WITH SELLER ANY SELLER EMPLOYEE FOR EMPLOYMENT WITH PURCHASER
COMMENCING PRIOR TO THE MANUFACTURING CLOSING DATE WITHOUT THE CONSENT OF
SELLER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
(C)
FROM AND AFTER THE TECHNOLOGY CLOSING DATE OR THE MANUFACTURING
CLOSING DATE, AS APPLICABLE, PURCHASER SHALL RECOGNIZE EACH TRANSFERRED
EMPLOYEE'S ORIGINAL HIRE DATE WITH SELLER AND PRIOR SERVICE WITH SELLER (AS
RECOGNIZED BY SELLER IMMEDIATELY PRIOR TO THE TECHNOLOGY CLOSING DATE OR THE
MANUFACTURING CLOSING DATE, AS APPLICABLE) AS SERVICE WITH PURCHASER FOR
PURPOSES OF ELIGIBILITY TO PARTICIPATE IN, AND DETERMINING VESTING AND ANY
ACCRUED BENEFITS BASED ON LENGTH OF SERVICE UNDER,
PURCHASER'S EMPLOYEE BENEFIT
PLANS, POLICIES, ARRANGEMENTS AND PAYROLL POLICIES, INCLUDING VACATION BENEFITS.
(D)
SELLER SHALL MAKE EMPLOYMENT FILES OF THE SELLER EMPLOYEES
AVAILABLE FOR INSPECTION BY PURCHASER, TO THE EXTENT PERMITTED BY AND IN
ACCORDANCE WITH APPLICABLE LAW.
(E)
SELLER SHALL, AT PURCHASERS REQUEST, ACCELERATE THE VESTING OF ANY
SELLER OPTIONS HELD BY ONE OR MORE TRANSFERRED EMPLOYEES AT OR FOLLOWING THE
TECHNOLOGY CLOSING ON THE TERMS AND SUBJECT TO THE CONDITIONS AS PURCHASER SHALL
REASONABLY REQUEST AND IN A MANNER CONSISTENT WITH THE APPLICABLE PLAN OPTION
AGREEMENTS AND RELATED DOCUMENTS.
32
Section 4.12
Right of First Negotiation; Purchase Option.
(A)
PURCHASE OPTION.
FOR A PERIOD COMMENCING ON THE TECHNOLOGY
CLOSING DATE AND ENDING AT 11:59 P.M. PACIFIC TIME ON DECEMBER 31, 2009,
PURCHASER SHALL HAVE THE RIGHT TO ACQUIRE, AND SELLER SHALL BE OBLIGATED TO
PROVIDE, THE EXCLUSIVE RIGHTS TO ANY SECOND GENERATION MESENCHYMAL STEM CELL
PRODUCT FOR BONE REPAIR UTILIZING CULTURE EXPANDED MESENCHYMAL STEMCELLS TO
CREATE A SYNTHETIC VERSION OF THE PRODUCT ("OSTEOCEL XC®") ON THE TERMS AND
CONDITIONS SET FORTH ON SCHEDULE 4.12.
(B)
RIGHT OF FIRST NEGOTIATION.
FROM THE TECHNOLOGY CLOSING DATE
UNTIL DECEMBER 31, 2009, AND SUBJECT TO PURCHASER'S RIGHTS UNDER
SECTION 4.12(A) HEREOF, IF SELLER DESIRES TO ENTER INTO A TRANSACTION OR ACCEPT
A THIRD-PARTY PROPOSAL FOR THE SALE (WHETHER DIRECTLY OR BY MERGER, ACQUISITION
OR ANY OTHER ASSET SALE OR CHANGE OF CONTROL TRANSACTION), LICENSE,
JOINT-VENTURE ARRANGEMENT, TRANSFER OR PARTIAL TRANSFER (OR SIMILAR ARRANGEMENT)
OF OSTEOCEL XC® (AN "OSTEOCEL XC TRANSACTION"), IT SHALL FIRST PROVIDE PURCHASER
WITH A NOTICE OF SUCH DESIRED OSTEOCEL XC TRANSACTION (A "NEGOTIATION NOTICE").
THE NEGOTIATION NOTICE SHALL INCLUDE IN REASONABLE DETAIL ALL MATERIAL ECONOMIC,
LEGAL AND BUSINESS TERMS OF THE OSTEOCEL XC TRANSACTION PROPOSED BY SELLER.
IF,
WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF A NEGOTIATION NOTICE, PURCHASER
GIVES SELLER WRITTEN NOTICE OF ITS INTEREST TO NEGOTIATE SUCH OSTEOCEL XC
TRANSACTION ON THE TERMS CONTAINED IN THE NEGOTIATION NOTICE (AN "AFFIRMATIVE
RESPONSE NOTICE"), THEN SELLER AND PURCHASER AGREE, PROMPTLY AND IN GOOD FAITH,
TO EXCLUSIVELY NEGOTIATE A LEGALLY-BINDING AGREEMENT TO CARRY OUT SUCH OSTEOCEL
XC TRANSACTION.
IF PURCHASER FAILS TO RESPOND TO THE NEGOTIATION NOTICE WITHIN
SAID FIVE (5) BUSINESS DAY PERIOD, OR IF SELLER AND PURCHASER FAIL, AFTER GOOD
FAITH EFFORTS, TO ENTER INTO A WRITTEN AGREEMENT FOR SUCH OSTEOCEL XC
TRANSACTION WITHIN THIRTY (30) DAYS AFTER DELIVERY OF SELLER'S NEGOTIATION
NOTICE, THEN NEITHER