PURCHASER NOR SELLER SHALL HAVE A RIGHT OR BE UNDER ANY
OBLIGATION TO ENTER INTO SUCH OSTEOCEL XC TRANSACTION, AND SELLER (SUBJECT TO
THE RIGHT OF PURCHASER TO EXERCISE ITS RIGHT PURSUANT TO SECTION 4.12(A)) MAY
CONSUMMATE WITH A THIRD-PARTY A TRANSACTION ON TERMS NOT MATERIALLY LESS
FAVORABLE TO SELLER, TAKEN AS A WHOLE, THAN THE TERMS CONTAINED IN THE
NEGOTIATION NOTICE.
IF PURCHASER DELIVERS AN AFFIRMATIVE RESPONSE NOTICE TO
SELLER PURSUANT TO THIS SECTION 4.12(B), PURCHASER SHALL PROVIDE TO SELLER A
DRAFT DEFINITIVE AGREEMENT FOR THE OSTEOCEL XC TRANSACTION.
Section 4.13
Brand and Trademarks. Except as expressly provided in this
Agreement or in the Manufacturing Agreement, Purchaser shall have no rights to
any of Seller's intellectual property other than the Transferred Technology, and
Seller shall have no rights to any of Purchaser's intellectual property.
Section 4.14
Consents.
Prior to the Technology Closing Date, Seller
shall use its commercially reasonable efforts to obtain in writing and at its
own expense all consents and waivers referred to on Schedule 2.5 hereto.
To the
extent that an attempted assignment or transfer of any Assumed Contract would
constitute a breach thereof, this Agreement shall not constitute an assignment
or attempted assignment thereof.
In such a case, Seller shall establish with
Purchaser any back-to-back arrangement reasonably requested by Purchaser in
order to provide for Purchaser the benefits intended to be assigned under any
such Assumed Contract (subject to the right of any third party thereunder to
terminate such Assumed Contract), including, without limitation, the enforcement
by Seller for the benefit of Purchaser, at Purchaser's sole cost and expense, of
any and all rights of Seller against a third party to such Assumed Contract
arising out of the breach by such third party or otherwise.
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Section 4.15
Hart-Scott-Rodino Notification.
(A)
SELLER AND PURCHASER SHALL EACH PROMPTLY PREPARE, EXECUTE AND FILE
A NOTIFICATION WITH THE UNITED STATES JUSTICE DEPARTMENT AND THE FEDERAL TRADE
COMMISSION AS REQUIRED BY THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED ("HSR").
SELLER AND PURCHASER SHALL COOPERATE WITH EACH OTHER
IN CONNECTION WITH THE PREPARATION OF SUCH NOTIFICATION, INCLUDING SHARING
INFORMATION CONCERNING SALES AND OWNERSHIP AND SUCH OTHER INFORMATION AS MAY BE
NEEDED TO COMPLETE SUCH NOTIFICATION, AND PROVIDING A COPY OF SUCH NOTIFICATION
TO THE OTHER PRIOR TO FILING.
EACH OF SELLER AND PURCHASER SHALL KEEP ALL
INFORMATION ABOUT THE OTHER OBTAINED IN CONNECTION WITH THE PREPARATION OF SUCH
NOTIFICATION CONFIDENTIAL.
PURCHASER AND SELLER SHALL EACH PAY ONE-HALF OF THE
FILING FEE REQUIRED UNDER BY THE REGULATIONS PROMULGATED PURSUANT TO HSR.
PURCHASER AND SELLER SHALL PROMPTLY INFORM THE OTHER OF ANY MATERIAL
COMMUNICATION BETWEEN SUCH PARTY AND ANY GOVERNMENTAL ENTITY REGARDING ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
IF EITHER PARTY RECEIVED ANY FORMAL OR
INFORMAL REQUEST FOR SUPPLEMENTAL INFORMATION OR DOCUMENTARY MATERIAL FROM ANY
GOVERNMENTAL ENTITY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY, THEN
THE RECIPIENT OF SUCH REQUEST SHALL MAKE, OR CASE TO BE MADE, AS SOON AS
REASONABLY PRACTICABLE, A RESPONSE IN COMPLIANCE WITH SUCH REQUEST