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:
(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
“
Milestone Expiration Date ”), pay to Seller an amount
of cash (in United States dollars of immediately available funds)
or common stock, par value $0.001 per share, of Purchaser (“
Purchaser Common Stock ”) (the form of payment of
which is to be determined in the sole discretion of Purchaser),
equal to the First Milestone Payment, Second Milestone Payment,
Third Milestone Payment, Fourth Milestone Payment, Fifth Milestone
Payment and/or Sixth Milestone Payment, as applicable (the “
Applicable Milestone Payment ”) and each Milestone
shall be independent of each other Milestone and may be satisfied
and payment become due therefore regardless of non-satisfaction of
any other Milestone; provided , however , that (i) if
Purchaser elects to issue shares of Purchaser Common Stock in
respect of any Applicable Milestone Payment, then prior to such
issuance and upon request by the Purchaser, Seller shall deliver to
Purchaser such representations and warranties as Purchaser shall
reasonably request for purposes of exempting the issuance of such
shares from the registration requirements of the Securities Act,
and (ii) if Purchaser elects to issue shares of Purchaser
Common Stock in respect of any Applicable Milestone Payment, the
number of shares of Purchaser Common Stock to be iss
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