AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
Exhibit 2.1
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 Payment”) and each Milestone
shall be independent of each other Milestone and may be satisfied and payment become due therefore
regardless of non-satisfaction of any other Milestone; provided, however, that (i)
if Purchaser elects to issue shares of Purchaser Common Stock in respect of any Applicable
Milestone Payment, then prior to such issuance and upon request by the Purchaser, Seller shall
deliver to Purchaser such representations and warranties as Purchaser shall reasonably request for
purposes of exempting the issuance of such shares from the registration requirements of the
Securities Act, and (ii) if Purchaser elects to issue shares of Purchaser Common Stock in respect
of any Applicable Milestone Payment, the number of shares of Purchaser Common Stock to be issued
shall be equal to the Applicable Milestone Payment divided by the Purchaser Common Stock Value.
The obligations of Purchaser under this Section 1.5(a) are subject to the provisions of Section
1.5(c) below (regarding Purchaser’s Rights of Set-Off). For avoidance of doubt, in no event shall
the sum of all Applicable Milestone Payments made by Purchaser to Seller under this Section 1.5
exceed Fifty Million Dollars ($50,000,000) (the “Maximum Milestone Amount.
(i) If at any time following the Technology Closing Date but at or prior to April 15,
2009, Seller shall have delivered to Purchaser an aggregate of 75,000 cubic centimeters of
Product (the “First Delivery Threshold”) in accordance with the terms and
provisions of, and subject to the specifications set forth in, the Manufacturing Agreement,
Purchaser shall pay to Seller Five Million Dollars ($5,000,000) (the “First Milestone
Payment”). The parties acknowledge and agree that the First Milestone Payment was
previously made by Purchaser and that no further amount shall be due or owing with respect
thereto.
(ii) Purchaser shall pay to Seller Five Million Dollars ($5,000,000) on the date that
Purchaser executes the Second Amendment (the “Second Milestone Payment”).
(iii) Purchaser shall pay to Seller Twelve Million Five Hundred Thousand Dollars
($12,500,000) on June 30, 2009 (the “Third Milestone Payment”).
(iv) Purchaser shall pay to Seller Twelve Million Five Hundred Thousand Dollars
($12,500,000) on September 30, 2009 (the “Fourth Milestone Payment”).
(v) [Intentionally Omitted].
(vi) If at any time following the Technology Closing Date the Business shall generate
Thirty-Five Million Dollars ($35,000,000) in cumulative Net Sales (the “Net Sales
Threshold”), Purchaser shall pay to Seller Fifteen Million Dollars ($15,000,000) (the
“Sixth Milestone Payment”).
If any payment under this Section 1.5(a) is made in the form of Purchaser Common Stock, then
on the date of such payment Purchaser shall provide to Seller (I) a certificate from a
duly
authorized officer of Purchaser certifying that as of the date of such issuance (x) the Purchaser
Common Stock so issued has been duly authorized and is validly issued, fully-paid and
non-assessable and, (y) the provisions of Rule 144(c) of the Securities Act, are satisfied and (II)
a legal opinion from Purchaser’s legal counsel that such Purchaser Common Stock has been duly
authorized and validly issued, is fully paid and non-assessable. If Purchaser is unable to satisfy
the requirement set forth in the immediately preceding sentence, Seller shall be under no
obligation to accept Purchaser Common Stock as payment for the Applicable Milestone Payment and
Purchaser shall make such Applicable Milestone Payment in the form of cash, in United States
dollars of immediately available funds.”
(d) Sections 6.1 (a), (b), and (d-i) of the Agreement shall be deleted in their entirety, and
Seller hereby specifically affirms that the representations and warranties in Section 6.1(c)
thereof are true and correct as of the date hereof.
(e) Section 8.2(d) of the Agreement shall be amended by adding at the end thereof the
following phrase “ ... and all liabilities associated with the assumption or termination of the
AlloSource Supply Agreement as contemplated by the Second Amendment.”
(f) Section 9.13 of the Agreement shall be amended by deleting the definitions of “Allowable
Work in Process” and “WIP Value” in their entirety. In addition, the Index of Defined Terms
contained in Section 9.13 shall be amended by eliminating the reference to Work in Process
contained therein.
2. Columbia Facility. Notwithstanding anything to the contrary in the Agreement (or
any exhibit or schedule to the Agreement), the Parties agree that Seller shall not transfer, lease
or sub-lease the 0000 Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxxx facility (the “Columbia Facility”) to
Purchaser, and Purchaser shall have no obligation to lease or sub-lease the Columbia Facility. The
Parties agree that (i) the Sublease Agreement by and between Broadwing Corporation and Osiris,
dated June 2, 2006 and the Agreement of Lease by and between Columbia Gateway S-18, L.L.C. and
Osiris, dated June 6, 2006 shall not be Assumed Contracts (as defined in the Agreement) pursuant to
the Agreement, and (ii) Schedule 1.1(a)(x) to the Agreement shall be amended to remove the Sublease
Agreement by and between Broadwing Corporation and Osiris, dated June 2, 2006 and the Agreement of
Lease by and between Columbia Gateway S-18, L.L.C. and Osiris, dated June 6, 2006 from such
Schedule 1.1(a)(x) to the Agreement. Purchaser agrees to timely dispose, at Purchaser’s cost, of
all of the assets at the Columbia Facility set forth on Exhibit A attached to this Second
Amendment.
3. No Further Amendment. Except to the extent expressly modified by this Amendment,
all of the provisions of the Agreement shall remain in full force and effect, without modification
or amendment and are ratified in all respects. This Amendment is limited by its terms and does not
and shall not serve to amend or waive any provision of the Agreement except as expressly provided
for in this Amendment.
4. Governing Law; General Provisions. This Amendment, including the validity hereof
and the rights and obligations of the parties hereunder, shall be construed, interpreted,
enforced and governed by and under the laws of the State of Delaware applicable to contracts
made
and to be performed entirely in such state, without regard to its rules regarding conflicts of law
provisions.
5. Counterparts, Facsimile Execution. This Amendment may be executed in any number of
counterparts, each of which shall constitute an original but all of which shall constitute one and
the same instrument. The Parties need not sign the same counterpart.
[Signature Page to Follow]
IN WITNESS WHEREOF, Seller and Purchaser have each caused this Amendment No. 2 to Asset
Purchase Agreement to be executed by their respective duly authorized officers, all as of the date
first above written.
| SELLER: Osiris Therapeutics, Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | CFO | |||
| PURCHASER: NuVasive, Inc. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | SVP, GC & Secretary | |||
