TERMS OF THIS
AGREEMENT.
ARTICLE 3
MANUFACTURING OF PRODUCT; TECHNOLOGY LICENSE
3.1.
MANUFACTURING OBLIGATIONS.
OSIRIS SHALL PROCESS FOR AND SUPPLY TO
NUVASIVE PRODUCT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
OSIRIS SHALL
PROCESS AND SUPPLY THE PRODUCT TO NUVASIVE HEREUNDER IN CONFORMITY WITH THE
SPECIFICATIONS AND IN COMPLIANCE WITH CGTP AND ALL APPLICABLE LAWS.
IF EITHER
PARTY SEEKS A CHANGE TO THE SPECIFICATIONS OR THERE IS A CHANGE IN APPLICABLE
LAWS THAT WOULD NECESSITATE A CHANGE IN THE SPECIFICATIONS, THE PARTIES WILL
MEET AND CONFER IN GOOD FAITH TO DETERMINE WHETHER AND WHAT CHANGES (IF ANY)
SHOULD BE MADE THERETO. ANY AND ALL AMENDMENTS OR MODIFICATIONS IN THE
SPECIFICATIONS MUST BE AGREED UPON IN WRITING BY BOTH PARTIES.
3.2.
FORECASTING AND ORDERS.
ON OR BEFORE SIXTY (60) DAYS PRIOR TO
EACH CALENDAR QUARTER, NUVASIVE SHALL PROVIDE TO OSIRIS A BINDING ORDER
("ORDER") FOR THE QUANTITY AND SIZE OF PRODUCT TO BE DELIVERED BY OSIRIS TO
NUVASIVE IN THE FOLLOWING CALENDAR QUARTER.
EACH ORDER SHALL BE IN WRITING, AND
SHALL SPECIFY THE QUANTITY OF UNITS OF PRODUCT BY SIZE, THE BRAND NAME OF EACH
UNIT OF PRODUCT ORDERED, THE REQUESTED DELIVERY DATE(S), THE DESTINATION
SHIPPING ADDRESS(ES), AND THE PRODUCT FEES THEREFOR. OSIRIS SHALL BE REQUIRED TO
SUPPLY TO NUVASIVE ALL SUCH QUANTITIES OF PRODUCT AS NUVASIVE ORDERS PURSUANT TO
SUCH ORDERS IN ACCORDANCE WITH THE PRODUCT UNIT SIZES AND BRAND NAMES SPECIFIED
IN SUCH ORDERS AND SHALL USE ITS COMMERCIALLY REASONABLE BEST EFFORTS TO CONFORM
TO THE REQUESTED DELIVERY DATE(S) SET FORTH IN SUCH ORDERS, PROVIDED IN EACH
CASE SUCH ORDERS DO NOT EXCEED THE MINIMUM PERFORMANCE LEVELS DURING THE
APPLICABLE PERIODS SET FORTH IN SECTION 3.3 BELOW.
OSIRIS SHALL DELIVER THE
PRODUCT TO NUVASIVE PURSUANT TO THE ORDERS, SUBJECT TO AVAILABLE PRODUCT BEING
RELEASED FOR TRANSPLANTATION; PROVIDED, THAT THE PARTIES UNDERSTAND AND AGREE
THE FINAL DELIVERY DATES FOR ORDERS MAY VARY FROM THE REQUESTED DATES BASED UPON
DONOR TISSUE PROCUREMENT.
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3.3.
PERFORMANCE LEVELS.
3.3.1.
MINIMUM PERFORMANCE LEVELS. OSIRIS SHALL USE ITS COMMERCIALLY
REASONABLE BEST EFFORTS TO DELIVER PRODUCT TO NUVASIVE AT LEAST IN THE
QUANTITIES SET FORTH BELOW DURING THE APPLICABLE PERIODS ("MINIMUM PERFORMANCE
LEVELS") AND SHALL DELIVER ANY SUCH PRODUCT ACCORDING TO PRODUCT UNIT SIZE AND
BRAND NAME SPECIFICATIONS ESTABLISHED BY NUVASIVE AND SET FORTH IN EACH ORDER.
NUVASIVE SHALL PROVIDE ORDERS TO PURCHASE FROM OSIRIS PRODUCT IN QUANTITIES OF
AT LEAST THE MINIMUM PERFORMANCE LEVEL FOR THE APPLICABLE PERIOD.
Applicable Period
Minimum Performance
Level Delivered (cc)
Effective Date to April 15, 2009
125,000
April 16, 2009 to eighteen (18) months following the Technology Closing Date (as
defined in the Asset Purchase Agreement)
125,000
3.3.2.
ADDITIONAL PRODUCT. OSIRIS SHALL HAVE THE RIGHT, IN ITS DISCRETION,
TO PROCESS AND DELIVER PRODUCT HEREUNDER IN QUANTITIES THAT EXCEED NUVASIVE'S
ORDERS (THE "EXCESS QUANTITIES"), PROVIDED THAT OSIRIS GIVES ADVANCE WRITTEN
NOTICE TO NUVASIVE OF ITS INTENT TO PROCESS AND DELIVER THE EXCESS QUANTITIES.
FOLLOWING RECEIPT OF SUCH WRITTEN NOTICE, THE PARTIES SHALL DISCUSS AND ATTEMPT
IN GOOD FAITH TO REACH