**EXHIBIT10.3**

 

**AMENDMENTTO ASSET PURCHASE AGREEMENT**

 

This**AMENDMENT TO ASSET PURCHASE AGREEMENT**(this “***Amendment***”)dated as of September 30, 2008, is by and between**  OSIRIS THERAPEUTICS, INC.** , aDelaware corporation (“***Seller***”), and**  NUVASIVE, INC.**, a Delaware corporation (“***Purchaser***”). Capitalized terms used herein and not otherwisedefined shall have the meaning given them in the Asset Purchase Agreement,dated May 8, 2008, between Seller and Purchaser (the “***Agreement******”***). Seller andPurchaser shall each be referred to herein as a “***Party******”*** and collectivelyas the “***Parties***..”

 

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

 

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

 

**NOW,THEREFORE**, in consideration of the foregoing, the agreementshereinafter set forth and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the Parties agree asfollows:

 

1. Amendments.

 

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

 

“The consummation of theManufacturing Asset Transfer (the “Manufacturing Closing”) shall be heldas soon as reasonably practicable, but in no event prior to November 1,2009, following the earlier to occur of (i) the termination of theManufacturing Agreement by Purchaser pursuant to Section 7.1 of theManufacturing Agreement, (ii) the expiration of the “Term” (as that termis defined in the Manufacturing Agreement) of the Manufacturing Agreement (the “Manufacturing Closing Date ”); or (iii) Seller’s request to acceleratethe Manufacturing Closing Date, provided that Seller has delivered to Purchaserbetween  *** and *** cubic centimeters of Product.”

 

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

 

“(i) If at any timefollowing the Technology Closing Date but at or prior to April 15, 2009,Seller shall have delivered to Purchaser an aggregate of 75,000 cubiccentimeters of Product (the “ First DeliveryThreshold ”) in accordance with the terms and provisions of, and subject tothe specifications set forth in, the Manufacturing Agreement, Purchaser shallpay to Seller Five Million Dollars ($5,000,000) (the “ First MilestonePayment “).”

 

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

 

“(ii) If at any timefollowing the Technology Closing Date but prior to the Manufacturing Closing,Seller shall have delivered to Purchaser an aggregate of 180,000 cubiccentimeters of Product (including, for avoidance of doubt, any Productdelivered in satisfaction of the First Delivery Threshold) (the “ SecondDelivery Threshold ”) in accordance with the terms and provisions of, andsubject to the specifications set forth in, the Manufacturing Agreement,Purchaser shall pay to Seller Five Million Dollars ($5,000,000) (the “Second Milestone Payment ”).”

 

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

 

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

 

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

 

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

 

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

 

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

 

3. Governing Law;General Provisions. This Amendment, including the validity hereof and therights and obligations of the parties hereunder, shall be construed,interpreted, enforced and governed by and under the laws of the State ofDelaware applicable to contracts made and to be performed entirely in suchstate, without regard to its rules regarding conflicts of law provisions.

 

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

 

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**[SignaturePage to Follow]**

 

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**INWITNESS WHEREOF**, Seller and Purchaser have each caused thisAmendment to be executed by their respective duly authorized officers, all asof the date first above written.

 
|       | **SELLER**:                   |
|------------|-------------------------------|
|       | ** **                    |
| ** ** | **OSIRIS THERAPEUTICS, INC.** |
|       |                          |
|       | By:                           | /s/ Philip R. Jacoby  Jr. |
|       | Name:                         | Philip R. Jacoby Jr. |
|       | Title:                        | Vice President of  Finance |
|       |                          |   |
|       | **PURCHASER**:                |
|       |                          |   |
|       | **NUVASIVE, INC.**            |
|       |                          |   |
|       | By:                           | /s/ Alexis Lukianov |
|       | Name:                         | Alexis Lukianov |
|       | Title:                        | Chairman & CEO |

 

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