EXHIBIT 10.2
AMENDMENT NO. 2 TO ASSET PURCHASE
AGREEMENT
This AMENDMENT NO. 2 TO ASSET
PURCHASE AGREEMENT (this “ Second Amendment
”), dated as of March 25, 2009, is by and between
OSIRIS THERAPEUTICS, INC. , a Delaware corporation (“
Seller ”), and NUVASIVE, INC. , a
Delaware corporation (“ Purchaser
”). Capitalized terms used herein and not otherwise
defined shall have the meaning given them in that certain Asset
Purchase Agreement by and between Seller and Purchaser dated
May 8, 2008, as amended pursuant to that certain Amendment to
Asset Purchase Agreement by and between Seller and Purchaser dated
September 30, 2008 (collectively, the “
Agreement ”). Seller and Purchaser shall
each be referred to herein as a “ Party ”
and collectively as the “ Parties
.”
WHEREAS , pursuant to Section 9.3 of the Agreement,
the Agreement may be amended by a written instrument signed by the
parties to the Agreement; and
NOW, THEREFORE
, in consideration of the foregoing,
the agreements hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.
Amendments
.
(a)
Section 1.1(a)(ii) of the
Agreement shall be deleted in its entirety.
(b)
Section 1.3 of the Agreement
shall be amended by deleting in its entirety the second sentence
thereof and inserting in its place the following:
“The consummation of the
Manufacturing Asset Transfer (the “ Manufacturing
Closing ”) shall be held on the fifteenth day following
the execution by Purchaser and Seller of this Second Amendment (the
“ Manufacturing Closing Date ”) and at such time
all conditions to the Manufacturing Closing shall be deemed to have
been waived or satisfied. In connection with the
Manufacturing Closing, either (a) the Purchaser shall assume
that certain Amended and Restated Tissue Procurement Processing and
Supply Agreement by and between Seller and AlloSource, dated
February 1, 2008 (the “AlloSource Supply
Agreement”) or (b) the AlloSource Supply Agreement shall
be amended, modified, supplemented or terminated.”
(c)
Section 1.5(a) of the
Agreement shall be amended and restated in its entirety, as
follows:
“(a)
Milestones;
Milestone Payments . From and after the
Technology Closing Date, in addition to the consideration set forth
in Section 1.4 above, Purchaser shall, with respect to
Sections 1.5(a)(i) and 1.5(a)(vi) below, subject to, and
contingent upon achievement of the post-Technology Closing
performance milestones of the Business set forth in Sections
1.5(a)(i) and 1.5(a)(vi) below, and, with respect to
Sections 1.5(a)(ii), 1.5(a)(iii) and 1.5(a)(iv) below, on
the dates set forth in Sections 1.5(a)(ii), 1.5(a)(iii) and
1.5(a)(iv) below (each, a “ Milestone ”)
not later than the applicable date for satisfaction of each
Milestone set forth below (each a
