Exhibit 10.26
Execution Copy
LICENSE AGREEMENT
THIS LICENSE
AGREEMENT (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. Licensor
and Licensee have entered into an Asset Sale Agreement of even date herewith
(the ASA) whereby Licensor is selling certain of its assets and
liabilities to Licensee as of the Closing Date (as defined therein).
B. Pursuant
to the ASA, Licensor has retained ownership of certain patents and patent
applications, including certain patent applications related to its nanoparticle aggregate
technology (as described in Exhibit A attached hereto, the Patents).
C. Licensee
desires to obtain from Licensor, and Licensor desires to grant to Licensee, an
exclusive, fully-paid up, worldwide license under the Patent Rights (as defined
below) in the Field of Use described below, on the terms and conditions set
forth in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions.
Capitalized terms used but not defined herein shall have the meanings set forth
in the ASA.
(a) Affiliate
when used to indicate a relationship with any person or entity, means (i) any
corporation, firm, partnership or other entity, whether de jure or de facto,
which directly or indirectly owns, is owned by or is under common ownership
with such person or entity to the extent of at least fifty percent (50%) of the
equity (or such lesser percentage which is the maximum allowed to be owned by a
foreign corporation in a particular jurisdiction) having the power to vote on
or direct the affairs of the entity, or (ii) any person, firm,
partnership, corporation or other entity actually controlled by, controlling or
under common control with such person or entity.
(b) Confidential
Information means any information which is disclosed by Licensee or
Licensor during the term of this Agreement which is or should be reasonably understood by the receiving party to
be confidential or proprietary to the disclosing party, including,
without limitation, any non-public information of Licensee or Licensor, and any
scientific or technical data, know-how or expertise of Licensee or Licensor
that relates to a Licensed Product (whether existing at or after the Effective
Date); provided, however, that Confidential Information shall
not include information that (i) was in the receiving partys possession
or was known to it prior to its receipt from the disclosing party, as evidenced
by the receiving partys written records; (ii) is or becomes public
knowledge without the fault of the receiving
party; (iii) is or becomes rightfully available on an unrestricted basis
to the receiving party from a source other than a party owing an obligation of
confidentiality to the disclosing party; or (iv) is independently
developed by employees of the receiving party who have not had direct or
indirect access to the disclosing partys Confidential Information, as
evidenced by the receiving partys written record.
(c) FDA means
the Food and Drug Administration of the U.S. Department of Health and Human
Services.
(d) Field of Usemeans
all applications of the Patent Rights excluding subcutaneous or intramuscular
drug delivery implants.
(e) Improvements
means, individually and collectively, all discoveries, inventions,
know-how, techniques, methodologies, modifications, improvements, designs and
data (whether or not protectable under patent, trade secrecy or similar laws)
relating to additions, developments, enhancements, updates and other changes in
or to the Patent Rights.
(f) Licensed
Product means any product or device that: (i) is developed, designed,
modified, improved, manufactured, used, imported, sold or offered for sale by
or 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 Enforceable
claim in the Patent Rights; or (ii) incorporates the Patent Rights.
(g) Patent Rights
means each and all of the following: (i) all right, title and interest of
Licensor and its Affiliates in the Patents, any Valid and Enforceable claim in
any patent issuing from any patent applications, and any Valid and Enforceable
claim in any issued patent, claiming priority to any of the foregoing,
including any reissues, re-examinations, divisionals, continuations and
continuations-in-part, and extensions thereof; and (ii) any corresponding
foreign patents or patent applications related or claiming priority thereto.
(h) Valid and
Enforceable means, with respect to any patent claim, a claim in any
unexpired patent which has not been held invalid or unenforceable by a decision
of a court or other governmental agency of competent jurisdiction, unappealable
or unappealed within the time period allowed for appeal, or which has not been
admitted to be invalid through reissue, reexamination or disclaimer.
2. License.
(a) Grant. Licensor
hereby grants to Licensee and its Affiliates an exclusive, worldwide,
nontransferable right and license, with the right to grant sublicenses as set forth
in Section 2(b), under the Patent Rights (including, without limitation,
any Improvements conceived or reduced to practice by an employee, agent, or
consultant of Licensor) to develop, design, modify, improve, make, have made,
use, import, offer to sell and sell the Licensed Products solely in the Field
of Use during the term of this Agreement. Licensee hereby acknowledges that: (i) Licensor
is the sole and exclusive
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owner of all right, title and interest in and
to the Patent Rights, and (ii) Licensor retains the right to use the
Patent Rights for its own purposes and to use and grant to others licenses to
use the Patent Rights outside the Field of Use. Except as set forth in this
Agreement, Licensee shall not have any right, title or interest in or to the
Patent Rights. Licensee and its Affiliates shall have no right to manufacture,
use, import, offer to sell or sell Licensed Products outside of the Field of
Use. Licensee will own all rights, title and interest in and to any Improvement
conceived or reduced to practice by an employee, agent, or consultant of
Licensee or its Affiliates.
(b) Sublicenses. Licensee
and its Affiliates may grant sublicenses under the Patent Rights without
the prior written consent of the Licensor solely in the Field of Use; provided, however, that (i) such
sublicenses are no less protective of Licensors rights as the provisions set
forth in this Agreement, and to the extent applicable, shall include all of the
rights and obligations due to Licensor hereunder; and (ii) Licensee makes
payments to Licensor based upon milestones and sales of Licensed Products by
its Affiliates and such sublicensees in accordance with Section 3, as if
such milestones and sales of Licensed Product were reached and/or made by
Licensee.
(c) Patent Marking. Licensee,
its Affiliates and all sublicensees shall mark all Licensed Products in
accordance with the statutes of any country where a patent application has been
filed or a patent issued relating to the Patent Rights. To the extent the
Licensed Product cannot be marked, such marking shall be included in the
literature and/or marketing materials describing the Licensed Product.
3. Payments.
(a) Milestone Payments.
In consideration of the licenses granted herein, Licensee shall make the
milestone payments to Licensor as set forth in Section 3.2 of the ASA.
(b) Notice of
Triggering Events. Licensee shall provide Licensor with prompt written
notice of: (i) the commencement of Phase II clinical testing of any
Licensed Product; (ii) execution of any agreement by and between Licensee
or its Affiliates and any third party with respect to any Patent Rights or a
Licensed Product; and (iii) the first commercial sale of each Licensed
Product (First Commercial Sale).
(c) Books and Records.
Licensee agrees to keep, and shall cause its Affiliates and sublicensees to
keep, complete and accurate books of account and records covering all
transactions relating to this Agreement, including Annual Net Sales as reported
pursuant to Section 3.2 of the ASA. All such books of account and records
shall be kept available for at least two (2) years after the termination
or expiration of this Agreement.
(d) Expenses. Unless
otherwise specifically set forth herein, all fees, costs and expenses incurred
by Licensee in developing, manufacturing, promoting, marketing and selling
Licensed Products or otherwise incurred under this Agreement shall be borne
solely by Licensee.
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4. Regulatory
Approval and Commercialization.
(a) Regulatory
Approvals. Licensee shall be responsible, at its expense, for filing,
obtaining, and maintaining all necessary authorizations from the FDA and any
comparable foreign regulatory authorities for the marketing and sale of
Licensed Products in the United States and such foreign countries as Licensee,
in its sole discretion, determines. Licensees obligations under this Section 4(b) shall
include the preparation and filing of any required submissions and the
establishment and oversight of any required clinical investigations and
clinical follow-up relating to future commercial sale of the Licensed Products.
(b) Manufacturing and
Sales. Upon receipt of a substantially equivalent letter from the FDA clearing
the Licensed Product for marketing, Licensee shall be responsible for
manufacturing, marketing and selling such Licensed Product and Licensee shall
use commercially reasonable efforts to market and sell such Licensed Product.
5. Licensees
Representations and Warranties. Licensee hereby represents and warrants to
Licensor that as of the date hereof:
(a) Licensee is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and this Agreement has been duly authorized by
all necessary corporate action on the part of Licensee.
(b) This Agreement is the
legal, valid and binding obligation of Licensee, enforceable against Licensee
in accordance with its terms.
(c) Neither the execution
and delivery of this Agreement nor the compliance with the terms and conditions
hereof will conflict with, result in a breach or violation by Licensee of or
constitute a default under any of the terms, conditions or provisions of any
contract, agreement or other instrument to which Licensee is or may be
bound or affected.
(d) Licensee
will comply with all applicable laws in performing its obligations under this
Agreement.
6. Licensors
Representations and Warranties. Licensor hereby represents and warrants to
Licensee that as of the date hereof:
(a) Licensor is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and this Agreement has been duly authorized by
all necessary corporate action on the part of Licensor.
(b) This Agreement is the
legal, valid and binding obligation of Licensor, enforceable against Licensor
in accordance with its terms.
(c) Neither the execution
and delivery of this Agreement nor the compliance with the terms and conditions
hereof will conflict with, result in a breach or violation by
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Licensor of or constitute a default under any
of the terms, conditions or provisions of any contract, agreement or other
instrument to which Licensor is or may be bound or affected.
(d) Licensor
will comply with all applicable laws in performing its obligations under this
Agreement.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
IN SECTIONS 5 AND 6, THE PATENT RIGHTS ARE LICENSED ON AN AS IS BASIS, AND NO
PARTY MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTY HEREUNDER, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND EACH HEREBY DISCLAIMS THE SAME.
7. Term
and Termination.
(a) Term. The term
of this Agreement shall commence on the Effective Date and shall remain in
force, unless terminated earlier in accordance with Section 7(b), until
the last to expire of the Patent Rights.
(b) Termination. Notwithstanding
the provisions of Section 7(a), this Agreement may be terminated upon
mutual written agreement of the parties.
(c) Rights and
Obligation on Termination. In the event of termination or expiration of
this Agreement for any reason, the parties shall have the following rights and
obligations:
(i) Licensee shall
remain responsible for any payment due to Licensor that has accrued prior to
the effective date of termination.
(ii) The licenses granted
to Licensee under Sections 2(a) and 2(b) above shall immediately
terminate and be of no further force and effect. Licensor, at its sole
discretion, shall determine whether any or all sublicenses entered into by and
between Licensee and its sublicensees prior to the effective date of
termination of this Agreement shall be canceled or assigned to Licensor.
(iii) Sections 1, 2(c), 3, 5,
6, 7, 8, 9, 10, 11 and 12 shall survive termination of this Agreement.
(iv) Subject to its
obligations under Section 3, Licensee, its Affiliates and sublicensees
shall be permitted to sell any inventory of Licensed Product in fully-finished form on
hand at the effective date of termination.
(v) Each party will return to the other party or
certify in writing to the other party that it has destroyed all documents and
other tangible items it or its employees or agents have received or created
pursuant to this Agreement pertaining, referring or relating to the
Confidential Information of the other party.
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8. Patent
Prosecution and Infringement.
(a) Patent Matters.
Licensor shall pay when due all maintenance fees for the Patent Rights in
accordance with applicable laws and regulations. Licensor shall have sole
responsibility for the prosecution of the Patent Rights before the applicable
governing examining authority, except that the Licensee shall have the right to
participate, at its own expense, in the prosecution on any patent claims before
the applicable examining authority that encompass subject matter in the Field
of Use, including, but not limited to, the drafting and submitting to the
examining authority of new patent claims in the Field of Use either in a
pending, continuation or divisional application (New Patent Claims) and to
review and approve any submissions to the examining authority by Licensor that
pertain to claims encompassing subject matter in the Field of Use. In the event
Licensee requests that Licensor prosecute any New Patent Claims, Licensor shall
prosecute such New Patent Claims at Licensees expense, subject to Licensees
right to participate as set forth above. Licensor shall keep Licensee promptly
apprised of all proceedings concerning prosecution of the Patent Rights before
the applicable examining authority and timely provide copies of all
correspondence, filings and actions with such authorities. If Licensor intends
to abandon any of the Patent Rights, it shall so notify Licensee of its intent
at least 30 days prior to such abandonment and shall assign any such rights to
prosecute to Licensee. Following such assignment, Licensee shall have the right
to prosecute such abandoned Patent Rights in its own name at its own expense. Licensee
and Licensor shall cooperate fully with each other to execute all necessary
documentation to enable each party to perform its duties and exercise its
rights under the terms of this Section 8(a).
(b) Infringement. (i) When
information comes to the attention of Licensor or Licensee to the effect that
any of the Patent Rights in the Field of Use have been or are threatened to be
infringed or misappropriated by a third party, Licensee, or Licensor, should
Licensee decline to do so (as shall be evidenced by Licensee delivering notice
to Licensor of its election not to take action) (as applicable, the Prosecuting
Party), shall have the right, but not the obligation, at its expense, to
take such action as the Prosecuting Party may deem necessary to prosecute
or prevent such infringement or misappropriation, including the right to bring
or defend any suit, action or proceeding involving any such disclosure,
infringement or misappropriation. Licensor or Licensee, as applicable, shall
notify the other party hereto promptly of the receipt of any such information
with respect to third party infringement or misappropriation and of the
commencement of any such suit, action or proceeding related thereto. If the
Prosecuting Party determines that it is necessary or desirable for the other
party hereto to join any such suit, action or proceeding, the other party
hereto shall execute all documents and perform such other acts as may be
reasonably required. The Prosecuting Party will reimburse the other party for
its reasonable expenses incurred in connection with such matters, after the
Prosecuting Partys reimbursement of its own costs and expenses.
(ii) The Prosecuting Party may collect
for its own use all damages, profits, settlements and awards of whatever nature
recoverable from such suit or in settlement thereof, and shall have the right
to first reimburse itself, out of any such sums recovered in such suit or in settlement
thereof for all costs and expenses, including reasonable
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attorneys fees, reasonably involved in the
prosecution of such suit. Any funds that shall remain from said recovery shall
then be used to reimburse the cooperating party, if applicable, for its
reasonable expenses, with the remainder to be retained by the Prosecuting
Party.
9. Indemnification.
(a) Indemnification by
Licensor. Licensor shall indemnify, hold harmless, defend and protect Licensee
and its Affiliates, sublicensees, successors, assigns, employees,
representatives and agents (Licensee Indemnitees) from and against any
and all claims, causes of action, costs, expenses, losses, damages and
liabilities (including, without limitation, reasonable attorneys fees) (Losses)
imposed upon the Licensee Indemnitees by a third party arising out of or
resulting from (i) the breach of Licensors representations, warranties or
obligations under this Agreement; or (ii) any negligence or intentional
misconduct by Licensor (or its Affiliates agents, consultants or employees) in
performing its obligations under this Agreement. The foregoing indemnification
action shall not apply in the event and to the extent that a court of competent
jurisdiction determines that such Losses arose as a result of any Licensee
Indemnitees negligence, intentional misconduct or breach of this Agreement or
are the subject of Section 9(b).
(b) Indemnification by
Licensee. Licensee shall indemnify, hold harmless, defend and protect
Licensor and its Affiliates, successors, assigns, employees, representatives
and agents (Licensor Indemnitees), from and against any and all Losses
imposed upon the Licensor Indemnitees by a third party arising out of or
resulting from (i) the breach of Licensees representations, warranties or
obligations under this Agreement, (ii) any negligence or intentional
misconduct by Licensee (or its Affiliates agents, consultants or employees) in
performing its obligations under this Agreement; or (iii) any claim
related to the development, design, manufacture, use, import, offer or sale of
the Licensed Products by Licensee. The foregoing indemnification action shall
not apply in the event and to the extent that a court of competent jurisdiction
determines that such Losses arose as a result of any Licensor Indemnitees
negligence, intentional misconduct or breach of this Agreement or are the
subject of Section 9(a).
(c) Procedure. If
a claim by a third party is made against an indemnified party and if the
indemnified party intends to seek indemnity with respect thereto under this Section 9,
such indemnified party shall promptly notify the indemnifying party of such
claim; provided that failure to
give timely notice shall not affect the rights of the indemnified party so long
as the failure to give timely notice does not adversely affect the indemnifying
partys ability to defend such claim against a third party. The indemnifying
party shall be entitled to assume the defense thereof, with counsel selected by
the indemnifying party. The indemnifying party shall have control of the
defense of any such action, including any appeals and negotiations for the
settlement or compromise thereof and shall have full authority to enter into a
binding settlement or compromise; provided
that the indemnifying party shall not enter into any settlement or compromise
which may adversely affect the indemnified party without the indemnified
partys consent, which consent shall not be unreasonably withheld. If the
indemnifying party
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assumes the defense of such claim, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party may participate, at its own cost and
expense, in the defense of any such claim; provided
that the indemnifying party shall control such defense.
(d) Cooperation as to
Indemnified Liability. Each indemnified party hereto shall, at the expense
of the indemnifying party, cooperate fully with the indemnifying party with
respect to access to books, records, or other documentation within the
indemnified partys control, if deemed reasonably necessary or appropriate by
the indemnifying party in the defense of any claim that may give rise to
indemnification hereunder.
10. Confidentiality.
(a) Confidential Information. Confidential Information of each
party is the exclusive property of such party. Confidential Information of
either party may be used by the other party only in connection with the
performance of or as authorized by this Agreement. Each party will protect the
confidentiality of Confidential Information of the other party in the same
manner that it protects the confidentiality of its own proprietary and
confidential information, including, without limitation, by entering into
appropriate confidentiality agreements with Affiliates, sublicensees,
employees, independent contractors and subcontractors. Access to and use of
Confidential Information will be restricted to those of Licensors and Licensees
Affiliates, employees or contractors engaged in a use permitted under this
Agreement and who have been apprised of the confidential nature of such
information. Each party will be responsible for any breaches of this Section 10
by its Affiliates, employees or contractors. Confidential Information may not
be copied or reproduced without the disclosing partys prior written consent,
except as necessary for use in connection with this Agreement. Upon request of
the other party or termination of this Agreement, each party shall return all
such Confidential Information to the other party.
(b) Disclosure
Upon Process. In the event either party receives a subpoena, or other
validly-issued administrative or judicial process, requesting that Confidential
Information of the other party be disclosed, it will promptly notify the other
party of such receipt. The party receiving such request will thereafter be
entitled to comply with such subpoena or other process, only to the extent
required by law.
(c) Breach.
If either party learns of any breach of this Section 10, it shall promptly
notify the other party. Breach or threatened breach of this Section 10
could cause irreparable harm to the affected party and such party shall be
entitled, without first exhausting other remedies or procedures, to equitable
relief, including injunctive relief, in addition to all of its other rights and
remedies at law or in equity that may be available to it.
11. Limitation of
Liability. EXCEPT FOR: (i) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 9, (ii) AMOUNTS PAYABLE WITH RESPECT TO THIRD PARTY
INDEMNIFICATION CLAIMS, AND (iii) AMOUNTS PAYABLE WITH RESPECT TO LICENSORS
FAILURE TO PROSECUTE AND MAINTAIN
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THE PATENT RIGHTS AS PROVIDED HEREIN, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER
CAUSED, UNDER ANY THEORY OF LIABILITY.
12. Miscellaneous.
(a) Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses.
(b) Further Assurances and Actions. Each of the parties
hereto, upon the request of the other party hereto, whether before or after the
Effective Date and without further consideration, shall, and shall cause their
respective Affiliates to, do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged or delivered all such further acts, deeds,
documents, assignments, transfers, conveyances, powers of attorney and
assurances as may be reasonably necessary to effect complete consummation
of the transactions contemplated by this Agreement.
(c) Announcements. No party shall make a public
announcement regarding the execution of this Agreement without the prior
written consent of the other party; provided
that nothing herein shall restrict Licensor or Licensee from making any public
announcement of the execution of this Agreement to the extent that such
announcement is required by law; provided
that, prior to any such disclosure, the disclosing party shall provide the
other party a reasonable time to review and comment upon such disclosure. Additionally,
Licensee may disclose this Agreement and the transactions contemplated
hereby, to the extent reasonably necessary, in connection with any registration
of one (1) or more of the Licensed Products with any state or Federal
agency. Once the Agreement is executed, the Licensee shall be free to make
public announcements regarding advancements in the development and
commercialization of the technology and other relevant issues deemed
appropriate by the Licensee without any prior consent of the Licensor.
(d) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section):
if to Licensor, then:
Access Pharmaceuticals, Inc.
2600 Stemmons Freeway
9
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, 7th
Floor
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 and
construed in accordance with the laws of the State of Delaware without giving
effect to principles of conflict of laws. Each party to this Agreement
expressly and irrevocably (a) consents that legal action or proceeding
against it arising out of this Agreement may be brought in any court of
the State of Delaware or in the U.S. District Court for the District of
Delaware, (b) consents and submits to the personal jurisdiction of any of
such courts solely for purposes of such action or proceeding, (c) consents
to the service of any complaint, summons, notice or other process solely for
purposes of such action or proceeding by delivery thereof to him, her or it by
hand or by any other manner provided for in Section 12(d) and (d) waives
any claim or defense solely for purposes of such action or based on any alleged
lack of personal jurisdiction, improper venue or forum non conveniens or any
similar basis. Nothing in this Section shall affect or impair in any
manner or to any extent the right of any party to commence legal proceedings or
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otherwise proceed against any other party in
any jurisdiction or to serve process in any manner permitted by law.
(f) Entire Agreement; Amendments. This Agreement and the Asset
Sale Agreement, including the Exhibits hereto and thereto, constitute the
entire agreement among the parties hereto with respect to the transactions
provided for herein and as stated herein and in the agreements, instruments and
documents executed and to be executed and delivered in connection herewith,
contains all of the agreements between the parties hereto. There are no verbal
agreements or understandings between the parties hereto not reflected in this
Agreement. This Agreement may not be amended or modified in any respect
except by written instrument executed by each of the parties hereto.
(g) Counterparts. This Agreement may be executed in
two (2) or more counterparts, each of which shall be deemed to be an
original and all of which together, shall constitute the same Agreement.
(h) No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted successors and assigns and nothing herein, express or implied, is
intended to or shall confer upon any person or entity, any legal or equitable
rights, benefits or remedies.
(i) Assignment. Neither party may assign its rights or
obligations under this Agreement without the prior written consent of the other
party and any purported assignment in violation hereof shall be null and void; provided that either party may assign
its rights and obligations under this Agreement, without the prior written
consent of the other party, to (i) an Affiliate, or (ii) a successor
of the assigning partys business or the applicable business unit by reason of
merger, sale of all or substantially all of the assets of the business or
applicable business unit, provided that such successor to the
business or applicable business unit agrees in writing to be bound by this
Agreement. Such consent shall not be unreasonably withheld or delayed. Any
permitted assignee shall assume all obligations of its assignor under this
Agreement. No assignment shall relieve either party of its responsibility for
the performance of any obligation that accrued prior to the effective date of
such assignment hereunder.
(j) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable manner
in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
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(k) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY
COUNTERCLAIM THEREIN.
(l) No Waiver of Remedies. No delay on the part of Licensee
or Licensor in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of either Licensee
or Licensor of any right, power or privilege hereunder nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder. The waiver of any terms or conditions of this Agreement
shall not be construed as a waiver of any subsequent breach or a subsequent
waiver of the same term or condition, or waiver of any other term or condition,
of this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights.
(m) Relationship. This
Agreement shall not constitute either party as the legal representative,
partner, joint venturer or agent of the other party hereto, nor shall either
party have the right or authority to assume, create, or incur any liability or
any obligation of any kind, express or implied, against or in the name of or on
behalf of the other party hereto.
[The remainder of this page is
intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
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ACCESS PHARMACEUTICALS, INC.
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By
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/s/ Rosemary Mazanet
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Name: Rosemary Mazanet
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Title: Acting CEO
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ULURU, INC.
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By
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/s/ Kerry P. Gray
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Name: Kerry P. Gray
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Title: President & CEO
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