DEEM TO BE A COMPETITOR, AND (B)
NUVASIVE MAY TRANSFER THIS
AGREEMENT WITHOUT PRIOR WRITTEN CONSENT OF OSIRIS TO AN AFFILIATE OF NUVASIVE OR
IN CONNECTION WITH A MERGER OR SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF
NUVASIVE.
9.2.
NOTICES.
ALL NOTICES OR OTHER COMMUNICATIONS GIVEN PURSUANT
HERETO SHALL BE IN WRITING AND DEEMED GIVEN (A) WHEN DELIVERED BY MESSENGER,
(B) WHEN SENT BY FACSIMILE, (WITH RECEIPT CONFIRMED), (C) WHEN RECEIVED BY THE
ADDRESSEE, IF SENT BY FEDERAL EXPRESS OR OTHER EXPRESS DELIVERY SERVICE (RECEIPT
REQUESTED), OR (D) FIVE DAYS AFTER BEING MAILED IN THE U.S., FIRST-CLASS
72
POSTAGE PREPAID, REGISTERED OR CERTIFIED, IN EACH CASE TO THE APPROPRIATE
ADDRESSES AND FACSIMILE NUMBERS SET FORTH BELOW (OR TO SUCH OTHER ADDRESSES AND
FACSIMILE NUMBERS AS A PARTY MAY DESIGNATE AS TO ITSELF BY NOTICE TO THE OTHER
PARTY):
If to Osiris:
If to NuVasive
Osiris Therapeutics, Inc.
7015 Albert Einstein Drive
Columbia, MD 21046
Attention: Chief Executive Officer
Fax No.: 443-545-1701
With a copy to:
McKenna Long & Aldridge LLP
303 Peachtree St., NE, Suite 5300
Atlanta, GA 30308
Attention: Michael Cochran, Esq.
Fax No.: 404-527-4198
NuVasive, Inc.
7473 Lusk Boulevard
San Diego, CA 92121
Attention: General Counsel
Fax No.: [*]
With a copy (which shall not constitute notice) to:
DLA Piper US LLP
4365 Executive Drive
Suite 1100
San Diego, CA 92122
Attention: Michael Kagnoff
Fax No.: 858-638-5022
9.3.
FORCE MAJEURE.
NONPERFORMANCE BY EITHER PARTY HERETO SHALL BE
EXCUSED TO THE EXTENT THAT PERFORMANCE IS RENDERED IMPOSSIBLE BY STRIKE, FIRE,
EXPLOSION, FLOOD, ACTS OF GOD, TERRORISM, WAR OR CIVIL COMMOTION, GOVERNMENTAL
ACTS OR ORDERS OR RESTRICTIONS, FAILURE OF SUPPLIERS, PUBLIC UTILITIES OR COMMON
CARRIERS, OR ANY OTHER REASON WHERE FAILURE TO PERFORM IS BEYOND THE REASONABLE
CONTROL OF AND IS NOT CAUSED BY THE NEGLIGENCE OF THE NON-PERFORMING PARTY.
SUCH NON-PERFORMING PARTY SHALL EXERCISE BEST EFFORTS TO ELIMINATE THE FORCE
MAJEURE EVENT AND TO RESUME PERFORMANCE OF ITS AFFECTED OBLIGATIONS AS SOON AS
PRACTICABLE.
IN THE EVENT THAT, AS A RESULT OF SUCH FORCE MAJEURE EVENT, A
PARTY DOES NOT PERFORM ALL OF ITS OBLIGATIONS HEREUNDER FOR ANY PERIOD OF NINETY
(90) CONSECUTIVE DAYS, IN ADDITION TO ANY OTHER RIGHTS HEREUNDER, THE OTHER
PARTY MAY TERMINATE THIS AGREEMENT ON THIRTY (30) DAYS' PRIOR WRITTEN NOTICE TO
THE NON-PERFORMING PARTY.
9.4.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
9.5.
PARTIAL INVALIDITY.
IF ANY PROVISION OF THIS AGREEMENT IS HELD TO
BE INVALID, THE REMAINING PROVISIONS SHALL NEVERTHELESS REMAIN IN FULL FORCE AND
EFFECT.
IN ADDITION, THE PARTIES SHALL RENEGOTIATE IN GOOD FAITH ANY TERM HELD
TO BE INVALID, AND BE BOUND BY THE MUTUALLY AGREED UPON SUBSTITUTE PROVISION.
9.6.
ENTIRE AGREEMENT; INCONSISTENT TERMS; WAIVER.
THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE AMENDED, MODIFIED, WAIVED OR CANCELLED
EXCEPT BY