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As filed with the Securities and Exchange Commission on May 11, 2004

Registration No. 333-113344



SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


AMENDMENT NO. 4
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933


NuVasive, Inc.
(Exact name of Registrant as specified in its charter)

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
  3841
(Primary Standard Industrial
Classification Code Number)
  33-0768598
(I.R.S. Employer
Identification Number)

10065 Old Grove Road
San Diego, California 92131
(858) 271-7070

(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)


Alexis V. Lukianov
Chairman, President and Chief Executive Officer
NuVasive, Inc.
10065 Old Grove Road San Diego, California 92131
(858) 271-7070
(Name, address, including zip code, and telephone number,
including area code, of agent for service)


Copies to:

Michael S. Kagnoff, Esq.
Ross L. Burningham, Esq.
Jason M. Hannon, Esq.
Heller Ehrman White & McAuliffe LLP
4350 La Jolla Village Drive, 7th Floor
San Diego, California 92130-2332
(858) 450-8400
  John A. de Groot, Esq.
Taylor L. Stevens, Esq.
Kenji L. Funahashi, Esq.
Morrison & Foerster LLP
3811 Valley Centre Drive, Suite 500
San Diego, California 92122-1246
(858) 720-5100

        Approximate date of commencement of proposed sale to the public:    As soon as practicable after this Registration Statement becomes effective.

        If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. o

        If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

        If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

        If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

        If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. o


CALCULATION OF REGISTRATION FEE


Title of Each Class of Securities to be Registered
  Proposed Maximum Aggregate Offering Price(1)
  Amount of Registration Fee

Common Stock, par value $.001 per share   $97,175,000   $12,312(2)

(1)
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.

(2)
Previously paid.

        The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.





EXPLANATORY NOTE

        NuVasive, Inc. has prepared this Amendment No. 4 to the Registration Statement on Form S-1 (No. 333-113344) for the purposes of filing with the Securities and Exchange Commission two additional exhibits to the Registration Statement and adding disclosure to Item 15 of Part II of the Registration Statement. This Amendment No. 4 does not modify any provision of the Prospectus that forms a part of the Registration Statement and accordingly such Prospectus has not been included herein.




Part II: Information Not Required in Prospectus

Item 13. Other Expenses of Issuance and Distribution

        The following table sets forth the costs and expenses, other than underwriting discounts and commissions, to be paid by us in connection with the sale of the common stock being registered. All amounts other than the SEC registration fee, the NASD filing fees and the Nasdaq National Market listing fee are estimates.

 
  Amount
to be Paid

SEC registration fee   $ 12,312
NASD filing fee     10,218
Nasdaq National Market application fee     5,000
Nasdaq National Market entry fee     95,000
Nasdaq National Market annual fee (prorated for 2004)     19,575
Legal fees and expenses     800,000
Accounting fees and expenses     500,000
Printing and engraving     200,000
Transfer agent and registrar fees     20,000
Miscellaneous     37,895
   
 
Total

 

$

1,700,000
   

Item 14. Indemnification of Directors and Officers

        Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act").

        As permitted by the Delaware General Corporation Law, our restated certificate of incorporation includes a provision that eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director's duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases) or (4) for any transaction from which the director derived an improper personal benefit.

        As permitted by the Delaware General Corporation Law, our restated bylaws provide that (1) we are required to indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (2) we may indemnify our other employees and agents as set forth in the Delaware General Corporation Law, (3) we are required to advance expenses, as incurred, to our directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions and (4) the rights conferred in the restated bylaws are not exclusive.

        We have entered into indemnification agreements with each of our directors and executive officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in our restated certificate of incorporation and to provide additional procedural protections. We also intend to enter into indemnification agreements with any new directors and executive officers in the future. At present, there is no pending litigation or proceeding involving any of our directors, officers, employees, or agents, other than the matters in Tennessee and California involving Medtronic, Inc., where indemnification by us will be required or permitted, and we are not

II-1



aware of any threatened litigation or proceeding, other than the Medtronic litigation, that may result in a claim for such indemnification. See "Risk Factors—We are currently involved in costly employment litigation and an adverse outcome may prevent certain of our employees from working for us or require us to pay significant damages," for further detail regarding the Medtronic litigation matters.

        Section 8 of the Underwriting Agreement provides for indemnification by the underwriters of the officers, directors and controlling persons of the Registrant against certain liabilities, including liabilities arising under the Securities Act, in connection with matters specifically provided in writing by the underwriters for inclusion in the Registration Statement.

        The indemnification provisions in our restated certificate of incorporation, restated bylaws and the indemnification agreements entered into between us and each of our directors and executive officers may be sufficiently broad to permit indemnification of our directors and executive officers for liabilities arising under the Securities Act.

        We have obtained liability insurance for our officers and directors.

        Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere in this prospectus:

Document

  Exhibit
Number

Form of Underwriting Agreement   1.1  
Form of Restated Certificate of Incorporation of Registrant   3.3  
Form of Restated Bylaws of Registrant   3.5  
Form of Indemnification Agreement for Directors and Officers   10.36

Item 15. Recent Sales of Unregistered Securities

        From January 1, 2001 through March 31, 2004, we have issued the following securities that were not registered under the Securities Act of 1933, as amended (the "Securities Act"). The offers, sales and issuances of these securities were deemed to be exempt from registration under the Securities Act in reliance on Section 4(2) of the Securities Act, and/or Regulation D and the other rules and regulations promulgated thereunder, or Rule 701 promulated under Section 3(b) of the Securities Act as transactions not involving a public offering or transactions under compensatory benefit plans and contracts relating to compensation as provided under such Rule 701. The recipients of securities in each such transaction represented their intention to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the share certificates and warrants issued in such transactions.

II-2


Investor

  Number of Shares Underlying Warrants
Enterprise Management Partners, L.L.C   *
Enterprise Partners Annex Fund IV, L.P.   64,563
Enterprise Partners Annex Fund IV-A, L.P.   13,293
Kleiner Perkins Caufield & Byers VIII, L.P.   73,590
KPCB VIII Founders Fund, L.P.   4,267
Domain Partners IV, L.P.   49,655
DP IV Associates, L.P.   1,191

II-3


Enterprise Partners Annex Fund IV, L.P.   SSI Spinal Solutions
Enterprise Partners Annex Fund IV-A, L.P.   James Gleason
Kleiner Perkins Caufield & Byers VIII, L.P.   Anthony Ross
KPCB VIII Founders Fund, L.P.   Jeff Hughes
Domain Partners IV, L.P.   R. Jay Thabet, Jr.
Caisse de depot et placement du Quebec   Integral Capital Partners VI, L.P.
A.M. Pappas Life Science Ventures II, L.P.   Ronald C. Childs
William Blair Capital Partners VII, L.P.   Tom L. Meyer III
William Blair Capital Partners VII QP, L.P.   Gregg Lacoste
Johnson & Johnson Development Corporation   William Houston, Jr.
Innovative Orthotics & Rehabilitation Inc.   Behrooz A. Akbarnia
David Merrill   Sam & Dawn Maywood
Klaus Hagenmeyer   Bruce & Nina Van Dam
Frederick J. Thabet   Scot Martinelli & Bobbi-Jo Romanishan
Craig Sparks   MLPF&S William Player Barefoot IRA
Todd Marinchak   Scott Kitchel
Peter A. Guagliano   Rudolph Bertagnoli
Regis W. Haid, Jr.   Jonathan Spangler
Mark D. Peterson   Anthony Salerni
Alexander & Majorie Vaccaro   Kevin Armstrong
G. Rogan Fry   Andrew Cappuccino
Joe C. Loy    
Keith Valentine    

II-4


Item 16. Exhibits and Financial Statement Schedules

Exhibit
Number

  Description
1.1**   Form of Underwriting Agreement

3.1**

 

Amended and Restated Certificate of Incorporation, as currently in effect

3.2**

 

Certificate of Amendment of Amended and Restated Certificate of Incorporation, as currently in effect

3.3**

 

Form of Restated Certificate of Incorporation (to be filed in connection with the closing of this offering)

3.4**

 

Bylaws, as currently in effect

3.5**

 

Form of Restated Bylaws (to be effective upon the closing of this offering)

3.6**

 

Form of Certificate of Amendment of Amended and Restated Certificate of Incorporation (to be filed on or before the effective date of this offering)

4.1**

 

Second Amended and Restated Investors' Rights Agreement, dated July 11, 2002, by and among us and the other parties named therein

4.2**

 

Amendment No. 1 to Second Amended and Restated Investors' Rights Agreement, dated June 19, 2003, by and among us and the other parties named therein

4.3**

 

Amendment No. 2 to Second Amended and Restated Investors' Rights Agreement, dated February 5, 2004, by and among us and the other parties named therein

4.4**

 

Specimen Common Stock Certificate

5.1**

 

Opinion of Heller Ehrman White & McAuliffe LLP

10.1**

 

Form of Warrant to purchase Series B Preferred Stock, dated October 13, 1999, between us and each of the persons listed on the Schedule of Warrant Holders attached thereto

10.2**

 

Warrant Agreement to Purchase Shares of Series A Preferred Stock, dated September 17, 1999, issued by us to Comdisco Ventures, Inc.

10.3**

 

Warrant Agreement to Purchase Shares of Series A Preferred Stock, dated September 17, 1999, issued by us to CNC Holdings I LLC
     

II-5



10.4**

 

Stock Subscription Warrant to Purchase Series B Preferred Stock, dated June 27, 2000, issued by us to TBCC Funding Trust II

10.5**

 

Form of Warrant to purchase Series D Preferred Stock used by us to issue warrants on February 14, 2001 and April 12, 2001 to each of the persons listed on the Schedule of Warrant Holders attached thereto

10.6**

 

Warrant to Purchase 22,530 Shares of Series D Preferred Stock, dated December 27, 2001, issued by us to GATX Ventures, Inc.

10.7**

 

Warrant to Purchase 1,186 Shares of Series D Preferred Stock, dated December 27, 2001, issued by us to GATX Ventures, Inc.

10.8**

 

Warrant to Purchase Common Stock, dated January 9, 2003, issued by us to Comerica Bank—California

10.9**

 

Warrant to Purchase Series D-1 Preferred Stock, dated January 9, 2003, issued by us to Comerica Bank—California

10.10**

 

Form of Warrant to purchase Common Stock used by us to issue warrants in connection with our sale of Series D-1 Preferred Stock to the persons listed on the Schedule of Warrant Holders attached thereto

10.11**#

 

1998 Stock Option/Stock Issuance Plan

10.12**#

 

Form of Notice of Grant of Stock Option under our 1998 Stock Option/Stock Issuance Plan

10.13**#

 

Form of Stock Option Agreement under our 1998 Stock Option/Stock Issuance Plan, and form of addendum thereto

10.14**#

 

Form of Stock Purchase Agreement under our 1998 Stock Option/Stock Issuance Plan

10.14.1#

 

Form of Stock Issuance Agreement under our 1998 Stock Option/Stock Issuance Plan

10.14.2#

 

Form of Stock Issuance Agreement issued to consultants and distributors, under our 1998 Stock Option/Stock Issuance Plan, on April 21, 2004, and May 4, 2004

10.15**#

 

2004 Equity Incentive Plan

10.16**#

 

Form of Stock Option Award Notice under 2004 Equity Incentive Plan

10.17**#

 

Form of Option Exercise and Stock Purchase Agreement under 2004 Equity Incentive Plan

10.18**#

 

Forms of Restricted Stock Grant Notice and Restricted Stock Agreement under 2004 Equity Incentive Plan

10.18.1**#

 

Form of Restricted Stock Unit Award Agreement under 2004 Equity Incentive Plan

10.19**#

 

2004 Employee Stock Purchase Plan

10.20**

 

Standard Industrial/Commercial Multi-Tenant Lease—Modified Net, dated July 13, 1999, between us and Michael L. Hightower

10.21**

 

Addendum to Lease Between EUS Partners, the Successor to Michael L. Hightower, Lessor, and NuVasive, Inc. as Lessee, dated March 25, 2002
     

II-6



10.22**

 

Equipment Loan and Security Agreement, dated December 27, 2001, between us and GATX Ventures, Inc., Loan Agreement Supplement No. 1, dated December 31, 2001, and Loan Agreement Supplement No. 2, dated July 31, 2002

10.23**†

 

Patent Purchase Agreement, dated June 21, 2002, between us and Drs. Anthony Ross and Peter Guagliano

10.24**†

 

Intellectual Property Purchase Agreement, dated October 10, 2002, between us and Spine Partners, LLC

10.25**†

 

Development, Production and Marketing Services Agreement, dated December 30, 1999, as amended, by and among us and Tissue Banks International, Inc.

10.26**†

 

Supply Agreement, dated January 21, 2002, by and among us and Intermountain Tissue Center

10.27**#

 

Employment Letter Agreement, dated July 12, 1999, as amended on January 20, 2004, between us and Alexis V. Lukianov

10.28**#

 

Bonus Agreement, dated February 25, 2000, between us and Alexis V. Lukianov

10.29**#

 

Employment Agreement, dated December 20, 2002, as amended on January 20, 2004, between us and Kevin C. O'Boyle

10.30**#

 

Employment Agreement, dated January 20, 2004, between us and Keith Valentine

10.31**#

 

Employment Agreement, dated January 20, 2004, between us and G. Rogan Fry

10.32**#

 

Employment Agreement, dated January 20, 2004, between us and Patrick Miles

10.33**#

 

Employment Agreement, dated January 20, 2004, between us and James J. Skinner

10.34**#

 

Employment Agreement, dated January 20, 2004, between us and G. Bryan Cornwall

10.35**#

 

Employment Agreement, dated January 20, 2004, between us and Jonathan D. Spangler

10.36**

 

Form of Indemnification Agreement between us and our directors and officers

10.37**

 

Common Stock Purchase Warrant, dated January 16, 2002, issued by us to WWIP LLC

10.38**†

 

Clinical Advisor, Patent Purchase and Development Agreement, dated March 31, 2004, between us and James L. Chappuis

10.39**

 

Loan and Security Agreement, dated January 9, 2003, as amended, between us and Comerica Bank

10.40**

 

Warrant to Purchase Series D-1 Preferred Stock, dated March 12, 2004, issued by us to Comerica Bank

21.1**

 

List of our subsidiaries

23.1**

 

Consent of Ernst & Young LLP, independent auditors

23.2**

 

Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1)

24.1**

 

Power of Attorney

**
Previously filed.

II-7


Application has been made to the Securities and Exchange Commission to seek confidential treatment of certain provisions of this exhibit under Rule 406 of the Securities Act of 1933. Omitted material for which confidential treatment has been requested has been filed separately with the Securities and Exchange Commission.

#
Indicates management contract or compensatory plan.

Item 17. Undertakings

        The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

        Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

        The undersigned registrant hereby undertakes that:

II-8



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 4 to Registration Statement (No. 333-113344) to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, California on this 11th day of May, 2004.

    NUVASIVE, INC.

 

 

By:

 

 
        /s/  ALEXIS V. LUKIANOV      
Alexis V. Lukianov
President, Chief Executive Officer and Chairman of the Board

II-9


        Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 4 to Registration Statement (No. 333-113344) has been signed by the following persons in the capacities indicated on May 11, 2004:

Signature
  Title(s)

 

 

 
/s/  ALEXIS V. LUKIANOV      
  Alexis V. Lukianov
President, Chief Executive Officer, and Chairman of the Board (principal executive officer)

            *


 

Kevin C. O'Boyle
Vice President, Finance and Chief Financial Officer (principal financial and accounting officer)

            *


 

R. Lewis Bennett, Sr.
Director

            *


 

Jack R. Blair
Director

            *


 

James C. Blair, Ph.D.
Director

            *


 

Lesley H. Howe
Director

            *


 

Joseph S. Lacob
Director

            *


 

Arda M. Minocherhomjee, Ph.D.
Director
*By:   /s/  ALEXIS V. LUKIANOV      
Alexis V. Lukianov
Attorney-in-fact
   

II-10



INDEX TO EXHIBITS

Exhibit
Number

  Description
1.1**   Form of Underwriting Agreement

3.1**

 

Amended and Restated Certificate of Incorporation, as currently in effect

3.2**

 

Certificate of Amendment of Amended and Restated Certificate of Incorporation, as currently in effect

3.3**

 

Form of Restated Certificate of Incorporation (to be filed in connection with the closing of this offering)

3.4**

 

Bylaws, as currently in effect

3.5**

 

Form of Restated Bylaws (to be effective upon the closing of this offering)

3.6**

 

Form of Certificate of Amendment of Amended and Restated Certificate of Incorporation (to be filed on or before the effective date of this offering)

4.1**

 

Second Amended and Restated Investors' Rights Agreement, dated July 11, 2002, by and among us and the other parties named therein

4.2**

 

Amendment No. 1 to Second Amended and Restated Investors' Rights Agreement, dated June 19, 2003, by and among us and the other parties named therein

4.3**

 

Amendment No. 2 to Second Amended and Restated Investors' Rights Agreement, dated February 5, 2004, by and among us and the other parties named therein

4.4**

 

Specimen Common Stock Certificate

5.1**

 

Opinion of Heller Ehrman White & McAuliffe LLP

10.1**

 

Form of Warrant to purchase Series B Preferred Stock, dated October 13, 1999, between us and each of the persons listed on the Schedule of Warrant Holders attached thereto

10.2**

 

Warrant Agreement to Purchase Shares of Series A Preferred Stock, dated September 17, 1999, issued by us to Comdisco Ventures, Inc.

10.3**

 

Warrant Agreement to Purchase Shares of Series A Preferred Stock, dated September 17, 1999, issued by us to CNC Holdings I LLC

10.4**

 

Stock Subscription Warrant to Purchase Series B Preferred Stock, dated June 27, 2000, issued by us to TBCC Funding Trust II

10.5**

 

Form of Warrant to purchase Series D Preferred Stock used by us to issue warrants on February 14, 2001 and April 12, 2001 to each of the persons listed on the Schedule of Warrant Holders attached thereto

10.6**

 

Warrant to Purchase 22,530 Shares of Series D Preferred Stock, dated December 27, 2001, issued by us to GATX Ventures, Inc.

10.7**

 

Warrant to Purchase 1,186 Shares of Series D Preferred Stock, dated December 27, 2001, issued by us to GATX Ventures, Inc.

10.8**

 

Warrant to Purchase Common Stock, dated January 9, 2003, issued by us to Comerica Bank—California

10.9**

 

Warrant to Purchase Series D-1 Preferred Stock, dated January 9, 2003, issued by us to Comerica Bank—California
     


10.10**

 

Form of Warrant to purchase Common Stock used by us to issue warrants in connection with our sale of Series D-1 Preferred Stock to the persons listed on the Schedule of Warrant Holders attached thereto

10.11**#

 

1998 Stock Option/Stock Issuance Plan

10.12**#

 

Form of Notice of Grant of Stock Option under our 1998 Stock Option/Stock Issuance Plan

10.13**#

 

Form of Stock Option Agreement under our 1998 Stock Option/Stock Issuance Plan, and form of addendum thereto

10.14**#

 

Form of Stock Purchase Agreement under our 1998 Stock Option/Stock Issuance Plan

10.14.1#

 

Form of Stock Issuance Agreement under our 1998 Stock Option/Stock Issuance Plan

10.14.2#

 

Form of Stock Issuance Agreement issued to consultants and distributors, under our 1998 Stock Option/Stock Issuance Plan, on April 21, 2004, and May 4, 2004

10.15**#

 

2004 Equity Incentive Plan

10.16**#

 

Form of Stock Option Award Notice under 2004 Equity Incentive Plan

10.17**#

 

Form of Option Exercise and Stock Purchase Agreement under 2004 Equity Incentive Plan

10.18**#

 

Forms of Restricted Stock Grant Notice and Restricted Stock Agreement under 2004 Equity Incentive Plan

10.18.1**#

 

Form of Restricted Stock Unit Award Agreement under 2004 Equity Incentive Plan

10.19**#

 

2004 Employee Stock Purchase Plan

10.20**

 

Standard Industrial/Commercial Multi-Tenant Lease—Modified Net, dated July 13, 1999, between us and Michael L. Hightower

10.21**

 

Addendum to Lease Between EUS Partners, the Successor to Michael L. Hightower, Lessor, and NuVasive, Inc. as Lessee, dated March 25, 2002

10.22**

 

Equipment Loan and Security Agreement, dated December 27, 2001, between us and GATX Ventures, Inc., Loan Agreement Supplement No. 1, dated December 31, 2001, and Loan Agreement Supplement No. 2, dated July 31, 2002

10.23**†

 

Patent Purchase Agreement, dated June 21, 2002, between us and Drs. Anthony Ross and Peter Guagliano

10.24**†

 

Intellectual Property Purchase Agreement, dated October 10, 2002, between us and Spine Partners, LLC

10.25**†

 

Development, Production and Marketing Services Agreement, dated December 30, 1999, as amended, by and among us and Tissue Banks International, Inc.

10.26**†

 

Supply Agreement, dated January 21, 2002, by and among us and Intermountain Tissue Center

10.27**#

 

Employment Letter Agreement, dated July 12, 1999, as amended on January 20, 2004, between us and Alexis V. Lukianov

10.28**#

 

Bonus Agreement, dated February 25, 2000, between us and Alexis V. Lukianov

10.29**#

 

Employment Agreement, dated December 20, 2002, as amended on January 20, 2004, between us and Kevin C. O'Boyle

10.30**#

 

Employment Agreement, dated January 20, 2004, between us and Keith Valentine
     


10.31**#

 

Employment Agreement, dated January 20, 2004, between us and G. Rogan Fry

10.32**#

 

Employment Agreement, dated January 20, 2004, between us and Patrick Miles

10.33**#

 

Employment Agreement, dated January 20, 2004, between us and James J. Skinner

10.34**#

 

Employment Agreement, dated January 20, 2004, between us and G. Bryan Cornwall

10.35**#

 

Employment Agreement, dated January 20, 2004, between us and Jonathan D. Spangler

10.36**

 

Form of Indemnification Agreement between us and our directors and officers

10.37**

 

Common Stock Purchase Warrant, dated January 16, 2002, issued by us to WWIP LLC

10.38**†

 

Clinical Advisor, Patent Purchase and Development Agreement, dated March 31, 2004, between us and James L. Chappuis

10.39**

 

Loan and Security Agreement, dated January 9, 2003, as amended, between us and Comerica Bank

10.40**

 

Warrant to Purchase Series D-1 Preferred Stock, dated March 12, 2004, issued by us to Comerica Bank

21.1**

 

List of our subsidiaries

23.1**

 

Consent of Ernst & Young LLP, independent auditors

23.2**

 

Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1)

24.1**

 

Power of Attorney

**
Previously filed.

Application has been made to the Securities and Exchange Commission to seek confidential treatment of certain provisions of this exhibit under Rule 406 of the Securities Act of 1933. Omitted material for which confidential treatment has been requested has been filed separately with the Securities and Exchange Commission.

#
Indicates management contract or compensatory plan.



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EXPLANATORY NOTE
Part II: Information Not Required in Prospectus
SIGNATURES
INDEX TO EXHIBITS

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EXHIBIT 10.14.1

NUVASIVE, INC.
STOCK ISSUANCE AGREEMENT

        AGREEMENT made as of this            day of                   200    , by and between NuVasive, Inc., a Delaware corporation, and                        , Participant in the Corporation's 1998 Stock Option/Stock Issuance Plan.

        All capitalized terms in this Agreement shall have the meaning assigned to them in this Agreement or in the attached Appendix.

        A.    PURCHASE OF SHARES    

        B.    SECURITIES LAW COMPLIANCE    


        C.    TRANSFER RESTRICTIONS    

2


        D.    REPURCHASE RIGHT    

3


        E.    RIGHT OF FIRST REFUSAL    

4


5


        F.    SPECIAL TAX ELECTION    

        G.    GENERAL PROVISIONS    

6


        H.    MISCELLANEOUS PROVISIONS    

7


        IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first indicated above.

    NUVASIVE, INC.

 

 

By:

 

 
       
    Title:    
       
    Address:    
       

 

 

 

 



 

 


PARTICIPANT

 

 

Address:

 

 
       

 

 

 

 



SPOUSAL ACKNOWLEDGMENT

        The undersigned spouse of Participant has read and hereby approves the foregoing Stock Issuance Agreement. In consideration of the Corporation's granting Participant the right to acquire the Purchased Shares in accordance with the terms of such Agreement, the undersigned hereby agrees to be irrevocably bound by all the terms of such Agreement, including (without limitation) the right of the Corporation (or its assigns) to purchase any Purchased Shares in which Participant is not vested at the time of his or her cessation of Service.

   
PARTICIPANT'S SPOUSE

 

 

Address:

 

 
       

 

 



EXHIBIT I

ASSIGNMENT SEPARATE FROM CERTIFICATE

        FOR VALUE RECEIVED                        hereby sell(s), assign(s) and transfer(s) unto NuVasive, Inc. (the "Corporation"),                         (            ) shares of the Common Stock of the Corporation standing in his or her name on the books of the Corporation represented by Certificate No.                        herewith and do(es) hereby irrevocably constitute and appoint                        Attorney to transfer the said stock on the books of the Corporation with full power of substitution in the premises.

Dated:            

    Signature    
       

        Instruction:    Please do not fill in any blanks other than the signature line. Please sign exactly as you would like your name to appear on the issued stock certificate. The purpose of this assignment is to enable the Corporation to exercise the Repurchase Right without requiring additional signatures on the part of Participant.


EXHIBIT II

SECTION 83(b) TAX ELECTION


SECTION 83(b) TAX ELECTION

        This statement is being made under Section 83(b) of the Internal Revenue Code, pursuant to Treas. Reg. Section 1.83-2.

(1)
The taxpayer who performed the services is:
(2)
The property with respect to which the election is being made is                        shares of the common stock of NuVasive,  Inc.

(3)
The property was issued on                        , 200    .

(4)
The taxable year in which the election is being made is the calendar year 200    .

(5)
The property is subject to a repurchase right pursuant to which the issuer has the right to acquire the property at the original purchase price if for any reason taxpayer's service with the issuer terminates. The issuer's repurchase right lapses in a series of annual and monthly installments over a four (4)-year period ending on                        , 200    .

(6)
The fair market value at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is $            per share.

(7)
The amount paid for such property is $            per share.

(8)
A copy of this statement was furnished to NuVasive, Inc. for whom taxpayer rendered the services underlying the transfer of property.

(9)
This statement is executed on                        , 200    .


Spouse (if any)
 
Taxpayer

        This election must be filed with the Internal Revenue Service Center with which taxpayer files his or her Federal income tax returns and must be made within thirty (30) days after the execution date of the Stock Issuance Agreement. This filing should be made by registered or certified mail, return receipt requested. Participant must retain two (2) copies of the completed form for filing with his or her Federal and state tax returns for the current tax year and an additional copy for his or her records.


EXHIBIT III

1998 STOCK OPTION/STOCK ISSUANCE PLAN



APPENDIX

        The following definitions shall be in effect under the Agreement:

        A.    Agreement shall mean this Stock Issuance Agreement.

        B.    Board shall mean the Corporation's Board of Directors.

        C.    Code shall mean the Internal Revenue Code of 1986, as amended.

        D.    Common Stock shall mean the Corporation's common stock.

        E.    Corporate Transaction shall mean either of the following stockholder-approved transactions:

        F.     Corporation shall mean NuVasive, Inc., a Delaware corporation.

        G.    Disposition Notice shall have the meaning assigned to such term in Paragraph E.2.

        H.    Exercise Notice shall have the meaning assigned to such term in Paragraph E.3.

        I.     Fair Market Value of a share of Common Stock on any relevant date, prior to the initial public offering of the Common Stock, shall be determined by the Plan Administrator after taking into account such factors as it shall deem appropriate.

        J.     First Refusal Right shall mean the right granted to the Corporation in accordance with Article E.

        K.    Market Stand-Off shall mean the market stand-off restriction specified in Paragraph C.3.

        L.    1933 Act shall mean the Securities Act of 1933, as amended.

        M.   Owner shall mean Participant and all subsequent holders of the Purchased Shares who derive their chain of ownership through a Permitted Transfer from Participant.

        N.    Parent shall mean any corporation (other than the Corporation) in an unbroken chain of corporations ending with the Corporation, provided each corporation in the unbroken chain (other than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

        O.    Participant shall mean the person to whom shares are issued under the Stock Issuance Program.

        P.     Permitted Transfer shall mean (i) a gratuitous transfer of the Purchased Shares, provided and only if Participant obtains the Corporation's prior written consent to such transfer, (ii) a transfer of title to the Purchased Shares effected pursuant to Participant's will or the laws of intestate succession following Participant's death or (iii) a transfer to the Corporation in pledge as security for any purchase-money indebtedness incurred by Participant in connection with the acquisition of the Purchased Shares.

        Q.    Plan shall mean the Corporation's 1998 Stock Option/Stock Issuance Plan attached hereto as Exhibit III.

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        R.    Plan Administrator shall mean either the Board or a committee of the Board acting in its capacity as administrator of the Plan.

        S.     Purchase Price shall have the meaning assigned to such term in Paragraph A.1.

        T.     Purchased Shares shall have the meaning assigned to such term in Paragraph A.1.

        U.    Recapitalization shall mean any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the Corporation's outstanding Common Stock as a class without the Corporation's receipt of consideration.

        V.     Reorganization shall mean any of the following transactions:

        W.    Repurchase Right shall mean the right granted to the Corporation in accordance with Article D.

        X.    SEC shall mean the Securities and Exchange Commission.

        Y.    Service shall mean the Participant's performance of services for the Corporation (or any Parent or Subsidiary) in the capacity of an employee, subject to the control and direction of the employer entity as to both the work to be performed and the manner and method of performance, a non-employee member of the board of directors or an independent consultant.

        Z.    Stock Issuance Program shall mean the Stock Issuance Program under the Plan.

        AA. Subsidiary shall mean any corporation (other than the Corporation) in an unbroken chain of corporations beginning with the Corporation, provided each corporation (other than the last corporation) in the unbroken chain owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

        AB. Target Shares shall have the meaning assigned to such term in Paragraph E.2.

        AC. Vesting Schedule shall mean the vesting schedule specified in Paragraph D.3 pursuant to which Participant is to vest in the Purchased Shares in a series of installments over the Participant's period of Service.

        AD. Unvested Shares shall have the meaning assigned to such term in Paragraph D.1.

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EXHIBIT 10.14.2


NUVASIVE, INC.
STOCK ISSUANCE AGREEMENT

        AGREEMENT made as of this    day of                   , 2004, by and between NuVasive, Inc., a Delaware corporation, and                        , Participant in the Corporation's 1998 Stock Option/Stock Issuance Plan.

        All capitalized terms in this Agreement shall have the meaning assigned to them in this Agreement or in the attached Appendix.

        A.    PURCHASE OF SHARES    

        B.    SECURITIES LAW COMPLIANCE    


        C.    TRANSFER RESTRICTIONS    

2


        D.    RIGHT OF FIRST REFUSAL    

3


        E.    GENERAL PROVISIONS    

4


        F.    MISCELLANEOUS PROVISIONS    

5


        IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first indicated above.

    NUVASIVE, INC.

 

 

By:

 

 
       
    Title:    
       
    Address:   10065 Old Grove Road
San Diego, CA 92131

 

 


[PARTICIPANT]

 

 

Address:

 

 
       

 

 

 

 



SPOUSAL ACKNOWLEDGMENT

        The undersigned spouse of Participant has read and hereby approves the foregoing Stock Issuance Agreement. In consideration of the Corporation's granting Participant the right to acquire the Purchased Shares in accordance with the terms of such Agreement, the undersigned hereby agrees to be irrevocably bound by all the terms of such Agreement.

    PARTICIPANT'S SPOUSE

 

 

Address:

 

 
       

 

 



EXHIBIT I

1998 STOCK OPTION/STOCK ISSUANCE PLAN


APPENDIX

        The following definitions shall be in effect under the Agreement:

        A.    Agreement shall mean this Stock Issuance Agreement.

        B.    Board shall mean the Corporation's Board of Directors.

        C.    Code shall mean the Internal Revenue Code of 1986, as amended.

        D.    Common Stock shall mean the Corporation's common stock.

        E.    Corporate Transaction shall mean either of the following stockholder-approved transactions:

        F.     Corporation shall mean NuVasive, Inc., a Delaware corporation.

        G.    Disposition Notice shall have the meaning assigned to such term in Paragraph D.2.

        H.    Exercise Notice shall have the meaning assigned to such term in Paragraph D.3.

        I.     Fair Market Value of a share of Common Stock on any relevant date, prior to the initial public offering of the Common Stock, shall be determined by the Plan Administrator after taking into account such factors as it shall deem appropriate.

        J.     First Refusal Right shall mean the right granted to the Corporation in accordance with Article D.

        K.    Market Stand-Off shall mean the market stand-off restriction specified in Paragraph C.3.

        L.    1933 Act shall mean the Securities Act of 1933, as amended.

        M.   Owner shall mean Participant and all subsequent holders of the Purchased Shares who derive their chain of ownership through a Permitted Transfer from Participant.

        N.    Parent shall mean any corporation (other than the Corporation) in an unbroken chain of corporations ending with the Corporation, provided each corporation in the unbroken chain (other than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

        O.    Participant shall mean the person to whom shares are issued under the Stock Issuance Program.

        P.     Permitted Transfer shall mean (i) a gratuitous transfer of the Purchased Shares, provided and only if Participant obtains the Corporation's prior written consent to such transfer, (ii) a transfer of title to the Purchased Shares effected pursuant to Participant's will or the laws of intestate succession following Participant's death or (iii) a transfer to the Corporation in pledge as security for any purchase-money indebtedness incurred by Participant in connection with the acquisition of the Purchased Shares.

        Q.    Plan shall mean the Corporation's 1998 Stock Option/Stock Issuance Plan attached hereto as Exhibit III.

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        R.    Plan Administrator shall mean either the Board or a committee of the Board acting in its capacity as administrator of the Plan.

        S.     Purchase Price shall have the meaning assigned to such term in Paragraph A.1.

        T.     Purchased Shares shall have the meaning assigned to such term in Paragraph A.1.

        U.    Recapitalization shall mean any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the Corporation's outstanding Common Stock as a class without the Corporation's receipt of consideration.

        V.     Reorganization shall mean any of the following transactions:

        W.    SEC shall mean the Securities and Exchange Commission.

        X.    Service shall mean the Participant's performance of services for the Corporation (or any Parent or Subsidiary) in the capacity of an employee, subject to the control and direction of the employer entity as to both the work to be performed and the manner and method of performance, a non-employee member of the board of directors or an independent consultant.

        Y.    Stock Issuance Program shall mean the Stock Issuance Program under the Plan.

        Z.    Subsidiary shall mean any corporation (other than the Corporation) in an unbroken chain of corporations beginning with the Corporation, provided each corporation (other than the last corporation) in the unbroken chain owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

        AA. Target Shares shall have the meaning assigned to such term in Paragraph D.2.

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