Exhibit 10.1
CONFIDENTIAL TREATMENT REQUESTED
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (the "Agreement") is made and entered into as of this 14th
day of January, 2005 (the "Effective Date"), by and between NuVasive, Inc.
("NuVasive"), a Delaware corporation having its principal offices at 10065 Old
Grove Road, San Diego, California 92131; and Blood and Tissue Center of Central
Texas ("BTC"), a non-profit organization, having its principal place of business
at 4300 North Lamar Boulevard, Austin, Texas 78756-3421, facsimile number (512)
206-1213.
BTC and NuVasive are sometimes individually referred to as a "Party"
and together referred to herein as the "Parties."
RECITALS:
WHEREAS, BTC procures, processes and distributes certain human allograft tissues
for transplantation;
WHEREAS, NuVasive desires to engage BTC to process, package, and send to
NuVasive for distribution certain allograft bone, all subject to and in
accordance with specifications and other terms of this Agreement.
WHEREAS, BTC and NuVasive, in recognition of the need for and benefits that may
result from the availability of human allograft bone tissues for
transplantation, desire to cooperate with each other in the provision,
processing and distribution of such tissue.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration (the receipt, adequacy and
legal sufficiency of which are hereby acknowledged) the Parties hereby agree as
follows:
1.
PROCESSING AND TRANSFER RESPONSIBILITIES OF BTC.
(A)
PROCESSING.
BTC SHALL FROM TIME TO TIME USE ITS BEST EFFORTS TO
PROCESS, PACKAGE, LABEL, STORE AND TRANSFER TO NUVASIVE THE HUMAN ALLOGRAFT BONE
LISTED AND MORE PARTICULARLY DESCRIBED ON EXHIBIT A HERETO (THE "TISSUES"), AS
SUCH EXHIBIT MAY BE AMENDED BY THE PARTIES FROM TIME TO TIME, IN ACCORDANCE WITH
THE SPECIFICATIONS PERTAINING TO THE TISSUES IMPOSED BY NUVASIVE SET FORTH ON
EXHIBIT A (THE "SPECIFICATIONS").
BTC AGREES THAT BTC SHALL BE PROHIBITED FROM
PROCESSING, CUTTING, PACKAGING AND/OR OTHERWISE PROVIDING TISSUES TO THIRD
PARTIES THAT USE OR EMPLOY OR INCORPORATE THE INTELLECTUAL PROPERTY OF
NUVASIVE.
BTC RECOGNIZES THAT NUVASIVE'S
***Certain confidential portions of this Exhibit were omitted and replaced with
"***" (the "Mark").
This Exhibit has been filed separately with the Secretary
of the Securities and Exchange Commission without the Mark pursuant to the
Company's application requesting confidential treatment under Rule 24b-2 under
the 1934 Act.
CUSTOMER LIST IS CONSIDERED CONFIDENTIAL INFORMATION IN ACCORDANCE WITH THIS
AGREEMENT.
BTC THEREFORE AGREES THAT BTC SHALL BE PROHIBITED FROM SELLING OR
OTHERWISE PROVIDING TISSUES, EITHER PROCESSED FOR NUVASIVE BY BTC, OR THAT
COMPETE WITH SUCH PRODUCTS, DIRECTLY TO ANY NUVASIVE CUSTOMERS BASED ON ANY
NUVASIVE CUSTOMER INFORMATION RECEIVED BY BTC DURING THE COURSE OF THIS
AGREEMENT.
HOWEVER, BTC MAY CONTINUE TO SELL OR OTHERWISE PROVIDE SUCH TISSUE
TO NUVASIVE CUSTOMERS WHO WERE ALREADY BTC CUSTOMERS AS OF THE EFFECTIVE DATE OF
THIS AGREEMENT, OR NEW CUSTOMERS WHO ARE SUBSEQUENTLY OBTAINED THROUGH THE
NORMAL COURSE OF BUSINESS.
(B)
CHANGE OF SPECIFICATIONS.
NUVASIVE MAY MODIFY, CHANGE OR
SUPPLEMENT THE SPECIFICATIONS UPON 60 DAYS' WRITTEN NOTICE TO BTC OR UPON THE
MUTUAL AGREEMENT OF