EXHIBIT 10.2
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT (this "Second Amendment"),
dated as of March 25, 2009, is by and between OSIRIS THERAPEUTICS, INC., a
Delaware corporation ("Seller"), and NUVASIVE, INC., a Delaware corporation
("Purchaser").
Capitalized terms used herein and not otherwise defined shall
have the meaning given them in that certain Asset Purchase Agreement by and
between Seller and Purchaser dated May 8, 2008, as amended pursuant to that
certain Amendment to Asset Purchase Agreement by and between Seller and
Purchaser dated September 30, 2008 (collectively, the "Agreement").
Seller and
Purchaser shall each be referred to herein as a "Party" and collectively as the
"Parties."
WHEREAS, pursuant to Section 9.3 of the Agreement, the Agreement may be amended
by a written instrument signed by the parties to the Agreement; and
NOW, THEREFORE, in consideration of the foregoing, the agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.
Amendments.
(a)
Section 1.1(a)(ii) of the Agreement shall
be deleted in its entirety.
(b)
Section 1.3 of the Agreement shall be
amended by deleting in its entirety the second sentence thereof and inserting in
its place the following:
"The consummation of the Manufacturing Asset Transfer (the "Manufacturing
Closing") shall be held on the fifteenth day following the execution by
Purchaser and Seller of this Second Amendment (the "Manufacturing Closing Date")
and at such time all conditions to the Manufacturing Closing shall be deemed to
have been waived or satisfied.
In connection with the Manufacturing Closing,
either (a) the Purchaser shall assume that certain Amended and Restated Tissue
Procurement Processing and Supply Agreement by and between Seller and
AlloSource, dated February 1, 2008 (the "AlloSource Supply Agreement") or
(b) the AlloSource Supply Agreement shall be amended, modified, supplemented or
terminated."
(c)
Section 1.5(a) of the Agreement shall be
amended and restated in its entirety, as follows:
"(A)
MILESTONES; MILESTONE PAYMENTS.
FROM AND AFTER
THE TECHNOLOGY CLOSING DATE, IN ADDITION TO THE CONSIDERATION SET FORTH IN
SECTION 1.4 ABOVE, PURCHASER SHALL, WITH RESPECT TO SECTIONS 1.5(A)(I) AND
1.5(A)(VI) BELOW, SUBJECT TO, AND CONTINGENT UPON ACHIEVEMENT OF THE
POST-TECHNOLOGY CLOSING PERFORMANCE MILESTONES OF THE BUSINESS SET FORTH IN
SECTIONS 1.5(A)(I) AND 1.5(A)(VI) BELOW, AND, WITH RESPECT TO SECTIONS
1.5(A)(II), 1.5(A)(III) AND 1.5(A)(IV) BELOW, ON THE DATES SET FORTH IN SECTIONS
1.5(A)(II), 1.5(A)(III) AND 1.5(A)(IV) BELOW (EACH, A "MILESTONE") NOT LATER
THAN THE APPLICABLE DATE FOR SATISFACTION OF EACH MILESTONE SET FORTH BELOW
(EACH A
"MILESTONE EXPIRATION DATE"), PAY TO SELLER AN AMOUNT OF CASH (IN UNITED STATES
DOLLARS OF IMMEDIATELY AVAILABLE FUNDS) OR COMMON STOCK, PAR VALUE $0.001 PER
SHARE, OF PURCHASER ("PURCHASER COMMON STOCK") (THE FORM OF PAYMENT OF WHICH IS
TO BE DETERMINED IN THE SOLE DISCRETION OF PURCHASER), EQUAL TO THE FIRST
MILESTONE PAYMENT, SECOND MILESTONE PAYMENT, THIRD MILESTONE PAYMENT, FOURTH
MILESTONE PAYMENT, FIFTH MILESTONE PAYMENT AND/OR SIXTH MILESTONE PAYMENT, AS
APPLICABLE (THE "APPLICABLE MILESTONE