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EXHIBIT 2.1
AGREEMENT
This Agreement ("Agreement") is
entered into between NuVasive, Inc., a Delaware corporation
("NuVasive") and RSB Spine LLC, a Delaware limited liability
company ("RSB"), effective as of January 3, 2007.
RECITALS :
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A.
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Reference is made to that certain Asset Purchase
Agreement dated June 3, 2005 between NuVasive and RSB (the
"Asset Purchase Agreement").
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B.
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Under Section 7.3 of the Asset Purchase
Agreement, and pursuant to the terms and conditions set forth
therein, NuVasive was granted Buyer’s Option.
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C.
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RSB has requested, and NuVasive has agreed, that
NuVasive will release and waive and forebear from exercising
Buyer’s Option with respect to the InterPlate System (defined
below) in accordance with the terms and conditions set forth in
this Agreement.
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D.
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To the limited extent provided herein, this
Agreement amends and modifies the terms of the Asset Purchase
Agreement.
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NOW, THEREFORE, in
exchange for good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, NuVasive and RSB
hereby agree as follows:
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1.
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Definitions .
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a.
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Undefined Terms . Capitalized terms
that are not defined in this Agreement shall have the meanings set
forth in the Asset Purchase Agreement.
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b.
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InterPlate System . The term
"InterPlate System" means RSB’s InterPlate implant system for
cervical, thoracic and lumbar spinal implants, and all implants,
products, devices, equipment, instruments, tools, fasteners and
materials derived therefrom or associated therewith and including,
without limitation, any and all of the following assets, rights and
properties consisting, comprising, included within, derived from,
associated with, ancillary to, or necessary to the practice of
RSB’s InterPlate implant system whether now owned or in
existence, or hereafter developed, obtained, acquired or coming
into existence: (a) inventions, whether or not patentable,
whether or not reduced to practice, and whether or not yet made the
subject of a pending patent application or applications;
(b) ideas and conceptions of potentially patentable subject
matter, including without limitation, any invention disclosures,
whether or not reduced to practice and whether or not yet made the
subject of a pending patent application or applications; (c) United
States Letters Patent No. 6,984,234, United States Patent
Application Publication Number 20060030851, and all other domestic
or foreign statutory or non-statutory invention registrations,
patents, patent registrations and patent applications, use cases,
utility models (including, without limitation, all reissues,
divisions, continuations, continuations-in-part, extensions and
reexaminations thereof) and all rights therein provided by law,
multinational treaties or conventions and all modifications and
improvements to the inventions disclosed in each such registration,
patent, application, use case or utility model;
(d) trademarks, service marks, trade dress, logos, trade names
and corporate names, including all of the goodwill associated
therewith, whether or not registered, including all common law
rights and registrations and applications for registration thereof;
(e) copyrights, whether or not registered, and registrations
and applications for registration thereof, and all rights therein
provided by law, multinational treaties or conventions; (f)
trade
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secrets and confidential information (including,
without limitation, documentation, user manuals, ideas, formulas,
compositions, inventions and conceptions of inventions, whether
patentable or unpatentable and
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