Company Voting and Support Agreement
Exhibit 10.6
COMPANY VOTING AND SUPPORT AGREEMENT, dated as of May 8, 2008, (this “Agreement”), by
and between Nuvasive, Inc. (“Nuvasive”), a Delaware corporation, and [•] (the
“Stockholder”). Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Asset Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”), by and between Nuvasive and Osiris Therapeutics, Inc. (the “Company”).
WITNESSETH:
WHEREAS, Nuvasive and the Company are entering into the Purchase Agreement concurrently with
the execution and delivery of this Agreement, which Purchase Agreement sets forth the terms and
conditions on which Nuvasive will acquire certain assets of the Company (the
“Acquisition”).
WHEREAS, as of the date hereof, the Stockholder is the beneficial and record owner of
[•] shares of Company Common Stock (the “Existing Shares”).
WHEREAS, Nuvasive has required, as a material inducement to Nuvasive’s willingness to enter
into the Purchase Agreement, that the Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. The Stockholder agrees that, from and after the date hereof
and until this Agreement is terminated pursuant to Section 4.1, at the Stockholder Meeting and any
other meeting of the stockholders of the Company, however called relating to any proposed action by
the stockholders of the Company with respect to the matters set forth in Section 1.1(b) below
(each, a “Voting Event”), the Stockholder shall:
(a) appear at each such Voting Event or otherwise cause the Existing Shares and any voting
securities of the Company acquired by the Stockholder after the date hereof and prior to the record
date of such Voting Event (together with the Existing Shares, the “Voting Shares”) owned
beneficially or of record by the Stockholder to be counted as present thereat for purposes of
calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, all the Voting Shares (i) in favor of
adoption of the Purchase Agreement and any other transactions and other matters specifically
contemplated by the Purchase Agreement and (ii) against any action or agreement submitted for
adoption of the stockholders of the Company that, to the Stockholder’s knowledge, would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Purchase Agreement or of the Stockholder contained
in this Agreement.
1.2 Fiduciary Duties. Each party hereto acknowledges and agrees that the Stockholder
is not making any agreement or understanding herein in any capacity other than in its capacity as a
stockholder of the Company. If the Stockholder or any affiliates, employees or agents of the
Stockholder is an officer or member of the Board of Directors of the Company, nothing herein shall
in any way limit or affect actions taken by them in such capacity, and no action taken in their
capacity as such an officer or director in furtherance of their fiduciary duties as an officer or
director of the Company shall be deemed to be a breach of the provisions of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Nuvasive as follows:
(a) Authorization; Validity of Agreement; Necessary Action. This Agreement has been
duly and validly executed and delivered by the Stockholder and, assuming this Agreement constitutes
the valid and binding agreement of Nuvasive, constitutes the valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms, subject to (i) laws
of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules
of law governing specific performance, injunctive relief and other equitable remedies.
(b) Ownership. As of the date hereof, the number of shares of Company Common Stock
beneficially owned by the Stockholder is noted in the Recitals to this Agreement. The Existing
Shares are, and the Voting Shares will be, owned beneficially by the Stockholder. As of the date
hereof, the Existing Shares are the only shares of Company Common Stock held of record or
beneficially owned by the Stockholder. Subject to Section 3.1, the Stockholder has and will have
at all times through the time of any Voting Event sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in Article I or Section 3.1
hereof, and sole power to agree to all of the matters set forth in this Agreement, in each case
with respect to all of the Existing Shares and with respect to all of the Voting Shares at the time
of any Voting Event, with no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. The Stockholder has good title
to the Existing Shares, free and clear of any Liens and the Stockholder will have good title to
such Voting Shares as of the time of any Voting Event, free and clear of any Liens. The
Stockholder further represents that any proxies heretofore given in respect of the shares of
Company Common Stock owned beneficially and of record by such Stockholder, if any, are revocable,
and have been revoked.
(c) No Violation. The execution and delivery of this Agreement by the Stockholder
does not, and the performance by the Stockholder of its obligations under this Agreement will not,
(i) contravene or conflict with the organizational or governing documents of
the Stockholder, (ii) contravene or conflict with or constitute a violation by Stockholder of
any provision of any Law binding upon or applicable to the Stockholder or any of its properties or
assets, or (iii) result in any violation of, or default (with or without notice or lapse of time,
or
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both) under, or give rise to a right of termination, cancellation or acceleration of any
material obligation or to the loss of a material benefit under any loan, guarantee of indebtedness
or credit agreement, note, bond, mortgage, indenture, lease or agreement binding upon the Company
or any of its subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon
any of the properties or assets of the Stockholder, except for any of the matters set forth in the
foregoing clause (iii) as would not reasonably be expected to materially impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
2.2 Representations and Warranties of Nuvasive. Nuvasive hereby represents and
warrants to the Stockholder as follows:
(a) Authorization; Validity of Agreement; Necessary Action. This Agreement has been
duly and validly executed and delivered by Nuvasive and, assuming this Agreement constitutes the
valid and binding agreement of the Stockholder, constitutes the valid and binding agreement of
Nuvasive, enforceable against Nuvasive in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
(b) No Violation. The execution and delivery of this Agreement by Nuvasive does not,
and the performance by Nuvasive of its obligations under this Agreement will not, (i) contravene or
conflict with the organizational or governing documents of Nuvasive, (ii) contravene or conflict
with or constitute a violation by Nuvasive of any provision of any Law binding upon or applicable
to Nuvasive or any of its properties or assets or (iii) result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any material obligation or to the loss of a material benefit under
any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease or
agreement binding upon Nuvasive or result in the creation of any Lien (other than Permitted Liens)
upon any of the properties or assets of Nuvasive, except for any of the matters set forth in the
foregoing clause (iii) as would not reasonably be expected to materially impair the ability of
Nuvasive to perform his obligations hereunder or to consummate the transactions contemplated hereby
on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of the Stockholder. (a) The Stockholder hereby agrees, while
this Agreement is in effect, and except as expressly contemplated hereby, not to sell, transfer,
pledge, encumber, assign, distribute, gift or otherwise dispose of (collectively, a
“Transfer”) or enter into any contract, option, put, call or other arrangement or
understanding with respect to any Transfer (whether by actual disposition or effective economic
disposition due to hedging, cash settlement or otherwise) of, any of the Voting Shares, or any
interest therein, provided, that notwithstanding the foregoing, the Stockholder may
Transfer any Voting Shares to
any transferee or transferees (including, for avoidance of doubt, any member of Stockholder’s
immediate family, a trust for the benefit of the Stockholder or any member of the Stockholder’s
immediate family or upon the death of the Stockholder) if either (i) Stockholder retains direct or
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indirect sole voting control over such Transferred Voting Shares through the term of this
Agreement; or (ii) as a condition to such Transfer, such transferee or transferees shall execute an
agreement that contains the same substantive covenants regarding voting and transfer as are
contained in this Agreement.
(a) In case of a stock dividend or distribution of voting securities of the Company, or any
change in the Company Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term “Voting Shares” shall be
deemed to refer to and include the Voting Shares as well as all such stock dividends and
distributions of voting securities of the Company and any voting securities into which or for which
any or all of the Voting Shares may be changed or exchanged.
(b) The Stockholder agrees, while this Agreement is in effect, not to, nor to permit any
investment banker, financial adviser, attorney, accountant or other representative or agent of the
Stockholder to, directly or indirectly, engage in any activity which would be prohibited pursuant
to Section 4.7 of the Purchase Agreement if engaged in by the Company.
(c) The Stockholder agrees, while this Agreement is in effect, not to take or agree or commit
to take any action that would make any representation and warranty of the Stockholder contained in
Section 2.1 of this Agreement inaccurate in any material respect. The Stockholder further agrees
that it shall use its commercially reasonable efforts to cooperate with the Company to effect the
transactions contemplated hereby including the Acquisition.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate upon the earlier to occur of (a) the
receipt of the Stockholder Approval (as defined in the Purchase Agreement) and (b) the termination
of the Purchase Agreement pursuant to its terms. In the event of such termination of this
Agreement, this Agreement shall forthwith become void and have no effect, without any liability or
obligation on the part of any party; provided, however that nothing herein shall
relieve any party from liability for any fraud, intentional misrepresentation or willful breach of
any of its representations, warranties, covenants or agreements set forth in this Agreement prior
to such termination.
4.2 Further Assurances. From time to time, at the other party’s request and without
further consideration, each party shall execute and deliver such additional documents and take all
such further action as may be reasonably necessary or desirable to consummate the transactions
contemplated by this Agreement.
4.3 No Ownership Interest. Nothing contained in this Agreement shall be deemed to
vest in Nuvasive any direct or indirect ownership or incidence of ownership of or with respect to
any Voting Shares. All rights, ownership and economic benefits of and relating to the
Voting Shares shall remain vested in and belong to the Stockholder, and Nuvasive shall have no
authority to manage, direct, superintend, restrict, regulate, govern or administer any of the
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policies or operations of the Company or exercise any power or authority to direct the Stockholder
in the voting of any of the Voting Shares, except as otherwise provided herein.
4.4 Notices. Except for notices that are specifically required by the terms of this
Agreement to be delivered orally, all notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally, faxed (with
confirmation) or sent by overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be specified by like notice)
(a) (a) if to Nuvasive:
NuVasive, Inc.
0000 Xxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
DLA Piper US LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
and (b) if to the Stockholder:
[•]
with a copy (which shall not constitute notice) to:
[•]
4.5 Interpretation. When a reference is made in this Agreement to an Article or
Section, such reference shall be to an Article or Section of this Agreement unless otherwise
indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation.” The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement. All terms defined
in this Agreement shall have the defined meanings when used in any certificate or other document
made or delivered pursuant thereto unless otherwise defined therein. Whenever the context of this
Agreement requires, the gender of all words herein shall include the masculine, feminine and
neuter, and the number of all words herein shall include the singular and plural. Any agreement,
instrument or statute defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement, instrument or statute as from time to
time amended, modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable successor statutes
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and references to all attachments thereto and instruments incorporated therein. Each of the
parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or
question of intent or interpretation arises, this Agreement must be construed as if it is drafted
by all the parties, and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of authorship of any of the provisions of this Agreement.
4.6 Counterparts. This Agreement may be executed in two or more consecutive
counterparts (including by facsimile), each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument, and shall become effective when
one or more counterparts have been signed by each of the parties and delivered (by telecopy or
otherwise) to the other parties.
4.7 Entire Agreement; Third-Party Beneficiaries. This Agreement (including the
exhibits and schedules hereto) constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof and thereof and is not intended to and shall not confer upon
any person other than the parties hereto any rights or remedies hereunder; provided, however, that
the Company shall be deemed to be a third-party beneficiary of the Stockholder’s obligations under
Sections 1.1 and 3.1 and shall be entitled to enforce the terms of this Agreement in respect
thereto as if it were a party hereto.
4.8 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
4.9 Jurisdiction; Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement. Each of the parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any judgment in respect of
this Agreement and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of
Chancery and any state appellate court therefrom within the State of Delaware (or, only if the
Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or
federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its property, generally
and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to
the jurisdiction of the above named courts for any reason
other than the failure to serve in accordance with this Section 4.9, (b) any claim that it or
its property is exempt or immune from jurisdiction of any such court or from any legal process
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commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the
fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding
in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject mater hereof, may not be enforced in
or by such courts.
4.10 Amendment. Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an amendment, by each of the
parties hereto, or in the case of a waiver, by the party against whom the waiver is to be
effective. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising
any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise of any other right hereunder.
4.11 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent
of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of
such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
4.12 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties, and any assignment without
such consent shall be null and void. Subject to the preceding sentence, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the date first above written.
| NUVASIVE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [•] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Received and acknowledged as of the date first above written: OSIRIS THERAPEUTICS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Voting and Support Agreement
Schedule of Voting and Support Agreements
| Number of Company | ||||
| Name of Stockholder | Shares Beneficially Owned | |||
Xxxxx Xxxxxxx |
9,870,371 | |||
Xxxxx Ltd. |
10,000 | |||
US Venture 05, Inc. |
1,000,000 | |||
Venturetec, Inc. |
3,963,629 | |||
C. Xxxxxx Xxxxx |
123,000 | |||
