EXHIBIT
10.16
AMENDMENT
TO
ASSET
SALE AGREEMENT
December
8, 2006
Reference
is
made to that certain Asset Sale Agreement (the "Agreement"), dated as of
October
12, 2005, by and between Access Pharmaceuticals, Inc., a Delaware corporation
("Access"), and ULURU Delaware Inc., a Delaware corporation ("ULURU").
Capitalized terms used herein without definition have the meanings given
to them
in the Agreement.
WHEREAS,
pursuant to Section 14.6 of
the Agreement, the Agreement may not be amended or modified in any respect
except by written instrument executed by each of the Parties; and
WHEREAS,
the Parties desire to amend the Agreement on the terms set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Parties agree
as
follows:
1. Amendments
to Agreement.
(a) Section
1.1(kk) of the Agreement is hereby deleted in its entirety and replaced with
the
following:
""Products"
means, collectively the Aphthasol Product, the Mucoadhesive Product and the
ResiDerm Product and any product developed or sold under the License Agreement
or any product developed or sold under the Patents or Patent applications that
were transferred to ULURU pursuant to the Amendment to this Agreement, dated
as
of December 8, 2006, or any improvements or corollaries to the
foregoing."
(b) Sections
3.1(b) and (c) of the
Agreement are hereby deleted in their entirety and replaced with the
following:
"(b) Four
Million Nine Hundred Thousand Dollars ($4,900,000) delivered to Access by ULURU
on December 8, 2006 and Three Hundred Fifty Thousand Dollars ($350,000)
delivered to Access by Uluru on April 8, 2007.
(c) [Intentionally
Omitted]."
(c) Sections
3.2(a) (i), (ii), (iii), (iv), (v) and (vi) are hereby each deleted in their
entirety.
(d) Section
3.2(a)(vii) of the Agreement is amended as follows:
The
last milestone of such Section is hereby
changed from "$750,000" to "$875,000. "
(e) Section
4.2(b) of the Agreement is hereby deleted in its entirety and replaced with
the
following:
"(b) [Intentionally
Omitted]. "
(f) Section
4.2(d) of the Agreement is hereby deleted in its entirety.
2. Transfer
of Patent Rights and Know-how.
(a)
Access hereby agrees to sell, assign, transfer, convey and deliver to Uluru
and
Uluru agrees to purchase from Access, all rights, title and interest of Access
and its Affiliates (other than those arising out of the License Agreement
attached to this Amendment as Exhibit A) in and to the patent
applications set forth on Exhibit B to this Amendment (the åNanoparticle
Patentsæ) and all know-how and trade secrets of Access relating to its
nanoparticle aggregate technology (other than know-how and trade secrets as
they
relate solely to intraperotinial, intratumoral, subcutaneous or intramuscular
drug delivery implants), free and clear of all Encumbrances (as defined in
the
Agreement).
(b)
Access shall take all necessary action in order to effect the conveyance of
the
Nanoparticle Patents to Uluru.
(c) Access
agrees that it shall be responsible for and shall pay for all costs for the
Nanoparticle Patents which are either (i) currently due or (ii) or amounts
the
payment of which has been extended as a result of grace periods (i.e.,
annuities).
3. Zambon
Payment. Access agrees to send payment to Zambon of $135,000 within two
business days of the date that the Uluru payment set forth in 1(b) above is
credited to Access’ account.
4. Mutual
Releases. Each of Access and Uluru shall execute the Mutual Release
Agreement attached to this Amendment as Exhibit C.
5. Condition
to
Effectiveness. This Amendment shall not become effective until executed and
delivered by each of the Parties.
6. Ratification,
Etc.
Except as expressly amended hereby, all terms and conditions of the Agreement
are hereby ratified and confirmed in all respects and shall continue in full
force and effect. The Agreement and this Amendment shall be read and construed
as a single agreement. All references to the Agreement shall hereafter refer
to
the Agreement, as amended hereby.
7. No
Waiver. Except as set
forth herein, nothing contained herein shall constitute a waiver of, impair
or
otherwise affect, any obligation of any Party or any rights of any Party
consequent thereon.
8. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original but which together shall constitute one and the same
instrument.
9. Governing
Law. This
amendment shall be governed by, and construed in accordance with, the laws
of
the State of Delaware without giving effect to principles of conflict of
laws.
10. Press
Release. Each
party shall have the right to review the other party’s press release relating to
this Amendment prior to the release of any such press release.
[signatures
follow]
IN
WITNESS WHEREOF, each of the Parties has executed and delivered this
Amendment to Asset Sale Agreement as of the date first above
written.
ACCESS
PHARMACEUTICALS, INC.
By: /s/
Stephen B. Thompson
___________________________________
Name:
Stephen B.
Thompson
Title:
Vice
President, Chief Financial Officer
ULURU,
INC.
By: /s/
Kerry P. Gray
__________________________________
Name:
Kerry P. Gray
Title:
President and
CEO