Exhibit 10.1

EXECUTION VERSION

 

 

THIS AMENDMENT AGREEMENT (“Amendment Agreement”) with respect to the Warrant Confirmations (as defined below) is made as of October 26, 2020 between NuVasive, Inc. (“Issuer”) and Morgan Stanley & Co. International plc (“Dealer”).

WHEREAS, (i) Dealer and Issuer entered into a letter agreement dated as of May 27, 2020, confirming the terms of a base issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Base Warrant Confirmation”), and (ii) Dealer and Issuer entered into a letter agreement dated as of June 2, 2020, confirming the terms of an additional issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Additional Warrant Confirmation” and, together with the Base Warrant Confirmation, the “Warrant Confirmations”); and

WHEREAS, Issuer has requested to amend certain terms of the Warrant Confirmations as described herein;

NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:

1.Defined Terms.  Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Warrant Confirmations.

 

2.Amendments.  The parties hereby agree that the Warrant Confirmations are amended as follows by:

 

(a) removing Section 8(b)(ii) in its entirety;

 

(b) replacing the phrase “in excess of 807,000 Shares” in the first sentence of Section 8(f) of the Base Warrant Confirmation with the phrase “in excess of 1,852,937 Shares”;

 

(c)replacing the phrase “in excess of 121,050 Shares” in the first sentence of Section 8(f) of the Additional Warrant Confirmation with the phrase “in excess of 231,617 Shares”; and

 

(d)removing Section 8(k)(viii) in its entirety.

 

3.Representations and Warranties of Issuer.  Issuer represents and warrants to Dealer on the date hereof that:

 

(a)  excluding the representations and warranties of Issuer set forth in Section 7(a)(iii), Section 7(a)(viii), Section 7(a)(ix), Section 7(a)(x) and Section 7(a)(xi) of the Base Warrant Confirmation, each of the representations and warranties of Issuer set forth in Section 7(a) of the Base Warrant Confirmation, as if references therein to “Transaction” or “Confirmation” were each replaced with “Amendment Agreement”, are true and correct as of the date hereof;

 

(b) Issuer is not on the date hereof engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Issuer, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M, and shall not engage in any such distribution prior to the second Scheduled Trading Day following the date hereof;

 

(c) Issuer is not entering into this Amendment Agreement (i) on the basis of, and it is not aware of, any material non-public information with respect to itself or the Shares (ii) in anticipation of, in connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third-party tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) in violation of the Exchange Act; and

 

(d) Issuer (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in

 

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evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.Continuing Effect.  Except as expressly set forth in Section 2 above, all of the terms and provisions set forth in each Warrant Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

 

5.Governing Law; Exclusive Jurisdiction; Waiver of Jury Trial.  This Amendment Agreement and all matters arising in connection with this Amendment Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).  

 

6.Counterparts.  This Amendment Agreement (and any amendment, modification and waiver in respect of it) may be executed and delivered in counterparts, each of which will be deemed an original.

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed as of the date first written above.

 

Yours sincerely,

MORGAN STANLEY & CO. INTERNATIONAL PLC

By:   /s/ Gautier martin-Regnier
Name: Gautier martin-Regnier
Title:   Managing Director

MORGAN STANLEY & CO. LLC

By:   /s/ Darren McCarley
Name: Darren McCarley
Title:   Managing Director

 

Agreed and Accepted By:

NUVASIVE, INC.

 

 

 

 

 

 

Exhibit 10.2

EXECUTION VERSION

 

 

THIS AMENDMENT AGREEMENT (“Amendment Agreement”) with respect to the Warrant Confirmations (as defined below) is made as of October 26, 2020 between NuVasive, Inc. (“Issuer”) and Royal Bank of Canada (“Dealer”), through its agent RBC Capital Markets, LLC (“Agent”).

WHEREAS, (i) Dealer and Issuer entered into a letter agreement dated as of May 27, 2020, confirming the terms of a base issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Base Warrant Confirmation”), and (ii) Dealer and Issuer entered into a letter agreement dated as of June 2, 2020, confirming the terms of an additional issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Additional Warrant Confirmation” and, together with the Base Warrant Confirmation, the “Warrant Confirmations”); and

WHEREAS, Issuer has requested to amend certain terms of the Warrant Confirmations as described herein;

NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:

1.Defined Terms.  Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Warrant Confirmations.

 

2.Amendments.  The parties hereby agree that the Warrant Confirmations are amended as follows by:

 

(a) removing Section 8(b)(ii) in its entirety;

 

(b) replacing the phrase “in excess of 807,000 Shares” in the first sentence of Section 8(f) of the Base Warrant Confirmation with the phrase “in excess of 1,852,937 Shares”;

 

(c)replacing the phrase “in excess of 121,050 Shares” in the first sentence of Section 8(f) of the Additional Warrant Confirmation with the phrase “in excess of 231,617 Shares”; and

 

(d)removing Section 8(k)(viii) in its entirety.

 

3.Representations and Warranties of Issuer.  Issuer represents and warrants to Dealer on the date hereof that:

 

(a)  excluding the representations and warranties of Issuer set forth in Section 7(a)(iii), Section 7(a)(viii), Section 7(a)(ix), Section 7(a)(x) and Section 7(a)(xi) of the Base Warrant Confirmation, each of the representations and warranties of Issuer set forth in Section 7(a) of the Base Warrant Confirmation, as if references therein to “Transaction” or “Confirmation” were each replaced with “Amendment Agreement”, are true and correct as of the date hereof;

 

(b) Issuer is not on the date hereof engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Issuer, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M, and shall not engage in any such distribution prior to the second Scheduled Trading Day following the date hereof;

 

(c) Issuer is not entering into this Amendment Agreement (i) on the basis of, and it is not aware of, any material non-public information with respect to itself or the Shares (ii) in anticipation of, in connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third-party tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) in violation of the Exchange Act; and

 

(d) Issuer (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in

 

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evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.Continuing Effect.  Except as expressly set forth in Section 2 above, all of the terms and provisions set forth in each Warrant Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

 

5.Governing Law; Exclusive Jurisdiction; Waiver of Jury Trial.  This Amendment Agreement and all matters arising in connection with this Amendment Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).  

 

6.Counterparts.  This Amendment Agreement (and any amendment, modification and waiver in respect of it) may be executed and delivered in counterparts, each of which will be deemed an original.

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed as of the date first written above.

 

Yours sincerely,

RBC CAPITAL MARKETS, LLC
as Agent for
ROYAL BANK OF CANADA

By:   /s/ Shane Didier
Name: Shane Didier
Title:   Senior Associate

Agreed and Accepted By:

NUVASIVE, INC.

 

 

 

 

 

 

Exhibit 10.3

EXECUTION VERSION

 

 

THIS AMENDMENT AGREEMENT (“Amendment Agreement”) with respect to the Warrant Confirmations (as defined below) is made as of October 26, 2020 between NuVasive, Inc. (“Issuer”) and Bank of America, N.A. (“Dealer”).

WHEREAS, (i) Dealer and Issuer entered into a letter agreement dated as of May 27, 2020, confirming the terms of a base issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Base Warrant Confirmation”), and (ii) Dealer and Issuer entered into a letter agreement dated as of June 2, 2020, confirming the terms of an additional issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Additional Warrant Confirmation” and, together with the Base Warrant Confirmation, the “Warrant Confirmations”); and

WHEREAS, Issuer has requested to amend certain terms of the Warrant Confirmations as described herein;

NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:

1.Defined Terms.  Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Warrant Confirmations.

 

2.Amendments.  The parties hereby agree that the Warrant Confirmations are amended as follows by:

 

(a) removing Section 8(b)(ii) in its entirety;

 

(b) replacing the phrase “in excess of 538,000 Shares” in the first sentence of Section 8(f) of the Base Warrant Confirmation with the phrase “in excess of 1,235,291 Shares”;

 

(c)replacing the phrase “in excess of 80,700 Shares” in the first sentence of Section 8(f) of the Additional Warrant Confirmation with the phrase “in excess of 154,411 Shares”; and

 

(d)removing Section 8(k)(viii) in its entirety.

 

3.Representations and Warranties of Issuer.  Issuer represents and warrants to Dealer on the date hereof that:

 

(a)  excluding the representations and warranties of Issuer set forth in Section 7(a)(iii), Section 7(a)(viii), Section 7(a)(ix), Section 7(a)(x) and Section 7(a)(xi) of the Base Warrant Confirmation, each of the representations and warranties of Issuer set forth in Section 7(a) of the Base Warrant Confirmation, as if references therein to “Transaction” or “Confirmation” were each replaced with “Amendment Agreement”, are true and correct as of the date hereof;

 

(b) Issuer is not on the date hereof engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Issuer, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M, and shall not engage in any such distribution prior to the second Scheduled Trading Day following the date hereof;

 

(c) Issuer is not entering into this Amendment Agreement (i) on the basis of, and it is not aware of, any material non-public information with respect to itself or the Shares (ii) in anticipation of, in connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third-party tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) in violation of the Exchange Act; and

 

(d) Issuer (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

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4.Continuing Effect.  Except as expressly set forth in Section 2 above, all of the terms and provisions set forth in each Warrant Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

 

5.Governing Law; Exclusive Jurisdiction; Waiver of Jury Trial.  This Amendment Agreement and all matters arising in connection with this Amendment Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).  

 

6.Counterparts.  This Amendment Agreement (and any amendment, modification and waiver in respect of it) may be executed and delivered in counterparts, each of which will be deemed an original.

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed as of the date first written above.

 

Yours sincerely,

BANK OF AMERICA, N.A.

By:   /s/ Chris Hutmaker
Name: Chris Hutmaker
Title:   Managing Director

Agreed and Accepted By:

NUVASIVE, INC.

 

 

 

 

 

 

Exhibit 10.4

EXECUTION VERSION

 

 

THIS AMENDMENT AGREEMENT (“Amendment Agreement”) with respect to the Warrant Confirmations (as defined below) is made as of October 26, 2020 between NuVasive, Inc. (“Issuer”) and Barclays Bank PLC (“Dealer”), through its agent Barclays Capital Inc. (“Agent”).

WHEREAS, (i) Dealer and Issuer entered into a letter agreement dated as of May 27, 2020, confirming the terms of a base issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Base Warrant Confirmation”), and (ii) Dealer and Issuer entered into a letter agreement dated as of June 2, 2020, confirming the terms of an additional issuer warrant transaction (as amended, modified, terminated or unwound from time to time, the “Additional Warrant Confirmation” and, together with the Base Warrant Confirmation, the “Warrant Confirmations”); and

WHEREAS, Issuer has requested to amend certain terms of the Warrant Confirmations as described herein;

NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:

1.Defined Terms.  Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Warrant Confirmations.

 

2.Amendments.  The parties hereby agree that the Warrant Confirmations are amended as follows by:

 

(a) removing Section 8(b)(ii) in its entirety;

 

(b) replacing the phrase “in excess of 538,000 Shares” in the first sentence of Section 8(f) of the Base Warrant Confirmation with the phrase “in excess of 1,235,291 Shares”;

 

(c)replacing the phrase “in excess of 80,700 Shares” in the first sentence of Section 8(f) of the Additional Warrant Confirmation with the phrase “in excess of 154,411 Shares”; and

 

(d)removing Section 8(k)(viii) in its entirety.

 

3.Representations and Warranties of Issuer.  Issuer represents and warrants to Dealer on the date hereof that:

 

(a)  excluding the representations and warranties of Issuer set forth in Section 7(a)(iii), Section 7(a)(viii), Section 7(a)(ix), Section 7(a)(x) and Section 7(a)(xi) of the Base Warrant Confirmation, each of the representations and warranties of Issuer set forth in Section 7(a) of the Base Warrant Confirmation, as if references therein to “Transaction” or “Confirmation” were each replaced with “Amendment Agreement”, are true and correct as of the date hereof;

 

(b) Issuer is not on the date hereof engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Issuer, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M, and shall not engage in any such distribution prior to the second Scheduled Trading Day following the date hereof;

 

(c) Issuer is not entering into this Amendment Agreement (i) on the basis of, and it is not aware of, any material non-public information with respect to itself or the Shares (ii) in anticipation of, in connection with, or to facilitate, a distribution of its securities, a self-tender offer or a third-party tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) in violation of the Exchange Act; and

 

(d) Issuer (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in

 

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evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.Continuing Effect.  Except as expressly set forth in Section 2 above, all of the terms and provisions set forth in each Warrant Confirmation shall remain and continue in full force and effect and are hereby confirmed in all respects.

 

5.Governing Law; Exclusive Jurisdiction; Waiver of Jury Trial.  This Amendment Agreement and all matters arising in connection with this Amendment Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).  

 

6.Counterparts.  This Amendment Agreement (and any amendment, modification and waiver in respect of it) may be executed and delivered in counterparts, each of which will be deemed an original.

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed as of the date first written above.

 

Yours sincerely,

BARCLAYS BANK PLC

By:   /s/ Faiz Khan
Name: Faiz Khan
Title:   Authorized Signatory

Agreed and Accepted By:

NUVASIVE, INC.

 

 

 

 

 

 

Exhibit 10.5

 

October 14, 2020

 

 

Dear Massimo,

Congratulations on your new full-time, exempt role of Executive Vice President, Global Business Units, with NuVasive, Inc. at our San Diego, California site.  Our Company’s continued success is dependent on Shareowners like you embodying our core values and working diligently to drive our priorities.  In this new role, you will report to me and we would like for you to begin your role in this capacity on October 14, 2020.

 

I am pleased to present you with changes to your compensation package as detailed below.

JOB TITLE, CAREER BAND & COMPENSATION
Job Title:  Executive Vice President, Global Business Units
Career Band: P13

Target Direct Compensation Package:

* Above table is for illustrative purposes only. You will continue to be eligible for the discretionary annual corporate bonus plan which depends upon the Company’s successful achievement of its operational goals and your overall performance against your goals. This bonus requires that you be employed in good standing on the payout date (which is generally the first week of March, in the following year). Bonus target percentage changes after April 1 of the plan year are adjusted to account for changes during the plan year.  Your Bonus Target amount shall equal the sum of your Eligible Earnings for the period of time in role multiplied by the respective Target Bonus Percentage for each bonus-eligible role you occupied during the plan year.

 

As outlined in the table above, we expect to provide you with a 2021 annual LTI award that has a grant face value of USD $900,000, which is expected to be made in March 2021.  This award is expected to be comprised of restricted stock units, performance stock units and performance cash awards, consistent with the annual LTI awards for other Company executives, and subject to cliff vesting on the third anniversary of the date of grant.  The value and form of award is subject to approval by NuVasive’s Board of Directors or its delegate and will be governed by the terms of the applicable grant agreements(s).

 

 

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In your new role, you will continue to be eligible for NuVasive’s executive benefits package, which currently includes an annual executive physical, executive financial planning and eligibility to participate in a deferred compensation plan.  Further, as a Band 13, you will continue to be eligible for benefits under the NuVasive Executive Severance Plan, in accordance with the terms thereof.  Also, subject to approval by NuVasive’s Board of Directors or its delegate, you will be eligible to receive an enhanced individual Change-in-Control Agreement with a cash severance multiplier of 2.0x, and which still requires a “double-trigger” of events before any respective severance benefits are payable.

 

Your employment with NuVasive remains “at-will.”  This means your employment is not for any specified period of time and can be terminated by you or NuVasive at any time for any reason, with or without cause or advance notice.  As a Shareowner (employee) of the Company, you will be required to comply with all Company policies and procedures.  You will also be subject to NuVasive’s stock ownership guidelines, which require that you acquire and maintain ownership of NuVasive stock with a value equal to two times (2x) your base salary within five years, subject to and in accordance with the terms of the guidelines.  

 

I look forward to your continued dedication to driving our purpose and priorities as we continue to build the future of NuVasive together. If you have any questions regarding your compensation, please don’t hesitate to reach out to me or your HR representative.

 

Sincerely,

/s/ Chris Barry

 

Chris Barry

Chief Executive Officer

 

 

I have read this offer letter in its entirety and agree with the terms and conditions of employment.  I understand and agree that my employment with NuVasive is at-will.

 

 

 

 

Exhibit 10.6

 

October 13, 2020

 

Brent J. Boucher

 

 

Dear Brent,

 

NuVasive, Inc. (NuVasive or the Company) is pleased to confirm our verbal offer for the full time, exempt position of Executive Vice President, Global Commercial. In this role, you will report to me, and your start date will be October 14, 2020. This offer and your at-will employment relationship with NuVasive will be subject to the terms and conditions of this letter agreement and the plan documents and agreements referenced herein.

 

Your initial base salary will be $475,000 (USD, annually), less applicable taxes and other withholdings, and paid in accordance with NuVasive’s normal payroll practices. Your next salary review will be in Q1 2022.

 

You will be eligible to participate in the 2020 Corporate Discretionary Bonus Plan at an annual target bonus opportunity of 75% of your base salary (with your base salary pro-rated to $101,597 based on your start date). This bonus requires that you be employed in good standing on the payout date (which is generally the first week of March, in the following year). The actual incentive bonus earned will be based on a combination of Company goals and individual goals and will be earned according to the terms and conditions of the plan.

 

Subject to approval by NuVasive’s Board of Directors or its delegate, you will be granted a one-time long-term incentive (LTI) award comprised of restricted stock units (RSUs) with a grant face value of USD $300,000 which will vest ratably over two years with 50% vesting on each of the first and second anniversaries of the grant date. The number of RSUs granted will be determined by dividing the grant face value by NuVasive’s closing stock price on the date of grant, which is anticipated to be October 14, 2020.

 

Additionally, we expect to provide you with a 2021 annual LTI award that has a grant face value of USD $900,000, which is expected to be made in March 2021.  This award is expected to be comprised of RSUs, performance stock units and performance cash awards, consistent with the annual LTI awards for other Company executives, and subject to cliff vesting on the third anniversary of the date of grant.  The value and form of award is subject to approval by NuVasive’s Board of Directors or its delegate and will be governed by the terms of the applicable grant agreements(s).

 

NuVasive provides an excellent benefits package. You will be eligible for medical, dental, life insurance, 401(k), and time off benefits. You will automatically be enrolled in the NuVasive 401(k) Plan with a pre-tax contribution of 3% of your eligible pay. If you do not wish to contribute to the 401(k) Plan, you must change your contribution rate to 0% once you receive your enrollment materials.

 

 

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Also, you will be eligible for NuVasive’s executive benefits package, which currently includes an annual executive physical, executive financial planning and eligibility to participate in a deferred compensation plan. You will also be eligible for benefits under the NuVasive Executive Severance Plan, in accordance with the terms thereof.  In addition, the Company will enter into its standard form of Indemnification Agreement with you, and you will be eligible for benefits under the Company’s Change in Control Agreement.  Your employment, and the compensation and benefits set forth herein, are subject to and conditioned upon your execution of the Company’s form of Proprietary Information, Inventions Assignment, and Restrictive Covenant Agreement (PIIA).  By accepting this offer, you expressly agree to the terms of the PIIA, including the requirements and obligations related to non-competition and non-solicitation.  

 

As we discussed, you will not be eligible to receive any relocation benefits.  As this is a global role, you are not required to relocate from your current residence in Pennsylvania, and you have indicated that you do not intend to relocate to California.  Accordingly, California law will not apply to your employment with the Company.

 

As a Shareowner (employee) of the Company, you will be required to comply with all Company policies and procedures.  You will also be subject to NuVasive’s stock ownership guidelines, which require that you acquire and maintain ownership of NuVasive stock with a value equal to two times (2x) your base salary within five years, subject to and in accordance with the terms of the guidelines.  

 

All compensation, benefits and employer policies and programs will be administered in accordance with NuVasive policies, plans and procedures, which may include waiting periods and other eligibility requirements to participate. NuVasive reserves the right to change or eliminate these policies and programs at any time during the course of your employment, without notice.

 

Your employment with the Company will not be for any specific term and may be terminated by you or by the Company at any time, with or without cause and with or without notice. The at-will nature of your employment described in the forgoing sentence shall constitute the entire agreement between you and the Company concerning the duration of your employment and the circumstances under which either you or the Company may terminate your at-will employment relationship.

 

This offer is contingent on your agreement to the PIIA, successful drug screen, background and reference checks and your production of all agreements between you and any previous employer that contain ongoing post-employment restrictive covenants. It is the parties' intent (as well as a condition of employment) that you abide by all enforceable post-employment restrictive covenants between you and your former employers, including any non-solicitation and/or non-competition provisions. Further, you agree that during the course of performing your duties on behalf of NuVasive, you will not use or disclose to NuVasive any confidential or proprietary information that may belong to others.

 

We are looking forward to having you join the NuVasive team!

 

Sincerely,

 

/s/ Chris Barry

 

Chris Barry

Chief Executive Officer

 

 

 

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I have read this offer letter in its entirety and agree with the terms and conditions of employment.  I understand and agree that my employment with NuVasive is at-will.

 

 

 

 

Exhibit 10.7

October 13, 2020

 

 

Dear Matt,

 

This letter agreement confirms the terms of your continuing employment relationship with NuVasive, Inc. (the “Company”).  The Compensation Committee of the Company’s Board of Directors (the “Board”) has approved the following amendments to your letter agreement dated October 17, 2018 (the “Employment Letter”), to reflect your transition from your current role as the Company’s President as of October 13, 2020, your continued employment with the Company in the capacity of a Special Advisor from October 14, 2020 through December 31, 2020, and your continued service as a consultant for the period January 1, 2021 through March 31, 2021.

  

1.  Title and Position.  Effective as of October 13, 2020, you will no longer serve as the Company’s President.  During the period October 14, 2020 through December 31, 2020 (the “Employment Period”), you will remain an “at-will” employee of the Company with the title of Special Advisor, reporting to me.  Effective December 31, 2020 (the “Termination Date”), your employment with the Company will cease, after which you will be engaged to provide non-exclusive consulting services to the Company for the period January 1, 2021 to March 31, 2021 (the “Consulting Period”).  Your consulting services will be governed by the terms and conditions of a general consulting and services agreement, to be entered into prior to the Termination Date.

 

2.  At-Will Employment.  During the Employment Period, your employment will remain “at-will” and subject to termination by the Company at any time for any reason, with or without cause or advance notice.  If during the Employment Period, your employment is terminated by the Company for “cause”, all rights and benefits hereunder shall cease effective as of such date of termination.  For purposes hereof, “cause” shall mean the following: (a) willful and repeated failure to satisfactorily perform your job duties; (b) willful and repeated refusal or failure to follow the reasonable and lawful directions of the Company’s Chief Executive Officer; (c) conviction of a crime involving moral turpitude; or (d) engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct with respect to your obligations or otherwise relating to the business of the Company, its affiliates or customers.  You shall be provided a period of at least twenty (20) days following receipt of written notice outlining with specificity all facts or omissions that the Company alleges give rise to a termination for “cause” pursuant to subsection (a) or (b) of this Section 2, during which period you may effect a cure of any curable actions or omissions forming the basis for the termination for “cause”.

 

3.Employment Compensation and Benefits.  During the Employment Period, unless your employment is earlier terminated as set forth in Section 2 hereof, you will (i) continue to be paid salary at your current rate (which, after the executive compensation reductions related to the COVID-19 pandemic, is currently $453,071 annually) in accordance with the Company’s standard payroll practices and (ii) continue to remain eligible for all Company health, welfare and other benefits as in effect on the date hereof.  

 

 

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4.  Severance Rights and Benefits.  Effective upon the Termination Date, unless your employment is earlier terminated as set forth in Section 2 hereof, you will be eligible to receive severance rights and benefits in accordance with the terms of the Company’s Amended and Restated Executive Severance Plan (the “Severance Plan”) associated with an involuntary termination without “cause” comprised of (i) 12 months of annual base salary, (ii) a pro-rated annual performance bonus for the year ended December 31, 2020, payable in March 2021 at the lesser of target or Board approved performance, (iii) an amount equal to the after-tax cost of health benefits for a period of 12 months, and (iv) outplacement services.  All such severance rights and benefits are subject to the terms of the Severance Plan and conditioned upon your execution of the Company’s form of separation agreement and general release, which includes a general release of claims against the Company.  You acknowledge and agree that effective as of the Termination Date, you will no longer be eligible for change of control benefits under your individual Change in Control Agreement.  Further, from and after the Termination Date, you acknowledge and agree that you will not be treated as an employee for purposes of any health and welfare benefits, and other benefits afforded to the Company’s employees and executives.

 

5. Amendment to PIIA; Restrictive Covenants.  You have agreed to enter into that certain Amendment No. 1 to Propriety Information, Inventions Assignment and Restrictive Covenant Agreement with the Company (the “Amended PIIA”) that provides for, among other things, non-solicitation and non-competition obligations during the Employment Period and Consulting Period, and through the two-year period ending December 31, 2022.  You acknowledge that you are entering the Amended PIIA intending to be legally bound and that the obligations of the Amended PIIA, including the non-solicitation and non-competition obligations, are reasonable.  

 

 

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6.  Modifications to Long-term Incentive Awards; Escrow Account.  As consideration for you entering into the Amended PIIA, the Company will modify the terms of certain long-term incentive (“LTI”) awards previously granted to you.  Your restricted stock unit (“RSU”) awards, performance restricted stock unit (“PRSU”) awards and performance cash awards that are subject to vesting during the two-year period ending December 31, 2022 (the “Modified Awards”), will be modified such that any and all service vesting conditions for such awards for such period are waived; provided, however, that such awards shall remain subject to and conditioned on satisfaction of any and all applicable financial performance conditions and the Amended PIIA and such modification shall not shorten any performance period applicable to such awards or accelerate the settlement date of any such awards prior to the end of the performance period.  Further, the Repayment/Forfeiture provision contained in each of the applicable award agreements for each Modified Award shall be modified such that the definition of “Prohibited Conduct” contained in Section 10.3(a) of each RSU and PRSU award agreement and Section 9.3(a) of each performance cash award agreement shall mean conduct in violation of the Amended PIIA.  Effective as of the Termination Date, any portion of any of your outstanding LTI awards that are subject to vesting after December 31, 2022, shall terminate unvested and be forfeited.  To secure your compliance with the obligations of the Amended PIIA, you agree to enter into an agreement providing for the deposit of (i) all net shares issuable upon vesting of your Modified Awards that are RSU awards and PRSU awards (following the withholding of shares to satisfy taxes with respect thereto) and (ii) all cash amounts payable upon vesting of your Modified Awards that are performance cash awards (following the withholding of cash to satisfy taxes with respect thereto), after the date hereof, into an escrow account.  Subject to your compliance with the Amended PIIA, the shares and cash amounts held in the escrow account will be released to you promptly following December 31, 2022.  Notwithstanding the foregoing, if prior to such release from the escrow account there is a Change in Control of the Company (as defined in the 2014 Equity Incentive Plan), the shares and cash in the escrow account shall be released to you promptly following the Change in Control (subject to your compliance with the Amended PIIA).  This Section 6 shall apply to all of your Modified Awards, and except as so modified by this Section 6, your Modified Awards shall continue in full force and effect in accordance with the terms of the award agreements and the equity plan documents under which the awards were granted.

 

7.Consulting Agreement.  You have agreed to enter into that certain general consulting and services agreement (the “Consulting Agreement”) pursuant to which you will provide consulting services during the Consulting Period, for which you will receive monthly compensation of $20,000.

 

8.Choice of Law and Venue.  This letter agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to conflict of laws and all disputes arising under or relating to this letter agreement shall be brought and resolved solely and exclusively in the State of Delaware.

 

 

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9.Representation by Independent Legal Counsel.  You represent and warrant that you have been individually represented by independent legal counsel in negotiating the terms of this letter agreement and the agreements referenced herein, including the Amended PIIA.  You represent and warrant that you have engaged such legal counsel in accordance with California Labor Code Section 925 with the specific intent to designate the substantive laws of the State of Delaware as the choice of law to be applied to this letter agreement and the Amended PIIA and to designate the State of Delaware for venue and jurisdiction.

 

10.Conflict.  In the event of any conflict between the provisions of this letter agreement and the provisions of the Employment Letter, the provisions of this letter agreement shall govern.

 

Please sign below and return the fully executed letter agreement to Lucas Vitale, Chief Human Resources Officer.

 

Sincerely,

 

/s/ Chris Barry

 

Chris Barry

Chief Executive Officer

 

 

Acknowledged and Agreed

 

 

 

Exhibit 10.8

GENERAL CONSULTING AND SERVICES AGREEMENT

 

This General Consulting and Services Agreement (“Agreement”) is effective as of October 13, 2020 (the “Effective Date”) by and between NuVasive, Inc. (“NuVasive” or the “Company”) and Matthew Link (“Consultant”) (individually referred to as a “Party” or collectively the “Parties”).

 

WHEREAS, the Parties have entered into that certain letter agreement dated as of even date herewith (the “Letter Agreement”), which sets forth the terms of Consultant’s transition from his current role as the Company’s President as of October 13, 2020, his continued employment with the Company in the capacity of a Special Advisor during the period October 14, 2020 through December 31, 2020, and his continued service as a consultant for the period January 1, 2021 through March 31, 2021; and

 

WHEREAS, in accordance with the Letter Agreement, Consultant has agreed to provide services to the Company as a consultant for the period January 1, 2021 through March 31, 2021 (the “Consulting Term”); and

 

WHEREAS, NuVasive desires to retain Consultant pursuant to this Agreement to, among other things, assist the Company during the Consulting Term with a smooth transition of his former responsibilities as President and provide certain operational and business consulting services, as more fully described herein.

 

NOW, THEREFORE, the Parties agree as follows:

 

1.Engagement.  During the Consulting Term (unless this Agreement is terminated earlier), Consultant shall provide non-exclusive consulting services to the Company, reporting to the Company’s Chief Executive Officer, pursuant to the terms of this Agreement. The Parties agree and acknowledge that the Consulting Term is intended to follow immediately upon the end of Consultant’s service as a Company employee. Consultant shall receive consideration for consulting services provided during the Consulting Term only as set forth in this Agreement.

 

2.Services To Be Provided. The Company and Consultant agree that during the Consulting Term, Consultant shall perform the Services as specified in Exhibit A (the “Services”). Consultant represents, warrants, and covenants that Consultant will perform the Services under this Agreement in a timely, professional, and workmanlike manner and that all materials, information and deliverables provided to the Company will comply with: (i) any requirements set forth in the Services, (ii) all Company policies, including the Code of Conduct, and (ii) applicable law. The Services will be provided offsite at a location chosen by Consultant.

 

3.Consideration. In return for the promises and covenants by the Parties, and Consultant’s compliance with this Agreement, the Company agrees to provide Consultant with the following consideration:

 

(a)Compensation. During the Consulting Term, the Company will pay to Consultant, as full and complete payment for the performance of the Services, the compensation described in Exhibit A, in the time and manner of payment described in Exhibit A. Consultant acknowledges that he is not entitled to any other compensation or remuneration of any kind whatsoever for the Services unless otherwise set forth in this Agreement.

 

(b)Expenses. Provided that Consultant provides accounts or invoices evidencing Consultant’s expenses, the Company shall reimburse Consultant for all reasonable pre-approved out-of-pocket expenses incurred by Consultant in connection with the performance of the Services.

 

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4.Relationship of Parties.

 

(a)Independent Consultant. During the Consulting Term, Consultant, in his capacity as such, shall be at all times an independent consultant and shall not be an agent or employee of the Company, and shall have no authority to bind the Company by contract or otherwise in any matter whatsoever, unless otherwise specifically authorized in writing by the Company’s Chief Executive Officer or his designee. Consultant will perform the Services under the general direction of the Company’s Chief Executive Officer, but shall retain the discretion to determine both the manner and means by which the Services are to be accomplished. Unless specifically set forth, Consultant, in his capacity as such, shall not be considered as having any employee status or as being entitled to participate in any commission, bonus, health and welfare benefits, equity plans, or other arrangements the Company may from time-to-time provide to its employees or executives.

 

(b)Employment Taxes and Benefits. Consultant will report as self- employment income all compensation received by Consultant pursuant to this Agreement, and will be issued an IRS Form 1099 regarding any payments he receives from the Company pursuant to this Agreement. Consultant is solely responsible for payment of all income, social security, employment- related, or other taxes incurred by Consultant under this Agreement. Consultant further understands and agrees that should any amount of this payment pursuant to this Agreement become taxable for any reason, or should federal, state, or local taxes or penalties be assessed on any amount paid by the Company to Consultant pursuant to this Agreement, Consultant shall hold the Company harmless from and against such assessments for his obligation to pay taxes or assessments, and shall be solely responsible for payment of all such taxes or assessments, regardless of whether they are assessed against Consultant or the Company.

 

5.Restrictive Covenants. Consultant affirms continued application of, and agreed compliance with, the Proprietary Information and Inventions Assignment and Restrictive Covenant Agreement previously executed by Consultant on June 6, 2014, as amended effective October 13, 2020 (the “PIIA Agreement”). The Parties acknowledge and agree, however, that Consultant may provide consulting services to other companies and/or be employed part-time or full-time by another employer during the Consulting Term, provided that doing so doesn’t utilize or rely on the Company’s Proprietary Information (as defined in the PIIA Agreement), or violate the restrictive covenant obligations as set forth in the PIIA Agreement.

 

6.Indemnification. The Company will indemnify and hold harmless Consultant from and against any and all claims, suits, actions, demands, and proceedings against Company and all losses, costs, and liabilities directly related thereto, arising out of or related to: (i) any violation of Company’s obligations that cause harm in reputation or financial harm to Consultant; (ii) any negligence on behalf of Company; or (iii) any breach of this Agreement by Company.

 

 

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7.Consultant’s Representations and Obligations.

 

(a)Compliance with Laws. Consultant represents and warrants that in providing any services pursuant to this Agreement he will comply with all applicable federal, state, local, municipal, regulatory and/or governmental agency laws, statutes, regulations, edicts, guidance, directives, and ordinances applicable to those services, including, without limitation, (i) the U.S. Health Insurance Portability and Accountability Act (HIPAA), (ii) all federal and state health care anti-fraud, anti- kickback and abuse laws such as 42 U.S.C. § 1320a-7b(b); (iii) the Federal Food, Drug, and Cosmetic Act and its implementing regulations; (iv) all rules, regulations, and guidance of the U.S. Food and Drug Administration (FDA); and (v) all rules, regulations and guidance of the Center for Medicare and Medicaid Services (CMS). Without limiting the generality of the foregoing, except to the extent allowed by applicable law, in providing services under this Agreement, Consultant will make no offer, payment or other inducement, whether directly or indirectly, to induce the referral of business, the purchase, lease or order of any item or service, or the recommending of the purchase, lease or order of any item or service.

 

(b)Debarment. Consultant represents and warrants that Consultant has not been nor is debarred, suspended, excluded or otherwise ineligible under Section 306 of the Federal Food, Drug and Cosmetic Act (as amended by the Generic Drug Enforcement Act of 1992), 21 U.S.C. § 336, or listed on any applicable federal exclusion list including the then- current: (i) HHS/OIG List of Excluded Individuals/Entities (http://www.oig.hhs.gov); (ii) General Services Administration’s List of Parties Excluded from Federal Programs (http://www.epls.gov); and (iii) FDA Debarment List (http://www.fda.gov/ora/compliance_ref/debar/). A breach of this provision shall be sufficient cause for the Company to terminate this Agreement immediately without notice or cure.

 

(c)Additional Obligations. Consultant agrees and warrants that Consultant will cooperate fully with NuVasive personnel in all respects with regard to performing the Services under this Agreement, including participating in requested teleconferences, meetings, and travel upon reasonable request. Consultant further agrees to maintain all records required to substantiate Consultant’s compliance with the provisions of this Agreement and with all laws, regulations, policies, procedures and guidelines related to Consultant’s performance of Consultants Services and other obligations pursuant to this Agreement.  

 

8.Consulting Term and Termination.

 

(a)Consulting Term. The Consulting Term may be extended or modified only by mutual written agreement of the Parties.  The Parties agree that the Consulting Term is intended to commence immediately upon the end of Consultant’s time of service as a Company employee, such that there is no break in Consultant’s status as a service provider to Company.

 

 

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(b)Termination by the Company. Unless stated otherwise in this Agreement, the Company may terminate this Agreement: (i) upon the inability of Consultant to render the Services to the Company by reason of death or Disability (as defined in the Company’s 2014 Equity Incentive Plan); (ii) for Cause (as defined below); or (iii) immediately and without notice or a right to cure for a material breach of this Agreement or material violation of any of the restrictive covenants contained in the PIIA Agreement. For purposes of this Agreement, “Cause” means Consultant’s (a) willful and repeated failure to satisfactorily perform the Services; (b) willful and repeated refusal or failure to follow the reasonable and lawful directions of the Company’s Chief Executive Officer pursuant to this Agreement; (c) conviction of a crime involving moral turpitude; or (d) engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct with respect to the Services.  Consultant shall be provided a period of at least twenty (20) days following receipt of written notice outlining with specificity all facts or omissions that the Company alleges give rise to a termination for Cause pursuant to subsection (a) or (b) of this Section 8(b), during which period Consultant may effect a cure of any curable actions or omissions forming the basis for the termination for Cause.

 

(c)Termination by Consultant. Consultant may not terminate this Agreement during the Consulting Term except or unless Company materially breaches this Agreement. If Consultant believes that the Company materially breached this Agreement, Consultant will notify Company in writing and allow the Company to cure any material breach within ten (10) calendar days after delivery of Consultant’s written notice.

 

(d)Conduct Following Expiration or Termination. Upon expiration of the Consulting Term or termination of this Agreement, Consultant shall promptly: (i) cease performing the Services; (ii) deliver to the Company all Company documents, work product and other materials whether or not complete, prepared by or on behalf of Consultant in the course of performing the Services; and (iii) remove any Consultant-owned property, equipment or materials located at the Company’s locations. If this Agreement is terminated before the expiration of the Consulting Term pursuant to either Subsection 8(b)(ii) or 8(b)(iii) hereof, Consultant shall be entitled to cash compensation pro-rated based on the Services performed up to the date of termination as specified in the notice of termination, without any additional compensation or benefits payable thereto.  If this Agreement is terminated before the expiration of the Consulting Term other than pursuant to Subsection 8(b)(ii) or 8(b)(iii) hereof, Consultant shall be entitled to cash compensation for what Consultant would have received during the remainder of the Consulting Term but for such earlier termination.

 

(e)No Election of Remedies. The election by the Company or Consultant to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity shall survive any termination.

 

(f)Continuing Obligations under Agreement. Upon the expiration of the Consulting Term or termination of this Agreement for any reason each Party will be released from all obligations to the other arising from this Agreement after the date of expiration or termination, except that expiration of the Consulting Term or termination of this Agreement will not relieve Consultant or the Company from any liability arising from any breach of this Agreement.

 

9.General.

 

(a)Binding Effect; Successors; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, legal representatives, successors, and assigns. This Agreement is personal in nature, and Consultant shall not, without the prior written consent of the Company, assign or transfer this Agreement or any rights or obligations hereunder.

 

 

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(b)Non Disparagement. The Parties agree that each Party will not make any voluntary statements, written or oral, or cause or encourage others to make any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the other Party. The foregoing shall not be violated by truthful statements in response to legal process, required governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings).

  

(c)Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to conflict of laws and all disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the State Court located in Delaware. Should any legal action be commenced in connection with this Agreement, the prevailing party in such action shall be entitled to recover, in addition to court costs, such amount as the court may adjudge as reasonable attorneys’ fees.

 

(d)Complete Understanding; Modification. This Agreement contains all of the Parties’ contractual obligations to each other as it retains to the subject matter of this Agreement, and cannot be modified or amended unless the modification or amendment is in a writing signed by both Parties. The provisions of this Agreement supersede all prior negotiations, proposals, agreements and understandings regarding the subject matter of this Agreement.

 

(e)Severability. It is the desire and intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Agreement shall be adjudicated to be invalid or unenforceable, this Agreement shall be deemed amended to delete such provisions or portion adjudicated to be invalid or unenforceable, such amendment to apply only with respect to the operation of such provisions in the particular jurisdiction in which such adjudication is made.

 

(f)Construction of Agreement. This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a Party merely because that Party (or Party’s legal representative) drafted this Agreement. Any ambiguity contained in this Agreement shall be construed to permit the Parties to comply with applicable law. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement. Unless the context requires otherwise, (a) gender (or lack of gender) of all words in this Agreement includes the masculine, feminine, and neuter, and (b) the word “including” means “including, without limitation.”

 

(g)Waiver. The waiver or failure of a Party to exercise in any respect any right provided for under this Agreement shall not be deemed to be a waiver of any future right under this Agreement.

 

(h)Counterparts/Signature Pages. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered by a fax machine, telecopy machine, or via electronic mail in .pdf or equivalent format shall be binding to the same effect as an original signature page.

 

(i)Represented by Independent Counsel. Consultant acknowledges and agrees that Consultant has read the Agreement in its entirety, and has been represented by independent legal counsel in negotiating the terms of this Agreement, including, but not limited to the Delaware choice of law and Delaware choice of forum provisions, and the restrictive covenants.

 

 

 

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[Signatures Page Follows]

 

 

 

 

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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date.

 

 

CONSULTANT

 

/s/ Matthew Link
Matthew Link

 

Date:October 13, 2020

 

 

NUVASIVE, INC.

 

By:/s/ Nathaniel Sisitsky

Nathaniel Sisitsky

 

Title:SVP, General Counsel

 

Date:October 13, 2020

 

 

 

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EXHIBIT A

 

Services and Compensation

 

Services: In performing the Services, Consultant shall report and be directly responsible to the Company’s Chief Executive Officer (CEO) or such designee as the CEO deems appropriate in his discretion, and is expected to perform no more than approximately eight (8) hours of Services per week. The Services contemplated by the Agreement to be provided during the Consulting Term shall include the following:

 

 

At all times, Consultant will observe the Company’s rules and regulations with respect to conduct, privacy, health, safety, anti-harassment/discrimination/retaliation and protection of persons and property.

 

During the Consulting Term, Consultant will perform the Services under the general direction of the Company, but Consultant will determine in Consultant’s discretion, the manner and means by which the Services are to be accomplished, and such services shall be performed by Consultant as reasonably convenient and at times that do not interfere with any other employment or professional commitments of Consultant. The Services to be performed under this Agreement are personal in nature and may not be subcontracted to or performed by any agent or representative of Consultant absent the Company’s advanced written consent.

 

Tools and Materials: Consultant will use Consultant’s own equipment and materials to perform the Services. Consultant shall not have general access to the Company’s property, including its facilities, computers, laptops, software or networks, unless the Board, in its sole discretion, deems such access necessary for Consultant to perform the Services. Notwithstanding the foregoing, subject to the Company’s discretion, Consultant may continue to use his Company issued computer and cell phone, and shall have access to the Company network, provided such use is reasonable and customary for the performance of the Services and complies with all Company policies with respect thereto.

 

Compensation: During the Consulting Term, Consultant will receive a fixed sum in the amount of $20,000 dollars (US) per month during the Consulting Term.  

 

Except as set forth above, no other compensation or benefits will be due to, or paid to, Consultant by NuVasive with respect to Consultant’s performance of Services under this Agreement.

 

Exhibit 10.9

AMENDMENT NO. 1 TO PROPRIETARY INFORMATION, INVENTIONS ASSIGNMENT AND RESTRICTIVE COVENANT AGREEMENT

 

THIS AMENDMENT NO. 1 TO PROPRIETARY INFORMATION, INVENTIONS ASSIGNMENT AND RESTRICTIVE COVENANT AGREEMENT (this “Amendment”) is made and entered into by and between Matthew Link (“Shareowner”) and NuVasive, Inc. (the “Company”) (collectively “Parties”), effective October 13, 2020 (the “Effective Date”).

 

W I T N E S S E T H:

 

WHEREAS, Shareowner previously entered into that certain Proprietary Information, Inventions Assignment and Restrictive Covenant Agreement dated June 6, 2014 (the “PIIA”); and

 

WHEREAS, the Parties have entered into that certain letter agreement dated as of even date herewith, which sets forth the terms of Shareowner’s transition from his current role as the Company’s President as of October 13, 2020, his continued employment with the Company in the capacity of a Special Advisor during the period October 14, 2020 through December 31, 2020 (the “Employment Period”), and his continued service as a consultant for the period January 1, 2021 through March 31, 2021 (the “Consulting Period”), including the compensation and benefits associated therewith; and

 

WHEREAS, during Shareowner’s employment with the Company through the date hereof, Shareowner has had, and through the duration of the Employment Period and Consulting Period, Shareowner will continue to have, access to information concerning the Company and its employees, operations, vendors, and customers that is Proprietary Information (as defined in the PIIA); and

WHEREAS, the Parties desire to amend the PIIA on the terms and conditions set forth in this Amendment (as so amended, the “AMENDED PIIA”).

 

NOW, THEREFORE, in consideration for Shareowner’s continued employment with the Company during the Employment Period and engagement as a Consultant during the Consulting Period, including the compensation and benefits associated therewith, as well as Shareowner’s continued access to Proprietary Information, the Parties agree as follows:

1.Non-Solicitation.  Effective as of the Effective Date, Section VI of the PIIA (“Non-Solicitation of Shareowners”) shall be deleted in its entirety and superseded by the following:

 

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“VI.Non-solicitation

 

I understand that during my engagement with the Company, including the Consulting Period, I will have access to and obtain knowledge of the Company’s Proprietary Information (including trade secrets as defined herein), and that the Company will be irreparably harmed if I were to use that Proprietary Information - whether directly or indirectly - to the detriment of the Company, and its actual or potential business and/or human resources. Therefore, I agree that during the term of my engagement, including the Consulting Period, and through and including the end of the two (2) year period immediately following the Employment Period, I will not for any purpose other than for the benefit of the Company, directly or indirectly knowingly solicit (i) any person to terminate that person’s employment or contractual relationship with the Company or to breach that person’s employment agreement or other contractual agreement or relationship with the Company, or to perform any services for or become employed by any Conflicting Organization (as defined below), or (ii) any Customer on behalf of a Conflicting Organization (as defined below) with respect to activities in the Field (as defined below).  “Solicit” means any comments, conduct, contact, or activity that would, or in a reasonable person’s opinion is intended to, influence a person’s decision to terminate that person’s employment or contractual relationship with the Company or to breach that person’s employment agreement or other contractual agreement or relationship with the Company, or to perform any services for or become employed by any business engaged in any line or type of business conducted by the Company or any of its subsidiaries or affiliates during the period in which I was employed.  “Customer” means any hospital (including but not limited to surgery centers, medical centers or other healthcare institutions and their employees), or physician (or other health care practitioners including but not limited to the employees of any surgeon or other healthcare practitioners) that purchases or otherwise uses, orders or approves the use or ordering of, Company products or services.”

 

2.Non-Competition.  Effective as of the Effective Date, Section VII of the PIIA (“Non-competition (Not Applicable to California Based Shareowners)” shall be deleted in its entirety and superseded by the following:

 

“VII.Non-Competition

 

In order to protect the Company' s Proprietary Information and trade secrets, and the valuable goodwill developed by the Company, I agree that during my engagement with the Company, including the Consulting Period, and through and including the end of the two (2) year period immediately following the Employment Period, I will not: (i) directly or indirectly, own, operate, control or participate in the ownership, operation or control, build, design, finance, acquire, lease, operate, manage, invest in, or otherwise affiliate myself with a Conflicting Organization (as defined below); and/or (ii) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor, or otherwise for a Conflicting Organization. Provided, however, this restriction shall not prevent me from purchasing or owning directly or beneficially as a passive investment, less than five percent (5%) of any class of the publicly traded securities of any corporation.  

 

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A Conflicting Organization for purposes hereof shall mean any person, group of persons, or organization (collectively, an “Organization”) that is engaged in research on, consulting regarding, or development, production, marketing or selling of any product or service for (i) spine surgery procedures, including but not limited to implants, instruments, fixation, and biologics; and/or (ii) neuromonitoring, including monitoring technology, accessories and disposables and the provision of neuromonitoring services (collectively, the “Field”). Without limiting the foregoing, each of the following Organizations are Conflicting Organizations for purposes hereof:  Globus Medical, Inc.; Orthofix Medical Inc., SeaSpine Holdings Corporation, and Alphatec Holdings, Inc.  Further, the spine business units of each of Johnson & Johnson, Stryker Corporation, Medtronic plc, and Zimmer Biomet Holdings, Inc., shall each be considered a Conflicting Organization for purposes hereof, it being understood that serving as an employee of, or otherwise providing services to, any such organization in a division or business that does not engage in activities in the Field shall not be prohibited hereunder.  Conflicting Organizations shall include the foregoing Organizations, as well as any subsidiary or affiliate of the foregoing Organizations and their successors and assigns, to the extent they engage in activities in the Field.

 

Notwithstanding the foregoing, the Company shall not limit the Shareowner’s ability to (i) directly or indirectly, own, operate, control or participate in the ownership, operation or control, build, design, finance, acquire, lease, operate, manage, invest in, or otherwise affiliate; and/or (ii) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor, or otherwise for Organization(s) whose business is limited to enabling services and/or technologies, management services, infrastructure, and/or support pertaining to the Field, provided that such activities do not compete with product or service that is currently offered by the Company to Customers or contemplated to be offered by the Company to Customers in its current product roadmap and/or strategic plan.

 

3.  Mutual Arbitration Agreement.  Effective as of the Effective Date, Section XIII of the PIIA (“Mutual Arbitration Agreement”) shall be deleted in its entirety and superseded by “Intentionally Omitted” such that Section XIII of the PIIA shall have no further force or effect.

 

4.  Governing Law.  Effective as of the Effective Date, Section XVI of the PIIA (“Governing Law”) shall be deleted in its entirety and superseded by the following:

 

“XVII.GOVERNING LAW, VENUE AND JURISDICTION

 

This Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to conflict of laws and all disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the State of Delaware. Shareowner irrevocably waive my right, if any, to have any disputes with the Company arising out of or related to this Agreement decided in any jurisdiction or venue other than a state court in the State of Delaware.  Shareowner hereby irrevocably consents to the personal jurisdiction of the state courts in the State of Delaware for the purposes of any action arising out of or related to this Agreement.”

 

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5.Covenant Not To Sue.  Shareowner irrevocably agrees not to sue the Company in any jurisdiction other than a state court in the State of Delaware for the purposes of any action arising out of or related to the AMENDED PIIA.  Shareowner further agrees not to assist, aid abet, encourage or be a party to, or participate in the commencement or prosecution of any civil lawsuit or action by any third-party to the AMENDED PIIA arising out of or related to the AMENDED PIIA in any jurisdiction or venue other than a state court in the State of Delaware.  However, this provision shall not prohibit or restrict Shareowner from being a witness or otherwise providing evidence in any action pursuant to a valid court order or subpoena.

 

6.  Post-Employment Disclosure.  Shareowner agrees that during the term of the restrictions described in Section 1 and Section 2 of this Amendment, Shareowner will immediately inform the Company if Shareowner has accepted an offer of employment from any new employer, and shall immediately disclose to the Company in writing the identity of the new employer, the job title of Shareowner’s new position, and a description of all services that Shareowner will be performing on behalf of the new employer.

 

7.Representation by Independent Legal Counsel.  Shareowner represents and warrants that Shareowner has been individually represented by independent legal counsel in negotiating the terms of this Amendment and the AMENDED PIIA, including, but not limited to, the provisions relating to Governing Law, Venue and Jurisdiction.  Shareowner has engaged such legal counsel in accordance with California Labor Code Section 925 with the specific intent to designate the substantive laws of the State of Delaware as the choice of law to be applied to this Amendment and the AMENDED PIIA and to designate the State of Delaware for venue and jurisdiction, in accordance with Section 4 of this Amendment.

 

8.Obligations Unconditional.  The obligation of the Parties to perform the terms of the AMENDED PIIA are unconditional and do not depend on the performance or non-performance of any terms, duties, or obligations not specifically recited in the AMENDED PIIA. Shareowner irrevocably waives Shareowner’s right to challenge the enforceability or validity of any portion of the AMENDED PIIA, and it shall not be a defense to any claim brought against Shareowner by the Company that the Company has not pursued legal action against any other person or entity, even if that person or entity is identically or similarly situated to Shareowner.  If the Company pursues legal action against Shareowner to enforce the Amended PIIA, Shareowner shall be responsible for all attorneys’ fees, costs and expenses incurred by the Company in connection therewith.

 

9.Miscellaneous.

 

(a)Entire Agreement. Except as expressly set forth herein, the AMENDED PIIA sets forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement. No modification of or amendment to the AMENDED PIIA shall be effective unless in writing signed by the Parties. Except as specifically modified by the AMENDED PIIA, the PIIA shall remain in full force and effect in accordance with its original terms.

 

(b)Counterparts; Electronic Signatures. This Amendment may be executed (including via electronic signature) in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 

 

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SHAREOWNER ACKNOWLEDGES THAT SHAREOWNER HAS READ THE AMENDED PIIA CAREFULLY AND UNDERSTANDS ITS TERMS. SHAREOWNER ACKNOWLEDGES THAT SHAREOWNER HAS BEEN INDIVIDUALLY REPRESENTED BY INDEPENDENT LEGAL COUNSEL IN NEGOTIATING THE TERMS OF THE AMENDED PIIA, INCLUDING THE PROVISIONS RELATING TO GOVERNING LAW, VENUE AND JURISDICTION, AND SHAREOWNER ACCEPTS THE OBLIGATIONS THAT THE AMENDED PIIA IMPOSES UPON SHAREOWNER WITHOUT RESERVATION.

 

IN WITNESS WHEREOF

 

SHAREOWNER

 

/s/ Matthew Link
Matthew Link

 

Date:October 13, 2020

 

 

NUVASIVE, INC.

 

By:/s/ Nathaniel Sisitsky

Nathaniel Sisitsky

 

Title:SVP, General Counsel

 

Date:October 13, 2020

 

 

Exhibit 31.1

CERTIFICATION

I, J. Christopher Barry, certify that:

 

 

 

 

 

Exhibit 31.2

CERTIFICATION

I, Matthew K. Harbaugh, certify that:

 

 

 

 

 

Exhibit 32.1

CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of NuVasive, Inc. (the “Company”) on Form 10-Q for the three months ended September 30, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Quarterly Report”), I, J. Christopher Barry, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

1.      The Quarterly Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.      The information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

In connection with the Quarterly Report, I, Matthew K. Harbaugh, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

1.      The Quarterly Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.      The information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

 

SEC Filings