);
|
|
(iii)
|
Within
five (5) business days after ULURU signs a license agreement (with
a third
party) regarding any Product, other than a Dental Product, utilizing
the
Licensed Technology that is the subject matter of the License Agreement,
ULURU shall pay Access the sum of Three Hundred Seventy Five Thousand
Dollars ($375,000);
|
|
(iv)
|
Within
five (5) business days after ULURU signs a license agreement (with
a third
party) regarding any Product, other than (A) any Product for which
it
makes payment under Section 3.2(a)(iii) and/or (B) a Dental Product,
utilizing the Licensed Technology that is the subject matter of
the
License Agreement, ULURU shall pay Access the sum of Three Hundred
Seventy
Five Thousand Dollars ($375,000);
|
|
(v)
|
Within
five (5) business days after ULURU signs a license agreement (with
a third
party) regarding any Product, other than any Product for which
it makes
payment under Sections 3.2(a)(iii) or (iv), utilizing the Product
Intellectual Property relating to the Mucoadhesive Product, ULURU
shall
pay Access the sum of Three Hundred Seventy Five Thousand Dollars
($375,000);
|
|
(vi)
|
Within
five (5) business days after ULURU signs a license agreement (with
a third
party) regarding any Tooth Whitening Product utilizing the Product
Intellectual Property relating
to the Mucoadhesive Product, ULURU shall pay Access the sum of
Seven
Hundred Fifty Thousand Dollars ($750,000);
and
|
|
(vii)
|
ULURU
shall pay to Access the following payments based upon the achievement
of
the following (including, without limitation, the U.S.) Annual
Net Sales
or Cumulative Net Sales, as the case may be, of the Products by
ULURU, its
Affiliates and its and their respective Licensees after the Closing
Date
(including, without limitation, under the License Agreement):
|
|
PAYMENT
|
MILESTONE
|
|
$500,000
|
On
achievement of Annual Net Sales of the Products of
$20,000,000
|
|
$1,125,000
|
On
achievement of Annual Net Sales of the Products of
$40,000,000
|
|
$1,500,000
|
On
achievement of Annual Net Sales for any one Product of
$20,000,000
|
|
$750,000
|
On
achievement of Cumulative Net Sales of the Products of
$50,000,000
|
|
$750,000
|
On
achievement of Cumulative Net Sales of the Products of
$100,000,000
|
ULURU
hereby agrees and acknowledges that it shall not sell, assign, convey or
otherwise transfer the Purchased Assets or this Agreement without the permitted
assignee or transferee agreeing to be bound by all of the terms of this
Agreement, including, without limitation, the payment obligations of this
Section 3.
| (b) |
Within
ninety (90) days after the end of each calendar quarter, commencing
with
the first full calendar quarter following the Closing Date, ULURU
shall
submit to Access a written report setting forth the Annual Net Sales
(to-date) and Cumulative Net Sales of each of the Products, respectively,
for such quarter; provided,
however,
that the first such quarterly report shall include only Cumulative
Net
Sales for each of the Products from the Closing Date to the end of
the
first full calendar quarter following the Closing Date. In the event
that
a Licensee sells or distributes any of the Products, the sales report
provided to Access by ULURU or its Affiliates pursuant to this Section
3.2(b) shall also include a copy of the sales report from such Licensees
for such calendar quarter. ULURU shall permit, and shall cause its
Affiliates and its and their respective Licensees to permit, an
independent certified public accounting firm (the "Auditor")
of nationally recognized standing selected by Access and reasonably
acceptable to ULURU, at Access's expense (except as set forth below),
to
have access upon reasonable notice during normal business hours to
the
records of ULURU and/or its Affiliates and its or their respective
Licensees (subject to ULURU's rights under its license agreements)
as may
be reasonably necessary to verify the accuracy of the Annual Net
Sales and
Cumulative Net Sales reported by ULURU pursuant to this Section 3.2(b).
When, in any quarterly report, one (1) of the Annual Net Sales or
Cumulative Net Sales milestones set forth in Section 3.2(a)(vii)
have been
achieved, ULURU shall make the corresponding milestone payment to
Access
within ninety (90) days after the end of the calendar quarter in
which the
milestone is achieved. In the event that the Auditor, in the course
of any
review conducted pursuant this Section 3.2(b), discovers that ULURU
underpaid, or failed to pay, Access of any of the milestone payments
due
Access under Section 3.2(a)(vii), (i) all expenses incurred by Access
in
connection with such review shall be borne entirely by ULURU and
(ii) any
payment required as a result of such review shall be immediately
paid to
Access and shall bear interest from the date such amount should otherwise
have been paid until the date of actual payment at the rate of ten
percent
(10%) per annum.
|
| 3.3 |
Allocation
of Purchase Price.The
Purchase Price and all other amounts constituting consideration hereunder
shall be allocated among the Purchased Assets, and otherwise as the
Parties shall have agreed, in the manner set forth on Exhibit G
attached hereto. Except as otherwise required by applicable law,
each of
the Parties agrees to report (and to cause its Affiliates to report)
the
transactions contemplated by this Agreement in a manner consistent
with
the terms of this Agreement, including the allocation set forth on
Exhibit
G
attached hereto, and agrees not to take any position inconsistent
therewith in any Tax Return, in any refund claim, in any litigation
or
otherwise. Any subsequent adjustment to the Purchase Price shall
be
reflected in the allocation statement as revised by the Parties hereunder
in a manner consistent with the allocation statement as originally
prepared, except as otherwise required by applicable law. Exhibit
G
attached hereto shall be amended by the Parties to reflect any agreed
upon
changes to the allocation statement.
|
| 3.4 |
Transfer
Taxes;
Withholding Taxes.All
transfer, sales, value added, stamp duty and similar Taxes payable
in
connection with the transactions contemplated hereby shall be borne
equally by Access and ULURU. Access shall pay all Taxes payable on
any
income or gain resulting from the sale of the Purchased Assets to
ULURU.
|
SECTION
4
PAYMENT
TERMS
4.1 Payment. ULURU
shall pay the Purchase Price, in the installments set forth in
Sections 3.1(a) and (b), and any and all milestone payments, if any, as set
forth in Section 3.2, in cash by wire transfer of immediately available funds
to
a bank account or bank accounts to be designated by Access or its
Affiliate.
4.2 Post-Closing
Adjustments. The
Purchase Price set forth in Section 3.1 shall be subject to adjustment, as
set forth in this Section 4.2, as follows:
|
(a)
|
In
the event any consideration is payable during the period beginning
the
Closing Date and ending on the date that is twelve months thereafter
to
any person as a condition to the assignment of the Takeda License
Agreement to ULURU, the Purchase Price shall be reduced, on a
dollar-for-dollar basis, by the amount of such consideration and
the
payment payable by ULURU pursuant to Section 3.1(b) shall be reduced,
accordingly, on a dollar-for-dollar basis, up to a maximum of $1,000,000,
by the amount of such consideration and ULURU shall be entitled
to deduct
the actual amount of such payment from the amount due Access pursuant
to
Section 3.1(b). ULURU agrees and acknowledges that no post-Closing
adjustment shall be made under this Section 4.2(a) after the date
that is
twelve (12) months after the Closing
Date.
|
|
(b)
|
In
the event that the Parties do not obtain consent from Takeda to
the
assignment of the Takeda License Agreement by Access to ULURU,
and ULURU
incurs actual damages solely due to the failure to obtain such
assignment,
as ULURU's sole remedy, the Purchase Price shall be reduced, on
a
dollar-for-dollar basis, by the amount of such actual damages,
up to a
maximum of $1,000,000, and the payment payable by ULURU pursuant
to
Section 3.1(b) shall be reduced, accordingly, on a dollar-for-dollar
basis, by the amount of such actual damages and ULURU shall be
entitled to
deduct the actual amount of such actual damages from the amount
due Access
pursuant to Section 3.1(b).
|
|
(c)
|
Subject
to the following sentence, in the event Discus Dental, Inc. ("Discus")
terminates that certain license and supply agreement, dated April
15,
2005, by and between Discus and Access (the "Discus License"),
within
sixty (60) days of the Closing Date, as ULURU's sole remedy, the
Purchase
Price shall be reduced, on a dollar-for-dollar basis, by $500,000,
and the
payment payable by ULURU pursuant to Section 3.1(b) shall be reduced,
accordingly, on a dollar-for-dollar basis, by $500,000 and ULURU
shall be
entitled to deduct $500,000 from the amount due Access pursuant
to Section
3.1(b). Notwithstanding the foregoing, in the event that ULURU
licenses
the products and technology covered by the Discus License in the
United
States within eighteen (18) months of any such termination by Discuss
on
terms substantially similar to the Discus License, ULURU shall,
within
seven (7) days of receipt by ULURU of any consideration payable
to ULURU
under such license, pay to Access
$500,000.
|
|
(d)
|
In
the event that Access fails to make payments due to Xxxxx X. Xxxx
under
that certain Separation Agreement, dated as of May ___, 2005, by
and
between Access and Xx. Xxxx (the "Separation Agreement"), as ULURU's
and
Xx. Xxxx'x sole remedy, the Purchase Price shall be reduced, on
a
dollar-for-dollar basis, by the amount of any such non-payment,
and the
payment payable by ULURU pursuant to Section 3.1(b) shall be reduced,
accordingly, on a dollar-for-dollar basis, by the amount of such
non-payment and ULURU shall be entitled to deduct the amount of
such
non-payment from the amount due Access pursuant to Section 3.1(b),
such
non-payment amount due from Access to be increased by a penalty
of 10% per
annum compounded monthly commencing on the date Access first fails
to make
a payment due under the Separation
Agreement.
|
SECTION
5
REPRESENTATIONS
AND WARRANTIES OF ACCESS
Except
to
the extent modified or disclosed on the Schedules hereto and except to the
extent that all representations and warranties in this Section 5 are modified
and supplemented by the knowledge of ULURU and Xxxxx X. Xxxx (and no breach
of
any representation or warranty shall exist to the extent that ULURU or Xxxxx
X.
Xxxx has knowledge thereof), Access hereby represents and warrants to ULURU
as
follows:
| 5.1 |
Incorporation,
Organization and Qualification of Access.Access
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of Delaware, and has the necessary corporate
power to own, lease and operate its property and to carry on its
business
as now being conducted by it. Access is duly qualified and licensed
to do
business as a foreign corporation and is in good standing in every
jurisdiction where the nature of the business conducted by it makes
such
qualification necessary, except where the failure to so qualify or
be in
good standing does not have a Material Adverse
Effect.
|
| 5.2 |
Authorization
and Validity of Agreement.Access
has the corporate power and legal authority to execute and deliver
this
Agreement and the Ancillary Agreements and to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement
and
the Ancillary Agreements and the performance of Access's obligations
hereunder and thereunder have been duly and validly authorized by
all
necessary corporate action by Access, and no other corporate proceedings
on the part of Access are necessary to authorize such execution,
delivery
and performance. This Agreement has been, and the other agreements
to be
executed by Access in connection with this Agreement will be, duly
and
validly executed by Access and constitute or will constitute, as
the case
may be, the valid and binding obligations of Access enforceable against
Access in accordance with its or their terms, subject to bankruptcy,
insolvency or similar laws of general application affecting the
enforcement of rights of creditors, and subject to equitable principles
limiting rights to specific performance or other equitable remedies,
and
subject to the effect of federal and state securities laws on the
enforceability of indemnification provisions relating to liabilities
arising under such laws. Execution of this Agreement, the Ancillary
Agreements and any other agreements to be executed by Access in connection
with this Agreement and consummation of the transactions contemplated
hereby and thereby will not (a) result in the violation of or
conflict with any of the terms and provisions of the articles of
incorporation or by-laws of Access, (b) result in a violation or
breach
of, or constitute (with or without due notice or lapse of time or
both) a
default (or give rise to any right of termination, modification,
cancellation or acceleration or loss of material benefits) under,
any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, contract, agreement, permit, license, lease, purchase
order,
sales order, arrangement or other commitment or obligation to which
Access
is a party or may be subject or which is included in the Purchased
Assets
or (c) violate any order, writ, injunction, decree, statute, treaty,
rule
or regulation applicable to Access or the Purchased Assets, except,
in the
case of clauses (b) and (c), as would not have a Material Adverse
Effect;
provided,
however,
the Parties acknowledge that to the extent that any contract or agreement
(including, without limitation, the Takeda License Agreement) is
not
assignable, as set forth on Schedule
5.2,
it shall be governed by Section 2.5, and such non-assignability shall
not
be deemed a breach of this Agreement.2
|
| 5.3 |
Title
to Purchased Assets.Except
as set forth on Schedule
5.3,
Access is the owner of, and/or is the lawful holder of all rights
to, the
Purchased Assets with good, valid and marketable title thereto, free
and
clear of any mortgage, lien, charge, security interest, pledge,
restriction on transferability, option, adverse claim or other encumbrance
on title whatsoever (collectively, "Encumbrances"),
and at the Closing, Access will transfer to ULURU good, valid and
marketable title thereto, free and clear of all
Encumbrances.
|
| 5.4 |
Compliance
With Law.Access
has conducted and is currently conducting the manufacturing, processing,
packaging, labeling, marketing and sale of the Products in the U.S.
in
compliance with all applicable laws, rules, regulations and court
or
administrative orders and processes. Except
as would not have a Material Adverse Effect, Access has not received
any
written notice of violation of any applicable law, regulation or
requirement relating to the Products or the Purchased Assets within
the
past three (3) years.
|
| 5.5 |
Litigation.Except
as would not have a Material Adverse Effect, (a) there are no actions,
suits, proceedings, investigations, arbitration proceedings or other
proceedings pending or, to the best knowledge of Access, threatened
against or affecting, in whole or in part, the Purchased Assets or
the
Products by or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic
or foreign, or by or before any arbitrator, and (b) there is not
currently
outstanding against Access any judgment, decree, injunction, rule,
settlement, order or award of any court, governmental department,
commission, board, bureau, agency, instrumentality, domestic or foreign,
or arbitrator that relate, in whole or in part, to the Purchased
Assets or the Products or would question or challenge the validity
of this
Agreement.
|
| 5.6 |
Intellectual
Property Rights.Except
as set forth on Schedule 5.6:
|
| (a) |
(i) Access
is the sole owner, free and clear of any Encumbrance, except as set
forth
in Schedule
5.3,
of all right, title and interest in the Product Intellectual Property
and
(ii) Access has the right to use the Product Intellectual Property in
the manufacture, sale and distribution of the Products.
|
| (b) |
All
of the Product Patents and Product Trademarks (i) have been duly
registered or filed with the appropriate government authorities or
registries, and (ii) to the best knowledge of Access are currently
in
force as to all applicable jurisdictions.
|
| (c) |
To
the knowledge of Access, no third party is infringing or misappropriating
any of the Product Intellectual Property.
|
| (d) |
To
the knowledge of Access none of the Product Intellectual Property
infringes or conflicts with any Intellectual Property right of a
third
party and there are, and have been, no claims asserted in writing
against
Access alleging that Access's development, manufacture and sale of
Products infringes or misappropriates any Intellectual Property of
any
other person, corporation, limited liability company, partnership,
other
business entity.
|
| (e) |
Access
has not granted any license or sublicense with respect to the Product
Intellectual Property.
|
| (f) |
Access
has delivered to ULURU correct and complete copies of all patents,
registrations, applications, licenses and agreements relating to
the
Product Intellectual Property.
|
| 5.7 |
Inventory.The
Inventory has been stored in compliance with all applicable federal
and
state laws, has not been adulterated and has otherwise been maintained
according to the requirements of federal and state law. The Inventory
is
merchantable and fit for the purpose for which it was manufactured,
is not
defective and shall have a remaining shelf life of at least eighteen
(18)
months from the Closing Date.
|
| 5.8 |
Government
Approvals.Except
as set forth on Schedule
5.8,
no government authorization, consent, approval, license, exemption
of or
filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign,
under any applicable laws, rules or regulations currently in effect,
is or
will be necessary for, or in connection with, the offer and sale
of the
Purchased Assets, the execution and delivery by Access of this Agreement,
the Ancillary Agreements and any other agreement or instrument executed
in
connection herewith, the consummation of the transactions contemplated
hereby or thereby, or the performance by Access of its obligations
under
this Agreement, the Ancillary Agreements and any other
agreements.
|
| 5.9 |
Purchased
Assets.Except
for the Excluded Assets and as otherwise stated herein or as would
not
cause a Material Adverse Effect, the Purchased Assets include all
property, rights, assets, information, files and materials necessary
for
ULURU to develop, manufacture, sell and distribute the Products in
a
manner substantially similar to Access's practices as of the Closing
Date.
|
| 5.10 |
Brokers.Access
has not employed any investment banker, broker, finder or intermediary
in
connection with the transactions contemplated hereby who might be
entitled
to a fee or commission upon the execution of this Agreement or the
consummation of such transactions.
|
| 5.11 |
Disclosure.The
representations and warranties contained in this Section 5 do not
contain
any untrue statement of fact or omit to state a fact necessary in
order to
make the statements and information contained in this Section 5 not
misleading (other than those facts of which ULURU or Xxxxx X. Xxxx
has
knowledge).
|
| 5.12 |
No
Implied Representations.WITH
REGARD TO ANY STATEMENT CONTAINED IN THIS SECTION 5 OR ANY OTHER
PROVISION
OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT ULURU AND ACCESS ACKNOWLEDGE
AND AGREE THAT NEITHER ACCESS NOR ANY OF ITS AFFILIATES, AGENTS,
EMPLOYEES
OR REPRESENTATIVES IS MAKING OR IMPLYING, WHETHER CONTAINED IN OR
REFERRED
TO IN THE DUE DILIGENCE AND EVALUATION MATERIALS THAT HAVE BEEN OR
SHALL
HEREAFTER BE PROVIDED TO ULURU OR ANY OF ITS AFFILIATES, AGENTS OR
REPRESENTATIVES, ANY REPRESENTATION OR WARRANTY WHATSOEVER BEYOND
THOSE
EXPRESSLY GIVEN BY ACCESS IN THIS AGREEMENT OR ANY ANCILLARY AGREEMENT,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR REPRESENTATION
AS TO
THE VALUE, CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF
THE
PURCHASED ASSETS.
|
| SECTION 6 |
COVENANTS
OF ACCESS
6.1 Assistance
with ULURU Regulatory Filings.
Access
shall use commercially reasonable efforts to assist ULURU in its preparation
and
filing with the FDA or any other Agency of filings required to be filed by
ULURU
for the manufacture, marketing and distribution of the Products. It is
understood and agreed that ULURU, as the owner of the Product Registrations,
shall have the responsibility for all regulatory filings after the Closing
Date.
All costs and fees associated with such regulatory filings shall be borne
by
ULURU.
6.2 Litigation.
From
the
date hereof until the date six (6) years after the Closing, Access shall
notify
ULURU promptly upon receipt of any communication or legal process which
commences or threatens litigation which might materially and adversely affect
the value of any of the Purchased Assets.
6.3 Notice
of Developments.
For a
period of one (1) year after the Closing Date, Access will give written notice
to ULURU of all material developments of which it has actual knowledge affecting
the Purchased Assets.
6.4 Proprietary
Information.
From and
after the Closing Date, each Party shall not disclose or make use of, and
shall
use its best efforts to cause all of its Affiliates not to disclose or make
use
of, any knowledge, information or documents of a confidential nature or not
generally known to the public with respect to the other Party or its respective
businesses (including the financial information, technical information or
data
relating to the other Party's products and names of customers of the other
Party), except to the extent that such knowledge, information or documents
shall
have become public knowledge other than through improper disclosure by the
other
Party or an Affiliate. Each Party shall enforce, for the benefit of the other
Party, all confidentiality, invention assignments and similar agreements
between
such Party and any other party relating to the Purchased Assets.
6.5 Hired
Employees' Options, Bonuses and Restricted Stock.
Within
seven (7) days of the Closing, Access shall (a) pay to each Hired Employee
(as
defined in Section 8.8) by wire transfer of immediately available funds or
by
certified check an amount equal to the bonus payment due and payable by Access
to each such Hired Employee, as set forth opposite the name of such Hired
Employee on Schedule
6.5,
(b)
deliver to each Hired Employee written confirmation that all unvested options
to
purchase shares of Access common stock held as of the Closing Date by such
Hired
Employee terminated as of the Closing Date and that such Hired Employee may
exercise during the twelve (12) month period following the Closing Date any
vested options to purchase shares of Access common stock held as of the Closing
Date by such Hired Employee, in each case as set forth opposite the name
of such
Hired Employee on Schedule
6.5,
and (c)
deliver to each Hired Employee written confirmation that the unvested shares
of
Access restricted common stock currently held by such Hired Employee, as
set
forth opposite the name of such Hired Employee on Schedule
6.5,
vested
in full as of and upon the Closing, and provided that within seven (7) days
of
the Closing Date a stock certificate is issued for the common stock for each
Hired Employee in an amount as set forth opposite the name of such Hired
Employee on Schedule 6.5.
SECTION
7
REPRESENTATIONS
AND WARRANTIES OF ULURU
ULURU
hereby represents and warrants to Access as follows:
| 7.1 |
Incorporation,
Organization and Qualification of ULURU.ULURU
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of Delaware, and has the necessary corporate
power to own, lease and operate its property and to carry on its
business
as now being conducted by it. ULURU is duly qualified and licensed
to do
business as a foreign corporation and is in good standing in every
jurisdiction where the nature of the business conducted by it makes
qualification necessary, except where the failure to so qualify or
be in
good standing would not prevent or materially delay the consummation
of
the transactions contemplated hereby.
|
| 7.2 |
Corporate
Action.ULURU
has the corporate power and legal authority to execute and deliver
this
Agreement and the Ancillary Agreements and to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement
and
the Ancillary Agreements and the performance of ULURU's obligations
hereunder and thereunder have been duly and validly authorized by
all
necessary corporate action, and no other corporate proceedings on
the part
of ULURU are necessary to authorize such execution, delivery and
performance. This Agreement has been, and any other agreements executed
in
connection herewith have been, duly and validly executed by ULURU,
and
constitute the valid and binding obligations of ULURU, enforceable
against
ULURU in accordance with its or their terms, subject to bankruptcy,
insolvency or similar laws of general application affecting the
enforcement of rights of creditors, and subject to equitable principles
limiting rights to specific performance or other equitable remedies,
and
subject to the effect of federal and state securities laws on the
enforceability of indemnification provisions relating to liabilities
arising under such laws. Execution of this Agreement, the Ancillary
Agreements and any other agreements executed by ULURU in connection
with
this Agreement and consummation of the transactions contemplated
hereby
and thereby will not (a) result in the violation of or conflict with
any of the terms and provisions of the articles of incorporation
or
by-laws of ULURU, (b) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or
give
rise to any right of termination, modification, cancellation
or acceleration or loss of material benefits) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
contract,
agreement, permit, license, lease, purchase order, sales order,
arrangement or other commitment or obligation to which ULURU is a
party or
may be subject to or (c) violate any order, writ, injunction, decree,
statute, treaty consummation of such transactions, rule or regulation
applicable to ULURU except, in the case of clauses (b) and (c), as
would
not prevent or materially delay the consummation of the transactions
contemplated hereby.
|
| 7.3 |
Governmental
Xxxxxxxxx.Xx
government authorization, consent, approval, license, exemption of
or
filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign,
under any applicable laws, rules or regulations currently in effect,
is or
will be necessary for, or in connection with, the purchase of the
Purchased Assets, the execution and delivery by ULURU of this Agreement,
the Ancillary Agreements and any other agreement or instrument executed
in
connection herewith, the consummation of the transactions contemplated
hereby or thereby, or for the performance by it of its obligations
under
this Agreement, the Ancillary Agreements and any other
agreements.
|
| 7.4 |
Compliance
With Law.ULURU
has conducted and is currently conducting its business in compliance
with
all applicable laws, rules, regulations and court or administrative
orders
and processes. Except
as would not have a Material Adverse Effect, ULURU has not received
any
written notice of violation of any applicable law, regulation or
requirement relating to its business within the past five (5)
years.
|
| 7.5 |
Litigation.Except
as would not have a Material Adverse Effect, there are no actions,
suits,
proceedings, investigations, arbitration proceedings or other proceedings
pending or, to the best knowledge of ULURU, threatened against or
affecting, in whole or in part, ULURU's business by or before any
federal,
state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or by or
before
any arbitrator and, to the best knowledge of ULURU, there is not
currently
outstanding against ULURU any judgment, decree, injunction, rule,
settlement, order or award of any court, governmental department,
commission, board, bureau, agency, instrumentality, domestic or foreign,
or arbitrator that would question or challenge the validity of this
Agreement.
|
| 7.6 |
Brokers.ULURU
has not employed any investment banker, broker, finder or intermediary
in
connection with the transactions contemplated hereby who might be
entitled
to a fee or commission upon the execution of this Agreement or the
consummation of such transactions.
|
| 7.7 |
Disclosure.The
representations and warranties contained in this Section 7 do not
contain
any untrue statement of fact or omit to state a fact necessary in
order to
make the statements and information contained in this Section 7 not
misleading.
|
SECTION
8
MUTUAL
COVENANTS
| 8.1 |
Transfer
of Registrations, Etc.
The
Parties shall cooperate to effectuate the consummation of the transactions
contemplated by this Agreement and the transfer of the Purchased
Assets
and the Takeda License Agreement in accordance with Section 2 hereof.
The
Parties agree to use their commercially reasonable efforts, before
and
after the Closing, to take any other actions required by the FDA
or any
other Agency to effect the transfer of the Purchased Assets, including
notices to the FDA and other Agencies regarding the transfer from
Access
to ULURU of the Product Registrations and to obtain any required
third
party consents necessary to consummate the transactions contemplated
by
this Agreement.
|
| 8.2 |
Transition
Team.
Access
and ULURU shall establish a transition team (the "Transition
Team"),
which shall be comprised of the persons set forth on Schedule
8.2
attached hereto and which shall have the responsibilities set forth
in
this Section 8.2. For a period of not longer than one hundred eighty
(180)
days, the Transition Team shall (a) coordinate the joint efforts
of Access
and ULURU, consistent with the terms and conditions of this Agreement;
(b)
effect the transfer of the Purchased Assets in accordance with Section
2.1
and Section 10.1(k); (c) obtain any required consents, licenses,
permits,
waivers, approvals, authorizations or orders; (d) make any required
filings or submissions; (e) effect a smooth transition from Access
to
ULURU with respect to the manufacture and sale of the Products in
the
U.S.; and (f) take any other commercially reasonable actions necessary
for
the consummation of the transactions contemplated by this
Agreement.
|
| 8.3 |
Certain
Tax and Financial Statement Matters.
ULURU
and Access, and each Party's respective Affiliates, shall cooperate,
to
the extent reasonably requested by the other Party, in connection
with the
preparation and filing of any Tax Return, audit, litigation, information
statement, proceeding or similar items with respect to Taxes and
to
furnish the other Party with a copy of such item in draft form within
a
reasonable time before its due date, as well as a copy of such item
as
filed.
In
addition Access, and its Affiliates, shall cooperate, to the extent
reasonably requested by ULURU, in connection with the preparation,
audit
and filing of any financial statements related to the Purchased Assets,
including the preparation, audit and filing of any financial statements
required to be included in any registration statement filed by ULURU
with
the Securities and Exchange Commission.
|
| 8.4 |
Adverse
Experience Reports.
On
or prior to the Closing Date, Access shall provide ULURU with all
information relating to the investigation and reporting of Adverse
Experiences regarding the Products since three (3) years prior to
the
Closing Date and all information which is relevant to the safe use
of the
Products as of the Closing Date, in each case to the extent received
by,
or in the possession of, Access, and will confer with ULURU on Adverse
Experience history related to the Products. After the Closing Date,
Access
and its Affiliates shall promptly submit to ULURU all such Adverse
Experience information or customer complaints brought to the attention
of
Access or its Affiliates in respect of the Products, as well as any
material events and matters concerning or affecting the safety or
efficacy
of the Products. Such information or customer complaints shall be
forwarded to ULURU, Attention: Xxxxx X. Xxxx. Beginning on the Closing
Date, ULURU shall have all responsibility for required reporting
of
Adverse Experiences for the Products.
|
| 8.5 |
Response
to Medical Inquiries and Products Complaints.
Upon
Closing, ULURU shall assume all responsibility for responding to
any
medical inquiries or complaints about the Products. Access shall
promptly
refer all such inquiries and complaints that it receives
to ULURU for response to such inquiries or
complaints.
|
| 8.6 |
Customer
Receipts.
In
the event that Access or any of its Affiliates receive payment after
the
Closing Date on invoices relating to sales of the Products by ULURU
or any
of its Affiliates after the Closing Date, Access will promptly notify
ULURU of such receipt and will promptly remit, or will cause such
Affiliate to promptly remit such payment to ULURU. In the event that
ULURU
or any of its Affiliates receive payment after the Closing Date on
invoices or any other payments relating to the Products with respect
to
the period prior to the Closing Date, ULURU will promptly notify
Access of
such receipt and will promptly remit, or will cause such Affiliate
to
promptly remit such payment to Access.
|
| 8.7 |
Sharing
of Data.
Access shall have the right for a period of seven years following
the
Closing Date to have reasonable access to such books, records and
accounts, including financial and tax information, correspondence,
production records, employment records and other records that are
transferred to ULURU pursuant to the terms of this Agreement for
the
limited purposes of concluding its involvement in the business conducted
by Access prior to the Closing Date and for complying with its obligations
under applicable securities, tax, environmental, employment or other
laws
and regulations. ULURU shall have the right for a period of seven
years
following the Closing Date to have reasonable access to those books,
records and accounts, including financial and accounting records
(including the work papers of Access's independent accountants),
tax
records, correspondence, production records, employment records and
other
records that are retained by Access pursuant to the terms of this
Agreement to the extent that any of the foregoing is needed by ULURU
for
the purpose of conducting the business of Access after the Closing
and
complying with its obligations under applicable securities, tax,
environmental, employment or other laws and regulations. Neither
ULURU nor
Access shall destroy any such books, records or accounts retained
by it
without first providing the other Party with the opportunity to obtain
or
copy such books, records, or accounts at such other Party's
expense.
|
| 8.8 |
Hired
Employees.
As
of the Closing, ULURU shall offer employment to the employees of
Access
set forth on Schedule
8.8,
at substantially the same level of compensation and benefits as provided
by Access immediately prior to the Closing, to continue working in
connection with the development of the Product Intellectual Property,
provided that Access makes no representation as to whether any such
employees will accept employment by ULURU and it shall not be a breach
of
this Agreement by Access if any such employee does not accept employment
by ULURU (all such hired employees, the "Hired
Employees");
provided,
however,
that nothing contained in this Section 8.8 shall require that ULURU
continue to employ any Hired Employee after the Closing Date or restrict
ULURU's ability to change the level of compensation and benefits
provided
to any Hired Employee after the Closing Date. ULURU shall be responsible
for all compensation expenses relating to the Hired Employees, to
the
extent accrued or payable after the Closing Date, including, without
limitation, severance (including any severance or displacement pay,
if
any, due for any Hired Employee subsequently terminated by ULURU,
with any
such obligations to be determined by the terms of the severance or
displacement pay arrangements maintained by Access and ULURU,
respectively), benefits, vacation, sick time and all such other expenses.
During the period from the Closing Date through December 31, 2005,
Access
shall continue to pay all compensation expenses due the Hired Employees,
provided that ULURU shall reimburse Access for all such payments
made to
the Hired Employees within one (1) day upon notice from Access of
its
making any such payment. Beginning January 1, 2006, ULURU shall pay
all
such compensation expenses due the Hired Employees and Access shall
have
no obligation to make any payments in connection
therewith.
|
SECTION
9
INDEMNIFICATION
| 9.1 |
Indemnification
by Access.Access
shall indemnify and hold ULURU, its Affiliates and their respective
employees, officers and directors (collectively, the "ULURU
Indemnified Parties")
harmless from and against any and all losses, damages, liabilities,
obligations, claims, costs and expenses (including reasonable attorneys'
fees) (each, a "Loss"
and collectively, the "Losses")
sustained, suffered or incurred by such ULURU Indemnified Parties
and
relating to, directly or indirectly: (a) the breach of any representation
or warranty of Access contained herein (without regard to materiality
qualifiers provided in such representations or warranties other than
the
references to Material Adverse Effect) (other than any breach in
existence
or caused by events or facts of which ULURU or Xxxxx Xxxx has knowledge);
(b) the breach of any covenant or agreement of Access contained herein;
or
(c) any claim or cause of action arising from the Retained Liabilities,
except that Access shall have no obligation to indemnify ULURU for
any
Losses that arise from or relate to the Takeda License Agreement
or the
performance or nonperformance of such agreement or under Section
4.2
(except as set forth in Section 4.2).
|
| 9.2 |
Indemnification
by
ULURU.ULURU
shall indemnify and hold Access, its Affiliates and their respective
employees, officers and directors (collectively, the "Access
Indemnified Parties")
harmless from and against any and all Losses sustained, suffered
or
incurred by such Access Indemnified Parties and relating to, directly
or
indirectly: (a) the breach of any representation or warranty of ULURU
contained herein, (without regard to materiality qualifiers provided
in
such representations or warranties); (b) the breach of any covenant
or
agreement of ULURU contained herein; (c) any Losses that arise from
or
relate to the Takeda License Agreement or the performance or
non-performance of such agreement; or (d) any claim or cause of action
arising from the Assumed Liabilities.
|
9.3 Notification
of Claims.
| (a) |
If
any Access Indemnified Party or ULURU Indemnified Party receives
notice of
any event, circumstance, demand or claim that may give rise to a
Loss for
which such Party is or may be entitled to indemnification under this
Agreement (each such party, an "Indemnified
Party"),
such Indemnified Party shall promptly notify the Party required to
provide
such indemnification (the "Indemnifying
Party")
in writing of the existence of such potential Loss and of the amount
at
issue. The failure to provide such notice will not affect any rights
hereunder except to the extent the Indemnifying Party is materially
prejudiced thereby.
|
| (b) |
If
the event or circumstance giving rise to a Loss involves any third
party
claim, the Indemnifying Party shall have the right to direct, through
counsel of its own choosing, which counsel shall be reasonably
satisfactory to the Indemnified Party, the defense or settlement
of any
claim or proceeding the subject of indemnification hereunder at its
own
expense. If the Indemnifying Party elects to assume the defense of
any
such claim or proceeding, the Indemnified Party may participate in
such
defense, but in such case the expenses of the Indemnified Party shall
be
paid by the Indemnified Party. The Indemnified Party shall provide
the
Indemnifying Party with access to its records and personnel relating
to
any such claim, assertion, event or proceeding during normal business
hours and shall otherwise cooperate with the Indemnifying Party in
the
defense or settlement thereof, and the Indemnifying Party shall reimburse
the Indemnified Party for all its reasonable out-of-pocket expenses
in
connection therewith. If the Indemnifying Party elects to direct
the
defense of any such claim or proceeding, the Indemnified Party shall
not
pay, or permit to be paid, any part of any claim or demand arising
from
such asserted loss unless the Indemnifying Party consents in writing
to
such payment or unless the Indemnifying Party withdraws from the
defense
of such asserted loss or unless a final judgment from which no appeal
may
be taken by or on behalf of the Indemnifying Party is entered against
the
Indemnified Party for such loss. No settlement in respect of any
third
party claim may be effected by the Indemnifying Party without the
Indemnified Party's prior written consent, unless the settlement
involves
a full and unconditional release of the Indemnified Party. If the
Indemnifying Party shall fail to undertake in a timely manner the
defense
of any third party claim or it is reasonably determined by outside
counsel
mutually selected by the Indemnified Party and the Indemnifying Party
that
representation by the Indemnifying Party's counsel of both the
Indemnifying Party and the Indemnified Party may present a conflict
of
interest, the Indemnified Party shall have the right to undertake
the
defense or settlement thereof at the Indemnifying Party's expense.
If the
Indemnified Party assumes the defense of any such claim or proceeding
pursuant to this Section 9.3 and proposes to settle such claim or
proceeding prior to a final judgment thereon or to forgo any appeal
with
respect thereto, then the Indemnified Party shall give the Indemnifying
Party timely written notice and the Indemnifying Party shall have
the
right to participate in the settlement or assume or reassume the
defense
of such claim or proceeding.
|
SECTION
10
CLOSING
AND POST-CLOSING DELIVERIES
| 10.1 |
Documents/Items
to Be Delivered by Access at Closing.
At
the Closing, Access shall deliver, or cause to be delivered, to ULURU
the
following:
|
| (a) |
Any
instruments of conveyance, assignment and transfer, in form and substance
satisfactory to ULURU and Access, as shall be appropriate to convey,
transfer and assign to, and vest in ULURU, good title to the Purchased
Assets free and clear of all Encumbrances, except as set forth on
Schedule
5.3;
|
| (b) |
executed
Product Patents Assignment;
|
| (c) |
executed
Product Trademarks Assignment;
|
| (d) |
executed
Xxxx of Sale and Assignment Agreement;
|
| (e) |
reports
of Adverse Experience, as provided in Section
8.4;
|
| (f) |
a
certificate dated as of the Closing Date and executed by a principal
executive or financial officer of Access certifying the satisfaction
of
the conditions specified in
Section 11.1;
|
| (g) |
a
certificate dated as of the Closing Date and executed by the secretary
or
an assistant secretary of Access, certifying:
|
| (i) |
attached
thereto is a complete and correct copy of resolutions adopted by
the board
of directors of Access authorizing the execution, delivery and performance
of this Agreement and the Ancillary Agreements executed in connection
herewith by Access and the transfer of the Purchased Assets and the
Assumed Liabilities to ULURU hereunder, and that such resolutions,
approvals and consents have not been amended or modified in any respect
and remain in full force and effect as of the date thereof;
and
|
| (ii) |
that
the person named in the foregoing officer's certificate delivered
pursuant
to Section 10.1(f) has been duly elected, qualified and is an acting
officer of Access and that set forth therein is a genuine signature
or
true facsimile thereof of such officer.
|
| (h) |
the
Purchased Assets, to the extent deliverable at Closing, in accordance
with
the procedures set forth in Section 2.1. If the Purchased Assets
cannot be
delivered at Closing, they shall be delivered by Access as soon as
practicable after the Closing, in accordance with the procedures
set forth
in Section 2.1;
|
| (i) |
an
electronic recording of the Inventory existing as of the Closing
Date;
|
| (j) |
executed
Premises Agreement;
|
| (k) |
executed
License Agreement; and
|
| (l) |
such
other documents, instruments and certificates as Access and ULURU
may
mutually agree upon.
|
| 10.2 |
Documents/Items
to Be Delivered by ULURU at Closing.
At
the Closing, ULURU shall deliver, or cause to be delivered, to Access
the
following:
|
| (a) |
a
certificate dated as of the Closing Date and executed by a principal
executive or financial officer of ULURU certifying the satisfaction
of the
conditions specified in Section 12.1;
|
| (b) |
a
certificate dated as of the Closing Date and executed by the secretary
or
an assistant secretary of ULURU,
certifying:
|
| (i) |
attached
thereto is a complete and correct copy of resolutions adopted by
the board
of directors of ULURU authorizing the execution, delivery and performance
of this Agreement and the Ancillary Agreements executed in connection
herewith by ULURU and the transfer of the Purchased Assets and the
Assumed
Liabilities to ULURU hereunder, and that such resolutions, approvals
and
consents have not been amended or modified in any respect and remain
in
full force and effect as of the date thereof (or, in the alternative,
a
statement to the effect that no such board of directors approval
is
necessary regarding the execution, delivery and performance of this
Agreement and the Ancillary Agreements and the transfer of the Purchased
Assets and the Assumed Liabilities to ULURU); and
|
| (ii) |
that
the person named in the foregoing officer's certificate delivered
pursuant
to Section 10.2(b) has been duly elected, qualified and is an acting
officer of ULURU and that set forth therein is a genuine signature
or true
facsimile thereof of such officer.
|
| (c) |
executed
Premises Agreement;
|
| (d) |
executed
License Agreement;
|
| (e) |
the
first installment of the Purchase Price, as set forth in Sections
3.1(a)
and 4.1;
|
| (f) |
lien
release letters, executed and delivered by each of Cornell Capital
Partners, LP, Highgate House Funds, Ltd. and Xxxxx X. Xxxx, pursuant
to
which such parties agree to terminate and release certain security
interests in Access's assets granted by Access to such parties;
and
|
| (g) |
such
other documents, instruments and certificates as Access and ULURU
may
mutually agree upon.
|
| 10.3 |
Post-Closing
Deliveries.
Promptly after receipt at any time after the Closing Date of any
consent
to assignment of any contract or agreement constituting a Purchased
Asset,
Access shall deliver such consent to
ULURU.
|
SECTION
11
ULURU'S
CONDITIONS OF CLOSING
The
sale
and purchase of the Purchased Assets in accordance with the terms of this
Agreement are subject to the following terms and conditions, each of which
is
included for the exclusive benefit of ULURU, to be fulfilled or performed
at or
prior to the Closing:
| 11.1 |
Representations
and Warranties at Closing.
The
representations and warranties of Access to ULURU contained in this
Agreement shall be true and correct as of the Closing in all material
respects with the same force and effect as though such representations
and
warranties had been made at such time (without regard to materiality
qualifiers set forth therein), except (a) where failure to be so
true and
correct would not prevent or materially delay the consummation of
the
transactions contemplated hereby, (b) that those representations
and
warranties which address matters only as of a particular date or
period of
time shall remain true and correct as of such date or period of time,
except where failure to be so true and correct would not prevent
or
materially delay the consummation of the transactions contemplated
hereby,
and (c) where ULURU or Xxxxx X. Xxxx has knowledge that any such
representation or warranty was not so true and correct on the date
hereof
or the Closing Date. Access shall deliver to ULURU at the Closing
a
certificate by an officer of Access to such
effect.
|
| 11.2 |
Compliance
with Terms and Conditions.
Access
shall have performed, or complied with, in all material respects,
all of
the terms, covenants and conditions of this Agreement to be complied
with
or performed by Access at or before the Closing.
|
| 11.3 |
Ancillary
Agreements; Other Agreements.
Access
shall have executed and delivered the Product Patents Assignment,
the
Product Trademarks Assignment, the Xxxx of Sale and Assignment Agreement,
the License Agreement, and the Premises
Agreement.
|
SECTION
12
ACCESS'S
CONDITIONS OF CLOSING
The
sale
and purchase of the Purchased Assets in accordance with the terms of this
Agreement is subject to the following terms and conditions, each of which
is
included for the exclusive benefit of Access, to be fulfilled or performed
at or
prior to the Closing.
| 12.1 |
Representations
and Warranties at Closing.
The
representations and warranties of ULURU to Access contained in this
Agreement shall be true and correct as of the Closing in all material
respects with the same force and effect as though such representations
and
warranties had been made at such time (without regard to materiality
qualifiers set forth therein), except where failure to be so true
and
correct would not prevent or materially delay the consummation of
the
transactions contemplated hereby, and except that those representations
and warranties which address matters only as of a particular date
or
period of time shall remain true and correct as of such date or period
of
time, except where failure to be so true and correct would not prevent
or
materially delay the consummation of the transactions contemplated
hereby.
ULURU shall deliver to Access at the Closing a certificate by an
officer
of ULURU to such effect.
|
| 12.2 |
Compliance
with Terms and Conditions.
ULURU
shall have performed, or complied with, in all material respects,
all the
terms, covenants and conditions of this Agreement to be complied
with or
performed by ULURU at or before the Closing.
|
| 12.3 |
Ancillary
Agreements; Other Agreements.
ULURU
shall have executed the
License Agreement and the Premises
Agreement.
|
SECTION
13
CLOSING
DATE
| 13.1 |
Closing.
Upon
the terms and subject to the conditions of this Agreement, the sale
and
purchase of the Purchased Assets shall take place at a closing (the
"Closing")
to be held at the offices of Xxxxxxx XxXxxxxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxxxxx XX 00000, on such date as Access and ULURU may mutually agree
upon
in writing (the day on which the Closing takes place being the
"Closing
Date").
|
SECTION
14
MISCELLANEOUS
| 14.1 |
Expenses.
Except
as otherwise specified in this Agreement, all costs and expenses,
including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid
by the
Party incurring such costs and expenses, whether or not the Closing
shall
have occurred. Except as provided in Section 9, in the event of any
dispute among the Parties hereto relating to the subject matter of
this
Agreement, each Party shall pay its own out-of-pocket costs and fees
and
disbursements of counsel.
|
| 14.2 |
Further
Assurances and Actions.
Each
of the Parties hereto, upon the request of the other Party hereto,
whether
before or after the Closing and without further consideration, shall,
and
shall cause their respective Affiliates to, do, execute, acknowledge
and
deliver or cause to be done, executed, acknowledged or delivered
all such
further acts, deeds, documents, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably necessary
to effect
complete consummation of the transactions contemplated by this Agreement.
|
| 14.3 |
Announcements.
No Party shall make a public announcement regarding this Agreement
or the
transactions contemplated hereby without the prior written consent
of the
other Party; provided that nothing herein shall restrict Access or
ULURU
from making any public announcement of the transactions contemplated
by
this Agreement to the extent that such announcement is required by
law;
provided that, prior to any such disclosure, the disclosing Party
shall
provide the other Party a reasonable time to review and comment upon
such
disclosure. Additionally, ULURU may disclose this Agreement and the
transactions contemplated hereby, to the extent reasonably necessary,
in
connection with any registration of one (1) or more of the Products
with
any state or Federal agency.
|
| 14.4 |
Notices.
All
notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given or made (and shall be deemed
to
have been duly given or made upon receipt) by delivery in person,
by
courier service, by telecopy or by registered or certified mail (postage
prepaid, return receipt requested) to the respective Parties at the
following addresses (or at such other address for a Party as shall
be
specified in a notice given in accordance with this Section
14.4):
|
(a) if
to
Access, then:
Access
Pharmaceuticals, Inc.
0000
Xxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Telephone :
(000) 000-0000
Telecopy :
(000) 000-0000
Attn:
Chief Executive Officer
with
a
copy to:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attn:
Xxxx X. Xxxxxxxxx III, Esq.
(b) if
to
ULURU, then:
ULURU,
Inc.
0000
Xxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attn: Xxxxx
X.
Xxxx
with
a
copy to:
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attn:
Xxxxx X. Xxxxx, Esq.
| 14.5 |
Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of Delaware without giving effect to principles of conflict
of laws. Each Party to this Agreement expressly and irrevocably (a)
consents that legal action or proceeding against it arising out of
this
Agreement may be brought in any court of the State of Delaware or
in the
U.S. District Court for the District of Delaware, (b) consents and
submits
to the personal jurisdiction of any of such courts solely for purposes
of
such action or proceeding, (c) consents to the service of any complaint,
summons, notice or other process solely for purposes of such action
or
proceeding by delivery thereof to him, her or it by hand or by any
other
manner provided for in Section 14.4 and (d) waives any claim or defense
solely for purposes of such action or based on any alleged lack of
personal jurisdiction, improper venue or forum non conveniens or
any
similar basis. Nothing in this Section shall affect or impair in
any
manner or to any extent the right of any Party to commence legal
proceedings or otherwise proceed against any other Party in any
jurisdiction or to serve process in any manner permitted by
law.
|
| 14.6 |
Entire
Agreement; Amendments.
This
Agreement, including the Exhibits and Schedules hereto, constitutes
the
entire agreement among the Parties hereto with respect to the transactions
provided for herein and as stated herein and in the agreements,
instruments and documents executed and to be executed and delivered
in
connection herewith, contains all of the agreements between the Parties
hereto. There are no verbal agreements or understandings between
the
Parties hereto not reflected in this Agreement. This Agreement may
not be
amended or modified in any respect except by written instrument executed
by each of the Parties hereto.
|
| 14.7 |
Counterparts.
This
Agreement may be executed in two (2) or more counterparts, each of
which
shall be deemed to be an original and all of which together, shall
constitute the same Agreement.
|
| 14.8 |
No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of
the
Parties hereto and their permitted successors and assigns and nothing
herein, express or implied, is intended to or shall confer upon any
person
or entity, any legal or equitable
rights, benefits or remedies.
|
| 14.9 |
Assignment.
Neither
Party may assign its rights or obligations under this Agreement without
the prior written consent of the other Party and any purported assignment
in violation hereof shall be null and void; provided,
however,
that either Party may assign its rights and obligations under this
Agreement, without the prior written consent of the other Party,
to an
Affiliate or to a successor of the assigning Party's business by
reason of
merger, sale of all or substantially all of its assets or any similar
transaction, provided
that such successor agrees in writing to be bound by this Agreement
(including, without limitation, in the case of any such event involving
ULURU, ULURU's payment obligations under Section 3). Such consent
shall
not be unreasonably withheld or delayed. Any permitted assignee shall
assume all obligations of its assignor under this Agreement (including,
without limitation, in the case of an assignment by ULURU, ULURU's
payment
obligations under Section 3). No assignment shall relieve either
Party of
its responsibility for the performance of any obligation that accrued
prior to the effective date of such assignment hereunder. ULURU agrees
that in connection with any merger or sale of all or substantially
all of
the assets of ULURU such transaction shall not be consummated unless
and
until the other party(ies) to such transaction agree in writing to
assume
all of the obligations of ULURU under this Agreement and each agreement
contemplated hereby.
|
| 14.10 |
Severability.
If
any term or other provision of this Agreement is invalid, illegal
or
incapable of being enforced by any law or public policy, all other
terms
and provisions of this Agreement shall nevertheless remain in full
force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse
to
any Party. Upon such determination that any term or other provision
is
invalid, illegal or incapable of being enforced, the Parties hereto
shall
negotiate in good faith to modify this Agreement so as to effect
the
original intent of the Parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated
as originally contemplated to the greatest extent
possible.
|
| 14.11 |
WAIVER
OF JURY TRIAL.
EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE
ANCILLARY AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY
OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM THEREIN.
|
| 14.12 |
No
Waiver of Remedies.
No
delay on the part of ULURU or Access in exercising any right, power
or
privilege hereunder shall operate as a waiver thereof, nor shall
any
waiver on the part of either ULURU or Access of any right, power
or
privilege hereunder nor shall any single or partial exercise of any
right,
power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
The waiver of any terms or conditions of this Agreement shall not
be
construed as a waiver of any subsequent breach or a subsequent waiver
of
the same term or condition, or waiver of any other term or condition,
of
this Agreement. The failure of any Party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
|
[The
remainder of this page is left blank intentionally.]
1 Schedule
2.2 to list deviations from the pre(Access)/post(ULURU)-Closing allocation
of
Liabilities, as mutually agreed to by the Parties.
2 Schedule
5.2 to indicate certain contracts that may not be assignable and that
any
assignment of same could give rise to a right of a party to terminate
or xxx for
damages.
-
-
BUSDOCS/1492302.16
IN
WITNESS WHEREOF, this Agreement has been executed by the Parties hereto as
of
the date first above written.
ACCESS
PHARMACEUTICALS, INC.
By /s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: Acting
CEO
ULURU,
INC.
By /s/
Xxxxx X. Xxxx
Name: Xxxxx
X.
Xxxx
Title: President
and CEO
/s/
Xxxxx X. Xxxx
Xxxxx
X.
Xxxx, individually solely with respect
to
Sections 5, 8.4, 9.1 and 11.1
[Signature
Page to Asset Sale Agreement]
BUSDOCS/1492302.16
Exhibits
Exhibit
A Xxxx
of
Sale and Assignment Agreement
Exhibit
B License
Agreement
Exhibit
C Product
Patents Assignment
Exhibit
D Product
Trademarks Assignment
Exhibit
E Premises
Agreement
Exhibit
F Takeda
License Agreement
Exhibit
G Allocation
of Purchase Price
BUSDOCS/1492302.16
--
Exhibit
A
Xxxx
of Sale and Assignment Agreement
BUSDOCS/1492302.16
--
Exhibit
B
License
Agreement
BUSDOCS/1492302.16
--
Exhibit
C
Product
Patents Assignment
BUSDOCS/1492302.16
--
Exhibit
D
Product
Trademarks Assignment
BUSDOCS/1492302.16
--
Exhibit
E
Premises
Agreement
BUSDOCS/1492302.16
--
Exhibit
F
Takeda
License Agreement
BUSDOCS/1492302.16
--
Exhibit
G
Allocation
of Purchase Price
[insert]
BUSDOCS/1504906.3
Schedules
Schedule
1.1(w) Inventory
Schedule
1.1(dd) Marketing
Materials
Schedule
1.1(ll) Product
Patents
Schedule
1.1(pp) Product
Trademarks
Schedule
2.1(a)(viii) Equipment
Etc.
Schedule
2.1(a)(ix) Contracts
Etc.
Schedule
2.2 Liabilities
Schedule
5.2 Authorization
and Validity of Agreement
Schedule
5.3 Title
to
Purchased Assets
Schedule
5.6 Intellectual
Property Rights
Schedule
5.8 Government
Approvals
Schedule
6.5 Hired
Employees' Bonuses and Restricted Stock
Schedule
8.2 Transition
Team
Schedule
8.8 Hired
Employees
BUSDOCS/1504906.3
Schedule
1.1(w)
Inventory
Inventory
at Integrated Comercial Systems (ICS)
Aphthasol®
tubes/ cases for sale at September 30, 2005 8,688
tubes / 724 cases
Cost
$22.40 case - $16,217.60
BUSDOCS/1504906.3
Schedule
1.1(dd)
Marketing
Materials
-None-
BUSDOCS/1504906.3
Schedule
1.1(ll)
Product
Patents
See
Exhibit A to Patent Assignment Agreement
BUSDOCS/1504906.3
Schedule
1.1(pp)
Product
Trademarks
Aphthasol®
OraDisc™
The
trademark registrations may have lapsed in some jurisdictions.
BUSDOCS/1504906.3
Schedule
2.1(a)(viii)
Equipment
Etc.
Equipment
List Suite 176
Computers,
monitors, keyboards, mouse and power strips at the following desks. Plus
associated chairs, desks, file cabinets, bookshelves and white/cork boards
at
those desks (note not all desk areas are complete with all of the above -
the
intent is for Purchaser to have all-non-permanent furniture and equipment
in
those desk areas). Purchaser also keeps Dell leases associated with
computers.
SECTION
00 Xxxx
Xx.
Xxxx
XXXXXXX
00 Xxx
Xxxxxxx
SECTION
14 Xxxxxx
Xxxxx
SECTION
00 Xxxxx
Xxxxxx
XXXXXXX
00 Xxxxxx
Xxxxxxxx
SECTION
17 Xxx
Xxxxxxxx
SECTION
18 Xxx
Xxxx
SECTION
19 Xxxxx
Xxxxxxx
SECTION
20 Xxxxxx
Xxxxxxxx
SECTION
21 Xxxxxx
Daily
SECTION
22 Xxxx
Xxxxxx
SECTION
23 Xxxxx
Xxxxxxx
SECTION
24 Xxx
Xxxxxx
One
printer the hallway HP 4050 laser printer
Small
Xerox copier and lease for copier.
Xxx
Xxxx’x printer
Conference
room furniture
Leather
chairs in big conference room.
Table/chairs
in small front conference room
Credenza
in small front conference room
All
large
white boards from Xxxx St. John’s lab and small conference room.
Digital
light microscopes stored in QC lab.
One
flammable cabinet from back warehouse area one flammable cabinet stays with
Access.
Machine
shop components
Drill
Press
Router
Table and Router
Shelves
and stored supplies from back warehouse area
Specific
Instruments all with associated control systems (computers, printers, software
packages, etc.) and other equipment.
| · |
Hoods
and benches (four hoods) in Platinum
Laboratory
|
------
A
walk-in hood
bench U
----- ------
A
bench
hoods/sink A
-----
------
U
hoods
bench U
-----
------ A bench
hoods/sink U
-----
------ A hoods
bench A
-----
------ U bench
X.
Xxxxxxxxx Balance # QC 65
X.
Xxxxx
Dishwasher G 7783
D.
VWR
Explosion Proof Refrigerator ZO2D
SECTION
4 Hewlett
Packard HPLC + Computer and printer
4.1 Model
79855
4.2 Serial
3406A02
SECTION
5 Virtis
Lyophilizer
5.1 Model
279398
5.2 Serial
207042
SECTION
6 Malvern
Zetasizer Nano + computer and printer+
Malvern
lease
6.1 Model
ZEN
3600
6.2 Serial
MAL500309
SECTION
7 Agilent
GC-MS+
Agilent
lease
7.1 Model
5973
7.2 Serial
US21844096
SECTION
8 Varian
UV-Visible + computer and printer
8.1
8.2 Serial
EL05023374
SECTION
9 Hermle
Centrifuge
9.1 Model
Z360KSerial
14900072
SECTION
10 Xxxxxxx
Optima Ultra Centrifuge
10.1 Model
TLX120
10.2 Serial
XTE101
SECTION
11 Lab
Line
Orbital Shaker water bath
11.1 Model
3540
11.2 Serial
1094-0038
SECTION
12 Second
Hermle Centrifuge
12.1 Model
Z360K
12.2 Serial
14900291
SECTION
13 Xxxxxxx
Ultracentrifuge
13.1 Model
U270
13.2 Serial
285856
SECTION
14 Precision
Sceintific Water bath
14.1 Model
R113
14.2 Serial
10AA-1
XXXXXXX
00 Xxxxx
Xxxxx bath
15.1 Model
15.2 Serial
K20001
SECTION
16 Xxxxxxx
Toledo mg balance
16.1 Model
16.2 Serial
0000000000
SECTION
17 Sartorius
0.1 mg balance
17.1 Model
BP211D
17.2 Serial
80504705
(b) Include
granite mounting block for balance
SECTION
18 Fridge/Freezer-West
Lab near dishwashing
18.1 Magic
chef (Access keeps the fridge in west lab not connected to the water
supply)
XXXXXXX
00 Xxxxx
Xxxxxxx Circulator
19.1 Model
WK
1200
19.2 Serial
Z19003
SECTION
20 Buchi
Rotary Evaporator
20.1 Model
20.2 Serial
41337020011
SECTION
21 Precision
Vacuum Pump
21.1 Model
69076
21.2 Serial
10AX-10
SECTION
22 Gem
Vacuum Pump
22.1 Gem
Direct
22.2 0000000000
SECTION
23 Forma
Scientific incubator oven
23.1 West
Lab
23.2 Near
Xxxxxx’x lab
SECTION
24 Fridge/Freezer
24.1 West
Lab
near incubator
24.2 Whirlpool
SECTION
25 Forced
Air Oven
25.1 0000
XX
00.0 Serial
0900294
SECTION
26 Forma
scientific -80 degree freezer
26.1
26.2 Serial
83031-391
SECTION
27 Virtis
Lyophilizer (Purchaser keeps the one in the warehouse, Access keeps the one
in
the Platinum wash area)
27.1 Freezemobile
SECTION
28 Sterigard
Hoods (Xxxxxx and Lilli’s labs)
28.1 Serial
19669
28.2 Serial
21433
SECTION
29 Masterflex
TFF Pump
29.1 Model
77601-10
29.2 Serial
7
549-32
SECTION
30 Whiteboard
in West Lab
SECTION
31 VWR
Water
Bath-Kevin’s Lab
31.1 Model
1229
31.2 Serial
0801103
SECTION
32 Xxxxx
Chiller
32.1 Model
001-6506
32.2 Serial
892-00
SECTION
33 Espec
Stability Oven-Kevin’s Lab
SECTION
34 Buchi
Rotary Evaporator
34.1 Model
RE120
34.2 Serial
970-716
SECTION
35 Hyvac
Vacuum Pump
35.1 Model
90700-001
35.2 Serial
049099
SECTION
36 Hyvac
Vacuum Pump 2
36.1 Serial
316-P759
SECTION
37 Labcoater-Xxxxxx’x
lab
SECTION
38 Viscometer-Kevin’s
lab
SECTION
39 Xxxxxxx
Centrifuge
39.1 Model
GS15R
39.2 Serial
B94E49
All
laboratory benches from West Lab
All
shelving from West Lab
All
consumable glassware from West lab
| 1. |
Beakers
|
| 2. |
Lab
Bottles
|
| 3. |
Volumetric
glassware
|
| 4. |
Flasks
|
| 5. |
Cylinders
|
| 6. |
Synthetic
glassware
|
| a. |
Round
bottom flasks
|
| b. |
Condensers
|
| c. |
Assorted
synthetic glassware
|
| 7. |
Stoppers
and other assorted glassware
|
| 8. |
Stir
bars
|
Rinse
sink from Xxxx Xxxxxx’x former lab
Rinse
sink and drying rack from West Lab
Stir
and
hot plates from West lab
| 1. |
9
stir plates
|
| 2. |
11
stir/hot plates
|
| 3. |
4
digital controlled stir/hot plates
|
| 4. |
One
refrigerated plate
|
| 5. |
Two
sand bath units
|
Three
vortex plates
Two
shaker pads
One
orbital shaker pad
One
rocking shaker
Three
pH
meters with all assorted probes
Three
fractionating columns for size exclusion chromatography
Waste
containers for all instruments (except for ICP) and hoods in West
Lab
14
Dessicators
All
consumable chemical supplies in West Lab not specifically related to AP5346
or
AP5280
Synthesis
Power
strips for all equipment
Hand
tools, jacks, dies and cutting systems.
Water
system in West Lab.
Equipment
List - Suite 129 - QC Lab
|
ID
#
|
Instrument
|
Manufacturer
|
Model
|
Serial
#
|
|
|
BAL
01
|
Balance
|
Xxxxxxx
Toledo
|
PG2002-SDR
|
1122030253
|
|
|
BAL
00
|
Xxxxxxx
|
Xxxxxxx
Xxxxxx
|
XX000
|
1121501595
|
|
|
CM01
|
Conductivity
Meter
|
Eutech
Inst.
|
CON200
|
191974
|
|
|
DISS
01
|
Dissolution
System
|
Distek
|
Premiere
5100
|
5150797
|
|
|
EC
01
|
Environmental
Chamber
|
B-M-A,
Inc.
|
CL-10
|
2491
|
|
|
EC
02
|
Environmental
Chamber
|
Espec
|
LHU-112M-U
|
2672963
|
|
|
EC
03
|
Environmental
Chamber
|
Espec
|
LHU-113
|
1012001657
|
|
|
LC
01
|
HPLC
Autosampler
|
Agilent
|
G1313A
|
DE23920037
|
+lease
|
|
LC
01
|
HPLC
Column Heater
|
Agilent
|
G1316A
|
DE23929231
|
|
|
LC
01
|
HPLC
Computer
|
Compaq
|
G2170AA/D515
|
6X29-KN9X-Y017
|
|
|
LC
01
|
HPLC
Degasser
|
Agilent
|
G1379A
|
JP13203942
|
|
|
LC
01
|
HPLC
Detector
|
Agilent
|
G1315B
|
DE23916848
|
|
|
LC
01
|
HPLC
Pump
|
Agilent
|
G1311A
|
DE23920043
|
|
|
LOG01
|
Data
Logger
|
Veriteq
|
SP-1000
|
02111023
|
|
|
LOG02
|
Data
Logger
|
Veriteq
|
VL-2000
|
02112016
|
|
|
LOG03
|
Data
Logger
|
Veriteq
|
VL-2000
|
03062087
|
|
|
LOG04
|
Data
Logger
|
Veriteq
|
VL-2000
|
03062088
|
|
|
LOG05
|
Data
Logger
|
Xxxxxxx
|
TX120
|
04030188
|
|
|
LOG06
|
Data
Logger
|
Xxxxxxx
|
SP150
|
4191461
|
|
|
LOG07
|
Data
Logger
|
Veriteq
|
VL1000
|
04071186
|
|
|
MDC
01
|
Manual
Diffusion System
|
Xxxxxx
Research
|
40C/1130S
|
1003-1447
|
|
|
MDC
01
|
Water
Bath for Diffusion System
|
VWR
|
|
G22469
|
|
|
MICROM01
|
Micrometer
|
Mitutoyo
|
103-137
M110-25
|
3038878
|
|
|
OVEN01
|
Oven
|
VWR
|
1310
|
1000303
|
|
|
OVEN02
|
Oven
|
Lab-Line
|
000
|
0000-0000
|
|
|
pH
01
|
pH/Temp
Meter
|
Xxxxxxx
|
340
|
3922
|
|
|
Pipet
00
|
000-0000µL
Pipet
|
VWR
|
NA
|
341460291
|
|
|
Pipet
02
|
1-5mL
Pipet
|
VWR
|
NA
|
238481718
|
|
|
PRB01
|
Conductivity
Cell Probe
|
Hirschmann
|
NA
|
DD04
|
|
|
PRI
01
|
Printer
|
HP
|
C8049A
|
USLNH36053
|
|
|
PWS01
|
Milli-Q
PW System
|
Millipore
|
A10
|
F4HN79653A
|
|
|
REFRI
01
|
Refrigerator
|
Kenmore
|
253.6072101
|
WA33600224
|
|
|
SONI
01
|
Sonicator
|
Branson
|
2510R-MT
|
RLA010379362D
|
|
|
SONI
02
|
Sonicator
|
Branson
|
8510R-MT
|
RPA020381017E
|
|
|
STIR
01
|
Stir
Plate
|
IKA
|
R015PSI
|
0.254128
|
|
|
STIR
02
|
Stir
Plate
|
VWR
|
Dylastir
941006
|
5332
|
|
|
STIR
03
|
Stirrer/Hot
Plate
|
Corning
|
PC-620
|
440939
|
|
|
TACH01
|
Tachometer
|
Compact
|
A2102U
|
2007254
|
|
|
TEMP01
|
Thermometer
|
XX
|
XX
|
XX
|
|
|
XXXX00
|
Xxxxxxxxxxx
|
X-X
|
XX
|
X00000
|
|
|
TEMP03
|
Thermometer
|
H-B
|
33600-028
|
HB213051
|
|
|
TEMP04
|
Thermometer
|
H-B
|
33600-032
|
HB206928
|
|
|
TIME01
|
Timer
|
VWR
|
|
221446050
|
|
|
TIME02
|
Timer
|
Xxxxxx
|
00-000-00
|
41470756
|
|
|
VIS
01
|
Viscometer
|
Brookfield
|
DV-II+
|
RT72449
|
|
|
VIS
01
|
Viscometer
Stand
|
Brookfield
|
Helipath
Stand
|
35681
|
|
|
WOB01
|
Shaft
Wobble Meter
|
Distek
|
0500-0273
|
HT1424
|
|
|
|
|
|
|
|
|
|
HPLC
Columns, Flammables Storage Cabinet, Glassware, Equipment,
Tools
|
|
||||
|
Two
(2) Nikon Microscopes with Imaging Equipment and Mac 6100
Computer
|
|
||||
BUSDOCS/1504906.3
Schedule
2.1(a)(ix)
Contracts
Etc.
Takeda
License Agreement - not assignable by its terms.
BioMed
Science Agreement - not assignable without consent.
Strakan
Agreement - not assignable without consent.
Any
other
contract that does not allow assignment by consent of the third
party.
BUSDOCS/1504906.3
Schedule
2.2
Liabilities
ULURU
shall pay any PDUFA fees (the "PDUFA
Fees")
payable by Access to the FDA on September 30, 2005.
Buyer
will assume obligations under the leasing obligations for the equipment
acquired.
Dell
Financial Services - computers
Agilent
Technologies - HPLC and GC-MS
Malvern
Instruments - Zetasizer Nano
Xerox
Corp. - copier
The
following agreements have possible repayments of previous amounts received
by
Access (Liabilities to Access) and possible unpaid receivables of amounts
not
yet received by Access (Receivables due Access). Following is a list of
Liabilities to Access and Receivables due Access after the sale of assets
to
Uluru.
| · |
Laboratories
Xx. Xxxxxx SA
|
| o |
$150,000
has been received by Access for signing of the Licensing Agreement
- there
is a possible a $90,000 liability that may have to be returned to
Esteve
if approval is not received. Access
Liability
|
| o |
$20,000
is due Access from Esteve for Technical Approval in Greece and Portugal.
Access Asset
|
| · |
Meda,
AB
|
| o |
$175,000
has been received by Access for signing of the Licensing Agreement
- there
is a possible a $52,500 liability that may have to be returned to
Meda if
approval is not received. Access
Liability
|
| o |
$50,000
is due Access from Meda for European Community Approval in Finland
and
Sweden. Access Asset
|
| · |
Zambon
Group SpA
|
| o |
E875,000
has been received by Access for signing of the Licensing Agreement
- there
is a possible a E360,000 liability that may have to be returned to
Zambon
if approval is not received. Access
Liability
|
| o |
E355,000
is due Access from Zambon for Marketing Approval in Holland and Germany.
Access Asset
|
Discus
$500,000 up front royalty - Access Liability
Zambon
Fine Chemicals $135,000 - Access Liability
FDA
receivable $573,500 - Access Asset
Epitan
n/a
GSK
n/a
Mipharm
n/a
OrientEurophamra
n/a
Palidin
n/a
Xxxxxxx
& Xxxxxx n/a
Strakan
n/a
Wyeth
n/a
Patent
annuities with a due date, exclusive of grace period, due before close of
asset
sale are Access Liability. After sale date is Uluru Liability.
ProStrakan
receivable for signing Zindaclin license payment for Spain and Italy. Access
Asset.
ProStrakan
receivable for royalty for the third quarter 2005. Access Asset.
BUSDOCS/1504906.3
Schedule
5.2
Authorization
and Validity of Agreement
Takeda
License Agreement
Strakan
License Agreement
Discus
License Agreement
Wyeth
License Agreement
Biomed
Sciences Agreement
Any
other
contract not assignable by its terms.
BUSDOCS/1504906.3
Schedule
5.3
Title
to Purchased Assets
Pursuant
to the transactions contemplated by the Securities Purchase Agreement, dated
as
of March 30, 2005, by and among Access, Cornell Capital Partners, LP
("Cornell")
and
Highgate House Funds, Ltd. ("Highgate"),
and
the 7% Secured Convertible Debentures issued by Access in connection therewith,
Access granted each of Cornell and Highgate a security interest in all of
the
Company's assets.
Pursuant
to the transactions contemplated by the Separation Agreement, Access granted
Xxxxx X. Xxxx a security interest in all of the Company's assets.
Certain
equipment is covered by leases and such equipment is so encumbered.
BUSDOCS/1504906.3
Schedule
5.6
Intellectual
Property Rights
No
Encumbrances
BUSDOCS/1504906.3
Schedule
5.8
Government
Approvals
Both
Access Pharmaceuticals, Inc. and Uluru, Inc. will file letters with the FDA
regarding the change in ownership of the outstanding NDAs.
BUSDOCS/1504906.3
Schedule
6.5
Hired
Employees' Bonuses and Restricted Stock
|
Hired
Employee
|
Bonus
|
Number
of Shares Underlying Options
|
Number
of Unvested Shares of Restricted Common Stock
|
|
|
Unvested
Options
|
Vested
Options
|
|||
|
E.
Xxxxxx Xxxxxxxx, Xx.
|
$3,325.95
|
6,392
|
27,208
|
2,235
|
|
Demit
X. Xxxxxx
|
$1,159.20
|
4,592
|
4,708
|
681
|
|
Xxxx
X. Xxxxxxx
|
$.00
|
5,000
|
||
|
Xxxxxx
X Xxxxx
|
$2,901.00
|
6,267
|
18,833
|
1,890
|
|
Xxxxxx
X. Xxxx
|
$10,874.40
|
20,883
|
67,917
|
6,344
|
|
Xxxx
X. St Xxxx
|
$4,356.45
|
9,408
|
21,792
|
2,313
|
|
Xxxxx
X. Xxxxxx
|
$2,167.20
|
3,625
|
3,375
|
578
|
|
Xxx
Xxxxxxxx
|
$5,498.96
|
9,958
|
11,542
|
1,550
|
|
Total
|
$30,283.16
|
66,125
|
155,375
|
15,591
|
BUSDOCS/1504906.3
Schedule
8.2
Transition
Team
Xxxxxxx
X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
Xxxxx
X.
Xxxx
Xxxxxx
X.
Xxxx
BUSDOCS/1504906.3
Schedule
8.8
Hired
Employees
E.
Xxxxxx
Xxxxxxxx, Xx.
Demit
X.
Xxxxxx (effective December 16, 2005)
Xxxx
X.
Xxxxxxx
Xxxxxx
X
Xxxxx
Xxxxxx
X.
Xxxx
Xxxx
X.
St Xxxx
Xxxxx
X.
Xxxxxx
Xxx
Xxxxxxxx
