AGREEMENT
Exhibit
10.40
AGREEMENT
Reference
is made to that certain (i) Securities Purchase Agreement (the “Securities
Purchase Agreement”),
(ii)
Security Agreement, (iii) Collateral Assignment, (iv) Guaranty Agreement (the
“October
Guaranty Agreement”),
(v)
Guarantor Security Agreement, (vi) Escrow Agreement, (vii) Escrow Shares
Agreement, (viii) Investor Registration Rights Agreement (the “October
Investor Registration Rights Agreement”)
and
(ix) Irrevocable Transfer Agent Instructions, each dated as of October 12,
2005,
and each by and among Uluru Inc. (f/k/a Oxford Ventures, Inc.), a Nevada
corporation (the “Company”),
or
Uluru Delaware Inc. (f/k/a Uluru Inc. and the successor by merger with Uluru
Acquisition Corp.), a Delaware corporation (the “Subsidiary”),
and
Highgate House Funds, Ltd (whose interests were subsequently transferred to
Cornell Capital Partners, LP), Prenox, LLC and the various other parties, if
any, thereto. Capitalized terms used herein and not otherwise defined are
defined in the Securities Purchase Agreement.
WHEREAS,
pursuant to the Securities Purchase Agreement, the Second Closing was to occur
within five (5) days after the registration statement to be filed pursuant
to
the October Investor Registration Rights Agreement was declared effective and,
at the Second Closing, the Buyers would fund an additional $2,000,000 from
Escrow for the purchase of additional Convertible Debentures in the amounts
set
forth on Schedule I to the Securities Purchase Agreement; and
WHEREAS,
the parties desire to amend the Securities Purchase Agreement to provide that:
(i) the Second Closing shall occur on the date hereof, notwithstanding the
fact
that the registration statement contemplated by the October Investor
Registration Rights Agreement has yet to be filed with the SEC; (ii) at the
Second Closing, Prenox, LLC shall purchase $3,000,000 of Convertible Debentures
and warrants to purchase shares of Common Stock (the “Second
Closing Warrants”),
in
the form attached hereto as Exhibit A, and Cornell Capital Partners, LP shall
not purchase any securities of the Company; and (iii) Schedule Ito the
Securities Purchase Agreement shall be amended to reflect the transactions
contemplated by the Second Closing; and WHEREAS, in connection with the
transactions contemplated by the Second Closing, (i) the Convertible Debentures
previously issued to Prenox, LLC and Highgate House Funds, Ltd. shall be amended
and restated in the form attached hereto as Exhibits B-1 and B-2, respectively,
(ii) the October Guaranty Agreement shall be amended and restated in the form
attached hereto as Exhibit C (the “Amended
and Restated Guaranty Agreement”)
and
(iii) the October Investor Registration Rights Agreement shall be amended and
restated in the form attached hereto as Exhibit D (the “Amended
and Restated Investor Registration Rights Agreement”).
Now
therefore, in consideration of the foregoing and other consideration, the
sufficiency of which is hereby acknowledged the parties hereto agree as
follows:
| 1. |
The
Second Closing shall occur on the date hereof and, at the Second Closing,
Prenox, LLC shall wire $3,000,000 (net of the fee of $300,000 due and
owing to Prenox, LLC specified in paragraph 3 below and the $675,000
of
accrued but unpaid interest due and owing to Prenox, LLC as specified
in
paragraph 3 below) to an account designated in writing by the Company
upon
receipt of (i) an originally executed Amended and Restated Convertible
Debenture, in the form attached hereto as Exhibit B-i, in the aggregate
principal amount of $13,000,000, (ii) the originally executed Second
Closing Warrants, (iii) a duly executed copy of the Amended and Restated
Investor Registration Rights Agreement, and (iv) a duly executed copy
of
the Amended and Restated Guaranty
Agreement.
|
| 2. |
Schedule
I to the Securities Purchase Agreement is hereby amended so that the
column “Second Closing” under (A) “Amount of Subscription” shall read “0”
opposite the name of Highgate House Funds, Ltd. and “$3,000,000” opposite
the name of Prenox, LLC and (B) “Number of Warrants” shall read “0”
opposite the name of Highgate House Funds, Ltd. and “1,125,000” opposite
the name of Prenox, LLC.
|
| 3. |
The
use of proceeds from the Second Closing shall be used to repay accrued
interest due and owing through and including August 31, 2006 to Prenox,
LLC and Cornell Capital Partners, LP under the Convertible Debentures
issued at the First Closing in the amount of $675,000 and $265,616,
respectively, to pay Prenox LLC’s fee of $300,000 as set forth in Section
4(g) of the Securities Purchase Agreement and the remaining balance
for
working capital purposes. No proceeds from the Second Closing shall
be
used to pay any amounts that may now or hereafter be due and owing
to
Access Pharmaceuticals, Inc. or pursuant to the Asset Sale Agreement,
dated as of October 11, 2005, between the Company and Access
Pharmaceuticals, Inc.
|
| 4. |
The
Company hereby represents and warrants to Prenox, LLC that the
representations and warranties set forth in Section 3 to the Securities
Purchase Agreement are true and correct in all material respects as
of the
date hereof (except to the extent that any of such representations
and
warranties is already qualified as to materiality in Section 3 above,
in
which case, such representations and warranties shall be true and correct
without further qualification); it being acknowledged and agreed that
for
purposes of the foregoing, the term (i) “Convertible Debentures”, as
referred to in the Securities Purchase Agreement, shall be deemed to
refer
to the Amended and Restated Convertible Debentures being issued at
the
Second Closing, (ii) “Warrants”, as referred to in the Securities Purchase
Agreement, shall be deemed to refer to the warrants to purchase Common
Stock issued in the First Closing and the Second Closing Warrants,
and
(iii) the “Investor Registration Rights Agreement,” as referred to in the
Securities Purchase Agreement, shall be deemed to refer to the Amended
and
Restated Investor Registration Rights
Agreement.
|
| 5. |
The
Company and the Subsidiary hereby reaffirm the prior grant of the security
interest in all of the assets and property of (i) the Company as set
forth
on Exhibit A to the Security Agreement and (ii) the Subsidiary as set
forth on Exhibit A to the Guarantor Security
Agreement.
|
| 6. |
The
Company, Prenox, LLC and Cornell Capital Partners, LP (as transferee
of
the interests of Highgate House Funds, Ltd.) hereby authorize and instruct
the Escrow Agent to release from escrow any funds presently held by
the
Escrow Agent relating to the Second Closing and to deliver such funds
to
Prenox, LLC and Cornell Capital Partners, LP, as applicable, in the
amount
deposited by such party with the Escrow Agent with respect to the Second
Closing.
|
| 7. |
The
parties hereto hereby approve and consent to the consummation of the
Second Closing on the terms set forth herein, including the issuance
of
the Amended and Restated Convertible Debentures and the Second Closing
Warrants.
|
| 8. |
Except
as amended by the terms of this Agreement, the Securities Purchase
Agreement and the other transaction documents executed in connection
with
the First Closing shall remain in full force and
effect.
|
| 9. |
All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal
laws of
the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York
or any
other jurisdictions) that would cause the application of the laws of
any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal
courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding
is
brought in an inconvenient forum or that the venue of such suit, action
or
proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such
suit,
action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that
such
service shall constitute good and sufficient service of process and
notice
thereof. Nothing contained herein shall be deemed to limit in any way
any
right to serve process in any manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
|
IN
WITNESS WHEREOF,
the
parties hereto have caused this Reaffirmation to be executed by an officer
thereunto duly authorized, as of the date first above written.
ULURU
DELAWARE INC.,
a
Delaware
corporation
By:
/s/
Xxxxx X. Xxxx
Name:
Xxxxx
X. Xxxx
Title:
President & CEO
ULURU
INC.,
a
Nevada corporation
By:
/s/
Xxxxx X. Xxxx
Name:
Xxxxx
X. Xxxx
Title:
President & CEO
