Exhibit 10.02
Company Voting and Support
Agreement
COMPANY VOTING AND
SUPPORT AGREEMENT, dated as of May 8, 2008, (this “
Agreement ”), by and between Nuvasive, Inc.
(“ Nuvasive ”), a Delaware corporation, and
(the “ Stockholder ”). Capitalized terms
used but not defined herein shall have the meanings given to such
terms in the Asset Purchase Agreement, dated as of the date hereof
(the “ Purchase Agreement ”), by and between
Nuvasive and Osiris Therapeutics, Inc. (the “
Company ”).
W I T N E S S E T
H:
WHEREAS, Nuvasive
and the Company are entering into the Purchase Agreement
concurrently with the execution and delivery of this Agreement,
which Purchase Agreement sets forth the terms and conditions on
which Nuvasive will acquire certain assets of the Company (the
“ Acquisition ”).
WHEREAS, as of the
date hereof, the Stockholder is the beneficial and record owner of
shares of Company Common Stock (the “ Existing Shares
”).
WHEREAS, Nuvasive
has required, as a material inducement to Nuvasive’s
willingness to enter into the Purchase Agreement, that the
Stockholder enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual representations,
warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
VOTING
1.1
Agreement to Vote . The Stockholder agrees that, from
and after the date hereof and until this Agreement is terminated
pursuant to Section 4.1, at the Stockholder Meeting and any
other meeting of the stockholders of the Company, however called
relating to any proposed action by the stockholders of the Company
with respect to the matters set forth in
Section 1.1(b) below (each, a “ Voting Event
”), the Stockholder shall:
(a)
appear at each such Voting Event or otherwise cause the Existing
Shares and any voting securities of the Company acquired by the
Stockholder after the date hereof and prior to the record date of
such Voting Event (together with the Existing Shares, the “
Voting Shares ”) owned beneficially or of record by
the Stockholder to be counted as present thereat for purposes of
calculating a quorum; and
(b)
vote (or cause to be voted), in person or by proxy, all the Voting
Shares (i) in favor of adoption of the Purchase Agreement and
any other transactions and other matters specifically contemplated
by the Purchase Agreement and (ii) against any action or
agreement submitted for adoption of the stockholders of the Company
that, to the Stockholder’s knowledge, would result in a
breach of any covenant, representation or warranty or any other
obligation or
agreement of the
Company contained in the Purchase Agreement or of the Stockholder
contained in this Agreement.
1.2
Fiduciary Duties . Each party hereto acknowledges and
agrees that the Stockholder is not making any agreement or
understanding herein in any capacity other than in its capacity as
a stockholder of the Company. If the Stockholder or any
affiliates, employees or agents of the Stockholder is an officer or
member of the Board of Directors of the Company, nothing herein
shall in any way limit or affect actions taken by them in such
capacity, and no action taken in their capacity as such an officer
or director in furtherance of their fiduciary duties as an officer
or director of the Company shall be deemed to be a breach of the
provisions of this Agreement.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
2.1
Representations and Warranties of the Stockholder .
The Stockholder hereby represents and warrants to Nuvasive as
follows:
(a)
Authorization; Validity of Agreement; Necessary Action
. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming this Agreement
constitutes the valid and binding agreement of Nuvasive,
constitutes the valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms,
subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(b)
Ownership . As of the date hereof, the number of
shares of Company Common Stock beneficially owned by the
Stockholder is noted in the Recitals to this Agreement. The
Existing Shares are, and the Voting Shares will be, owned
beneficially by the Stockholder. As of the date hereof, the
Existing Shares are the only shares of Company Common Stock held of
record or beneficially owned by the Stockholder. Subject to
Section 3.1, the Stockholder has and will have at all times
through the time of any Voting Event sole voting power, sole power
of disposition, sole power to issue instructions with respect to
the matters set forth in Article I or Section 3.1 hereof,
and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares
and with respect to all of the Voting Shares at the time of any
Voting Event, with no limitations, qualifications or restrictions
on such rights, subject to applicable federal securities laws and
the terms of this Agreement. The Stockholder has good title
to the Existing Shares, free and clear of any Liens and the
Stockholder will have good title to such Voting Shares as of the
time of any Voting Event, free and clear of any Liens. The
Stockholder further represents that any proxies heretofore given in
respect of the shares of Company Common Stock owned beneficially
and of record by such Stockholder, if any, are revocable, and have
been revoked.
(c)
No Violation . The execution and delivery of this
Agreement by the Stockholder does not, and the performance by the
Stockholder of its obligations under this Agreement will not,
(i) contravene or conflict with the organizational or
governing documents of
2
the Stockholder,
(ii) contravene or conflict with or constitute a violation by
Stockholder of any provision of any Law binding upon or applicable
to the Stockholder or any of its properties or assets, or
(iii) result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material
obligation or to the loss of a material benefit under any loan,
guarantee of indebtedness or credit agreement, note, bond,
mortgage, indenture, lease or agreement binding upon the Company or
any of its subsidiaries or result in the creation of any Lien
(other than Permitted Liens) upon any of the properties or assets
of the Stockholder, except for any of the matters set forth in the
foregoing clause (iii) as would not reasonably be expected to
materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
2.2
Representations and Warranties of Nuvasive . Nuvasive
hereby represents and warrants to the Stockholder as follows:
(a)
Authorization; Validity of Agreement; Necessary Action
. This Agreement has been duly and validly executed and
delivered by Nuvasive and, assuming this Agreement constitutes the
valid and binding agreement of the Stockholder, constitutes the
valid and binding agreement of Nuvasive, enforceable against
Nuvasive in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing
specific performance, injunctive relief and other equitable
remedies.
(b)
No Violation . The execution and delivery of this
Agreement by Nuvasive does not, and the performance by Nuvasive of
its obligations under this Agreement will not, (i) contravene
or conflict with the organizational or governing documents of
Nuvasive, (ii) contravene or conflict with or constitute a
violation by Nuvasive of any provision of any Law binding upon or
applicable to Nuvasive or any of its properties or assets or
(iii) result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material
obligation or to the loss of a material benefit under any loan,
guarantee of indebtedness or credit agreement, note, bond,
mortgage, indenture, lease or agreement binding upon Nuvasive or
result in the creation of any Lien (other than Permitted Liens)
upon any of the properties or assets of Nuvasive, except for any of
the matters set forth in the foregoing clause (iii) as would
not reasonably be expected to materially impair the ability of
Nuvasive to perform his obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
ARTICLE III
OTHER
COVENANTS
3.1
Further Ag
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