Exhibit 2.1

EXECUTION VERSION

Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Double asterisks denote omissions.

MASTER TRANSACTION AGREEMENT

by and between

BRISTOL-MYERS SQUIBB COMPANY

and

THE MEDICINES COMPANY

December 11, 2012

TABLE OF CONTENTS

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MASTER TRANSACTION AGREEMENT

THIS MASTER TRANSACTION AGREEMENT (this “Agreement”), dated as of December 11, 2012, is made by and between BRISTOL-MYERS SQUIBB COMPANY, a Delaware corporation (“BMS”), and THE MEDICINES COMPANY, a Delaware corporation (“Purchaser”).  Capitalized terms not otherwise defined in the text of this Agreement shall have the meanings set forth in Article 1 of this Agreement.

W I T N E S S E T H:

WHEREAS, BMS and the Selling Affiliates own or Control certain rights and assets relating to the Products;

WHEREAS, concurrently with the execution of this Agreement, BMS and Purchaser (or their respective Affiliates) have entered into a Supply Agreement pursuant to which the Parties have agreed that BMS will supply to Purchaser the Products, effective as of the Effective Date, all as more particularly described, and subject to the terms and conditions set forth, herein;

WHEREAS, BMS and Purchaser desire to enter into this Agreement pursuant to which BMS shall grant to Purchaser, and Purchaser shall undertake, certain rights and obligations to promote, market and sell the Products in the Territory, all as more particularly described, and subject to the terms and conditions set forth, herein;

WHEREAS, in connection with the rights granted by BMS to Purchaser under Section 2.1, BMS and the Selling Affiliates wish to sell to Purchaser and the Purchasing Affiliates, and Purchaser and the Purchasing Affiliates wish to purchase, the Collaboration Assets, all as more particularly described, and subject to the terms and conditions set forth, herein; and

WHEREAS, BMS and the Selling Affiliates wish to grant to Purchaser and the Purchasing Affiliates an option to purchase the Acquired Assets, and Purchaser and the Purchasing Affiliates wish to acquire such option, all as more particularly described, and subject to the terms and conditions set forth, herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1                                    Definitions.  For purposes of this Agreement, the following terms shall have the corresponding meanings set forth below:

“A&P Materials” has the meaning set forth in Section 3.2.3.1.

“Accounting Firm” has the meaning set forth in Section 10.5.3.2.

“Accounts Payable” means all trade accounts payable, regardless of when asserted, billed or imposed, of BMS or the Selling Affiliates.

“Accounts Receivable” means all accounts receivable, notes receivable and other indebtedness due and owing to BMS or the Selling Affiliates as of the end of the day immediately prior to the Purchase Closing Date, including all trade accounts receivable representing amounts receivable in respect of goods shipped, products sold or services rendered on or prior to the day immediately prior to the Purchase Closing Date and the full benefit of any security for such accounts or debts.

“Acquired Assets” means, collectively, all of the right, title and interest of BMS and the Selling Affiliates in, to and under the following assets: (i) the Transferred Intellectual Property; (ii) the Transferred Other Intellectual Property; (iii) the Transferred Contracts; (iv) the Transferred Inventory; (v) the Transferred Equipment; (vi) the Transferred Books and Records; (vii) all rights, claims and credits of BMS or any of its Affiliates to the extent related exclusively to the Business, any Acquired Asset or any Assumed Liability, including all claims, causes of action, choses in action, rights of recovery, rights of set off or recoupment, guarantees, warranties, indemnities, rights to payment or to enforce payment and similar rights in favor of BMS and its Affiliates, in each case related exclusively to the Business, any Acquired Asset or any Assumed Liability; (viii) all sales or promotional literature or brochures, advertising materials, art work, display units, in each case that are related exclusively to the Business; and (ix) any goodwill associated with the assets described in the foregoing clauses (i) through (viii); provided, however, that the Acquired Assets shall exclude the Excluded Assets and the Collaboration Assets.

“Acquisition” has the meaning set forth in Section 10.2.

“Acquisition Transaction” means (i) any merger, liquidation, recapitalization, consolidation or other business combination involving the Business, the Collaboration Assets or the Acquired Assets (excluding the transactions contemplated hereby), and (ii) any agreement, arrangement or understanding requiring BMS or any Selling Affiliate to abandon, terminate or fail to consummate any of the transactions contemplated hereby.

“Additional Product” means any hemostat drug product intended for use in humans containing thrombin (recombinant) (other than the Products) that (i) is Promoted, marketed or sold by Purchaser or any of its Affiliates or any Third Party on behalf of Purchaser or any of its Affiliates in any jurisdiction in the Territory and (ii) is approved by the JEC in accordance with the terms of this Agreement.

“Adverse Event” means any untoward or adverse medical occurrence in a patient or a clinical investigation subject who is administered any Product, including occurrences which do not necessarily have a causal relationship with such Product.

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“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; and for the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Aggregate Consideration” means, as of any time, the sum of each of the following amounts solely to the extent paid by Purchaser to BMS or any of its Affiliates at or prior to such time: (i) the Collaboration Fee, (ii) the Option Fee, (iii) the Purchase Price, and (iv) the Royalty Fees.

“Agreement” has the meaning set forth in the Preamble.

“Agreement Quarter” means each three (3) month-period commencing on the first day of January, April, July, or October, as the case may be, during the Collaboration Term; provided, that the first Agreement Quarter shall commence on the Effective Date and end on the last day of the Agreement Quarter in which the Effective Date occurs, and the last Agreement Quarter shall end upon the expiration or earlier termination of the Collaboration Term.

“Agreement Year” means each twelve (12)-month period commencing on January 1 and each anniversary thereof during the Collaboration Term; provided, that the first Agreement Year shall commence on the Effective Date and end on the last day of the Agreement Year in which the Effective Date occurs, and the last Agreement Year shall end upon the expiration or earlier termination of the Collaboration Term.

“Alliance Managers” has the meaning set forth in Section 3.2.2.1.

“Allocation” has the meaning set forth in Section 13.5.1.

“Ancillary Agreement” means, individually and collectively, each of the Confidentiality Agreement (as amended hereby), the Supply Agreement, the Quality Agreement, the Pharmacovigilance Agreement, the Sublease, the Transition Services Agreement and the Other Acquisition Documents.

“Assumed Collaboration Liabilities” means, collectively, all of the following Liabilities, in each case to the extent related to the period beginning immediately after the Collaboration Closing, but excluding any Liabilities related to the manufacture of any Product or of recombinant thrombin active ingredient by or on behalf of BMS or its Affiliates prior to the Purchase Closing: (i) all Liabilities to the extent arising out of or relating to the Collaboration Contracts (including all Liabilities to the extent arising out of or relating to any termination or announcement or notification of an intent to terminate any such Collaboration Contract); (ii) all Liabilities to the extent arising out of or relating to the Product Permits (other than the BMS Supply Permits); and (iii) all other Liabilities of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not accrued, to the extent arising out of or relating to the Collaboration Assets or the Promotion, marketing, and sale

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of the Products in the Territory, including any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental or Regulatory Authority.

“Assumed Liabilities” means, collectively, all of the following Liabilities, in each case to the extent related to the period beginning immediately after the Collaboration Closing (or, in the case of the following clause (i), the Purchase Closing), but excluding any Liabilities related to the manufacture of any Product or of recombinant thrombin active ingredient by or on behalf of BMS or its Affiliates prior to the Purchase Closing: (i) all Liabilities to the extent arising out of or relating to the Transferred Contracts (including all Liabilities to the extent arising out of or relating to any termination or announcement or notification of an intent to terminate any such Contract); (ii) all Liabilities in respect of any lawsuits, claims, actions or proceedings to the extent arising out of or relating to the manufacture, production or Exploitation of the Products in the Territory or the ownership, sale, lease or use of any of the Acquired Assets; (iii) all Liabilities for warranty claims and product liability or similar claims, including all suits, actions or proceedings relating to any such Liabilities, to the extent arising out of or relating to any and all Products in the Territory; (iv) all Liabilities for Taxes to the extent arising out of or relating to or in respect of any Product in the Territory or any Acquired Asset for any Post-Closing Tax Period, other than any Excluded Tax Liabilities; and (v) all other Liabilities (other than Excluded Liabilities) of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not accrued, to the extent arising out of or relating to the conduct of the Business in the Territory or the Acquired Assets, including any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental or Regulatory Authority.

“Average Net Sales” means the average of the Net Sales for all jurisdictions in the Territory for each of the two (2) consecutive periods of twelve (12) consecutive months in the Calculation Period (or if the Calculation Period consists of only one such period, the Net Sales for all jurisdictions in the Territory for such period).

“Bankruptcy Code” means Title 11 of the United States Code.

“Benefit Plans” has the meaning set forth in Section 18.2.10.1.

“BLA” means a Biologics License Application as required by Section 351 of the Public Health Service Act.

“BMS” has the meaning set forth in the Preamble.

“BMS 401(k) Plan” has the meaning set forth in Section 3.4.4.1.

“BMS Designated Representations” means each of the representations and warranties set forth in any of Section 18.2.5 (Intellectual Property) (except for the representations and warranties set forth in Sections 18.2.5.3, 18.2.5.5 and 18.2.5.9), Section 18.2.7 (Product Registrations) and Section 18.2.9 (to the extent relating to FDA Matters or Health Care Matters).

“BMS Employees” has the meaning set forth in Section 3.4.3.1.

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“BMS Fundamental Representations” means each of the representations and warranties of BMS set forth in any of Section 18.2.1 (Authority), Section 18.2.2 (No Conflicts; Consents), Section 18.2.3 (Taxes), Section 18.2.4 (Good and Valid Title), Sections 18.2.5.3, 18.2.5.5 and 18.2.5.9 (Intellectual Property), Section 18.2.10 (Employee Benefit Plans) (to the extent relating to Taxes) and Section 18.2.22 (Brokers and Agents).

“BMS Improvements” means any inventions, developments, modifications or improvements to any Product, process or production standards which are made solely by or on behalf of BMS and/or any of its Affiliates during the Collaboration Term (i) as a result of activities conducted by or for it or its Affiliates relating to a Product, or (ii) through the use of Purchaser Know-How, whether patentable or registerable or not, but excluding any Collaboration Assets or any Acquired Assets following the assignment thereof to Purchaser or a Purchasing Affiliate pursuant to this Agreement.

“BMS Indemnitees” has the meaning set forth in Section 16.2.

“BMS Know-How” means all proprietary Know-How regarding any Product that is now or may hereafter during the Collaboration Term be Controlled by BMS or any of its Affiliates, but excluding any Collaboration Assets or any Acquired Assets following the assignment thereof to Purchaser or a Purchasing Affiliate pursuant to this Agreement.

“BMS’ knowledge” means the actual knowledge of any of the individuals employed by BMS as of the date hereof or as of either Closing with the titles set forth in Exhibit 1.1.2.

“BMS Names” means “Bristol-Myers”, “Bristol-Myers Squibb”, “Bristol-Myers Squibb Company”, “E.R. Squibb & Sons”, “E.R. Squibb” and “ZymoGenetics”, and any variations and derivatives thereof and any other logos or trademarks of BMS or its Affiliates not included in the Transferred Intellectual Property or the Transferred Other Intellectual Property.

“BMS Relocation Benefits” has the meaning set forth in Section 3.4.5.

“BMS Supply Permits” has the meaning set forth in Section 6.7.1.

“BMS Works” has the meaning set forth in Section 5.8.

“Business” means that portion of the business of BMS and its Affiliates, directly or indirectly, consisting of the Exploitation of each Product in the Territory, as conducted on the date hereof.

“Business Day” means a day other than Saturday or Sunday or a day on which banks are required or authorized to close in the State of New York.

“Business Registrations” has the meaning set forth in Section 18.2.5.1.

“Calculation Period” means the period of twenty four (24) consecutive calendar months completed on or before the date that is fifteen (15) days prior to the Purchase Closing

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Date; provided, that if the Purchase Closing Date shall be less than twenty four (24) months after the Effective Date, the “Calculation Period” shall be the period of twelve (12) consecutive calendar months completed on or before the date that is fifteen (15) days prior to the Purchase Closing Date.

“Chargebacks” has the meaning set forth in Section 4.5.2.

“Closing Inventory Value” means the aggregate book value, calculated in accordance with BMS’ historical accounting policies and procedures based on the books and records of BMS, of the Transferred Inventory on the Purchase Closing Date.

“Closing Purchase Price” has the meaning set forth in Section 10.5.2.2.

“Closings” means, collectively, the Collaboration Closing and the Purchase Closing.

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Collaboration Assets” means, collectively, all of BMS’ and the Selling Affiliates’ right, title and interest in, to and under the following assets: (i) the Collaboration Contracts; (ii) the Collaboration Equipment; (iii) the Collaboration Books and Records and the telephone number 888-rthromb; (iv) the Product Registrations in accordance with Section 6.7; and (v) any goodwill associated with the assets described in the foregoing clauses (i) through (iv).

“Collaboration Assumption Agreement” has the meaning set forth in Section 2.4.2(iii).

“Collaboration Bill of Sale” has the meaning set forth in Section 2.4.2(ii).

“Collaboration Books and Records” means, collectively, all books and records prepared and maintained by BMS or any of its Affiliates, as of the Effective Date, that relate exclusively to the Business (other than the Transferred Books and Records and the Excluded Records), including all Regulatory Documentation other than Manufacturing Documentation.

“Collaboration Closing” has the meaning set forth in Section 2.4.1.

“Collaboration Contracts” means, collectively, the Contracts set forth in Exhibit 1.1.3.

“Collaboration Equipment” means, collectively, the fixtures, furniture, equipment and other personal property owned by BMS or any of the Selling Affiliates identified in Exhibit 1.1.4.

“Collaboration Term” has the meaning set forth in Section 15.1.1.

“Collaboration Fee” has the meaning set forth in Section 8.1.1.

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“Competing Business” has the meaning set forth in Section 13.10.1.

“Competing Product” has the meaning set forth in Section 2.3.1.

“Competition Law Authorizations” means all consents, approvals, licenses, permits, orders or authorizations of, or registrations, declarations or filings with, any Governmental or Regulatory Authority, and all applicable waiting periods (and any extensions thereof), in each case required pursuant to applicable Competition Laws for the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.

“Competition Laws” means any Law issued by any Governmental or Regulatory Authority of any jurisdiction having jurisdiction over BMS, any Selling Affiliates, Purchaser, any Purchasing Affiliates, the Business, the Collaboration Assets, the Acquired Assets or the Products that are designed or intended to prohibit, restrict or regulate actions that may have the purpose or effect of creating a monopoly, lessening competition or restraining trade.

“Confidential Information” has the meaning set forth in Section 17.1.

“Confidentiality Agreement” means that certain letter agreement, dated September 12, 2012, between BMS and Purchaser.

“Continuation Period” has the meaning set forth in Section 3.4.3.3.

“Contracts” means all contracts, leases, subleases, indentures, licenses, agreements, notes, bonds, indentures, franchises, Permits, instruments, deeds of trust, mortgages, commitments and all other  arrangements, plans, undertakings or understandings, whether written or oral.

“Controls” or “Controlled by” means, with respect to any asset, product, formulation, information or Intellectual Property or other right, that the applicable Party or Person, in whole or in part, owns or has a valid and existing right or license (other than pursuant to a license under this Agreement) to such asset, product, formula, information or Intellectual Property or other right and has the ability to use, or grant access or a license (or a sublicense) to, as applicable, such asset, product, formula, information or Intellectual Property or other right without violating the terms of any agreement or other arrangements with any Third Party existing at the time such Party or Person would be first required to use, or grant access or a license (or sublicense) to, as applicable, such asset, product, formula, information or Intellectual Property or other right; provided, however, that if such Third Party agreement or arrangement later terminates, or would no longer be violated, then such asset, product, formulation, information or Intellectual Property or other right shall be deemed Controlled by such Party or Person thereafter.

“Covered Fee” has the meaning set forth in Section 6.8.

“Counterpart” means (i) with respect to a patent, collectively, any patent applications from which such patent issued, and all patents and patent applications described in clause (ii) with respect to each such patent application; and (ii) with respect to a patent application (including any provisional application), the following items, collectively:  (a) all

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divisionals, continuations and continuations-in-part of such patent application; (b) any patents (including certificates of correction) issuing from such patent application or any patent application described in clause (a); (c) all patents and patent applications based on, corresponding to or claiming the priority date(s) of such patent application or any of the patents and patent applications described in clauses (a) or (b); (d) all rights derived from any of the items described in clauses (a), (b) or (c) including any substitutions, extensions (including supplemental protection certificates), registrations, confirmations, reissues, re-examinations and renewals of any of the patents described in clauses (b) or (c); and (e) foreign counterparts of any of the foregoing.

“CTA” means any clinical trial application, and supplements and amendments thereto, filed with the EMA or any other Governmental of Regulatory Authority of a member state of the European Union for authorization to commence clinical trials, and its equivalent in other countries or regulatory jurisdictions in the Territory.

“DDR” has the meaning set forth in Section 3.10.1.

“Disputed Collaboration Matter” has the meaning set forth in Section 14.1.

“Dollars” and “$” mean lawful money of the United States of America.

“Domain Name Assignment Agreement” has the meaning set forth in Section 10.5.1.2(vi).

“Early Termination Event” has the meaning set forth in Section 9.2.1.

“Effective Date” has the meaning set forth in Section 2.4.1.

“EMA” means the European Medicines Agency or any successor agency thereto.

“Employee Transfer Date” has the meaning set forth in Section 3.4.3.1.

“Employment Law” has the meaning set forth in Section 18.2.11.2.

“Environmental Permits” means all certificates, consents, permits, licenses, registrations, approvals or other authorizations issued under or pursuant to Environmental Law or otherwise relating to the use, emission or discharge of Hazardous Materials; and for the purposes of this Agreement, “Environmental Law” means any Law relating to pollution, protection of the environment or human health or the preservation or restoration of natural resources or exposure of Persons or property to Hazardous Materials, and “Hazardous Materials” means any hazardous, toxic or deleterious chemical, material, substance or waste, including radioactive, explosive, medical or biohazardous materials or wastes, petroleum and its byproducts and distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, urea formaldehyde foam insulation, pollutants, pesticides or any other material listed or subject to regulation under any Law due to its potential, directly or indirectly, to harm the environment or the health of humans or other living beings.

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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” has the meaning set forth in Section 18.2.10.6.

“Estimated Average Net Sales” has the meaning set forth in Section 10.5.2.1.

“Estimated Closing Inventory Value” has the meaning set forth in Section 10.5.2.1.

“Estimated Closing Purchase Price” has the meaning set forth in Section 10.5.2.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Assets” means, collectively, the following: (i) all cash and cash equivalents of BMS and its Affiliates; (ii) all Accounts Receivable; (iii) all Excluded Intellectual Property; (iv) all credits, deferred charges, and prepaid items of BMS or any of its Affiliates; (v) all Excluded Contracts; (vi) other than the Product Permits, all Permits of BMS or any of its Affiliates and all Environmental Permits of BMS or any of its Affiliates; (vii) all Excluded Records; (viii) all rights, claims and credits of BMS or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability, including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of BMS and its Affiliates in respect of any other Excluded Asset or any Excluded Liability; (ix) any refund or credit of Taxes attributable to any Excluded Tax Liability; (x) all insurance policies and insurance contracts insuring the Products or the Acquired Assets, together with any claim, action or other right BMS or any of its Affiliates might have for insurance coverage under any past and present policies and insurance contracts insuring the Products or the Acquired Assets, in each case including any proceeds received from any such policy or contract prior to, on or after the Purchase Closing Date; (xi) excluding the rights to be granted to Purchaser pursuant to the Sublease, all land, buildings, improvements and fixtures thereon owned or leased by BMS or any of its Affiliates; (xii) other than the Transferred Equipment, the Collaboration Equipment, the Transferred Inventory, the Collaboration Books and Records, the Transferred Books and Records and the items described in clause (viii) of the definition of Acquired Assets, all tangible personal property and other fixed assets and interests therein, including all equipment, furnishings, furniture and fixtures owned or leased by BMS or any of its Affiliates, and any warranty rights applicable to such tangible personal property, fixed assets and equipment; (xiii) the BMS Names; and (xiv) except as expressly included in the Acquired Assets or the Collaboration Assets, all other properties, assets, goodwill and rights of BMS, the Selling Affiliates and any of their respective Affiliates of whatever kind and nature, real, personal or mixed, tangible or intangible.

“Excluded Contracts” means, collectively, all Contracts to which BMS or any of its Affiliates is a party other than the Transferred Contracts and the Collaboration Contracts, but expressly including this Agreement, the Ancillary Agreements and the other agreements set forth in Exhibit 1.1.5, and all rights of BMS and its Affiliates under such agreements.

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“Excluded Intellectual Property” means, collectively, the following: (i) all Intellectual Property of BMS and its Affiliates, other than the Transferred Intellectual Property and Transferred Other Intellectual Property, but expressly including the intellectual property identified in Exhibit 1.1.6; and (ii) the Primarily-Related Technology.

“Excluded Liability” means, collectively, the following: (i) all Liabilities of BMS and its Affiliates to the extent (a) related to the Collaboration Assets, and (b) arising at or prior to the Collaboration Closing, (ii) all Liabilities of BMS and its Affiliates to the extent arising out of or relating to the ownership, sale, lease or license of any of the Acquired Assets during the Collaboration Term, except in each case to the extent included in the definition of Assumed Collaboration Liabilities (provided, that this clause (ii) shall be disregarded upon the occurrence of the Purchase Closing); (iii) all Liabilities of BMS and its Affiliates to the extent arising out of or related to any Excluded Asset; (iv) any Excluded Tax Liability; (v) all Accounts Payable other than the Accounts Payable assumed pursuant to clause (ii) of the definition of Assumed Liabilities; (vi) all Liabilities arising under any Benefit Plans (except to the extent arising out of or related to a breach by Purchaser or its Affiliates of Section 3.4); (vii) all Liabilities arising out of the employment or termination of employment of any employee of BMS or its Affiliates who does not become a Transferred Employee (except to the extent arising out of or related to a breach by Purchaser or its Affiliates of Section 3.4); (viii) those Liabilities relating to the King Settlement Agreement for which BMS or any of its Affiliates remains liable pursuant to the terms of the King Settlement Agreement (other than any such Liability for which Purchaser is responsible pursuant to Section 3.5.1.3 or arising out of Purchaser’s breach of Section 3.9); (ix) all Accounts Payable, accrued expenses and other current liabilities to the extent arising out of or relating to the Products in the Territory or the Acquired Assets, except to the extent Purchaser or its Affiliates are responsible therefor pursuant to Sections 3.7, 3.10, 4.4, 4.5, 5.7, 6.6, 6.7, 6.8, 8.4, 10.4, 13.1, 13.4 and 13.7; and (x) all other Liabilities of BMS or any of its Affiliates of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not accrued, to the extent arising out of or relating to any Product in the Territory, the Collaboration Assets or the Acquired Assets, or the ownership, sale, lease or license of any of the Acquired Assets, including any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental or Regulatory Authority, except in each case of this clause (x) to the extent expressly constituting an Assumed Collaboration Liability or an Assumed Liability.

“Excluded Records” means, collectively, the following: (i) any and all books and records prepared and maintained by BMS or any of its Affiliates, including financial records,  laboratory books, batch records and stability studies, in each case that do not relate exclusively to the Business; (ii) any and all Tax records of BMS or any of its Affiliates that relate to Taxes that constitute Excluded Tax Liabilities; (iii) all personnel records of BMS or any of its Affiliates relating to employees who are not Transferred Employees; (iv) any and all records of BMS or any of its Affiliates to the extent related to any Excluded Assets or Excluded Liability; (v) any and all books and records of BMS or any of its Affiliates prepared in connection with the transactions contemplated by this Agreement or the Ancillary Agreements, including bids received from Third Parties and analyses relating to the Products; (vi) any and all books and records, files, correspondence or other records of BMS or its Affiliates (other than Collaboration Books and Records and Transferred Books and Records).

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“Excluded Tax Liability” means any Tax payable with respect to any business, asset, property, activity, operation or existence of BMS or its Affiliates (including any Taxes relating to or arising out of the Acquired Assets) for any Pre-Closing Tax Period.

“Exclusively-Related Technology” means all Product Formulae and BMS Know-How exclusively related to the Products.

“Exercise Date” means the date on which Purchaser delivers the Option Notice to BMS in accordance with Section 9.2.

“Exploit”, including with correlative meaning the term “Exploitation”, means any or all of the following:  research, develop, design, test, modify, make, use, sell, have made, used and sold, import, reproduce, Promote, market, distribute, commercialize, support, maintain, correct and create derivative works.

“Extension Negotiation Period” has the meaning set forth in Section 15.6.

“Extension Term” has the meaning set forth in Section 15.6.

“Federal Ceiling Price” has the meaning set forth in 38 U.S.C. § 8126 and its implementing regulations and guidance.

“FDA” means the United States Food and Drug Administration or any successor agency thereto.

“Federal Health Care Program” means any plan or program that provides health care benefits, whether directly, through insurance, or otherwise, that is funded directly, in whole or in part, by the government of the United States of America (other than the Federal Employees Health Benefits Program), including the Medicare, Medicaid, TRICARE, 340B Federal Drug Discount Program, and Veterans Health Administration programs (described in Title XVIII of the Social Security Act, Title XIX of the Social Security Act, Title 10, Chapter 55 of the U.S.C., 42 U.S.C. Section 256b and 38 U.S.C. Section 8126, respectively), or any state health care program (as defined in Section 1128(h) of the Social Security Act).

“FSS” has the meaning set forth in Section 4.5.3.

“FSS Acknowledgment Date” has the meaning set forth in Section 4.5.3.

“GAAP” means generally accepted accounting principles in the United States.

“Good Manufacturing Practices” means cGMP (as defined in the Supply Agreement).

“Governmental or Regulatory Authority” means any court, tribunal, arbitrator, agency, commission, official or other instrumentality of any country, federal, state, county, city or other political subdivision, foreign or domestic, including the FDA, EMA and any other

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governmental instrumentality with responsibility for granting any Permits or Regulatory Approvals.

“Governmental Price Reports” means (1) Federal Ceiling Prices, Non-FAMP and other information required to be reported relating to the Product under 38 U.S.C. § 8126, and the master agreements issued thereunder; and (2) any and all data required to be reported relating to the Product under any applicable state price reporting and disclosure laws.

“GPO” means group purchasing organization.

“Health Care Laws” means: (i) all Laws related to: (a) fraud and abuse, including the Federal anti-kickback law (42 U.S.C. § 1320a-7b), the Stark Law (42 U.S.C. § 1395nn), the Federal False Claims Act (31 U.S.C. §§ 3729, et seq.), the Federal Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the Federal Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.), the Federal Health Care Fraud Law (18 U.S.C. § 1347), the criminal false claims statutes (e.g., 18 U.S.C. §§ 287 and 1001), the Physician Payments Sunshine Law (42 U.S.C. § 13207h), the Medicare Secondary Payor Statute (42 U.S.C. § 1395y(b)) and any similar state Laws; and (b) coding, coverage, reimbursement, claims submission, billing and collections;  (ii) HIPAA as amended by HITECH, and any state health care privacy, security or confidentiality Laws; and (iii) the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) and the regulations adopted thereunder.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and the rules and regulations promulgated thereunder.

“HITECH” means the Health Information Technology for Clinical and Economic Health Act of 2009, as amended and the rules and regulations promulgated thereunder.

“HSR Act” means the Hart-Scott-Rodino Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“ICH” means the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use of the World Health Organization, or any successor conference, council or organization.

“Inbound IP Licenses” has the meaning set forth in Section 18.2.5.8.

“IND” means an Investigational New Drug Application filed with the FDA under 21 C.F.R. Part 312 or similar foreign application or submission in any country or group of countries for permission to conduct human clinical investigations.

“Indemnitee” has the meaning set forth in Section 16.3.1.

“Indemnitor” has the meaning set forth in Section 16.3.1(i).

“Insurance Policies” has the meaning set forth in Section 18.2.16.

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“Intellectual Property” means the following subsisting anywhere in the world:  (i) patents (including certificates of correction, substitutions, extensions (including supplemental protection certificates), registrations, confirmations, reissues, re-examinations and renewals), any patent applications (including any provisional applications, divisionals, continuations and continuations-in-part) in any jurisdiction (including any supranational jurisdiction), and any invention disclosures (“Patent Rights”); (ii) registered trademarks and service marks, logos, Internet domain names, common law trademarks and service marks and trade dress, and all goodwill in the foregoing (“Trademark Rights”); (iii) copyrights, designs, data and database rights and registrations and applications for registration thereof, including moral rights of authors; (iv) mask work rights, and registrations and applications for registration thereof; (v) Know-How, whether patentable or nonpatentable, whether copyrightable or noncopyrightable and whether or not reduced to practice; and (vi) other proprietary rights relating to any of the foregoing.

“Intellectual Property Infringement Claims” has the meaning set forth in Section 5.7.1.

“Intellectual Property Registrations” means Patent Rights, registered Trademark Rights, registered copyrights and designs, mask work registrations and applications for each of the foregoing.

“Inventory” means all inventories, including inventories of products, work-in-process, finished goods, raw materials, bulk drug substance, supplies, equipment, parts, labels and packaging (including rights and interests in goods in transit, consigned inventory, inventory sold on approval and rental inventory) and all returned products, samples and obsolete and non-salable inventory.

“IRS” means the Internal Revenue Service.

“JEC” has the meaning set forth in Section 3.2.1.1.

“Joint Improvements” means any inventions, developments, modifications or improvements to any Product which are jointly made by or on behalf of BMS or its Affiliates, on the one hand, and by Purchaser or its Affiliates, on the other, during the Collaboration Term (i) as a result of activities conducted by or for the Parties or their Affiliates relating to a Product, or (ii) through the use of BMS Know-How or Purchaser Know-How, whether patentable or registerable or not.

“King Settlement Agreement” has the meaning set forth in Section 3.9.

“Know-How” means all technical information, know-how and data, including inventions (whether patentable or not), discoveries, trade secrets, specifications, instructions, processes, formulae, materials, expertise and other technology applicable to compounds, formulations, compositions, products or to their Exploitation or methods of assaying or testing them or processes for their manufacture, formulations containing them, compositions incorporating or comprising them and including all biological, chemical, pharmacological,

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biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, preclinical and clinical data, instructions, processes, formulae, expertise and information.

“Last Lot Expiration Dates” has the meaning set forth in Section 4.5.1.

“Law” means all laws, statutes, rules, regulations, ordinances, judgments, codes, requirements, variances, decrees, writs, injunctions, awards, rulings and other pronouncements or orders having the effect of law of any Governmental or Regulatory Authority, including all Health Care Laws.

“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, claims, investigations, mediations or proceedings (public or private), whether for condemnation or otherwise, actions, demands, complaints, hearings, investigations, demand letters, warning letters, or requests for information, in each case by or before a Governmental or Regulatory Authority.

“Liabilities” means liabilities, obligations and commitments.

“LIBOR” means the one-month London Interbank Offered Rate as published in the Wall Street Journal.

“Liens” means liens (statutory or otherwise), claims, encumbrances, security interests, options, charges, mortgages, pledges, hypothecations and other encumbrances of any kind.

“Losses” means all Liabilities, losses, claims, damages, causes of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, Taxes, penalties, fines, and costs and expenses (including amounts paid in settlement, interest, court costs, and reasonable costs of investigations, fees and expenses of attorneys, accountants, financial advisors and other experts, and other reasonable expenses of litigation).

“MA” means an application, registration or certification, and supplements and amendments thereto, necessary or useful to market a Product in the Territory, but not including pricing and reimbursement approvals, filed with the FDA, EMA or with any other Governmental or Regulatory Authority of any country or regulatory jurisdiction in the Territory.

“Management Accounts” has the meaning set forth in Section 18.2.12.1.

“Manufacturing Documentation” means Regulatory Documentation which BMS is required to retain under applicable Law in order to fulfill its obligations under the Supply Agreement or under the Orthovita Supply Agreement.

“Manufacturing Know-How” means Know-How relating to the manufacture and production of the Products.

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“Marks” has the meaning set forth in Section 5.2.1.

“Material Adverse Effect” means any change, effect, event or occurrence or state of facts that individually or taken together with other changes, effects, events or occurrences or state of facts, (i) is, or would reasonably be expected to be, materially adverse to the Business, the Products, the Acquired Assets and the Collaboration Assets, taken as a whole, or (ii) would prevent or materially impede, interfere with, hinder or delay the Collaboration Closing or the Purchase Closing, other than, solely in the case of clause (i), any change, effect, event or occurrence or state of facts arising after the date hereof to the extent resulting from (A) economic, financial market or geographical conditions in general (including national or international conditions), (B) changes in applicable Laws or GAAP or other applicable accounting regulations or principles or interpretations thereof, (C) changes in conditions generally affecting the pharmaceutical or biotechnology industries, (D) the announcement of this Agreement and the transactions contemplated hereby and performance of and compliance with the terms of this Agreement, (E) any acts or omissions of BMS or any of its Affiliates taken after the date hereof with the prior written consent of Purchaser, (F) any changes in global or national political conditions, (G) any outbreak or escalation of hostilities, any occurrence or threat of acts commonly referred to as terrorist attacks or any armed hostilities associated therewith and any national or international calamity or emergency or any escalation thereof, or (H) the existence, occurrence or continuation of any force majeure events, including any earthquakes, floods, hurricanes, tropical storms, fires or other natural disasters, except in each case of clauses (A), (B), (C), (F), (G) and (H) to the extent adversely affecting the Business in a disproportionate manner relative to other similarly situated businesses operating in the industries or markets in which the Business operates.

“Material Contracts” means each Contract listed or required to be listed in Schedule 18.2.6, Schedule 18.2.5.8 or Schedule 18.2.5.9.

“Material Permits” has the meaning set forth in Section 18.2.9.2.

“NDC” means national drug code.

“Net Sales” means, for any period and for any jurisdiction in the Territory, the total aggregate amount billed during such period in such jurisdiction by (a) Purchaser, an Affiliate of Purchaser or any sublicensee (which, for clarity, excludes distributors and customers) of Purchaser (each, a “Selling Party”) for all sales of the Products to a Third Party (including any distributor or customer), plus (b) solely for purposes of the calculation of the Average Net Sales, in the event that the Calculation Period includes any period prior to the Effective Date, BMS, an Affiliate of BMS or any permitted sublicensee of BMS for all sales of the Products to a Third Party (including any distributor or customer) prior to the Effective Date, less:

(i)            discounts (including trade, cash and quantity discounts), cash and non-cash coupons, charge-back payments and rebates granted to managed health care organizations or to federal, state and local governments, their agencies, and purchasers and reimbursers or to customers; provided, that where any such discounts, payments or rebates for a Product are based on sales to the customer of a bundled set of products in which a

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Product is included (where such sales are permitted by applicable Law and mutually agreed by the Parties), the applicable discount, payment or rebate for the Products in such bundled arrangement shall be based on the weighted average discount, payment or rebate of such bundled set of products;

(ii)           actually granted credits, allowances, discounts to and chargebacks for claims, spoiled, damaged or out-dated  goods, rejections or returns of the Products, including Products returned in connection with recalls or withdrawals;

(iii)          taxes and duties paid, absorbed or allowed which are directly related to the sale of the Product;

(iv)          discounts or rebates or other payments required by applicable Law, including any governmental special medical assistance programs;

(v)           customs duties, surcharges and other governmental charges incurred in connection with the exportation or importation of the Product;

(vi)          fee-for-service wholesaler fees, GPO administrative fees, inventory management fees paid to wholesalers, and any similar fees reasonably allocated to the Product, to the extent consistent with the usual course of dealing of the Selling Party (or BMS or its Affiliates, as applicable) for its products other than a Product; and

(vii)         any other deduction to revenue that is not described above which is required to be recorded as an adjustment to gross revenue for financial reporting purposes;

in the case of each of clauses (i) through (and including) (vii) as accounted for by Purchaser (or BMS or its Affiliates, as applicable) in accordance with its accounting policies and GAAP.  Net Sales shall not include any amounts billed by Purchaser (or BMS or its Affiliates, as applicable) or its Affiliates or sublicensees for sales to sublicensees.

“Non-FAMP” means non-Federal average manufacturer price as defined by 38 U.S.C. § 8126(h)(5) and its implementing regulations and guidance, as may be amended from time to time.

“Notice of Disagreement” has the meaning set forth in Section 10.5.3.2.

“Notice of Termination” has the meaning set forth in Section 15.5.

“Option” has the meaning set forth in Section 9.1.

“Option Expiration Date” has the meaning set forth in Section 9.2.1.

“Option Fee” has the meaning set forth in Section 8.1.2.

“Option Notice” has the meaning set forth in Section 9.2.1.

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“Ordinary Course of Business” means the ordinary course of business, consistent with past practice, including with respect to frequency, amount and significance.

“Orthovita Supply Agreement” has the meaning set forth in Section 5.6.1.

“Other Acquisition Documents” means (i) the Collaboration Bill of Sale, (ii) the Purchase Bill of Sale, (iii) the Collaboration Assumption Agreement, (iv) the Purchase Assumption Agreement, (v) the Trademark Assignment Agreement, (vi) the Patent Assignment Agreement, (vii) the Domain Name Assignment Agreement, and (viii) all other agreements, instruments, certificates or documents delivered pursuant hereto or contemplated hereby and not otherwise included in the Ancillary Agreements.

“Outbound IP Licenses” has the meaning set forth in Section 18.2.5.7.

“Owned Business Intellectual Property” has the meaning set forth in Section 18.2.5.4.

“Party” means either of BMS or Purchaser, as the case may be, and, when used in the plural, means both of BMS and Purchaser.

“Patent Assignment Agreement” has the meaning set forth in Section 10.5.1.2(v).

“Pension Plans” has the meaning set forth in Section 18.2.10.1.

“Permits” means all licenses, permits, authorizations, registrations and approvals (including BLAs and MAs) issued by a Governmental or Regulatory Authority.

“Permitted Liens” means all (i) mechanics’, carriers’, workmen’s, repairmen’s or warehousemen’s Liens arising under applicable Law and incurred in the Ordinary Course of Business and Liens for Taxes and other governmental charges which are not yet due and payable; and (ii) other imperfections of title or encumbrances, if any, which do not, individually or in the aggregate, materially impair the value or continued use and operation of the assets to which they relate.

“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, Governmental or Regulatory Authority, or any other form of legal entity not specifically listed herein.

“Personal Data” means non-public information relating to an identified or identifiable natural or legal Person.

“Pharmacovigilance Agreement” has the meaning set forth in Section 6.2.

“Post-Closing Tax Period” means (i) all taxable periods beginning and ending after the Purchase Closing Date, and (ii) the portion beginning on the day after the Purchase Closing Date of any Straddle Period.

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“Pre-Closing Tax Period” means (i) all taxable periods ending on or before the Purchase Closing Date, and (ii) the portion ending on the Purchase Closing Date of any taxable period that includes (but does not end on) the Purchase Closing Date.

“Preliminary Allocation Schedule” has the meaning set forth in Section 13.5.2.

“Primarily-Related Technology” means (a) all BMS Know-How that is primarily related to the Products (other than any such Know-How to the extent (and only to the extent) included in the Exclusively-Related Technology), (b) until the Purchase Closing, the Transferred Intellectual Property (excluding the rights contemplated by clause (v) of the definition thereof) and Transferred Other Intellectual Property, and (c) all other Intellectual Property which is owned or Controlled by BMS or any of its Affiliates, as of the Effective Date or at any time during the Collaboration Term, that is used by BMS or its Affiliates in, and necessary for, the Exploitation of the Products, as such Products are Exploited by BMS or its Affiliates as of the date of this Agreement.

“Process” has the meaning set forth in the Supply Agreement.

“Product” means individually and collectively, (i) any of the products set forth in Exhibit 1.1.1, and (ii) any Additional Product, subject to the approval of the JEC (if required) pursuant to Section 3.2.4(iii).  During the Collaboration Term, Exhibit 1.1.1 shall be updated to reflect at all times all Additional Products.

“Product Formulae” means the specific percentages and specifications for the mixing and preparation of the ingredients used in the manufacture of each Product, taken as a whole and not in part.  For the avoidance of doubt, (i) a Product Formula does not include Manufacturing Know-How associated with the manufacture of the Product to which such Product Formula relates, and (ii) does not refer separately to a particular ingredient or specification or combination of ingredients and/or specifications that do not comprise the entire, specific Product Formula.

“Product Permits” has the meaning set forth in Section 6.7.1.

“Product Quality Complaint” has the meaning set forth in Section 6.4.1.

“Product Registrations” means, collectively, the Permits issued to BMS or the Selling Affiliates identified in Exhibit 1.1.7.

“Product Specifications” has the meaning set forth in the Supply Agreement.

“Promotion” means those activities normally undertaken by a professional sales representative of a pharmaceutical company to implement promotion plans for a particular prescription pharmaceutical product aimed at encouraging the appropriate use of such product by a health care professional with actual prescribing authority.  When used as a verb, “Promote” means to engage in such activities.

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“Promotion Plan” means the then current plan for the Promotion of the Products in the Territory and which is described in more detail in Section 3.3.

“Protected Health Information” has the meaning set forth under 45 C.F.R. § 160.103.

“Purchase Assumption Agreement” has the meaning set forth in Section 10.5.1.2(iii).

“Purchase Bill of Sale” has the meaning set forth in Section 10.5.1.2(ii).

“Purchase Closing” has the meaning set forth in Section 10.5.1.1.

“Purchase Closing Date” has the meaning set forth in Section 10.5.1.1.

“Purchase Closing Outside Date” has the meaning set forth in Section 15.6.

“Purchase Date” means the earliest to occur of (i) the Business Day immediately prior to the date that is two (2) years after the Effective Date, (ii) if an Early Termination Event has occurred due to a breach of Article 7, the date that is five (5) Business Days after the Exercise Date, and (iii) if an Early Termination Event has occurred for any other reason, the date that is sixty (60) days after the Exercise Date.

“Purchase Price” has the meaning set forth in Section 10.5.3.3.

“Purchaser” has the meaning set forth in the Preamble.

“Purchaser’s 401(k) Plan” has the meaning set forth in Section 3.4.4.1.

“Purchaser Employees” means all Purchaser Sales Force Personnel and, from and after the applicable Employee Transfer Date for any Transferred Employee, such Transferred Employee.

“Purchaser Fundamental Representations” means each of the representations and warranties of Purchaser set forth in any of Section 18.1.1 (Authority), Section 18.1.2 (No Conflicts; Consents), Section 18.1.4 (Availability of Funds) and Section 18.2.5 (Brokers and Agents).

“Purchaser Improvements” means any inventions, developments, modifications or improvements to any Product which are made solely by Purchaser and/or any of its Affiliates during the Collaboration Term (a) as a result of research activities conducted by or for it or its Affiliates relating to a Product, or (b) through the use of BMS Know-How, whether patentable or registerable or not.

“Purchaser Indemnitees” has the meaning set forth in Section 16.1.

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“Purchaser Know-How” means all proprietary Know-How regarding a Product that is developed or acquired after the Effective Date and during the Collaboration Term and Controlled by Purchaser or any of its Affiliates.

“Purchaser Relocation Benefits” has the meaning set forth in Section 3.4.5.

“Purchaser Sales Force Personnel” means Purchaser’s and its Affiliates’ sales force representatives and their managers (whether the same be employees or individual independent contractors of Purchaser or any of its Affiliates) that are involved in the Promotion, marketing and sale of the Products in the Territory.

“Purchasing Affiliate” means any Affiliate of Purchaser designated by Purchaser to acquire any of the Collaboration Assets or any of the Acquired Assets.

“Quality Agreement” has the meaning set forth in Section 4.3.

“Recall” has the meaning set forth in Section 6.6.1.

“Recall Discussion Period” has the meaning set forth in Section 6.6.1.

“Regulatory Approvals” means, with respect to any Product in any regulatory jurisdiction, approval from the applicable Governmental or Regulatory Authority required for the manufacture, distribution, use and sale of the Products in such regulatory jurisdiction in accordance with applicable Laws, including receipt of pricing and reimbursement approvals, where applicable.

“Regulatory Documentation” means, with respect to a Product, all rights in, and all embodiments of, INDs or other regulatory applications submitted to any Governmental or Regulatory Authority, Regulatory Approvals, pre-clinical and clinical data and information, regulatory materials, drug dossiers, master files (including DMFs), and any other reports, records, regulatory correspondence and other materials relating to the Exploitation or Regulatory Approval of such Product, including any information that relates to pharmacology, toxicology, chemistry, manufacturing and controls data, batch records, safety and efficacy, any safety database, and all post-approval reports, studies, clinical trial documents, and submissions to any Governmental or Regulatory Authority.

“Required Financial Statements” means (i) (A) if the Collaboration Closing occurs prior to February 13, 2013, an audited statement of revenues and direct expenses of the Products for the year ended December 31, 2011 and unaudited statements of revenues and direct expenses for the nine (9) month periods ended September 30, 2012 and 2011 and (B) if the Collaboration Closing occurs on or after February 13, 2013, an audited statement of revenues and direct expenses of the Products for the year ended December 31, 2012; and (ii) any other financial statements for the periods contemplated in clause (i) relating to the Business or the Products as may be required by the SEC.  For purposes of the foregoing clause (i), the statement of (1) direct revenues will include gross sales and all adjustments to sales that are customary to conform with GAAP, (2) direct expenses will include all expenses directly associated with selling the Products (including cost of products sold, lease costs, sales force and related

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infrastructure), and (3) corporate overhead, interest expense, income taxes, treasury costs and amortization of intangible assets will not be required to be included in direct expenses.

“Restriction Term” has the meaning set forth in Section 13.10.1.

“Royalty Fee” means, for any Agreement Quarter (or portion thereof), the aggregate sum of the amounts calculated by multiplying (i) the amount of Net Sales for all Products in the Territory during such period, by (ii) the applicable royalty rate below, as determined for such period based on that portion of the Net Sales for all Products in the Territory for such period that falls within the indicated range(s) in the column entitled “Net Sales Threshold”  in the table below for cumulative Net Sales in the applicable Agreement Year:

“SEC” means the U.S. Securities and Exchange Commission.

“SEC Request Letter” means a letter seeking the concurrence of the staff of the SEC with Purchaser’s proposed filing of the product line financial statements described in clause (i) of the definition of Required Financial Statements in full satisfaction of Purchaser’s financial statement filing obligations in connection with the Collaboration Closing under Items 2.01 and 9.01(a) of Form 8-K (and the related items of Regulation S-X) promulgated by the SEC.

“Selling Affiliate” means each Affiliate of BMS that owns or holds any right, title or interest in, to or under any Collaboration Asset or any Acquired Asset, including the Affiliates of BMS identified in Exhibit 1.1.8.

“SSA” has the meaning set forth in Section 18.2.9.4(i).

“Statement” has the meaning set forth in Section 10.5.3.1.

“Straddle Period” has the meaning set forth in Section 13.5.5.

“Sublease” has the meaning set forth in Section 2.6.

“Supply Agreement” means the Supply Agreement, dated as of the date hereof and effective as of the Effective Date, between BMS and Purchaser.

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“Tax” or “Taxes” means any and all taxes, charges, fees, duties, contributions, levies or other similar assessments or liabilities, including income, gross receipts, corporation, ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, registration, recording, excise, real property, personal property, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, national insurance, business license, business organization, environmental, workers compensation, payroll, profits, severance, stamp, occupation, escheat, windfall profits, customs duties, franchise, estimated and other taxes of any kind whatsoever imposed by the United States of America or any state, local or foreign government, or any agency or political subdivision thereof, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof.

“Taxing Authority” means any Governmental or Regulatory Authority exercising any authority to impose, regulate or administer the imposition of Taxes.

“Tax Return” means any and all reports, returns (including information returns), declarations, or statements relating to Taxes, including any schedule or attachment thereto and any related or supporting working papers or information with respect to any of the foregoing, including any amendment thereof filed with or submitted to any Taxing Authority in connection with the determination, assessment, collection or payment of Taxes or in connection with the administration, implementation or enforcement of or compliance with any legal requirement relating to any Tax.

“Territory” means all countries and jurisdictions worldwide.

“Third Party” means any Person other than: (i) Purchaser or BMS, and (ii) any Affiliates of Purchaser or BMS.

“Third Party Claim” has the meaning set forth in Section 16.3.1.

“Trademark Assignment Agreement” has the meaning set forth in Section 10.5.1.2(iv).

“Transition Services Agreement” has the meaning set forth in Section 2.4.2(iv).

“Transferred Books and Records” means, collectively, (i) all books and records prepared and maintained by or on behalf of BMS or any of its Affiliates, that are Regulatory Documentation (including Manufacturing Documentation) or that relate exclusively to the Exploitation of any of the Products, including all laboratory books, batch records and stability studies; and (ii) all documents and correspondence between BMS or its Affiliates, on the one hand, and any Governmental or Regulatory Authority, on the other hand, related to the Transferred Intellectual Property, including (a) the file histories; (b) copies of prior art searches and search results related to the subject matter of such rights; (c) copies of publications identified in prior art searches; and (d) all opinions or other analyses related to the subject matter thereof, in

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each case of clauses (a) through (d), to the extent in BMS’ or its Affiliates’ possession or reasonably accessible.

“Transferred Contracts” means, collectively, the Contracts (including any binding purchase orders outstanding as of the Purchase Closing Date) to which BMS or any of the Selling Affiliates is a party or by which any of the Acquired Assets is bound, that are related exclusively to the Business as of the Purchase Closing Date (other than the Collaboration Contracts), including the Contracts set forth in Exhibit 1.1.9.

“Transferred Employees” has the meaning set forth in Section 3.4.3.1.

“Transferred Equipment” means, collectively, the machinery, manufacturing and other equipment, tools and tooling, furniture, fixtures and leasehold improvements of BMS or any of its Affiliates identified in Exhibit 1.1.10.

“Transferred Intellectual Property” means, collectively, the following (except in each case for any Excluded Intellectual Property set forth on Schedule 1.1.6):  (i) the Transferred Patent Rights; (ii) the Transferred Trademark Rights; (iii) the Exclusively-Related Technology; (iv) the BMS Works; and (v) from and after the Purchase Closing, the right to recover for past infringement of any of the foregoing.

“Transferred Other Intellectual Property” means, collectively, the trademark registrations, trademark applications, service mark registrations and service mark applications of BMS and the Selling Affiliates identified in Exhibit 1.1.11(i), together with all extensions and renewals thereof and all goodwill associated therewith; and (ii) the rights of BMS and the Selling Affiliates to the internet domain names identified in Exhibit 1.1.11(ii).

“Transferred Inventory” means, collectively, all saleable finished goods Inventory and all non-obsolete prior-stage Inventory (including items in transit, on consignment, or covered by open purchase orders or in the possession of any Third Party), used or held for use by BMS or its Affiliates related exclusively to the Business or the Orthovita Supply Agreement, other than (i) any finished goods and drug product with a remaining shelf life of less than fifty percent (50%) of the shelf life of the Products set forth in the applicable Regulatory Approval and (ii) Inventory (other than finished goods and drug product) with (A) a remaining shelf life of less than fifty percent (50%) of the shelf life of the Products set forth in the applicable Regulatory Approval, or (B) no remaining retest dating which, in the case of either clause (A) or (B), as of the Purchase Closing Date is not forecasted to be converted to the next stage of the Product manufacturing process with the applicable manufacturer within twenty four (24) months after the Purchase Closing Date.  “Transferred Inventory” shall include all Products for which a purchase order has been submitted pursuant to the Supply Agreement and which remain unshipped as of immediately prior to the Purchase Closing, it being understood that Purchaser shall be deemed to have paid in full for such Products upon payment of the Purchase Price pursuant to this Agreement and shall have no payment obligations with respect to such Products pursuant to the Supply Agreement.

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“Transferred Patent Rights” means, collectively, (i) the Patent Rights of BMS or any of its Affiliates identified in Exhibit 1.1.12, and all Counterparts thereof; and (ii) all inventions disclosed in the items in clause (i) (other than those disclosed solely as prior art).

“Transferred Trademark Rights” means, collectively, the Trademark Rights of BMS or any of its Affiliates identified in Exhibit 1.1.13, together with all extensions and renewals thereof and all goodwill associated therewith.

“Transfer Taxes” has the meaning set forth in Section 13.4.1.

“VAT” means any value added tax, goods and services tax or any other similar tax, including any sales tax, service tax, or use tax imposed by any Governmental or Regulatory Authority in any country at whatever level.

“WARN” has the meaning set forth in Section 18.2.11.2.

Section 1.2                                    Interpretation.  The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth therein); (ii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (iii) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase does not mean simply “if”; (iv) all references herein to Articles, Sections, Exhibits or Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules of this Agreement; and (v) the headings contained in this Agreement or any Exhibit or Schedule and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Any capitalized term used in the Exhibits and Schedules attached hereto but not otherwise defined therein has the meaning as defined in this Agreement.  In the event of an ambiguity or a question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any provisions of this Agreement.

ARTICLE 2

GRANT OF RIGHTS TO PURCHASER; RESERVED RIGHTS

Section 2.1                                Engagement of Purchaser to Promote.   BMS hereby grants to Purchaser the exclusive right to research, develop, use, Promote, market, offer to sell, import, distribute, commercialize, support and sell the Products during the Collaboration Term, within the

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Territory, upon the terms and conditions set forth in this Agreement.  Purchaser’s rights under this Agreement with respect to each Product shall be exclusive as to any other Person within the Territory, and, without the prior written consent of Purchaser, neither BMS nor any of its Affiliates may itself or through its Affiliates or Third Parties, directly or indirectly, including by entering into any agreement with an Affiliate or a Third Party, Exploit any Product in the Territory during the Collaboration Term, except as expressly provided in this Agreement or the Supply Agreement.  Purchaser shall have the right to enter into any written agreement with respect to any right, representation, warranty, or obligation of Purchaser under this Agreement (i) with one or more of its Affiliates, (ii) with BMS, or (iii) with one or more Third Parties with the prior written consent of the JEC; provided, that, in each case, Purchaser shall remain jointly and severally liable and responsible with such Person for the performance of any such obligations, representations or warranties so delegated, contracted, assigned or otherwise transferred.  Purchaser shall not Promote,  market or sell any Product except in accordance with the rights expressly granted to it under, and in accordance with the terms of, this Agreement.

Section 2.2                                Reserved Rights.  Each Party reserves all rights not expressly granted to the other Party under this Agreement or any Ancillary Agreement.  Each Party agrees that it will not practice any rights reserved by the other Party that are not expressly granted to such Party under this Agreement and the Ancillary Agreements.

Section 2.3                                Noncompetition.

2.3.1                     During the Collaboration Term, Purchaser and its Affiliates shall not, directly or indirectly through one or more employees, agents, representatives or other Third Parties, Promote, market or sell within the Territory [**] (other than a Product (including an Additional Product) Promoted, marketed and sold in accordance herewith) (a “Competing Product”).

2.3.2                     During the Collaboration Term, Purchaser and its Affiliates shall not, directly or indirectly through one or more employees, agents, representatives or other Third Parties, use BMS Know-How for any purpose anywhere in the world other than in accordance herewith, to Promote, market or sell the Products in the Territory or develop, Promote, market or sell the Additional Products in the Territory.

2.3.3                     Notwithstanding the foregoing, the provisions of Sections 2.3.1 and 2.3.2 shall cease to be effective upon the Purchase Closing.

2.3.4                     For the sake of clarity and avoidance of doubt, any breach by Purchaser and/or its Affiliates of the terms of this Section 2.3 shall, in addition to any remedies to which BMS may have hereunder or at Law or in equity, be deemed to be a breach of a material obligation under this Agreement for the purposes of Section 15.3.1.

2.3.5                     The Parties further agree that the Promotion, marketing and/or sale of a Competing Product in the Territory by Purchaser and/or its Affiliates in breach of this Section 2.3 will cause irreparable injury to BMS for which monetary damages alone will not be an adequate remedy.  In the event of such breach or threatened breach, BMS shall be entitled, without resort

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to any dispute resolution procedures as may be provided for in this Agreement, to equitable relief to prevent any such breach or threatened breach, in addition to any remedies it may have hereunder or at Law.

Section 2.4                                Effective Date.

2.4.1                     The closing of the purchase and sale of the Collaboration Assets and the Option and the assumption of the Assumed Collaboration Liabilities (the “Collaboration Closing”) shall be held at the offices of Covington & Burling LLP, The New York Times Building, 620 Eighth Avenue, New York, New York, or remotely by exchange of electronic copies of the agreements, documents, certificates and other instruments set forth in Section 2.4.2 and Section 2.4.3, at 10:00 a.m. on the date which is three (3) Business Days after the conditions to the Collaboration Closing set forth in Article 11 shall have been satisfied or waived (other than those conditions which by their nature are to be fulfilled at the Collaboration Closing, but subject to the fulfillment or waiver of such conditions).  The date on which the Collaboration Closing shall occur is referred to herein as the “Effective Date”.  The Collaboration Closing shall be deemed to be effective as of 12:00:01 a.m. in each applicable time zone on a country by country basis on the Effective Date.

2.4.2                     Subject to the terms and conditions set forth in this Agreement, at the Collaboration Closing, Purchaser shall deliver to BMS:

(i)                                     the Collaboration Fee and the Option Fee, pursuant to Section 8.1.1 and Section 8.1.2, respectively;

(ii)                                  an executed counterpart of a Bill of Sale, in the form attached hereto as Exhibit 2.4.2(ii) (the “Collaboration Bill of Sale”), duly executed by Purchaser and the applicable Purchasing Affiliates;

(iii)                               an executed counterpart of an Assumption Agreement, in the form attached hereto as Exhibit 2.4.2(iii) (the “Collaboration Assumption Agreement”), duly executed by Purchaser and the applicable Purchasing Affiliates;

(iv)                              an executed counterpart of the Transition Services Agreement, substantially in the form attached hereto as Exhibit 2.4.2(iv) (the “Transition Services Agreement”), duly executed by Purchaser;

(v)                                 a certificate, dated as of the Effective Date, executed by an authorized officer of Purchaser, in his or her capacity as such, confirming the satisfaction, as of the Effective Date, of the conditions specified in Section 11.2.4 and Section 11.2.5; and

(vi)                              a certificate, dated as of the Effective Date, executed by an authorized officer of Purchaser, in his or her capacity as such, certifying as to (i) the incumbency of the officers of Purchaser or the Purchasing Affiliates executing documents executed and delivered in connection with the Collaboration Closing, and (ii) the adoption of resolutions authorizing the transactions

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contemplated hereby, and attaching certificates of good standing of Purchaser and the Purchasing Affiliates in their respective jurisdictions of organization.

2.4.3                     Subject to the terms and conditions set forth in this Agreement, at the Collaboration Closing, BMS shall deliver to Purchaser:

(i)                                     an executed counterpart of the Collaboration Bill of Sale, duly executed by BMS and the applicable Selling Affiliates;

(ii)                                  an executed counterpart of the Collaboration Assumption Agreement, duly executed by BMS and the applicable Selling Affiliates;

(iii)                               a certificate duly executed by BMS and each Selling Affiliate, certifying that such Person is not a foreign person in accordance with the Treasury Regulations under Section 1445 of the Code;

(iv)                              duly executed written instruments releasing any Lien (other than Permitted Liens) on any tangible asset included in the Collaboration Assets and authorizing the filing of UCC-3 termination statements (or other comparable documents) for all UCC-1 financing statements (or other comparable documents) filed in connection with any such Lien;

(v)                                 a certificate, dated as of the Effective Date, executed by an authorized officer of BMS, in his or her capacity as such, confirming the satisfaction, as of the Effective Date, of the conditions specified in Section 11.1.3, Section 11.1.4 and Section 11.1.5;

(vi)                              a certificate, dated as of the Effective Date, executed by an authorized officer of BMS, in his or her capacity as such, certifying as to (i) the incumbency of the officers of BMS or the Selling Affiliates executing documents executed and delivered in connection with the Collaboration Closing, and (ii) the adoption of resolutions authorizing the transactions contemplated hereby, and attaching certificates of good standing of BMS and the Selling Affiliates in their respective jurisdictions of organization;

(vii)                           copies of all Collaboration Books and Records; and

(viii)                        an executed counterpart of the Transition Services Agreement, duly executed by BMS.

Section 2.5                                Transfers at the Effective Date.

2.5.1                     Collaboration Assets; Assumption of Collaboration Liabilities.  Subject to the terms and conditions set forth in this Agreement, at the Collaboration Closing, BMS shall, and shall cause the Selling Affiliates to, transfer, assign and convey to Purchaser and the Purchasing Affiliates, and Purchaser shall (and shall cause the Purchasing Affiliates to) acquire, assume and accept from BMS  and the Selling Affiliates, all the right, title and interest of BMS

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and the Selling Affiliates in, to and under the Collaboration Assets, free and clear of all Liens (other than Permitted Liens).  Subject to the terms and conditions set forth in this Agreement, Purchaser shall (and shall cause the Purchasing Affiliates to) assume, effective as of the Collaboration Closing, and from and after the Collaboration Closing, shall (and shall cause the Purchasing Affiliates to) pay, perform and discharge when due, all Assumed Collaboration Liabilities.

2.5.2                     Risk of Loss.  Until the Collaboration Closing, any loss of or damage to the Collaboration Assets from fire, casualty or any other occurrence shall be the sole responsibility of BMS or the Selling Affiliates, as applicable.  From and after the Collaboration Closing, title to the Collaboration Assets shall be transferred to Purchaser and Purchaser shall thereafter bear all risk of loss associated with the Collaboration Assets and be solely responsible for procuring adequate insurance to protect the Collaboration Assets against any such loss (it being understood that Purchaser’s responsibility is not contingent on Purchaser’s ability to procure adequate insurance).

2.5.3                     Consents of Third Parties.

2.5.3.1           Notwithstanding anything in this Agreement to the contrary, Section 2.5.1 shall not constitute an agreement to assign any asset included in the Collaboration Assets (including any Collaboration Contract) or any claim, right or benefit arising under or resulting from any such asset (including any Collaboration Contract), if the assignment or transfer thereof, without the consent of a Third Party, would constitute a breach or other contravention of the rights of such Third Party, would be ineffective with respect to any party to an agreement concerning such asset (including any Collaboration Contract), claim, right or benefit, or, upon assignment or transfer, would in any way adversely affect the rights of BMS or any Selling Affiliate or, upon transfer, Purchaser or any Purchasing Affiliate.  If any such consent is not obtained prior to the Collaboration Closing, such transfer or assumption shall be made subject to such consent being obtained.

2.5.3.2           If any such consent is not obtained prior to the Collaboration Closing, (i) BMS shall use its commercially reasonable efforts to obtain such consent as promptly as practicable after the Collaboration Closing, and (ii) BMS, the Selling Affiliates and Purchaser shall cooperate (each at their own expense) in any lawful and reasonable arrangement proposed by Purchaser under which Purchaser shall obtain the economic claims, rights and benefits under any such asset included in the Collaboration Assets (including any Collaboration Contract) or related claim, right or benefit with respect to which the consent has not been obtained in accordance with this Section 2.5.3.  Such reasonable arrangement may include (a) the subcontracting, sublicensing or subleasing to Purchaser of any and all rights of BMS and the Selling Affiliates against the other party to such Third Party Contract arising out of a breach or cancellation thereof by the other party, and (b) the enforcement by BMS or the Selling Affiliates of such rights.  None of BMS, Purchaser or their respective Affiliates shall be required to commence, defend or participate in any litigation, incur any obligation in favor of, or offer or grant any accommodation (financial or otherwise) to, any Third Party in connection with entering into or implementing such arrangement.

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2.5.3.3           Purchaser acknowledges that certain consents and waivers may be required from parties to the Collaboration Contracts in order to transfer such Collaboration Contracts to Purchaser and that such consents and waivers may not have been obtained on or prior to the Collaboration Closing.  Purchaser agrees that, except for the provisions of Section 2.5.3.2, BMS and its Affiliates shall not have any liability or obligation whatsoever to Purchaser arising out of or relating to the failure to obtain any consents or waivers that may be required in connection with the transfer of the Collaboration Contracts to Purchaser or because of the termination of any Collaboration Contract as a result thereof.  Purchaser further agrees that no representation, warranty, covenant or agreement of BMS contained herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (a) the failure to obtain any such consent or waiver, (b) any such termination, or (c) any lawsuit, action, proceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such consent or waiver or any such termination.

Section 2.6                                Sublease.  On the Effective Date, the Parties shall enter into a sublease agreement in substantially the form attached hereto as Exhibit 2.6, for Purchaser to sublease from BMS or the Selling Affiliates, during the term specified therein, the 7th floor of the office building located at 1144 Eastlake Avenue East, Seattle, Washington 98109 (the “Sublease”).

Section 2.7                                Termination of Agreement.  The Parties may terminate this Agreement prior to the Collaboration Closing, as provided below:

2.7.1                     the Parties may terminate this Agreement by written consent of BMS and Purchaser;

2.7.2                     Purchaser may terminate this Agreement by giving written notice to BMS in the event BMS is in material breach of any representation, warranty or covenant contained in this Agreement, and such breach, individually or in combination with any other such breach, (i) would cause any of the conditions set forth in any of Section 11.1.3, Section 11.1.4 or 11.1.5 to not be capable of being satisfied at the Collaboration Closing, and (ii) is not cured within fifteen (15) Business Days following delivery by Purchaser to BMS of written notice of such breach or, if such breach is not curable within said fifteen (15)-Business Day period, BMS has failed to take substantial steps to remedy such breach or fails to continue to take diligent steps to remediate or cure same as promptly as reasonably practicable thereafter;

2.7.3                     BMS may terminate this Agreement by giving written notice to Purchaser in the event Purchaser is in material breach of any representation, warranty or covenant contained in this Agreement, and such breach, individually or in combination with any other such breach, (i) would cause any of the conditions set forth in either Section 11.2.4 or 11.2.5 to not be capable of being satisfied at the Collaboration Closing, and (ii) is not cured within fifteen (15) Business Days following delivery by BMS to Purchaser of written notice of such breach or, if such breach is not curable within said fifteen (15)-Business Day period, Purchaser has failed to take substantial steps to remedy such breach or fails to continue to take diligent steps to remediate or cure same as promptly as reasonably practicable thereafter;

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2.7.4                     either Party by giving written notice to the other Party, if the Collaboration Closing does not occur on or prior to May 15, 2013, by reason of the failure of any condition precedent under Section 11.1 (with respect to Purchaser) or Section 11.2 (with respect to BMS); and provided, further, that the right to terminate this Agreement under this Section 2.7.4 shall not be available to either Party, if such Party’s action or failure to act has been a principal cause of or resulted in the failure of the Collaboration Closing to occur on or before such date and such action or failure to act constitutes a material breach Purchaser of this Agreement.

Section 2.8                                Effect of Termination.

2.8.1                     If either Party terminates this Agreement pursuant to Section 2.7, all obligations of the Parties hereunder shall terminate without any liability of either Party to the other Party (except for any liability of either Party for knowing and willful breaches of this Agreement prior to the date of such termination and except for BMS’ obligations under Section 2.8.2,which shall survive such termination).

2.8.2                     If this Agreement is terminated by either Party pursuant to Section 2.7.4 at a time when all conditions in Section 11.1 (other than 11.1.6) have been or are capable of being satisfied if the Collaboration Closing were then to occur, the condition precedent set forth in Section 11.1.6 has not been satisfied (other than as a result of the SEC requiring Purchaser to furnish any financial statements contemplated by the proviso in Section 12.8.1) but the conditions set forth in Sections 11.2.1, 11.2.2, 11.2.4 and 11.2.5 have been satisfied, then BMS shall, within two (2) Business Days after request therefor by Purchaser, reimburse Purchaser for all reasonable fees, costs and expenses (including fees and expenses of Purchaser’s attorneys, accountants, financial advisors and experts, allocated employee time and travel expenses) incurred by Purchaser in connection with the negotiation and execution of this Agreement and the Ancillary Agreements (and any related preliminary agreements) and the due diligence review of the Business by Purchaser and its legal counsel and other advisors in connection herewith; provided that BMS’ reimbursement obligation under this Section 2.8.2 shall not exceed [**] Dollars ($[**]).  Purchaser agrees that, except in cases of fraud or willful breaches of this Agreement prior to the date of such termination, the foregoing reimbursement of expenses shall be Purchaser’s sole and exclusive remedy for any breach by BMS of its obligations under Section 12.8.1 or any failure by BMS to deliver the Required Financial Statements at or prior to the Collaboration Closing pursuant to Section 11.1.6.

ARTICLE 3

PROMOTION, COMMERCIALIZATION AND DISTRIBUTION OF PRODUCT

Section 3.1                                General Diligence Obligation.  Subject to the terms and conditions of this Agreement, Purchaser will use commercially reasonable efforts to Promote, market and sell each Product in the Territory during the Collaboration Term in accordance with the Promotion Plan, the Product labeling, any guidelines then approved by the JEC, the terms of this Agreement and all applicable Laws.  All such activity shall occur at Purchaser’s sole expense except as may otherwise be expressly provided by this Agreement or the Ancillary Agreements.  Notwithstanding anything to the contrary otherwise set forth in this Agreement or any Ancillary

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Agreement, (i) Purchaser shall not at any time have any obligation to Exploit any Product in any country or other jurisdiction in the Territory in which the MA for such Product is not then approved and (ii) Purchaser shall have no obligation to obtain approval of any MA for any Product in any country or other jurisdiction in the Territory in which such MA is not approved as of the Collaboration Closing.

Section 3.2                                Joint Executive Committee.

3.2.1                     Joint Executive Committee.

3.2.1.1           Promptly after the Effective Date, the Parties shall form a Joint Executive Committee (the “JEC”) composed of four (4) individuals, two (2) of whom shall be appointed by BMS and two (2) of whom shall be appointed by Purchaser and all of whom shall be qualified to appropriately represent such Party.  The JEC shall be chaired by one (1) of the Purchaser representatives.  The names of the initial members of the JEC are set forth on Exhibit 3.2.1.  Each Party may change any of its JEC members from time to time upon written notice to the other Party.  Additional employees of either Party or its Affiliates may attend JEC meetings as non-voting members on an ad hoc basis as deemed necessary or appropriate by such Party.  The chairperson of the JEC shall be responsible for the preparation and distribution of the minutes of each JEC meeting. Such minutes shall memorialize decisions made by the JEC, but shall avoid details relating to discussions and general matters not involving decisions.  Minutes of meetings shall be disseminated to committee members not later than twenty (20) Business Days following any meeting of the JEC.  All JEC meeting minutes shall, following review by the Parties and agreement of their contents, be countersigned on behalf of each Party as evidence of acceptance of the correctness of such minutes.

3.2.1.2           The JEC will be responsible for (i) approving the Promotion Plan and any material changes thereto in accordance with Section 3.3, (ii) approving the Additional Products as “Products” under this Agreement, (iii) the JEC responsibilities set forth herein with respect to this Agreement, including product development and discussing the actual results of the Promotion, marketing and sale of the Products in the Territory by Purchaser, and (iv) and such other matters as either Party may bring before the JEC as set forth in this Agreement; provided, however, that the Parties agree and acknowledge that any failure or delay in the JEC meeting to discuss any such matter shall not affect either Party’s rights or obligations under this Agreement.  The JEC shall meet at least twice each year during the Collaboration Term; provided, that it is understood that the first meeting of the JEC shall be held as soon as practical after the Effective Date.  Meetings of the JEC shall be held alternately at a location designated by each Party or as the members of the JEC may agree.  JEC meetings may not necessarily be face-to-face meetings, but may be held via other methods of communication, such as teleconferences and/or videoconferences.  Subject to the terms and conditions of this Agreement, decisions of the JEC shall be by majority vote of a quorum of its members (with each Party having one (1) vote), with a quorum constituting at least one (1) voting representative of each Party and the chairperson of the JEC having the right to cast a vote to break all tie votes of the JEC.  The majority vote and tie-breaking provisions under the preceding sentence shall not, however, apply to (A) matters involving a breach of this Agreement, or (B) as provided in Section 3.2.4.

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3.2.1.3           Each Party shall bear the costs of its representatives attending and participating in meetings of the JEC.

3.2.1.4           If BMS reasonably believes that any Promotion Plan or decision or guideline promulgated by Purchaser or the JEC would be reasonably expected to materially and adversely affect the value of the Products, and notifies Purchaser or the JEC of the same, then Purchaser or the JEC will consult with BMS and consider in good faith BMS’ concerns with respect thereto and any recommendations by BMS to address such concerns; provided, that, except as required by applicable Law or if due to patient safety concerns, the JEC will not approve any changes to the labeling of any Product that would materially and adversely affect the value of such Product without BMS’ prior written consent.

3.2.2                     Alliance Managers.

3.2.2.1           Each of the Parties shall appoint one or more senior representatives who possess a general understanding of Promotion, marketing, sales, regulatory and commercialization issues to act as a single point of contact between the Parties to assure a successful collaboration (such representatives are referred to as such Party’s “Alliance Managers”).  The Alliance Managers shall attend all JEC meetings as nonvoting (except as provided below) participants and support the members of the JEC in the discharge of their responsibilities.  An Alliance Manager may bring any matter to the attention of the JEC if such Alliance Manager reasonably believes that such matter warrants such attention.  Alliance Managers shall be voting participants in such JEC meetings if they are appointed members of the JEC pursuant to Section 3.2.1.1.

3.2.2.2           Each Party may change its designated Alliance Managers from time to time upon written notice to the other Party.  Any Alliance Manager may designate a substitute to temporarily perform the functions of that Alliance Manager.  Each Alliance Manager shall be charged with creating and maintaining a collaborative work environment within the JEC.  Each Alliance Manager also shall provide a single point of communication between the Parties regarding this Agreement and the Ancillary Agreements.

3.2.3                     Regulatory Approvals.

3.2.3.1           Purchaser shall have the authority and responsibility for obtaining and maintaining, at Purchaser’s sole expense, all Regulatory Approvals (x) that are related to each Product in the Territory and required for the Promotion, marketing and sale of such Product in the Territory in accordance with all applicable Laws, and (y) that are related to the use of advertising and promotional materials, literature or programs related to the Products in the Territory (the materials contemplated by this clause (y), the “A&P Materials”).

3.2.3.2           Purchaser shall be responsible for conducting meetings, conferences and discussions related to the Products and the A&P Materials with the applicable Governmental or Regulatory Authority in each country in the Territory as reasonably required to comply with its obligations hereunder.  Purchaser shall provide BMS with reasonable advance notice of all meetings, conferences and discussions scheduled with any Governmental or

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Regulatory Authority concerning any regulatory matter relating to the Products in the Territory not later than five (5) Business Days after it receives notice of the scheduling of such meeting, conference or discussion.  BMS shall be entitled to have one (1) representative present as an observer at all such meetings, conferences and discussions at its sole cost and expense.  BMS’ and Purchaser’s members of the JEC shall reasonably cooperate with each other to agree in advance on the scheduling of such meetings, conferences and discussions and on the objectives to be accomplished at such meetings, conferences and discussions and the agenda for such meetings, conferences, and discussions with such Governmental or Regulatory Authority.

3.2.3.3    Purchaser shall promptly provide BMS with copies of all material written communications with the applicable Governmental or Regulatory Authorities relating to obtaining or maintaining any Regulatory Approval described in Section 3.2.3.2 or in any way related to any Product or any of the A&P Materials for the Territory.

3.2.4                     No Adverse Change to BMS Rights Without BMS Consent.  Notwithstanding any term or condition of this Agreement that may state or imply to the contrary, during the Collaboration Term:

(i)                                     BMS shall not be required to follow any decision or guideline determined or promulgated by Purchaser or the JEC where doing so would conflict with any applicable Law in any material respect; provided, that, BMS promptly notifies Purchaser thereof in writing;

(ii)                                  no Promotion Plan, or any decision or guideline promulgated by Purchaser or the JEC, may adversely affect any of BMS’ manufacturing and supply obligations under this Agreement or the Supply Agreement or may require BMS to spend any funds or reimburse or absorb any costs that are not expressly provided for under this Agreement or the Ancillary Agreements, without BMS’ prior written consent; provided, however, that, for clarity, BMS shall undertake, at its expense, those activities and obligations set forth in this Agreement or any Ancillary Agreement, at BMS’ sole cost and expense (except as expressly required to be paid by Purchaser), and the costs associated with such activities and obligations are deemed expressly provided for under this Agreement; and

(iii)                               the following matters shall require a unanimous vote of the JEC to be approved: (a) any approval of an Additional Product as a “Product” under this Agreement if the addition of such Additional Product would require any change to the terms of the Supply Agreement or any Transferred Contract with respect to manufacture or supply of Products to Purchaser, (b) any changes to the Manufacturing Know-How, Product Formulae or Product Specifications, except if required by applicable Law, and (c) any addition or removal of any Product to the list of products covered by the Supply Agreement, except a removal required by applicable Law or due to patient safety concerns.

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Section 3.3                                    Promotion Plan.  Subject to Section 4.1:

3.3.1                     Approval by JEC.  The Promotion Plan shall set forth the key elements listed in Section 3.3.2.  Purchaser shall prepare the Promotion Plan for the first (1st) and second (2nd) Agreement Years and deliver a copy thereof to the JEC within sixty (60) days after the Effective Date.  For each subsequent Agreement Year, Purchaser shall prepare the Promotion Plan for such Agreement Year and deliver a copy thereof to the JEC on or before August 15th of the preceding Agreement Year.  The Promotion Plan for any Agreement Year, and all material changes or supplements thereto, must be approved by the JEC.  For clarity, JEC approval shall not be required for implementation of the day-to-day details of Purchaser’s advertising, promotion, selling or other commercialization activities.

3.3.2                     Content of Promotion Plan. Subject to applicable terms of this Agreement, the Promotion Plan will focus principally on the Promotion of the Products by Purchaser in the Territory, and will include matters such as:

(i)                                     the number of Purchaser Sales Force Personnel allocated to each country in the Territory;

(ii)                                  market research plans;

(iii)                               a market and sales forecast for each country or jurisdiction in the Territory;

(iv)                              pharmacoeconomic studies; and

(v)                                 a forecast of the number of units expected to be sold for each Product for the time period covered by the Promotion Plan.

In the event of any conflict between this Agreement and the terms of any Promotion Plan, the terms of this Agreement shall control.

Section 3.4                                    Provisions Applicable to the Parties’ Employees.

3.4.1                     BMS’ Worker’s Compensation Insurance.  Purchaser acknowledges and agrees that BMS does not and will not maintain or procure any worker’s compensation insurance for or on behalf of Purchaser or any of the Purchaser Employees, all of which shall be Purchaser’s sole responsibility.  Purchaser shall procure and maintain at all times during the Collaboration Term adequate worker’s compensation insurance in accordance with applicable Law for all Purchaser Employees.

3.4.2                     Confidentiality and Inventions Agreement with Purchaser.  All Purchaser Sales Force Personnel and any other employee or independent contractor of Purchaser or its Affiliates who are reasonably expected to come into contact with any BMS Confidential Information (including BMS Know-How) shall, before coming into contact with such BMS Confidential Information, have first executed an agreement with Purchaser that includes appropriate language under which such individual is bound to maintain the confidentiality of any BMS Confidential Information (including BMS Know-How), and agrees not to use such Confidential Information for any purpose except to carry out Purchaser’s duties hereunder, in each case on terms no less stringent than those set forth in Article 14.  All Purchaser Sales Force

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Personnel and any other employee or independent contractor of Purchaser or its Affiliates who are reasonably expected to come into contact with any BMS Confidential Information (including BMS Know-How) shall, before coming into contact with such BMS Confidential Information (including BMS Know-How), have first executed an agreement with Purchaser under which such individual is bound to assign to Purchaser all his or her rights, title and interests in any inventions made by such individual during the Collaboration Term relating to any Purchaser Improvements described in Section 3.7.1.

3.4.3                     Transfer of BMS Employees.

3.4.3.1           As soon as practicable after the date hereof (and in any event prior to the Effective Date), Purchaser shall offer each person identified on Exhibit 3.4.3-1, which shall include persons who may be on disability, uniformed services or other leave of absence, employment with Purchaser or one of its Affiliates, commencing as of the Effective Date (or, in the case of any such person on disability, uniformed services or other leave of absence immediately prior to the Effective Date, commencing as of the next Business Day following the end of such period of leave, provided in all events, such period of leave ends no later than one hundred eighty (180) days after the Effective Date).  As soon as practicable after the Exercise Date (and in any event prior to the Purchase Closing Date), Purchaser shall offer each person identified on Exhibit 3.4.3-2 (collectively, with the persons identified on Exhibit 3.4.3-1, the “BMS Employees”), which shall include persons who may be on disability, uniformed services or other leave of absence, employment with Purchaser or one of its Affiliates, commencing as of the Purchase Closing Date (or, in the case of any such person on disability, uniformed services or other leave of absence immediately prior to the Effective Date, commencing as of the next Business Day following the end of such period of leave, provided in all events, such period of leave ends no later than one hundred eighty (180) days after the Purchase Closing Date).  Each offer for employment to each BMS Employee shall be for a position with terms and conditions, including level of responsibility, compensation, and authority, that are no less favorable in the aggregate than those provided to such BMS Employee immediately prior to the applicable Employee Transfer Date on the terms set forth in this Section 3.4.  The BMS Employees so hired by Purchaser or one its Affiliates shall be referred to herein as the “Transferred Employees” and each Transferred Employee shall be deemed for all purposes under this Agreement from and after the date such Transferred Employee commences employment with Purchaser (an “Employee Transfer Date”) to be employees of Purchaser, including as part of Purchaser’s Sale Force Personnel (if applicable).

3.4.3.2           The offers of employment described in Section 3.4.3.2 shall be on terms sufficient to avoid statutory severance or similar obligations, except to the extent such severance or similar obligations arise without regard to such terms.  Notwithstanding any other provision of this Section 3.4.3 to the contrary, if applicable Law requires BMS or an Affiliate to make any payment or provide any benefit to any Transferred Employee in the event Purchaser or its Affiliates do not offer to provide a Transferred Employee with a specified level of compensation or benefits, then Purchaser and its Affiliates shall offer to provide such level of compensation or benefits to the extent necessary to prevent BMS and its Affiliates being so obligated to such Transferred Employee.  BMS and Purchaser intend that for purposes of any severance or termination benefit plan, program, policy, agreement or arrangement of BMS, the

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transactions contemplated by this Agreement shall not constitute a severance of employment of any Transferred Employee prior to or upon the consummation of the transactions contemplated hereby, and that the Transferred Employees will have continuous and uninterrupted employment immediately before and immediately after the applicable Employee Transfer Date.  Purchaser shall assume and be solely responsible for all obligations, liabilities and commitments in respect of claims made by any Transferred Employee for severance or other termination benefits (including claims for wrongful dismissal, constructive dismissal, notice of termination of employment or pay in lieu of notice) arising out of, relating to or in connection with Purchaser’s failure to offer employment to any BMS Employee (or failure to offer employment on terms and conditions which would preclude any claims of constructive dismissal or similar claims under any applicable Law or other failure to comply with the terms of this Agreement) or where any such severance or termination benefits are required to be paid under applicable Law without regard to such terms and conditions of employment.

3.4.3.3           During the period commencing on the Effective Date and ending on the last day of the month that is twenty-four (24) months after the Effective Date (the “Continuation Period”), Purchaser shall, or shall cause its Affiliates to, provide the Transferred Employees who remain in the employment of Purchaser or its Affiliates during the Continuation Period with cash compensation arrangements (including base salary and wages and bonus opportunities) and employee benefit plans with respect to each Transferred Employee that are no less favorable in the aggregate than those provided by BMS and its Affiliates to each such Transferred Employee immediately prior to the applicable Employee Transfer Date (or, in the case of a Transferred Employee on disability, uniformed services or other leave of absence immediately prior to the applicable Employee Transfer Date, immediately prior to the start of such leave).  Immediately following the expiration of the Continuation Period, Purchaser shall maintain, and, where applicable, shall cause its Affiliates to maintain, compensation arrangements and employee benefit plans, programs, policies and arrangements and perquisites with respect to each Transferred Employee that are no less favorable in the aggregate than those provided to similarly situated employees of Purchaser and its Affiliates.  In addition:

(i)                                     Purchaser or its Affiliates shall pay each Transferred Employee bonuses, incentives and commissions earned in and/or with respect to his or her performance during (A) the calendar year preceding the calendar year in which such Transferred Employee’s Employee Transfer Date occurs, and (B) the portion of the calendar year in which such Transferred Employee’s Employee Transfer Date occurs elapsing prior to such Employee Transfer Date, in each case of clauses (A) and (B), (1) that remain unpaid in the Ordinary Course of Business as of the applicable Employee Transfer Date and (2) in accordance with written payment instructions (which shall include a reasonably detailed calculation of the payment amounts) delivered by BMS to Purchaser in writing at least ten (10) Business Days prior to the payment date; provided, that BMS shall promptly (and in any event within thirty (30) days) following such payment reimburse Purchaser in full for such amounts (including the employer portion of any withholding or other payroll Taxes) and any underpayment (relative to actual bonuses, incentives or commissions earned pursuant to any BMS plan or similar arrangement in effect as of the applicable Employee Transfer Date) to any such Transferred Employee resulting from Purchaser’s compliance with BMS’ written instructions;

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(ii)                                  during the Continuation Period (or, with respect to the BMS Employees set forth on Exhibit 3.4.3-2 who become Transferred Employees, during the period of twenty-four (24) months following such Transferred Employee’s Employee Transfer Date), except where a Transferred Employee’s termination of employment occurs by reason of (a) voluntary resignation or retirement; (b) mandatory retirement from employment in accordance with BMS policy or statutory requirements; (c) a Transferred Employee’s position is outsourced, and within four (4) weeks of the date such Transferred Employee’s employment with the Purchaser or its Affiliate terminates, such Transferred Employee rejects, declines or refuses to accept an offer of any type of employment, regardless of the terms and conditions of employment, with the entity, or any agent or affiliate thereof, that will provide the outsourced services; (d) disability; (e) “Cause” as defined below; (f) a Transferred Employee declines, rejects or refuses to accept a transfer to a position within Purchaser or its Affiliates at a new work location that is less than fifty (50) miles farther from such Transferred Employee’s primary residence than his or her work location immediately prior to the proposed transfer; (g) the sale of all or part of the Purchaser or its Affiliates’ business assets if a Transferred Employee is offered employment within four (4) weeks of the date such Transferred Employee’s termination of employment with Purchaser or its Affiliates by the acquirer of such assets, regardless of the terms and conditions of employment offered by the acquirer; (h) upon the formation of a joint venture or other business entity in which the Purchaser or its Affiliates directly or indirectly will own some outstanding voting or other ownership interest if a Transferred Employee is offered employment by the joint venture entity or other business entity within four (4) weeks of the date such Transferred Employee’s employment with Purchaser or its Affiliates terminates, regardless of the terms and conditions of employment offered by the joint venture entity or other business entity; or (i) a Transferred Employee reports to a different person, Purchaser or its Affiliates shall provide a Transferred Employee with severance benefits that are no less than the severance benefits that such Transferred Employee would have received had such employee’s employment been terminated immediately before the applicable Employee Transfer Date but including any period of employment by Purchaser and/or its Affiliates following the applicable Employee Transfer Date.  For purposes of this clause (ii), “Cause” means (a) failure or refusal by a Transferred Employee to substantially perform his or her duties with the Purchaser or its Affiliates (except where the failure results from incapacity due to disability); or (b) severe misconduct or engaging in an activity or failing to take an action, in all events deemed detrimental to the interests of Purchaser, including acts involving dishonesty, violation of Purchaser’s written policies, violation of safety rules, disorderly conduct, discrimination and/or discriminatory harassment, unauthorized disclosure of confidential information, or the entry of a plea of nolo contendere to, or the conviction of, a crime; and

(iii)                               where applicable, Purchaser shall, and shall cause its Affiliates to, credit each Transferred Employee’s length of service with BMS or its Affiliate (including predecessor companies), as applicable, for all purposes (including eligibility, vesting, and benefit accrual, and calculating entitlement to vacation days, sick days and severance payments) to the same extent such service was recognized under the employee benefit plan, program, policy or arrangement of BMS or its Affiliate, as applicable, that most closely resembles that to be provided by Purchaser or its Affiliate.

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3.4.3.4           With respect to any welfare plan maintained by Purchaser or its Affiliates in which the Transferred Employees are eligible to participate after the applicable Employee Transfer Date, Purchaser shall, and shall cause its Affiliates to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to such employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of BMS or its Affiliate, as applicable, prior to the applicable Employee Transfer Date, and (ii) provide each Transferred Employee with credit for any co-payments and deductibles paid prior to the applicable Employee Transfer Date in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan, provided that BMS shall timely provide such data to Purchaser in a commercially reasonable format.

3.4.3.5           BMS and its Affiliates agree to provide any required notice under WARN and/or any other similar applicable Law and to otherwise comply with any such Law with respect to any “plant closing” or “mass layoff” (as defined in WARN and/or any other similar applicable law) or similar event affecting the BMS Employees up to the applicable Employee Transfer Date, and neither Purchaser nor any of its Affiliates shall be responsible or liable for any liabilities or obligations under WARN or other applicable law up to the applicable Employee Transfer Date.  Purchaser shall be responsible and liable for providing any required notice under WARN and/or any other similar applicable Law and to otherwise comply with any such Law with respect to any “plant closing” or “mass layoff” (as defined in WARN and/or any other similar applicable Law) or similar event affecting the BMS Employees or Transferred Employees on or after the applicable Employee Transfer Date, including Purchaser’s failure to offer employment to the BMS Employees in accordance with this Section 3.4.

3.4.3.6           At all times, BMS shall retain any and all Liabilities for or with respect to all BMS Employees who do not become Transferred Employees, except to the extent that Purchaser fails to comply with its obligations under this Section 3.4.

3.4.4                     Savings and Investment Plan.

3.4.4.1           Without limiting the generality of the foregoing, effective as of the Effective Date, Purchaser shall have in effect a profit sharing plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code that is qualified pursuant to Section 401(a) of the Code and trust that forms a part of such plan that is exempt from tax under Section 501(a) of the Code (such plan and trust, together, “Purchaser’s 401(k) Plan”), which will provide to Transferred Employees, who immediately prior to the applicable Employee Transfer Date are participants or who would be permitted during the Continuation Period to become participants in the Bristol-Myers Squibb Company Savings and Investment Program (the “BMS 401(k) Plan”), contributions and vesting that are identical to that provided by the BMS 401(k) Plan immediately prior to the applicable Employee Transfer Date, but only during the Continuation Period and only to the extent that such transition contributions do not cause the Purchaser’s 401(k) Plan to fail to satisfy the requirements of Code Section 401(a)(4), 401(k) or 401(m).  Each Transferred Employee participating in the BMS 401(k) Plan immediately prior to the applicable Employee Transfer Date shall become a participant in Purchaser’s 401(k) Plan as of the applicable Employee Transfer Date and each Transferred

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Employee who would have become eligible during the Continuation Period to participate in the BMS 401(k) Plan shall become a participant in Purchaser’s 401(k) Plan at such time as he or she would have become eligible to participate in the BMS 401(k) Plan.

3.4.4.2           BMS shall vest all balances of the Transferred Employees in the BMS 401(k) Plan immediately prior to the Effective Date or, if later, upon their termination of employment with BMS.  At such time as BMS is reasonably satisfied that Purchaser’s 401(k) Plan meets the requirements for qualification under Sections 401(a) and 501(a) of the Code, BMS shall cause the BMS 401(k) Plan to transfer to the trust that forms a part of Purchaser’s 401(k) Plan cash, assets (but not including shares of BMS common stock) or a combination thereof in an amount equal to the account balances of the Transferred Employees (including any promissory notes evidencing outstanding loan balances under the BMS 401(k) Plan) as of the valuation date next preceding such transfer, and Purchaser shall cause Purchaser’s 401(k) Plan to accept such transfer and allocate the cash and property thus transferred to the Purchaser 401(k) Plan accounts of Transferred Employees in relative proportion to the amount debited from the Transferred Employees’ accounts under the BMS 401(k) Plan.

3.4.4.3           Following such transfer of cash or property, Purchaser and/or Purchaser’s 401(k) Plan shall assume all liabilities and obligations of BMS and its Affiliates under the BMS 401(k) Plan with respect to Transferred Employees and their beneficiaries.

3.4.5                     Relocation Benefits.  Without limiting the generality of Section 3.4.3, as of the applicable Employee Transfer Date, Purchaser shall provide each eligible Transferred Employee with relocation benefits (“Purchaser Relocation Benefits”) as follows: (a) with respect to (i) each Transferred Employee who, as of the applicable Employee Transfer Date, is receiving relocation benefits provided by BMS and its Affiliates (“BMS Relocation Benefits”); and (ii) each Transferred Employee who, as of the applicable Employee Transfer Date, is in the process of undergoing a relocation that would have been covered under BMS Relocation Benefits, then the Purchaser Relocation Benefits shall be identical, in all respects, to the BMS Relocation Benefits, at the expense of Purchaser;  and (b) with respect to all Transferred Employees (other than those specified in clause (a), above), as of the applicable Employee Transfer Date and during the Continuation Period, Purchaser shall provide Purchaser Relocation Benefits that are substantially similar to the BMS Relocation Benefits.

3.4.6                     Vacation Benefits.  Upon termination of employment with BMS and its Affiliates, Purchaser shall, to the extent required by applicable Law, pay each Transferred Employee for any vacation days accrued (including any vacation days previously deferred but excluding any vacation days taken) through the applicable Employee Transfer Date.  To the extent the payment described in the immediately preceding sentence is not required under applicable Law, Purchaser shall assume and honor all vacation days accrued but not yet taken by Transferred Employees as of the applicable Employee Transfer Date (it being understood that Purchaser and its Affiliates may deduct from the number of vacation days made available to any Transferred Employee the number of days of vacation previously taken by such Transferred Employee in the applicable year).  In the event that any Transferred Employee has taken more vacation days than he or she has accrued as of the applicable Employee Transfer Date, neither Purchaser nor its Affiliates shall have any obligation to reimburse BMS in respect thereof.

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3.4.7                     Employment and Other Agreements.  Effective as of the applicable Employee Transfer Date, Purchaser shall assume all Liabilities to the extent related to the period beginning after the applicable Employee Transfer Date with respect to all employment agreements and supplemental benefit agreements which have been entered into between a Transferred Employee, on the one hand, and BMS or its Affiliates, on the other hand and are identified in Exhibit 3.4.7.  BMS shall retain all Liabilities with respect to all salaries and wages of each Transferred Employee that are accrued and unpaid as of the applicable Transfer Date.

3.4.8                     Retention Arrangements.  BMS shall retain the economic obligations under all retention bonus or similar arrangements of BMS and its Affiliates that are payable to the Transferred Employees before, as of or after the applicable Employee Transfer Date, including those identified in Exhibit 3.4.8.

3.4.9                     Other Programs and Benefits.  Effective as of the applicable Employee Transfer Date, Purchaser shall assume and be solely responsible for all Liabilities arising after the applicable Employee Transfer Date with respect to (a) tuition assistance programs, (b) automobile policies, and (c) statutory benefits, in each case provided to the Transferred Employees and their beneficiaries by BMS and its Affiliates immediately prior to the applicable Employee Transfer Date.

3.4.10              No Participation in BMS Benefit Plans.

3.4.10.1                            Purchaser acknowledges and agrees that, after the applicable Employee Transfer Date, all Transferred Employees are not, and are not intended to be or be treated as, employees or independent contractors of BMS or any of its Affiliates, and that such individuals are not, and are not intended to be, eligible to participate in any benefit plans, programs or arrangements, including in any “employee benefit plans”, as such term is defined in section 3(3) of ERISA, that are sponsored by BMS or any of its Affiliates or that are offered from time to time by BMS or its Affiliates to their own employees.  After the applicable Employee Transfer Date, (i) all matters of compensation, benefits and other terms of employment or retention for all Transferred Employees shall be solely a matter between Purchaser and such individual, and (ii) Purchaser shall be solely responsible and liable for the payment of all compensation and benefits under any employee benefit plan, program or arrangement to all Transferred Employees, in the case of each of the foregoing clauses (i) and (ii), solely to the extent related to the period after the applicable Employee Transfer Date except as expressly set forth in this Agreement.  After the applicable Employee Transfer Date, no Transferred Employee shall participate in any Benefit Plan, except to the extent of such Transferred Employee’s participation as a former employee of BMS or its Affiliates.

3.4.10.2                            To the extent related to the period after the applicable Employee Transfer Date, BMS shall not be responsible to Purchaser or any of the Transferred Employees (i) for any compensation, expense reimbursements or benefits (including bonuses, redundancy or termination of employment compensation, equity-based compensation, vacation and holiday remuneration, healthcare coverage or insurance, life insurance, pension or profit-sharing benefits and disability benefits), (ii) payroll-related taxes or withholdings, or (iii) any governmental charges or benefits (including unemployment and disability insurance

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contributions or benefits and workmen’ compensation contributions or benefits), in the case of each of clauses (i), (ii) and (iii) of this sentence, that may be imposed upon or be related to the performance by Purchaser, or any of the Transferred Employees of Purchaser’s obligations under this Agreement, all of which shall be the sole responsibility of Purchaser, even if it is subsequently determined by any court, the IRS or any other Governmental or Regulatory Authority that such individual may have been a common law employee of BMS or any of its Affiliates; provided, however, that BMS shall retain all Liabilities for any obligations of BMS or its Affiliates under any Benefit Plan.

3.4.11              Responsibility for Acts and Omissions of its Employees and Contractors.  Each Party shall be solely responsible for its acts and omissions, for those acts or omissions of its employees and personnel (including, in the case of Purchaser, all Purchaser Employees) while performing any of the services to be provided under this Agreement and for those acts or omissions of any independent contractors engaged by such Party for the purpose of performing any of the services to be provided under this Agreement.

3.4.12              Responsibility for Disciplinary Actions of Employees.  Each Party shall be solely responsible and liable for all probationary and termination actions taken by it, as well as for the formulation, content, and for the dissemination (including content) of all employment policies and rules (including written probationary and termination policies) applicable to its employees and contractors.

3.4.13              Absence of Third Party Beneficiaries.  The Parties acknowledge and agree that all provisions contained in this Section 3.4 with respect to employees are included for the sole benefit of the respective Parties and shall not be deemed to be an amendment to any employee benefit plan and shall not create any right in any other Person, including any employees, former employees, participants or beneficiaries thereof in any Benefit Plan, in any Purchaser Plan, or otherwise.

Section 3.5                                    Promotional and Advertising Responsibilities.

3.5.1                     Purchaser Duties.  During the Collaboration Term:

3.5.1.1           Purchaser agrees to instruct all Purchaser Sales Force Personnel to, and to use commercially reasonable efforts to monitor all Purchaser Sales Force Personnel to ensure that such personnel, use only A&P Materials and literature that comply with the applicable Governmental or Regulatory Authority-approved labeling for each Product in each applicable jurisdiction within the Territory and in accordance with all applicable Laws.

3.5.1.2           Purchaser will instruct all Purchaser Sales Force Personnel to, and will use commercially reasonable efforts to monitor all Purchaser Sales Force Personnel so that such personnel will:

(i)                                     limit claims of efficacy and safety for the Products in the Territory to those that are consistent with the applicable Governmental or Regulatory Authority-approved

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prescribing information for each Product in each jurisdiction within the Territory and with all applicable Laws;

(ii)                                  Promote the Products under this Agreement in the Territory in adherence to the Promotion Plan and to all applicable Laws.

3.5.1.3           Purchaser will be solely responsible and liable for any failure by any Purchaser Sales Force Personnel to use only those A&P Materials and literature that comply with the applicable Governmental or Regulatory Authority-approved labeling for each Product in each jurisdiction within the Territory and with all applicable Laws.  Purchaser shall be responsible for all Losses incurred by BMS or its Affiliates resulting from statements made by any Purchaser Sales Force Personnel that relate to the safety or efficacy of a Product or Competing Product that are not in compliance with all applicable Laws, the King Settlement Agreement or as otherwise permitted in accordance with the terms of this Agreement.

3.5.2                     Compliance with Applicable Laws.  Purchaser will ensure that promotional and education materials and literature developed, approved, or used by it or its Affiliates in connection with each Product in the Territory during the Collaboration Term, and all advertising of the Products in the Territory during the Collaboration Term (whether in print, radio, television, Internet, or otherwise) developed, approved, or used by it or its Affiliates, comply with the applicable Governmental or Regulatory Authority-approved labeling for such Product in each applicable jurisdiction within the Territory and with all applicable Laws.

3.5.3                     BMS Commitment.  Notwithstanding any other provision of this Agreement to the contrary, except as expressly provided in this Agreement or the Ancillary Agreements, it is understood and agreed that BMS has no obligation, express or implied, to incur any costs or expenses related to the advertising and promotion of any Product in the Territory, or to engage in any advertising and promotion activities on its own with respect to any Product in the Territory.

Section 3.6                                    Market Research Data.  During the Collaboration Term, each Party shall provide the other Party with access in accordance with applicable Law to all primary and secondary (audited and non-audited) market research data in such Party’s possession for the Products reasonably promptly only if and after the same are made available to such Party and for so long as such Party has the right to provide such information to the other Party in accordance with applicable Law; provided, that the receiving Party shall hold such information as Confidential Information of the providing Party or the Third Party source providing the same.

Section 3.7                                    Cost and Control of Purchaser Sales Force Personnel.  Except as otherwise specifically provided in this Agreement, Purchaser shall be solely responsible for the costs and expenses of establishing and maintaining all Purchaser Sales Force Personnel and conducting its Promotional activities under this Agreement, and shall have sole authority to control and direct the activities of all Purchaser Sales Force Personnel used by it to Promote, market and sell the Products in the Territory in accordance with its obligations hereunder and in compliance with all applicable Laws.

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Section 3.8                                    Response to Third Parties.  Upon being contacted by any Third Party regarding any efficacy, safety, Intellectual Property rights, Promotion, manufacture or competition or other issues relating to any Product (other than contacts made in the Ordinary Course of Business regarding potential or existing commercial relationships), such Party shall promptly notify the JEC of the same. BMS will not respond to such Third Party unless it has first consulted with the JEC and, subject to Section 7.1, received the JEC’s permission to do so.  Purchaser will not respond to such Third Party with regard to any matter related to the manufacture of any Product unless it has first consulted with the JEC and, subject to Section 7.1, received the JEC’s permission to do so.  Each of BMS and Purchaser shall provide the other Party with a copy of its response to such Third Party inquiry where the issue involves a matter that would adversely affect the other Party’s rights or obligations under this Agreement.

Section 3.9                                    Compliance with Settlement Agreement.  Purchaser shall comply with those terms of the Confidential Settlement and Mutual Release, dated as of September 13, 2011, between ZymoGenetics, Inc. and BMS, on the one hand, and King Pharmaceuticals, Inc., Monarch Pharmaceuticals, Inc., King Pharmaceuticals Research and Development, Inc., GenTrac, Inc. and Pfizer Inc., on the other hand (the “King Settlement Agreement”), which are applicable to ZGI/BMS (as defined therein).  During the Collaboration Term and thereafter, BMS agrees and acknowledges that it and its Affiliates, employees and other related Persons (as described in the King Settlement Agreement) shall comply with the King Settlement Agreement in accordance with the terms thereof.

Section 3.10                             Government Price Reporting.

3.10.1              BMS agrees that, for each NDC-11 of any Product, it shall provide to Purchaser, within ten (10) days after the Purchase Closing Date, the following: (a) if the Purchase Closing Date occurs in calendar quarters 1, 2, or 3, BMS shall provide the Federal Ceiling Prices in effect during the calendar year in which the Purchase Closing Date occurs; (b) if the Purchase Closing Date occurs in calendar quarter 4, BMS shall provide both the Federal Ceiling Price in effect during the calendar year in which the Purchase Closing Date occurs and the calculated Federal Ceiling Price for the next calendar year; (c) commercial sales data required for Non-FAMP calculation for the current calendar quarter through the Purchase Closing Date, as well as such data for preceding calendar quarters within the federal fiscal year (October 1 - September 30) in which the Purchase Closing Date occurs; (d) relevant Non-FAMP data necessary to complete annual updates as required by Public Law 102-585 (the Veterans Health Care Act of 1992); and (e) all commercial sales data for the current calendar quarter through the Purchase Closing Date, as well as all such data for the preceding calendar quarters within the federal fiscal year (October 1 - September 30) in which the Purchase Closing Date occurs.  All pricing data furnished by BMS pursuant to this subsection shall be provided in the same format that such data are provided by BMS to the Department of Veterans Affairs or in a format otherwise prescribed by Purchaser.  For pricing and sales data that are required in order to submit Governmental Price Reports, but that are not themselves provided to the VA, BMS will furnish that data in a format agreed to between BMS and Purchaser.

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3.10.2              Purchaser will be responsible for the preparation and submission of any government pricing calculations should any Product become a covered outpatient drug or subject to Medicare Part B.

3.10.3              Purchaser shall reimburse BMS and its Affiliates for their reasonable out-of-pocket costs in complying with the provisions of this Section 3.10.

ARTICLE 4

PRODUCT PRICING; REVENUE RECOGNITION; MANUFACTURING

Section 4.1                                    Product Pricing.  During the Collaboration Term, Purchaser shall have the right and responsibility for establishing and modifying the terms and conditions with respect to the sale of the Products in the Territory, including (i) the price at which the Products will be sold; (ii) any discount attributable to payments on receivables; (iii) distribution of the Products; (iv) credit, price adjustments, discounts and allowances to be granted or refused; (v) contracting with and discounts to managed healthcare organizations and Governmental and Regulatory Authorities; and (vi) price increases or decreases and the timing thereof.  Purchaser shall notify BMS in writing of each change in terms promptly following the decision to make such change, but in no event later than the time Purchaser notifies the Purchaser Sales Force Personnel of such change.

Section 4.2                                    Orders Processing.  During the Collaboration Term, Purchaser will book all sales of each Product in the Territory.  Purchaser shall be exclusively responsible for accepting and filling purchase orders, billing, and, subject to Section 4.4, returns, with respect to each Product in the Territory.  If BMS receives an order for the Products in the Territory, it shall promptly transmit such order to Purchaser for acceptance or rejection, and if Purchaser rejects such order, refrain from accepting it.  Purchaser shall have the sole responsibility, at its sole cost and expense, for shipping, distribution and warehousing in a timely manner, and for the invoicing and billing of purchasers, of the Products in the Territory, and for order confirmation (if any), and for the collection of receivables resulting from sales of the Products in the Territory.

Section 4.3                                    Supply of Product.  BMS and Purchaser shall enter into (i) the Supply Agreement, with effect as of the Effective Date, and (ii) a quality agreement between BMS and Purchaser (the “Quality Agreement”), to be entered into no later than forty five (45) days after the Effective Date, which together shall govern BMS’ supply of the Products to Purchaser.  Following the expiration or termination of the Term (as defined in the Supply Agreement) or as otherwise permitted under the Supply Agreement, Purchaser may manufacture the Products or, in its discretion, arrange to have the Products manufactured by one or more Third Parties.

Section 4.4                                    Returns.  Purchaser shall have sole responsibility for accepting, processing and issuing credits for all returns for Product sold before, on or after the Effective Date.  If BMS receives returned Product, BMS will ship such Product to Purchaser, and Purchaser shall, within thirty (30) days after receipt of an invoice from BMS reimburse BMS for any costs and expenses incurred by BMS or any of its Affiliates for shipping Product to Purchaser in accordance with this Section 4.4.  Notwithstanding the foregoing, with respect to all returns for Product sold

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before the Effective Date as determined by lot number or similar mechanism, BMS shall be responsible for, and shall reimburse Purchaser the costs and expenses incurred by Purchaser or its Affiliates with respect to, processing such returns.

Section 4.5                                    Change of NDC; Chargebacks.  Purchaser and BMS will administer and pay all rebates, chargebacks and other similar programs as set forth in this Section 4.5.

4.5.1                     Change of NDC.  Purchaser shall take any and all action necessary, as expeditiously as reasonably possible (but in no event later than twelve (12) months after the Effective Date), to change the NDC number for each Product and to apply such new NDC number to each Product sold by Purchaser; provided, that the foregoing shall not apply to the finished goods provided by BMS under the Supply Agreement or included in the Transferred Inventory.  For the avoidance of doubt, such actions shall include Purchaser obtaining a new NDC number, if it does not already have one.  Purchaser shall communicate to the Centers for Medicare and Medicaid Services, with a copy to BMS, the expiration dates for the last manufactured lots (“Last Lot Expiration Dates”) of each of the Products manufactured by or on behalf of Purchaser that bears BMS’ NDC numbers as soon as each such Last Lot Expiration Date is available.  BMS shall maintain with the applicable Governmental or Regulatory Authority BMS’ NDC number for each Product as required for the manufacture and distribution of the Products until the latest expiry of lots of Products included in the Transferred Inventory.

4.5.2                     Administration and Payment of Chargebacks and Administration Fees.  BMS will be responsible for the administration (including payment, processing and dispute resolution), in compliance with all applicable Laws, of all prime vendor and other chargebacks for the Products (collectively, “Chargebacks”), as well as all administrative fees for the Products, related to (i) all Products sold by wholesalers prior to the Effective Date, and (ii) Products originally sold by wholesalers prior to the Effective Date and thereafter returned to the wholesaler and then resold by the wholesaler on or before the Effective Date.  Purchaser will be responsible for the administration (including processing, payment and dispute resolution), in compliance with all applicable Laws, of all Chargebacks, as well as administrative fees for the Products, related to all Product sales by wholesalers made after the Effective Date.  As of the Effective Date, the Parties will notify all relevant Third Parties that Purchaser will assume responsibility for all obligations relating to Chargeback administration for the Products after the Effective Date.

4.5.3                     FSS Processing.  As soon as reasonably practical after the Effective Date, the Parties will notify all relevant Third Parties, including the U.S. Veterans Administration National Acquisition Center (VANAC), that the Products should be added to Purchaser’s Federal Supply Schedule (“FSS”) and that Purchaser will assume responsibility for all reporting and other obligations relating to FSS submissions and chargeback processing.  Until such time as BMS receives written notification from applicable Governmental and Regulatory Authorities acknowledging the effective date of such addition and that BMS is no longer obligated to make FSS submissions and process FSS chargebacks (the “FSS Acknowledgment Date”), BMS will continue to make FSS submissions and process FSS chargebacks and Purchaser will provide BMS with prompt written notice of (i) changes in its FSS prices, (ii) price changes for the Products to those tracking customer(s) existing as of the Effective Date, and (iii) price reductions

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to any commercial customer to a level below the FSS prices in effect at the Effective Date.  BMS shall inform Purchaser of the FSS Acknowledgement Date within three (3) Business Days thereof.  Purchaser shall provide BMS with written notice of such price changes within three (3) Business Days after such price changes take effect.  Purchaser shall reimburse BMS within sixty (60) days following the FSS Acknowledgment Date for: (a) all chargebacks related to FSS purchases of Products that are paid by BMS with wholesaler invoice dates after the Effective Date, and (b) any incremental liability incurred by BMS attributable to any price or other actions by Purchaser following the Effective Date.  BMS will provide to Purchaser sales and chargeback data as needed in order for Purchaser to perform its Non-Federal Average Manufacturer Price (NFAMP) calculation.

4.5.4                     GPO Processing.  With respect to any BMS GPO agreement included in the Collaboration Contracts that is not transferred to Purchaser at the Collaboration Closing, the Parties will provide notice on or promptly following the Effective Date to all relevant parties to such BMS GPO agreements that the Products should be added to Purchaser’s GPO agreements and terminated from BMS’ GPO agreements, and that Purchaser will assume responsibility for all reporting and other obligations relating to GPO pricing and chargeback processing for the Products, in each case, as of the Effective Date.

4.5.5                     Retroactive Impact.  In the event that any pricing change made by Purchaser after the Effective Date has the effect of increasing any chargeback or similar liability or payment obligation owed by BMS to any Third Party with respect to sales by or on behalf of BMS or its Affiliates before the Effective Date to an amount greater than the amount such chargeback or similar liability or payment obligation would have been in the absence of such pricing change, Purchaser shall reimburse BMS for such increase in liability or payment obligation incurred by BMS.

ARTICLE 5

INTELLECTUAL PROPERTY

Section 5.1                                    Ownership of Transferred Intellectual Property.  Prior to the Purchase Closing in accordance with the terms of Article 10, BMS shall own all right, title and interest to, and be solely entitled to all goodwill developed in, the Transferred Intellectual Property and the Transferred Other Intellectual Property.

Section 5.2                                    Use of BMS and Purchaser Names on Labeling and Packaging; Limited License.

5.2.1                     BMS and Purchaser hereby grant each other royalty-free, non-transferable (except in connection with the transfer of this Agreement as permitted in Section 20.1), non-sublicensable (except to Affiliates of such licensee and, with prior written consent (not to be unreasonably withheld), to subcontractors for the Products) rights to the use of certain of their respective trademarks and service marks, trade names and logos specifically agreed upon by the Parties, excluding the Transferred Intellectual Property and Transferred Other Intellectual Property, (collectively hereinafter referred to as “Marks”), in the Territory for the Collaboration

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Term and, with respect to the rights granted to Purchaser, thereafter in accordance with the provisions of Section 13.2 or Section 15.8, as applicable, solely in connection with the Promotional, marketing and sales activities of Purchaser provided for in this Agreement or as necessary for BMS to supply Products to Purchaser pursuant to the Supply Agreement.  A Party’s license to use any Mark of the other Party with respect to any Product in the Territory shall cease when this Agreement terminates, except for the sale of Products containing such Marks in the Territory in accordance with the provisions of Section 13.2 or Section 15.8, as applicable.

5.2.2                     Each Party agrees to conform to the customary guidelines of the granting Party under Section 5.2.1 with respect to manner of use, and to maintain the quality standards of such granting Party with respect to the goods sold and services provided in connection with such Party’s Marks (provided, however, that the Parties agree and acknowledge that, with respect to any Products supplied by BMS pursuant to this Agreement or the Supply Agreement, BMS is responsible for the quality of the Products and therefore Purchaser is not responsible for maintaining the quality standards of such Products in order to retain the license under BMS’ Marks).  Each Party recognizes and agrees that no ownership rights are vested or created by the limited rights of use granted pursuant to Section 5.2.1, and that all goodwill developed by virtue of the use of Marks in accordance with Section 5.2.1 inures to the benefit of the respective owner of the Marks.  Further, except when used in accordance with any usage guidelines provided by the owner of the Mark, each Party shall submit to the other Party any materials bearing the other Party’s Marks for review and approval prior to the use thereof in accordance with this Agreement (such approval not to be unreasonably withheld) and shall make no use of the Marks of the other Party without the other Party’s prior written consent except as required by applicable Law.

5.2.3                     Each Party shall execute any documents required in the reasonable opinion of the other Party to be entered as a “registered user” or recorded licensee of the other Party’s Marks or to be removed as registered user or licensee thereof.

Section 5.3                                    Trademark and Patent Maintenance.  During the Collaboration Term, BMS shall have the sole right and authority to prepare, file and prosecute any applications for Transferred Intellectual Property and the Transferred Other Intellectual Property, and to maintain all registrations for the Transferred Intellectual Property and Transferred Other Intellectual Property, in their applicable jurisdictions within the Territory at its expense and shall use commercially reasonable efforts to do so.  During the Collaboration Term, Purchaser will not contest the ownership, validity or enforceability of any Transferred Intellectual Property or Transferred Other Intellectual Property.  Other than at the Purchase Closing upon the terms and subject to the conditions of this Agreement, nothing herein creates or is intended to create a grant to Purchaser of any property right or ownership interest in any Transferred Intellectual Property or Transferred Other Intellectual Property.  BMS shall keep Purchaser informed as to material developments with respect to the preparation, filing, prosecution and maintenance of such Transferred Intellectual Property or Transferred Other Intellectual Property, including by providing Purchaser copies of documents filed with and communications with relevant patent and trademark offices in the Territory.  During the Collaboration Term, Purchaser agrees that, with respect to activities for which Purchaser is responsible hereunder, and BMS agrees that, with respect to activities for which BMS is responsible hereunder or under the Supply Agreement, (i) all labeling, A&P Materials and packaging for the Products in the Territory will clearly indicate that the Trademark Rights included

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in the Transferred Intellectual Property or the Transferred Other Intellectual Property are owned by BMS or its Affiliates, and (ii) all labeling and packaging for the Products in the Territory will be marked with appropriate Patent Right numbers or indicia to the extent permitted by applicable Law and provided that BMS has notified Purchaser of the applicable Patent Right numbers, in those countries in which such markings or such notices impact recoveries of damages or equitable remedies available with respect to infringements of patents.

Section 5.4                                    License and Use of Trademarks by Purchaser.  BMS hereby grants to Purchaser non-transferable (except in connection with the transfer of this Agreement as permitted in Section 20.1), non-sublicensable (except to Affiliates of Purchaser and, with BMS’ prior written consent (not to be unreasonably withheld), to subcontractors for the Products), exclusive rights to the use of the Transferred Trademark Rights and Transferred Other Intellectual Property in the Territory solely in connection with the performance of Purchaser’s obligations under this Agreement to Promote, market and sell the Products in the Territory during the Collaboration Term; provided, that except as provided in Section 3.3.1, any such use is first approved in writing by the JEC in advance.  Purchaser agrees that all use of the Transferred Trademark Rights and the Trademark Rights included in the Transferred Other Intellectual Property by Purchaser as provided in this Agreement shall inure to the benefit of BMS and its Affiliates during the Collaboration Term.  Purchaser’s rights to use the Transferred Trademark Rights and the Trademark Rights included in the Transferred Other Intellectual Property granted in this Section 5.4 shall terminate upon the expiration or earlier termination of the Collaboration Term; provided, however, that (i) if the Purchase Closing has occurred, such license shall continue with respect to each Trademark Rights included in the Transferred Intellectual Property or the Transferred Other Intellectual Property until such Trademark Right has been assigned to Purchaser and the Purchasing Affiliates in accordance with the terms of this Agreement, and (ii) subject to Section 15.8, any Inventory of Product containing any such Trademark Right, which Inventory is supplied to Purchaser under this Agreement or the Supply Agreement or exists on the date of the termination of this Agreement (and, if Purchaser is the terminating Party, any Product that is part of an open order placed by Purchaser pursuant to the Supply Agreement for delivery after the date of termination), may be sold by Purchaser in the Ordinary Course of Business.  Purchaser shall not use in connection with any product other than a Product in the Territory any trademark or promotional materials that are substantially the same as or deceptively or confusingly similar to any of BMS’ Mark or any of the Trademark Rights included in the Transferred Intellectual Property or the Transferred Other Intellectual Property.

Section 5.5                                    Use of Patents by Purchaser.  BMS hereby grants to Purchaser non-transferable (except in connection with the transfer of this Agreement as permitted in Section 20.1), non-sublicensable (except to Affiliates of Purchaser and, with BMS’ prior written consent (not to be unreasonably withheld) to subcontractors for the Products), exclusive rights under the Transferred Patent Rights in the Territory solely in connection with the performance of Purchaser’s obligations under this Agreement to Promote, market and sell the Products in the Territory during the Collaboration Term.  Purchaser’s rights to use the Transferred Patent Rights granted in this Section 5.5 shall terminate upon the expiration or earlier termination of the Collaboration Term; provided, however, that (i) if the Purchase Closing has occurred, such license shall continue with respect to each Patent Right included in the Transferred Intellectual Property until such Patent Right has been assigned to Purchaser and the Purchasing Affiliates in

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accordance with the terms of this Agreement, and (ii) subject to Section 15.8, any Inventory of Product embodying any such Patent Right, which Inventory is supplied to Purchaser under this Agreement or the Supply Agreement or exists on the date of the termination of this Agreement (and, if Purchaser is the terminating Party, any Product that is part of an open order placed by Purchaser pursuant to the Supply Agreement for delivery after the date of termination), may be sold by Purchaser in the Ordinary Course of Business.

Section 5.6                                    Improvements and Licenses.

5.6.1                     In the event that any Purchaser Improvements are made during the Collaboration Term, such Purchaser Improvements shall be promptly and fully communicated to BMS in writing.  Purchaser hereby grants, and shall cause each of its Affiliates to grant, to BMS, a perpetual and irrevocable (subject to clause (ii) below), non-exclusive, sublicensable, fully paid-up, right and license under Purchaser Know-How and Purchaser Improvements to use the same anywhere in the world in connection with the Exploitation of the Products; provided, however, that (i) BMS may not exercise the rights under this license (other than to supply the Products under the Supply Agreement and to supply recombinant thrombin active ingredient or drug product containing recombinant thrombin active ingredient under the Supply Agreement, dated as of November 23, 2010, between Orthovita, Inc. and ZymoGenetics, Inc. (the “Orthovita Supply Agreement”)) unless this Agreement expires or terminates without the Purchase Closing having occurred; and (ii) such license shall automatically terminate upon the occurrence of the Purchase Closing (except that such license shall continue with respect to BMS’ supply of Products under the Supply Agreement and BMS’ supply of recombinant thrombin active ingredient and drug product containing recombinant thrombin active ingredient under the Orthovita Supply Agreement, in each case until such agreement expires, is terminated or is transferred to Purchaser or a Purchasing Affiliate in accordance with the terms of this Agreement).  BMS acknowledges and agrees that neither it nor any of its Affiliates shall claim or represent that through the use of such Purchaser Know-How or Purchaser Improvements it has acquired any title in or ownership of such Purchaser Know-How or Purchaser Improvements.  BMS shall not, and shall cause its Affiliates not to, register or permit to be registered any industrial or Intellectual Property right embodying Purchaser Know-How or Purchaser Improvements in any country without Purchaser’s prior written consent.  All rights, title and interests in any industrial or Intellectual Property right applied for or obtained by BMS or its Affiliates in breach of the preceding sentence shall be assigned gratis to Purchaser upon its request.  Upon request by BMS, during the Collaboration Term, Purchaser shall furnish BMS with copies of the physical embodiments of Purchaser Know-How that Purchaser or its Affiliates acquires or develops in the form in which such embodiments then exist.

5.6.2                     In the event that any BMS Improvements are made during the Collaboration Term, such BMS Improvements shall be promptly and fully communicated to Purchaser in writing.  Notwithstanding the foregoing, BMS shall not implement any BMS Improvements in the manufacture of any Product, nor change the specifications for any Product, except in accordance with the Supply Agreement.  Subject to Section 15.8.1.1, during the Collaboration Term, BMS hereby grants, and shall cause each of its Affiliates to grant, to Purchaser, a non-exclusive, sublicensable, fully paid-up, right and license under Primarily-Related Technology and BMS Improvements to use the same in the Territory in connection with

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the Exploitation of the Products.  Purchaser acknowledges and agrees that neither it nor any of its sublicensees (including any of Purchaser’s Affiliates) shall claim or represent that through the use of such BMS Improvements it has acquired any title in or ownership of the BMS Improvements.  Purchaser shall not, and shall cause its Affiliates not to, register or permit to be registered any industrial or intellectual property right embodying BMS Improvements in any country without BMS’ prior written consent.  All rights, title and interests in any industrial or Intellectual Property right applied for or obtained by Purchaser or its Affiliates in breach of the preceding sentence shall be assigned gratis to BMS upon its request.  Upon request by Purchaser, during the Collaboration Term, BMS shall furnish Purchaser with copies of the physical embodiments of Primarily-Related Technology in the form in which such embodiments then exist.

5.6.3                     In the event that any Joint Improvements are made during the Collaboration Term, such Joint Improvements shall be promptly and fully communicated in writing and discussed among the Parties.  Joint Improvements shall be jointly owned by the Parties and each Party will have the full right to exploit such Joint Improvements without the consent of, or any obligation to account to, the other Party.  Notwithstanding the foregoing, the Parties shall not, and shall cause their Affiliates not to, register or permit to be registered any industrial or Intellectual Property right embodying Joint Improvements in any country except by mutual consent.

Section 5.7                                    Infringement of Marks, Trademarks and Patents.

5.7.1                     Defense of Third Party Claims.  Each Party shall notify the other Party promptly upon learning of any actual or alleged infringement of any patent, trademark, copyright, trade secret or other Intellectual Property, including any unfair trade practices, trade dress imitation, passing off of counterfeit goods or like offenses or any such claims thereof, brought or asserted by a Third Party against a Party in connection with any Product in the Territory (hereinafter “Intellectual Property Infringement Claims”).  As soon as practicable upon learning of any Intellectual Property Infringement Claim, and except as set forth in Article 16 or in the Supply Agreement, the Parties shall confer and decide which Party shall commence actions to defend such Intellectual Property Infringement Claim, or if the Parties shall defend such Intellectual Property Infringement Claim jointly.  If the selected Party does not commence actions to defend such Intellectual Property Infringement Claim within thirty (30) days after such agreement, then the other Party shall have the right, but not the obligation, to defend any such Intellectual Property Infringement Claim.  If the Parties fail to agree as to which Party shall commence actions to defend such Intellectual Property Infringement Claim (subject to the Supply Agreement), then the Party that is the defendant may defend such Intellectual Property Infringement Claim, provided that the defending Party shall give written notice to the non-defending Party and shall consider comments by the non-defending Party in good faith.  In any event, the non-defending Party shall reasonably cooperate with the Party conducting the defense of the Intellectual Property Infringement Claim.  Subject to the Supply Agreement and the obligations of the Parties set forth in Article 16, (i) if such Intellectual Property Infringement Claim is solely related to Purchaser’s or its Affiliates’ activities, Purchaser shall bear all costs and expenses of the defense of such Intellectual Property Infringement Claim and shall have sole rights to any recovery, (ii) if such Intellectual Property Infringement Claim is solely related to

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BMS’ or its Affiliates’ activities, BMS shall bear all costs and expenses of the defense of such Intellectual Property Infringement Claim and shall have sole rights to any recovery, and (iii) if the Parties agree that an Intellectual Property Infringement Claim is related to the activities of both Parties or their Affiliates, Purchaser shall bear fifty percent (50%) and BMS shall bear fifty percent (50%) of any costs and expenses of the defense of any such Intellectual Property Infringement Claim.  Subject to the Supply Agreement and the obligations of the Parties set forth in Article 16, neither Party shall enter into any settlement concerning activities under this Agreement that affects the other Party’s rights or interests, including any admissions of wrongdoing, without such other Party’s written consent.

5.7.2                     Infringement by Third Parties.  Each Party shall notify the other Party in writing promptly upon learning of any actual or alleged infringement or misuse by any Third Party of any Transferred Intellectual Property, Transferred Other Intellectual Property or other Intellectual Property right of BMS or Purchaser in the Territory of which they become aware, to the extent such infringement or misuse involves a Product or a product that is competitive with a Product.  BMS shall have the first right, but not the obligation, to bring and to control the prosecution of any such infringement with respect to such Intellectual Property Controlled by BMS.  If, during the Collaboration Term, BMS does not initiate an infringement action with respect to such infringement or misuse of any Transferred Intellectual Property, Transferred Other Intellectual Property or other Intellectual Property right of Purchaser or BMS within ninety (90) days after learning of the infringement, then Purchaser shall have the right, but not the obligation, to bring and to control such an action.  The Party bringing and controlling such an action shall keep the other Party reasonably informed regarding the status and progress of such action.  Except as otherwise provided in this Agreement or the Supply Agreement, neither Party shall have the right to settle any infringement action under this Section 5.7.2 in a manner that diminishes the rights or interests of the other Party or imposes any liability on the other Party without the prior written consent of such other Party.  The expenses of defense, settlement and judgments in actions governed by this Section 5.7.2 shall be borne by the Party bringing and controlling such action.  Any damages or other monetary awards recovered in favor of BMS and/or Purchaser shall first be applied to reimburse the Party bringing and controlling such action for such Party’s expenses of defense, settlement and judgment of such action and then shall be divided equally between the Parties.

5.7.3                     No Implied Licenses.  No right or license under any Intellectual Property is granted or shall be granted by implication as a result of the respective rights of the Parties under this Agreement.  All such rights or licenses are or shall be granted only as expressly provided in this Agreement or the Ancillary Agreements.

5.7.4                     Oppositions to Third Party Patents.  In the event that a Third Party patent is granted that claims subject matter which may interfere with the manufacture, use, sale, offer for sale, import or export of any Product in the Territory, and the patent is in a jurisdiction which provides for oppositions, including inter partes or post grant review proceedings before the United States Patent and Trademark Office, the Party first becoming aware of such Third Party patent shall notify the other Party of such patent.  In such event, unless the Parties otherwise agree, BMS shall have the first right, but not the obligation, to oppose the patent.  BMS shall notify Purchaser as to whether BMS chooses to control the opposition within thirty (30) days

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after receiving or giving notice thereof pursuant to this Section 5.7.4.  If BMS chooses not to control the opposition, Purchaser shall have the right, but not the obligation, to control the opposition to the granted patent.  The Party that does not control the opposition hereunder shall cooperate with the controlling Party, at the controlling Party’s reasonable request and expense, in any such opposition and shall have the right to be represented by counsel of its own choice.

5.7.5                     Settlement of Third Party Claims Concerning a Product.  Subject to this Agreement (including Article 16 hereof) and the Supply Agreement, the Party that controls the defense of a given claim with respect to a Product shall also have the right to control settlement of such claim; provided, however, that no settlement shall be entered into without the prior written consent of the other Party if such settlement would adversely affect the rights and benefits of, or impose or adversely affect any obligations (monetary or otherwise) on, the other Party.

Section 5.8                                    Creation of Works.  All works authored or otherwise created or developed for use on or as A&P Materials, packaging and labeling for any Product, by Purchaser’s, whether singly or jointly with BMS’, employees, agents, independent contractors, or other persons acting under their authority in the conduct of this Agreement, and all rights, title and interests therein, shall, to the extent related to any Product, be owned by BMS (collectively, the “BMS Works”); provided, that Purchaser shall retain all rights to its sole works that do not relate to the Products in the Territory.  Purchaser agrees to execute such instruments as may be reasonably requested by BMS to confirm the assignment to and/or ownership by BMS of the BMS Works, free and clear of all Liens.

Section 5.9                                    Technology License.  Upon the Purchase Closing, BMS hereby grants, and shall cause each of its Affiliates to grant, to Purchaser a fully paid-up, royalty-free, perpetual, irrevocable, non-exclusive license under the Primarily-Related Technology and BMS Improvements to use the same in the Territory in connection with the Exploitation of the Products.  Purchaser shall have the right to sublicense its rights under this Section 5.9 to (i) an Affiliate of Purchaser, or (ii) with prior written notice to BMS, any Third Party; provided, that in each case such sublicensee agrees in writing to be bound by Purchaser’s obligations under this Section 5.9 and, if such sublicensee is an Affiliate of Purchaser, such sublicense automatically shall terminate if such sublicensee ceases to be an Affiliate of Purchaser.  Purchaser shall take the following actions to protect the Primarily-Related Technology and BMS’ proprietary rights in and to the Primarily-Related Technology: (i) fully complying in all material respects with all applicable Laws relating to the Exploitation of any Product to which the Primarily-Related Technology pertains, and (ii) executing and delivering such instruments, documents, conveyances or assurances and taking such other actions as shall be necessary, or otherwise reasonably requested by BMS, to protect all right, title and interest of BMS under, to and in the Primarily-Related Technology.  Purchaser acknowledges and agrees that it shall not, and it shall require that its sublicensees shall not, claim or represent that through the use of the Primarily-Related Technology it has acquired any title in or ownership of the Primarily-Related Technology.  Purchaser shall not, and shall cause its Affiliates not to, register or permit to be registered any industrial or intellectual property right embodying the Primarily-Related Technology in any country without BMS’ prior written consent.  All rights, title and interests in any industrial or intellectual property right applied for or obtained by Purchaser or its Affiliates in breach of the preceding sentence shall be assigned gratis to BMS upon its request.  Nothing contained herein shall exclude or prevent BMS or its Affiliates from using the Primarily-

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Related Technology in the Exploitation by BMS or its Affiliates of any product anywhere in the world other than the Products in the Territory.

ARTICLE 6

CERTAIN REGULATORY MATTERS; PRODUCT RECALL

Section 6.1                                    General Control in Purchaser.  Except as otherwise specifically provided herein, during the Collaboration Term, all regulatory matters regarding the Products in the Territory shall be under the exclusive control and responsibility of Purchaser, subject to the participation by BMS through the JEC as set forth in Section 3.2 and Section 3.3.

Section 6.2                                    Pharmacovigilance; Adverse Event Reporting.  Subject to the terms of this Agreement, as needed, within three (3) months after the Effective Date, BMS and Purchaser (under the guidance of their respective pharmacovigilance departments, or equivalents thereof) shall define and finalize the responsibilities of the Parties to track Adverse Event reports and safety information for the Products in the Territory.  These responsibilities shall include mutually acceptable guidelines and procedures for the receipt, investigation, recordation, communication, and exchange (as between the Parties) of Adverse Event reports, pregnancy reports, and any other information concerning the safety of the Products.  Such guidelines and procedures shall be in accordance with, and enable the Parties and their Affiliates to fulfill, regulatory reporting obligations to the applicable Governmental or Regulatory Authorities.  Furthermore, such agreed procedures shall be consistent with relevant ICH guidelines, except where said guidelines may conflict with existing local regulatory safety reporting requirements, in which case local reporting requirements shall prevail.  Until such guidelines and procedures are set forth in a written agreement between the Parties (hereafter referred to as the “Pharmacovigilance Agreement”), BMS shall have sole pharmacovigilance responsibility for the Products subject to all applicable regulations and guidelines.  Until execution and delivery by the Parties of the Pharmacovigilance Agreement, BMS and its Affiliates will provide such assistance with respect to such matters as may be reasonably required by Purchaser.  In the event that this Agreement is terminated, the Parties shall implement the necessary procedures and practices to ensure that any outstanding pharmacovigilance reporting obligations are fulfilled.

Section 6.3                                    Response by Purchaser to Regulatory Inquiries.  Upon being contacted by any Governmental or Regulatory Authority for any regulatory purpose directly related to this Agreement or to a Product, each Party shall promptly notify the other Party.  To the extent permitted by applicable Laws, Purchaser shall control the timing and content of the response to such Governmental or Regulatory Authority, subject to Section 3.2.4; provided, that Purchaser will not respond to such Governmental or Regulatory Authority until it has consulted with the JEC.

Section 6.4                                    Product Quality Complaints.

6.4.1                     Purchaser shall inform BMS’ Office of the Vice President, U.S. Safety & Surveillance of any Product Quality Complaint received by it within three (3) Business Days from the receipt date by Purchaser.  “Product Quality Complaint” is defined as any complaint

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that questions the purity, identity, potency or quality of a Product, its packaging, or labeling, or any complaint that concerns any incident that causes the drug product or its labeling to be mistaken for, or applied to, another article or any bacteriological contamination, or any significant chemical, physical, or other change or deterioration in the distributed drug product, or any failure of one or more distributed batches of the drug product to meet the specifications therefor in the MA for such Product.  Such information shall be sent to the Pharmacovigilance Department of BMS.  Purchaser shall be solely responsible for responding to any Product Quality Complaints.

6.4.2                     BMS shall inform Purchaser of any Product Quality Complaint received by it within three (3) Business Days from the receipt date by BMS.  Such information shall be sent to the pharmacovigilance department (or equivalent thereof) of Purchaser.

Section 6.5                                    Medical Inquiries.  The medical communications department (or equivalent thereof) of Purchaser shall have sole responsibility for handling all medical inquiries concerning the Products in the Territory in accordance with its normal procedures therefor.  BMS shall refer all routine medical information requests by telephone or in writing to:

Global Health Science Center

The Medicines Company

US: 1-888-977-6326 (MDCO)

EU: 00800 843 633 26

medical.information@themedco.com

For urgent medical information requests, health care professionals shall be referred by telephone to Purchaser’s customer contact center for each jurisdiction in the Territory to be provided by Purchaser from time to time.

A Party may change its contact at any time for future notices under this Section upon written notice given to the other Party in accordance with Section 19.1.

During the Collaboration Term, Purchaser shall provide BMS with one copy of all medical documents, including but not limited to medical responses, written, phone and in-person contact inquiries and published literature, that Purchaser believes is useful or necessary in connection with the activities and duties contemplated by the Parties under this Agreement.

Section 6.6                                    Product Recall.

6.6.1.                  During the Collaboration Term, in the event that either Party obtains information that a Product or any portion thereof is alleged or proven not to meet the Product Specifications, the labeling, or the Product Permits for such Product or to be otherwise defective in the Territory, such Party shall notify the other Party immediately, including the reasons its believes a recall is warranted, and both Parties shall cooperate fully regarding the investigation and disposition of any such matter within five (5) days after delivery of such notice.  If the Parties are unable to agree on whether such recall is warranted within five (5) days after delivery of such notice (or such lesser period of time as may be appropriate in the case of a safety-related

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issue or such longer period if mutually agreed upon by the Parties if warranted by the circumstances) (the applicable period, “Recall Discussion Period”), then (x) if the recall is related to a manufacturing issue that is not also a safety-related issue, then BMS shall have final decision-making authority as to whether such recall will be implemented; and (y) with respect to any other recall, such recall can be initiated by either Party at the end of the Recall Discussion Period; provided that the Party initiating any such recall shall first provide written notice thereof to the other Party.  BMS and Purchaser shall each maintain such traceability records as are sufficient and as may be necessary to permit a recall, product withdrawal or field correction of any Product.  The foregoing shall be in addition to BMS’ obligations under the Supply Agreement.  In the event (i) any applicable Governmental or Regulatory Authority should issue a request, directive or order that a Product be recalled or withdrawn, or (ii) either Party determines that any Product already in interstate or international commerce in the Territory presents a risk of injury or gross deception or is otherwise defective and that a recall or withdrawal of such Product is appropriate (each of (i) and (ii), a “Recall”), each Party shall give telephonic notice (to be confirmed in writing) to the other Party within twenty four (24) hours of the occurrence of such event.

6.6.2.                  During the Collaboration Term, the Party holding the marketing authorization for the Product in a particular country or jurisdiction within the Territory shall be responsible for carrying out and administering the Recall in such country or jurisdiction after consulting with the other Party.  The other Party shall provide full cooperation and assistance to the Party holding the marketing authorization for the Product in a particular country or jurisdiction in connection therewith as may be reasonably requested by the Party holding the marketing authorization.

6.6.3.                  The Party holding the marketing authorization for the Product in a particular country or jurisdiction shall be responsible for all expenses of effecting any such Recall (including any out-of-pocket expenses incurred by the other Party in connection with such cooperation), except to the extent such Recall is a result of the negligence or willful misconduct of the other Party, in which case the other Party shall be responsible for all expenses of effecting any such Recall (including any out-of-pocket expenses incurred by Purchaser in connection with the Recall).

Section 6.7                                    Transfer of Product Registrations; Purchaser Duties.

6.7.1                     As soon as practical following the Effective Date, but in no event later than thirty (30) Business Days following the Effective Date, BMS shall execute and deliver such documentation as is necessary in order to commence the process of transferring its rights, title and interests in and to the Product Registrations and Regulatory Documentation included in the Collaboration Assets to Purchaser.  Purchaser will be responsible for all filing and registration fees in connection with such transfer.  If required by applicable Laws, BMS shall file duly executed transfer documents with the applicable Governmental or Regulatory Authorities within thirty (30) Business Days (or earlier if required under applicable Law) following the receipt of the transfer documents signed by Purchaser.  Until such time as BMS receives written notification from applicable Governmental and Regulatory Authorities acknowledging the transfer of such Product Registrations and (to the extent applicable) Regulatory Documentation,

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BMS will continue to maintain such Product Registrations and (to the extent applicable) Regulatory Documentation for the benefit of Purchaser.  During the Collaboration Term, Purchaser will have the sole authority with respect to, and will use commercially reasonable efforts to maintain at its expense, consistent with all applicable Laws, all necessary Permits, including each CTA, IND, drug master file (DMF), BLA and MA for each Product in the Territory and consents required of any applicable Governmental or Regulatory Authority or Third Party, that are needed to Exploit the Products in the Territory, including the Product Registrations (collectively, the “Product Permits”), other than those Permits necessary for BMS to fulfill its supply obligations to Purchaser under the Supply Agreement prior to the termination of the Supply Agreement or its obligations to Orthovita, Inc. under the Orthovita Supply Agreement (the “BMS Supply Permits”).  Upon the expiration or termination of the Collaboration Term, if the Purchase Closing has not occurred, unless otherwise directed by BMS, Purchaser shall, at Purchaser’s sole cost and expense, promptly transfer all of its rights, title and interests in and to the Product Permits (including the Product Registrations) to BMS or such other Person as BMS shall designate, free and clear of all Liens, in the form in which they then exist.

6.7.2                     If required by any applicable Governmental or Regulatory Authority with respect to any Product in the Territory, BMS and Purchaser shall, or shall cause their respective relevant Affiliates to, promptly enter into appropriate agreements, on customary terms reasonably acceptable to BMS and Purchaser and acceptable to the applicable Governmental or Regulatory Authority, allowing Purchaser or its Affiliate to use the Product Registrations and Regulatory Documentation (other than the BMS Supply Permits and provided that this Section 6.7.2 shall apply with respect to the Regulatory Documentation included in the Acquired Assets only upon the Purchase Closing) relating to such Product in the Territory until the valid transfer of the Product Registrations and Regulatory Documentation to Purchaser or its Affiliate has occurred.  In the event that the Purchase Closing shall occur prior to the completion of the valid transfer of any such Product Registrations and Regulatory Documentation, the

agreements entered into pursuant to this paragraph shall continue in full force and effect until the completion of such transfers.

6.7.3                     Subject to the foregoing provisions of this Article 6, all reports or filings made to any Governmental or Regulatory Authority in the Territory during the Collaboration Term with respect to obtaining or maintaining the Product Permits (including the Product Registrations but excluding the BMS Supply Permits) shall be the sole responsibility of Purchaser and shall be made at Purchaser’s discretion, cost and expense, and BMS shall cooperate with Purchaser, and shall execute, acknowledge and deliver such further instruments at Purchaser’s reasonable request and expense, and shall do all such other acts which may be reasonably necessary to assist Purchaser to obtain or maintain the Product Permits (including the Product Registrations but excluding the BMS Supply Permits) in the Territory; provided, that nothing herein shall be construed as (i) restricting BMS’ ability to take any action required of it under applicable Law, or (ii) requiring BMS to provide any advice or regulatory support to Purchaser in connection with obtaining any Product Permit.  Purchaser shall not, except where required by, or to fulfill its obligations under, applicable Law, or except where required by a Governmental or Regulatory Authority acting within the scope of its authority or (except to the extent related to the manufacture or supply of Products or recombinant thrombin active ingredient or drug products containing recombinant thrombin active ingredient) if required due to

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patient safety concerns, supplement, amend or otherwise alter any Product Registration, other than with the prior written consent of BMS, and Purchaser agrees to make all supplements, amendments or other alterations to the Product Registrations reasonably requested by BMS in order to comply with applicable Law.

6.7.4                     Each Party shall notify the other Party in writing promptly of any information that comes to the attention of its management or its in-house counsel regarding any threatened or pending action by any Governmental or Regulatory Authority that may adversely affect the safety or efficacy claims of any Product, or the continued marketing of any Product in the Territory, or the manufacture or supply of any Product for use in the Territory.  BMS shall provide Purchaser with reasonable assistance, at Purchaser’s request and expense, with respect to communications to and from Governmental or Regulatory Authorities in the Territory, it being understood that all such communications shall be the sole responsibility of Purchaser; provided, that nothing herein shall be construed as restricting BMS’ ability to take any action that required of it under applicable Law.

Section 6.8                                    Reimbursement of Pharmaceutical Fees.  Purchaser shall reimburse BMS for any fees paid by BMS or its Affiliates under applicable Law (a “Covered Fee”) to the extent that any such Covered Fee is attributable to Products sold by Purchaser or its Affiliates on or following the Effective Date, including any fees imposed on BMS or any of its Affiliates in respect of its status as a “covered entity” pursuant to the Patient Protection and Affordable Care Act.  BMS shall reimburse Purchaser for any Covered Fee to the extent that any such Covered Fee is attributable to Products sold by BMS or its Affiliates before the Effective Date, including any fees imposed on Purchaser or any of its Affiliates in respect of its status as a “covered entity” pursuant to the Patient Protection and Affordable Care Act.  Within sixty (60) days after making payment of any Covered Fee, BMS shall determine the portion of such Covered Fee that is attributable to Products sold by Purchaser or its Affiliates during the applicable period on and following the Effective Date (for purposes of this Section 6.8, the portion of such Covered Fees attributable to Products sold by Purchaser or its Affiliates shall be determined by comparing the aggregate amount of such Covered Fees actually payable by BMS or its Affiliates to the aggregate amount of such fees that would have been payable had such Products not been sold by Purchaser or its Affiliates; provided, however, that such portion shall not exceed the amount of such Covered Fees that would have been paid by Purchaser or its Affiliates if the sale of such Products had been included in the determination of such Covered Fees paid by Purchaser or its Affiliates) and submit a written request for reimbursement to Purchaser thereof, together with BMS’ calculation of such amounts.  Within sixty (60) days after making payment of any Covered Fee, Purchaser shall determine the portion of such Covered Fee that is attributable to Products sold by BMS or its Affiliates during the applicable period before the Effective Date (for purposes of this Section 6.8, the portion of such Covered Fees attributable to Products sold by BMS or its Affiliates shall be determined by comparing the aggregate amount of such Covered Fees actually payable by Purchaser or its Affiliates to the aggregate amount of such fees that would have been payable had such Products not been sold by BMS or its Affiliates; provided, however, that such portion shall not exceed the amount of such Covered Fees that would have been paid by BMS or its Affiliates if the sale of such Products had been included in the determination of such Covered Fees paid by BMS or its Affiliates) and submit a written request for reimbursement to BMS thereof, together with Purchaser’s calculation of such amounts.  Within thirty (30) days of

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receiving such reimbursement request, the receiving Party shall pay the submitting Party the amount specified in such request by wire transfer of immediately available funds into an account designated by the submitting Party.  If the receiving Party disagrees with any amounts for which the submitting Party seeks reimbursement under this Section 6.8, such dispute shall be addressed in accordance with Article 14.

ARTICLE 7

COMPLIANCE WITH LAWS

Section 7.1                                    Compliance with Laws Generally.  Each Party shall comply in all material respects with all Laws applicable to its activities under this Agreement during the Collaboration Term, including any requirements of any Permit applicable to any Product in the Territory.  The Parties will reasonably cooperate with one another with the goal of ensuring full compliance with all applicable Laws.

Section 7.2                                    Specific Compliance Obligations.  Without limiting the generality of its obligations under Section 7.1 above, with respect to its activities in respect of the supply, Promotion, marketing and sale of the Products under this Agreement during the Collaboration Term, each Party (i) will comply with all applicable Laws and regulations, including all applicable Health Care Laws, customs requirements, Good Manufacturing Practices, good warehousing practices, good distribution practices, good clinical practices, anti-bribery and corruption Laws (including the U.S. Foreign Corrupt Practices Act and the United Kingdom Bribery Act 2010, in each case as amended), advertising and promotion Laws, regulations and selfregulatory codes, environmental, health and safety and waste Laws affecting the Products; (ii) will not make any inappropriate inducement under, or take any action on the other Party’s behalf which would conflict with, any such anti-bribery and corruption or anti-kickback Laws, regulations or the requirements to avoid such inducements under such Laws; and (iii) will have and maintain adequate training, compliance and audit mechanism in order to comply with any such anti-bribery and corruption or anti-kickback Laws.

Section 7.3                                    Compliance with BMS Policies.  During the Collaboration Term, in performing its obligations under this Agreement, Purchaser will maintain and comply with a Code of Conduct that is comparable in all material respects to BMS’ Standards of Business Conduct and Ethics as posted as of the Effective Date at http://www.bms.com/ourcompany/governance/Pages/codes_conduct.aspx, except to the extent resulting from changes after the date hereof in applicable Law.

ARTICLE 8

FINANCIAL TERMS

Section 8.1                                    Financial Terms.  Purchaser shall pay BMS compensation at the times and in the amounts set forth in this Article 8:

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8.1.1                     Collaboration Fee.  On the Effective Date, in consideration of the grant by BMS hereunder to Purchaser of certain rights hereunder to Promote, market and sell the Products and the transfer, assignment and conveyance of the Collaboration Assets to Purchaser and the Purchasing Affiliates, and for other good and valuable consideration, Purchaser shall pay to BMS a nonrefundable, noncreditable payment of One Hundred Five Million Dollars ($105,000,000) by wire transfer of immediately available funds into an account designated by BMS (such amount, the “Collaboration Fee”).

8.1.2                     Option  Fee.  On the Effective Date, in consideration of the grant by BMS hereunder to Purchaser of the Option, Purchaser shall pay to BMS a nonrefundable, noncreditable payment of Ten Million Dollars ($10,000,000) by wire transfer of immediately available funds into an account designated by BMS (such amount, the “Option Fee”).

8.1.3                     Royalty Fee.  Following the Effective Date, Purchaser shall pay BMS a quarterly Royalty Fee with respect to Net Sales during each Agreement Quarter, in accordance with Section 8.2 and Section 8.3.  All payments of the Royalty Fee shall be free of any setoff, deduction (except with respect to Taxes, levies and duties required to be withheld in accordance with Section 10.5.4), claim or counterclaim.

Section 8.2                                    Reports; Payment of Royalty Fee.  Purchaser shall provide a report to BMS within forty-five (45) days after the end of each Agreement Quarter during the Collaboration Term that sets forth Net Sales of each Product in the Territory, on both an aggregate and a country-by-country basis (and with such supporting detail as the Parties may agree from time to time) during such Agreement Quarter, which report shall be accompanied by payment of the Royalty Fee for such Agreement Quarter.

Section 8.3                                    Currency; Late Payments.

8.3.1                     All payments to a Party under this Agreement shall be made by electronic funds transfer in Dollars and shall be delivered to the account of such Party designated by a Vice President of Finance (or equivalent title) of such Party in writing the other Party from time to time.

8.3.2                     Late payments shall bear interest at the annual rate per annum equal to LIBOR, plus [**] percent ([**]%).  The payment of such interest shall not limit the receiving Party from exercising any other right it may have as a consequence of the lateness of any payment.

Section 8.4                                    Books and Records.

8.4.1                     Purchaser will maintain complete and accurate books and records in sufficient detail to enable verification of the correctness of the payment of the Royalty Fee.  At any time within forty five (45) days of BMS’ receipt of the final report provided by Purchaser pursuant to Section 8.2, BMS may demand an audit of Purchaser’s and its Affiliates’ relevant books and records in order to verify the aforesaid matters.  Upon reasonable prior notice and during normal business hours, BMS’ independent public accountants, subject to confidentiality

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obligations consistent with Article 17, shall have access to the relevant books and records of Purchaser in order to conduct such a review or audit thereof.  Such review and access shall be permitted only with respect to the immediately preceding Agreement Quarter and such audit may not be conducted more than once.  The accountants shall only disclose the results of that audit (their conclusions and calculations) and shall disclose such results to both Parties at the same time.

8.4.2                     BMS shall bear the full cost of the performance of any such audit except as hereinafter set forth.  If, as a result of any inspection of the books and records of Purchaser, it is shown that the payments of the Royalty Fee were less than the amount which should have been paid, then Purchaser shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within thirty (30) days after written notification of same, plus interest on the amount due from the date that the amount would otherwise have been paid at the rate set forth in Section 8.3.2.  If the payments of the Royalty Fee were less than the amount which should have been paid by an amount in excess of five percent (5%) of the payments actually made during the period in question, Purchaser shall also reimburse BMS for its reasonable out-of-pocket costs of such audit and inspection.

ARTICLE 9

OPTION TO PURCHASE

Section 9.1                                    Grant of Option.  Subject to the terms and conditions hereof, as of the Effective Date, BMS hereby grants to Purchaser the option (the “Option”) to acquire the Acquired Assets, and assume the Assumed Liabilities, pursuant to the terms and subject to the conditions set forth herein.

Section 9.2                                    Exercise of Option.

9.2.1                     Unless an Early Termination Event has occurred following the Effective Date, Purchaser may exercise the Option by delivering to BMS written notice of its election to exercise the Option (the “Option Notice”) at any time prior to the date that is eighteen (18) months after the Effective Date (the “Option Expiration Date”), provided that the exercise of such Option may not be delivered prior to the date that is twelve (12) months after the Effective Date.  For purposes of this Agreement, “Early Termination Event” means the delivery of a Notice of Termination by either Party to the other Party pursuant to Section 15.5.

9.2.2                     If an Early Termination Event has occurred as a result of the delivery of a Notice of Termination by BMS following the Effective Date, Purchaser may exercise the Option by delivering to BMS an Option Notice no later than ten (10) Business Days after the date of delivery of the Notice of Termination pursuant to Section 12.5.  If an Early Termination Event has occurred as a result of the delivery of a Notice of Termination by Purchaser following the Effective Date, Purchaser may exercise the Option by delivering to BMS an Option Notice at any time prior to the Option Expiration Date.

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Section 9.3                                    Commercially Reasonable Efforts.  If Purchaser exercises the Option, the provisions of Article 10 and other applicable provisions of this Agreement shall be applicable to the Acquisition.

ARTICLE 10

PURCHASE AND SALE OF ACQUIRED ASSETS

Section 10.1                             Exercise of the Option.  If Purchaser delivers an Option Notice in accordance with Section 9.2, then Purchaser shall acquire the Acquired Assets, and assume the Assumed Liabilities, upon the terms and subject to the conditions set forth in this Article 10.

Section 10.2                             Purchase and Sale of Acquired Assets.  At the Purchase Closing, BMS shall, and shall cause the Selling Affiliates to, sell, assign, transfer, convey and deliver to Purchaser and the Purchasing Affiliates, and Purchaser shall (and shall cause the Purchasing Affiliates to) purchase from BMS and the Selling Affiliates, all the right, title and interest of BMS and the Selling Affiliates in, to and under the Acquired Assets free and clear of all Liens other than Permitted Liens, in consideration for (i) the Purchase Price, and (ii) the assumption by Purchaser of the Assumed Liabilities.  The purchase and sale of the Acquired Assets and the assumption by Purchaser of the Assumed Liabilities are referred to herein collectively as the “Acquisition”.

10.2.1              Assumed Liabilities.  Purchaser or a Purchasing Affiliate shall assume, effective as of the Purchase Closing, and from and after the Purchase Closing shall pay, perform and discharge when due, all Assumed Liabilities.

10.2.2              Excluded Liabilities.  Notwithstanding any other provision of this Agreement, Purchaser shall not assume any Excluded Liability, each of which shall be retained, and paid, performed and discharged when due, by BMS and the Selling Affiliates, as applicable.

10.2.3              No Set-Off.  Each of Purchaser’s and BMS’ obligations under this Article 10 will not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty, covenant or agreement contained in this Agreement, any Ancillary Agreement or any right or alleged right to indemnification hereunder.

Section 10.3                             Risk of Loss.  Until the Purchase Closing, any loss of or damage to the Acquired Assets from fire, casualty or any other occurrence shall be the sole responsibility of BMS or the Selling Affiliates, as applicable.  On the Purchase Closing Date, title to the Acquired Assets shall be transferred to Purchaser and Purchaser shall thereafter bear all risk of loss associated with the Acquired Assets and be solely responsible for procuring adequate insurance to protect the Acquired Assets against any such loss (it being understood that Purchaser’s responsibility is not contingent on Purchaser’s ability to procure adequate insurance).

Section 10.4                             Consents of Third Parties.

10.4.1              Notwithstanding anything in this Agreement to the contrary, Section 10.2 shall not constitute an agreement to assign any asset included in the Acquired Assets (including

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any Transferred Contract) or any claim, right or benefit arising under or resulting from any such asset (including any Transferred Contract), if the assignment or transfer thereof, without the consent of a Third Party, would constitute a breach or other contravention of the rights of such Third Party, would be ineffective with respect to any party to an agreement concerning such asset (including any Transferred Contract), claim, right or benefit, or, upon assignment or transfer, would in any way adversely affect the rights of BMS or any Selling Affiliate or, upon transfer, Purchaser or any Purchasing Affiliate.  If any such consent is not obtained prior to the Purchase Closing, such transfer or assumption shall be made subject to such consent being obtained.

10.4.2              If any such consent is not obtained prior to the Purchase Closing, (i) BMS shall use its commercially reasonable efforts for up to three (3) months following the Purchase Closing to obtain such consents as promptly as practicable after the Purchase Closing, and (ii) BMS, the Selling Affiliates and Purchaser and the Purchasing Affiliates shall cooperate (each at their own expense) in any lawful and reasonable arrangement proposed by Purchaser under which Purchaser shall obtain the economic claims, rights and benefits under any such asset included in the Acquired Assets (including any Transferred Contract) or related claim, right or benefit with respect to which the consent has not been obtained in accordance with this Section 10.4.2.  Such reasonable arrangement may include (a) the subcontracting, sublicensing or subleasing to Purchaser of any and all rights of BMS and the Selling Affiliates against the other party to such Third Party Contract arising out of a breach or cancellation thereof by the other party, and (b) the enforcement by BMS or the Selling Affiliates of such rights.  None of BMS, Purchaser or their respective Affiliates shall be required to commence, defend or participate in any litigation, incur any obligation in favor of, or offer or grant any accommodation (financial or otherwise) to, any Third Party in connection with entering into or implementing such arrangement.

Section 10.5                             Purchase Closing; Purchase Price Adjustment.

10.5.1              Purchase Closing.

10.5.1.1                            The closing of the Acquisition (the “Purchase Closing”) shall be held at the offices of Covington & Burling LLP, The New York Times Building, 620 Eighth Avenue, New York, New York, or remotely by exchange of electronic copies of the agreements, documents, certificates and other instruments set forth in Section 10.5.1.2 and Section 10.5.1.3 if mutually agreed by the Parties, at 10:00 a.m. on the later to occur of (i) the Purchase Date, and (ii) the date which is three (3) Business Days after the conditions to the Purchase Closing set forth in Article 11 shall have been satisfied or waived (other than those conditions which by their nature are to be fulfilled at the Purchase Closing, but subject to the fulfillment or waiver of such conditions).  The date on which the Purchase Closing shall occur is hereinafter referred to as the “Purchase Closing Date”.  The Purchase Closing shall be deemed to be effective as of 12:00:01 a.m. in each applicable time zone on a country by country basis on the Purchase Closing Date.

10.5.1.2                            At the Purchase Closing, Purchaser shall deliver to BMS:

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(i)            an amount equal to the Estimated Closing Purchase Price by wire transfer of immediately available funds denominated in Dollars to a bank account designated in writing by BMS at least two (2) Business Days prior to the Purchase Closing Date;

(ii)           an executed counterpart of a Bill of Sale, in the form attached hereto as Exhibit 10.5.1.2(ii) (the “Purchase Bill of Sale”), duly executed by Purchaser and the Purchasing Affiliates;

(iii)          an executed counterpart of an Assumption Agreement, in the form attached hereto as Exhibit 10.5.1.2(iii) (the “Purchase Assumption Agreement”), duly executed by Purchaser and the Purchasing Affiliates;

(iv)          an executed counterpart of  a Trademark Assignment Agreement, in the form attached hereto as Exhibit 10.5.1.2(iv) (the “Trademark Assignment Agreement”), duly executed by Purchaser and the relevant Purchasing Affiliates;

(v)           an executed counterpart of  a Patent Assignment Agreement, in the form attached hereto as Exhibit 10.5.1.2(v) (the “Patent Assignment Agreement”), duly executed by Purchaser and the relevant Purchasing Affiliates;

(vi)          an executed counterpart of any Domain Name Assignment Agreement, in the form attached hereto as Exhibit 10.5.1.2(vi) (the “Domain Name Assignment Agreement”), duly executed by Purchaser and the relevant Purchasing Affiliates;

(vii)         a certificate, dated as of the Purchase Closing Date, executed by an authorized officer of Purchaser, in his or her capacity as such, confirming the satisfaction, as of the Purchase Closing Date, of the conditions specified in Section 11.2.4 and Section 11.2.5; and

(viii)        a certificate, dated as of the Purchase Closing Date, executed by an authorized officer of Purchaser, in his or her capacity as such, certifying as to (i) the incumbency of the officers of Purchaser or the Purchasing Affiliates executing documents executed and delivered in connection with the Purchase Closing, and (ii) the adoption of resolutions authorizing the transactions contemplated hereby, and attaching certificates of good standing of Purchaser and the Purchasing Affiliates in their respective jurisdictions of organization.

10.5.1.3         At the Purchase Closing, BMS shall deliver or, with respect to clause (viii) below, make available to Purchaser:

(i)            an executed counterpart of the Purchase Bill of Sale, duly executed by BMS and the Selling Affiliates;

(ii)           an executed counterpart of the Purchase Assumption Agreement, duly executed by BMS and the Selling Affiliates;

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(iii)          an executed counterpart of the Trademark Assignment Agreement, duly executed by BMS and the Selling Affiliates;

(iv)          an executed counterpart of the Patent Assignment Agreement, duly executed by BMS and the Selling Affiliates;

(v)           an executed counterpart of any Domain Name Assignment Agreement, duly executed by BMS and the Selling Affiliates;

(ix)          a certificate, dated as of the Purchase Closing Date, duly executed by BMS and each Selling Affiliate, certifying that such Person is not a foreign person in accordance with the Treasury Regulations under Section 1445 of the Code;

(x)           duly executed written instruments releasing any Lien (other than Permitted Liens) on any tangible asset included in the Acquired Assets and authorizing the filing of UCC-3 termination statements (or other comparable documents) for all UCC-1 financing statements (or other comparable documents) filed in connection with any such Lien;

(vi)          a certificate, dated as of the Purchase Closing Date, executed by an authorized officer of BMS, in his or her capacity as such, confirming the satisfaction, as of the Purchase Closing Date, of the conditions specified in Section 11.1.3, Section 11.1.4 and Section 11.1.5;

(vii)         a certificate, dated as of the Purchase Closing Date, executed by an authorized officer of BMS, in his or her capacity as such, certifying as to (i) the incumbency of the officers of BMS or the Selling Affiliates executing documents executed and delivered in connection with the Purchase Closing, and (ii) the adoption of resolutions authorizing the transactions contemplated hereby, and attaching certificates of good standing of BMS and the Selling Affiliates in their respective jurisdictions of organization;

(viii)        copies of all Transferred Books and Records and the physical embodiments of the Acquired Assets; and

(xi)          updated versions of all lists required to be set forth in any Schedule contemplated by the representations and warranties set forth in Section 18.2, provided that no such updated list shall be deemed to (a) modify the representations, warranties, covenants or agreements of BMS, (b) modify any of the conditions set forth in Article 11, or (c) cure or prevent any misrepresentation, inaccuracy, untruth or breach of any representation, warranty, covenant or agreement set forth in this Agreement or failure to satisfy any condition set forth in Article 11.

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10.5.2     Purchase Price.

10.5.2.1         Not less than three (3) Business Days prior to the anticipated Purchase Closing Date, BMS shall deliver to Purchaser a notice setting forth BMS’ good faith estimate of (a) the Closing Inventory Value (the “Estimated Closing Inventory Value”) and (b) any portion of the Average Net Sales pursuant to clause (b) of the definition of Net Sales.  Not less than two (2) Business Days prior to the anticipated Purchase Closing Date, Purchaser shall deliver to BMS a notice setting forth Purchaser’s good faith estimate of the Average Net Sales (the “Estimated Average Net Sales”) and a calculation of the Closing Purchase Price based on the Estimated Average Net Sales and the Estimated Closing Inventory Value (the “Estimated Closing Purchase Price”), determined in accordance with Section 10.5.2.2, together with supporting documentation to evidence the calculation of the Estimated Average Net Sales in reasonable detail (including a calculation of Net Sales for each jurisdiction in the Territory during the Calculation Period).

10.5.2.2         The “Closing Purchase Price” shall be defined as (i) (A) if BMS has not delivered a valid Notice of Termination pursuant to Section 15.5 as a result of a breach by Purchaser, the sum of (1) the product of that portion of Average Net Sales up to and including [**] Dollars ($[**]) multiplied by [**], and (2) the product of that portion of Average Net Sales exceeding [**] Dollars ($[**]) multiplied by [**] or (B) if BMS has delivered a valid Notice of Termination pursuant to Section 15.5 as a result of a breach by Purchaser, the sum of (1) the amount determined under the preceding clause (A) plus (2) the product of (x) the amount determined by dividing (aa) the aggregate amount of Royalty Fees paid or payable to BMS for the period beginning on the first day of the Collaboration Term and ending on the Purchase Closing Date by (bb) the number of calendar months in such period (rounded up or down in the case of partial months based on a 30-day month), multiplied by (y) the difference between (cc) 24 minus (dd) the number of calendar months determined in the preceding clause (bb); plus (ii) the Closing Inventory Value.

10.5.3     Purchase Price Adjustment.

10.5.3.1         Within forty-five (45) days after the Purchase Closing Date, Purchaser shall prepare and deliver to BMS a statement (the “Statement”) setting forth Purchaser’s determination of the Closing Purchase Price (including Average Net Sales and Closing Inventory Value), including the calculation thereof in reasonable detail (including in such Statement a calculation of Net Sales for each jurisdiction in the Territory during the Calculation Period).  During the forty-five (45) days following BMS’ receipt of the Statement, Purchaser shall provide BMS and its independent auditors reasonable access at reasonable times to the working papers and books and records used in the preparation of the Statement and employees who participated in the preparation of the Statement, in each case to the extent necessary to evaluate such Statement (including the calculation of Net Sales and Closing Inventory Value) the Closing Net Working Capital), provided that Purchaser shall not be required to provide BMS with access to any information that is subject to attorney-client privilege or the disclosure of which would result in a breach by Purchaser of any obligation of confidentiality owed to any Third Party (unless BMS agrees to hold any such information in confidence on terms no less restrictive than Purchaser’s confidentiality obligation to such Third Party).

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10.5.3.2         The Statement shall become final and binding upon the Parties on the forty-fifth (45th) day following delivery to BMS thereof, unless BMS gives written notice to Purchaser prior to such date of its disagreement with the Statement (a “Notice of Disagreement”).  Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted.  During the thirty (30) day period following the delivery of a Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences that they might have with respect to the matters specified in the Notice of Disagreement and agree on a final determination of the Closing Purchase Price.  At the end of such thirty (30)-day period, if no agreement on the Closing Purchase Price has been reached, the Parties shall submit to an internationally recognized independent accounting firm (the “Accounting Firm”) for arbitration any and all matters that remain in dispute and were properly included in the Notice of Disagreement.  The Accounting Firm shall be KPMG LLP or, if such firm is unable or unwilling to act, such other internationally recognized independent public accounting firm as shall be agreed upon by the Parties in writing.  The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 10.5.3.2 as promptly as practicable but in no event later than thirty (30) days after submission to it of all matters in dispute.  Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.  The Accounting Firm’s determination shall be accompanied by a certificate of the Accounting Firm that it reached its decision in accordance with the provisions of this Section 10.5.3.2.  The cost of any arbitration (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) pursuant to this Section 10.5.3.2 shall be borne by Purchaser and BMS in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.  The Accounting Firm’s determination, as determined in accordance with this Section 10.5.3.2, shall, for purposes of this Agreement, be final and binding upon the Parties.  The Parties agree that the procedure set forth in this Section for resolving disputes with respect to the Statement shall (notwithstanding anything to the contrary contained in this Agreement) be the sole and exclusive method for resolving any such disputes.  Absent manifest error on the part of the Accounting Firm, the substance of the Accounting Firm’s determination shall not be subject to review.

10.5.3.3         The amount calculated in accordance with Section 10.5.2.2, based upon the Statement that has become final and binding on the Parties pursuant to Section 10.5.3.2 shall be the “Purchase Price”.  Within five (5) Business Days of the Statement becoming binding on the Parties pursuant to Section 10.5.3.2, (i) if the Purchase Price is greater than the Estimated Closing Purchase Price, Purchaser shall pay BMS an amount equal to such excess, together with interest thereon from the Purchase Closing Date at a rate equal to LIBOR (as in effect on the Purchase Closing Date) plus [**] percent ([**]%), and (ii) if the Purchase Price is less than the Estimated Closing Purchase Price, BMS shall pay Purchaser an amount equal to such shortfall, together with interest thereon from the Purchase Closing Date at a rate equal to LIBOR (as in effect as of the Closing Date) plus [**] percent ([**]%).

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10.5.4     Withholding.

10.5.4.1         In the event any Party obligated to make payments pursuant to this Agreement in good faith determines that some or all of such payments are subject to withholding Taxes, levies, duties or other Taxes under the Laws of any jurisdiction, the Party making such payment shall deduct and withhold the amount of such Taxes for the account of the payee  and such amounts payable to the payee shall be reduced by the amount of Taxes deducted and withheld.  Any such Taxes required under applicable Laws to be paid or withheld shall be an expense of, and borne solely by, the payee.

10.5.4.2         To the extent that the Party making a payment withholds an amount of Tax in accordance with Section 10.5.4.1, the Party making such payment shall pay the amounts of such Taxes to the proper Governmental or Regulatory Authority in a timely manner and promptly transmit to the payee an official Tax certificate or other evidence of such withholding sufficient to enable the payee to claim such payments of Taxes.  The payee shall provide any Tax forms to the Party making such payment that may be reasonably necessary in order for such Party not to withhold Tax or to withhold Tax at a reduced rate under an applicable bilateral income tax treaty.  The payee shall use reasonable efforts to provide any such Tax forms to the Party making the payment at least thirty (30) days prior to the due date for any payments for which the payee desires that the Party making the payment apply a reduced withholding rate.  Each Party shall provide the other with reasonable assistance to enable the recovery, as permitted by applicable Law, of withholding Taxes or similar obligations resulting from payments made under this Agreement, such recovery to be for the benefit of the Party bearing such withholding Tax.

ARTICLE 11

CONDITIONS TO CLOSINGS

Section 11.1          Conditions to Obligations of Purchaser.  The obligation of Purchaser to, and to cause the Purchasing Affiliates to, effect the transactions contemplated by this Agreement to be completed at the Collaboration Closing and at the Purchase Closing is subject to the satisfaction (or written waiver by Purchaser) as of such Closing of the following conditions:

11.1.1     No Injunctions or Restraints.  No statute, rule, regulation, executive order, decree, temporary restraining order, judgment, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental or Regulatory Authority or other legal restraint or prohibition shall be in effect that would (i) prevent consummation of the transactions contemplated by this Agreement to occur at such Closing (or, in the case of the Collaboration Closing, the Purchase Closing), or (ii) reasonably be expected to cause such transactions to be rescinded following such Closing.

11.1.2     Competition Law Authorizations.  All Competition Law Authorizations with respect to such Closing shall have been obtained (or with respect to applicable waiting periods, have expired), and no such Competition Law Authorizations shall have been revoked.

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11.1.3     Accuracy of Representations and Warranties.

11.1.3.1         All of the BMS Fundamental Representations and all of the BMS Designated Representations shall be true and correct in all material respects (a) with respect to the Collaboration Closing, as of the Effective Date, and (b) with respect to the Purchase Closing, as of the Purchase Closing Date, in each case as though such representations and warranties were made at each such time, (i) except that any representations and warranties that are made only as of a specified date shall be true and correct only as of such date, and (ii) disregarding any materiality, Material Adverse Effect or similar qualification set forth in any such representation or warranty; and

11.1.3.2         All representations and warranties made by BMS in Section 18.2, other than the BMS Fundamental Representations and BMS Designated Representations, shall be true and correct (a) with respect to the Collaboration Closing, as of the date hereof and as of the Effective Date, and (b) with respect to the Purchase Closing, as of the Purchase Closing Date, in each case as though such representations and warranties were made at each such time, (i) except that any representations and warranties that are made only as of a specified date shall be true and correct only as of such date, (ii) disregarding any materiality, Material Adverse Effect or similar qualification set forth in any such representation or warranty, and (iii) except for such failures to be true and correct that would not be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.

11.1.4     Performance of Covenants.  The covenants and obligations that BMS is required to perform at or prior to such Closing shall have been duly performed and complied with by BMS in all material respects.

11.1.5     No Material Adverse Effect.  In the case of the Collaboration Closing, since the date of this Agreement, and in the case of the Purchase Closing, since the date of delivery of the Option Notice, there shall have occurred no change, effect, event or occurrence or state of facts that, individually or taken together with other changes, effects, events or occurrences or state of facts change, has had, or would reasonably be expected in the future to have, a Material Adverse Effect; provided, that clause (ii) of the definition of “Material Adverse Effect” shall be disregarded in the determination of whether this condition is or would be satisfied as of the Purchase Closing.

11.1.6     Required Financial Statements.  The SEC shall have, in response to the SEC Request Letter, advised the Purchaser as to the nature and scope of the Required Financial Statements and BMS shall have delivered to Purchaser the Required Financial Statements in a form suitable for filing pursuant to Item 9.01(a) of Form 8-K promulgated by the SEC, in each case at or prior to the Collaboration Closing.

11.1.7     Deliverables.  In the case of the Collaboration Closing, Purchaser shall have received each of the items set forth in Section 2.3.3, and in the case of the Purchase Closing, Purchaser shall have received each of the items set forth in Section 10.5.1.3.

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Section 11.2          Conditions to Obligation of BMS.  The obligation of BMS to, and to cause the Selling Affiliates to, effect the transactions contemplated by this Agreement to be completed at the Collaboration Closing and at the Purchase Closing is subject to the satisfaction (or written waiver by BMS) as of such Closing of the following conditions:

11.2.1     No Injunctions or Restraints.  No statute, rule, regulation, executive order, decree, temporary restraining order, judgment, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental or Regulatory Authority or other legal restraint or prohibition shall be in effect that would (i) prevent consummation of the transactions contemplated by this Agreement to occur at such Closing (or, in the case of the Collaboration Closing, the Purchase Closing), or (ii) reasonably be expected to cause such transactions to be rescinded following such Closing.

11.2.2     Competition Law Authorizations.  All Competition Law Authorizations with respect to such Closing shall have been obtained (or with respect to applicable waiting periods, have expired), and no such Competition Law Authorizations shall have been revoked.

11.2.3     Exercise of the Option.  In the case of the Purchase Closing, Purchaser shall have delivered to BMS an Option Notice in accordance with Section 9.2.

11.2.4     Accuracy of Representations and Warranties.

11.2.4.1         All of the Purchaser Fundamental Representations shall be true and correct in all material respects (a) with respect to the Collaboration Closing, as of the Effective Date, and (b) with respect to the Purchase Closing, as of the Purchase Closing Date, in each case as though such representations and warranties were made at each such time, (i) except that any representations and warranties that are made only as of a specified date shall be true and correct only as of such date, and (ii) disregarding any materiality, Material Adverse Effect or similar qualification set forth in any such representation or warranty; and

11.2.4.2         All representations and warranties made by Purchaser in Section 18.1, other than the Purchaser Fundamental Representations, shall be true and correct (a) with respect to the Collaboration Closing, as of the Effective Date, and (b) with respect to the Purchase Closing, as of the Purchase Closing Date, in each case as though such representations and warranties were made at each such time, (i) except that any representations and warranties that are made only as of a specified date shall be true and correct only as of such date, (ii) disregarding any materiality, Material Adverse Effect or similar qualification set forth in any such representation or warranty, and (iii) except for such failures to be true and correct that would not be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.

11.2.5     Performance of Covenants.  The covenants and obligations that Purchaser is required to perform at or prior to the Collaboration Closing shall have been duly performed and complied with by Purchaser in all material respects.

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11.2.6     Deliverables.  In the case of the Collaboration Closing, BMS shall have received each of the items set forth in Section 2.3.2, and in the case of the Purchase Closing, BMS shall have received each of the items set forth in Section 10.5.1.2.

Section 11.3          Frustration of Closing Conditions.  Neither Purchaser nor BMS may rely on the failure of any condition set forth in this Article 11 to be satisfied if such failure was caused by such Party’s failure to act in good faith or to use its commercially reasonable efforts to cause the Purchase Closing to occur, as required by Section 12.1.

ARTICLE 12

COVENANTS RELATING TO THE CLOSINGS

Section 12.1          Efforts.  Subject to Section 12.2.5 and Section 12.8, (i) BMS shall use its commercially reasonable efforts to cause each of the conditions set forth in Section 11.1 to be satisfied at or prior to each applicable Closing; provided, that, in seeking to satisfy any such condition, BMS shall not (and it shall cause its Affiliates not to), waive or modify any rights of BMS or any of its Affiliates under or to any Collaboration Asset or any Acquired Asset, except with Purchaser’s prior written consent, and (ii) Purchaser shall use its commercially reasonable efforts to cause each of the conditions set forth in Section 11.2 to be satisfied at or prior to the applicable Closing.

Section 12.2          Competition Law Authorizations.

12.2.1     As soon as practicable but in any event within ten (10) Business Days after the date of this Agreement, BMS and Purchaser will make all necessary filings and submissions under the HSR Act in connection with the Collaboration Closing.  Purchaser and BMS will make all other filings required by the Competition Laws of any other jurisdiction in connection with the Collaboration Closing as soon as practicable after the date of this Agreement.

12.2.2     As soon as practicable but in any event within fifteen (15) Business Days after the delivery to BMS of the Option Notice, BMS and Purchaser will make any necessary filings and submissions under the HSR Act in connection with the Purchase Closing.  Purchaser and BMS will make all other filings required by the Competition Laws of any other jurisdiction in connection with the Purchase Closing as soon as practicable after such delivery of the Option Notice.

12.2.3     Purchaser and BMS agree to (and to cause their respective Affiliates to) comply with all requests for information from Governmental or Regulatory Authorities, to the extent required by applicable Competition Laws.  Except as may be restricted by applicable Law, (i) the Parties shall cooperate with each other with respect to the obtaining of information needed for the preparation of all required filings or notifications required to be filed pursuant to the applicable Competition Laws of any jurisdiction by Purchaser or BMS in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, including the preparation of the Notification and Report Forms required to be filed pursuant to the HSR Act, (ii) the Parties shall use their commercially reasonable efforts and shall cooperate in responding

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to any written or oral requests from any Governmental or Regulatory Authorities for additional information or documentary evidence under any applicable Competition Law, and (iii) the Parties shall cooperate and shall provide notice and opportunity to consult regarding all meetings with Governmental or Regulatory Authorities, whether in person or telephonic, and regarding all written communications with Governmental or Regulatory Authorities, in each case under any applicable Competition Law in connection with the transactions contemplated by this Agreement and the Ancillary Agreements.  The Parties agree to request early termination with respect to the waiting period prescribed by the HSR Act.  Notwithstanding anything to the contrary in this Agreement, all filing fees incurred under any Competition Laws of any jurisdiction in connection with the transactions contemplated hereby and by the Ancillary Agreements shall be paid by Purchaser.

12.2.4     Each of Purchaser and BMS shall promptly notify and provide the other Party with copies of any communication it or any of its Affiliates receives from any Governmental or Regulatory Authority under any Competition Laws relating to this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, and permit the other Party to review reasonably in advance any proposed communication by it to any Governmental or Regulatory Authority relating to such matters.  Neither Purchaser nor BMS shall agree to participate in any meeting with any Governmental or Regulatory Authority Entity in respect of any filings, investigation (including any settlement of the investigation), litigation or other inquiry under any Competition Laws relating to this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby, unless it consults with the other Party in advance and, to the extent permitted by such Governmental or Regulatory Authority, gives the other Party the opportunity to attend and participate at such meeting.  To the extent permitted by applicable Law, Purchaser and BMS shall coordinate and cooperate reasonably with each other in exchanging such information and providing such assistance as the other Party may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods under any Competition Laws, including under the HSR Act.

12.2.5     Notwithstanding anything to the contrary contained herein, neither Purchaser nor its Affiliates shall be required (and BMS shall not agree to any of the following without the written consent of Purchaser) under this Section 12.2 or any other provision of this Agreement: (i) to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of, hold separate or encumber before or after either Closing any assets, licenses, operations, rights, product lines, businesses or interest therein of Purchaser or any of its Affiliates or the Business, any Collaboration Assets or any Acquired Assets; (ii) to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by Purchaser or any of its Affiliates of any of their assets, licenses, operations, rights, product lines, businesses (including the Business) or interest therein or any Collaboration Assets or Acquired Assets; (iii) to consent to any agreement to take any of the foregoing actions; or (iv) to agree to any changes to or restriction on, or other impairment of Purchaser’s ability to own or operate, any such assets, licenses, product lines, businesses or interests therein or the Business or any Collaboration Assets or Acquired Assets.

12.2.6     From the date hereof until the Collaboration Closing, Purchaser shall not enter into any transaction, or any contract or other agreement, whether oral or written, to effect any transaction (including any merger or acquisition) that would reasonably be expected to

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reduce in any material respect, as a result of the acquisition of a product or business that competitively overlaps with the Products or the Business, the likelihood of: (i) obtaining approval of the transactions contemplated by this Agreement and the Ancillary Agreements under any Competition Law applicable to the transactions contemplated by this Agreement and the Ancillary Agreements, (ii) avoiding the entry of any injunction, temporary restraining order or other order that would prevent the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, or (iii) obtaining all material authorizations, consents, orders and approvals of Governmental or Regulatory Authorities reasonably necessary for the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.  In addition, subject to Section 12.2.5, Purchaser shall defend through litigation on the merits any claim asserted in court by any Person in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements.

Section 12.3          Access.  From the date hereof until the Collaboration Closing, and from the Exercise Date until the earlier to occur of (i) the Purchase Closing, and (ii) the termination of this Agreement, BMS shall, and shall cause the Selling Affiliates to, give Purchaser and its representatives, employees, counsel and accountants reasonable access, during normal business hours and upon reasonable advance notice, to the Collaboration Assets (prior to the Collaboration Closing), the Acquired Assets and the facilities of BMS used in the Business, to such financial and operating data and other information relating to the Collaboration Assets (prior to the Collaboration Closing), the Acquired Assets and the Business as Purchaser may reasonably request and, for the purpose of making offers of employment pursuant to Section 3.4.3, the BMS Employees (prior to the applicable Employee Transfer Date); provided, however, that such access (a) does not unreasonably disrupt the normal operations of BMS or the Selling Affiliates, (b) would not reasonably be expected to violate any attorney-client privilege of BMS or the Selling Affiliates or violate any applicable Law, and (c) would not breach any duty of confidentiality owed to any Third Party whether the duty arises contractually, statutorily or otherwise.

Section 12.4          Conduct of Business during the Collaboration Term.

12.4.1     Except as set forth in Exhibit 12.4 or otherwise required by the terms of this Agreement or any Ancillary Agreement, from the date hereof until the Collaboration Closing (except as expressly consented to in writing by Purchaser (such consent not to be unreasonably withheld)), BMS shall (and BMS shall cause its Affiliates to) (i) conduct the Business in the Ordinary Course of Business and (ii) use commercially reasonable efforts to maintain and preserve the Business, the Collaboration Assets and the Acquired Assets and to retain the employees, consultants and contracts of BMS and its Affiliates engaged in the Business and suppliers, vendors, customers, licensors, licensees, distributors, regulatory authorities, creditors and others having business relations with BMS or any of its Affiliates in connection with the Business.

12.4.2     Except as set forth in Exhibit 12.4 or otherwise required by the terms of this Agreement or any Ancillary Agreement, from the date hereof until the expiration or earlier

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termination of the Collaboration Term (except as expressly consented to in writing by Purchaser (such consent not to be unreasonably withheld) or as a result of the transactions that occur at the Collaboration Closing under this Agreement), BMS shall (and BMS shall cause its Affiliates to) (i) conduct the portion of the Business retained by BMS at the Collaboration Closing in the Ordinary Course of Business and (ii) use commercially reasonable efforts to maintain and preserve such portion of the Business and the Acquired Assets and to retain the employees, consultants and contracts of BMS and its Affiliates engaged in such portion of the Business and suppliers, vendors, customers, licensors, licensees, distributors, regulatory authorities, creditors and others having business relations with BMS or any of its Affiliates in connection with such portion of the Business.

12.4.3     Except as set forth in Exhibit 12.4 or otherwise required by the terms of this Agreement or any Ancillary Agreement, from the date hereof until the expiration or earlier termination of the Collaboration Term (except as expressly consented to in writing by Purchaser (such consent not to be unreasonably withheld) or as a result of the transactions that occur at the Collaboration Closing under this Agreement), BMS shall not (and shall cause each of its Affiliates not to):

(i)            except for any Excluded Liability, make or agree to make any capital expenditures in connection with the Business in excess of $[**] individually, or $[**] in the aggregate, or incur or guarantee or agree to incur or guarantee any indebtedness in connection with the Business involving an obligation in excess of $[**] individually, or $[**] in the aggregate;

(ii)           (A) hire or retain any person who, upon such hiring or retention, would be a BMS Employee to whom Purchaser would be required to make an offer of employment pursuant to Section 3.4.3, (B) terminate the employment of any BMS Employee other than for cause, or (C) except as required to comply with applicable Law or in the Ordinary Course of Business, (1) increase or decrease in any material respect the compensation or benefits of, or promise any bonus to, any BMS Employee or materially modify their terms of employment or engagement (other than increases or decreases generally applicable to employees of BMS and its Affiliates in the same country), (2) amend or accelerate the payment, right to payment or vesting of any compensation or benefits of any BMS Employee, including any outstanding equity compensation, or (3) grant any awards under any bonus, incentive, equity, performance or other compensation plan or arrangement or benefit plan, including the grant of performance units or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder, to any BMS Employee (other than awards granted generally to employees of BMS and its Affiliates in the same country);

(iii)          sell, assign, lease, sublease, license, sublicense, pledge or otherwise transfer or dispose of or grant any option or rights in, to or under, any Collaboration Assets or any Acquired Assets, other than sales of Inventory to Purchaser or sales of Inventory of  recombinant thrombin active ingredient or drug product containing recombinant thrombin active ingredient pursuant to the Orthovita Supply Agreement in the Ordinary Course of Business;

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(iv)          enter into any Material Contract (or Contract that would be a Material Contract if it were in effect on the date hereof) except in the Ordinary Course of Business, or amend, modify or waive any right under any Material Contract or Material Permit if such amendment, modification or waiver would adversely affect in any material respect the rights to be transferred to Purchaser with respect to such Material Contract or Material Permit at the Collaboration Closing or the Purchase Closing;

(v)           enter into any other transaction, agreement or arrangement that is not negotiated at arm’s length in connection with the Business, except for any such transaction, agreement or arrangement that constitutes an Excluded Liability;

(vi)          commence a lawsuit or, to the extent the same would be binding on Purchaser or create or constitute an Assumed Collaboration Liability or an Assumed Liability, settle any claim or litigation, other than for routine collection of Accounts Receivable, in connection with the Business;

(vii)         open or close any facility or office used in the Business; or

(viii)        authorize, commit or agree (in writing or otherwise) to take any of the actions described in this Section 12.4.

Section 12.5          Certain Covenants During the Collaboration Term.  Except as set forth in Exhibit 12.4 or otherwise contemplated by the terms of this Agreement or any Ancillary Agreement, from the date hereof until the expiration or earlier termination of the Collaboration Term (except as expressly consented to in writing by Purchaser (such consent not to be unreasonably withheld) or as a result of the transactions that occur at the Collaboration Closing under this Agreement):

(i)            BMS shall, and shall cause the Selling Affiliates to, use commercially reasonable efforts to fulfill their respective obligations under the Collaboration Contracts (until such time as such Collaboration Contract is transferred to Purchaser or a Purchasing Affiliate pursuant to this Agreement) and the Transferred Contracts, in each case in accordance with their respective terms;

(ii)           BMS shall, and shall cause the Selling Affiliates to, not terminate any Collaboration Contract (until such time as such Collaboration Contract is transferred to Purchaser or a Purchasing Affiliate pursuant to this Agreement) or any Transferred Contract in whole or in part, directly or indirectly;

(iii)          BMS shall, and shall cause the Selling Affiliates to, promptly furnish Purchaser with copies of all material written communications BMS or any Selling Affiliate receives from any other party to a Collaboration Contract (until such time as such Collaboration Contract is transferred to Purchaser or a Purchasing Affiliate pursuant to this Agreement) or a Transferred Contract;

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(iv)          BMS shall, and shall cause the Selling Affiliates to, promptly furnish Purchaser with copies of all material written reports and other communications that BMS or any of its Affiliates furnishes to any party to a Collaboration Contract (until such time as such Collaboration Contract is transferred to Purchaser or a Purchasing Affiliate pursuant to this Agreement) or a Transferred Contract; and

(v)           BMS shall, and shall cause the Selling Affiliates to, furnish Purchaser with copies of all written notices received by BMS or any of its Affiliates relating to any alleged breach or default by BMS or any of its Affiliates under any Collaboration Contract (until such time as such Collaboration Contract is transferred to Purchaser or a Purchasing Affiliate pursuant to this Agreement) or Transferred Contract within five (5) Business Days after BMS’ or its Affiliate’s receipt thereof and BMS shall give Purchaser reasonable opportunity to consult with BMS regarding its proposed response to such alleged breach or default.

Section 12.6          Exclusivity.  From and after the date hereof until the Purchase Closing (or the date by which Purchaser is required to deliver the Option Notice in accordance with Section 9.2 if Purchaser fails to deliver the Option Notice on or before such date):

12.6.1     Neither BMS nor any of its Affiliates shall (and BMS shall cause each of its Affiliates not to), directly or indirectly: (i) initiate, solicit, encourage or otherwise facilitate any inquiry, proposal, offer or discussion with any Third Party concerning any Acquisition Transaction, (ii) furnish any information concerning the Business (or any portion thereof) or the Collaboration Assets or the Acquired Assets to any Third Party in connection with, or in any manner that would reasonably be expected to lead to, any potential Acquisition Transaction, or (iii) engage in discussions or negotiations with Third Party concerning any Acquisition Transaction.

12.6.2     Each of BMS and its Affiliates shall (and BMS shall cause its Affiliates to): (i) immediately cease any discussions or negotiations of the nature described in Section 12.6.1, (ii) promptly notify any party with which such discussions or negotiations are or were being held of such termination, (iii) promptly request in writing that all Persons to whom nonpublic information concerning the Business, the Collaboration Assets or the Acquired Assets has been distributed on or prior to the date of this Agreement return to BMS or destroy such information in accordance with the terms of the applicable confidentiality agreement as soon as possible, and (iv) refrain from entering into any Acquisition Transaction.

Section 12.7          Notification of Certain Matters.  During the period from the date of this Agreement until the Collaboration Closing, if to BMS’ knowledge, any BMS Employee intends to terminate his or her employment with BMS or any Selling Affiliate (other than to accept employment with Purchaser or its Affiliates), BMS shall notify Purchaser promptly after acquiring such knowledge.

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Section 12.8          Efforts to Obtain Required Financial Statements and Related Matters

12.8.1     BMS will use its commercially reasonable efforts to prepare and deliver (or cause to be prepared and delivered) to Purchaser the financial statements described in clause (i) of the definition of Required Financial Statements at or prior to the Collaboration Closing.  From the date of this Agreement until the Collaboration Closing, BMS will use its commercially reasonable efforts to prepare and deliver (or cause to be prepared and delivered) to Purchaser the financial statements (if any) described in clause (ii) of the definition of Required Financial Statements at or prior to the Collaboration Closing; provided, however, that notwithstanding anything to the contrary in this Section 12.8.1, BMS shall have no obligation to prepare and deliver (or cause to be prepared and delivered) financial statements that are fully compliant with Rule 3-05 of Regulation S-X promulgated by the SEC.  The Parties acknowledge that given their nature, the Required Financial Statements may not necessarily reflect what the Business’ financial position and results of operations would have been had the Business been a standalone entity for the periods indicated.

12.8.2     As promptly as practicable after the date hereof, Purchaser shall submit to the SEC the SEC Request Letter.  Purchaser shall provide BMS and its representatives an opportunity to review any written correspondence related to the SEC Request Letter prior to submission thereof and shall provide copies of any such correspondence received from the SEC.  In addition, BMS and its representatives shall be entitled to attend any in-person or telephonic meeting between Purchaser and its representatives and the SEC regarding the SEC Request Letter or the Required Financial Statements.

ARTICLE 13

ADDITIONAL COVENANTS

Section 13.1          Cooperation.

13.1.1     The Parties shall cooperate with each other, and shall cause their respective Affiliates, officers, employees, agents, auditors and representatives to cooperate with each other, during the Collaboration Term and, if the Purchase Closing occurs, for a period of sixty (60) days following the Purchase Closing, to ensure the orderly transition of the Business, the Products, the Acquired Assets and the Collaboration Assets from BMS to Purchaser and to minimize any disruption to the respective businesses of BMS, the Selling Affiliates and Purchaser that might result from the Acquisition.  After the Purchase Closing, upon reasonable written notice, Purchaser and BMS shall furnish or cause to be furnished to each other and their employees, counsel, auditors and representatives reasonable access, during normal business hours, to such information and assistance relating to the Business and the Acquired Assets as is reasonably necessary for financial reporting and accounting matters, the preparation and filing of any Tax Returns, reports or forms or the defense of any Tax claim or assessment or for Purchaser to otherwise conduct the Business after the Purchase Closing.  The obligation to cooperate pursuant to the preceding sentence insofar as it concerns Taxes shall terminate at the time the relevant applicable statute of limitations expires (giving effect to any extension thereof).  Each Party shall reimburse the other for reasonable out-of-pocket costs and expenses incurred in assisting the other Party pursuant to this Section 13.1.1.  Neither Party shall be required by this

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Section 13.1.1 to take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations.

13.1.2     Following the Effective Date, each Party shall, and shall cause its Affiliates to, cooperate with the other Party and its Affiliates in the administration, prosecution, defense, and settlement of Legal Proceedings involving such other Party which are, arise out of or are related to Excluded Liabilities (in the case of BMS) or Assumed Collaboration Liabilities or Assumed Liabilities (in the case of Purchaser).  Such cooperation shall include (i) retaining records and information which are reasonably relevant to such Legal Proceedings, (ii) affording such other Party, its Affiliates, its counsel and its other representatives full and complete access, upon reasonable written notice during normal business hours at a mutually convenient time, to all relevant personnel, properties, books, contracts, commitments and records, (iii) making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings, (iv) furnishing promptly to such other Party, its Affiliates, its counsel and its other representatives any information reasonably requested by them, and (v) providing such other assistance to to such other Party, its Affiliates, its counsel and its other representatives reasonably requested by them, in each case (i) through (v) to the extent such cooperation would not be reasonably expected to result in the forfeiture of any attorney-client privilege of Purchaser or its Affiliates, violate any Contract or applicable Law or otherwise unreasonably disrupt the normal business operations of the first Party or breach any duty of confidentiality owned to any Third Party whether the duty contractually, statutorily or otherwise.  The Party requesting information under this Section 13.1.2 shall reimburse the other Party for reasonable and documented out-of-pocket costs and expenses incurred in assisting such requesting Party pursuant to this Section 13.1.2.  Purchaser and BMS will execute and deliver any documents necessary to carry out the intent of this Section 13.1.2.

Section 13.2          No Use of Certain Names.  After the Purchase Closing, Purchaser shall promptly, and in any event by six (6) months after the later of (i) Purchase Closing Date, and (ii) to the extent a period of time greater than six (6) months is required to obtain any required approvals of applicable Governmental or Regulatory Authorities in any jurisdiction for such changes, receipt of all such required approvals, (a) revise any and all Product literature and labeling to delete all references to the BMS Names, and (b) delete all references to BMS’ or any Selling Affiliate’s customer service addresses or telephone numbers on Product literature and labeling; provided, that Purchaser may continue to sell in the Ordinary Course of Business any finished Products included in the Transferred Inventory as of the Purchase Closing Date, and any Product that is part of an open order placed by Purchaser prior to the Purchase Closing Date pursuant to the Supply Agreement for delivery after the Purchase Closing Date, containing the BMS Names until the later of (x) one (1) year after the Purchase Closing Date, and (y) the receipt of the last of all such required approvals.  In no event shall Purchaser use any BMS Names, addresses or telephone numbers after the Purchase Closing in any manner or for any purpose different from the use of such BMS Names, addresses or telephone numbers by BMS, any Selling Affiliate or Purchaser with respect to the Products in the Territory, the Acquired Assets or the conduct of the Business during the ninety (90)-day period preceding the Purchase Closing.

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Section 13.3          Bulk Transfer Laws.  Purchaser hereby waives compliance by BMS and its Affiliates with the provisions of any so-called “bulk transfer law” of any jurisdiction in connection with the sale of the Collaboration Assets or the Acquired Assets to Purchaser.

Section 13.4          Transfer Taxes.

13.4.1     All transfer, documentary, sales, use, stamp, VAT, registration and other such Taxes, applicable to the Acquisition (such Taxes, together with any interest, penalties and additions thereto, collectively, “Transfer Taxes”), shall be paid by Purchaser.

13.4.2     Each of Purchaser and BMS shall file all necessary Tax Returns and other documentation required to be filed by it or its Affiliates under applicable Law with respect to all Transfer Taxes, and, if required by applicable Law, the other Party will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.

13.4.3     Purchaser and BMS shall cooperate in providing each other with any appropriate resale exemption certifications and other similar documentation required to obtain any exemption from (or reduction in) Transfer Taxes, and shall cooperate in taking any commercially reasonable steps to minimize the Parties’ liability for Transfer Taxes.

Section 13.5          Purchase Price Allocation; Entitlement to Tax Refunds and Credits; Proration of Non-Income Taxes.

13.5.1     The Parties agree to reasonably cooperate with each other to agree upon an allocation of the Purchase Price and Assumed Liabilities among the Acquired Assets sold by BMS and each Selling Affiliate and purchased by Purchaser on or before the Purchase Closing Date in a manner consistent with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and corresponding provisions of applicable foreign Law) (the “Allocation”).

13.5.2     At least thirty (30) days prior to the Purchase Closing Date, BMS, on behalf of itself and the other Selling Affiliates, shall deliver to Purchaser a schedule (the “Preliminary Allocation Schedule”) allocating among the Acquired Assets sold by BMS and each Selling Affiliate and the restrictive covenants set forth in Section 13.10, the expected Purchase Price and the expected Assumed Liabilities.  Purchaser shall have fifteen (15) days to raise any reasonable objections to the Preliminary Allocation Schedule after which such time the Preliminary Allocation Schedule shall be finalized for purposes of the Allocation.  In the event that Purchaser objects to the Preliminary Allocation Schedule, the Parties shall endeavor in good faith to resolve any disagreement within sixty (60) days of the delivery of such notice of objection.  If no such agreement can be reached, then each Party shall be entitled to use its own allocation of the Purchase Price and the Assumed Liabilities among the Acquired Assets.  For the avoidance of doubt, the agreement of the Parties on the Allocation shall not be a condition to the Purchase Closing.

13.5.3     In the event that Purchaser does not object to any aspect of the Preliminary Allocation Schedule or the Parties otherwise resolve any disagreement in accordance with

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Section 13.5.2, then Purchaser and BMS agree to (i) be bound by the Allocation (as reasonably adjusted to reflect the final determination of the Purchase Price and the Assumed Liabilities), (ii) act in accordance with the Allocation in the preparation of financial statements and filing of all Tax Returns (including filing Form 8594 with its federal income Tax Return for the taxable year that includes the Purchase Closing Date), and (iii) take no position inconsistent with the Allocation for all Tax purposes.  In the event that any Taxing Authority disputes the Allocation, BMS or Purchaser, as the case may be, shall promptly notify the other Party of the nature of such dispute.

13.5.4     BMS shall be entitled to any refunds or credits of Taxes relating to any Excluded Tax Liability.  Purchaser shall be entitled to any refunds or credits of Taxes relating to the Acquired Assets or the Collaboration Assets, other than any such refunds or credits of Taxes relating to any Excluded Tax Liability.

13.5.5     In the case of any taxable period that includes (but does not end on) the Purchase Closing Date (a “Straddle Period”), Taxes imposed on a periodic basis (including real, personal and intangible property Taxes) imposed with respect to the Acquired Assets for the Pre-Closing Tax Period shall be allocated to the Pre-Closing Tax Period on a pro rata basis (based on the number of days during the Straddle Period elapsed on or prior to the Purchase Closing Date), after adjustments for any acquisitions or dispositions that occurred during the Straddle Period.

Section 13.6          Retention of Certain Records.  BMS may retain all records prepared by it in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, including bids received from Third Parties, and such records shall be Excluded Records for all purposes hereunder.

Section 13.7          Recordation of Transferred Intellectual Property.  Purchaser shall be responsible, at its sole cost and expense, for all applicable recordations of the assignment of the Transferred Intellectual Property and the Transferred Other Intellectual Property.  BMS agrees to execute and deliver to Purchaser, reasonably promptly after the Purchase Closing, such assignments and other documents, certificates and instruments reasonably requested by Purchaser for Purchaser’s filing with the applicable registries and other recording authorities to transfer the Transferred Intellectual Property and the Transferred Other Intellectual Property of record in accordance with applicable Law.

Section 13.8          Refunds and Remittances.

13.8.1     Received by BMS or the Selling Affiliates.  After each Closing, if BMS or any of its Affiliates receives any refund or other amount which is a Collaboration Asset or (after the Purchase Closing) an Acquired Asset in accordance with the terms of this Agreement, BMS promptly shall remit, or shall cause to be remitted, such amount to Purchaser at the address set forth in Article 19.

13.8.2     Received by Purchaser or its Affiliates.  After each Closing, if Purchaser or any of its Affiliates receives any refund or other amount which is an Excluded Asset or (prior to the Purchase Closing) is an Acquired Asset in accordance with the terms of this Agreement,

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Purchaser promptly shall remit, or shall cause to be remitted, such amount to BMS at the address set forth in Article 19.

Section 13.9          Further Assurances.  From time to time after the Effective Date, upon request of the other Party, each Party shall execute, acknowledge and deliver all such other instruments and documents and shall take all such other actions as may reasonably be required to consummate and make effective the transactions contemplated by the this Agreement and the Ancillary Agreements, and (i) from and after the Collaboration Closing, to put Purchaser and the Purchasing Affiliates in possession and control of the Collaboration Assets of a tangible nature, and (ii) from and after the Purchase Closing, to put Purchaser and the Purchasing Affiliates in possession and control of all of the Acquired Assets of a tangible nature.

Section 13.10       Noncompetition; Nonsolicitation.

13.10.1          As further consideration for the transactions contemplated hereby, during the period commencing on the Effective Date and ending on the later of (i) the date that is two (2) years after the date hereof, and (ii) if the Option Notice is delivered in accordance with Section 9.2, the later of (a) three (3) years after the date hereof, and (b) the date that is one (1) years after the Purchase Closing Date (the “Restriction Term”) (provided, that the Restriction Term shall terminate upon the earlier termination of this Agreement), BMS covenants and agrees with Purchaser that neither BMS nor its Affiliates shall, and BMS shall cause its Affiliates not to, directly or indirectly, for BMS or on behalf of or in conjunction with any other Person, engage in the Territory in the Exploitation of any recombinant thrombin or of any hemostat product containing recombinant thrombin as its principal active ingredient (except for the manufacture and sale of the Products pursuant to the Supply Agreement or of recombinant thrombin active ingredient or drug product containing recombinant thrombin active ingredient pursuant to the Orthovita Supply Agreement) (a “Competing Business”).  This Section 13.10.1 shall not be deemed to have been breached as a result of: (1) the ownership by BMS or any of its Affiliates of less than twenty percent (20%) in the aggregate of any class of stock of a Person engaged, directly or indirectly, in any Competing Business, or (2) the ownership by BMS or any of its Affiliates of any Competing Business if such ownership arises as a result of the acquisition following the Effective Date of a Person that engages, directly or indirectly, in a Competing Business, and (x) in its last full fiscal year prior to such acquisition, the consolidated revenues of such Person from the Competing Business constituted less than fifteen percent (15%) of the total consolidated revenues of such Person, or (y) following such acquisition, BMS (or its applicable Affiliate) uses, until the expiration of the Restricted Term, reasonable best efforts to sell that portion of the business of such entity as constitutes a Competing Business, provided that BMS (or its applicable Affiliate) shall allow Purchaser to participate in any auction or sale process regarding the sale of such Competing Business.

13.10.2          During the Restriction Term, BMS covenants and agrees with Purchaser that neither BMS nor its Affiliates shall, and BMS shall cause its Affiliates not to, hire or solicit away from Purchaser or any of its Affiliates any Transferred Employee; provided, that this Section 13.10.2 shall not be deemed to prohibit BMS or its Affiliates from placing general solicitations of employment in magazines, newspapers or trade journals of general circulation that are not directed at any Transferred Employee, or from hiring any Transferred Employee who

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leaves the employment of or whose employment is terminated by Purchaser or its Affiliates other than as a result of a breach of BMS’ obligations under this Section 13.10.2.

13.10.3          BMS agrees that the duration and geographic scope of the provision set forth in Section 13.10.1 are reasonable.  In the event that any court determines that the duration or the geographic scope of Section 13.10.1, or both, are unreasonable and that such provision is to that extent unenforceable, the Parties agree that the provision shall remain in full force and effect for the greatest time period and in the greatest area that would not render it unenforceable.  The Parties intend that the restrictions set forth in Section 13.10.1 shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America and each and every political subdivision of each and every country outside the United States of America where this provision is intended to be effective.

13.10.4          BMS acknowledges and agrees that Purchaser will be irreparably harmed and that remedies at law would be inadequate for any breach by BMS or any of its Affiliates of any of the covenants or agreements contained in Section 13.10.1.  It is accordingly agreed that, in addition to any other remedies which may be available upon the breach or threatened breach of any such covenants or agreements, Purchaser shall have the right to  equitable relief (including in the form of injunctions and orders for specific performance and in each case without the proof of actual damages) to restrain a breach or threatened breach of, or otherwise to obtain specific performance of, BMS and its Affiliates’ covenants and agreements contained in Section 13.10.1, in any court having jurisdiction over the Parties and the matter.  BMS hereby waives any requirement for the security or the posting of any bond in connection with any such remedy or relief.  For the sake of clarity and avoidance of doubt, any breach by BMS and/or its Affiliates of the terms of this Section 13.10 shall, in addition to any remedies to which Purchaser may have hereunder or at Law or in equity, be deemed to be a breach of a material obligation under this Agreement for the purposes of Section 15.2.

13.10.5          The Restriction Term shall be automatically extended by the number of days that BMS or any of its Affiliates are found to have been in violation of the provisions of this Section 13.10.

Section 13.11       Auditor Consents.  From and after the Collaboration Closing, BMS shall use its commercially reasonable efforts to deliver all certificates, management representation letters and other customary documents and instruments as may be requested by any independent registered public accounting firm that participates in the audit of any of the Required Financial Statements in connection with the delivery to Purchaser by such accounting firm of all consents necessary for Purchaser to file with the SEC such Required Financial Statements, to the extent such filing is required by the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any rule, regulation or form promulgated under either of the foregoing in connection with the filing of any registration statement, current or periodic report or other form or report of Purchaser or any of its Affiliates.

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ARTICLE 14

COLLABORATION DISPUTE RESOLUTION

Section 14.1          Collaboration Dispute Resolution.  Except for matters for which the consent of both Parties is specifically required under this Agreement (provided, however, that any obligation of a Party to provide consent other than in its sole discretion may be a Disputed Collaboration Matter), with respect to any controversy, claim or dispute arising out of or relating to the provisions of Articles 2 through (and including) 9, and Article 16, as it relates to such provisions during the Collaboration Term (a “Disputed Collaboration Matter”), the Parties shall try to settle their differences amicably between themselves first, by referring such Disputed Collaboration Matter to their respective representatives comprising the JEC for resolution with assistance from each Party’s Alliance Manager.  If not resolved by their respective representatives comprising the JEC within thirty (30) days, then such Disputed Collaboration Matter shall be referred to the office of the President, U.S. Pharmaceuticals of BMS and the office of the President of Purchaser, or their respective designees, for resolution.  Either Party may initiate such informal dispute resolution by sending written notice of the Disputed Collaboration Matter to the other Party requesting attempted resolution by said executive officers, and, within twenty (20) days after such notice, such representatives of the Parties shall meet for the purpose of attempting in good faith to resolve such Disputed Collaboration Matter.

Section 14.2          No Limitation.  The provisions of Section 14.1 shall not be construed as limiting in any way the right of a Party to resolve any Disputed Collaboration Matter pursuant to its final decision-making authority, or to bring an action or proceeding in a court of competent jurisdiction in accordance with Section 20.7, or from seeking injunctive or other equitable relief from a court of competent jurisdiction with respect to any Disputed Collaboration Matter.

ARTICLE 15

COLLABORATION TERM AND TERMINATION

Section 15.1          Collaboration Term; Term of Agreement.

15.1.1     Collaboration Term.  Subject to Sections 15.5 and 15.6, the Collaboration Term shall begin on the Effective Date and shall continue until the earlier of (i) 12:00:01 a.m. on the date that is two (2) years after the Effective Date, and (ii) the Purchase Closing (the “Collaboration Term”); provided, that the Collaboration Term is subject to earlier termination or extension in accordance with Sections 15.2 through (and including) 15.6 or as otherwise determined by the Parties’ mutual agreement.

15.1.2     Term of Agreement.  Subject to Sections 15.6 and 15.7, this Agreement shall terminate upon the expiration or earlier termination of the Collaboration Term.

Section 15.2          Termination by Purchaser.  Subject to Section 15.5, Purchaser may terminate the Collaboration Term upon written notice of termination given to BMS, if BMS has materially breached a material obligation, covenant, or duty under this Agreement, unless either

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BMS has cured such breach within sixty (60) days after Purchaser has advised BMS in writing of the nature of the breach or default, or, if such breach is not curable within said sixty (60)-day period, BMS has taken substantial steps to remedy such breach and continues to take diligent steps to remediate or cure same as promptly as reasonably practicable thereafter and actually cures such breach within an additional sixty (60) day period.

Section 15.3          Termination by BMS.  Subject to Section 15.5, BMS may terminate the Collaboration Term upon the occurrence of any of the following:

15.3.1     upon written notice of termination given to Purchaser, if Purchaser has materially breached a material obligation, covenant, or duty under this Agreement, unless either Purchaser has cured such default within sixty (60) days after BMS has advised Purchaser in writing of the nature of the breach or default, or, if such breach is not curable within said sixty (60)-day period, Purchaser has taken substantial steps to remedy such breach and continues to take diligent steps to remediate or cure same as promptly as reasonably practicable thereafter and actually cures such breach within an additional sixty (60) day period (provided, that, notwithstanding the foregoing, but subject in all respects to Section 15.5, in the case of any material breach of Article 7, BMS may immediately terminate the Collaboration Term if Purchaser has not taken remedial action to prevent future similar breaches within ten (10) Business Days after BMS has advised Purchaser in writing of the nature of the breach); or

15.3.2     if Purchaser has failed to deliver an Option Notice in accordance with Section 9.2 on or prior to (A) if no Early Termination Event has occurred, the Option Expiration Date, or (B) if an Early Termination Event has occurred, ten (10) Business Days after the date of delivery of the Notice of Termination pursuant to Section 15.5.

Section 15.4          Insolvency.  Subject to Section 15.5, either Party may terminate this Agreement if, at any time, the other Party shall file in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of the Party or of its assets, or if the other Party proposes a written agreement of composition or extension of its debts, or if the other Party shall be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be stayed or dismissed for sixty (60) days after the filing thereof, or if the other Party shall propose or be a party to any dissolution or liquidation, or if the other Party shall make a general assignment for the benefit of creditors.  In the event that this Agreement is terminated or rejected by a Party or its receiver or trustee under applicable bankruptcy Laws due to such Party’s bankruptcy, then all rights and licenses granted under or pursuant to this Agreement by such Party to the other Party are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code and any similar Law in any other country, licenses of rights to “intellectual property” as defined under Section 101(52) of the Bankruptcy Code.  The Parties agree that all Intellectual Property rights licensed hereunder, including any patents or patent applications in any country of a Party covered by the license grants under this Agreement, are part of the “intellectual property” as defined under Section 101(52) of the Bankruptcy Code subject to the protections afforded the non-terminating Party under Section 365(n) of the Bankruptcy Code, and any similar Law in any other country.

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Section 15.5          Notice of Termination.  Notwithstanding anything in this Agreement to the contrary, in the event that BMS or Purchaser is entitled to and desires to terminate the Collaboration Term pursuant to this Article 15 (which, for the avoidance of doubt, will be following a Party’s failure to cure such breach during an applicable cure period, if any, or failure to take the remedial actions specified in Section 15.2 or 15.3 during the applicable cure period), the terminating Party shall promptly deliver a notice to the other Party stating its intention to terminate (a “Notice of Termination”).  If either Party delivers a Notice of Termination, unless the provisions of Section 15.6 have become applicable, the Collaboration Term shall expire on the earliest of (i) the Purchase Closing Date, (ii) the eleventh (11th) Business Day following delivery of such Notice of Termination if no Option Notice has been delivered by the tenth (10th) Business Day following delivery of such Notice of Termination, and (iii) if Purchaser fails to comply in all material respects with its obligations under Section 12.1 and Section 12.2 to effect the Purchase Closing following delivery of an Option Notice, then on the fifth (5th) Business Day following written notice from BMS to Purchaser of such failure unless Purchaser has theretofore cured such failures.

Section 15.6          Extension of Collaboration Term in Certain Circumstances.  If Purchaser delivers a duly executed Option Notice pursuant to Section 9.2.1, but the Purchase Closing does not occur on or before 12:00:01 a.m. on the date that is two (2) years after the Effective Date, (the “Purchase Closing Outside Date”) other than as a result of a breach by Purchaser, then, unless Purchaser declines by giving BMS written notice thereof, (a) the Parties shall negotiate in good faith during the period ending on the thirtieth (30th) day following the Purchase Closing Outside Date (the “Extension Negotiation Period”) an extension of the Collaboration Term with respect to all jurisdictions in the Territory to a date no earlier than January 1, 2025 (such portion of the Collaboration Term after the Purchase Closing Outside Date and prior to such mutually agreed upon expiration date, the “Extension Term”), which extension shall provide for (1) compensation to BMS that results in a net present value commensurate with the Closing Purchase Price BMS would have received under this Agreement if the Purchase Closing had occurred with respect all jurisdictions in the Territory, which shall be payable over the first ten years of the Extension Term, (2) no further Royalty Fee payments to BMS and with the supply of Products to Purchaser at BMS’ cost of goods, plus a markup of fifteen percent (15%), and with Purchaser having the right to audit such costs, and (3) subject to the foregoing, to the fullest extent possible in light of legal, contractual and practical considerations, put the Parties in the respective positions they would have been in had the Purchase Closing occurred, and (b) the Collaboration Term shall remain in effect through the Extension Negotiation Period (except that for purposes of Article 16 and the termination of the indemnification obligations thereunder pursuant to Section 16.6.2, the Collaboration Term shall be deemed to have terminated upon the commencement of the Extension Term).  If Purchaser is not entitled to request the negotiation of an Extension Term, or if the Parties fail to mutually agree on the terms and conditions of an Extension Term by the end of the Extension Negotiation Period, the Collaboration Term shall expire at the expiration of the Extension Negotiation Period.

Section 15.7          Survival of Obligations.

15.7.1     Except as expressly stated otherwise in this Agreement, the expiration or termination of this Agreement or the Collaboration Term shall not release or operate to discharge

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either Party from any liability or obligation that may have accrued prior to such expiration or termination or constitute a waiver or relinquishment of any cause of action or claim that a Party may have based on events, acts or omissions occurring prior to such expiration or termination date.  The mere termination of this Agreement or the Collaboration Term in accordance with the terms hereof shall not, in and of itself, give rise to any damages or liability on the part of the terminating Party.

15.7.2     The following provisions shall survive any termination of this Agreement: (i) if termination is triggered by reason of the consummation of the Purchase Closing, Sections 15.7, 15.8 and Articles 8, 10, 16, 17, 18 (solely in accordance with the provisions of Section 16.6), 19 and 20 shall continue, as well as any other provisions, which, by their intent or meaning, are intended to so survive; or (ii) if termination is triggered by any reason other than the consummation of the Purchase Closing, Sections 15.5, 15.7, 15.8 and Articles 8, 16 (with respect to matters arising prior to such termination only), 17, 19 and 20, as well as any other provisions, which, by their intent or meaning, are intended to so survive.

Section 15.8          Effect of Termination.

15.8.1     Upon the expiration or termination of the Collaboration Term, if the Purchase Closing has not occurred, unless otherwise agreed in writing by BMS and Purchaser (including as provided for in the Ancillary Agreements):

15.8.1.1         except as permitted herein, Purchaser shall immediately: (A) cease all of its Promotion activities with respect to Products pursuant to this Agreement; (B) cease to have any rights to any Intellectual Property of BMS pursuant to this Agreement and shall discontinue use of all Transferred Intellectual Property and Transferred Other Intellectual Property, BMS Marks, BMS Know-How and BMS Improvements; (C) discontinue all use of, and either return to BMS or destroy, all sales training literature, A&P Material and BMS Confidential Information (in accordance with Article 17 hereof) with respect to the Products, in the form in which such information then exists and to the extent that it relates exclusively or primarily to the Products, at Purchaser’s sole cost and expense; (D) transfer all Product Permits to BMS or its designee pursuant to Section 6.7.1; and (E) transfer all Collaboration Assets to BMS or its designee, free and clear of all Liens, in the form in which they then exist, at Purchaser’s sole cost and expense.  For purposes of clarity, except as set forth in this Section 15.8.1.1, Purchaser shall have no obligation to transfer to BMS any other agreements or assets upon the expiration or termination of the Collaboration Term;

(i)            except as otherwise set forth in this Agreement or the Supply Agreement, (a) if BMS is the terminating Party, all orders of Product placed by Purchaser pursuant to the Supply Agreement for delivery after the date of termination or expiry shall be automatically cancelled or, at BMS’ option, transferred to BMS or its designee, who shall be entitled to sell any such Product; and (b) if Purchaser is the terminating Party, Purchaser may require BMS and its Affiliates to fill all such orders of Product pursuant to the Supply Agreement;

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(ii)           unless this Agreement is terminated by BMS pursuant to Section 15.3, subject to any restrictions imposed by applicable Law and except as otherwise set forth in the Supply Agreement, Purchaser will be entitled to sell any unsold Product on terms consistent with this Agreement for a period of six (6) months following termination or expiration (or such other longer period as required by applicable Laws or agreed with BMS in writing) or Purchaser will sell to BMS or its designee any unsold saleable Product at the price paid by Purchaser to BMS for such Product, which Product may be sold by BMS or its designee, and all non-saleable Product will be destroyed by Purchaser at its expense;

(iii)          Purchaser will provide to BMS a list of (i) the Third Party customers to which Purchaser sold Product, and (ii) all tenders (whether successful or not), if any, to which Purchaser participated in relation to the Products, for the two (2) year period before the termination or expiration of the Collaboration Term;

(iv)          BMS and Purchaser will meet to discuss and use reasonable efforts to agree how ongoing tender obligations of Purchaser, if any, should be handled;

(v)           except as permitted herein, Purchaser will cease to hold itself out as being associated in any way with BMS or the Products in connection with this Agreement; and

(vi)          from and after the expiration or termination of the Collaboration Term, Purchaser will, and will cause its Affiliates, officers, employees, agents and representatives to, take in good faith actions that are reasonably necessary to effect an orderly transition of the Business, mutatis mutandis, to BMS in the form it then exists and to reasonably cooperate with BMS and its Affiliates, officers, employees, agents and representatives, to minimize any disruption to the Business that may result from the expiration or termination of the Collaboration Term.  After such expiration or termination of the Collaboration Term, upon reasonable written notice, Purchaser shall furnish or cause to be furnished to BMS and its employees, counsel, auditors and representatives reasonable access, during normal business hours, to such information and assistance relating to the Business as is reasonably necessary for financial reporting and accounting matters, the preparation and filing of any Tax Returns, reports or forms or the defense of any Tax claim or assessment.  The obligation to cooperate pursuant to the preceding sentence insofar as it concerns Taxes shall terminate at the time the relevant applicable statute of limitations expires (giving effect to any extension thereof).

15.8.2     During any period after receipt of notice of termination but preceding the effective date of termination, each Party shall continue to diligently fulfill all obligations of this Agreement as apply to it during such period in accordance with the provisions of this Agreement.

Section 15.9          No Liability for Termination of Employees.  Subject to applicable Laws, the Parties acknowledge and agree that neither Party will be liable to pay any compensation for termination of any employees or independent contractors of the other Party or its Affiliates (including, in the case of Purchaser as the other Party, any of the Purchaser Employees, and, in

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the case of BMS as the other Party, any BMS Employees who are not hired by Purchaser) or any other form of compensation, arising out of the termination or expiration of this Agreement.  Each Party agrees that this requirement has been considered by it in determining the compensation that each Party receives for performing its obligations under this Agreement.  If applicable Laws are stricter than this Agreement, then the Parties acknowledge and agree that each Party’s liability for compensation to such employees and independent contractors of the other Party will be restricted or limited to the least amount required by applicable Laws.

ARTICLE 16

INDEMNIFICATION AND INSURANCE; INFRINGEMENT PROCEEDINGS

Section 16.1          Indemnification by BMS.  From and after the Effective Date, BMS shall defend, indemnify and hold Purchaser, its Affiliates and their respective employees, agents, officers and directors (collectively, the “Purchaser Indemnitees”) harmless from and against any and all Losses suffered or incurred by any Purchaser Indemnitee to the extent arising from, relating to or constituting any of the following:

(i)            the breach of any representation or warranty of BMS contained in this Agreement;

(ii)           the breach of any covenant of BMS contained in this Agreement; or

(iii)          any Excluded Liability.

Section 16.2          Indemnification by Purchaser.  From and after the Effective Date, Purchaser shall defend, indemnify and hold BMS, its Affiliates and their respective employees, agents, officers and directors (collectively, the “BMS Indemnitees”) harmless from and against any and all Losses suffered or incurred by any BMS Indemnitee to the extent arising from, relating to or constituting any of the following:

(i)            the breach of any representation or warranty of Purchaser contained in this Agreement;

(ii)           the breach of any covenant of Purchaser contained in this Agreement; or

(iii)          any Assumed Collaboration Liability and, if the Purchase Closing occurs, any Assumed Liability.

Section 16.3          Indemnification Procedure.

16.3.1     Procedures Relating to Indemnification for Third Party Claims.  In order to receive the benefits of the indemnity under Section 16.1 or Section 16.2, as applicable, in respect of, arising out of or involving a claim or demand made by any Third Party (a “Third Party Claim”) against a Purchaser Indemnitee or BMS Indemnitee (either, an “Indemnitee”), such Indemnitee must:

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(i)            give the indemnifying Party (the “Indemnitor”) written notice of any claim or potential claim promptly after the Indemnitee receives notice thereof; provided, that failure of the Indemnitee to provide such notice shall not constitute a waiver of, or result in the loss of, such Party’s right to indemnification under this Agreement, except to the extent that the Indemnitor’s rights, and/or its ability to defend against such claim or potential claim, are materially prejudiced by such failure to notify;

(ii)           allow the Indemnitor to assume the control of the defense and settlement (including all decisions relating to litigation, defense and appeal) of any such claim, provided, that:  (a) the Indemnitor has confirmed its indemnification obligation with respect to such Third Party Claim to the Indemnitee under this Article 16; (b) no such settlement may adversely affect the rights or obligations of the Indemnitee under this Agreement without the Indemnitee’s prior written consent; and (c) any settlement reached without the prior written consent of the Indemnitee shall be only for monetary damages,  for which the Indemnitee has no liability, and not for any equitable relief and shall not include any admission or ongoing obligation or restriction on the part of the Indemnitee; provided, however, that if the Indemnitee withholds its consent to any monetary settlement proposed by the Indemnitor and which the party making such Third Party Claim has indicated it is prepared to accept, the Indemnitee shall not be entitled to indemnification hereunder with respect to such Third Party Claim in excess of the proposed amount of such settlement; and

(iii)          reasonably cooperate, at the Indemnitor’s expense, with the Indemnitor in its defense of the claim (including making documents and records available for review and copying and making persons within the Indemnitee’s control available for pertinent interview and testimony), so long as such cooperation does not vitiate any legal privilege to which such Indemnitee is entitled.

If the Indemnitor defends the claim, the Indemnitee may at its expense and using attorneys of its choice, participate in, but shall not have any control of, the defense of such claim.  An Indemnitor shall have no liability under this Article 16 as to any claim for which settlement or compromise of such claim, or an offer of settlement or compromise of such claim, is made by an Indemnitee without the prior written consent of the Indemnitor.

16.3.2     Procedures Related to Indemnification for Other Claims.  In the event any Indemnitee should have a claim against any Indemnitor under Section 16.1 or Section 16.2, as applicable, that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnitee, such Indemnitee shall deliver notice of such claim with reasonable promptness to the Indemnitor.  The failure by any Indemnitee so to notify the Indemnitor shall not relieve the Indemnitor from any liability which it may have to such Indemnitee under Section 16.1 or Section 16.2, as applicable, except to the extent that the Indemnitor has been materially prejudiced by such failure.  If the Indemnitor disputes its liability with respect to such claim, the Indemnitor and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations within sixty (60) days of delivery of such notice, such dispute may be resolved by litigation in an appropriate court of competent jurisdiction.

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Section 16.4          Insurance.  Both BMS and Purchaser shall maintain adequate self-insurance and/or insurance programs to protect against potential liabilities and risk arising out of activities to be performed under this Agreement and upon such terms (including coverages, deductible limits and self-insured retentions) as are customary for the activities to be conducted by such Parties under this Agreement and are appropriate to cover the Parties’ respective indemnification obligations hereunder.  Each Party shall furnish to the other evidence of such insurance and/or self-insurance, upon request.  Such insurance information shall be kept in confidence in the same manner as any other confidential information disclosed by one Party to the other hereunder.  The amount of any Loss for which indemnification is provided under this Article 16 shall be net of any amounts actually recovered by the indemnified party under insurance policies (net of costs of collection) with respect to such Loss, provided that neither Party shall have any obligation to pursue any claims under any such insurance policies.

Section 16.5          Limitation on Indemnification.

16.5.1     Notwithstanding anything to the contrary herein, (i) BMS shall not have any liability under Section 16.1(i) unless the aggregate of all Losses for which BMS would be liable under Section 16.1(i), but for this clause (i), exceeds on a cumulative basis, an amount equal to three-quarters of one percent (0.75%) of the Aggregate Consideration (as determined from time to time), and then only to the extent of any such excess; provided, that this clause (i) shall not be applicable to claims based on a breach of a BMS Fundamental Representation or a BMS Designated Representation; (ii) BMS shall not have any liability under Section 16.1(i) for any individual item (or series of related items) where the Loss relating thereto is less than Twenty-Five Thousand Dollars ($25,000) and such items shall not be aggregated for purposes of the foregoing clause (i) of this Section 16.5.1; (iii) except in the case of claims based on BMS Fundamental Representations, BMS’ aggregate liability under Section 16.1(i) and Section 16.1(ii) (with respect to breaches of any covenant to be performed on or prior to the Purchase Closing or to effect the Purchase Closing) shall in no event exceed, on a cumulative basis, twelve and one-half percent (12.5%) of the Aggregate Consideration (as determined from time to time); provided, that in the case of claims based on a breach of a BMS Designated Representation, the aggregate liability of BMS shall in no event exceed, on a cumulative basis, forty percent (40%) of the Aggregate Consideration (as determined from time to time); and (iv) BMS’ aggregate liability under Section 16.1(i) and Section 16.1(ii) (with respect to breaches of any covenant to be performed on or prior to the Purchase Closing or to effect the Purchase Closing) shall in no event exceed, on a cumulative basis, one hundred percent (100%) of the Aggregate Consideration (as determined from time to time).

16.5.2     Notwithstanding anything to the contrary herein, (i) Purchaser shall not have any liability under Section 16.2(i) unless the aggregate of all Losses for which Purchaser would be liable under Section 16.2(i), but for this clause (i), exceeds on a cumulative basis, an amount equal to three-quarters of one percent (0.75%) of the Aggregate Consideration (as determined from time to time), and then only to the extent of any such excess; provided, that this clause (i) shall not be applicable to claims based on a breach of a Purchaser Fundamental Representation; (ii) Purchaser shall not have any liability under Section 16.2(i) for any individual item (or series of related items) where the Loss relating thereto is less than Twenty-Five Thousand Dollars ($25,000) and such items shall not be aggregated for purposes of the foregoing

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clause (i) of this Section 16.5.2; and (iii) except in case of claims based on Purchaser Fundamental Representations, Purchaser’s aggregate liability under Section 16.2(i) and Section 16.2(ii) (with respect to breaches of any covenant to be performed on or prior to the Purchase Closing) shall in no event exceed, on a cumulative basis, twelve and one-half percent (12.5%) of the Aggregate Consideration; and (iv) Purchaser’s aggregate liability under Section 16.2(i) and Section 16.2(ii) (with respect to breaches of any covenant to be performed on or prior to the Purchase Closing) shall in no event exceed, on a cumulative basis, one hundred (100%) of the Aggregate Consideration (as determined from time to time).

16.5.3     Each of Purchaser and BMS acknowledges and agrees that, except in cases of fraud or as provided in any Ancillary Agreement, its sole and exclusive remedy with respect to any and all claims relating to this Agreement, the Ancillary Agreements, any document or certificate delivered in connection herewith, the Products, and should the Purchase Closing occur, the Acquisition, the Acquired Assets and the Assumed Liabilities, or any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise shall be pursuant to the indemnification provisions set forth in this Article 16.  In furtherance of the foregoing, Purchaser hereby waives, from and after the Effective Date, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it or any of its Affiliates may have against BMS and its Affiliates arising under or based upon this Agreement, the Ancillary Agreements, any document or certificate delivered in connection herewith, the Products, the Acquisition, the Acquired Assets and the Assumed Liabilities, or any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except in cases of fraud or pursuant to the indemnification provisions set forth in this Article 16 or as provided in any Ancillary Agreement).  Notwithstanding the foregoing, each Party shall be entitled to seek specific performance, temporary or permanent injunctive or other equitable relief in any proceeding which may be brought to enforce any of the provisions of this Agreement or any Ancillary Agreement.

16.5.4     Notwithstanding any provision herein, neither BMS nor Purchaser shall in any event be liable to the other Party or any Indemnitee on account of any indemnity obligation set forth in Section 16.1 or Section 16.2 for any indirect, consequential, special, incidental or punitive damages (including lost profits, loss of use, damage to goodwill or loss of business), except to the extent such damages are the subject of a Third Party Claim.

Section 16.6          Termination of Indemnification.

16.6.1     The obligations to indemnify and hold harmless an Indemnitee pursuant to (i) Section 16.1(i) and 16.2(i) shall terminate when the applicable representation or warranty terminates pursuant to Section 16.6.2 below, and (ii) the other clauses of Section 16.1 and Section 16.2 shall not terminate; provided, however, that as to foregoing clause (i) such obligations to indemnify and hold harmless shall not terminate with respect to any matter as to which the Indemnitee or the related Party thereto shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim to the indemnifying Party.

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16.6.2     The representations and warranties of BMS contained in Section 18.2 shall survive the expiration or earlier termination of the Collaboration Term (or, if the Purchase Closing occurs, the Purchase Closing) solely for purposes of Sections 16.1(i) and shall terminate at the close of business on the six (6) month anniversary of such date, and the representations and warranties of Purchaser contained in Section 18.1 shall survive such date solely for purposes of Section 16.2(i), and shall terminate at the close of business on the six (6) month anniversary of such date; provided, however, that the BMS Designated Representations shall survive until the one (1) year anniversary of the expiration or earlier termination of the Collaboration Term (or, if the Purchase Closing occurs, the one (1) year anniversary of the Purchase Closing Date) solely for purposes of Sections 16.1(i); and provided, further, that the BMS Fundamental Representations shall survive solely for purposes of Section 16.1(i), and the Purchaser Fundamental Representations shall survive solely for purposes of Section 16.2(i), until the four (4) year anniversary of the expiration or earlier termination of the Collaboration Term (or, if the Purchase Closing occurs, the four (4) year anniversary of the Purchase Closing Date).

Section 16.7          Other Terms of Indemnification.

16.7.1     An Indemnitee may make a claim hereunder following its acquiring knowledge of the facts and circumstances giving rise to such claim, even where the full amount of any Losses is not yet known, provided the notice of such claim to the Indemnitor sets forth the basis for any such claim to the extent then feasible.

16.7.2     The rights and remedies of the Parties under this Agreement are cumulative and, accordingly, if a Party is entitled to bring a claim under more than one provision of Section 16.1 or Section 16.2, such Party may choose in its sole and absolute discretion the provision or provisions under which it seeks indemnification, provided that neither Party shall be entitled to recover the same or duplicative damages from the other Party under more than one provision of this Agreement or under any provision of this Agreement and the provision of any Ancillary Agreement.  For purposes of this Section 16.7.2, each Party shall be deemed to have made and received all payments made or received by its Affiliates.

16.7.3     It is acknowledged and agreed by the Parties that for purposes of the right to indemnification pursuant to Section 16.1, (i) each reference to “have a Material Adverse Effect” included within the representations and warranties of BMS shall be deemed replaced with the words “be material”, and (ii) the representations and warranties of BMS contained herein shall not, solely for the purposes of determining the amount of damages and not as to whether a breach has occurred, be deemed qualified by any references herein to materiality generally (as opposed to specific time or dollar thresholds).

16.7.4     With respect to any claim for indemnification hereunder, each Indemnitee shall use its commercially reasonable efforts to mitigate all Losses upon and after becoming aware of any event or circumstance that gives rise to any Losses with respect to which indemnification may be sought hereunder.

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ARTICLE 17

CONFIDENTIALITY

Section 17.1          Confidential Information.  Each Party acknowledges that it may receive Confidential Information (as defined below) of the other Party in the performance of or in furtherance of this Agreement.  Each Party shall hold confidential and not, directly or indirectly, disclose or publish to any Third Party or use for the benefit of a Third Party or, except in carrying out its duties or exercise its rights hereunder or under any Ancillary Agreement, itself or its Affiliates, any Confidential Information of the other Party, without first having obtained the furnishing Party’s written consent to such disclosure or use.  Subject to Section 16 of the Confidentiality Agreement and the final paragraph of this Section 17.1, Purchaser acknowledges that, except for disclosures required by Law or applicable stock exchange rules, it continues to remain bound by the terms of Section 5 of the Confidentiality Agreement with respect to the investigations, discussions and negotiations leading up to the execution of this Agreement or any terms and conditions discussed by the Parties with respect to the transaction contemplated hereby, which are not reflected in this Agreement or any Ancillary Agreement.  “Confidential Information” means all information provided by one Party to the other Party in connection with this Agreement, the Confidentiality Agreement or any Ancillary Agreement, including know-how, scientific information, pre-clinical and clinical data, Adverse Event information, formulas, methods and processes, Product Specifications, pricing information (including discounts, rebates and other price adjustments) and other terms and conditions of sales, customer information, business plans, and all other Intellectual Property which is not publicly available and is owned or controlled by the disclosing Party.  These restrictions shall not apply to any Confidential Information which:

(i)            is known to the receiving Party or its Affiliates prior to the time of disclosure to it;

(ii)           is independently developed by employees, agents, or independent contractors of the receiving Party or its Affiliates without aid or use of the disclosing Party’s Confidential Information (and such independent development can be demonstrated by the receiving Party);

(iii)          is disclosed, without restriction as to confidentiality, to the receiving Party or its Affiliates by a Third Party that has a right to make such disclosure; or

(iv)          becomes part of the public domain or publicly known through no breach by the receiving Party of its obligations under this Agreement, any Ancillary Agreement or the Confidentiality Agreement.

Each receiving Party or its Affiliates may disclose Confidential Information of the disclosing Party only to those employees and contractors of such receiving Party and of its Affiliates who have reason to know same in furtherance of such receiving Party’s duties or exercise of such receiving Party’s rights under this Agreement or any Ancillary Agreement and who are bound by a written or ethical obligation of confidentiality to the receiving Party (or its Affiliate) that is no

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less stringent than the confidentiality obligations set forth in this Article 17.  In addition, each receiving Party may disclose Confidential Information of the disclosing Party (a) in communication with actual and, in contemplation of a bona fide transaction, potential lenders, acquirors, merger partners, consultants, professional advisors, licensees, sublicensees or collaborators on a need to know basis, in each case under appropriate confidentiality provisions no less stringent than the confidentiality obligations set forth in this Article 17 and (b) to the extent such disclosure is reasonably necessary in filing, prosecuting or maintaining Transferred Intellectual Property or Transferred Other Intellectual Property applications or registrations in accordance with this Agreement, prosecuting or defending litigation related to Transferred Intellectual Property or Transferred Other Intellectual Property in accordance with this Agreement, complying with applicable governmental regulations, or seeking and obtaining Regulatory Approvals.