exv10w2






EXECUTION COPY




EXHIBIT 10.2




PREFERRED STOCK PURCHASE AGREEMENT




among




NUVASIVE, INC.,




PROGENTIX ORTHOBIOLOGY, B.V.




and





The Sellers listed on Schedule A attached hereto



January 13, 2009




 









 






TABLE OF CONTENTS







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	1.	 	 	SALE AND TRANSFER OF THE INITIAL SHARES	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.1	 	 	Sale and Transfer of the Initial Shares	 	 	2	 
	 
	 	 	1.2	 	 	Closing of the Purchase of the Initial Shares	 	 	2	 
	 
	 	 	1.3	 	 	Notary	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	 	REPRESENTATIONS AND WARRANTIES OF THE SELLERS WITH RESPECT TO THE SELLER SHARES	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.1	 	 	Authority; Execution and Delivery; Enforceability	 	 	3	 
	 
	 	 	2.2	 	 	Non-Contravention	 	 	3	 
	 
	 	 	2.3	 	 	Title to Seller Shares	 	 	3	 
	 
	 	 	2.4	 	 	Consents and Approvals	 	 	4	 
	 
	 	 	2.5	 	 	Litigation and Claims	 	 	4	 
	 
	 	 	2.6	 	 	No Finder	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	3.	 	 	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.1	 	 	Organization and Good Standing	 	 	4	 
	 
	 	 	3.2	 	 	Authority; No Conflict	 	 	5	 
	 
	 	 	3.3	 	 	Capitalization	 	 	6	 
	 
	 	 	3.4	 	 	Financial Statements	 	 	6	 
	 
	 	 	3.5	 	 	Books and Records	 	 	6	 
	 
	 	 	3.6	 	 	Title to Properties; Encumbrances	 	 	7	 
	 
	 	 	3.7	 	 	Condition and Sufficiency of Assets	 	 	7	 
	 
	 	 	3.8	 	 	Accounts Receivable	 	 	8	 
	 
	 	 	3.9	 	 	Inventory	 	 	8	 
	 
	 	 	3.10	 	 	No Undisclosed Liabilities	 	 	8	 
	 
	 	 	3.11	 	 	Taxes	 	 	8	 
	 
	 	 	3.12	 	 	No Material Adverse Change	 	 	10	 
	 
	 	 	3.13	 	 	Pensions	 	 	10	 
	 
	 	 	3.14	 	 	Legal Proceedings; Orders	 	 	10	 
	 
	 	 	3.15	 	 	Absence of Certain Changes and Events	 	 	11	 
	 
	 	 	3.16	 	 	Contracts; No Defaults	 	 	12	 
	 
	 	 	3.17	 	 	Insurance	 	 	14	 
	 
	 	 	3.18	 	 	Environmental Matters	 	 	16	 
	 
	 	 	3.19	 	 	Employees	 	 	17	 
	 
	 	 	3.20	 	 	Intellectual Property	 	 	17	 
	 
	 	 	3.21	 	 	Certain Payments	 	 	21	 
	 
	 	 	3.22	 	 	Authorizations; Regulatory Compliance	 	 	21	 
	 
	 	 	3.23	 	 	Products; Product Liability	 	 	23	 
	 
	 	 	3.24	 	 	Customers and Suppliers	 	 	23	 
	 
	 	 	3.25	 	 	Capital Expenditures	 	 	24	 
	 
	 	 	3.26	 	 	Relationships with Affiliates	 	 	24	 
	 
	 	 	3.27	 	 	Brokers	 	 	24	 
	 
	 	 	3.28	 	 	Disclosure	 	 	24	 






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TABLE OF CONTENTS
(continued)






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4.	 	 	REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	24	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	4.1	 	 	Organization and Good Standing	 	 	24	 
	 
	 	 	4.2	 	 	Authority; No Conflict	 	 	25	 
	 
	 	 	4.3	 	 	Certain Proceedings	 	 	25	 
	 
	 	 	4.4	 	 	Brokers	 	 	26	 
	 
	 	 	4.5	 	 	No Other Representations	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5.	 	 	CONDUCT OF BUSINESS DURING THE OPTION PERIOD	 	 	26	 
	 
	 
	 
	 	 	5.1	 	 	Conduct of Business of the Company	 	 	26	 
	 
	 	 	5.2	 	 	Clinical Trials	 	 	29	 
	 
	 	 	5.3	 	 	FDA Approval Matters	 	 	29	 
	 
	 	 	5.4	 	 	Payment of Taxes, Etc	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6.
	 	 	ADDITIONAL AGREEMENTS	 	 	30	 
	 
	 
	 
	 	 	6.1	 	 	Access to Properties and Information	 	 	30	 
	 
	 	 	6.2	 	 	Notification of Certain Matters	 	 	30	 
	 
	 	 	6.3	 	 	Confidentiality; Publicity	 	 	30	 
	 
	 	 	6.4	 	 	Use of Proceeds from the Facility	 	 	31	 
	 
	 	 	6.5	 	 	Monthly and Quarterly Statements	 	 	31	 
	 
	 	 	6.6	 	 	Audits	 	 	31	 
	 
	 	 	6.7	 	 	Recapitalization	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	7.	 	 	INDEMNIFICATION; REMEDIES	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.1	 	 	Survival; Right to Indemnification Not Affected by Knowledge	 	 	31	 
	 
	 	 	7.2	 	 	Indemnification and Payment of Damages by Sellers	 	 	32	 
	 
	 	 	7.3	 	 	Indemnification and Payment of Damages by Purchaser	 	 	33	 
	 
	 	 	7.4	 	 	Limitations on Indemnification	 	 	33	 
	 
	 	 	7.5	 	 	Procedure for Indemnification—Third Party Claims	 	 	34	 
	 
	 	 	7.6	 	 	Procedure for Indemnification—Other Claims	 	 	35	 
	 
	 	 	7.7	 	 	Remedies Exclusive	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	8.	 	 	CLOSING DELIVERABLES	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	8.1	 	 	Closing Deliverables of the Company	 	 	35	 
	 
	 	 	8.2	 	 	Closing Deliverables of the Purchaser	 	 	37	 
	 
	 	 	8.3	 	 	Closing Deliverables of the Parties	 	 	38	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	9.	 	 	GENERAL PROVISIONS	 	 	38	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.1	 	 	Expenses	 	 	38	 
	 
	 	 	9.2	 	 	Notices	 	 	38	 
	 
	 	 	9.3	 	 	Jurisdiction; Service of Process	 	 	39	 
	 
	 	 	9.4	 	 	Dispute Resolution	 	 	39	 
	 
	 	 	9.5	 	 	Waiver	 	 	40	 
	 
	 	 	9.6	 	 	Entire Agreement and Modification	 	 	41	 
	 
	 	 	9.7	 	 	Assignments, Successors, and No Third-Party Rights	 	 	41	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page
	 
	 
	 
	 	 	9.8	 	 	Release of Claims	 	 	41	 
	 
	 	 	9.9	 	 	Severability	 	 	41	 
	 
	 	 	9.10	 	 	Section Headings, Construction	 	 	42	 
	 
	 	 	9.11	 	 	Time of Essence	 	 	42	 
	 
	 	 	9.12	 	 	Governing Law	 	 	42	 
	 
	 	 	9.13	 	 	Counterparts	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	10.	 	DEFINITIONS	 	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Index of Other Defined Terms:	 	 	52	 






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SCHEDULES AND EXHIBITS




	 	 	 
	Schedule A

	 	Sellers Schedule
	 
	 	 
	Exhibit A

	 	Option Purchase Agreement
	Exhibit B

	 	Facility Agreement
	Exhibit C

	 	Amended Articles of Association
	Exhibit D

	 	Notarial Deed
	Exhibit E

	 	Form of Proprietary Inventions Agreement
	Exhibit F

	 	Opinion of Counsel
	Exhibit G

	 	Distribution Agreement
	Exhibit H

	 	Revos License Agreement
	Exhibit I

	 	Pledge Agreement
	Exhibit J

	 	Shareholders’ Agreement
	Exhibit K

	 	Founders’ Non-competition Agreement (Bruijn)
	Exhibit L

	 	Founders’ Non-competition Agreement (Blitterswijk)
	Exhibit M

	 	Investor Non-competition Agreement







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PREFERRED STOCK PURCHASE AGREEMENT




     THIS PREFERRED STOCK PURCHASE AGREEMENT (“Agreement”) is made as of January 13, 2009 (the
“Effective Date”), by and among NuVasive, Inc., a Delaware corporation (“Purchaser”), Progentix
Orthobiology B.V., a company organized under the laws of the Netherlands (the “Company”), and the
shareholders of the Company as set forth on Schedule A attached hereto (each a “Seller,”
and collectively, the “Sellers,” and along with the Company, the “Seller Parties”).



RECITALS




     The Sellers desire to sell, and Purchaser desires to purchase, 7,200 ordinary shares, €1.00
par value per share, and 1,600 cumulative preference shares, €1.00 par value per share, of the
Company, for an aggregate purchase price of $10,000,000, which shares represent, immediately after
such issuance, forty percent (40%) of the outstanding capital stock of the Company on a
fully-diluted basis (the “Initial Shares”).



     Purchaser and the Seller Parties have entered into an Option Purchase Agreement, dated as of
the date hereof, in the form attached hereto as Exhibit A (the “Option Purchase
Agreement”), pursuant to which, and subject to certain exceptions set forth therein, (i) Purchaser
may elect, in its sole discretion, to cause the Sellers to sell to Purchaser the remaining issued
and outstanding shares of the capital stock of the Company held by the Sellers (the “Remaining
Shares,” and along with the Initial Shares, the “Seller Shares”) upon delivery of a Purchase
Election Notice (as defined therein) to the Sellers’ Representative (as defined in the Option
Purchase Agreement) at any time between the second anniversary of the date of the Option Purchase
Agreement and the fourth anniversary thereof (the “Call Option Period”), and (ii) Purchaser shall
be obligated to purchase from the Sellers all of the Remaining Shares in the event (A) the Sellers’
Representative (as defined in the Option Purchase Agreement) delivers a Milestone Completion Notice
(as defined therein) to Purchaser at any time between the date of the Option Purchase Agreement and
the second anniversary thereof (the “Put Option Period”) or (B) Purchaser’s *** (as defined
in the Option Purchase Agreement) is greater than *** at any time during the Call Option
Period. Any purchase of the Remaining Shares by the Purchaser pursuant to the Option Purchase
Agreement shall be referred to herein as an “Acquisition.” The period from the date of the Option
Agreement through the expiration of the Call Option Period shall be referred to herein as the
“Option Period.”



     In connection with this Agreement and the Option Purchase Agreement, Purchaser has entered
into a Facility Agreement with the Company, dated as of the date hereof, in the form attached
hereto as Exhibit B (the “Facility Agreement”) pursuant to which Purchaser is lending up to
$5,000,000 to the Company.



     In connection with this Agreement and the Option Purchase Agreement, pursuant to a notarial
deed of amendment to the Company’s Articles of Association in the form attached hereto as
Exhibit C (the “Amended Articles”), which includes among other things, the creation





 




			
	***	 	Portions of this page have been omitted pursuant to a request
for Confidential Treatment filed separately with the Commission.




 









 









of cumulative preference shares A (the “Series A Preferred Stock”) and cumulative preference
shares B (the “Series B Preferred Stock”), and pursuant to the execution of the notarial deed with
respect to the Amended Articles, (i) the cumulative preference shares held by the Sellers shall be
converted into shares of Series A Preferred Stock, and (ii) the Initial Shares purchased by
Purchaser pursuant to the terms herein shall be converted into shares of Series B Preferred Stock,
such that Purchaser will own shares of the Series B Preferred Stock, representing, immediately
after such issuance, forty percent (40%) of the outstanding capital stock of the Company on a
fully-diluted basis (the “Recapitalization”). The Company has filed a declaration of no-objection
with the Dutch Ministry of Justice with respect to the Amended Articles.




AGREEMENT




     The parties, intending to be legally bound, agree as follows:



1. SALE AND TRANSFER OF THE INITIAL SHARES.




     1.1 Sale and Transfer of the Initial Shares.



          (a) On the Closing Date (as defined below), subject to the conditions set forth in this
Section 1, Purchaser or its designee shall purchase, and the Sellers shall sell and issue
to Purchaser, the Initial Shares for the aggregate purchase price of $10,000,000 (the “Purchase
Price”) as set forth on Schedule A attached hereto. At the Closing (as defined below),
Purchaser shall transfer (i) an amount of cash (in United States dollars of immediately available
funds) equal to the Purchase Price minus the Seller Funded Expenses (the “Upfront Payment”) to the
third party account of the Notary in accordance with the instructions in the Notary Instruction
Letter, and (ii) on behalf of the Sellers, the amounts set forth on the Estimated Closing
Certificate to the persons listed therein.. Prior to the transfer of the Initial Shares, the
Notary shall hold the Upfront Payment on behalf of Purchaser. After the transfer of the Initial
Shares, the Notary shall hold the Upfront Payment on behalf of the Sellers. As soon as possible
after the Closing, but in any event within one (1) Business Day of the Closing Date, the Notary
shall pay to the Sellers an amount equal to the Upfront Payment, pursuant to the allocation set
forth on Schedule A attached hereto (the “Pro Rata Allocation”)



          (b) The parties acknowledge and agree that the aggregate fair market value of the Initial
Shares as of the Closing Date is equal to the Purchase Price for the Initial Shares, and the
parties agree to file all Tax Returns in a manner consistent with this sentence and not to take any
Tax position inconsistent with this sentence.



     1.2 Closing of the Purchase of the Initial Shares. The closing of the purchase and sale of
the Initial Shares (the “Closing”) shall take place at the offices of DLA Piper Nederland N.V.,
‘Meerparc’, Amstelveenseweg 638, 1081 JJ Amsterdam, the Netherlands, as soon as practicable, or at
such other time, date and place as are mutually agreed upon by the Company and Purchaser (the
“Closing Date”). At the Closing, the Notary shall execute the deed of transfer of the Initial
Shares through the notarial deed in the form substantially attached hereto as Exhibit D.
Immediately thereafter, the Notary shall transfer the Upfront Payment to the Sellers, all in
accordance with the instruction letter from the Notary.



2









 





     1.3 Notary. The Seller Parties are aware that the Notary is a civil law notary working at DLA
Piper Nederland N.V., the firm that advises Purchaser in respect of the matters set out in this
Agreement. With reference to the Code of Conduct (Verordening beroeps- en gedragsregels)
established by the Royal Notarial Professional Organization (Koninklijke Notariële
Beroepsorganisatie), parties hereby acknowledge and confirm that (i) the Notary shall execute any
and all deeds related to the Closing Documents; and (ii) Purchaser is assisted and represented by
DLA Piper Nederland N.V. in relation to the Closing Documents and any other agreements that may be
concluded, or disputes that may arise, in connection therewith.



2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS WITH RESPECT TO THE SELLER SHARES




     Each Seller, severally but not jointly, hereby represents and warrants to Purchaser as to such
Seller and the Seller Shares owned by such Seller, as of the Effective Date and as of the Closing
Date, as set forth below. Each exception to such representations and warranties set forth in the
Seller Parties Disclosure Schedule is identified by reference to, or has been grouped under a
heading referring to, a specific section of this Agreement, and the disclosures in any section or
subsection of the Seller Parties Disclosure Schedule shall qualify other sections and subsections
in this Agreement to the extent it is reasonably apparent from a reading of the disclosure that
such disclosure is applicable to such other sections and subsections.



     2.1 Authority; Execution and Delivery; Enforceability. Each Seller has full power, authority
and capacity to execute and deliver this Agreement and to perform such Seller’s respective
obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Seller and constitutes the legal, valid and binding
obligation of such Seller enforceable against such Seller in accordance with its terms, subject to
bankruptcy and other similar Legal Requirements of general applicability relating to or affecting
creditors’ rights and to general equity principles.



     2.2 Non-Contravention. The execution and delivery of this Agreement by such Seller does not,
and the consummation of the transactions contemplated hereby and compliance with the terms hereof,
will not (or would not with the giving of notice or the passage of time):



          (a) constitute a default under or a violation or breach (with or without notice) of, result in
the acceleration of any obligation under, any provision of any contract or other instrument to
which such Seller is a party or result in the termination or revocation of any authorization held
by such Seller or the Company necessary to the ownership of the Seller Shares or the operation of
the business of the Company;



          (b) violate any Order or any Legal Requirement affecting such Seller; or



          (c) result in the creation of any Encumbrance on the Seller Shares.



     2.3 Title to Seller Shares. Each Seller is and will be on the Closing Date the holder and
beneficial owner of the Seller Shares owned by such Seller. The Seller Shares owned by such Seller
as of the Effective Date are as set forth on Part 2.3 of the Seller Parties Disclosure Schedule.
Each Seller has good and valid title to the Seller Shares owned by such Seller as set forth on Part
2.3 of the Seller Parties Disclosure Schedule, free and clear of all Encumbrances.



3









 







At the Closing, each Seller will transfer legal and beneficial, good and valid title to each
of the Initial Shares owned by such Seller, free and clear of all Encumbrances. No Seller is
currently bound by any contract, agreement, arrangement, commitment or understanding (written or
oral) with, and has not granted any option or right currently in effect or which would arise after
the Effective Date, any Person other than Purchaser with respect to the acquisition of any of
Initial Shares.



     2.4 Consents and Approvals. Except as set forth in the Seller Parties Disclosure Schedule, no
consent, approval, waiver, license, permit, order or authorization of, or registration, declaration
or filing with, any Governmental Body, and no consent, approval, waiver or other similar
authorization of any other Person (including, without limitation, any Person who is a party to a
Contract binding on or affecting the Company or any Subsidiary), is required to be obtained by or
on behalf of such Sellers as a result of, or in connection with, or as a condition of the lawful
execution, delivery and performance of this Agreement or the consummation of the transactions
contemplated hereby.



     2.5 Litigation and Claims. There is no Action pending or, to the Knowledge of such Seller,
Threatened, against or affecting such Seller that could reasonably be expected to affect such
Seller’s ability to consummate the transactions contemplated hereby.



     2.6 No Finder. Except as set forth in the Seller Parties Disclosure Schedule, neither such
Seller nor any party acting on such Seller’s behalf has paid or become obligated to pay any fee or
commission to any broker, finder or intermediary for or on account of the transactions contemplated
hereby, and the Company will not be liable or obligated in any way whatsoever with respect to any
such fee or commission.



3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     The Company hereby represents and warrants to Purchaser, as of the Effective Date and as of
the Closing Date, as set forth below. Each exception to such representations and warranties set
forth in the Seller Parties Disclosure Schedule is identified by reference to, or has been grouped
under a heading referring to, a specific section of this Agreement, and the disclosures in any
section or subsection of the Seller Parties Disclosure Schedule shall qualify other sections and
subsections in this Agreement to the extent it is reasonably apparent from a reading of the
disclosure that such disclosure is applicable to such other sections and subsections.



     3.1 Organization and Good Standing.



          (a) Part 3.1 of the Seller Parties Disclosure Schedule contains a complete and accurate list
for the Company of its name, its jurisdiction of incorporation, other jurisdictions in which it is
authorized to do business, and its capitalization (including the identity of each stockholder and
the number of shares held by each). The Company is a corporation duly organized, validly existing,
and in good standing under the laws of its jurisdiction of incorporation, with full corporate power
and authority to conduct its business as it is now being conducted, to own or use the properties
and assets that it purports to own or use, and to perform all its obligations under Applicable
Contracts. The Company is a private company with limited liability duly qualified to do business
as a foreign corporation and is in good standing under the



4









 







laws of each state or other jurisdiction in which either the ownership or use of the
properties owned or used by it, or the nature of the activities conducted by it, requires such
qualification, except where the failure to be so qualified would not reasonably be expected to have
a Material Adverse Effect.



          (b) The Company made available to Purchaser in the Data Room copies of the Organizational
Documents of the Company, as currently in effect.



     3.2 Authority; No Conflict.



          (a) The Closing Documents to which the Company is a party have been authorized by the board of
directors (“Board of Directors”) of the Company and, to the extent required, by the shareholders of
the Company. Upon the execution and delivery by the Company of such Closing Documents, such
Closing Documents will constitute the legal, valid, and binding obligations of the Company,
enforceable against it in accordance with their respective terms, subject to bankruptcy and other
similar Legal Requirements of general applicability relating to or affecting creditor’s rights and
to general equity principles. The execution and delivery of such Closing Documents by the Company
and the performance of the Contemplated Transactions by it does not conflict with any provision of
the Organizational Documents of the Company.



          (b) Neither the execution and delivery of this Agreement nor the consummation or performance
of any of the Contemplated Transactions will, directly or indirectly (with or without notice or
lapse of time):



               (i) contravene, conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Company, or (B) any resolution adopted by the board of directors or
the shareholders of the Company;



               (ii) contravene, conflict with, or result in a violation of, or give any Governmental Body or
other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy
or obtain any relief under, any Legal Requirement or any Order to which the Company, or any of the
assets owned or used by the Company, may be subject;



               (iii) contravene, conflict with, or result in a violation of any of the terms or requirements
of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or
modify, any Governmental Authorization that is held by the Company or that otherwise relates to the
business of, or any of the assets owned or used by, the Company;



               (iv) cause the Company to become subject to, or to become liable for the payment of, any Tax;



               (v) cause any of the assets owned by the Company to be reassessed or revalued by any taxing
authority or other Governmental Body;



               (vi) contravene, conflict with, or result in a violation or breach of any provision of, or
give any Person the right to declare a default or exercise any remedy under, or to



5









 







accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable
Contract; or



               (vii) result in the imposition or creation of any Encumbrance upon or with respect to any of
the assets owned or used by the Company, other than Permitted Encumbrances.


Except as set forth in Part 3.2 of the Disclosure Schedule the Company is not nor will it be
required to give any notice to or obtain any Consent from any Person in connection with the
execution and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.




     3.3 Capitalization. As of immediately prior to the Closing (without giving effect to the
Recapitalization), the authorized equity securities of the Company consist of 60,000 ordinary
shares, par value €1 per share, of which 18,000 shares are issued and outstanding and 30,000
cumulative preference shares, par value €1 per share, of which 4,000 shares are issued and
outstanding. No shares or classes of the Company’s capital are reserved for issuance. No
reference to any purported Encumbrance appears in the shareholders’ register of the Company. All
of the outstanding equity securities of the Company have been duly authorized and validly issued
and are fully paid. Except as set forth in Part 3.3 of the Seller Parties Disclosure Schedule,
there are no Contracts relating to the issuance, sale, transfer or voting of any issued or issuable
equity securities or other securities (including, but not limited, to any options, stock
appreciation rights, warrants or other instruments or securities exercisable or exchangeable for,
or convertible into, equity securities) of the Company. None of the outstanding equity securities
or other securities of the Company was issued in violation of any Legal Requirement. The Company
does not own, nor does it have any Contract to acquire, any equity securities or other securities
of any Person or any direct or indirect equity or ownership interest in any other business. The
Company does not have any Subsidiaries.



     3.4 Financial Statements. The Company has made available to Purchaser in the Data Room the
unaudited balance sheet of the Company and the related unaudited statements of income, changes in
stockholders’ equity, and cash flow balance sheet of the Company as of December 31, 2008 (the
“Balance Sheet”) and the related unaudited statements of income, changes in shareholders’ equity,
and cash flow for the twelve (12) months then ended (collectively, the “Financial Statements”),
including in each case the notes thereto (except that the unaudited Financial Statements may not
contain all required footnotes and the interim Financial Statements are subject to year-end
adjustments). The Financial Statements fairly present in all material respects the financial
condition and the results of operations, changes in stockholders’ equity, and cash flow of the
Company as at the respective dates of and for the periods referred to in the Financial Statements.
The Financial Statements referred to in this Section 3.4 reflect the consistent application
of such accounting principles throughout the periods involved, except as disclosed in the notes to
such Financial Statements. No financial statements of any Person other than the Company are
required to be included in the consolidated financial statements of the Company.



     3.5 Books and Records. The books and records of the Company, all of which have been made
available to Purchaser in the Data Room, are complete and correct in all material



6









 







respects and have been maintained in accordance with sound business practices in the
Netherlands, including the maintenance of an adequate system of internal controls. The minute
books of the Company contain materially accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Board of Directors and the Supervisory Board of
Directors of the Company, and no meeting of any such stockholders, Board of Directors, or committee
has been held for which minutes have not been prepared and are not contained in such minute books.
At the Closing, all of those books and records will be in the possession of the Company.



     3.6 Title to Properties; Encumbrances. The Company does not currently own, nor has it ever
owned (a) any real property, (b) any leasehold interests or (c) any buildings, plants, structures
and/or equipment. Part 3.6 of the Seller Parties Disclosure Schedule contains a complete and
accurate list of all (A) the Assets that the Company purports to own, including all of the
properties and assets reflected in the Balance Sheet (except for assets held under capitalized
leases disclosed or not required to be disclosed in Part 3.6 of the Seller Parties Disclosure
Schedule and personal property sold since the date of the Balance Sheet, as the case may be, in the
Ordinary Course of Business), and (B) all of the properties and assets purchased or otherwise
acquired by the Company since the date of the Balance Sheet (except for personal property acquired
and sold since the date of the Balance Sheet in the Ordinary Course of Business and consistent with
past practice), which subsequently purchased or acquired properties and assets (other than
inventory and short-term investments) are listed in Part 3.6 of the Seller Parties Disclosure
Schedule. The Company is the sole owner and has good and marketable title (or leasehold title, as
the case may be) to the Assets free and clear of all Encumbrances, and the Assets reflected in the
Balance Sheet are free and clear of all Encumbrances and are not, in the case of real property,
subject to any rights of way, building use restrictions, exceptions, variances, reservations, or
limitations of any nature except, with respect to all such properties and assets, (i) mortgages or
security interests shown on the Balance Sheet as securing specified liabilities or obligations,
with respect to which no default (or event that, with notice or lapse of time or both, would
constitute a default) exists, (ii) mortgages or security interests incurred in connection with the
purchase of property or assets after the date of the Balance Sheet (such mortgages and security
interests being limited to the property or assets so acquired), with respect to which no default
(or event that, with notice or lapse of time or both, would constitute a default) exists, (iii)
liens for current taxes not yet due, and (iv) Encumbrances pursuant to the Pledge Agreement (as
defined below) or the Facility Agreement and (v) Encumbrances incurred in the Ordinary Course of
the Business, consistent with past practice, or created by the express provisions of the Contracts,
each of the type identified on Part 3.6 of the Seller Parties Disclosure Schedule (together, the
“Permitted Encumbrances”). All such assets are suitable for the uses to which they are being put
or have been put in the Ordinary Course of Business and are in good working order, ordinary wear
and tear excepted.



     3.7 Condition and Sufficiency of Assets. Except as set forth on Part 3.7 of the Seller
Parties Disclosure Schedule, the Assets are all assets of the Company used in or related to the
processing and manufacturing of the Products. Xpand Biotechnology B.V., a private company with
limited liability (“Xpand”), transferred to the Company the Company Proprietary Rights and prior to
such transfer of the Company Proprietary Rights, Xpand was the sole and rightful owner of the
Company Proprietary Rights. Except as set forth on Part 3.7 of the Seller Parties Disclosure
Schedule, the Assets and the Company Proprietary Rights of the Company



7









 







constitute all of the assets, property, real personal or mixed, tangible or intangible, of the
Company used in or held for use in for the operation of the Business as presently conducted.



     3.8 Accounts Receivable. The Company currently has no accounts receivable, nor has it
previously had any accounts receivable prior to the Closing Date.



     3.9 Inventory. The Company currently has no inventory, nor has it previously had any inventory
prior to the Closing Date.



     3.10 No Undisclosed Liabilities. The Company has no liabilities or obligations of any nature
(whether known or unknown and whether absolute, accrued, contingent, or otherwise), except for (a)
liabilities or obligations reflected or reserved against in the Balance Sheet, (b) liabilities or
obligations incurred since the Balance Sheet Date in the Ordinary Course of Business, (c)
liabilities of a type or nature not required to be reflected in the Financial Statements, which are
not material, individually or in the aggregate, or (d) liabilities or obligations set forth in Part
3.10 of the Seller Parties Disclosure Schedule. Except as set forth in Part 3.10 of the Seller
Parties Disclosure Schedule the Company is not a guarantor or indemnitor of any Indebtedness of any
other Person.



     3.11 Taxes.



          (a) The Company has paid on a timely basis all Taxation that was due and payable on or before
the Closing Date. The unpaid taxes of the Company for all Tax periods through the Balance Sheet
Date do not exceed the accruals and reserves for Taxation (excluding accruals and reserves for
deferred Taxation established to reflect timing differences between book and Tax income) set forth
on the Balance Sheet.



          (b) All notices and returns required to have been given or made, have been properly and duly
submitted by the Company to the relevant Governmental Body and all information, notices,
computations and returns submitted to such Governmental Body are true, accurate and complete and
are not the subject of any dispute nor are likely to become the subject of any dispute with such
Governmental Body. The Company has not been informed by any Governmental Body that such
Governmental Body formally asserts that the Company was required to file any Tax Return that was
not filed, and, to the Sellers’ Knowledge, no such assertion is planned by any Governmental Body.
The Company has not (i) waived any statute of limitations with respect to Taxation, (ii) requested
any extension of time within which to file any Tax Return, or (iii) executed or filed any power of
attorney with any taxing authority. All records that the Company is required to keep for Taxation
purposes, have been duly kept and are available for inspection at the Company premises.



          (c) The amount of Taxation chargeable to the Company has not been affected by any concession,
arrangements, agreement or other formal or informal arrangement with any Governmental Body (not
being a concession, agreement or arrangement available to companies generally). The Company is not
subject to a special Tax regime. The Company is not required to include any amounts in income, or
to exclude any items of deduction in a taxable period beginning after the Closing Date as a result
of (i) an instalment sale or open transaction arising in a taxable period ending on or before the
Closing Date; (ii) a prepaid amount received, or paid, in



8









 







a taxable period ending on or before the Closing Date; (iii) deferred gains that could be
recognized in a taxable period ending after the Closing Date; or (iv) any similar item of deferred
income or expense.



          (d) In relation to Tax, the Company has not been subject to and is not currently subject to
any investigation, audit or visit by any Governmental Body, and, to the Sellers’ Knowledge, no such
investigation, audit or visit is planned by any Governmental Body.



          (e) Since its incorporation, the Company has not been involved in any Taxation controversy
and/or litigation with or against any Governmental Body.



          (f) The Company has made all deductions and/or withholdings in respect, or in account, of any
Taxation from any payments made by the Company that it is obliged or entitled to have made and has
accounted in full to the appropriate authority for all amounts so deducted and/or withheld.



          (g) The Company has not received any notice from any Governmental Body that required or will
require the Company to withhold Taxation from any payment made since the Balance Sheet Date in
respect of which such withheld Taxation has not been accounted for in full to the appropriate
authority.



          (h) The Company has not claimed or been granted exemptions from Taxation that may give rise to
the assessment and/or payment of Taxation in connection with any transactions involving the
Company, including but not limited to this Agreement, reorganisations, mergers and/or disposals of
the Company.



          (i) All applications by the Company for governmental subsidies, which have been made or are
reflected in the Balance Sheet have been duly and correctly made and no refunds and no interest,
penalties or additions regarding such refunds are or will be due in respect of governmental
subsidies.



          (j) The Company



               (i) has always been resident, for Tax purposes, in the Netherlands;



               (ii) is not and has never been resident, for Tax purposes, in any other jurisdiction;



               (iii) does not have and has never had a taxable presence outside the Netherlands; and



               (iv) is not deemed to have and has never been deemed to have had a taxable presence outside
the Netherlands.



          (k) No Taxation, for which any other person or entity is or may be liable, will be charged in
any way to the Company, and the Company is not a party to or bound by any Tax indemnity, Tax
sharing, Tax allocation or similar agreement.



9









 





          (l) Each transaction between the Sellers or any Affiliate of the Sellers on the one hand and
the Company on the other hand is and has been done at an arm’s length basis.



          (m) The Company is not liable for Taxation imposed on or due by any third party, including,
without limitation, any sub-contractor, the Sellers or any Affiliate of the Sellers, except to the
extent that full provision has been made in the Financial Statements of the Company.



          (n) Other than by their own expiration over time, there is no limitation on the utilization by
the Company of its net operating losses, built-in losses, Tax credits or similar items under the
Tax laws of any jurisdiction (other than any such limitations arising as a result of the
consummation of the Contemplated Transactions).



          (o) The Company does not own any interest in any entity that is characterized as a partnership
for Tax purposes.



          (p) There are no Tax liens or other Encumbrances with respect to Taxation upon any of the
Assets of the Company, other than Permitted Encumbrances.



          (q) The Company has delivered or made available to Purchaser in the Data Room for inspection
(i) complete and correct copies of all Tax Returns of the Company relating to Taxation and (ii)
complete and correct copies of all documents from any Governmental Body received by or agreed to by
or on behalf of the Company relating to Taxation since the Company’s formation.



     3.12 No Material Adverse Change. Since the date of the Balance Sheet, there has not been a
Material Adverse Effect.



     3.13 Pensions. The Company has no, and has never had any retirement benefit schemes, early
retirement schemes, pre-pension schemes or other pension arrangements, relating to the Business
(the “Pension Schemes”), in operation or proposed.



     3.14 Legal Proceedings; Orders.



          (a) There is no pending Proceeding:



               (i) that has been commenced by or against the Company or that otherwise relates to or may
affect the business of, or any of the assets owned or used by, the Company; or



               (ii) that challenges, or that may have the effect of preventing, delaying, making illegal, or
otherwise interfering with, any of the Contemplated Transactions.


To Sellers’ Knowledge, (1) no such Proceeding has been Threatened, and (2) no event has occurred or
circumstance exists that may give rise to or serve as a basis for the commencement of any such
Proceeding. Seller Parties have made available to Purchaser in the Data Room copies of all
pleadings, correspondence, and other documents relating to each Proceeding listed in Part 3.14(a)
of the Seller Parties Disclosure Schedule. The Proceedings listed in Part 3.14(a)


10









 






of the Seller Parties Disclosure Schedule could not reasonably be expected to have a Material
Adverse Effect.




          (b) There is no Order to which the Company, or any of the assets owned or used by the Company,
is subject.



          (c) No officer, director, agent, or employee of the Company is subject to any Order that
prohibits such officer, director, agent, or employee from engaging in or continuing any conduct,
activity, or practice relating to the business of the Company.



          (d) The Company is, and at all times has been, in full compliance with all of the terms and
requirements of each Order to which it, or any of the assets owned or used by it, is or has been
subject.



          (e) No event has occurred or circumstance exists that may constitute or result in (with or
without notice or lapse of time) a violation of or failure to comply with any term or requirement
of any Order to which the Company, or any of the assets owned or used by the Company, is subject.



          (f) The Company has not received, at any time, any notice or other communication (whether oral
or written) from any Governmental Body or any other Person regarding any actual, alleged, possible,
or potential violation of, or failure to comply with, any term or requirement of any Order to which
the Company, or any of the assets owned or used by the Company, is or has been subject.



     3.15 Absence of Certain Changes and Events. Except as set forth in Part 3.15 of the Seller
Parties Disclosure Schedule, since the Balance Sheet Date, the Company has conducted its business
only in the Ordinary Course of Business and none of the following actions or events has occurred:



          (a) any material loss, damage or destruction to, or any material interruption in the use of,
any of the assets of the Company (whether or not covered by insurance) that has had or could
reasonably be expected to have a Material Adverse Effect;



          (b) (i) any declaration, accrual, set aside or payment of any dividend or any other
distribution in respect of any shares of capital stock of the Company, or (ii) any repurchase,
redemption or other acquisition by the Company of any shares of capital stock or other securities;



          (c) any sale, issuance or grant, or authorization of the issuance of, (i) shares or other
securities of the Company, (ii) any option, warrant or right to acquire any shares or any other
securities of the Company, or (iii) any instrument convertible into or exchangeable for shares or
other securities of the Company;



          (d) any amendment or waiver of any of the rights of the Company under any share purchase
agreement;



11









 





          (e) any amendment to any Organizational Document of the Company, any merger, consolidation,
share exchange, business combination, recapitalization, reclassification of shares, share split,
reverse share split or similar transaction involving the Company;



          (f) any creation of any Subsidiary of the Company or acquisition by the Company of any equity
interest or other interest in any other Person;



          (g) any capital expenditure by the Company which, when added to all other capital expenditures
made on behalf of the Company since the Balance Sheet Date, exceeds €10,000 in the aggregate;



          (h) except in the Ordinary Course of Business, any action by the Company to (i) enter into or
suffer any of the assets owned or used by it to become bound by any Material Contract (as defined
in Section 3.16), or (ii) amend or terminate, or waive any material right or remedy under,
any Material Contract;



          (i) any (i) acquisition, lease or license by the Company of any material right or other
material asset from any other Person, (ii) sale or other disposal or lease or license by the
Company of any material right or other material asset to any other Person, or (iii) waiver or
relinquishment by the Company of any right, except for rights or other assets acquired, leased,
licensed or disposed of in the Ordinary Course of Business;



          (j) any write-off as uncollectible, or establishment of any extraordinary reserve with respect
to, any Indebtedness of the Company;



          (k) any pledge of any assets of or sufferance of any of the assets of the Company to become
subject to any Encumbrance, except for Permitted Encumbrances and pledges of immaterial assets made
in the Ordinary Course of Business;



          (l) any (i) loan by the Company to any Person, or (ii) the incurrence or guarantee by the
Company of any Indebtedness by the Company;



          (m) any (i) adoption, establishment, entry into or amendment by the Company of any Pension
Scheme or (ii) payment of any bonus or any profit sharing or similar payment to, or material
increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or
remuneration payable to, any of the directors or officers of the Company;



          (n) any change of the methods of accounting or accounting practices of the Company in any
material respect;



          (o) any material Tax election by the Company;



          (p) any commencement or settlement of any Proceeding by the Company; and



          (q) any agreement or commitment to take any of the actions referred to in clauses (c) through
(p) above.



12









 





     3.16 Contracts; No Defaults.



          (a) Part 3.16(a) of the Seller Parties Disclosure Schedule contains a complete and accurate
list, and Seller Parties have made available to Purchaser in the Data Room true and complete copies
of, each Contract, other instrument or document (including of any amendments) to which the Company
is a party or by which its assets are subject or bound:



               (i) with any director, officer or Affiliate of the Company;



               (ii) evidencing, governing or relating to Indebtedness;



               (iii) not entered into in the Ordinary Course of Business that involves expenditures or
receipts;



               (iv) that in any way purports to restrict the business activity of the Company or any of its
Affiliates or to limit the freedom of the Company or any of its Affiliates to engage in any line of
business or to compete with any Person or in any geographic area or to hire or retain any Person;



               (v) relating to the employment of, or the performance of services by, any employee or
consultant, or pursuant to which the Company is or may become obligated to make any severance,
termination or similar payment to any current or former employee or director; or pursuant to which
the Company is or may become obligated to make any bonus or similar payment (other than payments
constituting base salary) to any current or former employee or director;



               (vi) (A) relating to the acquisition, transfer, development, sharing or license of any
Proprietary Rights (except for any Contract pursuant to which (1) any Proprietary Rights is
licensed to the Company under any third party software license generally available to the public,
or (2) any Proprietary Rights is licensed by the Company to any Person on a non exclusive basis);
or (B) of the type referred to in Section 3.20(d);



               (vii) providing for indemnification of any officer, director, employee or agent;



               (viii) (A) relating to the acquisition, issuance, voting, registration, sale or transfer of
any securities, (B) providing any Person with any preemptive right, right of participation, right
of maintenance or any similar right with respect to any securities, or (C) providing the Company
with any right of first refusal with respect to, or right to repurchase or redeem, any securities;



               (ix) incorporating or relating to any guaranty, any warranty or any indemnity or similar
obligation, except for Contracts substantially identical to the standard forms of end user licenses
made available by Seller Parties to Purchaser in the Data Room;



               (x) relating to any currency hedging;



13









 





               (xi) (A) imposing any confidentiality obligation on the Company or any other Person, or (B)
containing “standstill” or similar provisions;



               (xii) (A) to which any Governmental Body is a party or under which any Governmental Body has
any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body
(including any subcontract or other Contract between the Company and any contractor or
subcontractor to any Governmental Body);



               (xiii) contemplating or involving the payment or delivery of cash or other consideration in an
amount or having a value in excess of €5,000 in the aggregate, or contemplating or involving the
performance of services having a value in excess of €5,000 in the aggregate; and



               (xiv) any other Contract, if a breach of such Contract could reasonably be expected to have a
Material Adverse Effect.



          (b) Each of the foregoing is a “Material Contract.”



               (i) Each Material Contract is valid and in full force and effect, and is enforceable against
the Company in accordance with its terms, subject to bankruptcy and other similar Legal
Requirements of general applicability relating to or affecting creditors’ rights and to general
equity principles.



               (ii) The Company has not violated or breached, or committed any default under, any Material
Contract, except for violations, breaches and defaults that have not had and would not reasonably
be expected to have a Material Adverse Effect; and, to Sellers’ Knowledge, no other Person has
violated or breached, or committed any default under, any Material Contract, except for violations,
breaches and defaults that have not had and would not reasonably be expected to have a Material
Adverse Effect.



               (iii) Except as set forth on Part 3.16(b) of the Seller Parties Disclosure Schedule, to
Sellers’ Knowledge, no event has occurred, and no circumstance or condition exists, that (with or
without notice or lapse of time) will or would reasonably be expected to, (A) result in a violation
or breach of any of the provisions of any Material Contract, (B) give any Person the right to
declare a default or exercise any remedy under any Material Contract, (C) give any Person the right
to receive or require a rebate, chargeback, penalty or change in delivery schedule under any
Material Contract, (D) give any Person the right to accelerate the maturity or performance under
any Material Contract, (E) result in the disclosure, release or delivery of the Company Source
Code, or (F) give any Person the right to cancel, terminate or modify any Material Contract, except
in each such case for defaults, acceleration rights, termination rights and other rights that have
not had and would not reasonably be expected to have a Material Adverse Effect.



               (iv) The Company has not received any notice or other communication regarding any actual or
possible violation or breach of, or default under, any Material Contract, except in each such case
for defaults, acceleration rights, termination rights and other rights that have not had and would
not reasonably be expected to have a Material Adverse Effect.



14









 





     3.17 Insurance.



          (a) Seller Parties have made available to Purchaser in the Data Room:



               (i) true and complete copies of all policies of insurance to which the Company is a party or
under which the Company, or any director of the Company, in his capacity as such, is or has been
covered at any time preceding the date of this Agreement;



               (ii) true and complete copies of all pending applications for policies of insurance; and



               (iii) any statement by the auditor of the Company’s financial statements with regard to the
adequacy of such entity’s coverage or of the reserves for claims.



          (b) The Company:



               (i) has no self-insurance arrangements by or affecting the Company, including any reserves
established thereunder;



               (ii) has not concluded contracts or arrangements, other than a policy of insurance, for the
transfer or sharing of any risk by the Company;



               (iii) has made available to Purchaser in the Data Room all obligations of the Company to third
parties with respect to insurance (including such obligations under leases and service agreements)
and identifies the policy under which such coverage is provided; and



               (iv) has not suffered any loss experience or received any claim under any policy for the
current policy year.



          (c) All policies to which the Company is a party or that provide coverage to the Company, or
any director or officer of the Company in his capacity as such:



               (i) are valid, outstanding, and enforceable;



               (ii) are issued by an insurer that is financially sound and reputable;



               (iii) taken together, provide adequate insurance coverage for the assets and the operations of
the Company for all risks normally insured against by a Person carrying on the same business or
businesses as the Company;



               (iv) are sufficient for compliance with all Legal Requirements and Contracts to which the
Company is a party or by which any of them is bound;



               (v) will continue in full force and effect following the consummation of the Contemplated
Transactions; and



               (vi) do not provide for any retrospective premium adjustment or other experienced-based
liability on the part of the Company.



15









 





          (d) The Company has not received (A) any refusal of coverage or any notice that a defense will
be afforded with reservation of rights, or (B) any notice of cancellation or any other indication
that any insurance policy is no longer in full force or effect or will not be renewed or that the
issuer of any policy is not willing or able to perform its obligations thereunder.



          (e) The Company has paid all premiums due, and has otherwise performed all of its respective
obligations, under each policy to which the Company is a party or that provides coverage to the
Company or director thereof.



          (f) The Company has given notice to the insurer of all claims that may be insured under any
policy provided by such insurer.



     3.18 Environmental Matters.



          (a) The Company is, and at all times has been, in material compliance with, and has not been
and is not in violation of or liable under, any Environmental Law. To Sellers’ Knowledge, there is
no actual order, written notice, or other written communication from, nor has any order, notice, or
other communication been Threatened from (i) any Governmental Body or private citizen, or (ii) the
current or prior owner or operator of any Facilities, of any actual or potential violation or
failure to comply with any Environmental Law, or of any actual or Threatened obligation to
undertake or bear the cost of any Environmental, Health, and Safety Liabilities with respect to any
of the Facilities or any other properties or assets (whether real, personal, or mixed) in which the
Company had an interest, or with respect to any property or Facility at or to which Hazardous
Materials were generated, manufactured, refined, transferred, imported, used, or processed by the
Company, or any other Person for whose conduct they are or may be held responsible, or from which
Hazardous Materials have been transported, treated, stored, handled, transferred, disposed,
recycled, or received.



          (b) There are no pending or, to Sellers’ Knowledge, Threatened claims, Encumbrances, or other
restrictions of any nature, resulting from any Environmental, Health, and Safety Liabilities or
arising under or pursuant to any Environmental Law, with respect to or affecting any of the
Facilities or any other properties and assets (whether real, personal, or mixed) in which the
Company has or had an interest.



          (c) The Company has not received, any citation, directive, inquiry, notice, Order, summons,
warning, or other communication that relates to Hazardous Activity, Hazardous Materials, or any
alleged, actual, or potential violation or failure to comply with any Environmental Law, or of any
alleged, actual, or potential obligation to undertake or bear the cost of any Environmental,
Health, and Safety Liabilities with respect to any of the Facilities or any other properties or
assets (whether real, personal, or mixed) in which the Company had an interest, or with respect to
any property or facility to which Hazardous Materials generated, manufactured, refined,
transferred, imported, used, or processed by the Company, or any other Person for whose conduct
they are or may be held responsible, have been transported, treated, stored, handled, transferred,
disposed, recycled, or received.



16









 





          (d) The Company has no Environmental, Health, and Safety Liabilities with respect to the
Facilities or, with respect to any other properties and assets (whether real, personal, or mixed)
in which the Company (or any predecessor), has or had an interest, or at any property geologically
or hydrologically adjoining the Facilities or any such other property or assets.



          (e) Except as set forth on Part 3.18(e) of the Seller Parties Disclosure Schedule, there are
no Hazardous Materials present on or in the Environment at the Facilities or at any geologically or
hydrologically adjoining property, including any Hazardous Materials contained in barrels, above or
underground storage tanks, landfills, land deposits, dumps, equipment (whether moveable or fixed)
or other containers, either temporary or permanent, and deposited or located in land, water, sumps,
or any other part of the Facilities or such adjoining property, or incorporated into any structure
therein or thereon. The Company has not permitted or conducted any, and to Sellers’ Knowledge
there is no, Hazardous Activity conducted with respect to the Facilities or any other properties or
assets (whether real, personal, or mixed) in which the Company has or had an interest.



          (f) There has been no Release or, to Sellers’ Knowledge, Threat of Release, of any Hazardous
Materials at or from the Facilities or at any other locations where any Hazardous Materials were
generated, manufactured, refined, transferred, produced, imported, used, or processed from or by
the Facilities, or from or by any other properties and assets (whether real, personal, or mixed) in
which the Company has or had an interest, or any geologically or hydrologically adjoining property.



          (g) The Company has delivered to Purchaser true and complete copies and results of any
reports, studies, analyses, tests, or monitoring possessed or initiated by the Company pertaining
to Hazardous Materials or Hazardous Activities in, on, or under the Facilities, or concerning
compliance by the Company with Environmental Laws.



     3.19 Employees. The Company has no employees, nor has it ever had any employees, prior to the
Closing Date. The Company is not a party to any collective labour agreement.



     3.20 Intellectual Property.



          (a) With respect to Proprietary Rights of the Company:



               (i) Part 3.20(a)(i)(A) of the Seller Parties Disclosure Schedule lists all of the Patents
owned by the Company, setting forth in each case the jurisdictions in which Issued Patents have
been issued and Patent Applications have been filed. Part 3.20(a)(i)(B) of the Seller Parties
Disclosure Schedule lists all of the Patents in which the Company has any right, title or interest
(including without limitation interest acquired through a license or other right to use) other than
those owned by the Company, setting forth in each case the jurisdictions in which the Issued
Patents have been issued and Patent Applications have been filed, and the nature of the right,
title or interest held by the Company. Except as set forth on Part 3.20(a)(i)(A) of the Seller
Parties Disclosure Schedule, the Company has obtained a Patent with respect to each Product;



               (ii) Part 3.20(a)(ii)(A) of the Seller Parties Disclosure Schedule lists all of the Registered
Trademarks owned by the Company, setting forth in each case the jurisdictions in which Registered
Trademarks have been registered and trademark applications for registration



17









 







have been filed. Part 3.20(a)(ii)(B) of the Seller Parties Disclosure Schedule lists all of
the Registered Trademarks in which the Company has any right, title or interest, other than those
owned by the Company (including without limitation interest acquired through a license or other
right to use), setting forth in each case the jurisdictions in which Registered Trademarks have
been registered and trademark applications for registration have been filed, and the nature of the
right, title or interest held by the Company;



               (iii) Part 3.20(a)(iii)(A) of the Seller Parties Disclosure Schedule lists all of the
Registered Copyrights owned by the Company, setting forth in each case the jurisdictions in which
Copyrights have been registered and applications for copyright registration have been filed. Part
3.20(a)(iii)(B) of the Seller Parties Disclosure Schedule lists all of the Registered Copyrights in
which the Company has any right, title or interest, other than those owned by the Company
(including without limitation interest acquired through a license or other right to use), setting
forth in each case the jurisdictions in which the Registered Copyrights have been registered and
applications for copyright registration have been filed, and the nature of the right, title or
interest held by the Company; and



               (iv) The Company has good and valid title to all of the Company Proprietary Rights identified
in Parts 3.20(a)(i)(A), 3.20(a)(ii)(A) and 3.20(a)(iii)(A) of the Seller Parties Disclosure
Schedule and all Trade Secrets owned by the Company, free and clear of all Encumbrances, except for
Permitted Encumbrances. The Company has a valid right to use, license and otherwise exploit all
Proprietary Rights identified in Parts 3.20(a)(i)(B), 3.20(a)(ii)(B), and 3.20(a)(iii)(B) of the
Seller Parties Disclosure Schedule and all Trade Secrets used by the Company, other than those
owned by the Company (including without limitation interest acquired through a license or other
right to use). Except as set forth on Part 3.20(a)(iv) of the Seller Parties Disclosure Schedule,
the Company Proprietary Rights identified in Part 3.20(a) of the Seller Parties Disclosure
Schedule, together with the Trade Secrets used by the Company, constitutes (A) all Proprietary
Rights used or proposed as of the Effective Date to be used in the business of the Company as
conducted prior to or on the Effective Date or as proposed to be conducted by Company as of the
Effective Date and (B) all Proprietary Rights necessary or appropriate to make, use, offer for
sale, sell or import the Product(s).



          (b) Part 3.20(b) of the Seller Parties Disclosure Schedule lists all oral and written
contracts, agreements, licenses and other arrangements relating to the Company Proprietary Rights
or the Product(s), as follows:



               (i) Part 3.20(b)(i) lists: (A) any agreement granting any right to make, have made,
manufacture, use, sell, offer to sell, import, export, or otherwise distribute any Product(s), with
or without the right to sublicense the same, on an exclusive basis; (B) any license of Proprietary
Rights to or from the Company, with or without the right to sublicense the same, on an exclusive
basis; (C) joint development agreements; (D) any agreement by which the Company grants any
ownership right to the Company Proprietary Rights owned by the Company; (E) any agreement under
which the Company undertakes any ongoing royalty or payment obligations with respect to an Company
Proprietary Right; (F) any agreement under which the Company grants an option relating to the
Company Proprietary Rights; (G) any agreement under which any party is granted any right to access
Company Source Code or to use Company Source Code to create derivative works of the Products; (H)
any Agreement pursuant



18









 







to which the Company has deposited or is required to deposit with an escrow agent or any other
Person the Company Source Code, and further describes whether the execution of this Agreement or
the consummation of any of the transactions contemplated hereby could reasonably be expected to
result in the release or disclosure of the Company Source Code; and (I) any agreement or other
arrangement limiting any of the Company’s ability to transact business in any market, field or
geographical area or with any Person, or that restricts the use, transfer, delivery or licensing of
Company Proprietary Rights (or any tangible embodiment thereof);



               (ii) Part 3.20(b)(ii) of the Seller Parties Disclosure Schedule lists all licenses,
sublicenses and other agreements to which the Company is a party and pursuant to which the Company
is authorized to use any Proprietary Rights owned by any Person, excluding standardized
nonexclusive licenses for “off the shelf” or other software widely available through regular
commercial distribution channels on standard terms and conditions and were obtained by the Company
in the Ordinary Course of Business. Except as set forth in 3.20(b)(iii) of the Seller Parties
Disclosure Schedule, there are no royalties, fees or other amounts payable by the Company to any
Person by reason of the ownership, use, sale or disposition of Company Proprietary Rights;



               (iii) Except as set forth in Part 3.20(b)(iii) of the Seller Parties Disclosure Schedule, the
Company has not entered into any written or oral contract, agreement, license or other arrangement
to indemnify any other person against any charge of infringement of the Company Proprietary Rights,
other than indemnification provisions contained in standard sales or agreements to customers or end
users arising in the Ordinary Course of Business, the forms of which have been delivered to
Purchaser or its counsel;



               (iv) Part 3.20(b)(iv) of the Seller Parties Disclosure Schedule lists any Product that
contains any software that may be subject to an open source or general public license, a
description of such Product and the open source or general public license applicable to such
Product. Except as set forth in Part 3.20(b)(iv) of the Seller Parties Disclosure Schedule, none
of the Products contains any software that may be subject to an open source or general public
license; and



               (v) There are no outstanding obligations other than as disclosed in Part 3.20(b) of the Seller
Parties Disclosure Schedule to pay any amounts or provide other consideration to any other Person
in connection with the Company Proprietary Rights (or any tangible embodiment thereof).



          (c) Except as set forth in Part 3.20(c) of the Seller Parties Disclosure Schedule:



               (i) The Company does not jointly own, license or claim any right, title or interest with any
other Person of the Company Proprietary Rights. No current or former officer, manager, director,
stockholder, member, employee, consultant or independent contractor of the Company has any right,
title or interest in, to or under the Company Proprietary Rights in which the Company has (or
purports to have) any right, title or interest that has not been exclusively assigned, transferred
or licensed to Company;



19









 





               (ii) No Person has asserted or Threatened a claim, nor, to Sellers’ Knowledge, are there any
facts which could give rise to a claim, which would adversely affect the Company’s ownership rights
to, or rights under, the Company Proprietary Rights, or any contract, agreement, license or and
other arrangement under which the Company claims any right, title or interest under the Company
Proprietary Rights or restricts in any material respect the use, transfer, delivery or licensing by
the Company of the Company Proprietary Rights or Products;



               (iii) The Company is not subject to any proceeding or outstanding decree, order, judgment or
stipulation restricting in any manner the use, transfer or licensing of the Company Proprietary
Rights by the Company, the use, transfer or licensing of any Product by the Company, or which may
affect the validity, use or enforceability of the Company Proprietary Rights; and



               (iv) To Sellers’ Knowledge, no Company Proprietary Rights have been infringed or
misappropriated by any Person and there is no unauthorized use, disclosure or misappropriation of
the Company Proprietary Rights by any current or former officer, manager, director, stockholder,
member, employee, consultant or independent contractor of the Company.



          (d) Except as set forth in Part 3.20(d) of the Seller Parties Disclosure Schedule:



               (i) all Patents in which the Company has any right, title or interest have been duly filed or
registered (as applicable) with the applicable Governmental Body, and maintained, including the
submission of all necessary filings and fees in accordance with the legal and administrative
requirements of the appropriate Governmental Body, and have not lapsed, expired or been abandoned;



               (ii) (A) all Patents in which the Company has any right, title or interest, disclose
patentable subject matter, have been prosecuted in good faith and are in good standing, (B) there
are no inventorship challenges to any such Patents, (C) no interference has been declared or
provoked relating to any such Patents, (D) all Issued Patents in which the Company has any right,
title or interest are valid and enforceable, and (E) all maintenance and annual fees have been
fully paid, and all fees paid during prosecution and after issuance of any patent have been paid in
the correct entity status amounts, with respect to Issued Patents in which the Company has any
right, title or interest;



               (iii) To Sellers’ Knowledge, there is no material fact with respect to any Patent Application
in which the Company has any right, title or interest that would (A) preclude the issuance of an
Issued Patent from such Patent Application (with valid claims no less broad in scope than the
claims as currently pending in such Patent Application), (B) render any Issued Patent issuing from
such Patent Application invalid or unenforceable, or (C) cause the claims included in such Patent
Application to be narrowed; and



               (iv) No Person has asserted or Threatened a claim, nor, to Sellers’ Knowledge, are there any
facts which could give rise to a claim, that the Product (or the



20









 







Company Proprietary Right embodied in the Product) infringes or misappropriates any third
party Proprietary Rights.



          (e) The Company has taken all commercially reasonable and customary measures and precautions
necessary to protect and maintain the confidentiality of all Trade Secrets in which the Company has
any right, title or interest and otherwise to maintain and protect the full value of all such Trade
Secrets. Without limiting the generality of the foregoing, except as set forth in Part 3.20(e) of
the Seller Parties Disclosure Schedule:



               (i) All current and former consultants and independent contractors to the Company or to any
entity that assigned Company Proprietary Rights to the Company, including but not limited to Xpand,
who are or were involved in, or who have contributed to, the creation or development of the Company
Proprietary Rights have executed and delivered to the Company an agreement (containing no
exceptions to or exclusions from the scope of its coverage) that is substantially identical to the
form of Nondisclosure Agreement made available to Purchaser in the Data Room. Each current and
former consultant or independent contractor of the Company is obligated to assist the Company with
respect to the protection of the Company Proprietary Rights. No current or former employee,
officer, director, stockholder, consultant or independent contractor to the Company has any right,
claim or interest in or with respect to the Company Proprietary Rights; and



               (ii) Except as disclosed as required under Section 3.20(b)(i) above, the Company has
not disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow
agent or other Person, of the Company Source Code. No event has occurred, and no circumstance or
condition exists, that (with or without notice or lapse of time) will, or would reasonably be
expected to, result in the disclosure or delivery to any Person of the Company Source Code.



          (f) Except with respect to demonstration or trial copies, no product, system, program or
software module designed, developed, sold, licensed or otherwise made available by the Company to
any Person, including without limitation the Product(s), contains any “back door,” “time bomb,”
“Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware
components designed to permit unauthorized access or to disable or erase software, hardware or data
without the consent of the user.



     3.21 Certain Payments. Neither the Company or any director, officer, agent, or employee of
the Company, or any other Person associated with or acting for or on behalf of the Company, has
directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment,
kickback, or other payment to any Person, private or public, regardless of form, whether in money,
property, or services in violation of any Legal Requirement or (b) established or maintained any
fund or asset that has not been recorded in the books and records of the Company.



     3.22 Authorizations; Regulatory Compliance. Part 3.22 of the Seller Parties Disclosure
Schedule sets forth a complete list of all material approvals, clearances, authorizations, licenses
or registrations required by any Governmental Body in the European Union or in the Netherlands
having regulatory authority or jurisdiction over the Business and the



21









 







Products, whether required of the Company or, to the Sellers’ Knowledge, required of any of
its suppliers or manufacturers. Except as set forth on Part 3.22 of the Seller Parties Disclosure
Schedule:



          (a) The Business and the Products are in compliance in all material respects with all current
applicable laws, statutes, rules, regulations, ordinances, standards, guidelines or orders
administered, issued or enforced by the FDA or any other Governmental Body having regulatory
authority or jurisdiction over the Business and the Products.



          (b) The Company and, to Sellers’ Knowledge, its suppliers and manufacturers are in compliance
in all material respects with all applicable laws, statutes, rules, regulations, ordinances,
standards, guidelines or orders administered, issued or enforced by the FDA or any other
Governmental Body, relating to the methods and materials used in, and the facilities and controls
used for, the design, manufacture, processing, packaging, labeling, storage and distribution of the
Products and all Products have been processed, manufactured, packaged, labeled, stored, handled and
distributed by the Company in compliance with the quality control procedures and specifications
made available by the Company to Purchaser in the Data Room and all applicable laws, statutes,
rules, regulations, ordinances, standards, guidelines or orders administered, issued or enforced by
the FDA or any other Governmental Body. Further, no action has been taken by any Governmental Body
or, to Sellers’ Knowledge, is in the process of being taken that will slow, halt or enjoin the
manufacturing of the Products or the operation of the Business or subject the manufacturing of the
Products or the Business to regulatory enforcement action.



          (c) The Company has not received and, to Sellers’ Knowledge, its manufacturers or suppliers
have not received from the FDA or any other Governmental Body, and to Sellers’ Knowledge, there are
no facts which would furnish any reasonable basis for, any notice of adverse findings, FDA warning
letters, regulatory letters, notices of violations, warning letters, Section 305 criminal
proceeding notices under the FDCA or other similar communication from the FDA or other Governmental
Body, and there have been no seizures conducted or, to Sellers’ Knowledge, Threatened by the FDA or
other Governmental Body, and no recalls, market withdrawals, field notifications, notifications of
misbranding or adulteration, or safety alerts conducted, requested or Threatened by the FDA or
other Governmental Body relating to the Business or to the Products.



          (d) Except as set forth on Part 3.22(d) of the Seller Parties Disclosure Schedule, for each of
the Products, no pre-market notification (“510(k)”) submission is required and no 510(k) submission
has been filed with the FDA or any other Governmental Body on or prior to Closing Date.



          (e) To Sellers’ Knowledge, there are no currently existing facts that will (i) cause the
withdrawal or recall, or require suspension or additional approvals or clearances, of any Products
currently sold by the Company, (ii) require a change in the manufacturing, marketing
classification, labeling or intended use of any such Products, or (iii) require the termination or
suspension of marketing of any such Products.



22









 





          (f) Except as set forth on Part 3.22 (f) of the Seller Parties Disclosure Schedule: (i) none
of the Products manufactured, marketed or sold by the Company have been recalled or subject to a
field safety notification (whether voluntarily or otherwise); (ii) to Sellers’ Knowledge, none of
the Products manufactured, marketed or sold by the Company’s manufacturers and suppliers on the
Company’s behalf has been recalled or subject to a field safety notification (whether voluntary or
otherwise); and (iii) Seller Parties have not received written notice (whether completed or
pending) of any proceeding seeking recall, suspension or seizure of any Products sold or proposed
to be sold by the Company.



          (g) The Company has submitted to the FDA all Biological Product Deviation Reports relating to
performance issues that could lead to serious injury or death that the Company has been required to
submit under applicable federal statutes, rules, regulations, standards, guides or orders
administered or promulgated by the FDA related to the Products. To Sellers’ Knowledge, except as
set forth on Part 3.22(g) of the Seller Parties Disclosure Schedule, no circumstances have arisen
that would require Company to submit a Biological Product Deviation Report to the FDA.



     3.23 Products; Product Liability.



          (a) Each of the Products (including all Finished Inventory): (i) is, and at all times up to
and including the sale thereof has been processed, manufactured, packaged, labeled, stored,
handled, distributed, shipped, marketed and promoted, and in all other respects has been, in
compliance with all applicable laws, statutes, rules, regulations, ordinances or orders
administered, issued or enforced by the FDA or any other governmental entity, and (ii) is, and at
all relevant times has conformed in all material respects to all specifications and any promises,
warranties or affirmations of fact made in all regulatory filings or set forth in any regulatory
approvals, authorizations or clearances pertaining thereto or made on the container or label for
such Product or in connection with its sale. There is no design or manufacturing defect with
respect to the Products.



          (b) Part 3.23(b) of the Seller Parties Disclosure Schedule sets forth the forms of the
Company’s service or product warranties that are currently applicable to services or merchandise
related to the Business (including, without limitation, the Products). Except as set forth on Part
3.23(b) of the Seller Parties Disclosure Schedule, there are no existing or, to Sellers’ Knowledge,
Threatened, claims against the Company for services or merchandise related to the Business which
are defective or fail to meet any service or product warranties other than in the Ordinary Course
of Business consistent with past experience. The Company has not incurred liability arising out of
any injury to individuals as a result of the ownership, possession, or use of any Product and, to
Sellers’ Knowledge, there has been no inquiry or investigation made in respect thereof by any
Governmental Body.



     3.24 Customers and Suppliers. The Company does not currently have customers, nor has it ever
had any customers prior to the Closing Date. Part 3.24 of the Seller Parties Disclosure Schedule
identifies the Business’ ten (10) largest suppliers (measured by euro volume in each case) during
the period from the formation of the Company through December 31, 2008, showing with respect to
each, the name and address, euro volume and nature of the relationship. The Company is not
required to provide any bonding or other financial security arrangements in



23









 







connection with any of the transactions with its suppliers. Seller Parties have not received
any communication of any intention of any supplier identified on Part 3.24 of the Seller Parties
Disclosure Schedule to discontinue its relationship as a supplier of, or materially reduce its
sales to the Company (or, post- Closing, from or to Purchaser).



     3.25 Capital Expenditures. Set forth on Part 3.25 of the Seller Parties Disclosure Schedule
is a list of the Company’s approved capital expenditure projects related to the Business including:
(i) projects which have been commenced but are not yet completed; (ii) projects which have not been
commenced; and (iii) projects which have been completed in respect of which payment has been made,
since the formation of the Company.



     3.26 Relationships with Affiliates. Neither Sellers nor, to Sellers’ Knowledge, any
Affiliate of any Seller has or had any interest in any property (whether real, personal, or mixed
and whether tangible or intangible), used in or pertaining to the Company’s businesses. Neither
Sellers nor, to Sellers’ Knowledge, any Affiliate of any Seller owns or has owned (of record or as
a beneficial owner) an equity interest or any other financial or profit interest in, a Person that
has (i) had business dealings or a material financial interest in any transaction with the Company,
or (ii) engaged in competition with the Company with respect to any line of the products or
services of the Company in any market presently served by the Company. Except as set forth in Part
3.26 of the Seller Parties Disclosure Schedule, neither Seller nor, to Sellers’ Knowledge, any
Affiliate of Sellers is a party to any Contract with, or has any claim or right against, the
Company.



     3.27 Brokers. No broker, finder, investment banker or other Person is entitled to any
brokerage, finder’s or other fee or commission in connection with the Contemplated Transactions
based upon arrangements made by or on behalf of the Company.



     3.28 Disclosure. Except as set forth in Part 3.28 of the Seller Parties Disclosure Schedule:



          (a) No representation or warranty of Seller Parties in this Agreement and no statement in the
Disclosure Schedule omits to state a material fact necessary to make the statements herein or
therein, in light of the circumstances in which they were made, not misleading.



          (b) There is no fact known to Seller Parties that has specific application to Seller Parties
(other than general economic or industry conditions) and that materially adversely affects or, as
far as Seller Parties can reasonably foresee, materially Threatens, the assets, business,
prospects, financial condition, or results of operations of the Company (on a consolidated basis)
that has not been set forth in this Agreement or the Seller Parties Disclosure Schedule.



4. REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser represents and warrants to Seller Parties as follows:



     4.1 Organization and Good Standing. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware. Purchaser has



24









 







full corporate power and authority to execute and deliver this Agreement and the Closing
Documents, to perform its obligations hereunder and thereunder and to conduct its business as it is
now being conducted and to own or use the properties and assets that it purports to own or use.
Purchaser is duly qualified to do business as a foreign corporation and is in good standing under
the laws of each state or other jurisdiction in which either the ownership or use of the properties
owned or used by it, or the nature of the activities conducted by it, requires such qualification,
except whether the failure to do so would not have a material adverse effect on Purchaser’s ability
to perform its obligations hereunder.



     4.2 Authority; No Conflict.



          (a) This Agreement and the Closing Documents have been authorized by Purchaser’s board of
directors and, to the extent required, the stockholders of Purchaser. This Agreement constitutes
the legal, valid, and binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms, subject to bankruptcy and other similar Legal Requirements of general applicability
relating to or affecting creditors’ rights and to general equity principles. Upon the execution
and delivery by Purchaser of the Closing Documents, the Closing Documents will constitute the
legal, valid, and binding obligations of Purchaser, enforceable against Purchaser in accordance
with their respective terms, enforceable against Purchaser in accordance with their respective
terms, subject to bankruptcy and other similar Legal Requirements of general applicability relating
to or affecting creditors’ rights and to general equity principles.



          (b) Except as set forth in Part 4.2 of the Purchaser Disclosure Schedule, or as would not have
a material adverse effect on Purchaser’s ability to perform its obligations hereunder, neither the
execution and delivery of this Agreement by Purchaser nor the consummation or performance of any of
the Contemplated Transactions by Purchaser will directly or indirectly (with or without notice or
lapse of time):



               (i) contravene, conflict with or result in a violation of (A) any provision of Purchaser’s
Organizational Documents or (B) any resolution adopted by the board of directors or the
stockholders of Purchaser; or



               (ii) contravene, conflict with, or result in a violation of, or give any Governmental Body or
Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or
obtain any relief under, any Legal Requirement or Order to which Purchaser, or any of the assets
owned or used by Purchaser, may be subject.


Except as set forth in Part 4.2 of the Purchaser Disclosure Schedule, Purchaser is not and will not
be required to obtain any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated Transactions.




     4.3 Certain Proceedings. There is no Action or Proceeding pending or, to the knowledge of
Purchaser, Threatened in writing, against or affecting Purchaser that could reasonably be expected
to affect Purchaser’s ability to challenge, or may have the effect of preventing, delaying, making
illegal, or otherwise interfering with the consummation of the



25









 







Contemplated Transactions. To Purchaser’s knowledge, no such Proceeding has been Threatened.



     4.4 Brokers. Purchaser and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar
payment in connection with this Agreement and will indemnify and hold Sellers harmless from any
such payment alleged to be due by or through Purchaser as a result of the action of Purchaser or
its officers or agents.



     4.5 No Other Representations. Purchaser acknowledges that the Company does not make any
representation or warranty with respect to any projections, estimates or budgets delivered to or
made available to Purchaser of future revenues, future results of operations (or any component
thereof), future cash flows or future financial condition (or any component thereof) of the Company
or the future business and operations of the Company.



5. CONDUCT OF BUSINESS DURING THE OPTION PERIOD




     5.1 Conduct of Business of the Company. The Company covenants and agrees that, during the
period beginning on the date hereof and ending on the termination or expiration of the Option
Period (as set forth in the Option Purchase Agreement), unless the Supervisory Board of Directors
(including the director designated by Purchaser) shall approve or the Purchaser Representative (as
defined below) shall otherwise consent in writing, the business of the Company shall be conducted
only in, and the Company shall not take any action except in, the Ordinary Course of Business and
in a manner consistent with past practice; and the Company shall use commercially reasonable
efforts to preserve intact its business organization and to preserve the current relationships of
the Company with customers, suppliers and other persons with which the Company has significant
business relations. Without limiting the foregoing, the Company shall not do, or enter into any
agreement or understanding to do, any of the following prior to the expiration or termination of
the Option Period without providing notice of such to a designated representative of Purchaser (the
“Purchaser Representative”) and obtaining the approval of the Supervisory Board of Directors
(including the director designated by Purchaser) or the prior written consent of Purchaser
Representative. The Purchaser Representative shall use commercially reasonable efforts to respond
to such request for written consent within five (5) Business Days of Purchaser’s receipt of the
Company’s notice. The Purchaser Representative shall initially be Jason Hannon, who shall serve
until Purchaser designates another individual upon two (2) Business Days prior written notice to
the Company in accordance with Section 9.2 hereof. Each of the clauses below shall
constitute an independent obligation of the Company, not qualified by any other such clause, and
shall be deemed to be cumulative:



          (a) Organizational Documents. Cause or permit any amendments to its Articles of Association
or other organizational documents to the extent such amendment would reasonably be expected to
adversely affect the Purchaser.



          (b) Dividends; Repurchases; Changes in Capital Stock. Except as otherwise specifically
contemplated in this Agreement (i) declare or pay any dividends on, or make any other distributions
(whether in cash, stock or property) in respect of, any of its capital stock, (ii) issue or
authorize the issuance of any other securities in respect of, in lieu of or in



26









 







substitution for shares of its outstanding capital stock, or (iii) repurchase or otherwise
acquire, directly or indirectly, any shares of its capital stock (other than pursuant to repurchase
rights of the Company that permit the Company to repurchase securities from the holders thereof at
the original purchase price therefor in connection with the termination of services of such holder
as an employee of or consultant to the Company);



          (c) Stock Option Plans, Warrants, Etc. Grant any options, warrants or other rights to
directly or indirectly acquire shares of capital stock of the Company;



          (d) Material Contracts. Enter into any Material Contract or commitment, or violate, amend or
otherwise modify or waive (other than in the Ordinary Course of Business) any of the terms of any
Material Contract other than Contracts that are entered into in the Ordinary Course of Business;



          (e) Issuance of Securities. Issue, deliver or sell or authorize or propose the issuance,
delivery or sale of, any shares of its capital stock or securities or other instruments (including
notes or other evidences of Indebtedness) convertible into, or subscriptions, rights, warrants or
options to acquire, or other agreements or commitments of any character obligating it to issue any
such shares or other convertible instruments or securities;



          (f) Company Proprietary Rights. Other than pursuant to the Distribution Agreement or the sale
of the Company’s inventory in the Ordinary Course of Business:



               (i) (A) sell, license, assign or transfer any Company Proprietary Rights or other properties
or assets which are material, individually or in the aggregate, when taken as a whole, to any other
person other than Purchaser, or (B) except for Permitted Encumbrances, encumber any Company
Proprietary Rights; or



               (ii) License, or otherwise acquire, any Company Proprietary Rights not owned by the Company or
Purchaser from any third party on terms requiring any royalty payments;



          (g) Marketing or Other Rights. Except with the consent of Purchaser, such consent not to be
unreasonably withheld, enter into or amend, in any material respect, any agreement pursuant to
which any other party is granted manufacturing, marketing or other development or distribution
rights of any type or scope with respect to any of the Company’s products or technology;



          (h) Indebtedness. Except for Indebtedness incurred pursuant to the Facility Agreement and
trade payables incurred and paid in the Ordinary Course of Business, incur any Indebtedness or
guarantee any such Indebtedness or issue or sell any debt securities or guarantee any debt
securities of others;



          (i) Repayment of Indebtedness. Except for Indebtedness repaid pursuant to the Facility
Agreement, repay in cash or repurchase for cash any Indebtedness to any Affiliate of the Company,
or any securities representing Indebtedness convertible into capital stock of the Company;



27









 





          (j) Leases. Enter into any operating lease with an annual commitment in excess of €10,000;



          (k) Insurance. Materially reduce the amount of any material insurance coverage provided by
insurance policies in effect on the Effective Date;



          (l) Termination or Waiver. Terminate or waive any right that has material value to the
Company, other than in the Ordinary Course of Business;



          (m) Employee Benefit Plans; New Hires; Pay Increases. Adopt or amend any employee benefit
plan or arrangement, pay any special bonuses or special remuneration to any employee or director
(other than pre-existing obligations) which in the aggregate exceed 20% of the Company’s
then-current annual aggregate salary obligation, or, except in the Ordinary Course of Business
consistent with past practices, increase the salaries, bonuses or wage rates of its employees;



          (n) Severance Arrangements. Adopt or approve any severance, bonus or benefit acceleration
arrangements (whether individually or more broadly) that could be triggered after the consummation
of the Acquisition;



          (o) Lawsuits. Commence a lawsuit other than (i) for the routine collection of bills, (ii) in
such cases where it in good faith determines that failure to commence suit would result in the
material impairment of a valuable aspect of its business, provided, that it consults with
Purchaser prior to the filing of such a suit, or (iii) against Purchaser with respect to this
Agreement or the Closing Documents;



          (p) Acquisitions. Acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets or capital stock of, or by any other manner, any
business or any corporation, partnership, association or other business organization or division
thereof which are material, individually or in the aggregate, to the Company’s business, taken as a
whole;



          (q) Taxes. Make or change any election in respect of Taxes, adopt or request permission of
any Taxation Authority to change any accounting method in respect of Taxes, enter into any closing
agreement in respect of Taxes, settle any claim or assessment in respect of Taxes, surrender or
allow to expire any right to claim a refund of Taxes, consent to any extension or waiver of the
limitation period applicable to any claim or assessment in respect of Taxes, or take (or permit any
Subsidiary to take) any such actions with respect to any Subsidiary;



          (r) Other Transactions. Except for an Acquisition pursuant to the Option Purchase Agreement,
merge or consolidate with any entity, or liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction;



          (s) Proprietary Inventions Agreements. Hire or employ, any employee or consultant having
access to confidential or proprietary information of the Company unless such employee or consultant
enters into, or has entered into, a proprietary information and inventions agreement or a
confidentiality agreement, with the Company in the form of Exhibit E attached



28









 







hereto, or amend or otherwise modify, or grant a waiver under, any such confidentiality or
proprietary information agreement with any such person;



          (t) Related Party Transactions. Enter into any transaction with any director, officer,
employee, significant stockholder or family member of or consultant to any such person, corporation
or other entity of which any such person beneficially owns 10% or more of the equity interests or
has 10% or more of the voting power, or Subsidiary or Affiliate of the Company, except (i) as
approved by a majority of the disinterested directors of the Company on terms and conditions which
are fair and reasonable to the Company and no less favorable to the Company as could be obtained
from a third party on an arms-length basis and (ii) transactions with Purchaser;



          (u) Principal Business. Engage in any business other than the Business;



          (v) Other Activities. Knowingly engage in any other activity which could reasonably be
expected to (i) materially impair the ability of Purchaser to exercise its Call Option (as defined
in the Option Purchase Agreement) or (ii) materially impair the ability of Purchaser or the Company
to consummate the Acquisition; or



          (w) Subsidiaries. Permit any Subsidiary of the Company to take any action from which the
Company would be prohibited pursuant to this Section 5.1.



     5.2 Clinical Trials. From time to time and at the reasonable request of Purchaser, the
Company shall provide Purchaser with updates concerning the progress of and developments in and
results of the Company’s clinical trials. In addition, the Company shall (a) invite Purchaser to
participate in all meetings with clinical investigators, (b) make available to Purchaser copies of
all written communication provided to and from such investigators, and (c) make available to
Purchasers copies of any interim data and data analysis generated with respect to its clinical
trials. At least thirty (30) days prior to finalizing such protocols or delivering drafts or copies
thereof to institutional review boards or regulatory authorities, selecting such clinical
investigators and engaging in such clinical trials, the Company shall furnish to Purchaser for its
review and comment and shall consult with Purchaser regarding, (i) clinical trial protocols, (ii)
lists of clinical investigators, (iii) copies of all forms of clinical investigator contracts, and
(iv) patient data forms for any of its proposed clinical trials. All information obtained by
Purchaser pursuant to this Section 5.2 shall be kept confidential in accordance with
Section 6.3 of this Agreement to the extent it constitutes “Confidential Information”
thereunder.



     5.3 FDA Approval Matters.



     (a) The Company shall notify Purchaser of any material communications with the FDA or any
corollary entity in any other jurisdiction, including outside of the United States of America, or
any other Governmental Body, whether written or oral, as soon as reasonably practicable, but in no
event later than five (5) Business Days after the receipt of such communication, and within such
same time period, the Company shall provide Purchaser with copies of any such written
communications and written summaries of any such oral communications.




29











 





     (b) From time to time and at the reasonable request of Purchaser, the Company shall provide
Purchaser with updates concerning the progress of the Company’s regulatory filings and strategy for
obtaining necessary regulatory approvals to market and sell the products of the Company. The
Company shall furnish to Purchaser for its review and comment, and shall consult with Purchaser
regarding, any material regulatory filing prior to finalizing such filings and delivering them to
the relevant regulatory authorities.



     5.4 Payment of Taxes, Etc. The Company shall, and shall cause each of its Subsidiaries to,
timely file all of its Tax Returns as they become due (taking all timely filed proper extension
requests into account), all such Tax Returns to be true, correct and complete, and the Company
shall, and shall cause each of its Subsidiaries to, timely pay and discharge as they become due and
payable all Taxes (other than Taxes contested in good faith by the Company or its Subsidiaries in
appropriate proceedings), assessments and other governmental charges or levies imposed upon it or
its income or any of its property as well as all claims of any kind (including claims for labor,
materials and supplies) that, if unpaid, may by law become an Encumbrance, other than a Permitted
Encumbrance.



6. ADDITIONAL AGREEMENTS




     6.1 Access to Properties and Information. At all times until the earlier of (i) the
expiration of the Option Period and (ii) the consummation of the Acquisition, the Company will
afford to Purchaser and its authorized representatives, upon reasonable notice, reasonable access
during normal business hours to all properties, books, records, contracts and documents of the
Company as Purchaser and such authorized representatives may reasonably request and a complete
opportunity to make such investigations as Purchaser and such authorized representatives reasonably
request, and the Company will furnish or cause to be furnished to Purchaser and its authorized
representatives all such information with respect to the affairs and businesses of the Company as
they may reasonably request. All information obtained by Purchaser pursuant to this Section
6.1 shall be kept confidential in accordance with Section 6.3 of this Agreement to the
extent it constitutes “Confidential Information” thereunder. No investigation pursuant to this
Section 6.1 shall affect any representation or warranty in this Agreement or the Closing
Documents of any party hereto or thereto or any condition to the obligations of the parties hereto
or thereto.



     6.2 Notification of Certain Matters. Each of the parties to this Agreement shall give prompt
notice to the other parties of the occurrence or non-occurrence of any event which would likely
cause any representation or warranty made by such party herein to be untrue or inaccurate or any
covenant, condition or agreement contained herein not to be complied with or satisfied
(provided, however, that, any such disclosure shall not in any way be deemed to
amend, modify or in any way affect the representations, warranties and covenants made by any party
in or pursuant to this Agreement).



     6.3 Confidentiality; Publicity. Except as may be required by law or as otherwise permitted or
expressly contemplated herein, no party hereto or their respective Affiliates, employees, agents
and representatives shall disclose to any third party this Agreement, the subject matter or terms
hereof or (except with regard to disclosures by Purchaser of confidential information of the
Company following the Closing) any confidential information or other



30









 







proprietary knowledge concerning the business or affairs of any other party (“Confidential
Information”) which it may have acquired from such party in the course of pursuing the transactions
contemplated by this Agreement without the prior consent of the other parties hereto;
provided, that any information that is otherwise publicly available, without breach of this
provision, or has been obtained from a third party without a breach of such third party’s duties,
shall not be deemed confidential information. No press release or other public announcement
related to this Agreement or the transactions contemplated hereby shall be issued by any party
without the prior written consent of the other parties hereto.



     6.4 Use of Proceeds from the Facility. Unless set forth in the Operating Budget or otherwise
approved by Board of Directors (including the director designated by Purchaser), the proceeds from
the Facility Agreement may only be used (a) to fund development of the Company Proprietary Rights
for purposes of achieving the Milestones (as defined in the Option Purchase Agreement), or (b) for
purposes of fulfilling its obligations under the Distribution Agreement (as defined below).



     6.5 Monthly and Quarterly Statements. For so long as Purchaser owns at least twenty percent
(20%) of the outstanding capital stock of the Company on a fully-diluted basis, (a) within four (4)
Business Days of the end of each month, the Company agrees to prepare and furnish to Purchaser (by
mail, facsimile or e-mail) unaudited Financial Statements for the applicable month, and (b) within
four (4) Business Days of the end of each quarter, the Company agrees to prepare and furnish to
Purchaser (by mail, facsimile or e-mail) unaudited Financial Statements for the applicable quarter.
The Financial Statements shall fairly present in all material respects, in conformity with GAAP,
the financial condition and the results of operations, changes in stockholders’ equity, and cash
flow of the Company as at the respective dates of and for the periods referred to in the Financial
Statements. The Financial Statements shall reflect the consistent application of such accounting
principles throughout the periods involved, except as disclosed in the notes to such Financial
Statements. In the event the Company fails to deliver monthly or quarterly unaudited Financial
Statements to Purchaser on a timely basis, the Company shall pay to Purchaser $10,000 for each
Business Day that such statement is not provided to Purchaser past the applicable deadline.



     6.6 Audits. Upon the request of Purchaser, on an annual basis, the Company shall have a third
party auditor of a nationally recognized certified public accounting firm conduct an audit in
accordance with GAAP and shall conduct a review of its internal controls in accordance with the
requirements set forth under Section 404 of the Sarbanes-Oxley Act, as amended.



     6.7 Recapitalization. Immediately upon receiving a declaration of no-objection from the Dutch
Ministry of Justice with respect to the Amended Articles, the Company shall instruct the Notary to
execute the notarial deed of amendment, as a result of which, the Recapitalization shall be
effected. The shares issued to Purchaser as part of the Recapitalization shall be free and clear
of all Encumbrances.



7. INDEMNIFICATION; REMEDIES




     7.1 Survival; Right to Indemnification Not Affected by Knowledge. All representations and
warranties of Purchaser and Seller Parties contained herein or in any other



31









 







Closing Document or document, certificate or other instrument required to be delivered
hereunder or thereunder in connection with the transactions contemplated hereby shall survive the
Closing and shall continue until *** after the Closing (the “Survival Period”),
provided that (a) the representations and warranties set forth in *** ,
shall survive until sixty (60) days after the expiration of the applicable statutes of
limitations (including any extensions or waivers thereof) and (b) the representations and
warranties set forth in *** shall survive indefinitely ((a) and (b), together,
the “Fundamental Representations”); provided, further, that to the extent any
written claim for indemnification is made prior to the expiration date of the representations and
warranties on which any such claim for indemnification is based, the expiration of such
representations and warranties shall not affect the right of any Indemnified Person to seek
indemnification for Damages in respect of such claim pursuant to Section 7 hereof. The
right to indemnification, payment of Damages or other remedy based on such representations,
warranties, covenants, and obligations will not be affected by any investigation conducted with
respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or
after the execution and delivery of this Agreement or the Closing Date, with respect to the
accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or
obligation. The waiver of any condition based on the accuracy of any representation or warranty,
or on the performance of or compliance with any covenant or obligation, will not affect the right
to indemnification, payment of Damages, or other remedy based on such representations, warranties,
covenants, and obligations. Notwithstanding the Survival Period, Purchaser’s rights to
indemnification under the Option Purchase Agreement shall not be affected in the event that a claim
for indemnification has been made prior to the expiration of the Survival Period under the Option
Purchase Agreement (in accordance with the terms and conditions set forth therein).



     7.2 Indemnification and Payment of Damages by Sellers.



          (a) Each Seller, severally but not jointly, shall indemnify and hold harmless Purchaser, the
Company, and their respective Representatives, stockholders, controlling persons, and affiliates
(collectively, the “Purchaser Indemnified Persons”) from and against and shall pay to the relevant
Purchaser Indemnified Persons the amount of any and all losses, liabilities, claims, damages
(excluding incidental, punitive and consequential damages), deficiencies, judgments, fines,
penalties, fees, costs and expenses (including costs of investigation and defense and reasonable
attorneys’ fees) and diminutions in value of the Product(s), whether or not involving a third-party
claim (collectively, “Damages”), incurred by such Purchaser Indemnified Person arising directly or
indirectly from or in connection with any breach of any representation or warranty of such Seller
contained in Section 2 hereof or any covenant or obligation of such Seller in this
Agreement.




          (b) Each Seller, severally but not jointly, will indemnify and hold harmless the Purchaser
Indemnified Persons for, and will pay to the applicable Purchaser Indemnified Persons the amount of
any Damages arising, directly or indirectly, from or in connection with:




               (i) any Breach of any representation or warranty made by the Company under Section 3
hereof;





 




			
	***	 	Portions of this page have been omitted pursuant to a request
for Confidential Treatment filed separately with the Commission.




32









 










               (ii) any Breach of any representation or warranty made by the Company with respect to any
certificate or other document delivered by the Company pursuant to this Agreement; or



               (iii) any Breach by the Company of any covenant or obligation of the Company in this
Agreement.



               (iv) Notwithstanding the foregoing, at the election of a Purchaser Indemnified Person, in its
sole discretion (but subject to the provisions of this Section 7), to the extent that any
Purchaser Indemnified Person is (or may be) entitled to be indemnified by any Seller for Damages
hereunder, a Purchaser Indemnified Person shall be entitled (without limiting any other remedy
available to such Purchaser Indemnified Person) to recover such Damages by set off against any
amounts owed to such Seller under the Option Purchase Agreement; provided, that to the
extent the amount so set-off exceeds the amount of Damages for which it is finally determined that
such Purchaser Indemnified Person is entitled to be indemnified, promptly following such final
determination, Purchaser shall remit such excess to such Seller. The remedies provided in this
Section 7.2 will not be exclusive of or limit any other remedies that may be available to
the Purchaser Indemnified Persons under this Section 7.



     7.3 Indemnification and Payment of Damages by Purchaser. Purchaser will indemnify and hold
harmless Sellers and their respective Representatives, stockholders, controlling persons and
affiliates (collectively, the “Seller Indemnified Persons” and, together with the Purchaser
Indemnified Persons, the “Indemnified Persons”), and will pay to Seller Indemnified Persons the
amount of any Damages arising, directly or indirectly, from or in connection with (a) any Breach of
any representation or warranty made by Purchaser in this Agreement or in any certificate delivered
by Purchaser pursuant to this Agreement, (b) any Breach by Purchaser of any covenant or obligation
of Purchaser in this Agreement, or (c) any claim by any Person for brokerage or finder’s fees or
commissions or similar payments based upon any agreement or understanding alleged to have been made
by such Person with Purchaser (or any Person acting on its behalf) in connection with any of the
Contemplated Transactions.



     7.4 Limitations on Indemnification.



          (a) No claim shall be made unless, and only to the extent that, the cumulative amount of
Damages incurred buy the Indemnified Persons exceeds *** (the “Basket”), and
upon exceeding such amount, the Indemnified Persons shall be entitled to be indemnified for all
Damages (including all Damages below such amount).




          (b) Notwithstanding anything to the contrary set forth in this Agreement, the total Damages
payable by the Sellers pursuant to Section 7.2 shall not exceed *** (the “Cap”),
except to the extent (i) such Damages are due to fraud or intentional misrepresentation of any of
the Sellers, or (ii) such Damages are due to a breach of a Fundamental Representation; provided,
however, that in no event shall the aggregate amount of Damages recoverable from any Seller
pursuant to Section 7.2 exceed *** .






 




			
	***	 	Portions of this page have been omitted pursuant to a request
for Confidential Treatment filed separately with the Commission.




33









 










          (c) Notwithstanding anything to the contrary set forth in this Agreement, the total Damages
payable by Purchaser pursuant to Section 7.3 shall not exceed the Cap, except to the extent
(i) such Damages are due to fraud or intentional misrepresentation of any of the Purchaser, or (ii)
such Damages are due to a breach of a Fundamental Representation.




          (d) Neither the Sellers nor Purchaser shall have any liability under any provision of this
Agreement for any multiple of damages or diminution in value, other than for diminution in value of
the Product(s).




     7.5 Procedure for Indemnification—Third Party Claims.



          (a) Promptly after receipt by an Indemnified Person under Section 7.2 or Section
7.3 of notice of the commencement of any Proceeding against it, such Indemnified Person will,
if a claim is to be made against an Indemnifying Person under such Section, give notice to the
Indemnifying Person of the commencement of such claim, but the failure to notify the Indemnifying
Person will not relieve the Indemnifying Person of any liability that it may have to any
Indemnified Person, except to the extent that the Indemnifying Person demonstrates that the defense
of such action is prejudiced by the Indemnified Person’s failure to give such notice.




          (b) If any Proceeding referred to in Section 7.5(a) is brought against an Indemnified
Person and it gives notice to the party from which such Indemnified Person is entitled to receive
indemnification (an “Indemnifying Person”) of the commencement of such Proceeding, the Indemnifying
Person will be entitled to participate in such Proceeding and, to the extent that it wishes (unless
(i) the Indemnifying Person is also a party to such Proceeding and the Indemnified Person
determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying
Person fails to provide reasonable assurance to the Indemnified Person of its financial capacity to
defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the
defense of such Proceeding with counsel satisfactory to the Indemnified Person and, after notice
from the Indemnifying Person to the Indemnified Person of its election to assume the defense of
such Proceeding, the Indemnifying Person will not, as long as it diligently conducts such defense,
be liable to the Indemnified Person under this Section 7 for any fees of other counsel or
any other expenses with respect to the defense of such Proceeding, in each case subsequently
incurred by the Indemnified Person in connection with the defense of such Proceeding, other than
reasonable costs of investigation. If the Indemnifying Person assumes the defense of a Proceeding:
(i) it will be conclusively established for purposes of this Agreement that the claims made in that
Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement
of such claims may be effected by the Indemnifying Person without the Indemnified Person’s consent
unless (A) there is no finding or admission of any violation of Legal Requirements or any violation
of the rights of any Person, provided such settlement or compromise would not materially and
adversely prejudice the business or other commercial interests of the Indemnified Person, and (B)
the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and
(iii) the Indemnified Person will have no liability with respect to any compromise or settlement of
such claims effected without its consent. If notice is given to an Indemnifying Person of the
commencement of any Proceeding and the Indemnifying Person does not, within ten (10) days after the
Indemnified Person’s notice is given, give notice to the Indemnified Person of its



34









 






election to assume the defense of such Proceeding, the Indemnifying Person will be bound by
any determination made in such Proceeding or any compromise or settlement effected by the
Indemnified Person if it is ultimately determined that the Indemnified Person is entitled to
indemnification.




          (c) Notwithstanding the foregoing, if an Indemnified Person determines in good faith that
there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other
than as a result of monetary damages for which it would be entitled to indemnification under this
Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive
right to defend, compromise, or settle such Proceeding, but the Indemnifying Person will not be
bound by any determination of a Proceeding so defended or any compromise or settlement effected
without its consent (which may not be unreasonably withheld).




          (d) Each Seller hereby consents to the non-exclusive jurisdiction of any court in which a
Proceeding is brought against any indemnified party for purposes of any claim that an Indemnified
Person may have under this Agreement with respect to such Proceeding or the matters alleged
therein, and agrees that process may be served on Sellers with respect to such a claim anywhere in
the world.




     7.6 Procedure for Indemnification—Other Claims. A claim for indemnification for any matter
not involving a third-party claim may be asserted by notice to the party from whom indemnification
is sought.



     7.7 Remedies Exclusive. Except in the event of fraud or willful misconduct (in which case the
defrauded party shall have all rights and remedies available under this Agreement and available
under the law against the party that committed such fraud or willful misconduct), the remedies
provided in this Section 7 shall be the exclusive remedies of the parties hereto and their
heirs, Affiliates, successors, and assigns after the Closing with respect to the representations
and warranties set forth in this Agreement. Except as set forth in this Section 7.7, no
party may bring or commence any Proceeding with respect to the representations and warranties set
forth in this Agreement, whether in contract, tort or otherwise, except to bring a claim for (a)
fraud or willful misconduct against the party that committed such fraud or willful misconduct and
(b) indemnification in accordance with Section 7. Notwithstanding the foregoing, nothing
contained in this Agreement shall limit the rights of any party hereto to seek or obtain injunctive
relief or other equitable remedies to which such party may otherwise be entitled. The provisions
of this Section 7 constitute an integral part of the consideration given pursuant to this
Agreement and were specifically bargained for and reflected in the total amount of the Purchase
Price payable to the Sellers.



8. CLOSING DELIVERABLES.




     8.1 Closing Deliverables of the Company. At or prior to the Closing Date, the Company shall
deliver to Purchaser the following:



          (a) Amended Articles of Association. Evidence of filing the declaration of no-objection for
the Amended Articles with the Dutch Ministry of Justice establishing the rights,



35









 






preferences and privileges of the Series B Preferred Stock and executed powers of attorney and
shareholder resolutions authorizing the Notary to execute the notarial deed of amendment upon
receipt of the declaration of no-objection from the Dutch Ministry of Justice.




          (b) Government Approvals. All approvals from any applicable Governmental Body necessary to
consummate the transactions contemplated hereby, with exception of the declaration of no-objection
with respect to the Amended Articles from the Dutch Ministry of Justice.




          (c) Third Party Consents. All written consents, approvals, waivers, notices or similar
authorizations required to be obtained or given by the Company in order to consummate the
transactions contemplated hereby, in form and substance reasonably satisfactory to Purchaser.




          (d) Certificate of Statutory Director. The following documents, certified as of the Closing
Date by the Company’s Statutory Director as being the true, correct and complete documents of the
Company:




               (i) a copy of the articles of association of the Company as in effect immediately prior to the
Closing Date;



               (ii) copies of resolutions adopted by the Board of Directors and shareholders of the Company
authorizing the transactions contemplated by this Agreement; and



               (iii) the shareholders’ register of the Company.



          (e) Legal Opinion. An opinion, dated as of the Closing Date, from counsel for the Seller
Parties, opining as to the matters set forth in Exhibit F.




          (f) Option Purchase Agreement. The Option Purchase Agreement duly executed by the Sellers and
an authorized officer of the Company.




          (g) Distribution Agreement. The Distribution Agreement in the form attached hereto as
Exhibit G (the “Distribution Agreement”) dated as of the Closing Date and duly executed by
an authorized officer of Company.




          (h) Revos License Agreement. The Revos License Agreement in the form attached hereto as
Exhibit H (the “Revos License Agreement”) dated as of the Closing Date and duly executed by
an authorized officer of Company.




          (i) Facility Agreement. The Facility Agreement, duly executed by an authorized officer of the
Company.




          (j) Pledge Agreement. The Pledge Agreement, dated as of the Closing Date, by and between
Purchaser and Company, in the form attached hereto as Exhibit I (the “Pledge Agreement”),
duly executed by an authorized officer of the Company.




36









 








          (k) Shareholders’ Agreement. The Amended and Restated Shareholders’ Agreement in the form
attached hereto as Exhibit J (the “Shareholders’ Agreement”) dated as of the Closing Date
and duly executed by the Sellers and an authorized officer of the Company




          (l) Founders’ Non-Competition Agreements. The Founders’ Non-Competition Agreements in the
forms attached hereto as Exhibit K and Exhibit L (each, a “Founders’
Non-Competition Agreement”) dated as of the Closing Date and duly executed by each of Joost D de
Bruijn and Clemens van Blitterswijk respectively.




          (m) Investor Non-Competition Agreement. The Investor Non-Competition Agreement in the form
attached hereto as Exhibit M (the “Investor Non-Competition Agreement”) dated as of the
Closing Date and duly executed by Edward van Wezel.




          (n) Estimated Closing Certificate. A certificate of the Statutory Director of the Company,
prepared to the reasonable satisfaction of Purchaser (the “Estimated Closing Certificate”) setting
forth the Company’s good faith estimate of the aggregate amount of all legal, financial advisory,
investment banking and other fees and expenses incurred by or on behalf of the Sellers or the
Company in connection with the negotiation, preparation and execution of this Agreement, the
Closing Documents and the Contemplated Transactions (the “Seller Funded Expenses”), to the extent
that such Seller Funded Expenses will not be paid prior to the close of business on the Business
Day immediately preceding the Closing Date (the amounts set forth on the Estimated Closing
Certificate with respect to the Seller Funded Expenses shall be conclusive for the purposes, absent
manifest error).




     8.2 Closing Deliverables of the Purchaser. At or prior to the Closing Date, the Purchaser
shall deliver to the Company the following:



          (a) Government Approvals. All approvals from any applicable Governmental Body necessary to
consummate the transactions contemplated hereby.




          (b) Third Party Consents. All written consents, approvals, waivers, notices or similar
authorizations required to be obtained or given by the Purchaser in order to consummate the
transactions contemplated hereby, in form and substance reasonably satisfactory to Company.




          (c) Secretary’s Certificate. The following documents, certified as of the Closing Date by the
Secretary of the Purchaser as being the true, correct and complete documents of the Purchaser:




               (i) copies of the certificate of incorporation and bylaws of the Purchaser as in effect
immediately prior to the Closing Date;



               (ii) copies of resolutions adopted by the board of directors and shareholders of the Purchaser
authorizing the transactions contemplated by this Agreement; and



               (iii) certified good standing certificates, or certificates of compliance, relating to the
Purchaser and each subsidiary, dated within five (5) Business Days of the Closing Date, issued by
the State of Delaware and the jurisdiction of formation of each Subsidiary.



37









 





          (d) Option Purchase Agreement. The Option Purchase Agreement dated as of the Closing Date and
duly executed by an authorized officer of the Purchaser.




          (e) Distribution Agreement. The Distribution Agreement dated as of the Closing Date and duly
executed by an authorized officer of Purchaser.




          (f) Revos License Agreement. The Revos License Agreement dated as of the Closing Date and
duly executed by an authorized officer of Purchaser.




          (g) Facility Agreement. The Facility Agreement, duly executed by an authorized officer of
Purchaser.




          (h) Shareholders’ Agreement. The Shareholders’ Agreement, duly executed by an authorized
officer of Purchaser.




          (i) Notarial Deed. Confirmation from the Notary that he has received the amount due pursuant
to Section 1.1(a).




     8.3 Closing Deliverables of the Parties. At or prior to the Closing Date, the parties shall
execute the notarial deed of transfer of the Initial Shares substantially in the form of
Exhibit D.



9. GENERAL PROVISIONS




     9.1 Expenses. Except as otherwise expressly provided in this Agreement, each party to this
Agreement will bear its respective expenses incurred in connection with the preparation, execution,
and performance of this Agreement and the Contemplated Transactions, including all fees and
expenses of agents, representatives, counsel, and accountants.



     9.2 Notices. All notices, Consents, waivers and other communications required or permitted by
this Agreement shall be in writing and shall be deemed given to a party when: (a) delivered to the
appropriate address by hand or by nationally recognized overnight courier service (costs prepaid);
or (b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment
confirmed with a copy delivered as provided in clause (a), in each case to the following addresses,
facsimile numbers or e-mail addresses and marked to the attention of the person (by name or title)
designated below (or to such other address, facsimile number, e-mail address or person as a party
may designate by notice to the other parties):



          If to Purchaser, addressed to:





NuVasive, Inc.

7473 Lusk Boulevard

San Diego, California 92121

Attn: General Counsel

Fax: (858) 909-2479



38









 





          With a copy to:





DLA Piper LLP (US)

4365 Executive Drive, Suite 1100

San Diego, CA 92121

Attn: Michael Kagnoff

Fax: (858) 456-3075



          If to Seller Parties, addressed to:





Progentix Orthobiology BV

Professor Bronkhorstlaan 10, building 48

3723 MB Bilthoven

The Netherlands

Attention: Joost de Bruijn

Fax: +31 (0)30 229 7299



          With a copy to:





Goodwin Procter llp

Exchange Place

53 State Streeet

Boston, MA 02109

Attn: Michael H. Bison, Esq.

Fax: (617) 523-1231




and




CORP. advocaten

De Lairessestraat 137-143

1075 HJ Amsterdam

Attention: Edwin Renes

Fax: + 31 (0)20 578 83 05



     9.3 Jurisdiction; Service of Process. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be brought against any of
the parties in the United States District Court for the Southern District of New York or the state
courts located in New York, New York, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.



     9.4 Dispute Resolution.



          (a) Any dispute arising out of or relating to this Agreement or the breach, termination or
validity hereof shall be finally settled by arbitration conducted expeditiously in accordance with
the Center for Public Resources Rules for Nonadministered Arbitration of Business Disputes (the
“CPR Rules”). The Center for Public Resources shall appoint a neutral



39









 






advisor from its National CPR Panel. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. The place of arbitration shall be New York, New
York.




          (b) Such proceedings shall be administered by the neutral advisor in accordance with the CPR
Rules as he/she deems appropriate, however, such proceedings shall be guided by the following
agreed upon procedures:




               (i) mandatory exchange of all relevant documents, to be accomplished within forty-five (45)
days of the initiation of the procedure;



               (ii) no other discovery;



               (iii) hearings before the neutral advisor which shall not exceed three hours; such hearings to
take place in one or two days at a maximum; and



               (iv) decision to be rendered not later than ten (10) days following such hearings.



          (c) Each of Purchaser, the Company and the Sellers (i) hereby unconditionally and irrevocably
submits to the jurisdiction of the United States District Court for the Southern District of New
York, for the purpose of enforcing the award or decision in any such proceeding and (ii) hereby
waives, and agrees not to assert in any civil action to enforce the award, any claim that it is not
subject personally to the jurisdiction of the above-named court, that its property is exempt or
immune from attachment or execution, that the civil action is brought in an inconvenient forum,
that the venue of the civil action is improper or that this Agreement or the subject matter hereof
may not be enforced in or by such court, and (iii) hereby waives and agrees not to seek any review
by any court of any other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such court. Each of Purchaser, the Company and Sellers hereby consents to service
of process by registered mail at the address to which notices are to be given. Each of Purchaser,
the Company and the Sellers agrees that its submission to jurisdiction and its consent to service
of process by mail is made for the express benefit of the other parties hereto. Final judgment
against Purchaser, the Company or the Sellers in any such action, suit or proceeding may be
enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other
manner provided by or pursuant to the laws of such other jurisdiction; provided,
however, that any party may at its option bring suit, or institute other judicial
proceedings, in any state or federal court of the United States or of any country or place where
the other parties or their assets, may be found.




     9.5 Waiver. The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any right, power, or
privilege under this Agreement or the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right, power, or privilege
or the exercise of any other right, power, or privilege. To the maximum extent permitted by
applicable law: (a) no claim or right arising out of this Agreement or the documents referred to in



40









 







this Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement or the documents referred to in this Agreement.



     9.6 Entire Agreement and Modification. This Agreement, along with the Option Purchase
Agreement, supersedes all prior agreements between the parties with respect to its subject matter
(including the Non-Binding Letter of Intent between Purchaser and the Company dated November 28,
2008 and constitutes (along with the documents referred to in this Agreement) a complete and
exclusive statement of the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement executed by Purchaser and
Seller Parties.



     9.7 Assignments, Successors, and No Third-Party Rights. Neither party may assign any of its
rights under this Agreement without the prior consent of the other parties, except that Purchaser
may assign any of its rights under this Agreement to any Subsidiary of Purchaser. Subject to the
preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to
in this Agreement will be construed to give any Person other than the parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision
of this Agreement. This Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and assigns.



     9.8 Release of Claims. In consideration of the Purchase Price and the other covenants and
agreements set forth herein and in the Option Purchase Agreement, effective as of the Closing
except as set forth in this Agreement or any exhibit or schedule to this Agreement, including,
without limitation, the Closing Documents (which are hereby excluded from this Section 9.8)
and except for any claims arising after the Closing Date, effective as of the Closing, Sellers
hereby fully and forever release and discharge Purchaser and the Company (and their Representatives
and Affiliates) from any and all claims, accusations, demands, liabilities, obligations,
responsibilities, suits, actions and causes of action, whether liquidated or unliquidated, fixed or
contingent, known or unknown, or otherwise, in each case, arising out of, relating to, or otherwise
connected with all prior relationships with or dealings with, between or among any or all of the
parties hereto, and any of their business or other relationships arising out of or related to the
same. Each Seller acknowledges that it may discover facts or law different from or in addition to
the facts or law that they know or believe to be true with respect to the claims released in this
Section 9.8 and agrees, nonetheless, that this Section 9.8 and the release contained herein
shall be and remain effective in all respects notwithstanding such different or additional facts or
the discovery of them. Each Seller further agrees that, to the fullest extent permitted by law, it
will not prosecute, nor allow to be prosecuted on his behalf, in any administrative agency, whether
state or federal, or in any court, whether state or federal, any claim or demand of any type
related to the matters released in this Section 9.8.



41









 





     9.9 Severability. If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or unenforceable.



     9.10 Section Headings, Construction. The headings of Sections in this Agreement are provided
for convenience only and will not affect its construction or interpretation. All references to
“Section” or “Sections” refer to the corresponding Section or Sections of this Agreement. All
words used in this Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word “including” does not limit the preceding
words or terms.



     9.11 Time of Essence. With regard to all dates and time periods set forth or referred to in
this Agreement, time is of the essence.



     9.12 Governing Law. This Agreement will be governed by the laws of the State of New York
without regard to conflicts of laws principles.



     9.13 Counterparts. This Agreement may be executed in one or more counterparts (including by
facsimile or other electronic transmission), each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to constitute one and the same
agreement.



10. DEFINITIONS




     For purposes of this Agreement, the following terms have the meanings specified or referred to
in this Section 10:



     “Acquisition”—has the meaning set forth in the Recitals to this Agreement.



     “Action” means any action, suit, claim, charge, cause of action or suit (whether in contract
or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal),
controversy, assessment, arbitration, investigation, hearing, complaint, demand or other proceeding
to, from, by or before any arbitrator, court, tribunal or other Governmental Body.



     “Affiliate”—has the meaning ascribed to it in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended, as in effect on the date hereof.



     “Agreement”—as defined in the first paragraph of this Agreement.



     “Amended Articles”—as defined in the recitals to this Agreement.



     “Applicable Contract”—any Contract (a) under which the Company has or may acquire any rights,
(b) under which the Company has or may become subject to any obligation or liability, or (c) by
which the Company or any of the assets owned or used by it is or may become bound.



42









 





     “Assets”—means all of the personal properties and assets of any nature owned or used by the
Company (whether real, personal, or mixed and whether tangible or intangible).



     “Balance Sheet”—as defined in Section 3.4.



     “Balance Sheet Date”—December 31, 2008.



     “Blocks Product”—shall have the meaning set forth on Exhibit E to the Option Purchase
Agreement.



     “Breach”—a “Breach” of a representation, warranty, covenant, obligation, or other provision
of this Agreement or any instrument delivered pursuant to this Agreement will be deemed to have
occurred if there is or has been, in each case, as of the date any representation or warranty is
made, or any covenant or obligation is required to be performed (as applicable), (a) any inaccuracy
in or breach of, or any failure to perform or comply with, such representation, warranty, covenant,
obligation, or other provision, or (b) any claim (by any Person) or other occurrence or
circumstance that is or was inconsistent with such representation, warranty, covenant, obligation,
or other provision, and the term “Breach” means any such inaccuracy, breach, failure, claim,
occurrence, or circumstance.



     “Business”—All operations and rights relating to the development, manufacturing, marketing
and sale of the Product



     “Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banking institutions in Amsterdam, The Netherlands or San Diego, California are authorized or
obligated by law or executive order to be closed. For purposes of this Agreement (unless otherwise
specified as a Business Day), the word “day” shall mean a calendar day. Whenever any party hereto
is required to provide notice, approval or otherwise respond within any specified period up
Business Days, such period shall commence at 9:00 a.m. local time in the city specified in such
party’s address for notice in Section 9.2 on the first whole Business Day of such period
and shall expire at 5:00 p.m., local time in such city.



     “Call Option Period”—has the meaning set forth in the Recitals to this Agreement.



     “Closing”—as defined in Section 1.2.



     “Closing Date”—the date and time as of which the Closing actually takes place.



     “Closing Documents”—this Agreement, the Option Purchase Agreement, the Facility Agreement,
the Amended Articles, the Distribution Agreement, the Revos License Agreement, the Shareholders’
Agreement, the Founders’ Non-Competition Agreements and the Investor Non-Competition Agreement and
each other document or agreement executed and delivered in connection with the Contemplated
Transactions.



     “Company”— Progentix Orthobiology B.V. or any of its direct or indirect Subsidiaries.



     “Company Common Stock”—as defined in the Recitals to this Agreement.



43









 





     “Company Proprietary Rights”—any Proprietary Rights owned by or licensed to the Company or
otherwise used in the Business.



     “Company Source Code”—any source code, or any portion, aspect or segment of any source code,
relating to any Proprietary Rights owned by or licensed to the Company or otherwise used by the
Company.



     “Consent”—any approval, consent, ratification, waiver, or other authorization (including any
Governmental Authorization).



     “Contemplated Transactions”—all of the transactions contemplated by this Agreement,
including:



          (a) the sale of the Initial Shares by Sellers to Purchaser;




          (b) the performance by Purchaser, the Company and Sellers of their respective covenants and
obligations under this Agreement; and




          (c) Purchaser’s acquisition of the Initial Shares.




     “Contract”—any agreement, contract, obligation, promise, or undertaking (whether written or
oral and whether express or implied) that is legally binding.



     “Copyrights”—all copyrights, copyrightable works, semiconductor topography and mask work
rights, and applications for registration thereof, including all rights of authorship, use,
publication, reproduction, distribution, performance transformation, moral rights and rights of
ownership of copyrightable works, semiconductor topography works and mask works, and all rights to
register and obtain renewals and extensions of registrations, together with all other interests
accruing by reason of international copyright, semiconductor topography and mask work conventions.



     “Data Room”—the virtual data room on the Company’s website at *** pursuant to
which the Company made available certain of its documents to Purchaser.



     “Encumbrance”—any charge, claim, community property interest, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or exercise of any other
attribute of ownership.



     “Environment”—soil, land surface or subsurface strata, surface waters (including navigable
waters, ocean waters, streams, ponds, drainage basins, and wetlands), groundwaters, drinking water
supply, stream sediments, ambient air (including indoor air), plant and animal life, and any other
environmental medium or natural resource.





 




			
	***	 	Portions of this page have been omitted pursuant to a request
for Confidential Treatment filed separately with the Commission.




44









 










     “Environmental, Health, and Safety Liabilities”—any cost, damages, expense, liability,
obligation, or other responsibility arising from or under Environmental Law or Occupational Safety
and Health Law and consisting of or relating to:



          (a) any environmental, health, or safety matters or conditions (including on-site or off-site
contamination, occupational safety and health, and regulation of chemical substances or products);




          (b) fines, penalties, judgments, awards, settlements, legal or administrative proceedings,
damages, losses, claims, demands and response, investigative, remedial, or inspection costs and
expenses arising under Environmental Law or Occupational Safety and Health Law;




          (c) financial responsibility under Environmental Law or Occupational Safety and Health Law for
cleanup costs or corrective action, including any investigation, cleanup, removal, containment, or
other remediation or response actions (“Cleanup”) required by applicable Environmental Law or
Occupational Safety and Health Law (whether or not such Cleanup has been required or requested by
any Governmental Body or any other Person) and for any natural resource damages; or




          (d) any other compliance, corrective, investigative, or remedial measures required under
Environmental Law or Occupational Safety and Health Law.



The terms “removal,” “remedial,” and “response action,” include the types of activities covered by
the United States Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
§ 9601 et seq., as amended (“CERCLA”) or the equivalent thereof under the Environmental Laws of any
other jurisdiction.




     “Environmental Law”—any Legal Requirement that requires or relates to:



          (e) advising appropriate authorities, employees, and the public of intended or actual releases
of pollutants or hazardous substances or materials, violations of discharge limits, or other
prohibitions and of the commencements of activities, such as resource extraction or construction,
that could have significant impact on the Environment;




          (f) preventing or reducing to acceptable levels the release of pollutants or hazardous
substances or materials into the Environment;




          (g) reducing the quantities, preventing the release, or minimizing the hazardous
characteristics of wastes that are generated;




          (h) assuring that products are designed, formulated, packaged, and used so that they do not
present unreasonable risks to human health or the Environment when used or disposed of;




          (i) protecting resources, species, or ecological amenities;




45









 








          (j) reducing to acceptable levels the risks inherent in the transportation of hazardous
substances, pollutants, oil, or other potentially harmful substances;




          (k) cleaning up pollutants that have been released, preventing the threat of release, or
paying the costs of such clean up or prevention; or




          (l) making responsible parties pay private parties, or groups of them, for damages done to
their health or the Environment, or permitting self-appointed representatives of the public
interest to recover for injuries done to public assets, including the Environmental Protection Act
(“Wet milieubeheer”), Environmental Activities Decree (“Activiteitenbesluit”), Soil Protection Act
(“Wet bodembescherming”), Waste Water Protection Act (“Wet verontreiniging oppervlaktewateren”) and
the European communitty Regulation on the Registration, Evaluation, Authorisation and restriction
of chemical substances, EC 1907 /2006, (Verordening op de Registratie, Evaluatie, Autorisatie en
beperkingen van Chemische stiffen).




     “Facilities”—any real property, leaseholds, or other interests currently or formerly owned or
operated by the Company and any buildings, plants, structures, or equipment (including motor
vehicles, tank cars, and rolling stock) currently or formerly owned or operated by the Company.



     “Facility Agreement”—as defined in the Recitals to this Agreement.



     “FDA”—United Stated Food and Drug Administration.



     “FDCA”—Federal Food Drug and Cosmetic Act.



     “Financial Statements”—as defined in Section 3.4(a).



     “Finished Inventory”—means all finished goods inventory of Product.



     “GAAP—generally accepted United States accounting principles, applied on a consistent basis.



     “Governmental Authorization”—any approval, consent, license, permit, waiver, or other
authorization issued, granted, given, or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.



     “Governmental Body”—any:



          (m) nation, state, province, county , city, town, village, district, or other jurisdiction of
any nature;




          (n) national, federal, state, local, municipal, foreign, or other government;




          (o) governmental or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other tribunal);




          (p) multi-national organization or body; or




46









 








          (q) body exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any nature.




     “Granules Product”—shall have the meaning set forth on Exhibit E to the Option Purchase
Agreement.



     “Hazardous Activity”—the distribution, generation, handling, importing, management,
manufacturing, processing, production, refinement, Release, storage, transfer, transportation,
treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Materials in,
on, under, about, or from the Facilities or any part thereof into the Environment, and any other
act, business, operation, or thing that increases the danger, or risk of danger, or poses an
unreasonable risk of harm to persons or property on or off the Facilities, or that may affect the
value of the Facilities or the Company.



     “Hazardous Materials”—any waste or other substance that is listed, defined, designated, or
classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a
contaminant under or pursuant to any Environmental Law, including any admixture or solution
thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes
therefor and asbestos or asbestos-containing materials.



     “Indebtedness”—as applied to any person, (a) all indebtedness for borrowed money, whether
current or funded, or secured or unsecured, (b) all indebtedness for the deferred purchase price of
property or services represented by a note or other security, (c) all indebtedness created or
arising under any conditional sale or other title retention agreement with respect to property
acquired (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (d) all indebtedness
secured by a purchase money mortgage or other lien to secure all or part of the purchase price of
property subject to such mortgage or lien, (e) all obligations under capital leases in respect of
which such person is liable as lessee, (f) any liability in respect of banker’s acceptances or
letters of credit, and (g) all indebtedness referred to in clauses (a), (b), (c), (d), (e) or (f)
above which is directly or indirectly guaranteed by or which such person has agreed (contingently
or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a
creditor against loss.



     “Initial Shares”—as defined in the Recitals to this Agreement.



     “Issued Patents”—all issued patents, reissued or reexamined patents, revivals of patents,
utility models, certificates of invention, registrations of patents and extensions thereof,
regardless of country or formal name, issued by the United States Patent and Trademark Office and
any other applicable Governmental Body.



     “Knowledge”—an individual will be deemed to have “Knowledge” of a particular fact or other
matter if:



          (r) such individual is actually aware of such fact or other matter; or




47









 








          (s) a prudent individual could be expected to discover or otherwise become aware of such fact
or other matter in the course of conducting a reasonably comprehensive investigation concerning the
existence of such fact or other matter.



A Person (other than an individual) will be deemed to have “Knowledge” of a particular fact or
other matter if any individual who is serving, or who has at any time served, as a director,
officer, partner, executor, or trustee of such Person (or in any similar capacity) has, or at any
time had, Knowledge of such fact or other matter.




     “Legal Requirement”—any national, federal, state, provincial, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law, ordinance,
principle of common law, regulation, statute, or treaty.



     “Material Adverse Effect”—an event, violation, inaccuracy, circumstance or other matter shall
be deemed to have a “Material Adverse Effect” on the Company if such event, violation, inaccuracy,
circumstance or other matter (considered together with all other matters that would constitute
exceptions to the representations and warranties set forth in this Agreement but for the presence
of “Material Adverse Effect” or other materiality qualifications, or any similar qualifications, in
such representations and warranties) had or would reasonably be expected to have a material adverse
effect on: (i) the business, condition, capitalization, assets, liabilities, operations or
financial performance of the Company; (ii) the ability of Seller Parties to consummate the
Contemplated Transactions; or (iii) Purchaser’s ability to vote, receive dividends with respect to
or otherwise exercise ownership rights with respect to the Initial Shares, other than any event,
change, occurrence or effect resulting from (A) changes in general economic, financial market,
business or geopolitical conditions, (B) general changes or developments in any of the industries
in which the Company operates, (C) changes in any applicable Legal Requirements or applicable
accounting regulations or principles or interpretations thereof, (D) any outbreak or escalation of
hostilities or war or any act of terrorism, (E) the announcement of the acquisition of the Initial
Shares by Purchaser pursuant to this Agreement or (F) any action taken at the written request of
Purchaser.



     “Material Contract”—as defined Section 3.16(b).



     “Notary” means Mr. Sander Wiggers, civil law notary with DLA Piper Nederland N.V. or his
deputy, substitute or successor in office.



     “Occupational Safety and Health Law”—any Legal Requirement designed to provide safe and
healthful working conditions and to reduce occupational safety and health hazards, and any program,
whether governmental or private (including those promulgated or sponsored by industry associations
and insurance companies), designed to provide safe and healthful working conditions, including the
Working Conditions Act (“Arbeidsomstandighedenwet”) and the Working Conditions Decree
(“Arbeidsomstandighedenbesluit”).



     “Operating Budget”—shall mean a detailed operating budget of the Company in respect of the
applicable fiscal year, which operating budget has been approved by the Board of Directors
(including the director designated by Purchaser).



     “Option Period”—as defined in the Recitals to this Agreement.



48









 





     “Option Purchase Agreement”—as defined in the Recitals to this Agreement.



     “Order”—any award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body
or by any arbitrator.



     “Ordinary Course of Business”—an action taken by a Person will be deemed to have been taken
in the “Ordinary Course of Business” only if:



          (t) such action is consistent with the past practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person;




          (u) such action is not required to be authorized by the board of directors of such Person (or
by any Person or group of Persons exercising similar authority) and is not required to be
specifically authorized by the parent company (if any) of such Person; and




          (v) such action is similar in nature and magnitude to actions customarily taken, without any
authorization by the board of directors (or by any Person or group of Persons exercising similar
authority), in the ordinary course of the normal day-to-day operations of other Persons that are in
the same line of business as such Person.




     “Organizational Documents”—(a) the articles of association; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited partnership agreement and
the certificate of limited partnership of a limited partnership; (d) any charter or similar
document adopted or filed in connection with the creation, formation, or organization of a Person;
and (e) any amendment to any of the foregoing.



     “Patents”—the Issued Patents and the Patent Applications.



     “Patent Applications”—all published or unpublished nonprovisional and provisional patent
applications, reexamination proceedings, invention disclosures and records of invention.



     “Person”—any individual, corporation, limited liability company, partnership, association,
trust or any other entity or organization, including a Governmental Body.



     “Proceeding”—any action, arbitration, audit, hearing, investigation, litigation, or suit
(whether civil, criminal, administrative, investigative, or informal) commenced, brought,
conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.



     “Product”—shall mean the Blocks Product, the Granules Product and the Putty Product.



     “Proprietary Rights”—any: (a)(i) Issued Patents, (ii) Patent Applications, (iii) Trademarks,
fictitious business names and domain name registrations, (iv) Copyrights, (v) Trade Secrets, (vi)
all other ideas, inventions, designs, manufacturing and operating specifications, technical data,
and other intangible assets, intellectual properties and rights (whether or not appropriate steps
have been taken to protect, under applicable law, such other intangible assets, properties or
rights); or (b) any right to use or exploit any of the foregoing.



49









 





     “Purchaser”—as defined in the first paragraph of this Agreement.



     “Purchaser Disclosure Schedule”—the Disclosure Schedule delivered by Purchaser to Sellers, if
any, concurrently with the execution and delivery of this Agreement.



     “Put Option Period”—has the meaning set forth in the Recitals to this Agreement.



     “Putty Product”—shall have the meaning set forth on Exhibit E to the Option Purchase
Agreement.



     “Registered Copyrights”—all copyrights for which registrations have been obtained or
applications for registration have been filed in any applicable Governmental Body, and all
copyrights for which registration is not required.



     “Registered Trademarks”—all trademarks for which registrations have been obtained or
applications for registration have been filed in any applicable Governmental Body.



     “Release”—any spilling, leaking, emitting, discharging, depositing, escaping, leaching,
dumping, or other releasing into the Environment, whether intentional or unintentional.



     “Remaining Shares”—as defined in the Recitals to this Agreement.



     “Representative”—with respect to a particular Person, any director, officer, employee, agent,
consultant, advisor, or other representative of such Person, including legal counsel, accountants,
and financial advisors.



     “Seller”—as defined in the first paragraph of this Agreement.



     “Seller Parties”—as defined in the first paragraph of this Agreement.



     “Seller Parties Disclosure Schedule”—the Disclosure Schedule delivered by the Seller Parties
to Purchaser, concurrently with the execution and delivery of this Agreement.



     “Seller Shares”—as defined in the Recitals of this Agreement.



     “Sellers’ Knowledge” means the Knowledge of each of the Sellers on ***



     “Series A Preferred Stock”—as defined in the Recitals to this Agreement.



     “Series B Preferred Stock”—as defined in the Recitals to the Agreement.



     “Subsidiary”—with respect to any Person (the “Owner”), any corporation or other Person of
which securities or other interests having the power to elect a majority of that corporation’s or
other Person’s board of directors or similar governing body, or otherwise having the power to
direct the business and policies of that corporation or other Person (other than securities or
other interests having such power only upon the happening of a contingency that has not occurred)
are





 




			
	***	 	Portions of this page have been omitted pursuant to a request
for Confidential Treatment filed separately with the Commission.




50









 









held by the Owner or one or more of its Subsidiaries; when used without reference to a
particular Person, “Subsidiary” means a Subsidiary of the Company.




     “Tax” or “Taxation”— means any and all forms of taxation by any tax authority, whether
international, national or local, including without limitation to the generality of the foregoing,
corporate income tax, capital tax, wage tax, real property tax, transfer taxes, registration tax,
VAT, dividend withholding tax, environmental tax, divestment payments, custom duties, stock
exchange tax, exercise tax or gift tax, including but not limited to penalties, interest and any
other costs or expenses related to or associated with any tax matter and all contributions or
premiums which are payable pursuant to industry or governmental social security regulations,
including penalties, interest and any other costs or expenses relating to or associated with any
social security matter.



     “Tax Returns” means all returns, computations ,declarations, reports, statements and other
documents related to Taxation, including any schedule or attachment thereto and any related or
supporting work papers or information with respect to any of the foregoing, including any amendment
thereof, and the term. “Tax Return” means any one of the foregoing Tax Returns.



     “Threat of Release”—a substantial likelihood of a Release that may require action in order to
prevent or mitigate damage to the Environment that may result from such Release.



     “Threatened”— a claim, Proceeding, dispute, action, or other matter will be deemed to have
been “Threatened” if any demand or statement has been made (orally or in writing) or any notice has
been given (orally or in writing).



     “Trade Secrets”—all product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas,
research and development, manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies, business plans,
computer software and programs (including object code), computer software and database
technologies, systems, structures and architectures (and related processes, formulae, composition,
improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and
information), and any other information, however documented, that is a trade secret within the
meaning of the applicable trade-secret protection law.



     “Trademarks”—all (i) trademarks, service marks, marks, logos, insignias, designs, names or
other symbols, (ii) applications for registration of trademarks, service marks, marks, logos,
insignias, designs, names or other symbols, (iii) trademarks, service marks, marks, logos,
insignias, designs, names or other symbols for which registrations has been obtained.



     “Xpand”—Xpand Biotechnology B.V., a private company with limited liability, incorporated
under the laws of the Netherlands.



51









 





     Index of Other Defined Terms:



	 	 	 
	Defined Terms	 	Section Reference
	510(k)

	 	Section 3.22(d)
	Basket

	 	Section 7.4(a)
	Board of Directors

	 	Section 3.2(a)
	Cap

	 	Section 7.4(b)
	Confidential Information

	 	Section 6.3
	CPR Rules

	 	Section 9.4
	Damages

	 	Section 7.2
	Distribution Agreement

	 	Section 8.1(g)
	Estimated Closing Certificate

	 	Section 8.1(n)
	Founders’ Non-Competition Agreement

	 	Section 8.1(l)
	Fundamental Representations

	 	Section 7.1
	Indemnified Persons

	 	Section 7.3
	Indemnifying Persons

	 	Section 7.5(a)
	Investor Non-Competition Agreement

	 	Section 8.1(m)
	Pension Schemes

	 	Section 3.13
	Permitted Encumbrance

	 	Section 3.6
	Pledge Agreement

	 	Section 8.1(j)
	Pro Rata Allocation

	 	Section 1.1(a)
	Purchase Price

	 	Section 1.1(a)
	Purchaser Indemnified Persons

	 	Section 7.2.
	Purchaser Representative

	 	Section 5.1
	Revos License Agreement

	 	Section 8.1(h)






52









 






	 	 	 
	Defined Terms	 	Section Reference
	Seller Funded Expenses

	 	Section 8.1(n)
	Seller Indemnified Persons

	 	Section 7.3
	Shareholders’ Agreement

	 	Section 8.1(k)
	Survival Period

	 	Section 7.1
	Upfront Payment

	 	Section 1.1(a)






53









 






     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first written above.




	 	 	 	 
	PURCHASER:



NUVASIVE, INC.




 	 
	By:  	/s/ Alexis V. Lukianov
 	 
	 	Name:  	Alexis V. Lukianov 	 
	 	Title:  	Chief Executive Officer 	 
	 






	 	 	 	 
	COMPANY:



PROGENTIX ORTHOBIOLOGY B.V.

 	 
	By JD de Bruijn Holding BV, its solely authorized statutory director
 	 
	 	 
	By:  	                 /s/ Joost D de Bruijn
 	 
	 	Name:  	Joost D de Bruijn 	 
	 	Title:  	General Director 	 
	 








Signature Page to Preferred Stock Purchase Agreement




 









 








	 	 	 	 	 
	 	SELLERS:



JD DE BRUIJN HOLDING BV

 	 
	 	By:  	/s/ Joost D de Bruijn
 	 
	 	 	Name:  	Joost D de Bruijn 	 
	 	 	Title:  	General Director 	 
	 
	 	INCUBATION BV

 	 
	 	By:  	/s/ Clemens van Blitterswijk
 	 
	 	 	Clemens van Blitterswijk 	 
	 	 	 	 
	 	By:  	                                                /s/ FrankJan van der Velden
 	 
	 	 	FrankJan van der Velden 	 
	 	 	 	 
	 	BIOGENERATION VENTURES BV

 	 
	 	By:  	/s/ Edward van Wezel
 	 
	 	 	Edward van Wezel 	 
	 	 	 	 
	 	By:  	                                                /s/ Willem Hazenberg
 	 
	 	 	Willem Hazenberg 	 
	 	 	 	 
	 	HUIPIN YUAN

 	 
	 	/s/ Huipin Yuan
 	 
	 	 	 
	 	 	 



[Signature Page to Preferred Stock Purchase Agreement]




 









 








SCHEDULE A

Sellers Schedule




	 	 	 	 	 
	 	 	Pro Rata
	Seller	 	 Allocation
	BioGeneration Ventures BV
	 	 	29.106	%
	JD de Bruijn Holding BV
	 	 	28.359	%
	Incubation BV
	 	 	39.060	%
	Huipin Yuan
	 	 	3.475	%






 









 






EXHIBIT A




Option Purchase Agreement




 









 





EXHIBIT B




Facility Agreement 




 









 





EXHIBIT C




Amended Articles of Association 




 









 





EXHIBIT D




Notarial Deed




 









 





EXHIBIT E




Form of Proprietary Inventions Agreement




 









 





EXHIBIT F




Form of Legal Opinion




     1. Each of the Closing Documents is a valid and binding obligation of the Company, enforceable
by Purchaser against the Company in accordance with its terms.



     2. We do not have knowledge of any action, suit or proceeding against the Company that is
pending or has been overtly threatened in writing.



 









 





EXHIBIT G




Distribution Agreement




 









 





EXHIBIT H




Revos License Agreement




 









 





EXHIBIT I




Pledge Agreement




 









 





EXHIBIT J




Shareholders’ Agreement




 









 





EXHIBIT K




Founders’ Non-Competition Agreement (Bruijn)




 









 





EXHIBIT L




Founders’ Non-Competition Agreement (Blitterswijk)




 









 





EXHIBIT M




Investor Non-Competition Agreement