exv10w53






EXECUTION COPY




EXHIBIT
10.53




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





Filed separately as Exhibit 10.54 to this Annual Report on Form 10-K.


 









 



EXHIBIT
B




			
	DATED
	 	JANUARY 13, 2009






(1) NUVASIVE, INC.




as Lender



- and -



(2) PROGENTIX ORTHOBIOLOGY B.V.



as Borrower



USD 5,000,000




SENIOR SECURED FACILITY AGREEMENT



DLA Piper Nederland N.V.

Finance & Projects

Amsterdam






 









 








USD 5,000,000 SENIOR SECURED FACILITY AGREEMENT



THIS AGREEMENT is dated January 13, 2009 (the “Effective Date”)




BETWEEN





	1.	 	NUVASIVE, INC., a company incorporated under the laws of Delaware, having its registered
office at 7475 Lusk Boulevard, San Diego CA 92121, United States (the “Lender”); and
	 
	2.	 	PROGENTIX ORTHOBIOLOGY B.V. a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) organised and existing under the laws of the
Netherlands, registered with the chamber of commerce under file number 30234249 and having its
registered office at Professor Bronkhorstlaan 10 D, (3723 MB) Bilthoven, the Netherlands (the
“Borrower”),




The Lender and the Borrower also referred to as “Party” or “Parties”.




RECITALS





	A.	 	The Lender will, on or about the date hereof, make an initial preferred equity investment of
USD 10,000,000 in the Borrower.
	 
	B.	 	In addition to the proposed acquisition by the Lender of the shares in the capital of the
Borrower, the Lender wishes to lend to the Borrower and the Borrower wishes to borrow from the
Lender subject to the terms and conditions set forth in this Agreement.
	 
	C.	 	Parties hereby further agree as follows.





IT IS AGREED AS FOLLOWS





	1.	 	DEFINITIONS
	 
	1.1	 	In this Agreement, unless the context otherwise requires, the following words and expressions
have the following meanings:





	 	 	 	 	 
	 

	 	Agreement
	 	means this USD 5,000,000 facility agreement between Lender and Borrower;
	 
	 	 	 	 
	 

	 	Base Milestones
	 	has the meaning set forth in the Option Purchase Agreement;
	 
	 	 	 	 
	 

	 	Business Day
	 	means a day other than a Saturday or Sunday on which banks are open for
business in Amsterdam, the Netherlands;
	 
	 	 	 	 
	 

	 	Operating Budget
	 	has the meaning set forth in the Preferred Stock Purchase Agreement;
	 
	 	 	 	 
	 

	 	Distribution Agreement
	 	has the meaning set forth in the Preferred Stock Purchase Agreement;
	 
	 	 	 	 
	 

	 	Event of Default
	 	means an event of default specified as such in clause 9;






 









 






	 	 	 	 	 
	 

	 	IP Pledge Agreement
	 	means the Pledge Agreement of Intellectual Property Rights, dated as of
the date hereof, by and between the Lender and the Borrower, relating to the pledge of the
Borrower’s intellectual property rights;
	 
	 	 	 	 
	 

	 	Loan
	 	means the loan made available by the Lender to the Borrower pursuant to Clause
2.1 of this Agreement or the principal amount outstanding for the time being of that
loan;
	 
	 	 	 	 
	 

	 	Option Purchase Agreement
	 	means the Option Purchase Agreement, dated the date hereof, by and
among Lender, Borrower and the shareholders of Borrower;
	 
	 	 	 	 
	 

	 	Preferred Stock Purchase
 Agreement
	 	means the Preferred Stock Purchase
Agreement, dated the date hereof, by and among Lender, Borrower and the shareholders of Borrower;
	 
	 	 	 	 
	 

	 	Proprietary Rights
	 	has the meaning set forth in the Option Purchase Agreement;
	 
	 	 	 	 
	 

	 	Repayment Date
	 	means the date defined in Clause 5.1.;
	 
	 	 	 	 
	 

	 	Updated Seller Parties
	 	has the meaning set forth in the Option Purchase Agreement;
	 

	 	Disclosure Schedule	 	 
	 
	 	 	 	 
	 

	 	USD
	 	means United States dollar; and
	 
	 	 	 	 
	 

	 	Utilisation Date
	 	means the applicable date on which Lender makes a Loan.







	1.2	 	In this Agreement, unless the context otherwise requires
(a) references to the singular shall include the plural  and vice versa and (b) Clause headings are
 for ease of reference only and shall not affect the construction of the relevant provision.
	 
	1.3	 	Except where this Agreement expressly provides otherwise, a person who is not a Party has no
right to exercise or enforce any term or condition of this Agreement.
	 
	2.	 	THE FACILITY
	 
	2.1	 	Subject to the terms of this Agreement, the Lender shall make available to the Borrower from
time to time a USD facility in an aggregate amount of USD 5,000,000 (five million USD) and the
Borrower accepts such facility. This facility shall remain in effect through the earlier of
the expiration or termination of the Option Period (as defined in the Option Purchase
Agreement).
	 
	2.2	 	Unless otherwise agreed by the Lender or approved by the Borrower’s non-executive board of
directors (but specifically including any representative of Lender thereon), the Borrower
shall apply any Loans made under the facility towards (i) further development of the
Borrower’s portfolio of synthetic osteoinductive scaffolds, including the CuriOs product for
purposes of achieving the Base Milestones, (ii) fulfilling its obligations under the
Distribution Agreement with Lender, dated as of the date hereof, or (iii) any other payments
made in accordance with the Borrower’s Operating Budget, it being agreed that Borrower may
apply any Loans to satisfy




 









 






	 	 	general operating expenses, including without limitation general and administrative, rent,
utilities, insurance and similar expenses, as expressly permitted hereunder to the extent
contemplated by Borrower’s Operating Budget.
	 
	2.3	 	The Lender is not obliged to monitor or verify the application of any Loan.
	 
	3.	 	UTILISATION
	 
	3.1	 	The Borrower may utilise the facility from time to time by delivery to the Lender of (i) a
duly completed utilisation request in the form attached hereto at Schedule 3 and (ii) an
Updated Seller Parties Disclosure Schedule sufficiently in advance prior to the contemplated
date of extension of the Loan. Any amount proposed to be utilised shall always exceed the
equivalent in USD of EUR 1,000,000, provided that any Updated Seller Parties Disclosure
delivered pursuant to this Section 3.1 shall not be counted as a Disclosure Schedule Request
(as defined under the Option Purchase Agreement) pursuant to Section 1.1(b)(ii)(A) of the
Option Purchase Agreement.
	 
	3.2	 	Upon receipt of such utilization request and an Updated Seller Parties Disclosure Schedule,
the Lender shall make available the Loan to the Borrower by means of payment of the same into
the Borrower’s account the particulars of which shall be specified in the utilisation request.
	 
	3.3	 	The Loan will be disbursed in one amount on the Utilisation Date and any amount not drawn
will be immediately cancelled.
	 
	3.4	 	Notwithstanding anything to the contrary contained in any other agreement between the
parties, including without limitation Section 5.1(i) of the Preferred Stock Purchase
Agreement, Lender hereby expressly consents to any utilization request submitted by the
Borrower hereunder.
	 
	4.	 	INTEREST
	 
	4.1	 	Interest shall accrue on any Loan at an interest rate of 6% per annum commencing on the
applicable Utilization Date. Such interest will be paid by the Borrower on the date the Loan
is due and payable.
	 
	4.2	 	Interest shall accrue from day to day and will be calculated on the basis of a year
consisting of 360 days and payable for the actual number of days elapsed.
	 
	4.3	 	If the Borrower fails to pay any amount payable by it under this Agreement on its due date,
default interest shall accrue on the overdue amount from the due date up to the date of actual
payment (both before and after judgment) at the aggregate of the rate specified in Clause 4.1
and 2% per annum.
	 
	5.	 	REPAYMENT
	 
	5.1	 	The Borrower shall repay the Loan in its entirety within ten Business Days of the earlier of
(i) an Event of Default, or (ii) nine (9) months after the earlier of the expiration or
termination of the Option Period (as defined in the Option Purchase Agreement) (the “Repayment
Date”).
	 
	5.2	 	No amount repaid may subsequently be re-borrowed.




 









 






	5.3	 	The Borrower may not prepay the Loan until after the earlier of the expiration or termination
of the Option Period at which time the Loan may be prepaid without penalty.
	 
	6.	 	SECURITY INTEREST
	 
	6.1	 	The Borrower and the Lender hereby agree that the Borrower shall grant to the Lender a first
ranking right of pledge, encumbrance, collateral or any other security right over all of the
assets (including Borrower’s Proprietary Rights) as specified in Schedule 1 as security for
the repayment of any amount under the Loan.
	 
	6.2	 	The security interest will be created by means of the Parties entering into documents
substantially in the forms as set out in Schedule 2 to this Agreement (Form of Security
Documents).
	 
	7.	 	REPRESENTATIONS AND WARRANTIES
	 
	7.1	 	The representations set out in this Clause 7 are:






	 	(a)	 	made by the Borrower on the date of this Agreement; and
	 
	 	(b)	 	deemed to be repeated by the Borrower by reference to the facts and
circumstances then existing on each subsequent day for so long as the Loan or other
amount is or may become outstanding under this Agreement.






	7.2	 	The Borrower represents and warrants that :






	 	(a)	 	It is a private limited liability company corporation (besloten vennootschap
met beperkte aansprakelijkheid), duly incorporated and validly existing under the laws
of the Netherlands;
	 
	 	(b)	 	It has the power to own its assets and carry on its business as it is being
conducted;
	 
	 	(c)	 	The obligations expressed to be assumed by it in this Agreement are legal,
valid, binding and enforceable obligations;
	 
	 	(d)	 	No Event of Default is outstanding or likely to result from the making of the
Loan;
	 
	 	(e)	 	It has not taken any corporate action nor have any other steps been taken or
legal proceedings been started or threatened against it for its bankruptcy, insolvency,
reorganization, moratorium, or other law affecting the rights of creditors generally,
or the appointment of a bankruptcy or moratorium administrator, trustee, receiver or
similar officer;
	 
	 	(f)	 	No litigation or administrative proceeding of or before any court or agency has
been started or is threatened against the Borrower which could reasonably be expected
to have a material adverse effect on the business, assets or financial condition of the
Borrower;
	 
	 	(g)	 	Its entry into and performance of this Agreement and the transactions
contemplated by this Agreement do not conflict with any law or judicial or official
regulation applicable to it, with its constitutional documents or with any agreement or
document binding on it;




 









 






	 	(h)	 	No attachments are made or seizures have been levied or enforced upon or sued
out against (A) any material portion of its revenues or (B) against its assets; and
	 
	 	(i)	 	All information supplied by it is true, complete and accurate in all material
respects as of the date it was given and is not misleading in any material respect.






	7.3	 	The Borrower acknowledges that in connection with entering into this Facility
agreement, the Borrower entered into the Option Purchase Agreement and Preferred Stock
Purchase Agreement with Lender. Subject to the disclosure schedules to the Option Purchase
Agreement and Preferred Stock Purchase Agreement, including any Updated Seller Parties
Disclosure Schedule delivered hereunder, the representations and warranties of Borrower set
forth in the Option Purchase Agreement and Preferred Stock Purchase Agreement that are
qualified as to materiality are correct and complete in all respects, and all other
representations and warranties of Borrower set forth in the Option Purchase Agreement and
Preferred Stock Purchase Agreement are correct and complete in all material respects.
Notwithstanding the foregoing, each representation and warranty set forth in the Option
Purchase Agreement which refers to the “Effective Date” shall be true and correct as of the
date of any Updated Seller Parties Disclosure Schedule notwithstanding that such
representation or warranty, as the case may be, refers to the “Effective Date,” provided that
such representations and warranties shall be qualified by each Updated Seller Parties
Disclosure Schedule to the extent there are any disclosures of actual facts in existence on
the date of such Updated Seller Parties Disclosure Schedule that have occurred or been
discovered since the Effective Date, and (i) such disclosures are not material, or (ii) the
Borrower obtained the approval of the Supervisory Board of Directors of the Borrower
(including the director designated by the Lender) or the prior written consent of the
Purchaser Representative (as defined in the Preferred Stock Purchase Agreement) pursuant to
Section 5.1 of the Preferred Stock Purchase Agreement with respect to an action of the
Borrower which directly caused such material change.
	 
	8.	 	UNDERTAKINGS
	 
	8.1	 	The undertakings in this Clause 8 will remain effective from the date of this Agreement until
all amounts to be paid by the Borrower under this Agreement have been irrevocably paid.
	 
	8.2	 	The Borrower shall promptly inform the Lender if an Event of Default has occurred or is
likely to occur.
	 
	8.3	 	The Borrower shall ensure that at all times the claims of the Lender against it under this
Agreement rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors save those whose claims are preferred by any laws of general
application and with the exception of any rights of set-off or counterclaims that may be
asserted against it.
	 
	8.4	 	The Borrower shall not sell, transfer or otherwise dispose of its assets or revenues with the
exception of disposals of trading assets or the expenditure of cash, in each case on normal
commercial terms and in the ordinary course of business unless and until the Loan is repaid by
Borrower in its entirety.
	 
	9.	 	EVENTS OF DEFAULT
	 
	9.1	 	Each event described in this Clause 9 is an Event of Default:




 









 












	 	(a)	 	The Borrower does not pay (or evidences an intention not to pay) any amount
payable under this Agreement at the time and in the manner as provided for in this
Agreement;
	 
	 	(b)	 	Any representation or statement made or deemed to be made by the Borrower in
this Agreement or any other document delivered by it or on its behalf under or in
connection with this Agreement is or proves to have been untrue, inaccurate or
misleading in any material respect when made or deemed to be made;
	 
	 	(c)	 	The Borrower fails to duly perform any other obligation under this Agreement,
which non-performance if capable of remedy is not remedied within 21 days after the
Lender’s relevant notice to the Borrower;
	 
	 	(d)	 	An attachment or seizure affects any assets of the Borrower and is not
discharged within 21 days or any steps are taken to enforce any security interest over
any assets of the Borrower;
	 
	 	(e)	 	Any of the following events or circumstances affects the Borrower:






	 	(i)	 	It is unable or shall admit in writing its inability to pay its
debts as they fall due or, by reason of actual or anticipated financial
difficulties, it suspends making payments on any of its debts or commences
negotiations with any of its creditors with a view to rescheduling any of its
indebtedness;
	 
	 	(ii)	 	It becomes subject to a winding-up;
	 
	 	(iii)	 	It proposes or takes any corporate action, or any person
commences any litigation or administrative proceedings or other formal
procedure, in relation to its winding-up which in the case of an involuntary
action is not dismissed within 30 days;






	 	(f)	 	The Borrower is declared bankrupt, insolvent, subject to reorganization,
moratorium, or to any other law affecting the rights of creditors generally;
	 
	 	(g)	 	The Borrower is dissolved, a resolution for its dissolution is passed or a
request for its dissolution is filed;
	 
	 	(h)	 	The Borrower terminates all or a substantial part of its business;
	 
	 	(i)	 	At any time it is unlawful for the Borrower to perform any or all of its
obligations under this Agreement or any obligation of the Borrower under this Agreement
is illegal, invalid or unenforceable;
	 
	 	(j)	 	The Borrower breaches any of its representations, warranties or covenants in
the Option Purchase Agreement, the Preferred Stock Purchase Agreement, the IP Pledge
Agreement or impairs any of the Lender’s rights set forth in the Borrower’s articles of
association; or
	 
	 	(k)	 	Any event or circumstance occurs that, in the opinion of the Lender, might
have, directly or indirectly, a material adverse effect on the Borrower’s ability to
perform any of its obligations under this Agreement.




 









 












	9.2	 	If an Event of Default has occurred, the Loan together with accrued interest and all other
amounts owing under this Agreement will immediately be due and payable without any default
notice or court intervention being required.
	 
	10.	 	COSTS AND EXPENSES
	 
	 	 	The Lender and the Borrower shall each bear their own costs and expenses incurred in
connection with this Agreement.
	 
	11.	 	INDEMNITY
	 
	 	 	The Borrower undertakes to indemnify the Lender against any loss or liability incurred by
the Lender (including any loss of margin or other loss or expense on account of funds
borrowed, contracted for or utilised to fund any amount payable under this Agreement) as a
result of:






	 	(a)	 	any payment of principal of or interest on the Loan or of an overdue amount
being received otherwise than on its due date; or
	 
	 	(b)	 	an Event of Default.






	12.	 	TAXES
	 
	12.1	 	All payments to be made by the Borrower under this Agreement shall be made free and clear of
and without deduction for or on account of tax, except to the extent the Borrower is required
to make such a payment subject to tax. If any tax must be deducted or withheld from any amount
payable or paid by the Borrower, then the Borrower shall pay such additional amounts as are
necessary to ensure that the Lender receives a net amount equal to the amount which it would
have received if no such deduction or withholding had been made or required to be made. The
Borrower shall promptly notify the Lender if it is required to make a deduction or
withholding.
	 
	12.2	 	If the Lender is required to pay any amount in respect of tax on any payment due from the
Borrower under this Agreement, the Borrower shall promptly reimburse the Lender for that
payment at its first request.
	 
	13.	 	PAYMENTS
	 
	13.1	 	All payments payable by the Borrower shall be made and calculated without reference to any
set-off or counterclaim. Each payment by the Borrower under this Agreement shall be made for
value on its due date, without any notice from the Lender being required, by deposit of
immediately available funds to the account designated by the Lender.
	 
	13.2	 	All payments pursuant to this Agreement shall be made in United States Dollars (USD).
	 
	13.3	 	All payments to be made by the Borrower under this Agreement shall be calculated and be made:






	 	(a)	 	without, and clear of any deduction for, set-off or counterclaim; and
	 
	 	(b)	 	clear of any deduction or withholding for, or on account of, any tax, levy,
impost, duty or other charge of a similar nature, other than any such deduction or
withholding required by law.




 









 












	13.4	 	If the Borrower is required to make a deduction or withholding as referred to in Subclause
13.3 (b), the amount of the payment due from it shall be increased to an amount which, after
making the deduction or withholding, leaves an amount equal to the payment which would have
been due if no deduction or withholding had been required.
	 
	14.	 	SET-OFF
	 
	 	 	The Lender may set off any obligation due and payable by the Borrower under this Agreement
against any obligation (whether or not under this Agreement and whether or not due and
payable) owed by the Lender to the Borrower. If the obligations are in different
currencies, the Lender may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.
	 
	15.	 	CHANGES TO THE PARTIES
	 
	 	 	All covenants and agreements of the Parties contained in this Agreement shall be binding and
inure to the benefit of their respective successors and permitted assigns. Each of the
Parties may assign any rights or obligations under this Agreement.
	 
	16.	 	COUNTERPARTS
	 
	 	 	This Agreement may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed an original, and such counterparts together shall constitute
only one instrument.
	 
	17.	 	NOTICES
	 
	 	 	Any notice or other communications provided under this Agreement shall be in writing in the
English language and addressed or delivered, to the applicable person at the address set
forth in the header of this Agreement, or such other address of which such Party has
specified in any written notice to the other Party hereto.
	 
	18.	 	TERMINATION, SUSPENSION, AMENDMENTS, WAIVERS AND REMEDIES CUMULATIVE
	 
	18.1	 	The Borrower cannot rescind (ontbinden) this Agreement in whole or in part.
	 
	18.2	 	The Borrower shall bear the risk of any error (dwaling) made by it in relation to this
Agreement.
	 
	18.3	 	The Borrower may not suspend (opschorten) compliance with its obligations under or in
connection with this Agreement on whatever grounds.
	 
	18.4	 	This Agreement may be amended, supplemented or waived only by a written agreement between the
parties.
	 
	18.5	 	The rights of the Lender under this Agreement may be exercised as often as necessary, are
cumulative and not exclusive of its rights under general law. No failure or delay on the part
of the Lender in exercising any right shall operate as a waiver or impair that right. No
waiver of any such right shall be effective unless given in writing.




 









 






	19.	 	CHANGES TO PARTIES
	 
	19.1	 	The Lender may:






	 	(a)	 	assign (overdragen) its rights under this Agreement (in whole or in part); or
	 
	 	(b)	 	transfer its legal relationship (rechtsverhouding) under this Agreement (in whole or in
part) to another person.






	19.2	 	Any transfer as referred to in this Clause 19 shall be made by a deed of transfer governed by
Dutch law. The Borrower hereby cooperates with any transfer in anticipation. Any transfer
shall take effect by notice to the Borrower (whether prior to or after the signing of the deed
of transfer).
	 
	19.3	 	The Borrower may not assign, transfer or encumber any of its rights or obligations under or
in connection with this Agreement.
	 
	20.	 	EVIDENCE
	 
	 	 	The entries made in the accounts maintained by the Lender; and any certification or
determination by the Lender of an amount or rate under this Agreement; are conclusive
evidence (dwingend bewijs) of the matters to which they relate.
	 
	21.	 	SEVERABILITY
	 
	 	 	If a provision of this Agreement is invalid or unenforceable in any jurisdiction that shall
not affect the validity or enforceability of any other provision of this Agreement and the
validity or enforceability in other jurisdictions of that or of any other provision of this
Agreement.
	 
	22.	 	GOVERNING LAW AND JURISDICTION
	 
	22.1	 	This Agreement is governed by the law of the Netherlands.
	 
	22.2	 	The competent courts of Amsterdam, the Netherlands shall have exclusive jurisdiction with
regard to disputes in connection with this Agreement.




 









 











THUS
AGREED







 





NUVASIVE, INC.

by:

its:









 





PROGENTIX ORTHOBIOLOGY B.V.

by:

its: Director




 









 




Schedule 1

Patents


***

Trademarks

***

 


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



 







 










Schedule 2




INTELLECTUAL PROPERTY SECURITY AGREEMENT



     This Intellectual Property Security Agreement is entered into as of the Effective Date by and
between NuVasive, Inc., a company incorporated under the laws of Delaware (“Lender”) and Progentix
Orthobiology B.V., a private company with limited liability organized and existing under the laws
of the Netherlands (“Borrower”).



RECITALS




     A. Lender has agreed to make certain advances of money and to extend certain
financial accommodation to Borrower (the “Loans”) in the amounts and manner set forth in that
certain Senior Secured Facility Agreement by and between Lender and Borrower dated the Effective
Date (as the same may be amended, modified or supplemented from time to time, the “Loan Agreement”;
capitalized terms used herein are used as defined in the Loan Agreement). Lender is willing to
make the Loans to Borrower, but only upon the condition, among others, that Borrower shall grant to
Lender a security interest in the Borrower’s Proprietary Rights to secure the obligations of
Borrower under the Loan Agreement.



     B. Pursuant to the terms of the Loan Agreement, Borrower has granted to Lender a
security interest in all of Borrower’s right, title and interest to and under all of the Borrower’s
assets, including its Proprietary Rights.



     NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged,
and intending to be legally bound, as collateral security for the prompt and complete payment when
due of its obligations under the Loan Agreement, Borrower hereby represents, warrants, covenants
and agrees as follows:



AGREEMENT




     To secure its obligations under the Loan Agreement, Borrower grants and pledges to Lender a
security interest in all of Borrower’s right, title and interest in, to and under its assets,
including without limitation its Proprietary Rights listed on ExhibitA hereto, and
including without limitation all proceeds thereof (such as, by way of example but not by way of
limitation, license royalties and proceeds of infringement suits), the right to sue for past,
present and future infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and continuations-in-part thereof.



     This security interest is granted in conjunction with the security interest granted to Lender
under the Loan Agreement. The rights and remedies of Lender with respect to the security interest
granted hereby are in addition to those set forth in the Loan Agreement and the IP Pledge
Agreement, and those which are now or hereafter available to Lender as a matter of law or equity.
Each right, power and remedy of Lender provided for herein or in the Loan Agreement or the IP
Pledge Agreement, or now or hereafter existing at law or in equity shall be cumulative and
concurrent and shall be in addition to every right, power or remedy provided for herein and the
exercise by Lender of any one or more of the rights, powers or remedies provided for in this
Intellectual Property Security Agreement, the Loan Agreement or the IP Pledge Agreement, or now or
hereafter existing at law or in equity, shall not preclude the simultaneous or later exercise by
any person, including Lender, of any or all other rights, powers or remedies.



 









 




This Agreement is governed by the laws of the state of New York without regard to conflicts of law
principles.



IN WITNESS WHEREOF, the parties have caused this Intellectual Property Security Agreement to be
duly executed by its officers thereunto duly authorized as of the first date written above.




	 	 	 	 	 	 	 
	 	 	 	 	BORROWER:
	 
	 	 	 	 	 	 
	Address of Borrower:	 	PROGENTIX ORTHOBIOLOGY B.V.
	 
	 	 	 	 	 	 
	Professor Bronkhorstlaan	 	By: JD de Bruijn Holding BV, its solely 
	10 D, (3723 MB) Bilthoven, the Netherlands	 	authorized statutory director
	 
	 	 	 	 	 	 
	Attn:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	Name: Joost D de Bruijn
	 	 	 	 	Title: General Director
	 
	 	 	 	 	 	 
	 

	 	 	 	LENDER:
	 
	 	 	 	 	 	 
	Address of Lender:	 	NUVASIVE, INC.
	 
	 	 	 	 	 	 
	7475 Lusk Boulevard	 	By:	 	 
	 

	 	 	 	 	 	 
	San Diego, CA 92121	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Attn:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





 









 




EXHIBIT
A

Patents


***

Trademarks

***

 


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



 







 










Schedule 3




Form of Utilisation Request



	 	 	 
	From:


	 	Progentix Orthobiology B.V.


	 
	
To:

	 	
NuVasive, Inc.






Dated:



Dear Sirs





Progentix Orthobiology B.V. — U.S.$5,000,000 Senior Secured Facility Agreement

dated January 8, 2009 (the “Agreement”)






	 	1.	 	We refer to the Agreement. This is a Utilisation Request. Terms defined in the
Agreement have the same meaning in this Utilisation Request unless given a different meaning
in this Utilisation Request.
	 
	 	2.	 	We wish to borrow a Loan on the following terms:





	 	 	 	 	 
	 

	 	Proposed Utilisation Date:
	 	[                    ] or, if that is not a
	 

	 	 	 	Business Day, the next Business Day)
	 

	 	Amount:
	 	[                    ]
	 

	 	Interest Period:
	 	[                    ]
	 

	 	Purpose:
	 	[                    ]







	 	3.	 	We confirm that no Event of Default is continuing or would result from the proposed
Loan on the date of this Utilisation Request.
	 
	 	4.	 	The proceeds of this Loan should be credited to [account].
	 
	 	5.	 	This Utilisation Request is irrevocable.





Yours faithfully




 





authorised signatory for



Progentix Orthobiology B.V.




 











 






EXHIBIT
C

AMENDMENT OF THE ARTICLES OF ASSOCIATION

PROGENTIX ORTHOBIOLOGY B.V.




On the       day of       two thousand and nine, appeared before me, Alexander Joannes
Wiggers, civil law notary in Amsterdam:


     .




The person appearing declared as follows:





	I.	 	The Articles of Association of Progentix Orthobiology B.V., a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid), with corporate seat in
Bilthoven and office address at      , registered with the Trade Register under number      
(hereinafter referred to as: the “Company”), were lastly established by a deed of amendment
executed on       two thousand and       before      , civil law notary in       (declaration of no
objections dated       two thousand and      , number B.V.:      ).
	 
	II.	 	By written resolution of the Company’s general meeting of shareholders dated       two thousand
and      , it has been resolved:






	 	a.	 	to amend the Articles of Association of the Company as mentioned below, and
	 
	 	b.	 	to authorize the person appearing to apply for the declaration of no objections
and to execute the notarial deed amending the Articles of Association of the
Company.






The shareholders’ resolution has been attached to this
deed.



	III.	 	On behalf of the Minister of Justice a declaration of no objections, number B.V.      
has been issued in accordance with Article 2:235 Dutch Civil Code on       two
thousand and      .





The declaration of no objections has been attached to this deed.
 The person appearing, acting
in said capacity, declared hereby to partially amend the Articles of Association of the Company,
laying them down as follows:





	I.	Article 3.1
is hereby amended and will read as follows:

	 
	3.1	 	The authorised capital of the company amounts to ninety thousand euro
(EUR 90,000), divided into three million (3,000,000) cumulative preference shares A, three
million (3,000,000) cumulative preference shares B and three million
(3,000,000) (3,000,000)
ordinary shares, each share of the value of one euro cent (EUR 0.01).
	 
	II.	Article 3.2
is hereby amended and will read as follows:





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	3.2	 	Everywhere where mention is made in these articles of association of
‘cumulative preference shares’ and ‘cumulative preference shareholders’ those
terms shall be deemed to include both the cumulative preference shares A and
the cumulative preference shares B, and the holders of cumulative preference
shares A and cumulative preference shares B, unless the contrary is explicitly
clear. Everywhere where mention is made in these articles of association of
‘shares’ and ‘shareholders’ those terms shall be deemed to include both the
ordinary shares and the cumulative preference shares, and the holders of
ordinary shares as well as the holders of cumulative preference shares, unless
the contrary is explicitly clear.
	 
	III.	Article 16.5 is hereby deleted and 16.6 through 16.8 are renumbered 16.5
through 16.7.

	 
	IV.	Article 21.6 is hereby deleted and 21.8 through 21.10
are renumbered 21.6 through 21.8

	 
	V.	Article 26.2
is hereby amended and will read as follows:

	 
	26.2	 	All resolutions of the general meeting need to be passed by an absolute majority of the votes
cast, except where a larger majority is required by law or by these articles of association,
and with due observance of the provisions of Article 28.1.
	 
	VI.	Article 28.2
is hereby deleted.






Finally, the person appearing, acting in said capacity, declared the following.





	(i)	 	Immediately prior to the execution of this deed the Company’s issued share capital
amounts to twenty-thousand euro (EUR 22,000), divided into eighteen thousand (18,000)
ordinary shares and four thousand (4,000) preferred shares, each share with a nominal value of
one euro (EUR 1).
	 
	(ii)	 	The ordinary shares, numbered       through       as well as the preferred shares,
numbered CP 2,401 through CP 4,000 are herewith converted into eight hundred
eighty thousand (880,000) preferred shares B with a nominal value of one Euroe
cent (EUR 0.01), renumbered CPB1 through CPB 880,000
[note: further data to
be derived from deed of transfer to NuVa].
	 
	(iii)	 	The two thousand four hundred (2,400) preferred shares, numbered CP 1 through
CP 2400 are herewith converted into 240,000 preferred shares A with a nominal
value of one Euro cent (EUR 0.01) and renumbered CPA 1 through CPA 240,000.
	 
	(iv)	 	Upon the execution of this deed the Company’s issued
share capital amounts to
twenty-two thousand euro (EUR 22,000) divided into:






	 	(a.)	 	one million eighty thousand (1,080,000) ordinary shares, numbered 1
through 1,080,000;
	 
	 	(b.)	 	twohundred forty thousand (240,000) preferred shares A, numbered CPA1
through CPA 240,000;
	 
	 	(c.)	 	eight hundred eighty thousand (880,000) preferred shares
B, numbered
CPB 1 through CPB 880,000;




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     all
shares with each with a nominal value of one euro cent (EUR
0.01).

The person appearing is
known to me, civil law notary, and the identity of the person appearing mentioned in this deed has
been determined by me, civil law notary, by means of the relevant document mentioned
hereinbefore.



This deed has been executed at Amsterdam on the date mentioned at the head of this deed.




The
contents of this deed have been stated and explained to the person appearing by me, civil law
notary.




Furthermore the consequences of this deed have been pointed out to the person appearing. The person
appearing declared to have in good time taken cognisance of the contents of this deed and to agree
with the contents.




Thereupon, after a limited part of this deed had been read out, it has been signed by the person
appearing and by me, civil law notary.




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articles
of association for a private limited liability company




Name and registered office





	1.1.	 	The name of the company is: Progentix Orthobiology B.V.:
	 
	1.2.	 	The company has its registered office in the Municipality of Bilthoven.





Object





	2.	 	The object of the company is:






	 	(a)	 	to develop and to sell products which has to do with biotechnology.
	 
	 	(b)	 	to establish and acquire, participate in, cooperate with, manage and finance (or cause to
be financed) other enterprises of any legal form whatever;
	 
	 	(c)	 	to provide and enter into loans of money, to manage and dispose of registered property and
to furnish security, including security for the debts of other parties;
	 
	 	(d)	 	to perform all other activities which are connected with or conductive to the above in the
broadest sense of the word.





Capital and shares





	3.1.	 	The authorised capital of the company amounts to
€ 90,000.00 (ninety thousand euros)
divided into 30,000 (thirty thousand) cumulative preference shares and 60,000 (sixty thousand)
ordinary shares, each of the value of €1.00 (one euro).
	 
	3.2.	 	Everywhere where mention is made in these articles of association of ‘shares’ and
‘shareholders’ those terms shall be deemed to include both the ordinary shares and the cumulative
preference shares, and the holders of ordinary shares as well as the holders of cumulative
preference shares, unless the contrary is explicitly clear.





Registered shares





	4.1.	 	The shares shall be in name and shall have been numbered for each kind of shares
separately consecutively starting from the number 1.
	 
	4.2.	 	No share certificates can be issued.





The issue of shares




	 	 	 	 	 
	5.1.

	 	(a)
	 	The issue of shares (including the granting of rights to subscribe for shares) shall
be effectuated by a resolution of the general meeting of shareholders, referred to below as: ‘the
general meeting’.
	 
	 	 	 	 
	 

	 	(b)
	 	The general meeting shall also determine the price and the terms and conditions of







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	 	 	 	issue, with due observance of these articles of association. Upon the resolution to
issue it can be determined that a share premium created by payment(s) above par shall be
formed exclusively for the benefit of holders of the kind of shares
to which the payment(s)
relate.
	 
	 	(c)	 	The issue price may not be below par value.
	 
	 	(d)	 	The general meeting may delegate its power to pass the resolutions referred to at (a) and (b)
to another organ of the company and may revoke this delegated power.
	 
	 	(e)	 	The issue of a share also requires an instrument intended for this purpose and executed
before a civil-law notary practising in the Netherlands, to which the persons concerned are
parties.






	5.2	 	Upon the issue of shares each shareholder shall have a pre-emptive right in proportion to the joint
amount of his shares, except where the law provides otherwise. Upon exercising their pre-emptive
right holders of the kind of shares to be issued shall have priority in proportion to the Joint
amount of the kind of shares in question they are holding, in relation to holders of shares of the
other kind. That pre-emptive right can not be assigned. The pre-emptive right may, each time for a
single issue, be limited or excluded by the body authorised to issue.





Payment
on shares





	6.1	 	The nominal amount must be paid up when subscribing for a share. It may be stipulated that a part
of the nominal amount, not exceeding three-quarters, need be paid up only when the Board of
Managing Directors requests such payment
	 
	6.2	 	Payment for shares shall be made in Dutch currency in so far as no other form of contribution has
been agreed upon. Payment may be made in a foreign currency only with the permission of the Board
of Managing Directors.





Register
of shareholders





	7.1	 	The Board of Managing Directors shall keep a register containing the
names and addresses of all shareholders, the number of shares held by them and the kind of shares,
together with the date on which they acquired the shares, the date of acknowledgement or service,
and the amount paid up on each share. The register shall also contain the names and addresses of
those who have a right of usufruct or pledge in respect of the shares, together with the date on
which they acquired the right, the date of acknowledgement or service, and specification of the
rights attached to the shares to which they are entitled in accordance with Article 8, together
with the names and addresses of the holders of depositary receipts issued for shares with the
cooperation of the company.




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	7.2.	 	The register shall be regularly updated, subject to the proviso that every change to the
particulars referred to in paragraph 1 should be noted in the register as quickly as possible.
The register shall also contain a note of every discharge from liability granted in respect of
payments not yet made, together with the date on which the discharge is granted.
	 
	7.3.	 	Each shareholder and any person having a right of usufruct or
pledge in respect of shares and
each holder of depositary receipts issued for shares with the cooperation of the company shall
be obliged to notify the company in writing of their address.
	 
	7.4.	 	The Board of Managing Directors shall, upon request, issue to the person referred to above in
paragraph 1 an extract from the register relating to his right to a share free of
charge. If the share is subject to a usufruct or a pledge, the extract shall specify who is
entitled to the rights referred to in Article 8.
	 
	7.5.	 	The Board of Managing Directors shall deposit the register at the office of the company
for inspection by the shareholders and by the usufructuaries and pledgees entitled to the
rights referred to in Article 8, paragraph 2, and by the holders of depositary
receipts issued for shares with the cooperation of the company. The particulars contained in
the register in respect of shares that have not been paid up in full shall be available for
public inspection; a copy or extract of such particulars shall be issued at no more than cost
price.





Usufruct/pledge





	8.1.	 	A usufruct may be created on shares. The voting right on shares subject to a usufruct
is
vested in the shareholder. Notwithstanding this provision, the usufructuary shall have the
voting right







	 	-	 	if it is a usufruct as referred to in Articles 4:19 and 4:21 of the
Dutch Civil Code (Burgerlijk Wetboek), unless provided otherwise by the parties or by
the cantonal section of the court pursuant to Article 4:23, paragraph 4,
of the Dutch Civil Code (Burgerlijk Wetboek) when the usufruct is created, or
	 
	 	-	 	if this is stipulated when the usufruct is created, provided that both this provision
and (in the event of transfer of the usufruct) the transmission of the voting right
have been approved by the organ of the company designated by the articles of
association for granting approval of a proposed transfer of shares or, in the absence
of such a designation, by the general meeting.






	8.2.	 	A shareholder who has no voting rights and a usufructuary who has voting rights shall
have
the rights conferred by law on the holders of depositary receipts issued for shares with the
cooperation of the company. A usufructuary who does not have voting rights shall have the





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	 	 	rights conferred by law if no provision to the contrary is made when the usufruct is created
or transferred.
	 
	8.3.	 	Shares may be pledged. The provisions of paragraph 1 and 2 of this Article
shall apply mutatis mutandis upon the occasion of creation of the pledge and if another person
exercises the rights of the pledgee.





Depositary
receipts





	9.1.	 	A resolution of the Board of Managing Directors to cooperate in the issue of depositary
receipts for shares in the company shall require the prior approval of the general meeting.
	 
	9.2.	 	Depositary receipts for shares may not be issued to bearer. If this provision has been
breached, the rights attached to the relevant shares may not be exercised as long as the
bearer receipts are outstanding.
	 
	9.3.	 	For the purposes of these articles of association, depositary receipt holders shall be deemed
to mean the holders of a depositary receipts issued for shares with the cooperation of the
company as well as persons who, pursuant to Article 8, have the rights conferred by
law on depositary receipt holders.
	 
	9.4.	 	For the purposes of these articles of association depositary receipts are deemed to
mean depositary receipts issued for shares with or without the cooperation of the company.





Joint
property





	10.	 	If shares, restrictive rights on shares or depositary receipts issued for shares are
held jointly, the persons jointly entitled may be represented in dealings with the company
only by one person notified to the company in writing.





Acquisition
of shares in its own capital / Reduction of capital





	11.1.	 	The acquisition by the company of shares in its own capital that have not been fully paid up shall be void.
	 
	11.2.	 	Fully paid-up shares in the company may be acquired by the company only free of charge or if
all the following provisions have been fulfilled:






	 	(a)	 	the net assets of the company, less the acquisition price, is not less than the
aggregate of the paid-up and called-up part of the capital and the reserves that must
be kept by law;
	 
	 	(b)	 	the aggregate of the nominal value of the shares to be acquired and already
held in the capital of the company by the company and its subsidiaries does not exceed
one-half of the issued capital;
	 
	 	(c)	 	authorisation to acquire has been granted by the general meeting or by another




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	 	 	     organ of the company designated by the general meeting for this purpose.
	 
	11.3.	 	For the purposes of the validity of any acquisition, the deciding factor shall be the
amount of the net assets of the company according to the last approved balance sheet, less the
acquisition price for shares in the company’s capital and payments from profits or reserves to
third parties for which the company and its subsidiaries became liable after the date of the
balance sheet. If a period of more than six months has elapsed since the start of the financial
year, without the annual accounts having been adopted, acquisition in accordance with the
provisions of paragraph 2 shall not be permitted.
	 
	11.4.	 	The preceding paragraphs shall not apply to shares acquired by the company by
universal succession.
	 
	11.5.	 	For the purposes of this Article, the term share shall be deemed to include any
depositary receipt issued for such a share.
	 
	11.6.	 	The general meeting may decide to reduce the issued
capital by cancelling shares or by
reducing the amount of shares by amending the articles of association, subject to the
relevant provisions of the law.
	 
	11.7.	 	Partial repayment on shares or exemption from
the obligation to pay shall only be
possible by way of execution of a resolution to reduce the nominal amount of the shares.
Such a repayment or exemption may occur pro rata with respect to all shares or
exclusively with respect to the shares of a certain kind; the requirement of proportionality
applies to those shares. The requirement of proportionality may be deviated from only
with the consent of all shareholders involved.





No support for the acquisition of shares in the company





	12.1.	 	The company may not, with a view to the subscription for or acquisition by other persons of shares in its capital or depositary receipts for such shares, provide any security, guarantee
the share price, otherwise act as surety for other persons or undertake to be jointly and
severally liable as co-debtor or in any other manner bind itself with or for any other party.
This prohibition applies equally to the company’s subsidiaries.
	 
	12.2.	 	Loans may be granted by the company for the purpose of subscribing for or acquiring shares
in its capital or depositary receipts for such shares only up to a maximum of the amount of
the distributable reserves and with the authorisation of the general meeting.
	 
	12.3.	 	The company shall keep a non-distributable reserve equal to the outstanding amount of the
loans referred to in the preceding paragraph.





Transfer of Shares





	13.1.	 	A transfer of shares or of a restrictive right on shares requires an instrument of
transfer to




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	 	 	which the persons concerned are party and which is executed for this purpose before a civil-law
notary practising in the Netherlands.
	 
	13.2.	 	The transfer of a share has effect by law
against the company. Except where the company is also party to the juristic act, the rights
attaching to the shares may be exercised only after the company has acknowledged the juristic act
or the instrument has been served on it in accordance with the relevant statutory provisions or
after the company has acknowledged the transfer by registration in the register of shareholders
referred to in Article 7.





Restrictions
on transfer / General obligation to offer





	14.1.	 	Shares may be transferred only
after they have first been offered for sale to the co-shareholders in the manner referred to
below.
	 
	14.2.	 	A shareholder need not offer his shares for sale if the transfer occurs with the written
consent of the co-shareholders within three months of the date on which they give their
consent.
	 
	14.3.	 	A shareholder who wishes to transfer one or more shares, referred to below as the offeror,
shall notify the Board of Managing Directors which shares he wishes to transfer. Such
notification shall constitute an offer to sell the shares to his co-shareholders. If the
company holds shares in its own capital it may be deemed to be a co-shareholder for this
purpose only if this has been agreed by the offeror in his offer.
	 
	 	 	The share price shall, unless the shareholders unanimously agree otherwise, be determined by one or
more independent experts to be appointed by the shareholders by
mutual agreement. If the
shareholders fail to reach agreement on this matter within two weeks of receipt of notice of the
offer referred to in paragraph 5 below, any party may apply to the cantonal section of the
court (kantonrechter van de rechtbank) in whose district the company has its registered office for
the appointment of three independent experts.
	 
	14.4.	 	The experts referred to in the
preceding paragraph shall be entitled to inspect all books and documents of the company and to
obtain any information which may assist them in their valuation.
	 
	14.5.	 	The Board of Managing
Directors shall, within two weeks of receipt of the notification
referred to in paragraph 3,
notify the co-shareholders of the offer made by the offeror and notify each shareholder of the
share price within two weeks of the date on which it is fixed by the experts or agreed by the
shareholders.
	 
	14.6.	 	Notwithstanding the provisions of paragraph 8, the Board of
Managing Directors shall, if notified to this effect by all co-shareholders within the period
stipulated in that paragraph,




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	 	 	inform the offeror without delay that the offer has not been taken up or has not been
taken up in full.
	 
	14.7.	 	Shareholders who wish to buy the shares offered for sale shall notify the Board of
Managing Directors accordingly within two weeks of receiving notification of the share
price in accordance with paragraph 5.
	 
	14.8.	 	The Board of Managing Directors board shall then allot the offered shares to the
applicants and shall notify the offeror and all shareholders of the allotment within two
weeks of the expiry of the period specified in paragraph 7.
	 
	 	 	In so far as the shares have not been allotted the Board of Managing Directors shall also
notify the offeror and all shareholders of that fact within the specified period.
	 
	14.9.	 	The shares shall be allotted by the Board of Managing
Directors to the applicants as follows;






	 	(a)	 	in proportion to the nominal value of the shares held by the applicants;
	 
	 	(b)	 	in so far as proportionate allotment is not possible, the allotment shall be
decided by the drawing of lots;






	 	 	Shares may be allotted to the company only if no application for such shares has been made by the
other co-shareholders. 
	 
	 	 	No one may be offered more shares than he has applied for.
	 
	14.10.	 	The offeror may withdraw his offer provided he does so within one month after he has been
notified to which shareholders he may sell all the shares to which the offer relates and at what
price.
	 
	14.11.	 	The shares purchased shall be delivered, in consideration of
simultaneous payment of the purchase price, within eight days of the expiry of the period
during which the offer may be withdrawn.
	 
	14.12.	 	If the offeror has not withdrawn his offer, he may freely transfer the offered shares within a period of three months following the notification referred to in paragraph
6 or 8 that the offer has not been taken up or not taken up in full.
	 
	14.13.	 	When determining the price, the experts referred to in paragraph 3 shall decide
fairly who will bear the costs of the valuation. They may indicate that one of the
determinants is whether or not the offeror withdraws his offer,
	 
	14.14.	 	The provisions of this Article shall, as far as possible, apply mutatis mutandis to the
disposal by the company of shares purchased or otherwise acquired by it.
	 
	14.15.	 	The provisions of this Article shall not apply if the shareholder is obliged by law to
transfer a share to a former shareholder.






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Special
obligation to offer





	 	 	 






	15.1. 	a.	 	If a shareholder dies or loses the unfettered control of his assets or if a
matrimonial community of property or a community of property under a registered partnership of a
shareholder is dissolved, his shares must be offered for sale In accordance with the provisions of
the following paragraphs.






	         	b.	 	The same obligation to offer shares for sale exists if the voting right in
respect of shares is no longer vested in the usufructuary and the usufruct has been created on
the basis of Article 4:19 or 4:21 of the Dutch Civil Code (Burgerlijk
Wetboek), or at the end of a usufruct of this kind.
	 
	 	c.	 	Again, the same obligation to offer shares for sale exists if a shareholder/legal
entity is dissolved or if the shares of a shareholder/legal entity are transferred under
universal title as a result of a merger or division






	15.2.	 	If an obligation to offer shares for sale exists, the provisions of Article 14 shall apply
mutatis mutandis, subject to the proviso that the offeror:






	          	(a)	 	does not have the right to withdraw his offer in accordance with paragraph 10
of that Article;
	 
	 	(b)	 	may retain the shares where the offer has not been taken up or not fully taken up.






	15.3.	 	Persons under an obligation to offer for sale one or more shares shall, within thirty
days of
the obligation arising — or, in the case referred to in paragraph 6 (b), upon
expiration of
the period referred to in that paragraph — notify the Board of Managing Directors of their
offer. In the absence of notification, the Board of Managing Directors shall inform the
persons obliged to offer the shares for sale of their failure to notify and bring the terms
of
the preceding sentence to their attention.




If they still fail to notify the company within eight days, the company shall offer the shares for
sale on behalf of the shareholders(s)
 concerned and, if the offer for sale is taken up in full,
deliver the shares to the purchasers(s) in consideration of simultaneous payment of the purchase
price; the company has an irrevocable power to act in this way.
	 
	15.4.	 	The company shall, in
the event of a transfer of shares pursuant to the provisions of the preceding paragraph, pay to the
person or persons on whose behalf the offer was made the net balance of the purchase price after
deduction of any costs incurred in the transaction.
	 
	15.5.	 	The voting right attached to the shares, the right to participate in the general
meeting and the right to distributions shall be suspended during the period in which the
shareholder fails to discharge the obligation to offer the shares for sale on the basis of the
provisions of this article.





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	15.6.	 	The obligation under paragraph 1 shall not apply:






	 	(a)	 	if all co-shareholders have given notice in writing within three months of the
obligation arising that they agree to the new shareholder or shareholders;
	 
	 	(b)	 	if the shares form part of a community of property to which not only the person
who has contributed the shares to the community but also one or more other persons are
entitled, in so far as the shares are transferred within one year of the dissolution of
the community of property to the person who contributed the shares to the community.





Management





	16.1.	 	The Executive Board, consisting of a number of one or more managing directors to be
determined by the general meeting, under the supervision of a Supervisory Board, consisting of
one or more supervisory directors, shall be charged with the management of the company.






	16.2.	 	Managing directors shall be appointed by the general meeting and may be suspended and
discharged by the general meeting at all times. The Supervisory Board, too, shall be
authorized to suspend managing directors.



The general meeting may grant and deprive one or more managing directors of the title of
general manager at all times.
	 
	16.3.	 	The Executive Board can determine a set of rules about its decision-making and about
the particular task(s) of each of the managing directors. All resolutions of the Executive Board
with respect to which the rules do not prescribe a larger majority, shall be adopted by an
absolute majority of the votes cast.






	16.4.	 	All resolutions of the Executive Board with respect to the following subjects shall
require the prior approval of the Supervisory Board, or, for as long as that Board is not yet
functioning, the meeting of holders of cumulative preference shares:






	 	a.	 	the adoption of an annual budget, comprising an investment plan and a financial plan, that must
be drawn up by the Executive Board each year;
	 
	 	b.	 	the carrying out of legal acts as a consequence of which the annual plan of the
company is exceeded upon by 10% (ten percent) or more;
	 
	 	c.	 	the entering into settlement agreements;
	 
	 	d.	 	the conducting and stopping of legal proceedings (inclusive of mediation and
arbitration proceedings) with the exception of interim injunction proceedings that
can not suffer delay;
	 
	 	e.	 	the granting of bonuses or result-dependent remunerations to the Executive Board,





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	 	 	 	the management team or the other employees of the company;
	 
	 	f.	 	the entering into any share option agreement and the granting of individual share
options on the basis of such a plan;
	 
	 	g.	 	the adoption of (a) pension scheme(s) and the granting of pension rights apart
from those that result from existing pension commitments;
	 
	 	h.	 	the entering into contracts, transactions or obligations the amount of which
exceeds €;100,000.00 (one hundred thousand euros).
	 
	 	i.	 	the entering into and amending of employment contracts in which a gross annual
remuneration is granted of €50,000.00 (fifty thousand euros) or more;
	 
	 	j.	 	the entering into an agreement or arrangement with a (person affiliated with a) shareholder,
managing director or supervisory director of the company or of a subsidiary of the company;
	 
	 	k.	 	the appointment of attorneys-in-fact or, as the case may be, empowered persons and
terminating their authorisation and title.






	16.5.	 	All resolutions of the Executive Board with respect to the following subjects shall require
the prior approval of the meeting of cumulative preference shareholders:






	 	a.	 	the opening or closing of branch establishments, taking or terminating a direct
or indirect participating interest in other companies or the termination or
changing of the extent of such a participating interest, in the home country or
abroad.
	 
	 	b.	 	the granting of money loans as well as the entering into money loans as a borrower
and into credit arrangements (including also lending to or borrowing from affiliated
companies) that do not exceed an amount of 10% (ten percent) of the total
nominal amount paid on preference shares increased by the share premium;
	 
	 	c.	 	binding the company as a guarantor or several co-debtor or binding the company
in another way for obligations of third parties not exceeding an amount of 10% (ten
percent) of the total nominal amount paid on preference shares increased by the
share premium;
	 
	 	d.	 	the acquisition, alienation, encumbrance, renting, letting out for rent of, or
acquiring in any other manner or granting of the use or enjoyment of, immovable
and/or movable property and/or property rights;
	 
	 	e.	 	The entering into agreements in which a credit is granted to the company that
exceeds an amount of 10% (ten percent) of the total nominal amount paid on the
preference shares increased by the share premium.




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	 	f.	 	long term direct or indirect collaboration with other enterprises and the termination
of such collaboration;
	 
	 	g.	 	legal acts that do not fall under the normal conduct of business of the company;
	 
	 	h.	 	initiating investments or disinvestments or acquiring or divesting (a) company
activity(ties);
	 
	 	i.	 	the application for a moratorium or bankruptcy of the company;
	 
	 	j.	 	the granting of registration rights or comparable rights;
	 
	 	k.	 	the entering into, terminating or amending of (license) agreements with respect to
intellectual property rights of the company;
	 
	 	l.	 	the exercising of voting rights on shares of a company in which the company
participates.






	16.6.	 	For the application of the paragraphs 16.4 and 16.5 a resolution of the
Executive Board to carry out a legal act shall be equated with a resolution of the Executive
Board to adopt or approve of a resolution of any body of a company in which the company has a
participating interest, provided that the latter resolution requires approval as referred to
in the paragraphs 16.4 and 16.5.






	 	 	The absence of approval as referred to in this paragraph shall not affect the
representative authority of the Executive Board or of the managing directors.






	16.7.	 	In the event of the absence or inability to act of one of the managing directors, the
other
managing directors shall continue to be charged with the management. In the event of
the absence or inability to act of all managing directors, one person designated for that
purpose by the Supervisory Board whether or not from amongst its members shall be
charged temporarily with the management of the company.




The Supervisory Board shall have the right to designate a person as referred to in the
preceding sentence also in the event of the absence or inability to act or one or more, but
not all, managing directors, which person than shall be co-charged with the management.






	16.8.	 	The remuneration and further terms and conditions of employment shall be determined
by the general meeting for each managing director separately.





Representation





	17.1.	 	The Executive Board shall represent the company. Two managing directors acting jointly shall
also have that representative authority. A managing director with the title ‘general manager’
shall be authorized to represent the company independently.






	17.2.	 	In all situations in which there is a conflict of interests between the company and one or





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	 	 	more managing directors, the company shall nevertheless be represented in the manner
mentioned above.






	 	 	A resolution of the Executive Board to carry out a legal act involving a conflict of
interests as referred to above, shall require the prior approval of the Supervisory Board.





Supervisory Board





	18.1.	 	There shall be a Supervisory Board if a resolution of the general meeting to that end has
been deposited at the office of the Commercial Register, for as long as no resolution of the
general meeting, to abolish the Supervisory Board has been deposited there. A Supervisory
Board-shall consist of one or more natural persons. The number of supervising directors shall
be determined by the general meeting. The supervising directors shall be appointed, suspended
and dismissed by the general meeting. If no Supervisory Board has been established, the powers
granted in these articles of association to the Supervisory Board shall be the powers of the
general meeting to the extent to which that is possible.






	18.2.	 	The Supervisory Board shall be charged with supervising the policy conducted by the Executive
Board and the general run of affairs in the company and the enterprise linked to it and in
addition with the tasks imposed on it in these articles of association or in the law. The
Supervisory Board shall give advice to the Executive Board and to the general meeting each
time when this is requested to do so or it deems such advice desirable.






	 	 	The supervising directors, both jointly and each director individually shall at all times
have access to the offices and properties of the company and shall have the right to inspect
the books, records and correspondence and to check the cash money of the company at all
times.






	 	 	The Supervisory Board shall have the right to have itself assisted by one or more experts for
the account of the company.






	 	 	The Supervisory Board may designate one or more delegates from amongst its members, which
delegates shall be charged in particular with the day-to-day supervision of the Executive
Board.






	18.3.	 	The Supervisory Board shall elect a President, a Vice-President and a Secretary from amongst
its members, but it shall also be allowed to elect one of the managing directors as Secretary.






	18.4.	 	The Supervisory Board shall meet at least twice a year and in addition as often as it is
requested to do so by one supervising director or one managing director.






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	18.5.	 	The Supervisory Board may adopt a set of rules about its decision-making process. All
resolutions of the Executive Board with respect to which the rules do no prescribe a larger
majority, shall be adopted by an absolute majority of the votes cast.
	 
	18.6.	 	Each managing director shall be obliged to attend the meetings of the Supervisory Board if
invited to do so and to give all information there with respect to the business of the
company.
	 
	18.7.	 	Records shall be kept of the resolutions of the Supervisory Board. Those records shall be
kept by the Supervisory Board.





Annual
accounts





	19.1.	 	The financial year of the company coincides with the calendar year.
	 
	19.2.	 	Every year within five months after the expiration of the financial year of the company,
except where that term is extended by the general meeting by six months at the most in view of
special circumstances, the Executive Board shall draw up annual accounts that shall be
deposited at the office of the company for inspection by the shareholders. 



Within that term
the Executive Board shall also deposit the annual report for inspection, unless section
2:396, paragraph 6, first sentence or section 2:403 of the Dutch Civil
Code
applies.
	 
	 	 	The annual accounts shall be signed by all managing directors and all supervising directors.
	 
	 	 	If any signature is missing, that shall be reported with mentioning of the reason(s) for
this. The annual accounts shall be accompanied by an opinion from the Supervisory Board.






	19.3.	a.	 	 The company shall commission an audit of the annual accounts. The general meeting
shall be authorised to commission the audit. If it fails to do so, the Supervisory Board shall
be entitled to do so and if the latter also fails to do this, the Executive Board.
	 
	 	 	 	The assignment may at all times be withdrawn by the general meeting and by the
commissioning party.






	 	b.	 	The assignment shall be granted to an accountant. The designation of an
accountant shall not be limited by any recommendation. If the appointment of an
accountant is not required by law, the general meeting shall be entitled to grant such
an assignment also to another party.
	 
	 	c.	 	The person to whom the assignment is granted shall report to the Supervisory




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	 		 	Board and the Executive Board in writing.






	19.4.	 	The company shall ensure that the
annual accounts that have been drawn up, the annual report, the opinion of the Supervisory Board
and the information to be added under section 2:392 paragraph 1 of the Dutch Civil
Code shall be present at the office of the company from the day of the convocation of the general
meeting intended for the discussion of those documents. The shareholders and the depositary receipt
holders can inspect the documents there and obtain a copy of them free of charge.





Adoption
of the annual report and accounts





	20.1.	 	The annual accounts shall be adopted by the general meeting. 



The
annual report shall be adopted by the Executive Board.






	20.2.	 	After the proposal to adopt the annual accounts will have been discussed, a proposal shall
be made to the general meeting to grant discharge to the managing directors for the policy
conducted by them in the financial year in question, in as far as such policy is evident from
the annual account or has been notified to the general meeting, and discharge to the
supervisory directors for their supervision.





Profit
appropriation





	21.1	 	The profit shall be at the free disposal of the general meeting.
	 
	21.2	 	The company can only make payments to the shareholders and other parties entitled to the
profit susceptible for distribution in as far as the equity is larger than the part of the
capital paid up and called for, increased by the reserves that must, be maintained under the
law or the articles of association.
	 
	21.3	 	Distribution of profit shall occur after the adoption of the annual accounts that evidence
that such distribution is permitted.
	 
	21.4	 	If the general meeting of shareholders resolves to distribute profit over the financial year
most recently expired, then first of all, a payment shall occur, where possible; on
cumulative preference shares of a percentage of eight percent (8%) of the nominal amount of
each share.
	 
	21.5	 	If the distribution referred to above under 4 has not occurred in any year, then a
payment shall occur, if the general meeting resolves to distribute profit in any subsequent
year, first of all. if and to the extent to which this is possible, on the cumulative
preference shares of the amount of the preference dividend that has not been paid to the
cumulative preference shares in the years preceding.
	 
	21.6	 	In the event of:




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	 	•	 	liquidation or sale of all or almost all assets of the company;
	 
	 	•	 	the granting of exclusive rights of use with respect to all or nearly all assets of
the company;
	 
	 	•	 	a merger of the company;
	 
	 	•	 	the transfer of the enterprise of the company;
	 
	 	•	 	the receipt of a dividend payment from a subsidiary of the company as a consequence of one of
the contingencies referred to above in this paragraph;
	 
	 	•	 	the sale of more than 80% (eighty percent) of the shares of the subscribed share capital, with the exception of the
situation in which an initial Public Offering (IPO) of he shares of the company occurs at a
recognised stock exchange;






the company shall be obliged to distribute the proceeds generated
as a result thereof (liquid means, shares or other assets) as follows:




	 	I.	(i)  	if the relevant proceeds generated represent an amount
smaller than € 15,000,000.00 (fifteen million euros) the holders of cumulative
preference shares shall be entitled






	 	•	 	to twice the amount of the nominal value of the cumulative
preference shares;
	 
	 	•	 	to the premium reserve paid on those preference shares; and
	 
	 	•	 	to any preference of eight percent (8%) in arrears as referred to above, it being understood that if the
remaining amount is too small for such a distribution, that remaining amount shall be
made available to the holders of cumulative preference shares in proportion to the
number of shares in the subscribed capital of the company held by each of them;






	 	 (ii)	 	any amount remaining from those proceeds generated after full payment to the holders
of cumulative preference shares in conformity with the provisions under 1 shall be
paid to the holders of cumulative preference shares and the holders of ordinary
shares, this in proportion to the total number of shares in the subscribed capital of
the company held by each of them;






	 	II.	 	if the aforementioned proceeds that are generated represent an amount larger than € 15,000,000.00 (fifteen million euros) the generated proceeds shall be divided
between the shareholders in proportion to the total amount of shares in the sub-scribed capital of the company held by each shareholder.




21.8. In calculating the profit division shares held by the company in its own capital shall not









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		 	count, unless those shares have been encumbered with a right of usufruct or pledge or if
depositary receipts have been issued for them; as a consequence of which the usufructuary,
the pledge or the holder of those depositary receipts is entitled to the right to receive
profit.
	 
	21.9.	 	Shares for which the company is holding depositary receipts or with respect to which the
company has a restrictive right on the basis of which it is entitled to profit distribution,
shall not count in the calculation of the profit division either.
	 
	21.10.	 	The company shall only be allowed to make interim distributions if the requirement
of paragraph 2 has been complied with and with due observance of the fact that the
provisions of the fourth and fifth paragraph of this article with respect to cumulative
preference shares shall apply to the payment of interim dividend on cumulative preference
sharers.





Dividend





	22.	 	The dividend may be claimed by the shareholders one month after its declaration, unless
the general meeting determines another period. Such claims shall be barred after five years.
	 
	 	 	A dividend not claimed within five years of the date on which it is declared shall revert to
the company.





General meeting





	23.1	 	General meetings of shareholders shall be held in the Netherlands in the municipality






	 	 	where the company has its registered office.
	 
	23.2.	 	 A general meeting (referred to
hereinafter as the annual meeting) shall be held annually no later than six months after the end of the company’s financial year.






	 	 	The agenda shall contain the following items:






	 	(a)	 	the annual accounts;
	 
	 	(b)	 	the annual report, unless Article 2:396, paragraph 6, or
Article 2:403 of the Dutch Civil Code (Burgerlijk Wetboek) applies to the
company;
	 
	 	(c)	 	the resolution to discharge the executive directors from liability for their
management during the relevant financial year, in so far as such management is evident
from the annual accounts or has been made known to the general meeting
	 
	 	(d)	 	resolutions tabled by the Board of Managing Directors;
	 
	 	(e)	 	resolutions, the discussion of which has been requested in writing by one or
more shareholders and/or depositary receipt holders solely or jointly representing at
least




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	 		 	one hundredth of the issued capital, if the company has received such request not later than on the
thirtieth day before the day of the meeting and provided that no important interest of the company
dictates otherwise, which resolutions shall be included in the notice calling the meeting or shall
be announced in the same manner as the resolutions mentioned above at (d);
	 
	 	(f) 	 	 any other business, subject to the proviso that no legally valid resolutions may be passed in respect of
business not specified in the notice calling the meeting or in any supplementary notice sent within
the period prescribed for giving notice of the meeting, unless the resolution is passed unanimously
at a meeting at which all shareholders and depositary receipt holders for shares are present or
represented.






	23.3.	 	Where a resolution providing for an extension as referred to in Article
18, paragraph 2, is passed, the annual meeting at which the annual accounts and
annual report are to be dealt with shall be postponed in accordance with that resolution.
	 
	23.4.	 	Other general meetings shall be held as frequently as the Board of Managing Directors or the
Supervisory Board calls them. The Board of Managing Directors shall be obliged to call a general
meeting if it receives a written request to this effect, accurately specifying the items to be
dealt with, from one or more shareholders and/or depositary receipt holders representing at least
one tenth of the issued capital. If the Board of Managing Directors does not call a meeting within
four weeks, in such a way that the meeting can be held within six weeks of the request, the persons
making the request shall themselves be entitled to call the meeting





Calling general meetings





	24.1.	 	Each shareholder and each depositary receipt holder is entitled to attend general
meetings, either in person or represented by proxy appointed in writing, and to address
the meeting.
	 
	 	 	Shares which by law carry no voting rights shall not be taken
into account in determining to
what extent a shareholder is present or represented.
	 
	24.2.	 	The notice calling a general meeting shall be sent to the addresses of the shareholders and
depositary receipt holders as listed in the register of shareholders. Notice shall be given no
later than on the fifteenth day before the meeting.
	 
	24.3.	 	The notices calling the meeting shall specify the items to be dealt with, without prejudice
to the statutory provisions governing special decisions such as those governing legal merger,
division, amendment of the articles of association and reduction of capital.
	 
	24.4.	 	if the notice calling the meeting was not sent, or was not sent within the period
prescribed






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	 	 	for notice of such meeting, no legally valid resolutions may be passed, unless they
are passed unanimously at a meeting at which all shareholders and depositary receipt holders
are present or represented and the views of the Managing Directors and the Supervisory Board
have been heard.
	 
	24.5.	 	Each Managing Director and Supervising Director shall be entitled to attend the
general meeting and act there in an advisory capacity.





Chairing
the general meeting





	25.1.	 	The general meeting shall be chaired by the President of the Supervisory Board. In the
absence of the President or if there is no Supervisory Board, the meeting shall elect its own
chairman. The general meeting shall itself appoint a chair. Until that moment the meeting
shall be chaired temporarily by the oldest Managing Director (in age) present at the meeting
or, in the absence of any such director, by the oldest person present at the meeting. The minutes of the meeting shall
be kept by a secretary appointed by the chair.
	 
	25.2.	 	Both the chair and the Supervisory Board and the person who has called the general meeting
may direct that a notarised record of the proceedings at the meeting be drawn up. The
notarised record shall be countersigned by the chair. The costs thereof shall be borne by the
company.
	 
	25.3.	 	If a notarised record is not drawn up, the minutes of the general meeting shall be adopted
by the chair and the secretary at that meeting and signed by them in confirmation thereof.
	 
	25.4.	 	The Board of Managing Directors shall keep a record of the resolutions passed by the general
meeting. If the Board of Managing Directors is not represented at the general meeting, a copy
of the resolutions passed shall be supplied to the Board of Managing Directors by or on behalf
of the chair of the meeting as soon as possible after the meeting. Such record shall be kept
at the office of the company for inspection by the shareholders and depositary receipt
holders. Each of them shall be issued, on request, with a copy of or extract from such record
at not more than cost price.





Passing
of resolutions





	26.1.	 	Each share shall carry one vote.
	 
	26.2.	 	All resolutions of the general meeting need to be passed by an absolute majority of the
votes cast, except where a larger majority is required by law or by these articles of
association.
	 
	26.3.	 	Votes shall be cast orally in respect of business other than elections and shall be cast by
unsigned ballot papers in the case of elections. If an absolute majority is not obtained in an
election ballot, a second ballot shall be held between the two persons for whom the 




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	 	 	most votes were cast in the first ballot.
	 
	26.4	 	In the case of a tied vote on business other than elections,
the resolution shall be deemed to
have been defeated.
	 
	 	 	In the case of a tied vote on elections, the matter shall be decided by lot.
	 
	26.5.	 	 Blank votes shall be deemed not to have been cast.
	 
	26.6.	 	No vote may be cast at a general meeting for a share belonging to the company or a
subsidiary thereof, nor for a share for which the company or a subsidiary thereof holds the
depositary receipts. Usufructuaries and pledgees of shares belonging to the company or its
subsidiaries are, however, not precluded from exercising their right to vote if the usufruct
or pledge was created before the share belonged to the company or a subsidiary thereof.
	 
	 	 	The company or a subsidiary thereof may not cast a vote for a
share in respect of which it
possesses a right of usufruct or pledge.
	 
	 	 	Shares for which no voting rights may be exercised pursuant to the above shall not be taken
into account in determining to what extent capital is represented at the general meeting.





Passing
of resolutions other than in a general meeting





	27.   	 	All resolutions that may be
passed in a general meeting may also be passed other than at such a meeting, unless there are
depositary receipt holders, provided that all shareholders have indicated in writing, whether by
means of telecommunication or otherwise, that they are in favour of the resolution and provided that the views of the
Managing Directors have been heard. The provisions of Article 23, paragraph 5, and
Article 24, paragraph 4, shall apply mutatis mutandis.





Special
resolutions





	28.1.	 	Resolutions to amend these articles of association or to wind up the company may be passed
only at a general meeting at which not less than two thirds of the issued capital is
represented and by a majority of at least three quarters of the votes
cast.
	 
	28.2.	 	If this capital is not represented, another meeting shall be called and held within one
month of - but no earlier than fifteen days after - the first meeting. At this second meeting a
resolution as referred to in paragraph l may be passed by a majority of not less than three
quarters of the votes cast, irrespective of the proportion of capital represented at such
meeting.
	 
	 	 	The notice calling this new meeting shall state that it is a second meeting for the purposes
of Article 2:230, paragraph 3, of the Dutch Civil Code
(Burgerlijk Wetboek).





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Notices
and notifications




	29.1.	 	Notices and other notifications sent by or to the company shall be in writing and may be
sent by means of telecommunication or otherwise. Notices intended for shareholders,
usufructuaries, pledgees and depositary - receipt holders shall be sent to the addresses
referred to in the register of shareholders. Notices intended for the Board of Managing
Directors shall be sent to the address of the company.
	 
	29.2.	 	Notifications which must, by law or pursuant to the articles of association, be addressed to
the general meeting may be sent by inclusion in the notices calling a meeting.





dissolution





	30.1	 	After dissolution of the company the liquidation shall be done by the managing directors,
unless the general meeting determines otherwise. The liquidation shall be done under the
supervision of the supervising directors, unless no supervising directors are functioning at
the time of the adoption of the resolution to dissolve the company.
	 
	30.2	 	During the liquidation the provisions of these articles of association shall continue to be of effect to the largest
extent possible. The provisions in those articles about managing directors then shall
apply to the liquidators.
	 
	30.3	 	The provisions of article 21 paragraph 6 shall apply, mutatis mutandis, to the division of
the remaining amount after the liquidation to the largest extent possible.
	 
	30.4	 	After its liquidation the company shall continue to exist in as far as required for the liquidation of
its assets.





conversion





	31.	 	Cumulative preference shares can always be converted (one into one, without any
additional payment being required) into ordinary shares, this at the request of each holder of
cumulative preference shares. A written notification of the holder of cumulative preference shares in question to the company shall be required for such a conversion, after which that
conversion must be laid down in a notarial deed. By the execution of that request all
cumulative preference shares in question shall, without any other legal act than the
aforementioned notarial deed being required, be converted in just as many ordinary shares of
the same nominal amount, and they shall be numbered consecutively to the ordinary shares that
have already been subscribed at that time. The Executive Board shall be obliged to record the
aforementioned conversion of the cumulative preference shares into ordinary shares in the
Commercial Register and in the shareholders’ register. In as far as the authorised capital of
the company would contain insufficient ordinary shares to





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	 	 	realize this conversion without an amendment of the articles of association, the shareholders
shall be obliged to adopt a resolution to amend the articles of association as is required
for that purpose. By subscribing for a share in the capital of the company each shareholder
authorizes the company irrevocably to do all that is necessary for realising this amendment
of the articles of association.





Final
provision





	32.	 	Any powers not conferred on other persons shall, within the limits of the law and
these articles of association, be vested in the general meeting.






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EXHIBIT
D











SWl\SWl\20048970\158596



TRANSFER OF SHARES

PROGENTIX ORTHOBIOLOGY B.V.


On the fourteenth day of January two thousand and nine, appeared before me, Johan
Hendrik Bennebroek Gravenhorst, candidate civil law notary, hereinafter referred to as: “civil Law
notary”, as a substitute of Alexander Joannes Wiggers, civil law notary in Amsterdam:



Floris David van der Velde, holding offices at Amstelveenseweg 638,1081 JJ Amsterdam,
born in Haarlem on the twenty-eighth day of January nineteen hundred and seventy-nine,
holder of a driving licence with number 3170900441. unmarried and not registered as a
partner,



acting pursuant to a written power of attomey from:





	1.	 	J.D. de Bruijn Holding B.V., a private company with limited liability organized under
the laws of the Netherlands, with statutory seat in Amersfoort. The Netherlands and
with office address at Pasteurstraat 16,3817 JL Amersfoort, the Netherlands,
registered with the Trade Register under number 32112279, hereinafter
referred to as: “Seller 2”;
	 
	2.	 	Incubation B.V., a private company with limited liability organized under the laws of
the Netherlands, with statutory seat in Bilthoven, the Netherlands and with office
address at Professor Bronkhorstlaan 10 D, 3723 MB Bilthoven, the Netherlands,
registered with the Trade Register under number 30194071, hereinafter referred to
as: “Seller 2”;
	 
	3.	 	Huipin Yuan, born in Sichuan, China, on the nineteenth day of April nineteen
hundred sixty-six, residing at Nijenheim 2424,3704 VK Zeist, the Netherlands, holder
of a Chinees passport with number Gl9596325, married, hereinafter
referred to as:
“Seller 3”;
	 
	4.	 	Biogeneration Ventures B.V., a private company with limited liability organized
under the laws of the Netherlands, with statutory seat in Leiden, the Netherlands and with
office address at Gooimeer 2-35, 1411 DC Naarden, the Netherlands, registered
with the Trade Register under number 32119447, hereinafter referred to as:
“Seller 4”,
	 
	 	 	the Seller 1, the Seller 2, the Seller 3 and the Seller 4 hereinafter also collectively




- 1 -









 

















	 	 	referred to as: the “Sellers”;
	 
	5.	 	NuVasive, Inc, a company organised under the laws of the state of Delaware, United
States of America, with registered seat and office address at 7473 Lusk Boulevard,
San Diego, CA 92121, United States of America, registered with the Delaware
Division of Corporations under number 2775617, hereinafter referred to as: the
“Purchaser”;
	 
	6.	 	Progentix Orthobiology B.V., a private company with limited liability organized under
the laws of the Netherlands, with statutory seat in Bilthoven, the Netherlands and with
office address at Professor Bronkhorstlaan 10 D, 3723 MB Bilthoven, the
Netherlands, registered with the Trade Register under number 30234249, hereinafter referred to
as: the “Company”




The person appearing, acting in said capacity, declared hereby as follows:



PREFERRED STOCK PURCHASE AGREEMENT AND SHARES



By written preferred stock purchase agreement dated the thirteenth day of January two
thousand and nine (hereinafter referred to as: the “Preferred Stock Purchase
Agreement”):





	•	 	the Seller 1 sold to the Purchaser and the Purchaser purchased from the Seller 1 two
thousand eight hundred eighty (2,880) ordinary shares in the capital of the Company,
each share with a nominal value of one euro (EUR 1). numbered 14,239 up to and
including 17,118 (hereinafter referred to as: the “Shares 1”);
	 
	•	 	the Seller 2 sold to the Purchaser and the Purchaser purchased from the Seller 2
three thousand nine hundred sixty-seven (3,967) ordinary shares in the capital of the
Company, each share with a nominal value of one euro (EUR 1). numbered 5,952 up
to and Including 9,918 (hereinafter referred to as: the “Shares 2”);
	 
	•	 	the Seller 3 sold to the Purchaser and the Purchaser purchased from the Seller 3
three hundred fifty-three (353) ordinary shares in the capital of the Company, each
share with a nominal value of one euro (EUR 1), numbered 17,648 up to and
including 18,000 (hereinafter referred to as; the “Shares 3”);
	 
	•	 	the Seller 4 sold to the Purchaser and the Purchaser purchased from the Seller 4 one
thousand six hundred (1,600) cumulative preference shares in the capital of the
Company, each share with a nominal value of one euro (EUR 1), numbered 2,401 up
to and including 4,000 (hereinafter referred to as: the “Shares 4”), 

the Shares 1, the Shares 2, the Shares 3 and the Shares 4 hereinafter also
collectively referred to as the “Shares”.




A copy of the Preferred Stock Purchase Agreement is attached to this deed.



The provisions of the Preferred Stock Purchase Agreement which are still applicable at this
time shall remain in force insofar as not inconsistent with this deed.



PREVIOUS ACQUISITION OF SHARES BY THE SELLER 1



The Shares 1 have been issued by the Company to the Seller 1 by virtue of the Company’s





- 2 -









 












Deed of Incorporation executed before N. van Buitenen, civil law notary in Utrecht, the
Netherlands on the thirty-first day of December two thousand and seven,



PREVIOUS ACQUISITION OF SHARES BY THE SELLER 2



The Shares 2 have been acquired by the Seller 2 pursuant to a purchase agreement, by a
deed of transfer executed before a deputy of N. van Buitenen, aforementioned, on the
twenty-ninth day of September two thousand and eight,



The transfer was acknowledged by the Company on the same day, as is evidenced by the
abovementioned notarial deed.



PREVIOUS ACQUISITION OF SHARES BY THE SELLER 3



The Shares 3 have been issued by the Company to the Seller 3 by virtue of the Company’s Deed of
Incorporation executed before N. van Buitenen, aforementioned, on the thirty-first
day of December two thousand and seven.



PREVIOUS ACQUISITION OF SHARES BY THE SELLER 4



The Shares 4 have been issued by the Company to the Seller 4 by virtue of a deed of
issue executed before N. van Buitenen, aforementioned, on the fourteenth day of January
two thousand and eight.



PAYMENT OF THE PURCHASE PRICE





	•	 	The purchase price for the Shares 1 amounts to two million seven hundred fifty-nine
thousand six hundred thiry-five United States Dollars and ninety-one cents (USD
2,759,635.91) (hereinafter referred to as: the “Purchase Price 1”).
	 
	•	 	The purchase price for the Shares 2 amounts to three million eight hundred thousand
nine hundred twenty-eight United States Dollars and forty-one cents (USD
3,800,928.41) (hereinafter referred to as: the “Purchase Price 2”).
	 
	•	 	The purchase price for the Shares 3 amounts to three hundred thirty-eight thousand
one hundred three United States Dollars and eighty-eight cents (USD 338,103,88)
(hereinafter referred to as: the “Purchase Price 3”).
	 
	•	 	The purchase price for the Shares 4 amounts to two million eight hundred thirty-two
thousand two hundred forty-seven United States Dollars and ninety cents (USD
2,832,247.90) (hereinafter referred to as: the “Purchase Price 4”),
the Purchase Price 1, the Purchase Price 2, the Purchase Price 3 and the Purchase
Price 4 hereinafter also collectively referred to as: the “Purchase Price”.




The Purchaser has paid a part of the Purchase Price, being a total amount of nine million
seven hundred thirty thousand nine hundred sixteen United States Dollars and ten cents
(USD 9,730,916.10), by payment into the bank account of the civil law notaries of DLA
Piper Nederland N.V. with ING Bank, account number 0020031300.



The
undersigned civil law notary is hereby irrevocably instructed to pay:





	•	 	The Purchase Price 1, upon the execution of this deed into a bank account in the
name of the Seller 1 with number 0227287436. Therefore, the Seller 1 hereby grants
a discharge to the Purchaser for the payment of the Purchase Price 1.




- 3 -









 

















	•	 	The Purchase Price 2, upon the execution of this deed into a bank account in the
name of the Sellers 2 with number 0227168216. Therefore, the Seller 2 hereby grants
a discharge to the Purchaser for the payment of the Purchase Price 2.
	 
	•	 	The Purchase Price 3, upon the execution of this deed into a bank account in the
name of the Seller 3 with number 7733949. Therefore, the Seller 3
hereby grants a
discharge to the Purchaser for the payment of the Purchase Price 3.
	 
	•	 	The Purchase Price 4, upon the execution of this deed into a bank account in the
name of the Seller 4 with number 0498622800. Therefore, the Seller 4 hereby grants a
discharge to the Purchaser for the payment of the Purchase Price 4.




TRANSFER



Pursuant to the Preferred Stock Purchase Agreement:





	•	 	the Seller 1 hereby transfers the Shares 1 to the Purchaser,
who accepts this transfer;
	 
	•	 	the Seller 2 hereby transfers the Shares 2 to the
Purchaser, who accepts this transfer;
	 
	•	 	the Seller 3 hereby transfers the Shares 3 to the Purchaser,
who accepts this transfer;
	 
	•	 	the Seller 4 hereby transfers the Shares 4 to the Purchaser,
who accepts this transfer;




FURTHER CONDITIONS



The guarantees and warranties as laid down in the Preferred Stock Purchase Agreement
remain applicable to this transfer. Furthermore parties declare that they will ensure that the
Shares will be converted into cumulative preference shares B in the capital of the
Company as provided in the Recitals of the Preferred Stock Purchase Agreement.



Article 2.



All proceeds from and costs related to the Shares shall, as from this day, accrue to or, as
the case may be, be borne by the Purchaser.



Article 3.



The costs
incidental to this deed and the execution thereof shall be borne by the Purchaser.



Article 4.



The Preferred Stock Purchase Agreement does not contain any conditions subsequent
and/or conditions precedent which can be invoked by the Sellers or the Purchaser with
respect to the sale, purchase and transfer of the Shares.



SHARE TRANSFER RESTRICTIONS



The share transfer restrictions In the Company’s articles of association, which consist of an
offering system, have In respect of the transfer of the Shares by this deed been duly
observed, since all shareholders of the Company are a party to this deed and hereby
waive their right pursuant to the share transfer restrictions to acquire the Shares.



ACKNOWLEDGEMENT



The Company declares that it has taken cognisance of and hereby acknowledges the
above transfer of the Shares.



The Company shall immediately enter this transfer in its shareholders’ register.




- 4 -









 













NON-APPLICABILITY OF ARTICLE 2:204C OF THE CIVIL CODE



The provisions laid down in Article 2:204c of the Dutch Civil Code do not apply to this transfer to the Purchaser.



INTERDISCIPLINARY COOPERATION



ADVISOR PURCHASER



With reference to the Rules of Professional Conduct (Verordening beroeps-en
gedragsregels) of the Royal Dutch Organisation of Civil Law Notaries (Koninklljke Notariele
Beroepsorganisatie) all parties declared expressly to agree that:





	a.	 	DLA Piper Nederland N.V. acts as counsel to the Purchaser in connection with this
deed or any related agreement, or acts as counsel for or on behalf of the Purchaser in the
event of any dispute relating to this deed or any related agreement; and
	 
	b.	 	the undersigned civil law notary executes this deed of transfer even though he is
affiliated with DLA Piper Nederland N.V. as civil law notary.




POWER OF ATTORNEY:



The person appearing has been authorized by six (6) written powers of attorney, (copies
of) which Have been attached to this deed.



The person appearing is known to me, civil law notary, and the identity of the person
appearing mentioned in this deed has been determined by me civil law notary, by means
of the relevant document mentioned hereinbefore.



This deed is executed at Amsterdam on the date mentioned at the head of this deed. The contents of
this deed have been stated and explained to the person appearing by me,
civil law notary. Furthermore the consequences of this deed have been pointed out to the
person appearing.



The person appearing declares to have in good time taken cognisance of the contents of
this deed and to agree with the contents.



Thereupon, after a limited part of this deed has been read out, it is signed by the person
appearing and by me, civil law notary at fifteen hundred hours and forty minutes (15:40).
Signed.




ISSUED FOR TRUE COPY

By Johan Hendrik Bennebroek

Gravenhorst, candidate civil law notary, as

substitute of Alexander Joannes

Wiggers, civil law notary at Amsterdam

on 14 January 2009 at 15:50 hours.





- 5 -











 





EXHIBIT E

Form of Proprietary Inventions Agreement




***






 




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



















 





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






Filed separately as Exhibit 10.4 to our Quarterly Report on Form 10-Q filed May 8, 2009.



 









 





EXHIBIT
H




EXCLUSIVE LICENSE AGREEMENT




     THIS EXCLUSIVE LICENSE AGREEMENT (“Agreement”) is made as of January 13, 2009, by and between
RevisiOs B.V., a corporation organized under the laws of Holland (“RevisiOs”) and NuVasive, Inc., a
corporation organized under the laws of the State of Delaware, U.S.A., with an address at 7473 Lusk
Boulevard, San Diego, California 92121 (“NuVasive”).



RECITALS




     NuVasive and RevisiOs entered into that certain Exclusive Distribution Agreement of even date
herewith (the “Distribution Agreement”). NuVasive, RevisiOs and Progentix shareholders entered
into that certain Option Purchase Agreement (the “Option Purchase Agreement”).



     In connection with the Distribution Agreement and the Option Purchase Agreement, Progentix
desires to grant an exclusive license to NuVasive to certain patent rights owned by Progentix.



AGREEMENT




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



1. DEFINITIONS




     “Field” shall mean all spine-related applications.



     “Improvements” shall mean any invention or discovery conceived and/or reduced to practice by
or on behalf of any employee, agent or other representative of RevisiOs that (a) constitutes an
improvement or modification to an invention claimed by or disclosed in the Patent Rights, or (b)
the practice of which would necessarily infringe one or more of the Patent Rights, and in each case
of subparts (a) and (b), is conceived or reduced to practice at any time prior to fourth (4th)
anniversary of the Effective Date.



     “Patent Rights” shall mean (a) the patents and patent applications listed on Exhibit
A, together with all patents that have issued or in the future may issue from any patent
application on Exhibit A, (b) any patents or patent applications, together with all patents
that have issued or in the future may issue from such patent applications, owned or controlled by
RevisiOs to the extent claiming an Improvement, (c) any continuations, divisionals, and
continuations-in-part, to the extent the claims of any such patent application or patents issuing
thereon are directed to subject matter specifically described in the patent applications listed in
subparts (a) or (b) hereto, and (d) any reissues, re-examinations, or extensions thereof, or
substitutes therefore; and the relevant international equivalents of any of the foregoing.



1









 





     “Product” shall mean any product the making, using, selling, offering for sale or importation
of which would, absent the license granted herein, infringe one or more of the Patent Rights.



2. LICENSE GRANT




     2.1 On the terms and subject to the conditions of this Agreement, RevisiOs hereby grants to
NuVasive an exclusive, worldwide, perpetual (unless terminated in accordance with Section 4.2),
royalty-free, fully-paid license (with the right to grant sublicenses) under the Patent Rights to
use, offer for sale, sell and import Products for use solely in the Field. NuVasive shall not have
the right to make or have made any such Products, it being agreed that the manufacture of any such
Products would need to be the subject of a mutually agreeable manufacturing agreement between the
parties.



     2.2 Progentix shall promptly disclose to NuVasive all Improvements.



     2.3 During the term of this Agreement, NuVasive shall not sell, transfer or otherwise provide,
directly or indirectly, to any third party any Product for use outside the Field. To the extent
not prohibited by applicable law, NuVasive shall restrict (through contracts and/or purchase
orders, marketing literature, shipping documents, or similar documents used when a supply,
distribution or similar agreement is not in place) its customers and distributors and require
similar restrictions throughout the supply chain, from selling any Product for use outside the
Field. NuVasive shall use commercially reasonable efforts to enforce such restrictions, including
without limitation by (i) notifying such customer or distributor in writing of such alleged
violation, (ii) conducting an investigation of such alleged violation reasonably appropriate under
the circumstances, and (iii) suspending shipments of Product to a customer or distributor if
NuVasive becomes aware that such customer or distributor is selling such Product for use outside
the Field.



     2.4 Only licenses and rights granted expressly herein shall be of legal force and effect. No
license or other right shall be created hereunder by implication, estoppel or otherwise.



3. REPORTING; RECALLS




     3.1 Each party shall immediately notify the other in writing if any Product is, or is
threatened to be, the subject of a recall, market withdrawal or correction.



     3.2 Prior to NuVasive selling a Product, the parties shall negotiate and enter into a
pharmacovigilance agreement that is intended to enable the parties to satisfy their respective
adverse event reporting requirements throughout the world.



4. TERMINATION




     4.1 Unless terminated earlier pursuant to Section 4.2 below, this Agreement shall expire on
the expiration of the last to expire patent under the Patent Rights.



2









 





     4.2 This Agreement shall automatically terminate upon expiration or termination of the
Distribution Agreement. RevisiOs may also terminate this Agreement by written notice to NuVasive
if NuVasive has not cured a material breach of this Agreement within sixty (60) days after written
notice thereof from RevisiOs.



     4.3 The provisions of Sections 2.2, 5 and 6 shall survive the expiration or any termination of
this Agreement.



5. NO WARRANTIES




The Patent Rights and technology described therein are provided “AS IS” and neither party makes any
warranties, written, oral, express or implied, with respect to the Patent Rights or Products,
including without limitation third party infringement or the commercialization success of the
Products. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT HEREBY ARE
DISCLAIMED. NuVasive accepts the license granted hereunder subject to the terms hereof. UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR LOSS OF USE OR PROFITS OR OTHER COLLATERAL, SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH
CLAIMS ARE FOUNDED IN TORT OR CONTRACT.




6. GENERAL PROVISIONS




     6.1 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 RevisiOs, addressed to:



Progentix Orthobiology B.V.


Professor Bronkhorstlaan 10, building 48

3723 MB Bilthoven

The Netherlands

Attn: Joost de Bruijn

Fax: +31 (0)30 229 7299


With a copy to:



Goodwin Procter LLP

Exchange Place

53 State Street



3









 








Boston, MA 02109

Attn: Michael H. Bison, Esq.

Fax: (617) 570-1231



and



CORP. advocaten

De Lairessestraat 137-143

1075 HJ Amsterdam

Attention: Edwin Renes

Fax: +31 (0)20 578 83 05


If to NuVasive, addressed to:



NuVasive, Inc.

7473 Lusk Boulevard

San Diego, California 92121

Attn: General Counsel

Fax: (858) 909-2479


With a copy to:



DLA Piper LLP (US)

4365 Executive Drive, Suite 1100

San Diego, CA 92121

Attn: Michael Kagnoff

Fax: (858) 456-3075



     6.2 Dispute Resolution. 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
courts located in the city of 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.



     6.3 Further Assurances. The parties agree (a) to furnish upon request to each other such
further information, (b) to execute and deliver to each other such other documents, and (c) to do
such other acts and things, all as the other party may reasonably request for the purpose of
carrying out the intent of this Agreement and the documents referred to in this Agreement.



     6.4 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



4









 





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.




     6.5 Entire Agreement and Modification. This Agreement supersedes all prior agreements between
the parties with respect to its subject matter 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 each of the parties hereto.



     6.6 Assignments, Successors, and No Third-Party Rights. NuVasive may not assign any of its
rights under this Agreement (whether by operation of law or otherwise) without the prior consent of
RevisiOs in each case; provided, however, that NuVasive may, without such consent, assign this
Agreement and its rights and obligations hereunder in connection with the transfer or sale of all
or substantially all of its business or assets related to this Agreement, or in the event of its
merger, consolidation, change in control or other similar transaction. 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 third party any legal or equitable right, remedy, or claim
under or with respect to this Agreement or any provision of this Agreement. For the avoidance of
doubt, this Agreement shall be freely assignable by RevisiOs in connection with the transfer or
sale of all or substantially all of its business or assets related to this Agreement, or in the
event of its merger, consolidation, change in control or other similar transaction. 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.



     6.7 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.



     6.8 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.



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



     6.10 Counterparts. This Agreement may be executed in one or more counterparts, 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.



5









 





     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective as of the
Effective Date.



	 	 	 	 	 	 	 	 	 
	REVISIOS B.V.	 	 	 	NUVASIVE, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:
	 

	 	Title:
	 	 	 	 	 	Title:






6









 




EXHIBIT
A

Patent Rights


***


 


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



7







 





EXHIBIT I




DATED     JANUARY 13, 2009




(1) PROGENTIX ORTHOBIOLOGY B.V.


as Pledgor




- and -




(2) NUVASIVE, INC.

as Pledgee








PLEDGE AGREEMENT OF


INTELLECTUAL PROPERTY RIGHTS




DLA Piper Nederland N.V.

Finance & Projects

Amsterdam







 









 








PLEDGE AGREEMENT OF INTELLECTUAL PROPERTY RIGHTS




THIS DEED OF PLEDGE has been entered into on January 13, 2009,




BETWEEN





	(1)	 	PROGENTIX ORTHOBIOLOGY B.V. a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) organised and existing under the laws of the
Netherlands, registered with the chamber of commerce under file number 30234249 and having its
registered office at Professor Bronkhorstlaan 10 D, (3723 MB) Bilthoven, the Netherlands (the
“Pledgor”); and
	 
	(2)	 	NUVASIVE, INC., a company incorporated under the laws of Delaware, having its registered
office at 7475 Lusk Boulevard, San Diego CA 92121, United States (“Pledgee”).
	 
	 	 	The Pledgor and the Pledgee shall hereinafter each individually be referred to as a “Party”,
and jointly as “Parties”.





RECITALS





	(A)	 	The Lender has made available to the Borrower the Loan under the Loan Agreement.
	 
	(B)	 	Pursuant to Clause 6 of the Loan Agreement, the Pledgor (as Borrower) has agreed to grant to
the Pledgee (as Lender), by means of a first ranking right of pledge, encumbrance, collateral
or any other security right over all of its Intellectual Property Rights on the terms and
conditions set out in this Deed of Pledge.
	 
	(C)	 	Parties accordingly agree as further set forth herein.





IT IS HEREBY AGREED AS FOLLOWS




1.    DEFINITIONS AND INTERPRETATION





	1.1	 	Words and expressions defined in the Loan Agreement shall have the same meaning when used
herein (including the recitals hereto) unless otherwise defined in this Deed of Pledge.
	 
	1.2	 	In this Deed of Pledge, unless the context requires otherwise, the following words and
expressions shall have the following meanings:
	 
	 	 	“Business Day” means a day other than a Saturday or Sunday on which banks are open for
business in Amsterdam, the Netherlands;
	 
	 	 	“Deed of Pledge” means this pledge agreement of Intellectual Property Rights by and between
the Pledgor and the Pledgee, including the recitals and Schedules thereto, or any
Supplemental Deed of IP Pledge, as amended from time to time;
	 
	 	 	“Enforcement Event” means the occurrence of an Event of Default that is continuing,
constituting a default (verzuim) within the meaning of Article 6:81 and Article 3:248 of the
Dutch Civil Code with respect to the proper performance of the Secured Obligations;





 









 





	 	 	“Intellectual Property Rights” means all of the present and future intellectual property
rights of which the Pledgor is or may be the owner at any time, including (but not limited
to) (a) the Patents on the works set out in Schedule 1 hereto and (b) the Other IP Rights as
set out in Schedule 2 hereto;
	 
	 	 	“IP Registers” means any appropriate register or authority in any jurisdiction in which any
of the Intellectual Property Rights are or can be registered;
	 
	 	 	“Loan Agreement” means the USD 5,000,000 loan agreement (including an obligation on the part
of the Pledgee to pledge the Intellectual Property Rights), which is dated January 8, 2009,
and signed by and between (1) the Pledgee (as Lender) and (2) the Pledgor (as Borrower), as
amended from time to time;
	 
	 	 	“Other IP Rights” means all other intellectual property rights set out in Schedule 2 hereto,
not being Patents, which shall include, but not be limited to, trade marks, trade names, and
any and all rights of a similar nature, including trade secrets and know-how, and including
any and all rights in connection with applications for, or rights to apply for or acquire
any and all of such rights described; where Other IP Rights in a certain work are owned
jointly with one or more third parties, or where a licence has been granted to a group of
two or more licensees, the word Other IP Rights shall refer to the Pledgor’s share in such
Other IP Right or in such licence and which also includes any and all receivables which the
Pledgor has or may have at any time under any license to use, exploit or enjoy Intellectual
Property Rights;
	 
	 	 	“Patent” means (a) all present and future patent rights over new discoveries and inventions
in the field of technology or other industries which are related to either the manufacturing
process or to the final product, in works or objects wholly or partly owned by the Pledgor
as set out in Schedule 1 hereto, (b) all present and future licences on any of the
aforementioned rights granted by third party patent owners to the Pledgor and (c) all other
rights to exploit works protected by any of the aforementioned rights; where the
aforementioned rights in a certain work are owned jointly by the Pledgor in combination with
one or more third parties, or where a licence has been granted to a group of two or more
licensees, the word “Patent” shall refer to the Pledgor’s share in such right or in such
licence;
	 
	 	 	“Right of Pledge” or “Pledge” means a first ranking right of pledge (pandrecht eerste in
rang) over the Intellectual Property Rights created hereunder or under any Supplemental Deed
of IP Pledge;
	 
	 	 	“Security Period” means the period beginning on the date of the Deed of Pledge and ending on
the date on which either all the Secured Obligations have been unconditionally and
irrevocably paid and discharged in full, or the rights and obligations pursuant to this Deed
of Pledge have otherwise been terminated to the satisfaction of the Pledgee, whichever event
being the sooner. If the Pledgee considers that an amount paid to it is capable of being
avoided or otherwise set aside in the event of the bankruptcy of the payer or otherwise,
then the amount will not be considered to have been irrevocably paid for the purposes of
this Deed of Pledge; and
	 
	 	 	“Secured Obligations” means all present and future obligations and liabilities (whether
actual or contingent, and whether owed jointly, severally or alone or in any other capacity
whatsoever) for the payment of an amount of money by the Pledgor towards the Pledgee under
or pursuant to the Loan Agreement (as amended or restated from time to time) together with
all costs, charges and expenses incurred by the Pledgee in connection with the protection,





 









 





	 	 	preservation or enforcement of its rights under the Loan Agreement or any other document
evidencing or securing any such liabilities;
	 
	 	 	“Supplemental Deed of IP Pledge” means the supplemental deed of pledge to be drawn up
substantially in accordance with the form attached as Schedule 3 (Form of Supplemental Deed
of IP Pledge).
	 
	1.3	 	Descriptive headings used in this Deed of Pledge are for convenience only and shall not
affect the meaning or construction of any provision of this Deed of Pledge.
	 
	2.	 	AGREEMENT TO PLEDGE
	 
	2.1	 	The Pledgor and the Pledgee hereby agree that the Pledgor shall grant to the Pledgee a first
ranking right of pledge, encumbrance, collateral or any other security right over the
Intellectual Property Rights purported to be granted under or pursuant to this Deed of Pledge.
	 
	2.2	 	Parties acknowledge and agree that if, and to the extent that, the Intellectual Property
Rights are subject to any right of pledge or other encumbrance that takes priority over the
Right of Pledge, the Right of Pledge will have been created with the highest possible ranking
(rangorde) available at such time of creation.
	 
	3.	 	CREATION OF THE PLEDGE
	 
	3.1	 	The Pledgor hereby grants and creates, whether or not in advance, for the benefit of the
Pledgee and to the extent permissible by applicable law, a Right of Pledge in favour of the
Pledgee over its Intellectual Property Rights in the following manner: in respect of patents,
in accordance with Article 3:236 paragraph 2 jo. Article 3:95 of the Dutch Civil Code jo.
Article 67 of the Patents Act 1995 (Rijksoctrooiwet 1995); in respect of trademarks, in
accordance with Article 3:236 paragraph 2 of the Dutch Civil Code jo. Article 11A of the
Uniform Benelux Act on Marks (Eenvormige Beneluxwet op de merken); in respect of trade names,
in accordance with Article 3:236 paragraph 2 jo. Article 3:95 of the Dutch Civil Code; and/or
in respect of receivables in accordance with 3:239 of the Dutch Civil Code, for the entirety
of the Security Period, as security for the full and proper fulfilment of the Secured
Obligations. The Pledgee hereby accepts the creation of the Right of Pledge on the terms and
conditions set forth herein.
	 
	3.2	 	The Pledge is a separate Right of Pledge on each Intellectual Property Right and in relation
to licenses and royalty receivables, is an undisclosed right of pledge and, following
notification, a disclosed right of pledge.
	 
	3.3	 	The Pledgee, or its representative, is, notwithstanding the Pledgor’s obligations pursuant to
this Clause, entitled to register the Deed of Pledge. The Pledgor must at its own cost and
expense ensure that any Deed of Pledge is submitted for registration with the competent IP
Registers (for those Intellectual Property Rights which can be registered) and the competent
Dutch tax authorities (Inspectie der Registratie en Successie) for evidence purposes only.
Registration with the Dutch tax authorities should not be construed to mean that the Deed of
Pledge to be registered concerns a disclosed right of pledge within the meaning of Article
3:236 of the Dutch Civil Code.




 









 






	3.4	 	The Right of Pledge will include all rights of action, dependent rights (afhankelijke
rechten) and ancillary rights (nevenrechten), privileges and other rights inherent and/or
attached to the Intellectual Property Rights.
	 
	3.5	 	The Pledgor undertakes, in respect of Intellectual Property Rights which were not effectively
pledged under the Deed of Pledge, or in respect of newly acquired Intellectual Property
Rights, to prepare on a monthly basis a Supplemental Deed of IP Pledge, no later than ten
Business Days after the preceding month, to execute the same, and forthwith upon execution of
any Supplemental Deed of IP Pledge to register such Supplemental Deed of IP Pledge and any
ancillary or supporting document with the competent IP Registers (for those Intellectual
Property Rights which can be registered) and with the Dutch tax authorities (Inspectie der
Registratie en Successie) (for those Intellectual Property Rights which cannot be registered).
Notwithstanding the Pledgor’s obligations pursuant to this Clause, the Pledgor hereby
unconditionally and irrevocably authorises the Pledgee to sign the Supplemental Deed of IP
Pledge on its behalf and to subsequently register it (as envisaged in Clause 3.3).
	 
	4.	 	GENERAL
	 
	4.1	 	The Pledgor undertakes, immediately upon the execution thereof, or otherwise immediately upon
the Pledgee’s written request, to register any Deed of Pledge or Supplemental Deed of IP
Pledge with the IP Registers for the Netherlands, the Benelux (as a whole), the European
Community (as a whole), and in any other Registration Countries the Pledgee deems to be
relevant. The Pledgee is entitled to present this Deed of Pledge and any Supplemental Deed of
IP Pledge for registration with the IP Registers in any of the Registration Countries.
	 
	4.2	 	The Pledgor undertakes to provide the Pledgee forthwith with (i) a copy of an executed Deed
of Pledge and any Supplemental Deed of IP Pledge and (ii) any evidence of registration of such
Deed of Pledge and Supplemental Deed of IP Pledge in any of the Registration Countries.
	 
	5.	 	COMPLETION OF THE PLEDGE
	 
	 	 	The Pledgor undertakes, promptly following a request, to take any action and sign any
document that the Pledgee reasonably requires in order to give full effect to this Deed of
Pledge and the enforcement thereof.
	 
	6.	 	REPRESENTATIONS AND WARRANTIES
	 
	6.1	 	In addition to the Pledgor’s representations and warranties made under or pursuant to the
Loan Agreement, the Pledgor hereby represents and warrants that:






	 	(a)	 	the right of pledge created hereby is a first ranking right of pledge, and that
the Intellectual Property Rights (i) have not been pledged, encumbered with limited
rights (beperkte rechten) or otherwise, (ii) are not subject to any attachments
(beslag), seizures or arrests, or any comparable levies by which the Intellectual
Property Rights would be placed out of the free disposition by the Pledgor, (iii) have
not been transferred in advance (bij voorbaat) to any third party, (iv) are capable of
being assigned and encumbered with limited rights (beperkte rechten), and (v) are not
subject to any option or similar right, except to the extent permitted under the Loan
Agreement. Licence(s) or sub-licence(s) granted to one or more third parties in the
normal course of business shall not be regarded as such a restriction;




 









 






	 	(b)	 	it is entitled, and has full power, to enter into this Deed of Pledge and to
create the Right of Pledge;
	 
	 	(c)	 	it is not aware of any infringement (inbreuk) by any third party of any of the
Intellectual Property Rights;
	 
	 	(d)	 	it holds full and exclusive title (titel) to the Intellectual Property Rights,
free and clear of any and all liens or claims of others, and that furthermore it is
entitled and has the authority and full power (beschikkingsbevoegdheid) to create the
Right of Pledge and to enter into this Deed of Pledge;
	 
	 	(e)	 	it is a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) duly incorporated and validly existing under the law of the
Netherlands; and
	 
	 	(f)	 	Schedule 1 contains a complete list of Patents capable of being pledged at the
date of signing this Deed of Pledge, and that Schedule 2 contains a complete list of
Other IP Rights capable of being pledged at the date of this Deed of Pledge.






	6.2	 	The representations and warranties set out in Clause 6.1 are deemed to be made by the Pledgor
on each date of the registration of a Deed of Pledge or a Supplemental Deed of IP Pledge,
whether with the Dutch tax authorities (Inspectie der Registratie en Successie) or with any
other competent IP Registers.
	 
	7.	 	COVENANTS
	 
	7.1	 	The Pledgor covenants that:






	 	(a)	 	it will not without the prior written consent of the Pledgee waive any
dependent rights (afhankelijke rechten) or ancillary rights (nevenrechten) attached to
the Intellectual Property Rights;
	 
	 	(b)	 	it will not without the Pledgee’s prior written consent sell, assign,
transfer, pledge or otherwise encumber, release (kwijtschelden) or waive (afstand doen
van) any rights over its Intellectual Property Rights to any third party, whether or
not as a matter of court composition or out-of-court composition (gerechtelijk of
buitengerechtelijk akkoord);
	 
	 	(c)	 	as soon as it becomes aware that any of the representations and warranties as
set forth in Clause 6 are or prove to have been incorrect or incomplete or misleading,
it will inform the Pledgee promptly;
	 
	 	(d)	 	it will supply to the Pledgee all information in respect of the debtors of
the receivables (referred to in the definition of other Other IP Rights) that is
necessary to enforce the Right of Pledge over such receivables and to enable
notification against such debtors;
	 
	 	(e)	 	it will use its best endeavours to ensure the confidential nature of trade
secrets and know-how; and




 









 






	 	(f)	 	in general, it will do all that is necessary to maintain the Intellectual
Property Rights and the value embedded in them.






	7.2	 	In the case of an Event of Default, and notwithstanding any of the obligations of the Pledgor
under Clause 8.1, the Pledgee can take, and is hereby authorised to take, all necessary
judicial and extra-judicial measures. If the Pledgee takes measures as mentioned in the
previous sentence, the Pledgor will offer any and all such support required, including but not
limited to supplying all necessary documents and information regarding the Intellectual
Property Rights.
	 
	8.	 	ENFORCEMENT
	 
	8.1	 	Upon the occurrence of an Enforcement Event:






	 	(a)	 	the Pledgee may enforce its Right of Pledge and have recourse to the proceeds
obtained from such enforcement, and furthermore the Pledgee may take, and is hereby
authorised to take, all necessary judicial and extra-judicial measures in relation to
the enforcement of its Right of Pledge, including, but not limited to, a sale as
envisaged in Clause 9.4. If the Pledgee takes such measures, the Pledgor will offer any
and all required support, including but not limited to providing all necessary
documents and information with regard to the relevant Intellectual Property Rights.
	 
	 	(b)	 	at its own costs, the Pledgor will promptly notify in writing of the
existence of this Deed of Pledge to:






	 	(i)	 	a third party or the court process server (deurwaarder) acting on
behalf of such third party making an attachment (beslag) on its Intellectual
Property Rights; or
	 
	 	(ii)	 	its bankruptcy trustee (curator), administrator (bewindvoerder)
or similar officer in any jurisdiction; or
	 
	 	(iii)	 	any other relevant person, as the case may be.






	8.2	 	Any failure by the Pledgor to satisfy the Secured Obligations when due shall constitute a
default (verzuim) in the performance of the Secured Obligations, without any reminder letter
(sommatie) or notice of default (ingebrekestelling) being required.
	 
	8.3	 	The Pledgor is not entitled to request the President of the competent court (rechtbank) to
order that the Intellectual Property Rights pledged be sold in a manner deviating from the
provisions of Article 3:250 of the Dutch Civil Code.
	 
	8.4	 	The Pledgee shall not be obliged to give notice to the Pledgor of any intention to sell the
pledged Intellectual Property Rights (as provided in Article 3:249 of the Dutch Civil Code)
or, if applicable, of the fact that it has sold the same Intellectual Property Rights (as
provided in Article 3:252 of the Dutch Civil Code).
	 
	8.5	 	All monies received or realised by the Pledgee in connection with the Intellectual Property
Rights shall be applied by the Pledgee in accordance with the relevant provisions of this
Agreement and the Loan Agreement, subject to the mandatory provisions of Netherlands law on
enforcement (uitwinning).




 









 






	8.6	 	The Pledgor hereby irrevocably and unconditionally waives (doet afstand van) any rights
granted to the Pledgor under or pursuant to Netherlands law from time to time which aim at
protecting grantors of security for the debts of third parties, including any right it may
have pursuant to Articles 3:233 and 6:139 of the Dutch Civil Code.
	 
	8.7	 	In the event that any action is taken under Clause 8.1, the documented costs for the measures
taken by the Pledgee, including but not limited to the costs for the legal counsel and the
legal proceedings (which, for the avoidance of doubt, are part of the Secured Obligations),
will be borne by the Pledgor, and the Pledgor will indemnify (vrijwaren) the Pledgee for any
such costs.
	 
	9	 	APPLICATION OF PROCEEDS


The Parties hereto agree that upon the enforcement of the Right of
Pledge, all monies collected by the Pledgee will be applied towards
the fulfilment of the Secured Obligations in accordance with, and
pursuant to, the relevant provisions of this Agreement and the Loan
Agreement, subject to the applicable mandatory provisions of the law
of the Netherlands.

	 
	10	 	WAIVERS


No delay or omission by the Pledgee in exercising any right, power or
privilege provided, hereunder or by law, shall operate to impair such
right, power or privilege or be construed as a waiver thereof and any
single or partial exercise of such right, power or privilege shall not
preclude any future exercise thereof or the exercise of any other
right, power or privilege.

	 
	11	 	ASSIGNMENT AND TRANSFER

	 
	 	 	To the fullest extent permitted under the law of the Netherlands, subject always to the
relevant provisions of any of the Loan Agreement, the Pledgee shall be entitled to assign
and/or transfer together with the Secured Obligations all or part of its rights and
obligations under this Deed of Pledge to any assignee and/or transferee, and the Pledgor
hereby in advance gives its irrevocable consent to (geeft onherroepelijk toestemming bij
voorbaat), or, if applicable, irrevocably cooperates with, within the meaning of Article
6:159 of the Dutch Civil Code, an assumption of contract (contractsoverneming). The Pledgee
shall be entitled to impart any information concerning the Pledgor to any successor or
proposed successor as far as necessary for such assignment and/or transfer. The Pledgor may
not assign any of its rights or obligations under or in connection with this Deed of Pledge.
	 
	12	 	DISSOLUTION; ANNULMENT; SUSPENSION; SET-OFF
	 
	 	 	The Pledgor hereby waives to the fullest extent permitted by law its right to dissolve
(ontbinden) or annul (vernietigen) the legal acts (rechtshandelingen) represented by this
Deed of Pledge, and such waiver is hereby accepted by the Pledgee. The Pledgor may not
suspend (opschorten) compliance with its obligations under or in connection with this Deed
of Pledge on whatever grounds. All payments to be made by the Pledgor under this Agreement
shall be made without set-off.
	 
	13	 	NOTIFICATION
	 
	13.	 	At the Pledgee’s request, the Pledgor will offer any and all required information, including
a list containing details of all Intellectual Property Rights, which the Pledgee may need, in
order





 









 





	 	 	to determine and/or exercise its rights arising out of this Deed of Pledge and it will allow
the Pledgee to gather all information from and examine its books so that the Pledgee may
determine and/or exercise its rights arising out of this Deed of Pledge. Notwithstanding
this obligation, the Pledgor will promptly notify the Pledgee during the year of any
material changes to the Intellectual Property Rights.
	 
	13.2	 	The Pledgor will notify the Pledgee immediately of all circumstances likely to materially
impair the value of the Intellectual Property Rights. Such circumstances include, but are not
limited to, an application for the filing of or declaration of the Pledgor’s bankruptcy
(faillissement) or moratorium of payments (surséance van betaling), the dissolution
(ontbinding) of the Pledgor, the cessation of the Pledgor’s business, any levy or attachment
to the Intellectual Property Rights, or any material litigation pending in relation to the
Intellectual Property Rights.
	 
	13.3	 	If the bankruptcy of the Pledgor is filed for, or if an attachment is made of Intellectual
Property Rights, the Pledgor will immediately notify the levying bailiffs (beslagleggende
deurwaarders), the trustees in bankruptcy (curatoren) or the administrator (bewindvoerder) of
this Deed of Pledge.
	 
	13.4	 	In case of a levy or attachment of Intellectual Property Rights that has a material adverse
effect, the Pledgor is obliged to immediately notify the Pledgee once it becomes aware of such
levy or attachment, and to take all necessary measures to ensure that the Pledgee is
authorised to take all appropriate action as referred to in Clause 8 of this Deed of Pledge.
The Pledgor will pay or reimburse all documented expenses related to these measures.
	 
	14.	 	TERMINATION
	 
	14.1	 	This Deed of Pledge and the Pledgee’s security interests constituted hereunder or pursuant
hereto shall terminate by operation of law when all the Secured Obligations have been
unconditionally and irrevocably satisfied in full or the Loan Agreement has terminated,
whichever event being the sooner. At the request and cost of the Pledgor, the Pledgee shall
deliver to the Pledgor a proper instrument or instruments acknowledging the satisfaction of
the Secured Obligations and/or the termination of this Deed of Pledge and do all other acts
necessary or required by the Pledgee to give effect to the provisions of this Clause.
	 
	14.2	 	Without prejudice to the provisions of Article 3:81 of the Dutch Civil Code, the Right of
Pledge may be terminated:






	 	(a)	 	through cancellation (opzegging) by means of a written declaration from the
Pledgee to the Pledgor; or
	 
	 	(b)	 	through renunciation (afstand) on the grounds of Article 3:258 paragraph 2 of
the Dutch Civil Code.






	15.	 	POWER OF ATTORNEY
	 
	 	 	The Pledgor hereby unconditionally and irrevocably authorises the Pledgee, with the power
of substitution at any time and from time to time, following the occurrence of an
Enforcement Event, to sign, seal, deliver, execute, register and complete all proxies,
mandates, assignments, deeds and documents and to do all acts which are necessary for the
enforcement of the Pledge and to give proper effect to the intent and purposes of this Deed
of Pledge.




 









 






	16.	 	NOTICES
	 
	 	 	Any notice or other communication to be given hereunder shall be made in accordance with
Clause 17 of the Loan Agreement.
	 
	17.	 	BINDING NATURE
	 
	17.1	 	This Deed of Pledge and all of the provisions of this agreement shall be binding upon and be
to the benefit of the Pledgor and the Pledgee and their respective successors and permitted
assigns.
	 
	17.2	 	This Deed of Pledge is only legally binding on the Pledgor insofar as the same will not be in
violation of the prohibition on financial assistance as contained in Article 2:207 (c) of the
Dutch Civil Code. One of the consequences of this provision is that no obligations shall be
secured by the Right of Pledge to the extent that, if included, the security interest granted
pursuant to this Deed of Pledge or any part thereof would constitute a violation of Article
2:207 (c) of the Dutch Civil Code.
	 
	18.	 	ENTIRE AGREEMENT
	 
	18.1	 	This Deed of Pledge, and any agreements resulting from this Deed of Pledge, represents the
entire understanding and agreement between the Parties in connection with the subject matter
hereof and supersedes all prior agreements in respect of the subject matter hereof.
	 
	18.2	 	If there is any conflict or inconsistency between any provisions of this Deed of Pledge and
any provisions of the Loan Agreement, the provisions of the Loan Agreement shall prevail.
	 
	19.	 	AMENDMENT
	 
	 	 	No amendment, modification or waiver of any provision of this Deed of Pledge, and no
consent with respect to any departure by the Pledgor therefrom, shall be effective unless
the same shall be in writing and signed by the Pledgor and the Pledgee.
	 
	20.	 	SEVERABILITY
	 
	 	 	If a provision of this Deed of Pledge is invalid or unenforceable in any jurisdiction that
shall not affect the validity or enforceability of any other provision of this Deed of
Pledge and the validity or enforceability in other jurisdictions of that or of any other
provision of this Deed of Pledge.
	 
	21.	 	GOVERNING LAW AND JURISDICTION
	 
	21.1	 	This Deed of Pledge will be governed by and construed in accordance with the laws of the
Netherlands.
	 
	21.2	 	The competent courts of Amsterdam, the Netherlands shall have exclusive jurisdiction with
regard to disputes in connection with this Deed of Pledge.




 









 







THIS DEED OF PLEDGE has been entered into on the date stated above.



 


PROGENTIX ORTHOBIOLOGY B.V., as Pledgor


	 	 	 	 	 
	



Name:


Title:

 	 
	 	 
	 	 
	 

NUVASIVE, INC., as Pledgee



Name:


Title:

 
	 	 



 









 




SCHEDULE 1

Patents


***


 


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




 








 




SCHEDULE 2

Trademarks


***


 



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



 







 










SCHEDULE 3




Form of Supplemental Deed of IP Pledge



	 	 	 
	From:

	 	Progentix Orthobiology B.V.


	To:

	 	NuVasive, Inc. 

Attn: Jason Hannon






Dear Sir




RE:  PLEDGE OF INTELLECTUAL PROPERTY RIGHTS




We refer to the deed of pledge of Intellectual Property Rights, dated January 8, 2009, by and
between Progentix Orthobiology B.V. (as Pledgor) and Nuvasive, Inc. (as Pledgee)(the “Deed of
Pledge”). Capitalised terms used in this Supplemental Deed of IP Pledge shall have the same meaning
given to them in the Deed of Pledge.




Under the terms of the Deed of Pledge, we undertook to pledge to you at your first request the
Intellectual Property Rights which were not effectively pledged under the Deed of Pledge (or
subsequent pledges).




In fulfilment of our above-mentioned obligations we herewith pledge to you all our Intellectual
Property Rights that are capable of being pledged on the date when this Supplemental Deed of IP
Pledge is registered.




In order to effectuate the creation of the right of pledge over the Intellectual Property Rights
described in the previous paragraph, we will promptly register this deed and its attachment in
accordance with the provisions of Clause 3 of the Deed of Pledge.




Yours sincerely,




	 	 	 	 	 
	PROGENTIX ORTHOBIOLOGY B.V.

 	 
	By:  	 	 
	 	Name:  	 	 
	 




 











 





EXHIBIT J




DEED OF ADHERENCE




and



ADDENDUM



to the Subscription and Shareholders’ Agreement



of 13 January 2008



relating to



Progentix Orthobiology B.V.



by and among




Mr. J.D. de Bruijn



Mr. H. Yuan



J.D. de Bruijn Holding B.V.



BioGeneration Ventures B.V.



Incubation B.V.



NuVasive, Inc



and




Progentix Orthobiology B.V.




Dated 13 January 2008




 









 








DEED OF ADHERENCE



and



ADDENDUM



to the Subscription and Shareholders’ Agreement of 13 January 2008



THE UNDERSIGNED:





	1.	 	Progentix Orthobiology B.V. (the “Company”), a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws
of the Netherlands, with its statutory seat in Bilthoven and its business address at Professor
Bronkhorstlaan 10-d, 3723 MB Bilthoven, the Netherlands, represented by its statutory director
J.D. de Bruijn Holding B.V. in its turn represented by Mr. J.D. de Bruijn;
	 
	2.	 	Mr. Huipin Yuan, (“Mr. Yuan”) currently residing at Laan van Vollenhove 168,
3706 AA, born in Nijiang (China) on the 19th of April 1966;
	 
	3.	 	Mr. Joost Dick de Bruijn, (“Mr. de Bruijn”)currently residing at Pasteurstraat
16, 3817 JL Amersfoort, born in Pijnacker on the 13th of February 1966;
	 
	4.	 	J.D. de Bruijn Holding B.V., (“De Bruijn Holding”) a private company with
limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under
the laws of the Netherlands, with its statutory seat in Amersfoort and its business address at
Pasteurstraat 16, 3817 JL Amersfoort, the Netherlands, represented by its statutory director
Mr. J.D. de Bruijn;
	 
	5.	 	BioGeneration Ventures B.V., (“BioGeneration”) a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws
of the Netherlands, with its statutory seat in Amsterdam and its business address at Gooimeer
2 — 35, 1411 DC Naarden, represented by its statutory director Mr. E.C.M. van Wezel;
	 
	6.	 	Incubation B.V. (“Incubation”) a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, with its statutory seat in Bilthoven and its business address at Prof.
Bronkhorstlaan 10, 3723 MB in Bilthoven represented by its statutory directors Dr. C.A. van
Blitterswijk and Mr. F.J.W.E.B. van der Velden;










Page 2 of 9









 












	7.	 	NuVasive, Inc. (“NuVasive”), a company incorporated under the laws of Delaware
(Unites States of America), with its business address at 7475 Lusk Boulevard, San Diego CA
92121, represented by [•].





Each party hereto individually referred to as “Party” and jointly as “Parties”.




WHEREAS:





	A.	 	The Parties hereto, with the exception of Incubation and NuVasive, have entered into a
Subscription and Shareholders’ Agreement dated 13 January 2008 (“Shareholders Agreement”).
	 
	B.	 	Incubation acceded to the Shareholders Agreement by signing a Deed of Adherence dated
22 September 2008. The shares previously held by Mr. Van Blitterswijk and Mr. Van der Velden
were subsequently transferred to Incubation by notarial deed of transfer executed before a
substitute of mr. N. van Buitenen, civil-law notary in Utrecht on 29 September 2008.
	 
	C.	 	NuVasive is a strategic party that will purchase or has purchased from the existing
shareholders of the Company (the “Existing Shareholders”) 40% (forty percent) of the issued
and outstanding share capital of the Company pursuant to a Preferred Stock Purchase Agreement
dated [•] January 2009 (the “Preferred Stock Purchase Agreement”) and that will optionally
acquire the remaining issued and outstanding share capital of the Company held by the Existing
Shareholders upon the exercise of an option pursuant to an Option Purchase Agreement dated [•]
January 2009 (the “Option Purchase Agreement”).
	 
	D.	 	In connection with the Preferred Stock Purchase Agreement, Incubation, De Bruijn
Holding, Mr. Yuan and BioGeneration shall transfer a pro rata part of their shares to NuVasive
through a notarial deed of transfer to be executed before mr. A.J. Wiggers, civil-law notary
in Amsterdam (or his substitute) with DLA Piper Nederland N.V. (“Notary”), this deed
hereinafter referred to as “Deed of Transfer” and the date of execution the “Transfer Date”.
	 
	E.	 	The Parties hereto wish to have their mutual relations and respective rights





Page 3 of 9









 











	 	 	and obligations in respect of the Company to be governed by the provisions of the
Shareholders Agreement and this Deed of Adherence and Addendum (“Deed of Adherence and
Addendum”).





HAVE AGREED AS FOLLOWS:




Article 1. Accession





	1.1	 	Solely to the extent provided herein, NuVasive hereby accedes to Articles 8 through 10,
Article 16 and Articles 24 through 26 of the Shareholders Agreement and consequently agrees to
be bound to the terms and conditions of the Shareholders Agreement, effective as per the
Transfer Date.
	 
	1.2	 	To the extent this Deed of Adherence and Addendum does not explicitly stipulates otherwise,
NuVasive shall qualify as a “Shareholder” as defined in the Shareholders Agreement and
therefore NuVasive shall have the same rights and the same obligations as apply to any
Shareholder. As set forth above, NuVasive shall not be considered a “Founder” or “Investor”
within the meaning of the Shareholders Agreement.
	 
	1.3	 	In deviation of the definitions as defined in the Shareholders Agreement, Parties hereto
agree that:






	 	-	 	The definition of “Preferred Shares” as referred to in article 8.3 through 8.6
(‘Conversion‘), shall mean both preferred shares A as well as preferred shares B.
	 
	 	-	 	The definition of “Preferred Shares” as referred to in article Article
9 (‘Anti-Dilution Adjustments‘), shall mean both preferred shares A as well as
preferred shares B. To the extent Article 9 stipulates an issuance price per
preferred share, this price shall — with respect to any share held by NuVasive — be
the acquisition price per share on the Transfer Date pursuant to the Preferred Stock
Purchase Agreement.





Article 2. Deed of Transfer




The execution of the Deed of Transfer shall take place in conjunction with the signing of the
Preferred Stock Purchase Agreement and the Option Purchase Agreement and this Deed of Adherence and
Addendum shall be executed just prior to the Notary ex-




Page 4 of 9









 








ecuting the Deed of Transfer.




Article 3. Deed of Amendment





	3.1	 	As soon as reasonably possible after the execution of the Deed of Transfer, a deed of
Amendment to the Articles of Association of the Company (“Deed of Amendment”) in the form
attached hereto as Exhibit A shall be executed whereby, amongst others, all shares
transferred to NuVasive pursuant to the Deed of Transfer shall be converted into Preferred
Shares B on a one-to-one basis. The Deed of Amendment shall be executed before the Notary.
	 
	3.2	 	During the period the shares in the Company that were acquired by NuVasive through the Deed
of Transfer are not yet converted into Preferred Shares B, these shares shall, notwithstanding
the fact the Deed of Amendment has not yet been executed, by all Parties be considered
Preferred Shares B on an as if converted basis to the fullest possible economical extent.





Article 4. Overview of shares




As per the Transfer Date and upon the execution of (i) the Deed of Transfer as well as the (ii) the
Deed of Amendment, the cap table of Article 2.6 of the Shareholders Agreement (‘Overview of
Capital Commitments‘) shall read as follows:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	# Ordinary	 	 	# Preferred	 	 	# Preferred	 	 	approx Percent.	 
	Party	 	Shares	 	 	Shares A	 	 	Shares B	 	 	Stake	 
	Incubation
	 	 	5,951	 	 	 	—	 	 	 	—	 	 	 	27.05	%
	De Bruijn Holding
	 	 	4,320	 	 	 	—	 	 	 	—	 	 	 	19.64	%
	Mr. Yuan
	 	 	529	 	 	 	—	 	 	 	—	 	 	 	2.41	%
	BioGeneration
	 	 	—	 	 	 	2,400	 	 	 	—	 	 	 	10.90	%
	NuVasive
	 	 	—	 	 	 	—	 	 	 	8,800	 	 	 	40.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total
	 	 	10,800	 	 	 	2,400	 	 	 	8,800	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 






Article 5. Preferred Share Rights 




NuVasive shall have the protective rights and veto rights described in this Article 5.




Page 5 of 9









 









	5.1	 	Budget.
	 
	 	 	Prior to the earlier of the expiration or termination of the Option
Period (as defined in the Option Purchase Agreement) NuVasive shall
have the right to approve the Company’s operating budget (not to be
unreasonably withheld or delayed) for the year to come before the
budget is being formally presented for approval to the Investor and
the general meeting of shareholders of the Company in accordance with
the Shareholders Agreement. To the extent that NuVasive notifies the
management board of the Company that it does not approve the operating
budget as presented, then the management board of the Company shall
(i) refrain from any actions aimed at or relating to the
implementation of any and all of the items referred to in such budget,
and (ii) submit to NuVasive an amended budget for approval.
	 
	5.2	 	Right of First Refusal.
	 
	 	 	Parties hereto agree that Article 10.1 and Article 10.2 shall not be
in force and effect during the Option Period. Parties hereto agree
that from and after the earlier of the expiration or termination of
the Option Period, NuVasive shall not be entitled to a right of first
refusal pursuant to Article 10.4 through Article 10.7 of the
Shareholders Agreement, but shall be subject to such right of refusal
pursuant to Article 10.4 of the Shareholders Agreement.
	 
	5.3	 	Drag Along Right; Tag Along.
	 
	 	 	Pursuant to Article 10.8 of the Shareholders Agreement, BioGeneration,
being the Investor as defined in the Shareholders Agreement, has a
drag along right, entitling BioGeneration to demand from its
co-shareholders to mandatorily sell their shares to an Interested
Purchaser and create a Liquidity Event. Parties hereto agree that from
and after the earlier of the expiration or termination of the Option
Period, NuVasive shall be subject to such drag along provision as a
Shareholder. Parties hereto further agree that from and after the
earlier of the expiration or termination of the Option Period,
NuVasive shall be subject to the Tag Along provision included in
Article 10.9 through Article 10.12 of the Shareholders Agreement as a
Shareholder.





Article 6. Liquidity Event




Effective as of the Transfer Date, Article 8.1 and Article 8.2 of the Shareholders
Agreement, entitling BioGeneration to a preferred return in case of a Liquidity Event




Page 6 of 9









 








(and a claw back in the event of certain Liquidity Events), is herewith cancelled. Hence,
BioGeneration shall no longer have a preferred return upon the occurrence of a future Liquidity
Event. For the avoidance of doubt, NuVasive and BioGeneration retain their separate classes of
preferred shares entitling (or requiring) the holders thereof to convert into Ordinary Shares
pursuant to Article 8.3 through Article 8.6 of the Shareholders Agreement. The
cancellation of Article 8.1 and Article 8.2 of the Shareholders Agreement will
survive the termination or expiration of the Option Period and will not be reversed unless
explicitly agreed upon between the Parties.




Article 7. Supervisory Board





	7.1	 	Article 16.1 and Article 16.2 of the Shareholders Agreement (appointment and
nomination of members to the Supervisory Board), shall, until the earlier of the expiration or
termination of the Option Period (as defined in the Option Purchase Agreement) read as
follows:





Article 16. Supervisory Board





	 	16.1	 	The Parties shall procure that the supervisory board of the Company (the
“Supervisory Board”) shall be composed of 3 (three) members, to be appointed by the
general meeting of shareholders:
	 
	 	-	 	1 (one) of whom shall be appointed upon a binding nomination of NuVasive; and,
	 
	 	-	 	1 (one) of whom shall be appointed upon a binding nomination of BioGeneration; and,
	 
	 	-	 	1 (one) of whom shall be appointed upon a binding nomination of the Founders.
	 
	 	16.2	 	At the Closing Date, the following persons shall be nominated by the following Parties:
	 
	 	•	 	*** as Supervisory Board member on behalf of ***;
	 
	 	•	 	*** as Supervisory Board member on behalf of ***;
	 
	 	•	 	*** as Supervisory Board member on behalf of ***.






	7.2	 	Effective as of the earlier of the expiration or termination of the Option Period, as
defined in the Option Purchase Agreement, Article 16 of the Shareholders Agreement as
it read on 11 January 2008, will apply.







 




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




Page 7 of 9









 











	7.3	 	The Shareholders have the right, but not the obligation, to dismiss the Supervisory Board
member nominated by NuVasive as per the earlier date of the expiration or termination of the
Option Period, without notice, cause or obligations to pay severance. NuVasive will fully
cooperate with the adoption of the Shareholders’ resolution dismissing its Supervisory Board
member and the appointment of a substitute Supervisory Board member following the expiration
or termination of the Option Period.





Article 8. Financial Rights




The preferred shares B shall under no circumstances before and after the expiration or termination
of the Option Period, have any seniority over the preferred shares A, unless the Parties hereto
explicitly and in writing agree that the preferred shares A shall no longer share the economic
rights attached to preferred shares on a pari passu basis. No Party hereto shall use its power or
rights to amend the Articles (or any other document) in such a way that the financial rights of
either class of preferred shares change.




Article 9. Transfer of Shares




Each of the parties agrees that if any person wishes to be registered as a holder of any shares
(whether upon transfer or transmission or by issue) (“New
Shareholder”), the New Shareholder must,
unless he is already a party to this Agreement and the Option Purchase Agreement, become a party to
this Agreement and the Option Purchase Agreement.




Notwithstanding anything to the contrary, each of the Founders and BioGeneration covenants with and
undertakes to NuVasive and the Company that, prior to the expiration or termination of the Option
Period, each will not, except for transfers required by the Articles, without the prior written
consent of NuVasive, dispose or permit the disposal of any interest in or creation of any
Encumbrance over the shares registered in his or its name.




Article 10. Governing Law





	10.1	 	This Deed of Adherence and Addendum shall be governed by and construed in accordance with the
laws of the Netherlands.




Page 8 of 9









 












	10.2	 	The courts of Amsterdam shall have exclusive jurisdiction over a dispute arising out of or in
connection with this Deed of Adherence and Addendum.





The remainder of this page is intentionally left blank: see signature page.





Page 9 of 9












 





IN WITNESS WHEREOF this Deed Adherence and Addendum has been signed and executed by all Parties hereto.




	 	 	 	 	 	 	 
	/s/ J.D. de Bruijn

	 	 	 	/s/ Mr. H. Yuan	 	 
	 

	 	 	 	 	 	 
	Mr. J.D. de Bruijn

	 	 	 	Mr. H. Yuan	 	 
	 
	 	 	 	 	 	 
	/s/
J.D. de Bruijn

	 	 	 	/s/ J.D. de Bruijn	 	 
	 

	 	 	 	 	 	 
	J.D. de Bruijn Holding B.V.

	 	 	 	Progentix Orthobiology B.V.	 	 
	By: J.D. de Bruijn

	 	 	 	By: J.D. de Bruin Holding B.V.	 	 
	 

	 	 	 	By: J.D. de Bruijn	 	 
	 
	 	 	 	 	 	 
	Incubation B.V.

	 	 	 	BioGeneration Ventures B.V.	 	 
	 
	 	 	 	 	 	 
	/s/ Mr. F.J.W.E.B. van der Velden
	 	 	 	/s/ Mr. E.C.M. van Wezel	 	 
	 

	 	 	 	 	 	 
	By: Dagomar B.V.

	 	 	 	By: BioGeneration Management B.V.	 	 
	By:
Mr. F.J.W.E.B. van der Velden

	 	 	 	By: Mr. E.C.M. van Wezel	 	 
	 
	 	 	 	 	 	 
	/s/ Mr. C.A. van Blitterswijk
	 	 	 	/s/ Mr. W. Hazenberg	 	 
	 

	 	 	 	 	 	 
	By: Mr. C.A. van Blitterswijk

	 	 	 	By: Mr. W. Hazenberg	 	 
	 
	 	 	 	 	 	 
	/s/ Alexis V. Lukianov
	 	 	 	 	 	 
	 


	 	 	 	 	 	 
	NuVasive, Inc
	 	 	 	 	 	 
	By: Chief Executive Officer
	 	 	 	 	 	 






Signature Page to Deed of Adherence






 









 










SUBSCRIPTION AND SHAREHOLDERS’ AGREEMENT


relating to shareholdings in:


Progentix Orthobiology B.V.





by and among




Dr. C.A.
van Blitterswijk


Mr. F.J.W.E.B. van der Velden


Mr. J.D. de Bruijn


Mr. H. Yuan


J.D. de Bruijn Holding B.V.


BioGeneration Ventures B.V.



and




Progentix Orthobiology B.V.




Execution Copy









 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Article 1

	 	Interpretation
	 	 	6	 
	Article 2

	 	Issuance and Contribution
	 	 	7	 
	Article 3

	 	Second Payment
	 	 	8	 
	Article 4

	 	Application of funds
	 	 	9	 
	Article 5

	 	Signing Date
	 	 	9	 
	Article 6

	 	Closing. Conditions to Closing
	 	 	10	 
	Article 7

	 	The Company’s operations and (future) subsidiaries
	 	 	11	 
	Article 8

	 	Liquidation Preference and Conversion
	 	 	11	 
	Article 9

	 	Anti-Dilution Adjustments
	 	 	13	 
	Article 10

	 	Transfer of Shares
	 	 	15	 
	Article 11

	 	Encumbrance
	 	 	18	 
	Article 12

	 	Representations and Warranties
	 	 	18	 
	Article 13

	 	Management Board
	 	 	20	 
	Article 14

	 	General meeting of shareholders
	 	 	22	 
	Article 15

	 	Consent of the Investor
	 	 	23	 
	Article 16

	 	Supervisory Board
	 	 	23	 
	Article 17

	 	Information
	 	 	24	 
	Article 18

	 	Budget
	 	 	26	 
	Article 19

	 	Non-Competition Agreements
	 	 	26	 
	Article 20

	 	Future pre-emptive rights
	 	 	27	 
	Article 21

	 	Assignments; Perpetual Covenant
	 	 	28	 
	Article 22

	 	Costs and Expenses
	 	 	28	 
	Article 23

	 	Confidentiality; Announcements
	 	 	29	 
	Article 24

	 	Notices
	 	 	29	 
	Article 25

	 	Entire Agreement
	 	 	29	 
	Article 26

	 	General Provisions
	 	 	30	 





2/31









 





LIST OF EXHIBITS




	 	 	 
	Exhibit 1:

	 	Notarial deed relating to the Issue
	 
	 	 
	Exhibit 2:

	 	Representations and warranties
	 
	 	 
	Exhibit 3:

	 	Notarial deed relating to the incorporation of the Articles
	 
	 	 
	Exhibit 4:

	 	Business Plan and Budget
	 
	 	 
	Exhibit 5:

	 	Shareholders’ resolution
	 
	 	 
	Exhibit 6:

	 	Powers of attorney relating to Issue
	 
	 	 
	Exhibit 7:

	 	Disclosure letter
	 
	 	 
	Exhibit 8:

	 	Spousal Consent
	 
	 	 
	Exhibit 9:

	 	Management Agreement J.D. de Bruijn
	 
	 	 
	Exhibit 10:

	 	List with IP-rights
	 
	 	 
	Exhibit 11:

	 	Template of Secondment Agreement
	 
	 	 
	Exhibit 12:

	 	List with Assets of TU Twente






3/31









 






SUBSCRIPTION
AND SHAREHOLDERS’ AGREEMENT


relating to shareholdings in


Progentix Orthobiology B.V.




The undersigned:





	1.	 	Progentix Orthobiology B.V. (the “Company”), a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, with its statutory seat in Bilthoven and its business address at Professor
Bronkhorstlaan 10-d, 3723 MB Bilthoven, the Netherlands, represented by its statutory director
(statutair bestuurder) J.D. de Bruijn Holding B.V. in its turn represented by Mr. J.D. de
Bruijn;
	 
	2.	 	Mr. Dr. Clemens Antoni van Blitterswijk (“Mr. Van Blitterswijk”), currently residing
at Coenderssingel 4, 8564 HE Ruigahuizen, born in The Hague on
the 7th of
July 1957;
	 
	3.	 	Mr. Franciscus Johannes Wilhelmus Ernest Bruno van
der Velden (“Mr. Van der Velden”),
currently residing at Waalbanddijk 68, 4054 MG Echteld, born
in The Hague on the
19th of
August 1959;
	 
	4.	 	Mr. Huipin Yuan (“Mr.
Yuan”), currently residing at Laan van Vollenhove 168, 3706 AA,
born in Nijiang (China) on the
19th of April 1966;
	 
	5.	 	Mr. Joost Dick de Bruijn (“Mr. De Bruijn”), currently residing at Pasteurstraat 16,
3817 JL Amersfoort, born in Pijnacker on the 13th of February 1966;
	 
	6.	 	J.D. de Bruijn Holding B.V. (“De Bruijn Holding”), a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws
of the Netherlands, with its statutory seat in Amersfoort and its business address at
Pasteurstraat 16, 3817 JL Amersfoort, the Netherlands, represented by its statutory director
(statutair bestuurder) Mr. J.D. de Bruijn;




4/31









 




	7.	 	BioGeneration Ventures B.V. (“BioGeneration”), a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws
of the Netherlands, with its statutory seat in Amsterdam and its business address at
Gooimeer 2 — 35, 1411 DC Naarden, represented by its statutory
directors (statutair
bestuurders) Mr. E.C.M. van Wezel and Mr. W.M. Hazenberg.







The parties hereinafter also collectively
referred to as the “Parties” and individually as a
“Party”;

The
parties 2, 3, 4, 5 and 6 hereinafter also referred to as the “Founders” and individually as a
“Founder”;



The party 7 hereinafter also referred to as the “investor”;



The
parties 2, 3, 4, 6 and 7 hereinafter also collectively referred to as the “Shareholders” and
individually as a “Shareholder”;




WHEREAS:





	A.	 	Progentix B.V., a private company with limited liability seated in Bilthoven is a
company that focuses on the development and exploitation of products in the
field of bone decease and bone repair. The Company will acquire the Osteoinductive Bone Graft Material Technology from Progentix B.V. by means of a postclosing transfer and assignment of all assets and rights that are required to further develop and commercialise the Osteoinductive Bone Graft Material Technology of Progentix B.V.
	 
	B.	 	The ambition of Progentix B.V. and the Company is to acquire external funding in
order to be able to market and make profit from the Osteoinductive Bone Graft
Material Technology. For this purpose the Osteoinductive Bone Graft Material
Technology will be carved out of Progentix B.V. thus separating
Progentix’ other
technology, other rights of intellectual property and subsidies from the assets and
liabilities of the Company.
	 
	C.	 	The Founders hold the entire issued and outstanding share capital of the Company, which currently consists of 18,000 ordinary shares with a nominal value of
EUR 1 (one euro) each (the “Ordinary Shares”).




5/31









 






	D.	 	The Investor is a private equity provider that invests in selected companies in the
life sciences industry and other industries; the investment and involvement of the
Investor in a company usually lasts for a period of approximately 3 (three) to 5
(five) years, after which period the Investor intend to liquidate the investment
through an “exit”, for example by a trade sale or an initial public offering.
	 
	E.	 	The Company and the Founders have entered into negotiations
with BioGeneration, regarding the investment by BioGeneration —
and as the case may be by co-investors — through a new class of shares i.e. preferred shares in the share capital of the Company, the terms and conditions of which are set forth in this subscription and shareholders’ agreement (the “Agreement”).
	 
	F.	 	The Investor and the Founders have agreed to a fair value of the business of the
Company of EUR 5,500,000 (five million five hundred thousand euro) after closing of the investment round (post money valuation).
	 
	G.	 	The Shareholders wish to have their mutual relations and their respective rights
and obligations in respect of their shareholdings in the Company governed by the
provisions of this Agreement and the articles of association of the Company (the
“Articles”, as may be amended from time to time);





DECLARE TO HAVE AGREED AS FOLLOWS:




Article 1. Interpretation





	1.1	 	The recitals, the exhibits (the “Exhibits”) and the schedules to this Agreement form an
integral part of this Agreement and any reference to this Agreement includes such recitals,
Exhibits and schedules. In this Agreement, reference to a recital, article. Exhibit or
schedule is a reference to a recital, article of, or Exhibit or schedule to this Agreement,
unless the context requires otherwise.
	 
	1.2	 	In this Agreement, unless the context indicates otherwise, references to the singular Shall
include references to the plural and vice versa and references to any pronoun shall include
the corresponding masculine, female or neuter, and references to persons shall include bodies
and corporate and unincorporated associations of persons.






6/31











 






	1.3	 	In this Agreement a reference to a particular agreement, enactment, regulation or other
document shall be construed as a reference to such agreement enactment, regulation or document
as it may from time to time be binding, enforceable or in force, as such agreement, enactment,
regulation or document may be novated, assigned, re-enacted (with or without modification),
restated, consolidated, amended or supplemented from time to time hereafter.






	1.4	 	In this Agreement a reference to a company or other legal entity shall be construed so as to
include any legal entity or entities into which such company may during the continuance of
this Agreement be merged by means of a statutory merger or into which it may be split up or
demerged.




Article
2. Issuance and Contribution





	2.1	 	The Investor shall subscribe for 4,000 (four thousand) cumulative preferred shares, with a
nominal value of EUR 1 (one euro) each (the “Preferred Shares”) in the share capital of the
Company, (the Ordinary Shares and the Preferred Sharers and any and all other (classes of)
shares from time to time outstanding in the share capital of the Company hereinafter referred
to as the “Shares”), against payment in two (2) tranches of an aggregate amount of EUR
1,000,000 (one million euro) (such amount hereinafter referred to as
the “Contribution”).






	2.2	 	The Founders shall procure that the Company issues on the Closing Date (as defined in
Article 6 below) (such issue hereinafter referred to as the “Issue”) the Preferred
Shares to the Investor, against payment of an aggregate amount of EUR 500,000 (five hundred
thousand Euro) hereinafter (“Initial Payment”).






	2.3	 	The Issue shall take place pursuant to a notarial deed, a copy of which is attached to this
Agreement as Exhibit 1, as soon as mr. N. van Buitenen (or his substitute or
successor) with Van Grafhorst & Van Buitenen Notarissen, in Utrecht (the: “Notary”), has
received the Initial Payment on the third party account with number 55.59.05.519 with the ABN
AMRO Bank in the name of Kwaliteitsrekening Van Buitenen & Van Grafhorst, on or before the
Closing Date (as defined in Article 6 below) which shall ultimately be at 31st of
January 2008.







	2.4	 	On the Closing Date, the Investor, in reliance on — inter alia — the representations







7/31









 








	 	 	and warranties as contained in Exhibit 2, hereby
agrees to subscribe for the Preferred Shares
which according to the previous sub-clauses shall be issued to the Investor and the Investor hereby
agrees to contribute on the Closing Date on the Preferred Shares issued through the Issue, an
aggregate amount of EUR 500,000 (five hundred thousand Euro).






	2.5	 	The nominal value of each of the Preferred Shares is EUR 1 (one Euro) and the remainder of
the Initial Payment shall be administered in the books of the Company as share premium
(‘agio’).






	2.6	 	For the purpose of illustration, the Parties observe that immediately following the Issue,
the Shares in the Company shall be held as follows:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Party	 	# Ordinary Shares	 	 	# Preferred Shares	 	 	Percent Stake	 
	Mr. Van Blitterswijk
	 	 	4,959	 	 	 	—	 	 	 	22.55	%
	Mr. Van der Velden
	 	 	4,959	 	 	 	—	 	 	 	22.55	%
	J.D. de Bruijn Holding
	 	 	7,200	 	 	 	—	 	 	 	32.7	%
	Mr. Yuan
	 	 	882	 	 	 	—	 	 	 	4.0	%
	BioGeneration
	 	 	—	 	 	 	4,000	 	 	 	18.2	%
	Total
	 	 	18,000	 	 	 	4,000	 	 	 	100	%





Article
3. Second Payment





	3.1	 	The Investor hereby agrees to procure that, subject to the terms and conditions of this
Agreement, the remainder of the Contribution after payment of the Initial Payment in the
amount of EUR 500,000 (five hundred thousand euro) (such amount hereinafter referred to as
“Second Payment”, shall be provided to the Company on 1 April 2008 on the condition that the
Investor has unconditionally approved the Budget and Business Plan for 2008.






	3.2	 	The Investor is entitled, at its sole discretion, to cancel Second Payment if (i) the Company
is engaged in any legal dispute relating to (a) any licensed or owned right of intellectual
and/or industrial property or patents which is/are essential to the Company’s approved
Business Plan and Budget or its ability to make profit or (b) any product developed or
commercialised by the Company (or its future subsidiaries)




8/31









 






	 	 	which is essential to the Company’s
approved Business Plan and Budget or its ability to make profit, or
if (ii) any intellectual
and/or industrial property rights or patents owned and/or licensed by the Company (or its
future subsidiaries) become invalid or patent applications owned and/or licensed by the
Company (or its future subsidiaries) are rejected by the European Patent Office and/or the
United States Patent and Trademark Office and which is/are crucial to the Company’s approved
Business Plan and Budget or its ability to make profit.






	3.3	 	When due, the Second Payment will be transferred within 3 weeks to a bank account in the name
of the Company to be provided to the Investor. The Second Payment will be administered in the
books of the Company as share premium (‘agio’) on the Preferred Shares the Investor already
holds, except where this Agreement provides otherwise.




Article
4. Application of funds.





	4.1	 	The Company agrees to use the Investment provided by the Investor, subject to the terms and
conditions of this Agreement; for no purposes other than the development of the Company’s
business consistent with the approved Business Plan and Budget (jointly referred to as
“Business Plan and Budget”), attached hereto as Exhibit 4.





Article 5. Signing Date



On or before the signing of this Agreement (the date of signing shall hereinafter be referred to as
the “Signing Date” and such event the “Signing”), the Parties agree to perform the following acts:





	•	 	the Founders will execute such shareholders’ resolution as is set out
in the minutes of the extraordinary shareholders’ meeting attached
hereto as Exhibit 5, and thus resolve to issue the Preferred Shares in
accordance with the draft deed of Issue attached hereto as
Exhibit 1;
	 
	•	 	the Company and the Investor will execute or cause to be executed such
powers of attorney attached hereto as Exhibit 6, and grant power of
attorney to each (deputy) civil-law notary of Van Grafhorst & Van
Buitenen Notarissen in Utrecht, the Netherlands, in order to execute
such the draft deed of Issue on the Closing Date.




9/31









 









Article 6. Closing. Conditions to Closing





	6.1	 	The Closing shall take place as soon as all conditions to Closing of Article 6.3 have
either been fulfilled or waived by the Investor though ultimately on
the 31st of
January 2008 unless the Founders and the Investor agree to a later date (such date hereinafter
also referred to as the “Closing Date” and such
event as the “Closing”). On the Closing Date,
the notarial deed relating to the Issue (attached hereto as Exhibit 1) shall be
executed by the Notary.






	6.2	 	For the purpose of effecting the amendment of the Articles and the Issue, the Parties
furthermore agree that they will execute such deeds, sign such documents, attend such
meetings, exercise such votes, pass such resolutions, waive such rights (under the Articles or
otherwise), give and/or obtain such consent and generally do and procure all things as may be
necessary or convenient for the implementation and completion of this Agreement in accordance
with its terms and conditions.






	6.3	 	The obligation of the Investor to consummate the Closing are subject to the fulfilment —
satisfactory to the Investor — of each of the following Conditions Precedent prior to the
31st of January 2008, or the waiver thereof in writing by the Investor, at or prior
to the Closing:






	 	a.	 	the Company shall be the sole legal and beneficial owner of all IP-rights
(which appear from the list attached hereto as Exhibit 10) relevant for the
Company to further develop and commercialise the Osteoinductive Bone
Graft Material Technology of Progentix B.V.;
	 
	 	b.	 	secondment agreements (substantially in the form as attached hereto as
Exhibit 11) are concluded between the Company and Progentix B.V. relating to
the following employees of Progentix B.V.: Joost de Bruijn, Riemke van
Dijkhuizen, Huipin Yuan, Linda van Rijn, Jurren Koerts, Davide Barbieri, Paul
van Bergen;
	 
	 	c.	 	all assets currently owned by the TU Twente (which appear from the list attached hereto as Exhibit 12) and relevant for the Company to further develop
and commercialise the Osteoinductive Bone Graft Material Technology of
Progentix B.V. shall have been transferred and assigned unconditionally to
the Company.




10/31









 











Article 7. The Company’s operations and future subsidiaries





	7.1	 	The Parties agree to procure that the Company shall, for as long as the Investor holds
Shares, remain the ultimate parent company for all of the Company’s operations, future
subsidiaries or the operations of such subsidiaries.






	7.2	 	The Company agrees to procure that the articles of association or similar instruments of any
(future) subsidiaries of the Company shall contain such clauses in order to provide that prior
approval of the shareholders’ meeting of such subsidiary shall be required for those
resolutions of the management board of such subsidiary for which, if such resolution were to
be taken by the management board of the Company, the management board of the Company would
require the prior approval of the holders of the Preferred Shares or of the Supervisory Board.
In addition, each of the Parties agrees to procure that until such time when the articles of
association (or similar constitutional documents) of any of the Company’s (future)
subsidiaries shall so have been amended, any rights and obligations of any of the Parties
under the regime of governance clauses and approvals as pursuant to this Agreement shall be
implemented for the Company, shall, mutatis mutandis, also apply to any such subsidiaries and
as such be deemed to be part of this Agreement and agreed and enforceable between the Parties
to this Agreement.




Article
8. Liquidation Preference and Conversion




Liquidity Event





	8.1	 	In the event of:






	 	(i)	 	the liquidation of the Company;
	 
	 	(ii)	 	the dissolution of the Company;
	 
	 	(iii)	 	the sale of all or substantially all of the Company’s assets;
	 
	 	(iv)	 	the licensing on an exclusive basis of all or substantially all of the Company’s assets;
	 
	 	(v)	 	a merger or consolidation of the Company with any other company; or
	 
	 	(vi)	 	the sale of more than 80% (eighty percent) of the then outstanding Shares
(by trade sale or otherwise), except for an initial public offering of Shares of
the Company on a recognised stock exchange (an “IPO”);






	 	 	(any such event hereinafter a “Liquidity
Event”), the Parties shall, irrespective of the
liquidation distribution provisions provided for in the Articles,
allocate and dis-




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	 	 	tribute all proceeds of such event, be it cash, stock or surplus assets, amongst the
Shareholders as follows:






	 	A.	 	in the event the Proceeds are less then EUR 15,000,000 (fifteen million euro)






	 	(i)	 	first, on the Preferred Shares: to the holders of the preferred Shares
an amount equal to twice the sum of the nominal value of these Preferred Shares, the
share premium (agio) paid on these Preferred Shares, and the unpaid dividends of 8%
(eight percent) compounded per annum, if any, whereby, if the balance is insufficient
to make such distribution, the available balance will be distributed to the holders of
the Preferred Shares proportional to the total value of their Preferred Shares
shareholdings;
	 
	 	(ii)	 	the amount remaining after full payment to the Preferred
Shareholders pursuant to the preceding subparagraph A. will be distributed to the
holders of Preferred Shares and the holders of the Ordinary Shares, proportional to
their individual shareholdings of Shares in the Company.






	 	B.	 	In the event the direct proceeds of the Liquidity Event are EUR 15,000,000
(fifteen million euro) or more, the proceeds will be allocated and distributed
to the Shareholders pro rata parte the number of Shares each Shareholder
holds on an as if converted basis.




Claw back





	8.2	 	In the event a Liquidity Event consists of two or more separate events, whereby
the proceeds initially are less then EUR 15,000,000 (fifteen million euro), the proceeds shall first be
distributed pursuant to Article 8.1 sub A. Should it appear that
on or before the 15th of November 2012
the sum of all proceeds exceeds
EUR 15,000,000 (fifteen million euro), all — and not part — of the past and future
proceeds shall be distributed pursuant to Article 8.1 sub B. The Preferred Shareholders shall pay to the Ordinary Shareholders an amount equal to (i) the total proceeds the Ordinary
Shareholders should have received if all proceeds were distributed pursuant to Article 8.1 sub B
less (ii) the amount already received by the
Ordinary Shareholders.




Conversion





	8.3	 	The Parties agree that any of the Preferred Shares may be converted, at any time,
into Ordinary Shares at a conversion rate of 1:1 (such conversion a “Conversion”),
which conversion rate shall be adjusted so as to reflect this ratio after any amend-






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	 	 	ment of the nominal value by means of any stock splits, combinations, recapitalisations
or any other actions that have lead to a different capitalisation of the Company as if no
such stock split, combination, recapitalisation or any such other
action had taken place.






	8.4	 	A Conversion will take place in accordance with the provisions of the Articles pursuant to a
written request by the relevant holder of the Preferred Shares to be delivered at the
Company’s address, stating that such holder of Preferred Shares wishes to convert all or part
of the Preferred Shares held by such Shareholder into Ordinary Shares (a “Conversion
Request”). Upon receipt of the Conversion Request the Company will immediately take action to
effectuate such Conversion. To the extent necessary to achieve such Conversion (i) each of the
Parties irrevocably agrees to take all actions and resolutions required to effectuate such
Conversion and (ii) each of the Parties hereby unconditionally and irrevocably grants a power
of attorney to each (deputy) civil-law notary practising in the Netherlands, to execute any
deed of issuance of Shares or amendment to the Articles that may appear necessary to
effectuate the Conversion.






	8.5	 	The Parties agree to procure that, notwithstanding any previous Conversions, all (remaining)
Preferred Shares shall be converted (i) upon the occurrence of an IPO and listing of Shares of
the Company on a recognised stock exchange.






	8.6	 	The Parties furthermore agree to procure that, not later than at the first closing date of an
IPO, all outstanding depository receipts — if any — shall be cancelled (gedecer-tificeerd) in
exchange for Ordinary Shares at an exchange rate of 1:1, which exchange rate shall be adjusted
so as to reflect this ratio after any amendment of the nominal value by means of any stock
splits, combinations, recapitalisations or any other actions that have lead to a
different capitalisation of the Company as if no such stock split, combination,
recapitalisation or any such other action had taken place.




Article 9. Anti-Dilution Adjustments





	9.1	 	In the event of any issue of additional Shares (irrespective of the class of such shares)
after the Closing Date (other than Shares issued pursuant to a stock option plan to employees
or non-employees (such as members of the Scientific Advisory board) which are approved by the
Supervisory Board), for a price per Share less




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	 	 	than the per Preferred Share contribution on, or purchase price for, any of such Shares,
which price per Shares (in case this event occurs prior to a new financing round of the
Company) shall be increased with a deemed annual return of 20% (twenty percent) compounded
per year — at any time held by the holders of such Shares that were issued or acquired in
the context of this Agreement — taking into account any stock splits, recapitalisation,
amendment of the nominal value of any of the Preferred Shares, earlier application of
anti-dilution provisions or any other relevant transaction (each such issue a “Post-Closing
Issue”) - then the Parties shall be obliged to procure that the Company issues to each of
these holders of the Preferred Shares such number of Preferred Shares (or, at the option Of
one or more holders of the Preferred Shares, any other class of Shares that may exist at
such time) against a per share contribution equal to the nominal value thereof (such issue
the “Compensating Issue”), as is necessary to achieve a situation in which the average price
per Preferred Share — and as the case may be: increased with the deemed annual return of 20%
(twenty percent) compounded per year -paid for or contributed on the aggregate number of the
Preferred Shares held by each of the holders of such Shares immediately following the
Compensating Issue, shall not be higher than the price per additional Share issued under the
relevant Post-Closing Issue.






	9.2	 	The contribution payable on the Shares issued through the Compensating Issue shall, if
possible, be set off against the share premium (‘agio’) already paid on the class of shares to
which the shares issued in the Compensating Issue should belong (so that the relevant holders
of Preferred Shares shall hot be obliged to make any payment on the shares issued to it
through the Compensating Issue), or, to the extent necessary under applicable law, be equal to
the nominal value of the shares issued through the Compensating Issue. The Company and each of
the Shareholders hereby unconditionally and irrevocably grant a power of attorney to each
(deputy) civil-law notary practising in the Netherlands, to waive any pre-emptive rights
and/or to execute a deed of issuance of Preferred Shares to effectuate this anti-dilution
protection.






	9.3	 	The Parties acknowledge that, in accordance with the Articles, each of the Company’s
shareholders may have certain pre-emptive rights on newly to be issued Shares. To the extent
any of the Parties should be a Shareholder of the Company at the time when the provisions of
Article 9.1 are effectuated, each of the Parties hereby agrees to waive any
pre-emptive rights such Party may have on any and all




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	 	 	Shares to be issued to such holders of Preferred Shares through the Compensating Issue
pursuant to the provisions of this Article 9.




Article 10. Transfer of Shares



IPO





	10.1	 	The Investor, having obtained prior written approval from the Supervisory Board,
ma give notice to the Company and the other Shareholder(s) that in its opinion the
Company should strive to realize an IPO, then each of the Parties shall be obliged
to use best efforts to effect the IPO within a reasonable timeframe. If to that effect,
the Company should propose certain actions that may be necessary for an IPO, all
Parties Will co-operate to complete such actions and will act in good faith in order
to effect such IPO. The Parties agree that in that case they will — inter alia - comply
with all applicable rules, regulations and requirements for such IPO including with-
out limitation the relevant stock exchange regulations, and agree to enter into such
underwriting-, listing-, lock-up- and other agreements as may be deemed reasonable and necessary.






	10.2	 	The Company will bear all costs and expenses in connection with an IPO.




Sale to a strategic or financial purchaser





	10.3	 	The Parties agree that any holder of Shares who/which intends
to accept a bona fide offer in writing, received from one or more third parties (such party or parties
hereinafter an “Interested Purchaser”), for all or part of the Shares held by such
Party (such Party an “Offering Shareholder”), shall be obliged to give written notice thereof to the Company and all other Shareholders (the “Notice”). The Notice
shall be given within 10 (ten) business days after receipt of the offer by the Interested Purchaser. In that case, the following provisions shall apply.




Right of First Refusal





	10.4	 	Each of the holders of the Preferred Shares shall have the right (which right, in
case more than one such Shareholder should exercise such right, shall be pro rata
to their mutual shareholdings of Shares) to give written notice to the Company and
the Offering Shareholder within a reasonable term (which shall be determined by
the Offering Shareholder in the Notice but shall not be less than 15 (fifteen) busi-
ness days from the date of receipt of the Notice) that such Shareholder wishes to
purchase the Shares offered by the Offering Shareholder at the same price and




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	 	 	conditions as offered by the Interested Purchaser.






	10.5	 	For the purpose of Article 10.4, the Notice shall be deemed to constitute an offer to
sell which offer may be accepted in the manner described in this sub-article. Subsequently,
the accepting Shareholders(s) shall be obliged to procure that the Shares offered by the
Offering Shareholder shall be transferred to the accepting
Shareholders(s) within 20 (twenty)
business days after acceptance.






	10.6	 	To the extent (all or some of the) Shares offered by the Offering Shareholder are not
purchased by the holders of the Preferred Shares pursuant to the previous subclauses, the
holders of the Ordinary Shares shall have the right (which right, in case more than one such
Shareholder should exercise such right, shall be pro rata to their mutual shareholdings of
Shares) to give written notice to the Company and the Offering Shareholder within a reasonable
term (which shall be determined by the Offering Shareholder in the Notice, but shall not be
less than 15 (fifteen) business days from the date the Offering Shareholder has been informed
by the holders of the Preferred Shares that they will not purchase all Shares offered by the
Offering Shareholder) that such Shareholder wishes to purchase the Shares offered by the
Offering Shareholder at the same price and conditions as offered by the Interested Purchaser.






	10.7	 	To the extent one or more of the holders of Shares should not exercise their rights under the
previous sub-clauses, each of them agrees to refrain from exercising any other relevant rights
such Shareholder may have under the Articles and to give all reasonable co-operation which the
Offering Shareholder may need to effect the sale and transfer of Shares to the Interested
Purchaser or to those Parties that do exercise their rights under this sub-clause.




Drag Along





	10.8	 	In the event that the Offering Shareholder is the Investors (for the purpose of this
Article 10.8 being the Offering Shareholder) receives from an Interested Purchaser a
bona fide offer in writing for more than 80% (eighty percent) of the then outstanding Shares
(including an offer to purchase such Shares in tranches), and to the extent that the Shares
offered by the Offering Shareholder(s) are not sold to the other Shareholders, in such manner
as is described in the previous subclauses, the Offering Shareholder(s) shall have the right
to oblige the other Shareholders to offer all of the Shares held by them to the Interested
Purchaser at the




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	 	 	same price and conditions as offered by the Interested Purchaser, provided, however, that
the Investors shall not be obliged to provide any such Interested Purchaser with any
indemnities and representations and warranties, other than representations and warranties to
the title of the Shares held by it; as soon as the Offering Shareholder(s) reach an
agreement with the Interested Purchaser, then the other Shareholders will also be bound by
such agreement and be obliged to transfer the Shares held by them to the Interested
Purchaser in such a manner as the Offering Shareholder(s) have agreed with the Interested
Purchaser; provided however, that to the extent that the sum of the number of Shares that
the Offering Shareholder(s) and the other Shareholders want to sell and/or are obliged to
sell to the Interested Purchaser, should be higher than the aggregate number of Shares than
the Interested Purchaser wishes to acquire (“supply exceeds demand”), both the Offering
Shareholder(s) and the other Shareholders will reduce the number of Shares to be sold by
them so that the aggregate number of Shares to be sold to the Interested Purchaser shall
consist of Preferred Shares held by the Offering Shareholder(s) and any other Shares held by
the other Shareholders pro rata to the size of their shareholdings of Shares in the Company,
all this with due observance of Article 8.1 hereof.




Tag Along





	10.9	 	In case the Offering Shareholder is a Shareholder, then the Offering Shareholder shall
procure that either the Interested Purchaser or the Offering Shareholder offers to the other
Shareholders to purchase all Shares that the holders of such Shares then would wish to make
available for sale, at the same price and conditions per Share (or, if the Shares held by the
Offering Shareholder are of a different class than (all or some of) the Shares held by any of
the relevant other Shareholders, at such price per Share as reflects the difference between
those classes) as offered by the Interested Purchaser to the Offering Shareholder, provided,
however, that in that case, to the extent that the sum of the number of Shares that the
Offering Shareholder wants to sell to the Interested Purchaser and the number of Shares that
the other Shareholders would wish to make available for sale, should be higher than the
aggregate number of Shares that the Interested Purchaser wishes to acquire (“supply exceeds
demand”), both the Offering Shareholder and the other Shareholders will reduce the number of
Shares to be sold by them so that the aggregate number of Shares to be sold to the Interested
Purchaser shall consist of Shares held by the Offering Shareholder and the other Shareholders
pro rata to the size of their shareholdings of Shares in the Company, all this with due






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	 	 	observance of Article 8.1 hereof. The Offering Shareholder shall procure that
such offer to the other Shareholders shall be made in writing within 1 (one) month after the
Offering Shareholder shall have given the Notice.
	 
	10.10	 	For the purpose of clarification, the Parties observe that in case of a bona fide offer in
writing by an Interested Purchaser, then the provisions of the Articles 10.4 through
10.7 hereof (Right of First Refusal) will apply in preference to the provisions of
Article 10.8 (Drag Along) or Article 10.9 (Tag Along).
	 
	10.11	 	The Parties acknowledge and agree that the arrangements included in the provisions of this
Article 10 are different from the transfer restriction clauses in the Articles in the
sense that they may result in the realisation of prices for Shares that are different than the
prices that may result from the application of the provisions in the Articles relating to the
determination of prices by experts. This deviation, however, is expressly agreed and accepted
by the Parties in their mutual contractual relations as established through this Agreement.
	 
	10.12	 	Each of the Parties hereby undertakes towards the other Parties to act in accordance with
the provisions of this article and to co-operate in the effectuation of any transaction in
accordance with the provisions of this Article 10. In particular, each of the Parties
hereby agrees to waive its rights under the Articles to the extent such waiver is necessary to
procure that the provisions of this Article 10 may be applied in such manner as is
described in this Article 10.




Article 11. Encumbrance



Each of the Shareholders undertakes towards the other Shareholders not to create, or suffer or
cause any other person to create, any encumbrance with respect to any of the Shares held by them,
without prior written Investor’s Consent.



Article 12. Representations and Warranties. Indemnification.





	12.1	 	Each of the Founders hereby represents and warrants, severally and not jointly,
towards the Investor that all of the Shares held by them are free from any liens,
equities, charges, pledges, rights of usufruct (vruchtgebruik), adverse claims and
encumbrances or interests in favour of, or claims made by or which could be made
by, any other person.










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	12.2	 	Each of Mr. Van Blitterswijk, Mr. Van der Velden, De Bruijn Holding, Mr. De Bruijn and
Mr. Yuan hereby indemnifies the Investor and holds the Investor harmless for any claim or
liability from any third party that originates from the business of Progentix B.V.,
aforementioned, in as far as the claim or liability does not — directly or indirectly -
relate to the Osteoinductive Bone Graft Material Technology (e.g. claims with respect to
non-related subsidies).
	 
	12.3	 	Each of the Company, Mr. Van Blitterswijk, Mr. Van der Velden, Mr. De Bruijn and Mr. Yuan
(the “Representing Parties”) hereby represents and warrants towards the Investor that all of
the representations and warranties stated in Exhibit 2 hereto pertaining to the
Company and the business of the Company (the “Representations and Warranties”) are true,
correct and not misleading on the Signing Date and on the Closing Date.
	 
	12.4	 	In the event of a breach or series of breaches of, or default or series of defaults under,
any of the Representations and Warranties (such breach of or default under hereinafter a
“Breach”), the Representing Parties shall, subject to the succeeding provisions of this
Article 12, be severally liable (and not also jointly) and be obliged to place the
Investor that should elect to exercise its rights under this Article 12 or, at the
option of the Investor, the Company in the same position as the Investor or, as the case may
be, the Company would have been if such Breach had not occurred. For the avoidance of doubt,
the Parties agree that in the event of a Breach the Investor — unless the Investor should
demand that not the Investor, but the Company shall be placed in the same position as the
Company would have been if the Breach had not occurred — shall be entitled to receive from the
Representing Parties such amount (the “Damage”) as may be calculated by multiplying the
monetary value of the difference between, on the one hand, the position in which the Company
would have been if the Breach had not occurred and, on the other hand, the actual position of
the Company, by the percentage of the Company’s share capital that the Shares then directly or
indirectly held by the Investor account for.
	 
	12.5	 	The Representing Parties shall not be liable under this Article 12 for as long as the
amount of Damage per individual Breach does not exceed EUR 10,000 (ten thousand euro).
	 




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	12.6	 	Any and all liability of the Representing Parties in respect of the Representations and
Warranties shall fully and, save for the condition set out herein, unconditionally expire at
the third anniversary of the Closing Date or in the case of a tax claim as referred to under
D. (‘tax warranties’) of Exhibit 2 (‘Representation and Warranties’) on the day the statutory
limitations period in respect of tax claims expires, provided that any claim which would
otherwise terminate pursuant to this Article 12 will continue to survive if a claim
notice in writing shall have been timely sent to a Representing Party on or prior to the end
of such term.
	 
	12.7	 	Any potential Breach that has been disclosed to the Investor in the disclosure letter (the
“Disclosure Letter”), attached hereto as
Exhibit 7, will prevent the Investor from
claiming under the Representations and Warranties in the event that
such potential Breach
would materialize. At the Signing Date, the Investor has no knowledge of a Warranty being
untrue, inaccurate or incomplete.
	 
	12.8	 	In the event that the Investor has or believes to have a claim in relation to a Breach, the
Investor shall notify the Representing Parties thereof by service of a registered claim
notification (aangetekende brief), stating the nature of the claim, whether or not the
Investor chooses to have the Representing Parties hold harmless either the Investor or the
Company in accordance with the provisions of the second sub-article of this Article
12, and the amount of the claim. If a claim of the Investor can reasonably be considered
to be genuine, the Representing Parties shall forthwith remedy the Breach in accordance with
the provisions of this Article 12,
	 
	12.9	 	The liability of each of the Representing Parties with respect to the Representations and
Warranties shall be limited to the following amounts, which have been agreed in negotiations
between the Parties:





	 	 	 
	Representing Party	 	Maximum liability amount
	Company
	 	EUR 1,000,000
	 
	 	 	 	 
	Mr. Van Blitterswijk
	 	EUR 50,000
	 
	 	 	 	 
	Mr. Van der Velden
	 	EUR 50,000
	 
	 	 	 	 
	Mr. J.D. de Bruijn
	 	EUR 50,000
	 
	 	 	 	 
	Mr. Yuan
	 	EUR 10,000











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	 	 	provided, however, that the Company shall be entitled, if and to the extent (partial)
payment of Damages would immediately result in bankruptcy of the Company (such amount of
Damages that would result in bankruptcy of the Company hereinafter referred to as the “Excess
Damages”), to pay the Excess Damages by means of an issuance of such a number of Preferred
Shares, or at the option of the Investor, any other classes of Shares that may exist at that
time, at their then current fair market value, to be calculated in accordance with the
procedure described in the Articles, to the Investor as is equal to the Excess Damages.
	 
	12.10	 	In view of the provisions of article 1:88 of the Dutch Civil Code Mr. De Bruijn and Mr. Yuan
shall procure that the Investor shall have received on or prior to the Closing Date a duly
signed declaration of spousal consent, in the form attached hereto as Exhibit 8.




Article 13. Management Board





	13.1	 	The management board (statutair bestuur) of the Company shall require Investor’s Consent, to
the extent not provided for in the budget approved in accordance with the provision of this
Article 13.1 and Article 17 hereof, for resolutions relating to any of the
following decisions, provided, however that each of such decisions has an aggregate value in
excess of EUR 25,000 (twenty-five thousand euro):






	 	(a)	 	opening or shutting down (branch)offices, direct or indirect participation in the
capital of another company and terminating or changing the size of any such
participation, whether or not abroad;
	 
	 	(b)	 	lending and borrowing money (including inter-company loans) in excess of 10% (ten
percent) of the Contribution, with the exception of acquiring money under a credit
already granted to the Company by a bank;
	 
	 	(c)	 	entering into agreements by which the Company binds itself as guarantor or as
severally-liable co-debtor, or otherwise guarantees or agrees to bind itself as security
for a debt of a third party in excess of 10% (ten percent) of the Contribution;
	 
	 	(d)	 	acquiring, alienating, encumbering, leasing, letting and in any other way
obtaining and giving the use or benefit of (registered) property and assets;
	 
	 	(e)	 	entering into agreements, whereby the Company is granted credit by a bank in
excess of 10% (ten percent) of the Contribution;
	 
	 	(f)	 	long term direct or indirect co-operation with another company and the
termination of such co-operation;




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	 	(g)	 	transactions outside the ordinary course of the business of the Company;
	 
	 	(h)	 	investments or divestitures, or otherwise acquiring or disposing of a business;
	 
	 	(i)	 	application for bankruptcy or the suspension of payments;
	 
	 	(j)	 	granting registration rights or similar rights, except as provided for in
this Agreement;
	 
	 	(k)	 	preparation or direct or indirect enablement of a Liquidity Event;
	 
	 	(l)	 	concluding,
terminating or amending any (licensing) agreement relating to licensed intellectual property
rights of the Company; and
	 
	 	(m)	 	exercising the voting rights attributable to shares held by
the Company.






	13.2	 	The protective rights of the Investor as laid down in Article 13.1 shall
automatically lapse in the event at least 75% (seventy-five percent) Of the Preferred Shares
have been converted into Ordinary Shares.
	 
	13.3	 	The management board (statutaire bestuur) of the Company shall require, to the extent not
provided for in the budget approved in accordance with the provision of Article 13.1
and Article 17 hereof, the prior written approval of the Supervisory Board (as defined
below) for resolutions relating to the any of the following decisions provided, however that
each of such decisions has an aggregate value in excess of EUR 10,000 (ten thousand euro):






	 	(a)	 	the adoption of the annual budget, which shall include an investment plan and a
financing plan, annually and obligatory to be drawn up by the management board;
	 
	 	(b)	 	any expenditure that exceeds the budget by 10% (ten percent) of the level in
the Company’s budget as approved by the Investor;
	 
	 	(c)	 	making settlements;
	 
	 	(d)	 	being a party to legal proceedings, including conducting arbitration proceedings
with the exception of taking legal measures that cannot be delayed;
	 
	 	(e)	 	granting bonuses or profit rights to the management board, management team or
personnel of the Company;
	 
	 	(f)	 	adopting a share option plan and granting individual stock options under such
plan;
	 
	 	(g)	 	establishing pension plans and granting pension rights in excess of those arising
from existing arrangements;
	 
	 	(h)	 	entering into any contract, transaction or commitment exceeding an aggre-
gate value of EUR 100,000 (one hundred thousand euro);






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	 	(i)	 	entering into and changing employment agreements, whereby a gross
remuneration is granted in excess of EUR 50,000 (fifty thousand euro) per annum;
	 
	 	(j)	 	entering into an arrangement or agreement with (an individual related to) a
shareholder, a managing or supervisory director of the Company or of any of its
subsidiaries;
	 
	 	(k)	 	appointing proxy holders (procuratiehouders c.q. gevolmachtigden) and
determining their authority and title;
	 
	 	(l)	 	appointing advisors or investment bankers with respect to a sale, IPO or
financing round.




Article 14. General meeting of shareholders





	14.1	 	The following resolutions of the general meeting of shareholders of the Company
shall be adopted by (i) a simple majority of the votes validly cast at a meeting of
shareholders of the Company including (ii) Investor’s
Consent:






	 	(a)	 	issuance of Shares;
	 
	 	(b)	 	limitation or exclusion of pre-emptive rights in respect of an issuance of
Shares;
	 
	 	(c)	 	transfer or revocation of the authority to issue Shares to another corporate
body;
	 
	 	(d)	 	acquisition or transfer of Shares or depository receipts thereof by the Company
or any of its subsidiaries;
	 
	 	(e)	 	reduction of the Company’s issued capital;
	 
	 	(f)	 	amendment of the Articles;
	 
	 	(g)	 	statutory merger or statutory demerger;
	 
	 	(h)	 	dissolution of the Company; and
	 
	 	(i)	 	the distribution of dividends.






	14.2	 	A resolution to appoint, dismiss or suspend a statutory director (statutair bestuurder)
shall be adopted by a 2/3 (two/thirds) majority of the votes validly cast at a meeting of
shareholders of the Company in which at least 50% (fifty percent) of the issued and
outstanding share capital of the Company is present.
	 
	14.3	 	The Parties hereby agree that the protective rights of the Investor set forth in Article
14.1 shall automatically lapse in the event at least 75% (seventy-five percent)
of the Preferred Shares have been converted into Ordinary Shares.




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Article 15. Consent of the Investor



To the extent this Agreement prescribes the consent of the Investor this consent shall mean the
explicit consent of the Investor, which consent shall either be in writing or somehow recorded for
purposes of evidence (hereinafter referred to as:
“Investor’s Consent”). In the event the Company
has more investors then the Investor due the syndication of the investment, the definition of
Investor’s Consent shall include the consent of at least 50% (fifty percent) of all outstanding
Preferred Shares.



Article 16. Supervisory Board





	16.1	 	The Parties shall procure that the supervisory board of the Company (the “Supervisory Board”)
shall be composed of 3 (three) members, to be appointed by the general meeting of
shareholders:






	 	–	 	1(one) of whom shall be appointed upon a binding nomination
of the Investor; and,
	 
	 	–	 	1(one) of whom shall be appointed upon a binding nomination of the Founders; and,
	 
	 	–	 	1(one) of whom shall be appointed as an independent member recognised as an industry
expert upon a binding nomination of the Investor together with the Founders.






	 	 	At the Closing Date, the following persons shall be nominated by the following Parties:






	 	•	 	Mr. E.C.M. van Wezel as Supervisory Board member on behalf of the Investor;
	 
	 	•	 	Dr. C.A. Van Blitterswijk as Supervisory Board member on behalf of the
Founders.






	 	 	The third, independent Supervisory Board member, shall be nominated as soon as reasonably
possible.






	16.2	 	Each of the Shareholders hereby agrees to Vote at the relevant general meetings of
shareholders in favour of any binding nominations made in accordance with this Article
16, unless any candidate nominated cannot reasonably be regarded as an appropriate member
of the Supervisory Board. Likewise each of the Shareholders hereby agrees to vote at the
relevant general meeting of shareholders in favour of










24/31









 












	 	 	any proposals to suspend or dismiss a Supervisory Board member if such proposal is made by
the same Party which is entitled to nominate candidates for the seat then held by such
Supervisory Board member.






	16.3	 	The Parties shall procure that the Supervisory Board shall meet at regular intervals, but at
least quarterly. Votes may be rendered by power of attorney given by one Supervisory Board
member to another member. The Parties agree that the Supervisory Board will adopt resolutions
by a simple majority of the votes of the members present.
	 
	16.4	 	The Supervisory Board members shall receive reimbursement of all reasonable expenses incurred
for their membership of the Supervisory Board.
	 
	16.5	 	To the extent allowed under applicable law, the Company shall indemnify and keep indemnified
the members of the Supervisory Board from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgements, suits, costs or expenses of any kind or
nature whatsoever to which such member may become subject by reason of its/their status as
member of the Supervisory Board, unless such liabilities, obligations, losses, damages,
penalties, actions, judgements, suits, costs or expenses of any kind or nature whatsoever
is/are caused by its/their gross negligence, wilful misconduct or fraud.
	 
	16.6	 	The Supervisory Board members shall have the benefit of directors’ insurance in amounts and
covering risks as is determined by the management board (statutaire bestuur) of the Company,
subject to Investor’s Consent.




Article 17.
Information





	17.1	 	The Company agrees to furnish to the Investor the following
information in electronic format:






	 	•	 	Monthly financial- and management updates of the Company and its subsidiaries:
within 15 (fifteen) days following the end of each month a report comprising updates on
cash position and cash burn, actual versus budget;
	 
	 	•	 	Quarterly financial- and management statements of the Company and its
subsidiaries: within 30 (thirty) days following the end of each quarter a report
comprising at least a profit and loss account for the prior quarter, actual versus
budget updates on cash position and cash burn, updated sales and profit




25/31









 






	 	 	 	and loss forecasts, estimates for the running quarter, a quarterly progress report, and other
key performance indicators relating to the Company;
	 
	 	•	 	Annual reports: within 90 (ninety) days after the end of each financial year
the audited financial statements according to generally accepted accounting principles
in the Netherlands;
	 
	 	•	 	Annual budget: at least 60 (sixty) days before the end of each financial year,
which budget will include a projected income statement, cash flow
projections and a balance sheet of the Company and its subsidiaries on a monthly basis for the
following financial year;
	 
	 	•	 	Any other information which the Investor may reasonably require to monitor the
Company’s and its subsidiaries business strategy, major business developments and the
financial and overall performance of the Company and its subsidiaries on a regular
basis.






	17.2	 	The Company and the Founders agree to allow the Investor and its external advisers for as
long as the Investor is a Shareholder, to visit each and every office of the Company and/or
any of its subsidiaries as often as the Investor should reasonably request (after having
given a reasonable written notice) and to inspect and copy the Company’s and/or its
subsidiaries’ books and records (including corporate and financial records) and discuss its
business and financial matters with the Company’s management unless, either (i) after an IPO
such visits and/or inspections cannot, under the regulations applicable to companies listed on
the relevant stock exchange, be allowed to the investor or (ii) such visits and/or inspections
cannot be allowed to the Investor due to non disclosure obligations of the Company in
connection with its business. All costs and expenses in relation to the provisions in this
sub-article, shall be borne by the Investor who incurred such costs and expenses. Should it
appear from these inspections that the Company has not — or not
timely—met its obligations
pursuant to Article 17.1 all costs shall be borne by the Company.




Article 18. Budget



To the extent that the Investor should notify the Company that it does not approve the budget
provided to them pursuant to Article 17.1, then the
Company shall (i) refrain from any
actions aimed at or relating to the implementation of any and all of the items referred to in such
budget, and (ii) submit to the Investor an amended budget.





26/31









 







Article 19. Non-Competition Agreements





	19.1	 	Each of the Mr. De Bruijn and Mr. Yuan hereby undertakes and covenants with the Company and
the Investor that he shall not, except with the prior written approval of the Company and each
of the Investors:






	 	a.	 	while he is (either directly or indirectly) a manager with or advisor to the
Company or its (future) subsidiaries, be engaged or interested
directly or indirectly (in any capacity whatsoever) in Osteoinductive Bone Graft Material
Technology; or
	 
	 	b.	 	during a period commencing on the date he (either directly or indirectly) no
longer is a holder of Shares in the capital of the Company, manager with or
advisor to the Company or its (future) subsidiaries and ending two (2) years
later or, if earlier, at the IPO: (i) carry on or be concerned,
engaged or interested directly or indirectly in any capacity whatsoever in Osteoinductive Bone
Graft Material Technology; or (ii) either on his own behalf or
in any other capacity whatsoever directly or indirectly do or say anything which may lead to
any person or entity ceasing to do business with the Company or its (future)
subsidiaries on substantially the same terms as previously (or at
all) or endeavour to entice away from the Company or its (future) subsidiaries or solicit
any person, firm or company who at the date of cessation does business with
the Company or its (future) subsidiaries or which has during such a period
been a customer of the Company or its (future) subsidiaries; or (iii) either on
his/its own behalf or in any other capacity whatsoever directly or indirectly
employ, engage or induce, or seek to induce, to leave the service of the
Company or its (future) subsidiaries, any person who at that
date is employed by the Company or its (future) subsidiaries.




Article 20. Future pre-emptive rights



In the event of an issue of new Shares (irrespective of the class of such Shares) and
notwithstanding any contrary provision in the Articles (as the Articles may read from time to
time), all Shareholders (including the holders of Preferred Shares and/or any future classes of
Preferred Shares) shall (in deviation Of section 2:206a subsection 2 of the Dutch Civil Code) have
a first right to subscribe for any newly issued Shares in proportion to their individual
shareholdings of Shares in the Company. In the event a Shareholder does not exercise its
pre-emptive rights in respect of such newly issued Shares, the other Shareholders shall have
pre-emptive rights in respect of those shares in proportion to





27/31











 





their individual shareholdings of Shares in the Company. For the purpose of clarification, the
Parties observe that in case of an issue of new Shares, the provisions of Article 9 hereof
(Anti-Dilution Adjustments) will apply in preference to the provisions of this Article 20
(Future Pre-emptive rights). The Investor is entitled to exercise any pre-emptive rights of any
Shareholder that does not exercise its own pre-emptive rights, whereby BioGeneration is entitled to
transfer or assign its pre-emptive rights to affiliates, to successor funds and/or to Forbion
Capital Partners.




Article 21. Assignments; Perpetual Covenant





	21.1	 	The Investor shall at all times have the right to transfer the Shares held by it along with
their rights and obligations under this Agreement to any (other) company, for as long as such
(other) company is controlled by the Investor, for as long as such (other) company (directly
or indirectly) controls the relevant Investor, or for as long such company is an investment
fund or similar entity managed by one or more investment managers of such Investor or managed
by the same general partner or manager as such Investor or by any other general partner or
manager within the same group as such Investor or its general partner, except for portfolio
companies and provided that such transfer takes place in accordance with Article 21.2
hereof. Each of the other Parties hereby agrees to unconditionally co-operate to effect any
such transfer.






	21.2	 	Notwithstanding any other provisions of this Agreement, no Party shall transfer any Shares to
any transferee which is not bound by the provisions of this Agreement without procuring that
such transferee shall have agreed to become a party to this Agreement effective as from the
moment that it shall be a shareholder of the Company, and by doing so shall have accepted the
rights and obligations under this Agreement which apply to the transferor of the relevant
Shares immediately prior to the transfer of such Shares.





Article 22. Costs and Expenses





	22.1	 	All fees, costs and expenses, up to a maximum amount of EUR 30,000 (thirty thousand euro)
charged by the advisor(s) of the Investor in relation to the drawing up and negotiation of
this Agreement and the (notarial) execution thereof, shall, be borne by the Company. All fees,
costs and expenses incurred in excess thereof and all fees, costs and expenses incurred by the
other Parties shall be borne by




28/31









 






	 	 	each such Party.






	22.2	 	Each of the Parties represents that he/it has not incurred and will not incur any brokerage
fees, agent’s fees or any other commissions in connection with the transactions contemplated
by this Agreement.





Article 23. Confidentiality; Announcements





	23.1	 	Each of the Parties agrees to keep secret and strictly confidential and not to use, disclose
or divulge to any third party or to enable or cause any person to become
aware of (except for the purposes of the Company’s and/or its subsidiaries business) any
confidential information relating to the Company and/or its subsidiaries including but not
limited to intellectual property (whether owned or licensed by the Company and/or its
subsidiaries), lists of customers, reports, notes, memoranda and all other documentary
records pertaining to the Company and/or its subsidiaries, or its/their business affairs,
finances, suppliers, customers or contractual or other arrangements but excluding any
information which is in the public domain or which they are required to disclose by law or
by the rules of any regulatory body to which the relevant Party is subject.






	23.2	 	Notwithstanding the previous sub-clause, the Company and the Investor shall have the right to
(i) make such announcements in connection with the participation of the Investor in the
Company as is customary for such Party to make, for example through press releases or
tombstone advertisements in newspapers, provided however that information made public reveals
nothing more than (a) the name of the Investor (b) total invested amount, and (ii) use,
disclose or divulge any such information to its (supervisory) board members, members of their
investment committee or similar committees, other financial investors and financial
institutions in their capacity as lenders to the Company.





Article 24. Notices




Any notices given in connection with this Agreement must be in writing and may be given by fax and
registered mail to the addresses referred to in this Agreement or, in respect of any of such
addresses, to such other address as the recipient may notify to the other Parties for such purpose.





29/31









 








Article 25. Entire Agreement




This Agreement and its Exhibits, annexes and schedules sets out the entire agreement and
understanding between the Parties with respect to the subject matter of this Agreement and
supersedes and terminates all prior understandings, discussions and agreements with respect to the
subject matter of this Agreement between the Parties.




Article 26. General Provisions





	26.1	 	In accordance with the laws designated to combat money laundering, each Party including any
Party acting on behalf of a fund, hereby certifies:






	 	a.	 	that he/it has identified the underlying investors in all the funds for which
he/it is acting; and
	 
	 	b.	 	that he/it is unaware of any activities on the part of such investors which
lead it to suspect that anyone of such investors is or has been involved in criminal
conduct or money laundering activities, and that in case of any suspicion of
any such activity he/it will, subject to any legal constraints, inform the competent authorities of such suspicions and activities; and
	 
	 	c.	 	he/it will retain, until further notice, all documentation required to identify
the underlying investors in the funds for which he/it is acting.






	26.2	 	Amendments to this Agreement, in order to be effective, must be made in writing and be signed
by all Parties to this Agreement






	26.3	 	In the event of any discrepancies or contradictions between this Agreement and the Articles,
this Agreement shall prevail to the extent permitted under the laws of the Netherlands.






	26.4	 	Each of the Parties hereby waives its right to have this Agreement rescinded (ontbonden) or
to claim the rescission (ontbinding) thereof, or to cancel or terminate (opzeggen) this
Agreement.






	26.5	 	Should any provision of this Agreement be or become partly or entirely invalid or
impractical, then this shall not affect the validity of the remaining provisions.
	 
	26.6	 	This Agreement shall be governed by and construed in accordance with the laws of
the Netherlands.




30/31









 







	26.7	 	The courts of Amsterdam, the Netherlands shall have exclusive jurisdiction over a
dispute arising out of or in connection with this Agreement, as well as over any claims to
demand performance under this Agreement.





In witness whereof this Agreement has been sighed and executed by the Parties hereto in singular on
the 11th of January 2008.




	 	 	 	 	 	 	 	 	 
		 	/s/ Dr. C.A. van Blitterswijk
	 	 
	 		 	/s/ Mr. F.J.W.E.B. van der Velden
	 

	 	 
	 	 	 	 	 	 
	 

	 	Dr. C.A. van Blitterswijk
	 	 	 	 	 	Mr. F.J.W.E.B. van der Velden
	 
	 	 	 	 	 	 	 	 
		 	/s/ Mr. H. Yuan
	 	 	 		 	/s/ Mr. J.D. de Bruijn
	 

	 	 
	 	 	 	 	 	 
	 

	 	Mr. H. Yuan
	 	 	 	 	 	Mr. J.D. de Bruijn
	 
	 	 	 	 	 	 	 	 
		 	/s/ J.D. de Bruijn
	 	 	 		 	/s/ J.D. de Bruijn
	 

	 	 
	 	 	 	 	 	 
	 

	 	J.D. de Bruijn Holding B.V.
	 	 	 	 	 	Progentix Orthobiology B.V.
	

	 	By: J.D. de Bruijn
	 	 	 	
	 	By: J.D. de Bruijn Holding B.V.
	 
	 	 	 	 	 	
	 	By: J.D. de Bruijn
		 	/s/ Mr. E.C.M. van Wezel
/s/ Mr. W.M. Hazenberg	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 


	 	BioGeneration Ventures B.V.

By: BioGeneration Management B.V.	 	 	 	 	 	 
	



	 	By: Mr. E.C.M. van Wezel 
By: Mr. W.M. Hazenberg	 	 	 	 	 	 







31/31












 





EXHIBIT K




FOUNDERS’ NON-COMPETITION AGREEMENT




     THIS FOUNDERS’ NON-COMPETITION AGREEMENT (the “Agreement”) is made as of January 13, 2009, by
on the one hand NuVasive, Inc., a Delaware corporation, whose registered office is at 7473 Lusk
Boulevard, San Diego, California 92121 (the “Purchaser”) and on the other hand Joost D de Bruijn
(“Bruijn”). Terms not otherwise defined herein shall have the respective meanings ascribed to them
in the Preferred Stock Purchase Agreement (as defined below).



RECITALS




     (i) Purchaser intends to purchase from the Sellers forty percent (40%) of the shares in the
capital of Progentix Orthobiology B.V., a company organized under the laws of the Netherlands with
Company No. 30234249, whose registered office is at Professor Bronkhorstlaan 10 D (3723 MB)
Bilthoven, the Netherlands held by the Sellers (the “Company”).



     (ii) In connection with the transactions contemplated thereby, the Company has entered into a
Distribution Agreement, dated January 13, 2009, with Purchaser (the “Distribution Agreement”)
regarding the manufacture by the Company and distribution by Purchaser of certain products (the
“Products”) set forth on Exhibit A attached thereto in the Field (as defined in the Distribution
Agreement).



     (iii) As stipulated in the Preferred Stock Purchase Agreement, dated January 13, 2009, by and
among Purchaser, the Company and the Sellers (the “Preferred Stock Purchase Agreement”), Purchaser
has conditioned the closing of the transactions contemplated by the Preferred Stock Purchase
Agreement on the execution of this Agreement by Bruijn.



AGREEMENT




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



     1. PURPOSE. Bruijn understands that, solely to extent expressly set forth herein, he is
prohibited from (i) engaging in any competition with the Purchaser’s group of companies, which
group includes the Company (the “Purchaser’s Group”) and (ii) soliciting any person of the
Purchaser’s Group to leave the latter.



     2. NON-COMPETITION. Except with respect to RevOs, a synthetic polymer-Nano HA composite bone
substitute intended to mimic cortical bone, Bruijn agrees that he will not, whether on his own
behalf or on behalf of or in conjunction with any person, directly or indirectly, (i) engage in any
commercial activity with any competitor of the Purchaser’s Group with respect to any of the
Products in the Field (a “Competing Business”) if such activity is related to the commercialization
of a biologic



 









 




(e.g. bone graft material and/or biologically active compound) or other Product or compound
intended to foster bone growth that will compete with the Products and includes a use in spinal
applications (“Competitive Services”), or (ii) provide Competitive Services to, any person (or any
affiliate of any person) who or which is engaged in a Competing Business with respect to such
Competing Business (whether directly or indirectly). Purchaser expressly acknowledges and agrees
that Bruijn is or may become a member of a not-for-profit institution or association (collectively,
the “Institutions”) and notwithstanding anything to the contrary contained herein, nothing in this
Agreement shall preclude or in any way restrict Bruijn from providing educational services at any
such Institution or conducting research at any such Institution. A complete list of the research
activities of Bruijn relating to any biologic or other Product or compound intended to foster bone
growth as of the date of this Agreement is attached hereto as Exhibit A.




     3. NON-SOLICITATION.



     (a) Bruijn agrees that he will not, whether on his own behalf or on behalf of or in
conjunction with any person, directly or indirectly, solicit, encourage or attempt to solicit or
encourage any person who is at the time of such solicitation, encouragement, or attempted
solicitation or encouragement an employee of the Company and who was immediately prior to the
closing of the transactions contemplated by the Preferred Stock Purchase Agreement (the “Closing”),
an employee of the Company to leave the employment of the Company.



     (b) Bruijn agrees that he will not, whether on his own behalf or on behalf of or in
conjunction with any person, directly or indirectly solicit, encourage or attempt to solicit or
encourage to cease to work with the Company, any employee of, or consultant then under contract
with the Company who is or has been engaged in the business of the Company (the “Business”).



     (c) Bruijn agrees that he will not, directly or indirectly: (i) solicit, induce or attempt to
induce any customer to cease doing business in whole or in part with the Purchaser’s Group; (ii)
attempt to limit or interfere with any business agreement existing between the Purchaser’s Group
and any third party; or (iii) disparage the business reputation or employees of the Purchaser’s
Group or take any actions, knowingly, willfully or, recklessly, that are harmful to the Purchaser
Group’s goodwill with their customers, clients, publishers, advertisers, marketers, vendors,
employees, service providers, media or the public.



     4. RESTRICTED PERIOD. The prohibitions set forth above shall apply from the date of closing of
the transactions contemplated by the Preferred Stock Purchase Agreement (the “Closing Date”)
through the second anniversary of the Closing Date.



     5. TERRITORY. The prohibitions set forth above will globally apply, unless the Purchaser has
in written form indicated differently.



 









 





     6. MISCELLANEOUS. This Agreement shall be binding upon and for the benefit of the undersigned
parties. Failure to enforce any provision of this Agreement shall not constitute a waiver of any
term thereof. Any amendment to this Agreement must be in writing and signed by an authorized
representative of each party. This Agreement may be signed in counterparts.



     7. BREACH. In the event of a breach by Bruijn of his obligations pursuant to this Agreement,
Bruijn agrees that he shall forfeit to Purchaser, without any further notice or demand being
required, an immediately payable penalty in the amount of fifty percent (50%) of any amounts
received by Bruijn Holding B.V. under the Preferred Stock Purchase Agreement (the “Liquidated
Damages”) for any such violation, without limiting or precluding the right of the Purchaser to
claim from Bruijn specific performance or any damages which the Purchaser has incurred;
provided, that any Liquidated Damages collected by Purchaser hereunder shall be offset
against any Damages to which Purchaser is otherwise entitled under the Preferred Stock Purchase
Agreement.



     8. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands and shall be binding upon the parties hereto in the
Netherlands and worldwide. Bruijn and the Purchaser agree that any dispute arising out of or
relating to this Agreement shall be subject to the exclusive jurisdiction of the courts in the
Netherlands, and each party agrees to submit to the personal and exclusive jurisdiction and venue
of such courts.



 









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above.



	 	 	 	 	 
	JOOST D DE BRUIJN	 	NUVASIVE INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	Joost D de Bruijn

	 	 	 	Name:
	 

	 	 	 	Title:






 









 






Exhibit A



***






 




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




 









 










EXHIBIT L




FOUNDERS’ NON-COMPETITION AGREEMENT




     THIS FOUNDERS’ NON-COMPETITION AGREEMENT (the “Agreement”) is made as of January 13, 2009, by
on the one hand NuVasive, Inc., a Delaware corporation, whose registered office is at 7473 Lusk
Boulevard, San Diego, California 92121 (the “Purchaser”) and on the other hand Clemens van
Blitterswijk (“Blitterswijk”). Terms not otherwise defined herein shall have the respective
meanings ascribed to them in the Preferred Stock Purchase Agreement (as defined below).



RECITALS




     (i) Purchaser intends to purchase from the Sellers forty percent (40%) of the shares in the
capital of Progentix Orthobiology B.V., a company organized under the laws of the Netherlands with
Company No. 30234249, whose registered office is at Professor Bronkhorstlaan 10 D (3723 MB)
Bilthoven, the Netherlands, held by the Sellers (the “Company”).



     (ii) In connection with the transactions contemplated thereby, the Company has entered into a
Distribution Agreement, dated January 13, 2009, with Purchaser (the “Distribution Agreement”)
regarding the manufacture by the Company and distribution by Purchaser of certain products (the
“Products”) set forth on Exhibit A attached thereto in the Field (as defined in the Distribution
Agreement).



     (iii) As stipulated in the Preferred Stock Purchase Agreement, dated January 13, 2009, by and
among Purchaser, the Company and the Sellers (the “Preferred Stock Purchase Agreement”), Purchaser
has conditioned the closing of the transactions contemplated by the Preferred Stock Purchase
Agreement on the execution of this Agreement by Blitterswijk.



AGREEMENT




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



     1. PURPOSE. Blitterswijk understands that, solely to extent expressly set forth herein, he is
prohibited from (i) engaging in any competition with the Purchaser’s group of companies, which
group includes the Company (the “Purchaser’s Group”) and (ii) soliciting any person of the
Purchaser’s Group to leave the latter.



     2. NON-COMPETITION. Except with respect to RevOs, a synthetic polymer-Nano HA composite bone
substitute intended to mimic cortical bone, Blitterswijk agrees that he will not, whether on his
own behalf or on behalf of or in conjunction with any person, directly or indirectly; (i) engage in
any commercial activity with any competitor of the Purchaser’s Group with respect to any of the
Products in the Field (a “Competing Business”) if such activity is related to the commercialization
of a



1









 




biologic (e.g. bone graft material and/or biologically active compound) or other Product or
compound intended to foster bone growth that will compete with the Products and includes a use in
spinal applications (“Competitive Services”), or (ii) provide Competitive Services to, any person
(or any affiliate of any person) who or which is engaged in a Competing Business. Purchaser
expressly acknowledges and agrees that Blitterswijk is or may become a member of a not-for-profit
institution or association (collectively, the “Institutions”) and notwithstanding anything to the
contrary contained herein, nothing in this Agreement shall preclude or in any way restrict
Blitterswijk from providing educational services at any such Institution or conducting research at
any such Institution. A complete list of the research activities of Blitterswijk relating to any
biologic or other Product or compound intended to foster bone growth as of the date of this
Agreement is attached hereto as Exhibit A. Purchaser expressly acknowledges and agrees
that Blitterswijk is or may in the future enter the business of venture capital investing and in
such capacity may review the business plans and related proprietary information of many
enterprises, including enterprises which may have products or services which compete directly or
indirectly with those of the Company and/or Purchaser Group. Nothing in this Agreement shall
preclude or in any way restrict any venture capital firm or similar institutional investor with
which Blitterswijk is affiliated from investing or participating in any particular enterprise, or
any other general partner, member, officer or employee of any such venture capital firm or similar
institutional investor from serving on the board of directors of any enterprise in which it makes
an investment, whether or not such enterprise has products or services which compete with those of
the Company and/or the Purchaser Group.




     3. NON-SOLICITATION.



     (a) Blitterswijk agrees that he will not, whether on his own behalf or on behalf of or in
conjunction with any person, directly or indirectly: solicit, encourage or attempt to solicit or
encourage any person who is at the time of such solicitation, encouragement, or attempted
solicitation or encouragement an employee of the Company and who was immediately prior to the
closing of the transactions contemplated by the Preferred Stock Purchase Agreement (the “Closing”),
an employee of the Company to leave the employment of the Company.



     (b) Blitterswijk agrees that he will not, whether on his own behalf or on behalf of or in
conjunction with any person, directly or indirectly solicit, encourage or attempt to solicit or
encourage to cease to work with the Company, any employee of, or consultant then under contract
with the Company who is or has been engaged in the business of the Company (the “Business”).



     (c) Blitterswijk agrees that he will not, directly or indirectly: (i) solicit, induce or
attempt to induce any customer to cease doing business in whole or in part with the Purchaser’s
Group; (ii) attempt to limit or interfere with any business agreement existing between the
Purchaser’s Group and any third party; or (iii) disparage the business reputation or employees of
the Purchaser’s Group or take any actions, knowingly, willfully or, recklessly, that are harmful to
the Purchaser Group’s goodwill with their



2









 




customers, clients, publishers, advertisers, marketers, vendors, employees, service providers,
media or the public.




     4. RESTRICTED PERIOD. The prohibitions set forth above shall apply from the date of closing of
the transactions contemplated by the Preferred Stock Purchase Agreement (the “Closing Date”)
through the second anniversary of the Closing Date.



     5. TERRITORY. The prohibitions set forth above will globally apply, unless the Purchaser has
in written form indicated differently.



     6. MISCELLANEOUS. This Agreement shall be binding upon and for the benefit of the undersigned
parties. Failure to enforce any provision of this Agreement shall not constitute a waiver of any
term thereof. Any amendment to this Agreement must be in writing and signed by an authorized
representative of each party. This Agreement may be signed in counterparts.



     7. BREACH. In the event of a breach by Blitterswijk of his obligations pursuant to this
Agreement, Blitterswijk agrees that he shall forfeit to Purchaser, without any further notice or
demand being required, an immediately payable penalty in the amount of fifty percent (50%) of any
amounts received by Incubation B.V. under the Preferred Stock Purchase Agreement (the “Liquidated
Damages”) for any such violation, without limiting or precluding the right of the Purchaser to
claim from Blitterswijk specific performance or any damages which the Purchaser has incurred;
provided, that any Liquidated Damages collected by Purchaser hereunder shall be offset
against any Damages to which Purchaser is otherwise entitled under the Preferred Stock Purchase
Agreement.



     8. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands and shall be binding upon the parties hereto in the
Netherlands and worldwide. Blitterswijk and the Purchaser agree that any dispute arising out of or
relating to this Agreement shall be subject to the exclusive jurisdiction of the courts in the
Netherlands, and each party agrees to submit to the personal and exclusive jurisdiction and venue
of such courts.



          IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above.



	 	 	 	 	 
	CLEMENS VAN BLITTERSWIJK	 	NUVASIVE INC.
	 
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	Clemens van Blitterswijk

	 	 	 	Name:
	 

	 	 	 	Title:






3









 






Exhibit A



***






 




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




4









 










EXHIBIT M




INVESTOR NON-COMPETITION AGREEMENT




     THIS INVESTOR NON-COMPETITION AGREEMENT (the “Agreement”) is made as of January 13, 2009, by
on the one hand NuVasive, Inc., a Delaware corporation, whose registered office is at 7473 Lusk
Boulevard, San Diego, California 92121 (the “Purchaser”) and on the other hand Edward van Wezel
(“Wezel”). Terms not otherwise defined herein shall have the respective meanings ascribed to them
in the Preferred Stock Purchase Agreement (as defined below).



RECITALS




     (i) Purchaser intends to purchase from the Sellers forty percent (40%) of the shares in the
capital of Progentix Orthobiology B.V., a company organized under the laws of the Netherlands with
Company No. 30234249, whose registered office is at Professor Bronkhorstlaan 10 D (3723 MB)
Bilthoven, the Netherlands held by the Sellers (the “Company”).



     (ii) In connection with the transactions contemplated thereby, the Company has entered into a
Distribution Agreement, dated January 13, 2009, with Purchaser (the “Distribution Agreement”)
regarding the manufacture by the Company and distribution by Purchaser of certain products (the
“Products”) set forth on Exhibit A attached thereto in the Field (as defined in the Distribution
Agreement).



     (iii) As stipulated in the Preferred Stock Purchase Agreement, dated January 13, 2009, by and
among Purchaser, the Company and the Sellers (the “Preferred Stock Purchase Agreement”), Purchaser
has conditioned the closing of the transactions contemplated by the Preferred Stock Purchase
Agreement on the execution of this Agreement by Wezel.



AGREEMENT




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



     1. PURPOSE. Wezel understands that, solely to extent expressly set forth herein, he is
prohibited from engaging in any competition with the Purchaser’s group of companies, which group
includes the Company (the “Purchaser’s Group”).



     2. NON-COMPETITION. Except with respect to RevOs, a synthetic polymer-Nano HA composite bone
substitute intended to mimic cortical bone, Wezel agrees that he will not personally serve as a
member of the supervisory board (raad van comissarissen) of any party that is a competitor of the
Purchaser’s Group with respect to any of the Products in the Field if such competitor is engaged in
the business of commercializing a biologic (e.g. bone graft material and/or biologically active
compound) or other Product or compound intended to foster bone growth that will



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compete with the Products and includes a use in spinal applications (a “Competing Business”).
Wezel further agrees that he will not personally serve as a member of the board of directors or a
substantially equivalent governing body of any Competing Business, if BioGeneration Ventures BV
makes an investment in any such Competing Business outside the Netherlands. Purchaser expressly
acknowledges and agrees that Wezel is in the business of venture capital investing and therefore
(a) Wezel reviews the business plans and related proprietary information of many enterprises,
including enterprises which may have products or services which compete directly or indirectly with
those of the Company and/or Purchaser Group, (b) Wezel monitors investments in Competing
Businesses, including consulting with members of BioGeneration Ventures BV that serve on the board
of directors, and (c) Wezel may take any and all actions on behalf of BioGeneration Ventures BV as
a shareholder of a Competing Business (including, without limitation, the activities described in
clauses (a) and (b) of this Section 2). Nothing in this Agreement shall preclude or in any way
restrict any venture capital firm or similar institutional investor with which Wezel is affiliated
from investing or participating in any particular enterprise, or any other general partner, member,
officer or employee of any such venture capital firm or similar institutional investor from serving
on the supervisory board (raad van comissarissen) or the board of directors or a substantially
equivalent governing body of an entity in which it makes an investment, whether or not such entity
has products or services which compete with those of the Company and/or the Purchaser Group.




     4. RESTRICTED PERIOD. The prohibitions set forth above shall apply from the date of closing of
the transactions contemplated by the Preferred Stock Purchase Agreement (the “Closing Date”)
through the second anniversary of the Closing Date.



     5. TERRITORY. The prohibitions set forth above will globally apply, unless the Purchaser has
in written form indicated differently.



     6. MISCELLANEOUS. This Agreement shall be binding upon and for the benefit of the undersigned
parties. Failure to enforce any provision of this Agreement shall not constitute a waiver of any
term thereof. Any amendment to this Agreement must be in writing and signed by an authorized
representative of each party. This Agreement may be signed in counterparts.



     7. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands and shall be binding upon the parties hereto in the
Netherlands and worldwide. Wezel and the Purchaser agree that any dispute arising out of or
relating to this Agreement shall be subject to the exclusive jurisdiction of the courts in the
Netherlands, and each party agrees to submit to the personal and exclusive jurisdiction and venue
of such courts.



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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above.



	 	 	 	 	 
	EDWARD VAN WEZEL	 	NUVASIVE INC.
	 
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	Edward van Wezel

	 	 	 	Name:
	 

	 	 	 	Title:







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