AMENDMENT TO ASSET PURCHASE AGREEMENT
EXHIBIT 2.1
AMENDMENT TO ASSET PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT (this “Amendment”) dated as of September 30, 2008,
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 the Asset Purchase Agreement, dated May
8, 2008, between Seller and Purchaser (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
WHEREAS, the Board of Directors of each of the Parties view it to be advisable, desirable and
in the best interests of the Parties to amend the Agreement.
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 1.3 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 as soon as reasonably practicable, but in no event prior to November 1, 2009,
following the earlier to occur of (i) the termination of the Manufacturing Agreement by Purchaser
pursuant to Section 7.1 of the Manufacturing Agreement, (ii) the expiration of the “Term” (as that
term is defined in the Manufacturing Agreement) of the Manufacturing Agreement (the
“Manufacturing Closing Date”); or (iii) Seller’s request to accelerate the Manufacturing
Closing Date, provided that Seller has delivered to Purchaser between *** and ***
cubic centimeters of Product.”
(b) Section 1.5(a)(i) of the Agreement shall be amended and restated in its entirety, as
follows:
“(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”).”
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(c) Section 1.5(a)(ii) of the Agreement shall be amended and restated in its entirety, as
follows:
“(ii) If at any time following the Technology Closing Date but prior to the Manufacturing
Closing, Seller shall have delivered to Purchaser an aggregate of 180,000 cubic centimeters of
Product (including, for avoidance of doubt, any Product delivered in satisfaction of the First
Delivery Threshold) (the “Second 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 “Second Milestone
Payment”).”
(d) Section 1.5(a)(iv) of the Agreement shall be amended and restated in its entirety, as
follows:
“(iv) If prior to the Manufacturing Closing, Seller shall have delivered to Purchaser an
aggregate of 205,000 cubic centimeters of Product (including, for avoidance of doubt, the Product
delivered pursuant to the Second Delivery Threshold) in accordance with the terms and provisions
of, and subject to the specifications set forth in, the Manufacturing Agreement, at the
Manufacturing Closing, Purchaser shall pay to Seller Five Million Dollars ($5,000,000) (the
“Fourth Milestone Payment”).”
(e) Section 4.11(e) of the Agreement shall be deleted in its entirety.
(f) A new sentence shall be added to the end of Section 8.1 to read as follows:
“Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to
indemnify, defend and save harmless any Purchaser Indemnified Party from, against and in respect of
any and all Losses incurred or suffered by any Purchaser Indemnified Party arising out of or
related to the termination on or prior to December 31, 2008 of any Contract (including any
amendment to any such Contract) listed on Schedule 2.9(c).”
2. 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.
3. 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.
4. 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 to be executed by
their respective duly authorized officers, all as of the date first above written.
SELLER:
| Osiris Therapeutics, Inc. | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxx Xx.
|
|||||
| Title: | Vice President of Finance | |||||
PURCHASER:
| NuVasive, Inc. | ||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: | Chairman & CEO | |||||
