EXHIBIT
10.3


 


AMENDMENT
TO ASSET PURCHASE AGREEMENT


 


This AMENDMENT TO ASSET PURCHASE AGREEMENT
(this “Amendment”)
dated as of September 30, 2008, 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 the Asset Purchase Agreement,
dated May 8, 2008, between Seller and Purchaser (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


 


WHEREAS, the Board of Directors of each of
the Parties view it to be advisable, desirable and in the best interests of the
Parties to amend the Agreement.


 


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 1.3
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
as soon as reasonably practicable, but in no event prior to November 1,
2009, following the earlier to occur of (i) the termination of the
Manufacturing Agreement by Purchaser pursuant to Section 7.1 of the
Manufacturing Agreement, (ii) the expiration of the “Term” (as that term
is defined in the Manufacturing Agreement) of the Manufacturing Agreement (the “
Manufacturing Closing Date ”); or (iii) Seller’s request to accelerate
the Manufacturing Closing Date, provided that Seller has delivered to Purchaser
between  *** 
and *** cubic centimeters of Product.”


 


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


 


“(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 “).”


 






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

  



 

















 


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


 


“(ii) If at any time
following the Technology Closing Date but prior to the Manufacturing Closing,
Seller shall have delivered to Purchaser an aggregate of 180,000 cubic
centimeters of Product (including, for avoidance of doubt, any Product
delivered in satisfaction of the First Delivery Threshold) (the “ Second
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 “
Second Milestone Payment ”).”


 


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


 


“(iv) If prior to
the Manufacturing Closing, Seller shall have delivered to Purchaser an
aggregate of 205,000 cubic centimeters of Product (including, for avoidance of
doubt, the Product delivered pursuant to the Second Delivery Threshold) in
accordance with the terms and provisions of, and subject to the specifications
set forth in, the Manufacturing Agreement, at the Manufacturing Closing,
Purchaser shall pay to Seller Five Million Dollars ($5,000,000) (the “ Fourth Milestone Payment ”).”


 


(e) Section 4.11(e) of
the Agreement shall be deleted in its entirety.


 


(f) A new sentence
shall be added to the end of Section 8.1 to read as follows:


 


“Notwithstanding anything
in this Agreement to the contrary, Seller shall not be required to indemnify,
defend and save harmless any Purchaser Indemnified Party from, against and in
respect of any and all Losses incurred or suffered by any Purchaser Indemnified
Party arising out of or related to the termination on or prior to December 31,
2008 of any Contract (including any amendment to any such Contract) listed on
Schedule 2.9(c).”


 


2. 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.


 


3. 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.


 


4. 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 to be executed by their respective duly authorized officers, all as
of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  OSIRIS THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip R. Jacoby
  Jr.

  
	
   

  	
  Name:

  	
  Philip R. Jacoby Jr.

  
	
   

  	
  Title:

  	
  Vice President of
  Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
  NUVASIVE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alexis Lukianov

  
	
   

  	
  Name:

  	
  Alexis Lukianov

  
	
   

  	
  Title:

  	
  Chairman & CEO