NOR THE RIGHTS OF OSIRIS HEREUNDER
MAY BE ASSIGNED TO ANY OTHER PERSON.
OSIRIS MAY TERMINATE THIS AGREEMENT UPON
FIFTEEN (15) DAYS' WRITTEN NOTICE TO FCF.
ANY NOTICES, CONSENTS, WAIVERS OR
OTHER COMMUNICATIONS REQUIRED TO BE GIVEN UNDER THE TERMS OF THIS AGREEMENT MUST
BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DELIVERED (I) UPON RECEIPT, WHEN
DELIVERED PERSONALLY, (II) UPON RECEIPT WHEN SENT BY FACSIMILE, OR (III) TWO
DAYS AFTER DEPOSIT WITH AN INTERNATIONALLY RECOGNIZED CARRIER SERVICE (E.G.
DHL), IN EACH CASE PROPERLY ADDRESSED TO THE PARTY TO RECEIVE THE SAME.
THE
ADDRESSES AND FACSIMILE NUMBERS FOR SUCH COMMUNICATIONS ARE ALL AS SET FORTH
HEREINABOVE.
11.
IF FOR ANY REASON THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
ARE NOT CONSUMMATED, EACH OF THE PARTIES HERETO SHALL KEEP CONFIDENTIAL ANY
INFORMATION OBTAINED FROM ANY OTHER PARTY (EXCEPT INFORMATION PUBLICLY AVAILABLE
ON SUCH PARTY'S DEMAND PRIOR TO THE DATE HEREOF, AND EXCEPT AS REQUIRED BY COURT
ORDER) AND SHALL PROMPTLY RETURN TO THE OTHER PARTIES ALL SCHEDULES, DOCUMENTS,
INSTRUMENTS, WORK PAPERS OR OTHER WRITTEN INFORMATION WITHOUT RETAINING COPIES
THEREOF, PREVIOUSLY FURNISHED BY IT AS A RESULT OF THIS AGREEMENT OR IN
CONNECTION HEREWITH.
12.
EACH OF THE PARTIES HERETO REPRESENTS AND HAS HAD NO DEALINGS IN
CONNECTION WITH THIS TRANSACTION WITH ANY FINDER OR BROKER WHO WILL DEMAND
PAYMENT OF ANY FEE OR COMMISSION FROM THE OTHER PARTY.
OSIRIS ON THE ONE HAND,
AND FCF, ON THE OTHER HAND AGREE TO INDEMNIFY THE OTHER AGAINST AND HOLD THE
OTHER HARMLESS FROM ANY AND ALL LIABILITIES TO ANY PERSON CLAIMING BROKERAGE
COMMISSIONS OR FINDER'S FEES ON ACCOUNT OF SERVICES PURPORTED TO HAVE BEEN
RENDERED ON BEHALF OF THE INDEMNIFYING PARTY IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
OSIRIS AGREES TO REIMBURSE FCF FOR ANY
FEES OR EXPENSES REASONABLY INCURRED BY FCF AND DIRECTLY RELATED TO ITS
PERFORMANCE HEREUNDER.
4
FRIEDLI CORPORATE FINANCE, INC.
OCTOBER 5, 2007
PAGE 5
13.
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT
DOES NOT AFFORD OR PROVIDE TO FCF OR ANY OTHER PERSON OR ENTITY ANY EXCLUSIVE
RIGHT IN RESPECT OF FINANCINGS TO BE UNDERTAKEN BY OSIRIS, DURING THE COMMITMENT
PERIOD OR OTHERWISE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OSIRIS
EXPRESSLY RESERVES THE RIGHT TO SEEK AND OBTAIN FINANCING FROM OR THROUGH THE
EFFORTS OF OTHERS FROM TIME TO TIME, NOTWITHSTANDING THE EXECUTION, DELIVERY OR
CONTINUED EXISTENCE OF THIS AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
5
FRIEDLI CORPORATE FINANCE, INC.
OCTOBER 5, 2007
PAGE 6
PROVIDED THAT THE FOREGOING TERMS ARE AGREEABLE AND ACCEPTABLE TO OSIRIS, PLEASE
EXECUTE THE ENCLOSED COPY OF THIS LETTER AND RETURN IT TO THE UNDERSIGNED,
WHEREUPON THIS LETTER SHALL CONSTITUTE THE BINDING AND ENFORCEABLE AGREEMENT AS
AMONGST THE PARTIES HERETO.
Very truly yours,
OSIRIS THERAPEUTICS, INC.
By:
/s/ C. RANDAL MILLS
Name: C. Randal Mills, Ph.D
Title: President
AGREED AND ACCEPTED
as of this 5th day of October, 2007
FRIEDLI CORPORATE FINANCE, INC.
By:
/s/ PETER FRIEDLI
Peter Friedli
President
6
EXHIBIT A
SUBSCRIPTION AGREEMENT