**Exhibit 10.25**

 

*Execution Copy*

 

# **ASSETSALE AGREEMENT**

 

THIS ASSET SALE AGREEMENT(the “**Agreement**”), is made as ofthe 12th day of October, 2005, by and between ULURU, Inc., a Delawarecorporation (“**ULURU**”), and AccessPharmaceuticals, Inc., a Delaware corporation (“**Access**”). ULURU and Access are sometimes individually referredto herein as the “**Party**” andcollectively as the “**Parties**.”

 

**BACKGROUND**

** **

A.            Access has certain right, title and interest in and tothe Takeda License Agreement (as hereinafter defined) and the Purchased Assets(as hereinafter defined), which includes, without limitation, certain tangibleand intangible property relating to the manufacture, use, sale and distributionof the Products (as hereinafter defined).

 

B.            ULURU desires to purchase and assume, and Access desiresto sell and assign, the Purchased Assets and the Takeda License Agreement,respectively, pursuant to the terms and conditions of this Agreement.

 

NOW, THEREFORE, inconsideration of the promises and the mutual covenants, agreements, guaranteesand representations herein contained and intending to be legally bound, ULURUand Access agree as follows:

 

# **SECTION 1DEFINITIONS**

 

**1.1          Definitions.**

 

Where used in thisAgreement the following words or phrases shall have the meanings set forthbelow:

 

(a)                                  “**Access**” shall have the meaning set forth inthe Preamble.

 

(b)           “**AccessTrade Dress**” means all trade dress relating to the Purchased Assetsother than trade dress or marks relating to Access or its logo.

 

(c)           “**AccessTrademarks**” means (i) the Access name or any variations thereofor the names of any Access Affiliates or any variations thereof and (ii) allTrademarks, other than the Product Trademarks, currently used by Access or itsAffiliates in connection with the manufacture, marketing, sale and distributionof their respective products.

 

(d)           “**AdverseExperience(s)**” means any noxious, pathological or unintended changein anatomical, physiological or metabolic function as indicated by physicalsigns, 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 causallyrelated to the Products. This includes an exacerbation of a pre-existing

 

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condition, intercurrentillness, drug interaction, significant worsening of a disease underinvestigation or treatment, and significant failure of expected pharmacologicalor 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 orde facto, which directly or indirectly owns, is owned by or is under commonownership 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 tobe owned by a foreign corporation in a particular jurisdiction) having thepower 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. orforeign governmental regulatory authority responsible for granting approvalsand clearance for manufacturing, marketing and sale of any Product.

 

(g)           “**Agreement**”means this Asset Sale Agreement, together with the Schedules and Exhibitshereto, and any instrument amending this Agreement in accordance with Section14.6; and the expression “Section” followed by a number refers to the specifiedSection of this Agreement.

 

(h)           “**Amlexanox**”means the chemical compound of the formula2–amino–7–isopropyl–5–oxo–5H–[1]benzopyrano–[2,3–b]–pyridine–3–carboxylic acid(also known by Takeda Code No.: AA-673).

 

(i)            “**AncillaryAgreements**” means any other agreement to be executed by ULURU and/orAccess in connection with this Agreement, including, without limitation, theBill of Sale and Assignment Agreement, the Product Patents Assignment, theProduct Trademarks Assignment and the License Agreement.

 

(j)            “**AnnualNet Sales**” means gross revenues received by ULURU and its Affiliateson the worldwide sale of the Products in any calendar year, less (i) tradediscounts actually allowed; and (ii) when borne by ULURU or its Affiliates inconnection with the sale, transportation and handling charges; sales, use andexcise taxes; import duties, tariffs or other governmental charges; and creditsfor claim or allowances, retroactive price reductions, refunds, returns, andrecalls. There shall not be any imputed gross revenue for samples, free goodsor other marketing programs whereby the Products are given away to induce salesthereof. For purposes of determining Annual Net Sales, a sale shall be deemedto have occurred when the sale is invoiced or when the applicable Product isdelivered, whichever occurs first. In the case of the transfer or sale of theProducts by ULURU to an Affiliate, or by ULURU or its Affiliate to theirrespective distributor, or subdistributor for sale by such Affiliate,distributor or subdistributor, Annual Net Sales shall be based upon the greaterof 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 countriesoutside the U.S. shall be calculated by converting to U.S. currency using theexchange

 

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rate in effect on thelast business day of each quarter as published in the Wall Street Journal.Annual Net Sales shall also include Licensee Net Sales.

 

(k)           “**AphthasolProduct**” means a topical oral paste formulation or mucoadhesive filmformulation containing Amlexanox currently approved by the FDA for use in thetreatment of aphthous ulcers.

 

(l)            “**AssumedLiabilities**” has the meaning set forth in Section 2.2(a).

 

(m)          “**Billof Sale and Assignment Agreement**” means the bill of sale to beexecuted by Access and delivered to ULURU at Closing, substantially in the formof **Exhibit A** attached hereto.

 

(n)           “**Closing**”and “**Closing Date**” have themeaning set forth in Section 13.1.

 

(o)           “**CumulativeNet Sales**” means gross revenues received by ULURU and its Affiliateson the worldwide sale of the Products, less (i) trade discounts actuallyallowed; and (ii) when borne by ULURU or its Affiliates in connection with thesale, transportation and handling charges; sales, use and excise taxes; importduties, tariffs or other governmental charges; and credits for claim orallowances, retroactive price reductions, refunds, returns, and recalls. Thereshall not be any imputed gross revenue for samples, free goods or othermarketing programs whereby the Products are given away to induce sales thereof.For purposes of determining Cumulative Net Sales, a sale shall be deemed tohave occurred when the sale is invoiced or when the applicable Product isdelivered, whichever occurs first. In the case of the transfer or sale of theProducts by ULURU to an Affiliate, or by ULURU or its Affiliate to theirrespective distributor, or subdistributor for sale by such Affiliate,distributor or subdistributor, Cumulative Net Sales shall be based upon thegreater of the total invoice price charged by ULURU to such Affiliate,distributor, subdistributor or the total invoice price charged by suchAffiliate, distributor or subdistributor to its customers. Cumulative Net Salesfor 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 eachquarter as published in the Wall Street Journal. Cumulative Net Salesshall also include Licensee Net Sales.

 

(p)           “**DentalProduct**” means [a product developed for use in the oral cavity orimplanted in the oral cavity including implantation in teeth utilizing theLicensed Technology].

 

(q)           “**Encumbrance**”has the meaning set forth in Section 5.3.

 

(r)            “**ExcludedAssets**” shall mean all assets of Access other than the PurchasedAssets and the Assumed Liabilities and any assets or contracts that by theirterms are not assignable.

 

(s)           “**ExcludedIntellectual 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.

 

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(u)           “**FinishedGoods**” means any Product packaged in sample and commercial sizes andready for distribution to the ultimate customer.

 

(v)           “**IntellectualProperty**” means all (i) Patents and U.S. and other registereddesigns; (ii) U.S. and other mask works and copyrights in works ofauthorship of any type, including, but not limited to, computer software andindustrial designs, registrations and applications for registration thereof;(iii) Trademarks and trade dress; (iv) trade secrets, know-how andother confidential or proprietary technical, business and other information,and all rights thereto in any and all jurisdictions, to limit the use ordisclosure thereof; (v) rights to obtain and file for patents andregistrations thereof; and (vi) rights to sue and recover damages orobtain injunctive relief for infringement, dilution, misappropriation,violation or breach thereof.

 

(w)          “**Inventory**”means Access’s inventory of Finished Goods, an electronic accounting of whichis 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 underany law, action or governmental order and those arising under any contract,agreement, arrangement, commitment or undertaking, or otherwise. For thepurposes of this definition “Claim” shall mean any action (including, withoutlimitation, any proceedings to establish insurance coverage), claim, suit,arbitration or governmental, administrative, or other proceeding orinvestigation or judgment or equitable relief.

 

(y)           “**LicenseAgreement**” means that certain License Agreement, substantially inthe form of **Exhibit B** attachedhereto, 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 LicensedTechnology on the terms and conditions set forth therein.

 

(z)            “**LicensedTechnology**” means Access’s nanoparticle aggregate technology, towhich 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 itsAffiliates for the purpose of selling or distributing any Product.

 

(bb)         “**LicenseeNet Sales**” means gross revenues received by a Licensee on the saleof any Product as requested in the applicable license agreements as reported toAccess or ULURU. There shall not be any imputed gross revenue for samples, freegoods or other marketing programs whereby any Product is given away to inducesales thereof. For purposes of determining Licensee Net Sales, a sale shall bedeemed to have occurred when the sale is invoiced or when a Product isdelivered, whichever occurs first. In the case of the transfer or sale of a Productby the Licensee to an Affiliate, distributor or subdistributor of the Licenseefor sales by such Affiliate, distributor or subdistributor, Licensee Net Salesshall be based upon the greater of the total invoice price charged by theLicensee to such Affiliate, distributor or subdistributor or the total invoiceprice charged by such Affiliate, distributor or subdistributor to itscustomers. Licensee Net Sales for countries outside the U.S. shall be calculatedby converting to U.S.

 

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currency using theexchange rate in effect on the last business day of each month as published inthe Wall Street Journal.

 

(cc)         “**ManufacturingTechnology**” means all technology, trade secrets, research anddevelopment, formulae, know-how, inventions, discoveries, processes,compositions, test procedures, manufacturing procedures, techniques,developments, enhancements and modifications, confidential, technical, orproprietary information and knowledge not generally known to the public,whether or not patentable, commercially useful, or reducible to writing orpractice that enable Access to make, have made, use, offer for sale, sell andimport any Product that is a Purchased Asset and are owned or controlled byAccess as of the Closing Date; provided that Manufacturing Technologyshall not include any Manufacturing Technology relating to any Excluded Assets.

 

(dd)         “**MarketingMaterials**” means those marketing materials used by Access solelywith respect to the Products in the U.S. that are in existence as of theClosing Date, to the extent such materials are within the possession or controlof Access and relate to the Purchased Assets, as set forth on Schedule1.1(dd).

 

(ee)         “**MaterialAdverse Effect**” means an event, change or occurrence which,individually or together with any other event, change or occurrence, has amaterial adverse effect on the Purchased Assets taken as a whole, but shall notinclude (i) any adverse effect due to changes, after the date of thisAgreement, in conditions generally affecting (A) the healthcare industryor (B) the worldwide, U.S. or European economy as a whole, (ii) anychange or adverse effect caused by, or relating to, the announcement of thisAgreement and the transactions contemplated by this Agreement or (iii) anyadverse effect due to legal or regulatory changes effective after the date ofthis Agreement.

 

(ff)           “**MucoadhesiveProduct**” means an erodible multi-layer strip or patch which adheresto the teeth or the oral mucosa for the purpose of controlled delivery of anactive ingredient either to the surface of the teeth or oral mucosa or forrelease of the active into the oral cavity.

 

(gg)         “**NDA**”means a New Drug Application filed with the FDA pursuant to 21 C.F.R., Part314, and all supplements, amendments, revisions thereto and all correspondencebetween Access and FDA relative thereto.

 

(hh)         “**Party**”or “**Parties**” shall have themeaning set forth in the Preamble.

 

(ii)           “**Patents**”means all U.S. and foreign patents, patent applications and statutory inventionregistrations (which, for the purposes of this Agreement, shall be deemed toinclude provisional applications, invention disclosures, certificates ofinvention and applications for certificates of invention), including reissues,divisions, continuations, continuations-in-part, supplementary protectioncertificates, extensions and reexaminations thereof, all inventions disclosedtherein, all rights therein provided by international treaties and conventions,and all rights to obtain and file for patents and registrations thereto.

 

(jj)           “**PremisesAgreement**” means that certain 2600 Stemmons Freeway LicenseAgreement, to be entered into by and between Access and ULURU as of the Closing

 

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Date, substantially inthe form of **Exhibit E** attachedhereto, pursuant to which ULURU shall sublease from Access certain space at thepremises located at 2600 Stemmons Freeway, Dallas Texas.

 

(kk)         “**Products**”means, collectively, the Aphthasol Product, the Mucoadhesive Product and theResiDerm Product and any product developed or sold under the License Agreement,and any improvements or corollaries thereto.

 

(ll)           “**ProductIntellectual Property**” means (i) all Product Patents, (ii)all Product Trademarks, (iii) the Manufacturing Technology,(iv) the Product Trade Dress, (v) the Marketing Materials, (vi) thedomain name “www.Aphthasol.biz” and (vii) all other Intellectual Propertyprimarily related to the Products, but excluding (in all cases) ExcludedIntellectual Property, Excluded Assets and the “Technology and Know How” ofTakeda, as such term is defined in Section 1.6 of the Takeda License Agreement.

 

(mm)       “**ProductPatents**” means those Patents set forth on Schedule 1.1(ll)attached hereto.

 

(nn)         “**ProductPatents Assignment**” means that assignment agreement to be executedby Access and delivered to ULURU at Closing, substantially in the form of **Exhibit C**attached hereto.

 

(oo)         “**ProductRegistrations**” means registrations required by applicable Agenciesin the U.S. relating to the manufacture, sale and distribution of the Productsin the U.S. and foreign countries, including, without limitation, NDAs relatingto the Products.

 

(pp)         “**ProductTrade Dress**” means, collectively, the current trade dress of each ofthe Products, including, but not limited to, product packaging associated withthe sale of the Products in the U.S., but excluding the Access Trade Dress.

 

(qq)         “**ProductTrademarks**” means those Trademarks set forth on Schedule 1.1(pp)attached hereto.

 

(rr)           “**ProductTrademarks Assignment**” means the assignment agreement to be executedby Access and delivered to ULURU at Closing, substantially in the form of **Exhibit D** attached hereto.

 

(ss)         “**PurchasePrice**” has the meaning set forth in Section 3.1.

 

(tt)           “**PurchasedAssets**” has the meaning set forth in Section 2.1(a).

 

(uu)         “**ResiDermProduct**” means a topical formulation utilizing the proprietary zinctechnology, exemplified by Zindaclin, a zinc-clindamycin phosphate topicalproduct.

 

(vv)         “**RetainedLiabilities**” has the meaning set forth in Section 2.2(b).

 

(ww)       “**Scientificand Regulatory Material**” means all technological, scientific,chemical, biological, pharmacological, toxicological, regulatory and clinicaltrial materials and

 

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information primarilyrelated to the Products and all rights thereto in any and all jurisdictions tolimit the use or disclosure thereof, to the extent such materials are withinthe possession or control of Access.

 

(xx)          “**Takeda**”means Takeda Chemical Industries, Ltd.

 

(yy)         “**TakedaLicense Agreement**” means the agreement, dated November 12, 1987, byand between Takeda and Chemex Pharmaceuticals, Inc. (“**Chemex**”), which is currently known asAccess, a copy of which is attached hereto as **ExhibitF**.

 

(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, socialsecurity, severance, value added, sales, use, transfer, registration,alternative or add-on minimum, estimated or any other tax or similargovernmental charge of any kind whatsoever, including interest, penalties, andadditions to tax with respect thereto, whether disputed or not.

 

(aaa)       “**ToothWhitening Product**” means a Mucoadhesive Product formulated with anactive ingredient which adheres to the surface of teeth to enhance thewhiteness of the tooth surface.

 

(bbb)      “**TaxReturn**” means any return, declaration, report, claim for refund, orinformation return or statement relating to Taxes, including any schedule orattachment 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, includingregistrations and applications for registrations thereof and all renewals,modifications and extensions thereof.

 

(ddd)      “**TransitionTeam**” 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, includingwithout limitation the Commonwealth of Puerto Rico and the District of Columbia.

 

In this Agreement, wordsimporting the singular number shall include the plural and vice versa, wordsimporting a specific gender shall include the other genders and references topersons 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 amountsreferred to in this Agreement are in U.S. Dollars.

 

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**1.3          Headings, Etc.** The division of this Agreement intoSections and the insertion of headings are for convenience of reference onlyand shall not affect the interpretation hereof.

 

**SECTION 2PURCHASED ASSETS; LIABILITIES**

 

**2.1          Assets to Be Sold and Purchased.**

 

(a)           Uponthe terms and subject to the conditions of this Agreement, Access agrees tosell, assign, transfer, convey and deliver to ULURU and ULURU agrees topurchase from Access, all rights, title and interest of Access and itsAffiliates in and to the following assets, regardless of where such assets aresituated (the “**Purchased Assets**”),free and clear of all Encumbrances, except as set forth on Schedule 5.3:

 

(i)            all Product Intellectual Property;

 

(ii)                                  theProduct Registrations, to the extent transferable;

 

(iii)                               theInventory;

 

(iv)          the existing lists of all currenttrade/wholesale customers (including the address and contact information foreach such customer) for the Products and the pricing of the Products for suchcustomers; provided, however, that Access shall retain all rightsof access and ownership of such information with respect to sales of Access’sand Access’s Affiliates’ other products;

 

(v)           copies of Access’s files pertainingto the Product Registrations and correspondence with the FDA and otherAgencies, in each case such as is in existence and in the possession or controlof Access, as of the Closing Date;

 

(vi)          all Marketing Materials;

 

(vii)         all Scientific and Regulatory Material;

 

(viii)        the equipment, telephone numbers, internetor domain names or URL’s associated with Access’s development, manufacture orcommercialization of any Product, as set forth on Schedule 2.1(a)(viii);

 

(ix)           all contracts or agreementsassociated with the development, manufacture, sale, license orcommercialization of the Products that are by their terms assignable, except asset forth on Schedule 2.1(a)(ix);

 

(x)            records and files that relate to theProducts manufacturing and manufacturing processes;

 

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(xi)           all communications to and from thirdparties relating to the Products or the Product Intellectual Property; and

 

(xii)          all laboratory notebooks specificallyrelated to the Purchased Assets and copies of pages from notebooks which arenot specifically related to the Purchased Assets which include scientific dataand results related to the Purchased Assets.

 

The Parties expresslyagree and acknowledge that the Purchased Assets shall not include theExcluded Intellectual Property and the Excluded Assets and the Takeda LicenseAgreement.

 

### (b)           ULURUacknowledges 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 inconfidential, restricted ULURU files, for use in the event a dispute arisesbetween the Parties hereunder, in connection with fulfilling its obligationsunder this Agreement or in order to comply with applicable law.

###  

**2.2**          **Liabilities**. Except as set forthon Schedule 2.2(1) attached hereto:

 

### (a)           ULURUagrees to assume, be responsible for and pay, perform and discharge, when dueand 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 circumstancesor events occurring on or after the Closing Date (collectively, the “**Assumed Liabilities**”). In addition, ULURUshall assume, be responsible for and pay, perform and discharge, when due andwhenever asserted, all costs, expenses, exchanges and rebates related tocustomer returns of any of the Products, including, without limitation,Finished Goods, which occur or arise after the Closing Date. The foregoingcosts, expenses, exchanges and rebates related to customer returns of theProducts shall be included within the definition of Assumed Liabilities. ULURUshall not assume any Liabilities relating to a breach contract, breach ofwarranty, tort, infringement or violation of law by Access, its Affiliatesand/or its or their respective directors, officers, employees and agentsoccurring prior to the Closing Date and arising out of any charge, complaint,action, suit, proceeding, hearing, investigation, claim or demand.

###  

### (b)           Accessagrees to retain, be responsible for and pay, perform and discharge, when dueand whenever asserted, all Liabilities (other than the Assumed Liabilities)arising in connection with the Purchased Assets and the Products, but only tothe extent such Liabilities arise in respect of circumstances or eventsoccurring prior to the Closing Date (collectively, the “**Retained Liabilities**”). Notwithstanding theforegoing, Access shall not be responsible for any costs, expenses, exchangesand rebates relating to customer returns of the Products, including, withoutlimitation, Finished Goods, occurring after the Closing Date. Access shall notretain any Liabilities relating to a breach of contract, breach of warranty,tort, infringement or violation of law by ULURU, its Affiliates and/or its ortheir respective directors, officers, employees, agents

 

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(1)          Schedule 2.2 to listdeviations from the pre(Access)/post(ULURU)-Closing allocation of Liabilities,as mutually agreed to by the Parties.

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### 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)           Subjectto the provisions of Section 9 below, ULURU shall be responsible for allLiabilities whatsoever other than the Retained Liabilities.

###  

### (d)           Subjectto the provisions of Section 9 below, Access shall be responsible for allLiabilities whatsoever other than the Assumed Liabilities.

###  

**2.3          Proration**. Access and ULURU agree to prorate asof the Closing Date any amounts under any license agreement or other agreementrelating to the Products which become due and payable after the Closing Date tothe extent the benefit is attributable to the period prior to the Closing Date.

 

**2.4          Ancillary Agreements**. Access and ULURU acknowledge thatthis Agreement does not act as a conveyance, transfer or assignment of anyproperty but that all of the Purchased Assets and the Takeda License Agreementare conveyed, transferred or assigned by way of the Bill of Sale and AssignmentAgreement, the Product Patents Assignment, the Product Trademarks Assignmentand other documents delivered pursuant to the terms of this Agreement.

 

**2.5          Takeda License Agreement.**

 

### (a)           Uponthe terms and subject to the conditions of this Agreement, and notwithstandinganything to the contrary contained herein, Access agrees to assign, transfer,convey and deliver to ULURU and ULURU agrees to assume from Access, on theClosing Date, all rights, Liabilities (other than the Retained Liabilities),title and interest of Access and its Affiliates in and to the Takeda LicenseAgreement, free and clear of all Encumbrances, except as set forth in Schedule5.3.

###  

### (b)           ULURUagrees to assume, be responsible for and pay, perform and discharge, when dueand whenever asserted, all Liabilities existing or arising in connection withthe Takeda License Agreement, but only to the extent that such Liabilitiesarise in respect of circumstances or events occurring on or after the ClosingDate.

###  

(c)           Access agrees to retain, be responsiblefor and pay, perform and discharge, when due and whenever asserted, allLiabilities arising in connection with the Takeda License Agreement, but onlyto the extent such Liabilities arise in respect of circumstances or eventsoccurring prior to the Closing Date.

 

(d)           ULURU shall be solely responsible foraccounting and payment to Takeda, in accordance with Article VIII of the TakedaLicense Agreement, of any royalties payable to Takeda under the Takeda LicenseAgreement on Access’s Net Sales (as defined in the Takeda License Agreement) ofthe Aphthasol Product after the Closing Date. ULURU shall deliver to Access acopy of any statement or royalty report required to be provided to Takeda whichaccounts for royalties payable to Takeda on Access’s Net Sales (as defined inthe Takeda License Agreement) of the Aphthasol Product.

 

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**2.6          Third Party Consents**. Notwithstanding anything herein tothe contrary, the Parties acknowledge and agree that Access will not assign toULURU any contract or agreement that by its terms requires, prior to suchassignment, the consent of any other contracting party thereto unless suchconsent has been obtained. With respect to each such contract or agreement notassigned on the Closing Date, after the Closing Date Access shall, at ULURU’ssole expense, continue to deal with the other contracting party(ies) to suchcontract or agreement as the prime contracting party, and ULURU and Accessshall use their best efforts to obtain the consent of all required parties tothe assignment of such contract or agreement. Such contract or agreement shallbe promptly assigned by Access to ULURU after receipt of such consent after theClosing Date, and upon such assignment shall be deemed a Purchased Asset.Notwithstanding the absence of any such consent, ULURU shall be entitled to thebenefits and subject to the burdens of any such contract or agreement accruingafter the Closing Date, and ULURU agrees to perform all of the obligations ofAccess to be performed under any such contract or agreement after the ClosingDate and to indemnify the Access Indemnified Parties (as defined in Section9.1) against any Losses (as defined in Section 9.1) as a result of suchperformance or any non-performance by ULURU of any such contract or agreement.

 

**SECTION 3PURCHASE PRICE AND OTHER PAYMENTS**

 

**3.1          Purchase Price**. The Purchase Price payable inconsideration for the acquisition of the Purchased Assets shall be ThirteenMillion Four Hundred Thousand Dollars ($13,400,000) (the “**Purchase Price**”). Such Purchase Price shallbe paid by ULURU to Access as follows:

 

### (a)           EightMillion Seven Hundred Thousand Dollars ($8,700,000) delivered to Access byULURU at the Closing; provided that ULURU may deliver on behalf of Access anaggregate of up to $2,994,766.80 of such amount to Cornell Capital Partners, LPand Highgate House Funds, Ltd. (plus an additional $504.96 for each day afterOctober 11, 2005) in order to retire the Secured Debentures of Access due March30, 2006 held by Cornell Capital Partners, LP and Highgate House Funds, Ltd.;

###  

### (b)           ThreeMillion Seven Hundred Thousand Dollars ($3,700,000) delivered to Access byULURU on the date that is twelve (12) months after the Closing Date; providedthat Three Hundred Thousand Dollars ($300,000) of such amount shall beaccelerated and paid earlier upon the occurrence of any of :

###  

(i)            Notification from the FDA that no PDUFAfees are payable for the Products for the fiscal year ending September 30,2006, or

 

(ii)           ULURU entering into an agreement orunderstanding (oral or written) with either Takeda or Zambon Group to deferamounts due and payable by ULURU to such parties under the agreements with suchparties that are Purchased Assets hereunder, or

 

(iii)          The consummation by ULURU on or priorto January 30, 2006 of the sale by ULURU in a Private Placement or PIPEoffering, in one or

 

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more relatedtransactions, of securities for an aggregate purchase price of at least ThreeMillion Dollars ($3,000,000).          Forpurposes of clarity this excludes any proceeds related to any sale ofsecurities under a Standby Equity Distribution Agreement with Cornell Capitalor the initial financing of ULURU.

 

(c)           One Million Dollars ($1,000,000) uponthe earliest to occur of:

 

(i)            The U.S. launch of OraDisc A (or itssubstantial equivalent); or

 

(ii)           The U.S. launch of OraDisc B (or itssubstantial equivalent); or

 

(iii)          The two (2) year anniversary of thedate of this Agreement.

 

**3.2          Milestone Payments.**

 

(a)           In further consideration for thetransactions contemplated under this Agreement and in addition to the PurchasePrice, ULURU shall pay to Access the following non-refundable milestonepayments in the form and manner described below:

 

(i)            Within five (5) business days afterULURU commences Phase II clinical testing of any drug Product or pivotaltesting of any device Product, other than a Dental Product, utilizing theLicensed Technology that is the subject matter of the License Agreement, ULURUshall pay Access the sum of Three Hundred Seventy Five Thousand Dollars($375,000);

 

(ii)           Within five (5) business days afterULURU commences Phase II clinical testing of any drug Product or pivotaltesting of any device Product, other than (A) any Product for which it makespayment under Section 3.2(a)(i) and/or (B) a Dental Product, utilizing theLicensed Technology that is the subject matter of the License Agreement, ULURUshall pay Access the sum of Three Hundred Seventy Five Thousand Dollars($375,000);

 

(iii)          Within five (5) business days afterULURU signs a license agreement (with a third party) regarding any Product,other than a Dental Product, utilizing the Licensed Technology that is thesubject matter of the License Agreement, ULURU shall pay Access the sum ofThree Hundred Seventy Five Thousand Dollars ($375,000);

 

(iv)          Within five (5) business days afterULURU 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 thesubject matter of the License Agreement, ULURU shall pay Access the sum ofThree Hundred Seventy Five Thousand Dollars ($375,000);

 

(v)           Within five (5) business days afterULURU 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 MucoadhesiveProduct, ULURU shall pay Access the sum of Three Hundred Seventy Five ThousandDollars ($375,000);

 

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(vi)          Within five (5) business days afterULURU signs a license agreement (with a third party) regarding any ToothWhitening 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 followingpayments based upon the achievement of the following (including, withoutlimitation, the U.S.) Annual Net Sales or Cumulative Net Sales, as the case maybe, of the Products by ULURU, its Affiliates and its and their respectiveLicensees after the Closing Date (including, without limitation, under theLicense 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 andacknowledges that it shall not sell, assign, convey or otherwise transfer thePurchased Assets or this Agreement without the permitted assignee or transfereeagreeing to be bound by all of the terms of this Agreement, including, withoutlimitation, the payment obligations of this Section 3.

 

(b)           Within ninety (90) days after the endof each calendar quarter, commencing with the first full calendar quarterfollowing the Closing Date, ULURU shall submit to Access a written reportsetting forth the Annual Net Sales (to-date) and Cumulative Net Sales of eachof the Products, respectively, for such quarter; provided, however,that the first such quarterly report shall include only Cumulative Net Salesfor each of the Products from the Closing Date to the end of the first fullcalendar quarter following the Closing Date. In the event that a Licensee sellsor distributes any of the Products, the sales report provided to Access byULURU or its Affiliates pursuant to this Section 3.2(b) shall also include acopy of the sales report from such Licensees for such calendar quarter. ULURUshall permit, and shall cause its Affiliates and its and their respectiveLicensees to permit, an independent certified public accounting firm (the “**Auditor**”) of nationally recognized standingselected by Access and reasonably acceptable to ULURU, at Access’s expense(except as set forth below), to have access

 

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upon reasonable noticeduring normal business hours to the records of ULURU and/or its Affiliates andits or their respective Licensees (subject to ULURU’s rights under its licenseagreements) as may be reasonably necessary to verify the accuracy of the AnnualNet Sales and Cumulative Net Sales reported by ULURU pursuant to this Section3.2(b). When, in any quarterly report, one (1) of the Annual Net Sales orCumulative Net Sales milestones set forth in Section 3.2(a)(vii) have beenachieved, ULURU shall make the corresponding milestone payment to Access withinninety (90) days after the end of the calendar quarter in which the milestoneis achieved. In the event that the Auditor, in the course of any reviewconducted pursuant this Section 3.2(b), discovers that ULURU underpaid, orfailed to pay, Access of any of the milestone payments due Access under Section3.2(a)(vii), (i) all expenses incurred by Access in connection with such reviewshall be borne entirely by ULURU and (ii) any payment required as a result ofsuch review shall be immediately paid to Access and shall bear interest fromthe date such amount should otherwise have been paid until the date of actualpayment at the rate of ten percent (10%) per annum.

 

**3.3          Allocation of Purchase Price.**ThePurchase Price and all other amounts constituting consideration hereunder shallbe allocated among the Purchased Assets, and otherwise as the Parties shallhave agreed, in the manner set forth on **Exhibit G**attached hereto. Except as otherwise required by applicable law, each of theParties agrees to report (and to cause its Affiliates to report) thetransactions contemplated by this Agreement in a manner consistent with theterms of this Agreement, including the allocation set forth on **Exhibit G** attached hereto, and agrees notto take any position inconsistent therewith in any Tax Return, in any refundclaim, in any litigation or otherwise. Any subsequent adjustment to thePurchase Price shall be reflected in the allocation statement as revised by theParties hereunder in a manner consistent with the allocation statement asoriginally prepared, except as otherwise required by applicable law. **Exhibit G** attached hereto shall be amendedby 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 similarTaxes payable in connection with the transactions contemplated hereby shall beborne equally by Access and ULURU. Access shall pay all Taxes payable on anyincome or gain resulting from the sale of the Purchased Assets to ULURU.

 

**SECTION 4PAYMENT TERMS**

 

**4.1          Payment.**ULURUshall pay the Purchase Price, in the installments set forth inSections 3.1(a) and (b), and any and all milestone payments, if any, asset forth in Section 3.2, in cash by wire transfer of immediately availablefunds to a bank account or bank accounts to be designated by Access or itsAffiliate.

 

**4.2          Post-Closing Adjustments.**ThePurchase Price set forth in Section 3.1 shall be subject to adjustment, asset forth in this Section 4.2, as follows:

 

(a)           In the event any consideration ispayable during the period beginning the Closing Date and ending on the datethat is twelve months thereafter to any person as a condition to the assignmentof the Takeda License Agreement to ULURU, the Purchase Price shall be

 

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reduced, on adollar-for-dollar basis, by the amount of such consideration and the paymentpayable by ULURU pursuant to Section 3.1(b) shall be reduced, accordingly, on adollar-for-dollar basis, up to a maximum of $1,000,000, by the amount of suchconsideration and ULURU shall be entitled to deduct the actual amount of suchpayment from the amount due Access pursuant to Section 3.1(b). ULURU agrees andacknowledges 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 notobtain consent from Takeda to the assignment of the Takeda License Agreement byAccess to ULURU, and ULURU incurs actual damages solely due to the failure toobtain such assignment, as ULURU’s sole remedy, the Purchase Price shall bereduced, on a dollar-for-dollar basis, by the amount of such actual damages, upto a maximum of $1,000,000, and the payment payable by ULURU pursuant toSection 3.1(b) shall be reduced, accordingly, on a dollar-for-dollar basis, bythe amount of such actual damages and ULURU shall be entitled to deduct theactual amount of such actual damages from the amount due Access pursuant toSection 3.1(b).

 

(c)           Subject to the following sentence, inthe event Discus Dental, Inc. (“**Discus**”)terminates that certain license and supply agreement, dated April 15, 2005, byand between Discus and Access (the “**DiscusLicense**”), within sixty (60) days of the Closing Date, as ULURU’ssole 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) shallbe reduced, accordingly, on a dollar-for-dollar basis, by $500,000 and ULURUshall be entitled to deduct $500,000 from the amount due Access pursuant toSection 3.1(b). Notwithstanding the foregoing, in the event that ULURU licensesthe products and technology covered by the Discus License in the United Stateswithin eighteen (18) months of any such termination by Discuss on termssubstantially similar to the Discus License, ULURU shall, within seven (7) daysof receipt by ULURU of any consideration payable to ULURU under such license,pay to Access $500,000.

 

(d)           In the event that Access fails tomake payments due to Kerry P. Gray under that certain Separation Agreement,dated as of May 10, 2005, by and between Access and Mr. Gray (the “**Separation Agreement**”), as ULURU’s and Mr.Gray’s sole remedy, the Purchase Price shall be reduced, on a dollar-for-dollarbasis, by the amount of any such non-payment, and the payment payable by ULURUpursuant to Section 3.1(b) shall be reduced, accordingly, on adollar-for-dollar basis, by the amount of such non-payment and ULURU shall beentitled to deduct the amount of such non-payment from the amount due Accesspursuant to Section 3.1(b), such non-payment amount due from Access to beincreased by a penalty of 10% per annum compounded monthly commencing on thedate Access first fails to make a payment due under the Separation Agreement.

 

**SECTION 5REPRESENTATIONS AND WARRANTIES OF ACCESS**

 

Except to the extentmodified or disclosed on the Schedules hereto and except to the extent that allrepresentations and warranties in this Section 5 are modified and supplementedby the knowledge of ULURU and Kerry P. Gray (and no breach of anyrepresentation or warranty

 

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shall exist to the extentthat ULURU or Kerry P. Gray has knowledge thereof), Access hereby representsand warrants to ULURU as follows:

 

**5.1          Incorporation, Organization andQualification of Access.**Access is a corporation dulyincorporated, validly existing and in good standing under the laws of the Stateof Delaware, and has the necessary corporate power to own, lease and operateits property and to carry on its business as now being conducted by it. Accessis duly qualified and licensed to do business as a foreign corporation and isin good standing in every jurisdiction where the nature of the businessconducted by it makes such qualification necessary, except where the failure toso qualify or be in good standing does not have a Material Adverse Effect.

 

**5.2          Authorization and Validity ofAgreement.**Access has the corporate power and legalauthority to execute and deliver this Agreement and the Ancillary Agreementsand to carry out its obligations hereunder and thereunder. The execution anddelivery of this Agreement and the Ancillary Agreements and the performance ofAccess’s obligations hereunder and thereunder have been duly and validlyauthorized by all necessary corporate action by Access, and no other corporateproceedings on the part of Access are necessary to authorize such execution,delivery and performance. This Agreement has been, and the other agreements to beexecuted by Access in connection with this Agreement will be, duly and validlyexecuted by Access and constitute or will constitute, as the case may be, thevalid and binding obligations of Access enforceable against Access inaccordance with its or their terms, subject to bankruptcy, insolvency orsimilar laws of general application affecting the enforcement of rights ofcreditors, and subject to equitable principles limiting rights to specificperformance or other equitable remedies, and subject to the effect of federaland state securities laws on the enforceability of indemnification provisionsrelating to liabilities arising under such laws. Execution of this Agreement,the Ancillary Agreements and any other agreements to be executed by Access inconnection with this Agreement and consummation of the transactionscontemplated hereby and thereby will not (a) result in the violation of orconflict with any of the terms and provisions of the articles of incorporationor 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 riseto any right of termination, modification, cancellation or acceleration or lossof material benefits) under, any of the terms, conditions or provisions of anynote, bond, mortgage, indenture, contract, agreement, permit, license, lease,purchase order, sales order, arrangement or other commitment or obligation towhich Access is a party or may be subject or which is included in the PurchasedAssets or (c) violate any order, writ, injunction, decree, statute, treaty,rule or regulation applicable to Access or the Purchased Assets, except, in thecase 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 oragreement (including, without limitation, the Takeda License Agreement) is notassignable, as set forth on Schedule 5.2, it shall be governed bySection 2.5, and such non-assignability shall not be deemed a breach of thisAgreement.(2)

 

**5.3          Title to Purchased Assets.**Exceptas set forth on Schedule 5.3, Access is the owner of, and/or is thelawful holder of all rights to, the Purchased Assets with good, valid and

 

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(2)          Schedule 5.2 to indicatecertain contracts that may not be assignable and that any assignment of samecould give rise to a right of a party to terminate or sue for damages.

 

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marketable title thereto,free and clear of any mortgage, lien, charge, security interest, pledge,restriction on transferability, option, adverse claim or other encumbrance ontitle whatsoever (collectively, “**Encumbrances**”),and at the Closing, Access will transfer to ULURU good, valid and marketabletitle 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. incompliance with all applicable laws, rules, regulations and court oradministrative orders and processes. Except as would not have a MaterialAdverse Effect, Access has not received any written notice of violation of anyapplicable law, regulation or requirement relating to the Products or the PurchasedAssets within the past three (3) years.

 

**5.5          Litigation.**Exceptas would not have a Material Adverse Effect, (a) there are no actions, suits,proceedings, investigations, arbitration proceedings or other proceedingspending 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 anyfederal, state, municipal or other governmental department, commission, board,bureau, agency or instrumentality, domestic or foreign, or by or before anyarbitrator, and (b) there is not currently outstanding against Access anyjudgment, 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 thePurchased Assets or the Products or would question or challenge the validity ofthis Agreement.

 

**5.6          Intellectual Property Rights.**Exceptas 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 themanufacture, sale and distribution of the Products.

 

(b)           All of the Product Patents andProduct Trademarks (i) have been duly registered or filed with the appropriategovernment authorities or registries, and (ii) to the best knowledge of Accessare currently in force as to all applicable jurisdictions.

 

(c)           To the knowledge of Access, no thirdparty is infringing or misappropriating any of the Product IntellectualProperty.

 

(d)           To the knowledge of Access none ofthe Product Intellectual Property infringes or conflicts with any IntellectualProperty right of a third party and there are, and have been, no claimsasserted in writing against Access alleging that Access’s development,manufacture and sale of Products infringes or misappropriates any IntellectualProperty of any other person, corporation, limited liability company,partnership, other business entity.

 

(e)           Access has not granted any license orsublicense with respect to the Product Intellectual Property.

 

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(f)            Access has delivered to ULURUcorrect and complete copies of all patents, registrations, applications,licenses and agreements relating to the Product Intellectual Property.

 

**5.7          Inventory.**TheInventory has been stored in compliance with all applicable federal and statelaws, has not been adulterated and has otherwise been maintained according tothe requirements of federal and state law. The Inventory is merchantable andfit for the purpose for which it was manufactured, is not defective and shallhave a remaining shelf life of at least eighteen (18) months from the ClosingDate.

 

**5.8          Government Approvals.**Exceptas set forth on Schedule 5.8, no government authorization, consent,approval, license, exemption of or filing or registration with any court orgovernmental department, commission, board, bureau, agency or instrumentality,domestic or foreign, under any applicable laws, rules or regulations currentlyin effect, is or will be necessary for, or in connection with, the offer andsale of the Purchased Assets, the execution and delivery by Access of thisAgreement, the Ancillary Agreements and any other agreement or instrumentexecuted in connection herewith, the consummation of the transactionscontemplated hereby or thereby, or the performance by Access of its obligationsunder this Agreement, the Ancillary Agreements and any other agreements.

 

**5.9          Purchased Assets.**Exceptfor the Excluded Assets and as otherwise stated herein or as would not cause aMaterial 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 similarto Access’s practices as of the Closing Date.

 

**5.10        Brokers.**Accesshas not employed any investment banker, broker, finder or intermediary inconnection with the transactions contemplated hereby who might be entitled to afee or commission upon the execution of this Agreement or the consummation ofsuch transactions.

 

**5.11        Disclosure.**Therepresentations and warranties contained in this Section 5 do not contain anyuntrue statement of fact or omit to state a fact necessary in order to make thestatements and information contained in this Section 5 not misleading (otherthan those facts of which ULURU or Kerry P. Gray has knowledge).

 

**5.12        No Implied Representations.**WITHREGARD TO ANY STATEMENT CONTAINED IN THIS SECTION 5 OR ANY OTHER PROVISION OFTHIS AGREEMENT OR ANY ANCILLARY AGREEMENT ULURU AND ACCESS ACKNOWLEDGE ANDAGREE THAT NEITHER ACCESS NOR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES ORREPRESENTATIVES IS MAKING OR IMPLYING, WHETHER CONTAINED IN OR REFERRED TO INTHE DUE DILIGENCE AND EVALUATION MATERIALS THAT HAVE BEEN OR SHALL HEREAFTER BEPROVIDED TO ULURU OR ANY OF ITS AFFILIATES, AGENTS OR REPRESENTATIVES, ANYREPRESENTATION OR WARRANTY WHATSOEVER BEYOND THOSE EXPRESSLY GIVEN BY ACCESS INTHIS AGREEMENT OR ANY ANCILLARY AGREEMENT,

 

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INCLUDING BUT NOT LIMITEDTO, ANY IMPLIED WARRANTY OR REPRESENTATION AS TO THE VALUE, CONDITION,MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE PURCHASED ASSETS.

 

**SECTION 6COVENANTS OF ACCESS**

 

**6.1          Assistance with ULURU RegulatoryFilings.**Access shall use commercially reasonable effortsto assist ULURU in its preparation and filing with the FDA or any other Agencyof filings required to be filed by ULURU for the manufacture, marketing anddistribution of the Products. It is understood and agreed that ULURU, as theowner of the Product Registrations, shall have the responsibility for allregulatory filings after the Closing Date. All costs and fees associated withsuch regulatory filings shall be borne by ULURU.

 

**6.2          Litigation.**Fromthe date hereof until the date six (6) years after the Closing, Access shall notifyULURU promptly upon receipt of any communication or legal process whichcommences or threatens litigation which might materially and adversely affectthe 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 writtennotice to ULURU of all material developments of which it has actual knowledgeaffecting the Purchased Assets.

 

**6.4          Proprietary Information.**Fromand after the Closing Date, each Party shall not disclose or make use of, andshall use its best efforts to cause all of its Affiliates not to disclose ormake use of, any knowledge, information or documents of a confidential natureor not generally known to the public with respect to the other Party or itsrespective businesses (including the financial information, technicalinformation or data relating to the other Party’s products and names ofcustomers of the other Party), except to the extent that such knowledge,information or documents shall have become public knowledge other than throughimproper disclosure by the other Party or an Affiliate. Each Party shallenforce, for the benefit of the other Party, all confidentiality, inventionassignments and similar agreements between such Party and any other party relatingto the Purchased Assets.

 

**6.5          Hired Employees’ Options, Bonusesand Restricted Stock**. Within seven (7) days of theClosing, Access shall (a) pay to each Hired Employee (as defined in Section8.8) by wire transfer of immediately available funds or by certified check anamount equal to the bonus payment due and payable by Access to each such HiredEmployee, as set forth opposite the name of such Hired Employee on Schedule6.5, (b) deliver to each Hired Employee written confirmation that allunvested options to purchase shares of Access common stock held as of theClosing Date by such Hired Employee terminated as of the Closing Date and thatsuch Hired Employee may exercise during the twelve (12) month period followingthe Closing Date any vested options to purchase shares of Access common stockheld as of the Closing Date by such Hired Employee, in each case as set forthopposite the name of such Hired Employee on Schedule 6.5, and (c)deliver to each Hired Employee written confirmation that the unvested shares ofAccess restricted common stock currently held by such Hired Employee, as setforth opposite the name of such Hired Employee on Schedule 6.5, vestedin full as of and upon the

 

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Closing, and providedthat within seven (7) days of the Closing Date a stock certificate is issuedfor the common stock for each Hired Employee in an amount as set forth oppositethe name of such Hired Employee on Schedule 6.5.

 

**SECTION 7REPRESENTATIONS AND WARRANTIES OF ULURU**

 

ULURU hereby representsand warrants to Access as follows:

 

**7.1          Incorporation, Organization andQualification of ULURU.**ULURU is a corporation dulyincorporated, validly existing and in good standing under the laws of the Stateof Delaware, and has the necessary corporate power to own, lease and operateits property and to carry on its business as now being conducted by it. ULURUis duly qualified and licensed to do business as a foreign corporation and isin good standing in every jurisdiction where the nature of the businessconducted by it makes qualification necessary, except where the failure to soqualify or be in good standing would not prevent or materially delay theconsummation of the transactions contemplated hereby.

 

**7.2          Corporate Action.**ULURUhas the corporate power and legal authority to execute and deliver thisAgreement and the Ancillary Agreements and to carry out its obligationshereunder and thereunder. The execution and delivery of this Agreement and theAncillary Agreements and the performance of ULURU’s obligations hereunder andthereunder have been duly and validly authorized by all necessary corporateaction, and no other corporate proceedings on the part of ULURU are necessaryto authorize such execution, delivery and performance. This Agreement has been,and any other agreements executed in connection herewith have been, duly andvalidly executed by ULURU, and constitute the valid and binding obligations ofULURU, enforceable against ULURU in accordance with its or their terms, subjectto bankruptcy, insolvency or similar laws of general application affecting theenforcement of rights of creditors, and subject to equitable principleslimiting rights to specific performance or other equitable remedies, andsubject to the effect of federal and state securities laws on theenforceability of indemnification provisions relating to liabilities arisingunder such laws. Execution of this Agreement, the Ancillary Agreements and anyother agreements executed by ULURU in connection with this Agreement andconsummation of the transactions contemplated hereby and thereby will not(a) result in the violation of or conflict with any of the terms andprovisions of the articles of incorporation or by-laws of ULURU, (b) result ina violation or breach of, or constitute (with or without due notice or lapse oftime or both) a default (or give rise to any right of termination,modification,****cancellation oracceleration or loss of material benefits) under, any of the terms, conditionsor provisions of any note, bond, mortgage, indenture, contract, agreement,permit, license, lease, purchase order, sales order, arrangement or othercommitment or obligation to which ULURU is a party or may be subject to or (c)violate any order, writ, injunction, decree, statute, treaty consummation ofsuch transactions, rule or regulation applicable to ULURU except, in the caseof clauses (b) and (c), as would not prevent or materially delay theconsummation of the transactions contemplated hereby.

 

**7.3          Governmental Approvals.**Nogovernment authorization, consent, approval, license, exemption of or filing orregistration with any court or governmental department, commission, board,bureau, agency or instrumentality, domestic or foreign, under any applicable

 

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laws, rules orregulations currently in effect, is or will be necessary for, or in connectionwith, the purchase of the Purchased Assets, the execution and delivery by ULURUof this Agreement, the Ancillary Agreements and any other agreement orinstrument executed in connection herewith, the consummation of thetransactions contemplated hereby or thereby, or for the performance by it ofits obligations under this Agreement, the Ancillary Agreements and any otheragreements.

 

**7.4          Compliance With Law.**ULURUhas conducted and is currently conducting its business in compliance with allapplicable laws, rules, regulations and court or administrative orders andprocesses. Except as would not have a Material Adverse Effect, ULURU has notreceived any written notice of violation of any applicable law, regulation orrequirement relating to its business within the past five (5) years.

 

**7.5          Litigation.**Exceptas would not have a Material Adverse Effect, there are no actions, suits, proceedings,investigations, arbitration proceedings or other proceedings pending or, to thebest knowledge of ULURU, threatened against or affecting, in whole or in part,ULURU’s business by or before any federal, state, municipal or othergovernmental department, commission, board, bureau, agency or instrumentality,domestic or foreign, or by or before any arbitrator and, to the best knowledgeof ULURU, there is not currently outstanding against ULURU any judgment,decree, injunction, rule, settlement, order or award of any court, governmentaldepartment, commission, board, bureau, agency, instrumentality, domestic orforeign, or arbitrator that would question or challenge the validity of thisAgreement.

 

**7.6          Brokers.**ULURUhas not employed any investment banker, broker, finder or intermediary inconnection with the transactions contemplated hereby who might be entitled to afee or commission upon the execution of this Agreement or the consummation ofsuch transactions.

 

**7.7          Disclosure.**Therepresentations and warranties contained in this Section 7 do not contain anyuntrue statement of fact or omit to state a fact necessary in order to make thestatements and information contained in this Section 7 not misleading.

 

**SECTION 8MUTUAL COVENANTS**

 

**8.1          Transfer of Registrations, Etc.**The Parties shall cooperate to effectuate the consummation ofthe transactions contemplated by this Agreement and the transfer of thePurchased Assets and the Takeda License Agreement in accordance with Section 2hereof. The Parties agree to use their commercially reasonable efforts, beforeand after the Closing, to take any other actions required by the FDA or anyother Agency to effect the transfer of the Purchased Assets, including noticesto the FDA and other Agencies regarding the transfer from Access to ULURU ofthe Product Registrations and to obtain any required third party consentsnecessary to consummate the transactions contemplated by this Agreement.

 

**8.2          Transition Team.**Accessand ULURU shall establish a transition team (the “**Transition Team**”), which shall be comprised of the persons setforth on Schedule 8.2 attached hereto and which shall have theresponsibilities set forth in this Section 8.2. For a period of not

 

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longer than one hundredeighty (180) days, the Transition Team shall (a) coordinate the joint effortsof Access and ULURU, consistent with the terms and conditions of thisAgreement; (b) effect the transfer of the Purchased Assets in accordance withSection 2.1 and Section 10.1(k); (c) obtain any required consents, licenses,permits, waivers, approvals, authorizations or orders; (d) make any requiredfilings or submissions; (e) effect a smooth transition from Access to ULURUwith respect to the manufacture and sale of the Products in the U.S.; and (f)take any other commercially reasonable actions necessary for the consummationof the transactions contemplated by this Agreement.

 

**8.3          Certain Tax and Financial StatementMatters.**ULURU and Access, and each Party’s respectiveAffiliates, shall cooperate, to the extent reasonably requested by the otherParty, in connection with the preparation and filing of any Tax Return, audit,litigation, information statement, proceeding or similar items with respect toTaxes and to furnish the other Party with a copy of such item in draft formwithin a reasonable time before its due date, as well as a copy of such item asfiled. In addition Access, and its Affiliates, shall cooperate, to the extentreasonably requested by ULURU, in connection with the preparation, audit andfiling of any financial statements related to the Purchased Assets, includingthe preparation, audit and filing of any financial statements required to beincluded in any registration statement filed by ULURU with the Securities andExchange Commission.

 

**8.4          Adverse Experience Reports.**Onor prior to the Closing Date, Access shall provide ULURU with all informationrelating to the investigation and reporting of Adverse Experiences regardingthe Products since three (3) years prior to the Closing Date and allinformation which is relevant to the safe use of the Products as of the ClosingDate, 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 theProducts. After the Closing Date, Access and its Affiliates shall promptlysubmit to ULURU all such Adverse Experience information or customer complaintsbrought to the attention of Access or its Affiliates in respect of theProducts, as well as any material events and matters concerning or affectingthe safety or efficacy of the Products. Such information or customer complaintsshall be forwarded to ULURU, Attention: Kerry P. Gray. Beginning on the Closing Date, ULURU shall have all responsibilityfor required reporting of Adverse Experiences for the Products.

 

**8.5          Response to Medical Inquiries andProducts Complaints.**Upon Closing, ULURU shall assume allresponsibility for responding to any medical inquiries or complaints about theProducts. Access shall promptly refer all such inquiries and complaints that itreceives to ULURU for response to such inquiries or complaints.

 

**8.6          Customer Receipts.**Inthe event that Access or any of its Affiliates receive payment after theClosing Date on invoices relating to sales of the Products by ULURU or any ofits Affiliates after the Closing Date, Access will promptly notify ULURU ofsuch receipt and will promptly remit, or will cause such Affiliate to promptlyremit such payment to ULURU. In the event that ULURU or any of its Affiliatesreceive payment after the Closing Date on invoices or any other paymentsrelating 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, orwill cause such Affiliate to promptly remit such payment to Access.

 

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**8.7          Sharing of Data.**Accessshall have the right for a period of seven years following the Closing Date tohave reasonable access to such books, records and accounts, including financialand tax information, correspondence, production records, employment records andother records that are transferred to ULURU pursuant to the terms of thisAgreement for the limited purposes of concluding its involvement in thebusiness conducted by Access prior to the Closing Date and for complying withits obligations under applicable securities, tax, environmental, employment orother laws and regulations. ULURU shall have the right for a period of sevenyears following the Closing Date to have reasonable access to those books,records and accounts, including financial and accounting records (including thework papers of Access’s independent accountants), tax records, correspondence,production records, employment records and other records that are retained byAccess pursuant to the terms of this Agreement to the extent that any of theforegoing is needed by ULURU for the purpose of conducting the business ofAccess after the Closing and complying with its obligations under applicablesecurities, tax, environmental, employment or other laws and regulations.Neither ULURU nor Access shall destroy any such books, records or accountsretained by it without first providing the other Party with the opportunity toobtain or copy such books, records, or accounts at such other Party’s expense.

 

**8.8          Hired Employees.**Asof the Closing, ULURU shall offer employment to the employees of Access setforth on Schedule 8.8, at substantially the same level of compensationand benefits as provided by Access immediately prior to the Closing, tocontinue working in connection with the development of the Product IntellectualProperty, provided that Access makes no representation as to whether any suchemployees will accept employment by ULURU and it shall not be a breach of thisAgreement by Access if any such employee does not accept employment by ULURU(all such hired employees, the “**HiredEmployees**”); provided, however, that nothing containedin this Section 8.8 shall require that ULURU continue to employ any HiredEmployee after the Closing Date or restrict ULURU’s ability to change the levelof compensation and benefits provided to any Hired Employee after the ClosingDate. ULURU shall be responsible for all compensation expenses relating to theHired Employees, to the extent accrued or payable after the Closing Date,including, without limitation, severance (including any severance ordisplacement pay, if any, due for any Hired Employee subsequently terminated byULURU, with any such obligations to be determined by the terms of the severanceor displacement pay arrangements maintained by Access and ULURU, respectively),benefits, vacation, sick time and all such other expenses. During the periodfrom the Closing Date through December 31, 2005, Access shall continue to payall compensation expenses due the Hired Employees, provided that ULURU shallreimburse Access for all such payments made to the Hired Employees within one(1) day upon notice from Access of its making any such payment. BeginningJanuary 1, 2006, ULURU shall pay all such compensation expenses due the HiredEmployees and Access shall have no obligation to make any payments inconnection therewith.

 

**SECTION 9INDEMNIFICATION**

 

**9.1          Indemnification by Access.**Accessshall indemnify and hold ULURU, its Affiliates and their respective employees,officers and directors (collectively, the “**ULURUIndemnified Parties**”) harmless from and against any and all losses,damages, liabilities, obligations, claims, costs and expenses (includingreasonable attorneys’ fees) (each, a “**Loss**”and

 

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collectively, the “**Losses**”) sustained, suffered or incurred bysuch ULURU Indemnified Parties and relating to, directly or indirectly:  (a) the breach of any representation orwarranty of Access contained herein (without regard to materiality qualifiersprovided in such representations or warranties other than the references toMaterial Adverse Effect) (other than any breach in existence or caused byevents or facts of which ULURU or Kerry Gray has knowledge); (b) the breach ofany covenant or agreement of Access contained herein; or (c) any claim or causeof action arising from the Retained Liabilities, except that Access shall haveno obligation to indemnify ULURU for any Losses that arise from or relate tothe Takeda License Agreement or the performance or nonperformance of suchagreement or under Section 4.2 (except as set forth in Section 4.2).

 

**9.2          Indemnification by ULURU.**ULURUshall indemnify and hold Access, its Affiliates and their respective employees,officers and directors (collectively, the “**AccessIndemnified Parties**”) harmless from and against any and all Lossessustained, suffered or incurred by such Access Indemnified Parties and relatingto, directly or indirectly:  (a) thebreach of any representation or warranty of ULURU contained herein, (withoutregard to materiality qualifiers provided in such representations orwarranties); (b) the breach of any covenant or agreement of ULURU containedherein; (c) any Losses that arise from or relate to the Takeda LicenseAgreement or the performance or non-performance of such agreement; or (d) anyclaim or cause of action arising from the Assumed Liabilities.

 

**9.3          Notification of Claims.**

 

(a)           If any Access Indemnified Party orULURU Indemnified Party receives notice of any event, circumstance, demand orclaim that may give rise to a Loss for which such Party is or may be entitledto indemnification under this Agreement (each such party, an “**Indemnified Party**”), such Indemnified Partyshall promptly notify the Party required to provide such indemnification (the “**Indemnifying Party**”) in writing of theexistence of such potential Loss and of the amount at issue. The failure toprovide such notice will not affect any rights hereunder except to the extentthe Indemnifying Party is materially prejudiced thereby.

 

(b)           If the event or circumstance givingrise to a Loss involves any third party claim, the Indemnifying Party shallhave the right to direct, through counsel of its own choosing, which counselshall be reasonably satisfactory to the Indemnified Party, the defense orsettlement of any claim or proceeding the subject of indemnification hereunderat its own expense. If the Indemnifying Party elects to assume the defense ofany such claim or proceeding, the Indemnified Party may participate in suchdefense, but in such case the expenses of the Indemnified Party shall be paidby the Indemnified Party. The Indemnified Party shall provide the IndemnifyingParty with access to its records and personnel relating to any such claim,assertion, event or proceeding during normal business hours and shall otherwisecooperate with the Indemnifying Party in the defense or settlement thereof, andthe Indemnifying Party shall reimburse the Indemnified Party for all itsreasonable out-of-pocket expenses in connection therewith. If the IndemnifyingParty elects to direct the defense of any such claim or proceeding, theIndemnified Party shall not pay, or permit to be paid, any part of any claim ordemand arising from such asserted loss unless the Indemnifying Party consentsin writing to such payment or unless the Indemnifying Party withdraws from thedefense of such asserted loss or unless a final

 

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judgment from which noappeal may be taken by or on behalf of the Indemnifying Party is enteredagainst the Indemnified Party for such loss. No settlement in respect of anythird party claim may be effected by the Indemnifying Party without theIndemnified Party’s prior written consent, unless the settlement involves afull and unconditional release of the Indemnified Party. If the IndemnifyingParty shall fail to undertake in a timely manner the defense of any third partyclaim or it is reasonably determined by outside counsel mutually selected bythe Indemnified Party and the Indemnifying Party that representation by theIndemnifying Party’s counsel of both the Indemnifying Party and the IndemnifiedParty may present a conflict of interest, the Indemnified Party shall have theright to undertake the defense or settlement thereof at the IndemnifyingParty’s expense. If the Indemnified Party assumes the defense of any such claimor proceeding pursuant to this Section 9.3 and proposes to settle such claim orproceeding prior to a final judgment thereon or to forgo any appeal withrespect thereto, then the Indemnified Party shall give the Indemnifying Partytimely written notice and the Indemnifying Party shall have the right toparticipate in the settlement or assume or reassume the defense of such claimor proceeding.

 

**SECTION 10CLOSING AND POST-CLOSING DELIVERIES**

 

**10.1        Documents/Items to Be Delivered byAccess 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, inform and substance satisfactory to ULURU and Access, as shall be appropriate toconvey, transfer and assign to, and vest in ULURU, good title to the PurchasedAssets free and clear of all Encumbrances, except as set forth on Schedule5.3;

######  

###### (b)           executed Product Patents Assignment;

######  

###### (c)           executed Product Trademarks Assignment;

######  

###### (d)           executed Bill 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 executedby a principal executive or financial officer of Access certifying thesatisfaction of the conditions specified in Section 11.1;

######  

#### (g)           a certificate dated as of the Closing Date and executed bythe secretary or an assistant secretary of Access, certifying:

####  

#### (i)            attached thereto is a complete and correct copy ofresolutions adopted by the board of directors of Access authorizing theexecution, delivery and performance of this Agreement and the AncillaryAgreements executed in connection herewith by Access and the transfer of thePurchased Assets and the Assumed Liabilities to ULURU hereunder, and that suchresolutions, approvals and consents have not been amended or modified in anyrespect and remain in full force and effect as of the date thereof; and

 

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#### (ii)           that the person named in the foregoing officer’scertificate 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 agenuine signature or true facsimile thereof of such officer.

####  

###### (h)           the Purchased Assets, to the extent deliverable atClosing, in accordance with the procedures set forth in Section 2.1. If thePurchased Assets cannot be delivered at Closing, they shall be delivered byAccess as soon as practicable after the Closing, in accordance with theprocedures set forth in Section 2.1;

######  

###### (i)            an electronic recording of the Inventory existing as ofthe Closing Date;

######  

###### (j)            executed Premises Agreement;

######  

###### (k)           executed License Agreement; and

######  

###### (l)            such other documents, instruments and certificates asAccess and ULURU may mutually agree upon.

######  

**10.2        Documents/Items to Be Delivered by ULURUat Closing.**At the Closing, ULURU shall deliver, or causeto be delivered, to Access the following:

 

(a)           a certificate dated as of the ClosingDate and executed by a principal executive or financial officer of ULURUcertifying the satisfaction of the conditions specified in Section 12.1;

 

(b)           a certificate dated as of the ClosingDate and executed by the secretary or an assistant secretary of ULURU,certifying:

 

#### (i)            attached thereto is a complete and correct copy ofresolutions adopted by the board of directors of ULURU authorizing theexecution, delivery and performance of this Agreement and the AncillaryAgreements executed in connection herewith by ULURU and the transfer of thePurchased Assets and the Assumed Liabilities to ULURU hereunder, and that suchresolutions, approvals and consents have not been amended or modified in anyrespect and remain in full force and effect as of the date thereof (or, in thealternative, a statement to the effect that no such board of directors approvalis necessary regarding the execution, delivery and performance of thisAgreement and the Ancillary Agreements and the transfer of the Purchased Assetsand the Assumed Liabilities to ULURU); and

####  

#### (ii)           that the person named in the foregoing officer’scertificate 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 agenuine signature or true facsimile thereof of such officer.

####  

(c)           executed Premises Agreement;

 

(d)           executed License Agreement;

 

(e)           the first installment of the PurchasePrice, as set forth in Sections 3.1(a) and 4.1;

 

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(f)            lien release letters, executed anddelivered by each of Cornell Capital Partners, LP, Highgate House Funds, Ltd.and Kerry P. Gray, pursuant to which such parties agree to terminate andrelease certain security interests in Access’s assets granted by Access to suchparties; and

 

(g)           such other documents, instruments andcertificates as Access and ULURU may mutually agree upon.

 

**10.3        Post-Closing Deliveries.**Promptlyafter receipt at any time after the Closing Date of any consent to assignmentof any contract or agreement constituting a Purchased Asset, Access shalldeliver such consent to ULURU.

 

**SECTION 11ULURU’S CONDITIONS OF CLOSING**

 

The sale and purchase ofthe Purchased Assets in accordance with the terms of this Agreement are subjectto the following terms and conditions, each of which is included for theexclusive benefit of ULURU, to be fulfilled or performed at or prior to theClosing:

 

**11.1        Representations and Warranties atClosing.**The representations and warranties of Access toULURU contained in this Agreement shall be true and correct as of the Closingin all material respects with the same force and effect as though suchrepresentations and warranties had been made at such time (without regard tomateriality qualifiers set forth therein), except (a) where failure to be sotrue and correct would not prevent or materially delay the consummation of the transactionscontemplated hereby, (b) that those representations and warranties whichaddress matters only as of a particular date or period of time shall remaintrue and correct as of such date or period of time, except where failure to beso true and correct would not prevent or materially delay the consummation ofthe transactions contemplated hereby, and (c) where ULURU or Kerry P. Gray hasknowledge that any such representation or warranty was not so true and correcton the date hereof or the Closing Date. Access shall deliver to ULURU at theClosing 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 allmaterial respects, all of the terms, covenants and conditions of this Agreementto be complied with or performed by Access at or before the Closing.

 

**11.3        Ancillary Agreements; OtherAgreements.**Access shall have executed and delivered theProduct Patents Assignment, the Product Trademarks Assignment, the Bill of Saleand Assignment Agreement, the License Agreement, and the Premises Agreement.

** **

**SECTION 12ACCESS’S CONDITIONS OF CLOSING**

 

The sale and purchase ofthe Purchased Assets in accordance with the terms of this Agreement is subjectto the following terms and conditions, each of which is included for theexclusive benefit of Access, to be fulfilled or performed at or prior to theClosing.

 

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**12.1        Representations and Warranties atClosing.**The representations and warranties of ULURU toAccess contained in this Agreement shall be true and correct as of the Closingin all material respects with the same force and effect as though suchrepresentations and warranties had been made at such time (without regard tomateriality qualifiers set forth therein), except where failure to be so trueand correct would not prevent or materially delay the consummation of thetransactions contemplated hereby, and except that those representations andwarranties which address matters only as of a particular date or period of timeshall remain true and correct as of such date or period of time, except wherefailure to be so true and correct would not prevent or materially delay theconsummation of the transactions contemplated hereby. ULURU shall deliver toAccess 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 materialrespects, all the terms, covenants and conditions of this Agreement to becomplied with or performed by ULURU at or before the Closing.

 

**12.3        Ancillary Agreements; OtherAgreements.**ULURU shall have executed the LicenseAgreement and the Premises Agreement.

 

**SECTION 13CLOSING DATE**

 

**13.1        Closing.**Upon theterms and subject to the conditions of this Agreement, the sale and purchase ofthe Purchased Assets shall take place at a closing (the “**Closing**”) to be held at the offices ofBingham McCutchen LLP, 150 Federal Street, Boston MA 02110, on such date as Accessand ULURU may mutually agree upon in writing (the day on which the Closingtakes place being the “**Closing Date**”).

 

**SECTION 14MISCELLANEOUS**

 

**14.1        Expenses.**Exceptas otherwise specified in this Agreement, all costs and expenses, including,without limitation, fees and disbursements of counsel, financial advisors andaccountants, incurred in connection with this Agreement and the transactionscontemplated hereby shall be paid by the Party incurring such costs andexpenses, whether or not the Closing shall have occurred. Except as provided inSection 9, in the event of any dispute among the Parties hereto relating to thesubject matter of this Agreement, each Party shall pay its own out-of-pocketcosts and fees and disbursements of counsel.

 

**14.2        Further Assurances and Actions.**Eachof the Parties hereto, upon the request of the other Party hereto, whetherbefore or after the Closing and without further consideration, shall, and shallcause their respective Affiliates to, do, execute, acknowledge and deliver orcause to be done, executed, acknowledged or delivered all such further acts,deeds, documents, assignments, transfers, conveyances, powers of attorney andassurances as may be reasonably necessary to effect complete consummation ofthe transactions contemplated by this Agreement.

 

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**14.3        Announcements**.No Party shall make a public announcement regarding this Agreement or thetransactions contemplated hereby without the prior written consent of the otherParty; provided that nothing herein shall restrict Access or ULURU from makingany public announcement of the transactions contemplated by this Agreement tothe extent that such announcement is required by law; provided that, prior toany such disclosure, the disclosing Party shall provide the other Party areasonable time to review and comment upon such disclosure. Additionally, ULURUmay disclose this Agreement and the transactions contemplated hereby, to theextent reasonably necessary, in connection with any registration of one (1) ormore of the Products with any state or Federal agency.

 

**14.4        Notices.**Allnotices, requests, claims, demands and other communications hereunder shall bein writing and shall be given or made (and shall be deemed to have been dulygiven or made upon receipt) by delivery in person, by courier service, bytelecopy or by registered or certified mail (postage prepaid, return receiptrequested) to the respective Parties at the following addresses (or at suchother address for a Party as shall be specified in a notice given in accordancewith this Section 14.4):

 

(a)           if to Access, then:

 

Access Pharmaceuticals, Inc.

2600 Stemmons Freeway

Suite 176

Dallas, TX 75207

Telephone :  (214) 905-5100

Telecopy :  (214) 905-5101

Attn:Chief Executive Officer

 

with acopy to:

 

Bingham McCutchen LLP

150 Federal Street

Boston, MA 02110

Telephone: (617) 951-8000

Telecopy: (617) 951-8736

Attn: John J. Concannon III, Esq.

 

(b)           if to ULURU, then:

 

ULURU, Inc.

4939 Stonyford Drive

Dallas, TX 75287

Telephone: (972) 250-6383

Telecopy: (972) 250-6383

Attn:       Kerry P. Gray

 

with acopy to:

 

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McGuireWoods LLP

1345 Avenue of the Americas, 7th Floor

New York, NY 10105

Telephone: (212) 548-2138

Telecopy: (212) 548-2175

Attn: Louis W. Zehil, Esq.

 

**14.5        Applicable Law.**ThisAgreement shall be governed by and construed in accordance with the laws of theState of Delaware without giving effect to principles of conflict of laws. EachParty to this Agreement expressly and irrevocably (a) consents that legalaction or proceeding against it arising out of this Agreement may be brought inany court of the State of Delaware or in the U.S. District Court for theDistrict of Delaware, (b) consents and submits to the personal jurisdiction ofany of such courts solely for purposes of such action or proceeding, (c)consents to the service of any complaint, summons, notice or other processsolely 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 anyalleged lack of personal jurisdiction, improper venue or forum non conveniensor any similar basis. Nothing in this Section shall affect or impair in anymanner or to any extent the right of any Party to commence legal proceedings orotherwise proceed against any other Party in any jurisdiction or to serveprocess in any manner permitted by law.

 

**14.6        Entire Agreement; Amendments.**ThisAgreement, including the Exhibits and Schedules hereto, constitutes the entireagreement among the Parties hereto with respect to the transactions providedfor herein and as stated herein and in the agreements, instruments and documentsexecuted and to be executed and delivered in connection herewith, contains allof the agreements between the Parties hereto. There are no verbal agreements orunderstandings between the Parties hereto not reflected in this Agreement. ThisAgreement may not be amended or modified in any respect except by writteninstrument executed by each of the Parties hereto.

 

**14.7        Counterparts.**ThisAgreement may be executed in two (2) or more counterparts, each of which shallbe deemed to be an original and all of which together, shall constitute thesame Agreement.

 

**14.8        No Third Party Beneficiaries.**ThisAgreement shall be binding upon and inure solely to the benefit of the Partieshereto and their permitted successors and assigns and nothing herein, expressor implied, is intended to or shall confer upon any person or entity, any legalor equitable rights, benefits or remedies.

 

**14.9        Assignment.**NeitherParty may assign its rights or obligations under this Agreement without theprior written consent of the other Party and any purported assignment inviolation hereof shall be null and void; provided, however, thateither Party may assign its rights and obligations under this Agreement,without the prior written consent of the other Party, to an Affiliate or to asuccessor of the assigning Party’s business by reason of merger, sale of all orsubstantially all of its assets or any similar transaction, providedthat such successor agrees in writing to be bound by this Agreement (including,without limitation, in the case of any such

 

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event involving ULURU,ULURU’s payment obligations under Section 3). Such consent shall not beunreasonably withheld or delayed. Any permitted assignee shall assume allobligations of its assignor under this Agreement (including, withoutlimitation, in the case of an assignment by ULURU, ULURU’s payment obligationsunder Section 3). No assignment shall relieve either Party of itsresponsibility for the performance of any obligation that accrued prior to theeffective date of such assignment hereunder. ULURU agrees that in connectionwith any merger or sale of all or substantially all of the assets of ULURU suchtransaction shall not be consummated unless and until the other party(ies) tosuch transaction agree in writing to assume all of the obligations of ULURUunder this Agreement and each agreement contemplated hereby.

 

**14.10      Severability.**Ifany term or other provision of this Agreement is invalid, illegal or incapableof being enforced by any law or public policy, all other terms and provisionsof this Agreement shall nevertheless remain in full force and effect so long asthe economic or legal substance of the transactions contemplated hereby is notaffected in any manner materially adverse to any Party. Upon such determinationthat any term or other provision is invalid, illegal or incapable of beingenforced, the Parties hereto shall negotiate in good faith to modify thisAgreement so as to effect the original intent of the Parties as closely aspossible in an acceptable manner in order that the transactions contemplatedhereby are consummated as originally contemplated to the greatest extentpossible.

 

**14.11      WAIVER OF JURY TRIAL.**EACHOF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY INANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE ANCILLARYAGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR THE TRANSACTIONSCONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM THEREIN.

 

**14.12      No Waiver of Remedies.**Nodelay on the part of ULURU or Access in exercising any right, power orprivilege hereunder shall operate as a waiver thereof, nor shall any waiver onthe part of either ULURU or Access of any right, power or privilege hereundernor shall any single or partial exercise of any right, power or privilegehereunder preclude any other or further exercise thereof or the exercise of anyother right, power or privilege hereunder. The waiver of any terms orconditions of this Agreement shall not be construed as a waiver of anysubsequent breach or a subsequent waiver of the same term or condition, orwaiver of any other term or condition, of this Agreement. The failure of anyParty to assert any of its rights hereunder shall not constitute a waiver ofany of such rights.

 

*[Theremainder of this page is left blank intentionally.]*

 

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IN WITNESS WHEREOF, thisAgreement has been executed by the Parties hereto as of the date first abovewritten.

 

 
| ** ** | **ACCESS  PHARMACEUTICALS, INC.**                 |
|------------|---------------------------------------------------|
| ** ** | ** **                                        |
| ** ** | ** **                                        |
|       | By                                                |   /s/  Rosemary Mazanet |   |
|       |                                              | Name: Rosemary  Mazanet |
|       |                                              | Title: Acting  CEO |
|       |                                              |
|       |                                              |
| ** ** | **ULURU,  INC.**                                  |
| ** ** | ** **                                        |
| ** ** | ** **                                        |
|       | By                                                |   /s/  Kerry P. Gray |   |
|       |                                              | Name: Kerry P.  Gray |
|       |                                              | Title: President  & CEO |
|       |                                              |
|       |                                              |
|       |   /s/  Kerry P. Gray                    |   |
|       | Kerry P. Gray,  individually solely with  respect |
|       | to Sections 5,  8.4, 9.1 and 11.1                 |
|            |                                                   |  |  |  |

 

[*Signature Page to Asset SaleAgreement]*

 

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