Form 8-K NUVASIVE INC For: Mar 09

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 9, 2016

 

 

NUVASIVE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		000-50744		33-0768598
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification Number)

7475 Lusk Boulevard, San Diego, California 92121

(Address of principal executive offices) (Zip Code)

(858) 909-1800

(Registrant’s telephone number, including area code)

n/a

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

---

Item 1.01.

Entry into a Material Definitive Agreement.

On March 9, 2016, NuVasive, Inc. (the “Company”) entered into an Amendment No. 1 to Credit Agreement (the “Amendment”) with Bank of America, N.A., as administrative agent, and the other lenders party thereto, evidencing an amendment to the Company’s revolving senior credit facility (the “Facility”) providing for, among other things, modifications to the Facility to allow for the offering of the Notes (as defined below) as a “Permitted Convertible Note Refinancing” pursuant to the terms of the Facility.

The foregoing is a summary description of certain terms of the Amendment and does not purport to be complete, and it is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 8.01.

Other Events.

On March 9, 2016, the Company announced a proposed offering of $550 million aggregate principal amount of Convertible Senior Notes due 2021 (the “Notes”) in a private offering to qualified institutional buyers that is exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) in reliance upon Rule 144A under the Securities Act. In addition, the Company announced its intention to enter into convertible note hedge transactions and warrant transactions in connection with the offering of the Notes with one or more of the initial purchasers of the Notes (“Convertible Note Hedge and Warrant Transactions”). The Company’s press release announcing the launch of the offering of the Notes and potential Convertible Note Hedge and Warrant Transactions, as well as the expected use of proceeds thereof, is filed as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

In connection with the repurchases of the Convertible Senior Notes due 2017 (the “2017 notes”) described in the press release noted above, the Company expects to amend each of the base call option transaction confirmations the Company entered into with affiliates of the initial purchasers in connection with the pricing of its 2017 notes in June 2011 in order to continue to permit the exercise by the Company of a number of options to purchase its common stock underlying such base call option transaction confirmations corresponding to the number of 2017 notes repurchased in connection with the offering of the Notes that, absent such amendment, would have been exercisable only upon the conversion of such repurchased 2017 notes.

 

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits

 

10.1		Amendment No. 1 to Credit Agreement, dated as of March 9, 2016, by and among the Company, the Other Loan Parties, Bank of America, N.A. and each of those additional Lenders that are a party to such agreement.
99.1		Press Release of NuVasive, Inc. dated March 9, 2016.

---

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: March 9, 2016

---

EXHIBIT INDEX

 

Exhibit Number		Description
10.1		Amendment No. 1 to Credit Agreement, dated as of March 9, 2016, by and among the Company, the Other Loan Parties, Bank of America, N.A. and each of those additional Lenders that are a party to such agreement.
99.1		Press Release of NuVasive, Inc. dated March 9, 2016.

Exhibit 10.1

EXECUTION COPY

AMENDMENT NO. 1 TO CREDIT AGREEMENT

THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the “Amendment”), dated as of March 9, 2016, is made by and among NUVASIVE, INC., a Delaware corporation (the “Borrower”), the other Loan Parties (as defined in the Credit Agreement (as defined below)) signatory hereto, BANK OF AMERICA, N.A., in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement) (in such capacity, the “Administrative Agent”), and as Swingline Lender and L/C Issuer, and each of the Lenders signatory hereto. Each capitalized term used and not otherwise defined in this Amendment has the definition specified in the Credit Agreement.

W I T N E S S E T H:

WHEREAS, the Borrower, the Administrative Agent and the Lenders have entered into that certain Credit Agreement dated as of February 8, 2016 (as hereby amended and as from time to time hereafter further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”), pursuant to which the Lenders have made available to the Borrower a revolving credit facility;

WHEREAS, the Borrower and the other Loan Parties have requested that the Credit Agreement be amended as set forth herein;

WHEREAS, the Administrative Agent and certain of the Lenders (representing the Required Lenders) are willing to make such amendments on the terms and conditions contained in this Amendment; and

NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Amendments to Credit Agreement. Subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended as follows:

(a) The definition of “Permitted Convertible Note Refinancing” set forth in Section 1.01 of the Credit Agreement is amended in its entirety, so that as amended the definition of “Permitted Convertible Note Refinancing” shall read as follows:

“‘Permitted Convertible Note Refinancing’ means Indebtedness constituting a refinancing or extension of the Convertible Notes that (a) does not have a maturity date prior to the Maturity Date or require any payment of principal in respect thereof in any manner materially different from the repayment requirements set forth in the Convertible Notes, (b) does not require or permit any cash payment of interest in respect thereof at a rate in excess of 3.0% per annum, (c) is not supported by guaranties that are more favorable than the guaranties supporting the Obligations, (d) does not require representations, warranties, covenants or events of default that are more restrictive, taken as a whole, than those set forth herein, (e) does not contain a cross-default to any Loan Document (other than the occurrence of an Event of Default under Sections 8.01(a), to

---

the extent such Event of Default is not discharged, cured, rescinded or annulled within a period of thirty (30) days after notice of its occurrence) and (f) is unsecured.”

(b) Section 7.02(f) of the Credit Agreement is amended in its entirety, so that as amended Section 7.02(f) shall read as follows:

“(i) the unsecured Convertible Notes outstanding on the date hereof and listed on Schedule 7.02(f) to the Disclosure Letter and any Permitted Convertible Note Refinancing thereof, and (ii) unsecured Indebtedness substantially in the form of the Convertible Notes not to exceed $400,000,000 in the aggregate at any time outstanding (which aggregate amount shall be reduced to $250,000,000 on July 14, 2017 (or such earlier date as shall be selected by the Borrower)) and any Permitted Convertible Note Refinancing thereof; provided, that, with respect to this clause (f), as part of the consummation of a Permitted Convertible Note Refinancing or a repayment of a Convertible Note, the aggregate principal amount of such Indebtedness shall be permitted to be greater than the amounts set forth in this clause (f) for a period of not more than three (3) Business Days subsequent to the refinancing or repayment of such Indebtedness and by an amount not greater than required to consummate such refinancing or repayment;”

(c) Section 7.06(j) of the Credit Agreement is amended in its entirety, so that as amended Section 7.06(j) shall read as follows:

“Loan Parties may (i) repurchase or repay any Convertible Notes and Permitted Convertible Notes Refinancings (x) that the Loan Parties are required to repurchase or repay in accordance with the applicable Convertible Indebtedness Documents or the documents evidencing the Permitted Convertible Notes Refinancings and (y) in connection with a Permitted Convertible Note Refinancing, as the case may be, and (ii) make Restricted Payments in respect of any Swap Contracts existing as of the date hereof or entered into in connection with any Permitted Convertible Notes Refinancing; and”

2. Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments provided in Section 1 are subject to the satisfaction of the following conditions precedent:

(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:

(i) original counterparts of this Amendment, duly executed by the Borrower, the other Loan Parties, the Administrative Agent, and the Required Lenders, together with all schedules thereto duly completed; and

(ii) such other documents, instruments, opinions, certifications, undertakings, further assurances and other matters as the Administrative Agent shall reasonably request;

(b) all fees and expenses payable to the Administrative Agent and the Lenders (including the fees and expenses of counsel to the Administrative Agent) due and payable shall

 

2

---

have been paid in full (without prejudice to final settling of accounts for such fees and expenses).

3. Consent of the Loan Parties. Each Loan Party hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Loan Documents to which it is a party (including without limitation the continuation of payment and performance obligations of such Loan Party and the effectiveness and priority of any Liens granted thereunder, in each case upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of such Loan Documents against such Loan Party in accordance with its terms.

4. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower and each other Loan Party represents and warrants to the Administrative Agent as follows:

(a) At the time of and immediately after giving effect to this Amendment, the representations and warranties made by each of the Borrower and each other Loan Party in Article V of the Credit Agreement, and in each of the other Loan Documents to which it is a party, are true and correct on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties are true and correct as of such earlier date;

(b) No Default or Event of Default has occurred and is continuing or will exist after giving effect to this Amendment;

(c) Since the date of the most recent financial reports of the Borrower delivered pursuant to Section 6.01 of the Credit Agreement, no act, event, condition or circumstance has occurred or arisen which, singly or in the aggregate with one or more other acts, events, occurrences or conditions (whenever occurring or arising), has had or could reasonably be expected to have a Material Adverse Effect; and

(d) This Amendment has been duly authorized, executed and delivered by the Borrower and each other Loan Party and constitutes the legal, valid and binding obligations of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

5. Entire Agreement. This Amendment, together with the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to any other party in relation to the subject

 

3

---

matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 11.01 of the Credit Agreement.

6. Full Force and Effect of Credit Agreement. Except as hereby specifically amended, modified or supplemented, the Credit Agreement and all other Loan Documents are hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to their respective terms. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Loan Document.

7. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, facsimile or other electronic transmission (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.

8. Governing Law. This Amendment and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and performed entirely within such State, and shall be further subject to the provisions of Sections 11.14 and 11.15 of the Credit Agreement.

9. Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

10. References. From and after the date hereof, all references in the Credit Agreement and any of the other Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby and as from time to time hereafter further amended, modified, supplemented, restated or amended and restated.

11. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Borrower, each other Loan Party, the Administrative Agent, each Lender and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 11.06 of the Credit Agreement.

[Signature pages follow.]

 

4

---

IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized officers, all as of the day and year first above written.

 

BORROWER:				NUVASIVE, INC.
				By:		/s/ Jereme Sylvain
				Name:		Jereme Sylvain
				Title:		VP, Corporate Controller

 

GUARANTOR:				IMPULSE MONITORING, INC.
				By:		/s/ Jereme Sylvain
				Name:		Jereme Sylvain
				Title:		VP, Corporate Controller

NUVASIVE, INC.

AMENDMENT NO. 1 TO CREDIT AGREEMENT

---

NUVASIVE, INC.

AMENDMENT NO. 1 TO CREDIT AGREEMENT

---

NUVASIVE, INC.

AMENDMENT NO. 1 TO CREDIT AGREEMENT

Exhibit 99.1

 

NEWS RELEASE

Investor/Media Contact:

Stacy Roughan

NuVasive, Inc.

1-858-909-1812

[email protected]

NUVASIVE, INC. ANNOUNCES PROPOSED OFFERING OF $550 MILLION OF

CONVERTIBLE SENIOR NOTES DUE 2021

SAN DIEGO, CA, March 9, 2016 — NuVasive, Inc. (NASDAQ: NUVA) announced today that it intends to offer, subject to market and other considerations, $550,000,000 aggregate principal amount of Convertible Senior Notes due 2021 (the “Convertible Notes”) in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). NuVasive also intends to grant to the initial purchasers of the Convertible Notes a 13-day option to purchase up to an additional $100,000,000 aggregate principal amount of the Convertible Notes.

In addition, NuVasive expects to enter into convertible note hedge transactions and warrant transactions with affiliates of one or more of the initial purchasers of the Convertible Notes (the “Option Counterparties”). The convertible note hedge transactions are expected generally to reduce the potential dilution to NuVasive’s common stock upon any conversion of Convertible Notes and/or offset any cash payments NuVasive is required to make in excess of the principal amount of converted Convertible Notes, as the case may be. The warrant transactions could separately have a dilutive effect to the extent that the market price per share of NuVasive’s common stock as measured over the applicable valuation period at the maturity of the warrants exceeds the applicable strike price of the warrants. However, subject to certain conditions, NuVasive may elect to settle all or a portion of the warrants in cash.

NuVasive expects that in connection with establishing their initial hedges of these transactions, the Option Counterparties and/or their respective affiliates will enter into various derivative transactions with respect to NuVasive’s common stock and/or purchase NuVasive’s common stock in secondary market transactions concurrently with, or shortly after, the pricing of the Convertible Notes. These activities could have the effect of increasing, or reducing any decline in, the price of NuVasive’s common stock or the Convertible Notes concurrently with or following the pricing of the Convertible Notes. In addition, NuVasive expects that the Option Counterparties and/or their respective affiliates may modify their hedge positions by entering into or unwinding various derivative transactions with respect to NuVasive’s common stock and/or by selling or purchasing NuVasive’s common stock or other securities linked to NuVasive’s common stock in secondary market transactions following the pricing of the Convertible Notes and are likely to do so during any observation period relating to a conversion of Convertible Notes. Any of these activities could cause or avoid an increase or a decrease in the market price of NuVasive’s common stock or the Convertible Notes, which could affect the ability of holders of Convertible notes to convert the Convertible Notes and, to the extent the activities occur during any observation period related to a conversion of the Convertible Notes, could affect the amount and value of the consideration that holders of Convertible Notes will receive upon conversion of the Convertible Notes.

---

NuVasive intends to use a portion of the net proceeds of the offering to pay the cost of the convertible note hedge transactions (after such cost is partially offset by the proceeds to NuVasive from the warrant transactions). Additionally, if the initial purchasers exercise their option to purchase additional notes, NuVasive may sell additional warrants and use a portion of the proceeds from the sale of the additional notes and from the sale of additional warrants to enter into additional convertible note hedge transactions.

Concurrently with the offering, in separate transactions, NuVasive also intends to use a portion of the net proceeds of the offering to repurchase up to $325.0 million in principal amount of NuVasive’s outstanding $402.5 million aggregate principal amount of its Convertible Senior Notes due 2017 (the “2017 Notes”) through one of the initial purchasers and/or its affiliate as NuVasive’s agent. Based on the current trading price of the 2017 Notes, NuVasive expects that it may use up to $400.0 million for such purchases. NuVasive intends to use the remainder of the net proceeds of the offering for general corporate purposes, which may include additional repurchases of outstanding 2017 Notes. Any repurchase of the 2017 Notes could have the effect of raising or maintaining the market price of NuVasive’s common stock above levels that would otherwise have prevailed, or preventing or retarding a decline in the market price of NuVasive’s common stock. In particular, NuVasive expects certain of the sellers of 2017 Notes that NuVasive repurchases to purchase shares of common stock in the market in connection with such sales of 2017 Notes, including during the course of the day on which NuVasive prices the offering of the Convertible Notes, which common stock purchases could represent a significant portion of the trading in NuVasive’s common stock on that day.

The Convertible Notes will be general unsecured obligations of NuVasive and interest will be paid semiannually in arrears. Prior to the close of business on the business day immediately preceding September 15, 2020, the Convertible Notes will be convertible at the option of holders only upon the satisfaction of certain conditions and during certain periods. Thereafter until close of business on the second scheduled trading day preceding maturity, the Convertible Notes will be convertible at the option of the holders at any time regardless of these conditions. Conversions of Convertible Notes will be settled in cash, shares of NuVasive common stock or a combination thereof, at NuVasive’s election. The Convertible Notes will not be redeemable at NuVasive’s option prior to March 20, 2019. On or after March 20, 2019 until the close of business on the business day immediately preceding September 15, 2020, the Convertible Notes will be redeemable at NuVasive’s option if the last reported sale price of NuVasive’s common stock for at least 20 trading days in any 30 trading day period has been at least 130% of the conversion price for the Convertible Notes. The interest rate, initial conversion rate and other terms of the Convertible Notes will be determined at the time of the pricing of the offering.

---

The offering is being made only to qualified institutional buyers pursuant to Rule 144A under the Securities Act. Neither the Convertible Notes nor any shares of NuVasive’s common stock issuable upon conversion of the Convertible Notes have been or are expected to be registered under the Securities Act or under any state securities laws and, unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.

This news release does not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall it constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale is unlawful.

NuVasive cautions you that statements included in this news release that are not a description of historical facts are forward-looking statements that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause NuVasive’s results to differ materially from historical results or those expressed or implied by such forward-looking statements. Forward-looking statements include, but are not limited to, statements regarding the proposed terms of the Convertible Notes and the convertible note hedge and warrant transactions, the completion, timing and size of the proposed private offering of the Convertible Notes and convertible note hedge and warrant transactions, and the anticipated use of proceeds from the offering of the Convertible Notes. The forward-looking statements contained herein are based on the current expectations and assumptions of NuVasive and not on historical facts. The potential risks and uncertainties which contribute to the uncertain nature of these statements include, among others, risks associated with acceptance of NuVasive’s surgical products and procedures by spine surgeons, development and acceptance of new products or product enhancements, clinical and statistical verification of the benefits achieved via the use of NuVasive’s products (including the iGA™ platform), NuVasive’s ability to effectually manage inventory as it continues to release new products, its ability to recruit and retain management and key personnel, and the other risks and uncertainties described in NuVasive’s news releases and periodic filings with the Securities and Exchange Commission. NuVasive’s public filings with the Securities and Exchange Commission are available at www.sec.gov. NuVasive assumes no obligation to update any forward-looking statement to reflect events or circumstances arising after the date on which it was made.

# # #

---

Serious News for Serious Traders! Try StreetInsider.com Premium Free!

---

You May Also Be Interested In

• RESULT OF RIKSBANK AUCTIONS GOVERNMENT BONDS
• Konsolidator maintains its financial expectations for 2024
• Vantage Drilling International Ltd. Schedules First Quarter 2024 Earnings Release Date and Conference Call