**Exhibit 10.26**

 

***Execution Copy***

 

**LICENSE AGREEMENT**

 

THIS LICENSEAGREEMENT (this “Agreement”) is made and entered into effective as of October 12,2005 (the “Effective Date”), by and between Access Pharmaceuticals, Inc.,a Delaware corporation (“Licensor”)and ULURU, Inc., a Delaware corporation (“Licensee”).

 

RECITALS:

 

A.                                   Licensorand Licensee have entered into an Asset Sale Agreement of even date herewith(the “ASA”) whereby Licensor is selling certain of its assets andliabilities to Licensee as of the Closing Date (as defined therein).

 

B.                                     Pursuantto the ASA, Licensor has retained ownership of certain patents and patentapplications, including certain patent applications related to its nanoparticle aggregatetechnology (as described in Exhibit A attached hereto, the “Patents”).

 

C.                                     Licenseedesires to obtain from Licensor, and Licensor desires to grant to Licensee, anexclusive, fully-paid up, worldwide license under the Patent Rights (as definedbelow) in the Field of Use described below, on the terms and conditions setforth in this Agreement.

 

NOW,THEREFORE, in consideration of the foregoing recitals and the mutualrepresentations, warranties, covenants and agreements contained herein, theparties hereto agree as follows:

 

# 1.                                       Definitions.Capitalized terms used but not defined herein shall have the meanings set forthin the ASA.

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## (a)                                  “Affiliate”when used to indicate a relationship with any person or entity, means (i) anycorporation, firm, partnership or other entity, whether de jure or de facto,which directly or indirectly owns, is owned by or is under common ownershipwith such person or entity to the extent of at least fifty percent (50%) of theequity (or such lesser percentage which is the maximum allowed to be owned by aforeign corporation in a particular jurisdiction) having the power to vote onor direct the affairs of the entity, or (ii) any person, firm,partnership, corporation or other entity actually controlled by, controlling orunder common control with such person or entity.

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## (b)                                 “ConfidentialInformation” means any information which is disclosed by Licensee orLicensor during the term of this Agreement which is or should be reasonably understood by the receiving party tobe confidential or proprietary to the disclosing party, including,without limitation, any non-public information of Licensee or Licensor, and anyscientific or technical data, know-how or expertise of Licensee or Licensorthat relates to a Licensed Product (whether existing at or after the EffectiveDate); provided, however, that “Confidential Information” shallnot include information that (i) was in the receiving party’s possessionor was known to it prior to its receipt from the disclosing party, as evidencedby the receiving party’s written records; (ii) is or becomes public

 

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knowledge without the fault of the receivingparty; (iii) is or becomes rightfully available on an unrestricted basisto the receiving party from a source other than a party owing an obligation ofconfidentiality to the disclosing party; or (iv) is independentlydeveloped by employees of the receiving party who have not had direct orindirect access to the disclosing party’s Confidential Information, asevidenced by the receiving party’s written record.

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## (c)                                  “FDA” meansthe Food and Drug Administration of the U.S. Department of Health and HumanServices.

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## (d)                                 “Field of Use”meansall applications of the Patent Rights excluding subcutaneous or intramusculardrug delivery implants.

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(e)                                  “Improvements”means, individually and collectively, all discoveries, inventions,know-how, techniques, methodologies, modifications, improvements, designs anddata (whether or not protectable under patent, trade secrecy or similar laws)relating to additions, developments, enhancements, updates and other changes inor to the Patent Rights.

 

## (f)                                    “LicensedProduct” means any product or device that: (i) is developed, designed,modified, improved, manufactured, used, imported, sold or offered for sale byor on behalf of the Licensee or its Affiliates (or its or their sublicensees)that would, in the absence of this Agreement, infringe a Valid and Enforceableclaim in the Patent Rights; or (ii) incorporates the Patent Rights.

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## (g)                                 “Patent Rights”means each and all of the following: (i) all right, title and interest ofLicensor and its Affiliates in the Patents, any Valid and Enforceable claim inany patent issuing from any patent applications, and any Valid and Enforceableclaim in any issued patent, claiming priority to any of the foregoing,including any reissues, re-examinations, divisionals, continuations andcontinuations-in-part, and extensions thereof; and (ii) any correspondingforeign patents or patent applications related or claiming priority thereto.

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## (h)                                 “Valid andEnforceable” means, with respect to any patent claim, a claim in anyunexpired patent which has not been held invalid or unenforceable by a decisionof a court or other governmental agency of competent jurisdiction, unappealableor unappealed within the time period allowed for appeal, or which has not beenadmitted to be invalid through reissue, reexamination or disclaimer.

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# 2.                                       License.

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## (a)                                  Grant. Licensorhereby grants to Licensee and its Affiliates an exclusive, worldwide,nontransferable right and license, with the right to grant sublicenses as set forthin Section 2(b), under the Patent Rights (including, without limitation,any Improvements conceived or reduced to practice by an employee, agent, orconsultant of Licensor) to develop, design, modify, improve, make, have made,use, import, offer to sell and sell the Licensed Products solely in the Fieldof Use during the term of this Agreement. Licensee hereby acknowledges that: (i) Licensoris the sole and exclusive

 

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owner of all right, title and interest in andto the Patent Rights, and (ii) Licensor retains the right to use thePatent Rights for its own purposes and to use and grant to others licenses touse the Patent Rights outside the Field of Use. Except as set forth in thisAgreement, Licensee shall not have any right, title or interest in or to thePatent Rights. Licensee and its Affiliates shall have no right to manufacture,use, import, offer to sell or sell Licensed Products outside of the Field ofUse. Licensee will own all rights, title and interest in and to any Improvementconceived or reduced to practice by an employee, agent, or consultant ofLicensee or its Affiliates.

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## (b)                                 Sublicenses. Licenseeand its Affiliates may grant sublicenses under the Patent Rights withoutthe prior written consent of the Licensor solely in the Field of Use; *provided*, however, that (i) suchsublicenses are no less protective of Licensor’s rights as the provisions setforth in this Agreement, and to the extent applicable, shall include all of therights and obligations due to Licensor hereunder; and (ii) Licensee makespayments to Licensor based upon milestones and sales of Licensed Products byits Affiliates and such sublicensees in accordance with Section 3, as ifsuch milestones and sales of Licensed Product were reached and/or made byLicensee.

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## (c)                                  Patent Marking. Licensee,its Affiliates and all sublicensees shall mark all Licensed Products inaccordance with the statutes of any country where a patent application has beenfiled or a patent issued relating to the Patent Rights. To the extent theLicensed Product cannot be marked, such marking shall be included in theliterature and/or marketing materials describing the Licensed Product.

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# 3.                                       Payments.

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## (a)                                  Milestone Payments.In consideration of the licenses granted herein, Licensee shall make themilestone payments to Licensor as set forth in Section 3.2 of the ASA.

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## (b)                                 Notice ofTriggering Events. Licensee shall provide Licensor with prompt writtennotice of: (i) the commencement of Phase II clinical testing of anyLicensed Product; (ii) execution of any agreement by and between Licenseeor its Affiliates and any third party with respect to any Patent Rights or aLicensed Product; and (iii) the first commercial sale of each LicensedProduct (“First Commercial Sale”).

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## (c)                                  Books and Records.Licensee agrees to keep, and shall cause its Affiliates and sublicensees tokeep, complete and accurate books of account and records covering alltransactions relating to this Agreement, including Annual Net Sales as reportedpursuant to Section 3.2 of the ASA. All such books of account and recordsshall be kept available for at least two (2) years after the terminationor expiration of this Agreement.

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## (d)                                 Expenses. Unlessotherwise specifically set forth herein, all fees, costs and expenses incurredby Licensee in developing, manufacturing, promoting, marketing and sellingLicensed Products or otherwise incurred under this Agreement shall be bornesolely by Licensee.

 

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# 4.                                       RegulatoryApproval and Commercialization.

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## (a)                                  RegulatoryApprovals. Licensee shall be responsible, at its expense, for filing,obtaining, and maintaining all necessary authorizations from the FDA and anycomparable foreign regulatory authorities for the marketing and sale ofLicensed Products in the United States and such foreign countries as Licensee,in its sole discretion, determines. Licensee’s obligations under this Section 4(b) shallinclude the preparation and filing of any required submissions and theestablishment and oversight of any required clinical investigations andclinical follow-up relating to future commercial sale of the Licensed Products.

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## (b)                                 Manufacturing andSales. Upon receipt of a substantially equivalent letter from the FDA clearingthe Licensed Product for marketing, Licensee shall be responsible formanufacturing, marketing and selling such Licensed Product and Licensee shalluse commercially reasonable efforts to market and sell such Licensed Product.

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# 5.                                       Licensee’sRepresentations and Warranties. Licensee hereby represents and warrants toLicensor that as of the date hereof:

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## (a)                                  Licensee is acorporation duly organized, validly existing and in good standing under thelaws of the State of Delaware, and this Agreement has been duly authorized byall necessary corporate action on the part of Licensee.

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## (b)                                 This Agreement is thelegal, valid and binding obligation of Licensee, enforceable against Licenseein accordance with its terms.

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## (c)                                  Neither the executionand delivery of this Agreement nor the compliance with the terms and conditionshereof will conflict with, result in a breach or violation by Licensee of orconstitute a default under any of the terms, conditions or provisions of anycontract, agreement or other instrument to which Licensee is or may bebound or affected.

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(d)                                 Licenseewill comply with all applicable laws in performing its obligations under thisAgreement.

 

# 6.                                       Licensor’sRepresentations and Warranties. Licensor hereby represents and warrants toLicensee that as of the date hereof:

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## (a)                                  Licensor is acorporation duly organized, validly existing and in good standing under thelaws of the State of Delaware, and this Agreement has been duly authorized byall necessary corporate action on the part of Licensor.

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## (b)                                 This Agreement is thelegal, valid and binding obligation of Licensor, enforceable against Licensorin accordance with its terms.

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## (c)                                  Neither the executionand delivery of this Agreement nor the compliance with the terms and conditionshereof will conflict with, result in a breach or violation by

 

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Licensor of or constitute a default under anyof the terms, conditions or provisions of any contract, agreement or otherinstrument to which Licensor is or may be bound or affected.

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(d)                                 Licensorwill comply with all applicable laws in performing its obligations under thisAgreement.

 

EXCEPT FOR THE REPRESENTATIONS AND WARRANTIESIN SECTIONS 5 AND 6, THE PATENT RIGHTS ARE LICENSED ON AN “AS IS” BASIS, AND NOPARTY MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTY HEREUNDER, INCLUDING, WITHOUTLIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, OF MERCHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE, AND EACH HEREBY DISCLAIMS THE SAME.

 

# 7.                                       Termand Termination.

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## (a)                                  Term. The termof this Agreement shall commence on the Effective Date and shall remain inforce, unless terminated earlier in accordance with Section 7(b), untilthe last to expire of the Patent Rights.

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## (b)                                 Termination. Notwithstandingthe provisions of Section 7(a), this Agreement may be terminated uponmutual written agreement of the parties.

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## (c)                                  Rights andObligation on Termination. In the event of termination or expiration ofthis Agreement for any reason, the parties shall have the following rights andobligations:

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### (i)                                     Licensee shallremain responsible for any payment due to Licensor that has accrued prior tothe effective date of termination.

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### (ii)                                  The licenses grantedto Licensee under Sections 2(a) and 2(b) above shall immediatelyterminate and be of no further force and effect. Licensor, at its solediscretion, shall determine whether any or all sublicenses entered into by andbetween Licensee and its sublicensees prior to the effective date oftermination of this Agreement shall be canceled or assigned to Licensor.

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### (iii)                               Sections 1, 2(c), 3, 5,6, 7, 8, 9, 10, 11 and 12 shall survive termination of this Agreement.

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### (iv)                              Subject to itsobligations under Section 3, Licensee, its Affiliates and sublicenseesshall be permitted to sell any inventory of Licensed Product in fully-finished form onhand at the effective date of termination.

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(v)                                 Each party will return to the other party orcertify in writing to the other party that it has destroyed all documents andother tangible items it or its employees or agents have received or createdpursuant to this Agreement pertaining, referring or relating to theConfidential Information of the other party.

 

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# 8.                                       PatentProsecution and Infringement.

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## (a)                                  Patent Matters.Licensor shall pay when due all maintenance fees for the Patent Rights inaccordance with applicable laws and regulations. Licensor shall have soleresponsibility for the prosecution of the Patent Rights before the applicablegoverning examining authority, except that the Licensee shall have the right toparticipate, at its own expense, in the prosecution on any patent claims beforethe applicable examining authority that encompass subject matter in the Fieldof Use, including, but not limited to, the drafting and submitting to theexamining authority of new patent claims in the Field of Use either in apending, continuation or divisional application (“New Patent Claims”) and toreview and approve any submissions to the examining authority by Licensor thatpertain to claims encompassing subject matter in the Field of Use. In the eventLicensee requests that Licensor prosecute any New Patent Claims, Licensor shallprosecute such New Patent Claims at Licensee’s expense, subject to Licensee’sright to participate as set forth above. Licensor shall keep Licensee promptlyapprised of all proceedings concerning prosecution of the Patent Rights beforethe applicable examining authority and timely provide copies of allcorrespondence, filings and actions with such authorities. If Licensor intendsto abandon any of the Patent Rights, it shall so notify Licensee of its intentat least 30 days prior to such abandonment and shall assign any such rights toprosecute to Licensee. Following such assignment, Licensee shall have the rightto prosecute such abandoned Patent Rights in its own name at its own expense. Licenseeand Licensor shall cooperate fully with each other to execute all necessarydocumentation to enable each party to perform its duties and exercise itsrights under the terms of this Section 8(a).

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## (b)                                 Infringement. (i) Wheninformation comes to the attention of Licensor or Licensee to the effect thatany of the Patent Rights in the Field of Use have been or are threatened to beinfringed or misappropriated by a third party, Licensee, or Licensor, shouldLicensee decline to do so (as shall be evidenced by Licensee delivering noticeto Licensor of its election not to take action) (as applicable, the “ProsecutingParty”), shall have the right, but not the obligation, at its expense, totake such action as the Prosecuting Party may deem necessary to prosecuteor prevent such infringement or misappropriation, including the right to bringor defend any suit, action or proceeding involving any such disclosure,infringement or misappropriation. Licensor or Licensee, as applicable, shallnotify the other party hereto promptly of the receipt of any such informationwith respect to third party infringement or misappropriation and of thecommencement of any such suit, action or proceeding related thereto. If theProsecuting Party determines that it is necessary or desirable for the otherparty hereto to join any such suit, action or proceeding, the other partyhereto shall execute all documents and perform such other acts as may bereasonably required. The Prosecuting Party will reimburse the other party forits reasonable expenses incurred in connection with such matters, after theProsecuting Party’s reimbursement of its own costs and expenses.

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## (ii) The Prosecuting Party may collectfor its own use all damages, profits, settlements and awards of whatever naturerecoverable from such suit or in settlement thereof, and shall have the rightto first reimburse itself, out of any such sums recovered in such suit or in settlementthereof for all costs and expenses, including reasonable

 

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attorneys’ fees, reasonably involved in theprosecution of such suit. Any funds that shall remain from said recovery shallthen be used to reimburse the cooperating party, if applicable, for itsreasonable expenses, with the remainder to be retained by the ProsecutingParty.

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# 9.                                       Indemnification.

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## (a)                                  Indemnification byLicensor. Licensor shall indemnify, hold harmless, defend and protect Licenseeand its Affiliates, sublicensees, successors, assigns, employees,representatives and agents (“Licensee Indemnitees”) from and against anyand all claims, causes of action, costs, expenses, losses, damages andliabilities (including, without limitation, reasonable attorneys’ fees) (“Losses”)imposed upon the Licensee Indemnitees by a third party arising out of orresulting from (i) the breach of Licensor’s representations, warranties orobligations under this Agreement; or (ii) any negligence or intentionalmisconduct by Licensor (or its Affiliates agents, consultants or employees) inperforming its obligations under this Agreement. The foregoing indemnificationaction shall not apply in the event and to the extent that a court of competentjurisdiction determines that such Losses arose as a result of any LicenseeIndemnitees’ negligence, intentional misconduct or breach of this Agreement orare the subject of Section 9(b).

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## (b)                                 Indemnification byLicensee. Licensee shall indemnify, hold harmless, defend and protectLicensor and its Affiliates, successors, assigns, employees, representativesand agents (“Licensor Indemnitees”), from and against any and all Lossesimposed upon the Licensor Indemnitees by a third party arising out of orresulting from (i) the breach of Licensee’s representations, warranties orobligations under this Agreement, (ii) any negligence or intentionalmisconduct by Licensee (or its Affiliates agents, consultants or employees) inperforming its obligations under this Agreement; or (iii) any claimrelated to the development, design, manufacture, use, import, offer or sale ofthe Licensed Products by Licensee. The foregoing indemnification action shallnot apply in the event and to the extent that a court of competent jurisdictiondetermines that such Losses arose as a result of any Licensor Indemnitees’negligence, intentional misconduct or breach of this Agreement or are thesubject of Section 9(a).

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## (c)                                  Procedure. Ifa claim by a third party is made against an indemnified party and if theindemnified party intends to seek indemnity with respect thereto under this Section 9,such indemnified party shall promptly notify the indemnifying party of suchclaim; *provided* that failure togive timely notice shall not affect the rights of the indemnified party so longas the failure to give timely notice does not adversely affect the indemnifyingparty’s ability to defend such claim against a third party. The indemnifyingparty shall be entitled to assume the defense thereof, with counsel selected bythe indemnifying party. The indemnifying party shall have control of thedefense of any such action, including any appeals and negotiations for thesettlement or compromise thereof and shall have full authority to enter into abinding settlement or compromise; *provided*that the indemnifying party shall not enter into any settlement or compromisewhich may adversely affect the indemnified party without the indemnifiedparty’s consent, which consent shall not be unreasonably withheld. If theindemnifying party

 

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assumes the defense of such claim, theindemnifying party shall not be responsible for any legal or other expensessubsequently incurred by such indemnified party in connection with the defensethereof. The indemnified party may participate, at its own cost andexpense, in the defense of any such claim; *provided*that the indemnifying party shall control such defense.

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## (d)                                 Cooperation as toIndemnified Liability. Each indemnified party hereto shall, at the expenseof the indemnifying party, cooperate fully with the indemnifying party withrespect to access to books, records, or other documentation within theindemnified party’s control, if deemed reasonably necessary or appropriate bythe indemnifying party in the defense of any claim that may give rise toindemnification hereunder.

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# 10.                                 Confidentiality.(a) Confidential Information. Confidential Information of eachparty is the exclusive property of such party. Confidential Information ofeither party may be used by the other party only in connection with theperformance of or as authorized by this Agreement. Each party will protect theconfidentiality of Confidential Information of the other party in the samemanner that it protects the confidentiality of its own proprietary andconfidential information, including, without limitation, by entering intoappropriate confidentiality agreements with Affiliates, sublicensees,employees, independent contractors and subcontractors. Access to and use ofConfidential Information will be restricted to those of Licensor’s and Licensee’sAffiliates, employees or contractors engaged in a use permitted under thisAgreement and who have been apprised of the confidential nature of suchinformation. Each party will be responsible for any breaches of this Section 10by its Affiliates, employees or contractors. Confidential Information may notbe copied or reproduced without the disclosing party’s prior written consent,except as necessary for use in connection with this Agreement. Upon request ofthe other party or termination of this Agreement, each party shall return allsuch Confidential Information to the other party.

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(b) DisclosureUpon Process. In the event either party receives a subpoena, or othervalidly-issued administrative or judicial process, requesting that ConfidentialInformation of the other party be disclosed, it will promptly notify the otherparty of such receipt. The party receiving such request will thereafter beentitled to comply with such subpoena or other process, only to the extentrequired by law.

 

(c) Breach.If either party learns of any breach of this Section 10, it shall promptlynotify the other party. Breach or threatened breach of this Section 10could cause irreparable harm to the affected party and such party shall beentitled, without first exhausting other remedies or procedures, to equitablerelief, including injunctive relief, in addition to all of its other rights andremedies at law or in equity that may be available to it.

 

11.                                 Limitation ofLiability. EXCEPT FOR: (i) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDERSECTION 9, (ii) AMOUNTS PAYABLE WITH RESPECT TO THIRD PARTYINDEMNIFICATION CLAIMS, AND (iii) AMOUNTS PAYABLE WITH RESPECT TO LICENSOR’SFAILURE TO PROSECUTE AND MAINTAIN

 

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THE PATENT RIGHTS AS PROVIDED HEREIN, NEITHERPARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR FOR ANY INDIRECT,INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTIONWITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVERCAUSED, UNDER ANY THEORY OF LIABILITY.

 

# 12.                                 Miscellaneous.

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(a) Expenses. Except as otherwise specified in thisAgreement, all costs and expenses, including, without limitation, fees anddisbursements of counsel, financial advisors and accountants, incurred inconnection with this Agreement and the transactions contemplated hereby shallbe paid by the party incurring such costs and expenses.

 

(b) Further Assurances and Actions. Each of the partieshereto, upon the request of the other party hereto, whether before or after theEffective Date and without further consideration, shall, and shall cause theirrespective Affiliates to, do, execute, acknowledge and deliver or cause to bedone, 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 consummationof the transactions contemplated by this Agreement.

 

(c) Announcements. No party shall make a publicannouncement regarding the execution of this Agreement without the priorwritten consent of the other party; *provided*that nothing herein shall restrict Licensor or Licensee from making any publicannouncement of the execution of this Agreement to the extent that suchannouncement is required by law; *provided*that, prior to any such disclosure, the disclosing party shall provide theother party a reasonable time to review and comment upon such disclosure. Additionally,Licensee may disclose this Agreement and the transactions contemplatedhereby, to the extent reasonably necessary, in connection with any registrationof one (1) or more of the Licensed Products with any state or Federalagency. Once the Agreement is executed, the Licensee shall be free to makepublic announcements regarding advancements in the development andcommercialization of the technology and other relevant issues deemedappropriate by the Licensee without any prior consent of the Licensor.

 

(d) Notices. All notices, requests, claims, demands andother communications hereunder shall be in writing and shall be given or made(and shall be deemed to have been duly given or made upon receipt) by deliveryin person, by courier service, by telecopy or by registered or certified mail(postage prepaid, return receipt requested) to the respective parties at thefollowing addresses (or at such other address for a party as shall be specifiedin a notice given in accordance with this Section):

 

if to Licensor, then:

Access Pharmaceuticals, Inc.

2600 Stemmons Freeway

 

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Suite 176

Dallas, TX 75207

Telephone :  (214) 905-5100

Telecopy :  (214) 905-5101

Attn:                    Chief Executive Officer

 

with a copy to:

Bingham McCutchen LLP

150 Federal Street

Boston, MA 02110

Telephone: (617) 951-8000

Telecopy: (617) 951-8736

Attn: John J. Concannon III, Esq.

 

if to Licensee, then:

 

ULURU, Inc.

4939 Stonyford Drive

Dallas, TX 75287

Telephone: (972) 250-6383

Telecopy: (972) 250-6383

Attn:                    Kerry P. Gray

 

with a copy to:

 

McGuireWoods LLP

1345 Avenue of the Americas, 7thFloor

New York, NY 10105

Telephone: (212) 548-2138

Telecopy: (212) 548-2175

Attn: Louis W. Zehil, Esq.

 

(e) Applicable Law. This Agreement shall be governed by andconstrued in accordance with the laws of the State of Delaware without givingeffect to principles of conflict of laws. Each party to this Agreementexpressly and irrevocably (a) consents that legal action or proceedingagainst it arising out of this Agreement may be brought in any court ofthe State of Delaware or in the U.S. District Court for the District ofDelaware, (b) consents and submits to the personal jurisdiction of any ofsuch courts solely for purposes of such action or proceeding, (c) consentsto the service of any complaint, summons, notice or other process solely forpurposes of such action or proceeding by delivery thereof to him, her or it byhand or by any other manner provided for in Section 12(d) and (d) waivesany claim or defense solely for purposes of such action or based on any allegedlack of personal jurisdiction, improper venue or forum non conveniens or anysimilar basis. Nothing in this Section shall affect or impair in anymanner or to any extent the right of any party to commence legal proceedings or

 

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otherwise proceed against any other party inany jurisdiction or to serve process in any manner permitted by law.

 

(f) Entire Agreement; Amendments. This Agreement and the AssetSale Agreement, including the Exhibits hereto and thereto, constitute theentire agreement among the parties hereto with respect to the transactionsprovided for herein and as stated herein and in the agreements, instruments anddocuments executed and to be executed and delivered in connection herewith,contains all of the agreements between the parties hereto. There are no verbalagreements or understandings between the parties hereto not reflected in thisAgreement. This Agreement may not be amended or modified in any respectexcept by written instrument executed by each of the parties hereto.

 

(g) Counterparts. This Agreement may be executed intwo (2) or more counterparts, each of which shall be deemed to be anoriginal and all of which together, shall constitute the same Agreement.

 

(h) No Third Party Beneficiaries. This Agreement shall bebinding upon and inure solely to the benefit of the parties hereto and theirpermitted successors and assigns and nothing herein, express or implied, isintended to or shall confer upon any person or entity, any legal or equitablerights, benefits or remedies.

 

(i) Assignment. Neither party may assign its rights orobligations under this Agreement without the prior written consent of the otherparty and any purported assignment in violation hereof shall be null and void; *provided* that either party may assignits rights and obligations under this Agreement, without the prior writtenconsent of the other party, to (i) an Affiliate, or (ii) a successorof the assigning party’s business or the applicable business unit by reason ofmerger, sale of all or substantially all of the assets of the business orapplicable business unit,  *provided* that such successor to thebusiness or applicable business unit agrees in writing to be bound by thisAgreement. Such consent shall not be unreasonably withheld or delayed. Anypermitted assignee shall assume all obligations of its assignor under thisAgreement. No assignment shall relieve either party of its responsibility forthe performance of any obligation that accrued prior to the effective date ofsuch assignment hereunder.

 

(j) Severability. If any term or other provision of thisAgreement is invalid, illegal or incapable of being enforced by any law orpublic policy, all other terms and provisions of this Agreement shallnevertheless remain in full force and effect so long as the economic or legalsubstance of the transactions contemplated hereby is not affected in any mannermaterially adverse to any party. Upon such determination that any term or otherprovision is invalid, illegal or incapable of being enforced, the partieshereto shall negotiate in good faith to modify this Agreement so as to effectthe original intent of the parties as closely as possible in an acceptable mannerin order that the transactions contemplated hereby are consummated asoriginally contemplated to the greatest extent possible.

 

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(k) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLYAND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDINGRELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS, INSTRUMENTS AND DOCUMENTSCONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANYCOUNTERCLAIM THEREIN.

 

(l) No Waiver of Remedies. No delay on the part of Licenseeor Licensor in exercising any right, power or privilege hereunder shall operateas a waiver thereof, nor shall any waiver on the part of either Licenseeor Licensor of any right, power or privilege hereunder nor shall any single orpartial exercise of any right, power or privilege hereunder preclude any otheror further exercise thereof or the exercise of any other right, power orprivilege hereunder. The waiver of any terms or conditions of this Agreementshall not be construed as a waiver of any subsequent breach or a subsequentwaiver of the same term or condition, or waiver of any other term or condition,of this Agreement. The failure of any party to assert any of its rightshereunder shall not constitute a waiver of any of such rights.

 

## (m) Relationship. ThisAgreement shall not constitute either party as the legal representative,partner, joint venturer or agent of the other party hereto, nor shall eitherparty have the right or authority to assume, create, or incur any liability orany obligation of any kind, express or implied, against or in the name of or onbehalf of the other party hereto.

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*[The remainder of this page isintentionally left blank.]*

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof the Effective Date.

 
| ** ** | **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 |

 

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