EXHIBIT 10.2


 


AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT


 


This AMENDMENT
NO. 2 TO ASSET PURCHASE AGREEMENT (this “Second
Amendment”), dated as of March 25, 2009, is by and between OSIRIS THERAPEUTICS, INC., a Delaware corporation (“Seller”), and NUVASIVE,
INC., a Delaware corporation (“Purchaser”).  Capitalized terms used herein and not
otherwise defined shall have the meaning given them in that certain Asset
Purchase Agreement by and between Seller and Purchaser dated May 8, 2008,
as amended pursuant to that certain Amendment to Asset Purchase Agreement by
and between Seller and Purchaser dated September 30, 2008 (collectively,
the “Agreement”).  Seller and Purchaser shall each be referred
to herein as a “Party” and collectively as
the “Parties.”


 


WHEREAS, pursuant to Section 9.3 of the Agreement, the
Agreement may be amended by a written instrument signed by the parties to the
Agreement; and


 


NOW, THEREFORE, in consideration of the foregoing, the
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:


 


1.                                       Amendments.


 


(a)                                   Section 1.1(a)(ii) of the
Agreement shall be deleted in its entirety.


 


(b)                                  Section 1.3 of the Agreement shall
be amended by deleting in its entirety the second sentence thereof and
inserting in its place the following:


 


“The consummation of the
Manufacturing Asset Transfer (the “Manufacturing Closing”) shall be held
on the fifteenth day following the execution by Purchaser and Seller of this
Second Amendment (the “Manufacturing Closing Date”) and at such time all
conditions to the Manufacturing Closing shall be deemed to have been waived or
satisfied.  In connection with the
Manufacturing Closing, either (a) the Purchaser shall assume that certain
Amended and Restated Tissue Procurement Processing and Supply Agreement by and
between Seller and AlloSource, dated February 1, 2008 (the “AlloSource
Supply Agreement”) or (b) the AlloSource Supply Agreement shall be amended,
modified, supplemented or terminated.”


 


(c)                                  Section 1.5(a) of the Agreement
shall be amended and restated in its entirety, as follows:


 


“(a)                            Milestones; Milestone
Payments.  From and after the
Technology Closing Date, in addition to the consideration set forth in Section 1.4
above, Purchaser shall, with respect to Sections 1.5(a)(i) and 1.5(a)(vi) below,
subject to, and contingent upon achievement of the post-Technology Closing
performance milestones of the Business set forth in Sections 1.5(a)(i) and
1.5(a)(vi) below, and, with respect to Sections 1.5(a)(ii), 1.5(a)(iii) and
1.5(a)(iv) below, on the dates set forth in Sections 1.5(a)(ii), 1.5(a)(iii) and
1.5(a)(iv) below (each, a “Milestone”) not later than the
applicable date for satisfaction of each Milestone set forth below (each a 


 

















 


“Milestone
Expiration Date”), pay to Seller an amount of cash (in United States
dollars of immediately available funds) or common stock, par value $0.001 per
share, of Purchaser (“Purchaser Common Stock”) (the form of payment of
which is to be determined in the sole discretion of Purchaser), equal to the
First Milestone Payment, Second Milestone Payment, Third Milestone Payment,
Fourth Milestone Payment, Fifth Milestone Payment and/or Sixth Milestone
Payment, as applicable (the “Applicable Milestone Payment”) and each
Milestone shall be independent of each other Milestone and may be satisfied and
payment become due therefore regardless of non-satisfaction of any other
Milestone; provided, however, that (i) if Purchaser elects
to issue shares of Purchaser Common Stock in respect of any Applicable
Milestone Payment, then prior to such issuance and upon request by the
Purchaser, Seller shall deliver to Purchaser such representations and
warranties as Purchaser shall reasonably request for purposes of exempting the
issuance of such shares from the registration requirements of the Securities
Act, and (ii) if Purchaser elects to issue shares of Purchaser Common
Stock in respect of any Applicable Milestone Payment, the number of shares of
Purchaser Common Stock to be issued shall be equal to the Applicable Milestone
Payment divided by the Purchaser Common Stock Value.  The obligations of Purchaser under this Section 1.5(a) are
subject to the provisions of Section 1.5(c) below (regarding Purchaser’s
Rights of Set-Off).  For avoidance of
doubt, in no event shall the sum of all Applicable Milestone Payments made by
Purchaser to Seller under this Section 1.5 exceed Fifty Million Dollars
($50,000,000) (the “Maximum Milestone Amount.


 


(i)                                     If at any time following the Technology Closing Date
but at or prior to April 15, 2009, Seller shall have delivered to
Purchaser an aggregate of 75,000 cubic centimeters of Product (the “First
Delivery Threshold”) in accordance with the terms and provisions of, and subject
to the specifications set forth in, the Manufacturing Agreement, Purchaser
shall pay to Seller Five Million Dollars ($5,000,000) (the “First Milestone
Payment”).  The parties acknowledge
and agree that the First Milestone Payment was previously made by Purchaser and
that no further amount shall be due or owing with respect thereto.


 


(ii)                                  Purchaser shall pay to Seller Five Million Dollars
($5,000,000) on the date that Purchaser executes the Second Amendment (the “Second
Milestone Payment”).


 


(iii)                               Purchaser shall pay to Seller Twelve Million Five
Hundred Thousand Dollars ($12,500,000) on June 30, 2009 (the “Third
Milestone Payment”).


 


(iv)                              Purchaser shall pay to Seller Twelve Million Five
Hundred Thousand Dollars ($12,500,000) on September 30, 2009 (the “Fourth
Milestone Payment”).


 


(v)                                 [Intentionally
Omitted].


 


(vi)                              If at any time following the Technology Closing Date
the Business shall generate Thirty-Five Million Dollars ($35,000,000) in
cumulative Net Sales (the “Net Sales Threshold”), Purchaser shall pay to
Seller Fifteen Million Dollars ($15,000,000) (the “Sixth Milestone Payment”).


 


If any payment under this Section 1.5(a) is
made in the form of Purchaser Common Stock, then on the date of such payment
Purchaser shall provide to Seller (I) a certificate from a 


 

















 


duly authorized officer of Purchaser certifying that
as of the date of such issuance (x) the Purchaser Common Stock so issued
has been duly authorized and is validly issued, fully-paid and non-assessable
and, (y) the provisions of Rule 144(c) of the Securities Act,
are satisfied and (II) a legal opinion from Purchaser’s legal counsel that
such Purchaser Common Stock has been duly authorized and validly issued, is
fully paid and non-assessable.  If
Purchaser is unable to satisfy the requirement set forth in the immediately
preceding sentence, Seller shall be under no obligation to accept Purchaser
Common Stock as payment for the Applicable Milestone Payment and Purchaser
shall make such Applicable Milestone Payment in the form of cash, in United
States dollars of immediately available funds.”


 


(d)                                 Sections 6.1 (a), (b),
and (d-i) of the Agreement shall be deleted in their entirety, and Seller
hereby specifically affirms that the representations and warranties in Section 6.1(c) thereof
are true and correct as of the date hereof.


 


(e)                                  Section 8.2(d) of
the Agreement shall be amended by adding at the end thereof the following
phrase “ ... and all liabilities associated with the assumption or termination of
the AlloSource Supply Agreement as contemplated by the Second Amendment.”


 


(f)                                     Section 9.13
of the Agreement shall be amended by deleting the definitions of “Allowable
Work in Process” and “WIP Value” in their entirety.  In addition, the Index of Defined Terms
contained in Section 9.13 shall be amended by eliminating the reference to
Work in Process contained therein.


 


2.                                       Columbia
Facility. 
Notwithstanding anything to the contrary in the Agreement (or any
exhibit or schedule to the Agreement), the Parties agree that Seller shall not
transfer, lease or sub-lease the 7015 Albert Einstein, Columbia Maryland
facility (the “Columbia Facility”) to
Purchaser, and Purchaser shall have no obligation to lease or sub-lease the
Columbia Facility.  The Parties agree
that (i) the Sublease Agreement by and between Broadwing Corporation and
Osiris, dated June 2, 2006 and the Agreement of Lease by and between
Columbia Gateway S-18, L.L.C. and Osiris, dated June 6, 2006 shall not be
Assumed Contracts (as defined in the Agreement) pursuant to the Agreement, and (ii) Schedule
1.1(a)(x) to the Agreement shall be amended to remove the Sublease
Agreement by and between Broadwing Corporation and Osiris, dated June 2,
2006 and the Agreement of Lease by and between Columbia Gateway S-18, L.L.C.
and Osiris, dated June 6, 2006  from such
Schedule 1.1(a)(x) to the Agreement. 
Purchaser agrees to timely dispose, at Purchaser’s cost, of all of the
assets at the Columbia Facility set forth on Exhibit A attached to this
Second Amendment.


 


3.                                       No Further
Amendment.  Except to
the extent expressly modified by this Amendment, all of the provisions of the
Agreement shall remain in full force and effect, without modification or
amendment and are ratified in all respects. 
This Amendment is limited by its terms and does not and shall not serve
to amend or waive any provision of the Agreement except as expressly provided
for in this Amendment.


 


4.                                       Governing Law;
General Provisions.  This
Amendment, including the validity hereof and the rights and obligations of the
parties hereunder, shall be construed, interpreted, enforced and governed by
and under the laws of the State of Delaware applicable to contracts


 

















 


made and to be performed entirely in such
state, without regard to its rules regarding conflicts of law provisions.


 


5.                                       Counterparts,
Facsimile Execution.  This
Amendment may be executed in any number of counterparts, each of which shall
constitute an original but all of which shall constitute one and the same
instrument.  The Parties need not sign
the same counterpart.


 


[Signature Page to
Follow]


 

















 


IN WITNESS WHEREOF, Seller and
Purchaser have each caused this Amendment No. 2 to Asset Purchase
Agreement to be executed by their respective duly authorized officers, all as
of the date first above written.


 


 


	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  OSIRIS
  THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard W. Hunt

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard
  W. Hunt

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  
	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  NUVASIVE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jason Hannon

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jason
  Hannon

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President, General Counsel and Secretary