UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 27, 2015
NUVASIVE, INC.
(Exact
name of registrant as specified in its charter)
|
|
|
|
|
| Delaware |
|
000-50744 |
|
33-0768598 |
| (State or Other Jurisdiction of
Incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification Number) |
7475 Lusk Boulevard, San Diego, California 92121
(Address of principal executive offices, with zip code)
(858) 909-1800
(Registrant’s telephone number, including area code)
n/a
(Former name or
former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see General Instruction A.2. below):
| |
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.02 Results of Operations and Financial Condition
On April 1, 2015, NuVasive, Inc. (the “Company”) issued a press release announcing selected preliminary unaudited financial results
for the fiscal quarter ended March 31, 2015. A copy of this press release is furnished as Exhibit 99.1 hereto.
Item 5.02 Departure of
Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On March 28, 2015, Mr. Alex V. Lukianov, the Chief Executive Officer and the Chairman of the Board of the
Company and a member of its Board of Directors (the “Board”), resigned as Chairman, Chief Executive Officer, and as a member of the Board and all other positions he had with the Company subsidiaries and affiliates, effective March 27,
2015. Mr. Lukianov will remain with the Company as a consultant to assist with the transition and serve as a special advisor to the successor Chief Executive Officer through September 30, 2016.
In connection with his departure from the Company, Mr. Lukianov and the Company entered into a Separation Agreement and
Release (the “Separation Agreement”) and a Consulting Agreement (the “Consulting Agreement”). In exchange for signing the Separation Agreement, which provides for a general release of claims in favor of the Company,
Mr. Lukianov will receive a severance payment of $900,000 payable in two equal installments. The Company will pay the first payment of $450,000 to Mr. Lukianov within thirty (30) days after March 28, 2015 and the remaining
$450,000 on December 31, 2015. Pursuant to the terms of the Consulting Agreement, in exchange for his continued service to the Company through September 30, 2016, Mr. Lukianov will receive (i) a total consulting fee of $500,000,
paid over an eighteen-month period, and (ii) continued vesting of his previously-issued and outstanding equity awards for the term of his consultancy as well as certain acceleration rights with respect to such equity in the event of a change of
control of the Company during the term of his consultancy. The foregoing information is a summary of select terms from the Separation Agreement and the Consulting Agreement, is not complete, and is qualified in its entirety by reference to the full
text of each such agreement, copies of which are attached as exhibits to this Current Report on Form 8-K.
Also effective
on March 27, 2015, the Board appointed Mr. Gregory T. Lucier to serve as the Company’s interim Chief Executive Officer and Chairman of the Board. In connection with such appointment, Mr. Lucier resigned from his seats on the
Board of Director’s Audit and Compensation Committees. Mr. Lucier, age 50, has served as member of our Board since December 2013. Mr. Lucier has over 25 years of executive management experience and served as Chairman of the Board
and Chief Executive Officer of Life Technologies Corporation, a global biotechnology company, from May 2003 until their acquisition by Thermo Fisher Scientific, Inc. in February 2014. Prior to joining Life Technologies, Mr. Lucier served as
Chief Executive Officer and President at GE Medical Systems Information Technologies, Vice President for Global Services at GE Medical Systems and served as a corporate officer of the General Electric Corporation. He currently serves as board
chairman for the Sanford-Burnham Medical Research Institute, and previously served on the Board of CareFusion Corporation until the completion of its acquisition by Becton Dickinson on March 17, 2015.
There are no family relationships between Mr. Lucier and any director or executive officer of the Company, and he has no
direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
No new compensatory arrangements were entered into with Mr. Lucier in connection with his appointment as Chairman and
interim Chief Executive Officer.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
|
|
|
|
|
| 10.1 |
|
Separation Agreement and Release by and between the Company and Alex V. Lukianov effective March 27, 2015. |
|
|
| 10.2 |
|
Consulting Agreement by and between the Company and Alex V. Lukianov effective March 27, 2015. |
|
|
| 99.1 |
|
Press release issued by NuVasive, Inc. on April 1, 2015, announcing certain organizational changes and selected preliminary unaudited financial results for the fiscal quarter ended March 31, 2015. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
| |
|
|
|
NUVASIVE, INC. |
|
|
|
|
| Date: April 1, 2015 |
|
|
|
By: |
|
/s/ Jason Hannon |
|
|
|
|
|
|
Jason Hannon |
|
|
|
|
|
|
Executive Vice President & General Counsel |
Exhibit Index
|
|
|
| Exhibit Number |
|
Description |
|
|
| 10.1 |
|
Separation Agreement and Release by and between the Company and Alex V. Lukianov effective March 27, 2015. |
|
|
| 10.2 |
|
Consulting Agreement by and between the Company and Alex V. Lukianov effective March 27, 2015. |
|
|
| 99.1 |
|
Press release issued by NuVasive, Inc. on April 1, 2015, announcing certain organizational changes and selected preliminary unaudited financial results for the fiscal quarter ended March 31, 2015. |
Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (“Agreement”) is made as of March 28, 2015, by and between Alexis V.
Lukianov (“Executive”) and NuVasive, Inc. (the “Company”);
WHEREAS, the Executive is
currently the Chairman of the Board of Directors of Company (the “Board”) and Chief Executive Officer of the Company (“Chairman and CEO”);
WHEREAS, Executive wishes to voluntarily resign as Chairman and CEO and also voluntarily resign his position as a member of the Board
effective March 27, 2015 (“Separation Date”);
NOW, THEREFORE, the Executive and the Company agree as
follows, in consideration of the covenants and obligations contained herein, and intending to be legally held bound:
1. Separation and
Voluntary Resignation. By this Agreement, Executive hereby voluntary resigns, effective as of the Separation Date, from his positions as (a) Chairman of the Board of Directors and Chief Executive Officer of the Company, (b) his
position as a member of the Board of Directors of the Company, and (c) any and all other positions that he holds with the Company or any parent, subsidiary, affiliate, divisions and related entities (“Related Entity”),
or on behalf of the Company or Related Entity, including any officer, director or consulting positions. If, for any reason, this Paragraph 1 is deemed insufficient to effectuate such resignations, Executive hereby authorizes the Company to
execute any documents or instruments consistent herewith which the Company may deem necessary or desirable to effectuate such resignation or resignations, and to act as your attorney-in-fact. Company will provide Executive with a copy of any such
documents. Executive also acknowledges and agrees that as of the Separation Date, he shall not have any authority or power to bind Company or any Related Entity, or act on behalf of Company or any Related Entity in any manner. Executive is
voluntarily resigning and his separation therefore shall not be treated as an involuntary termination of employment without cause. For the sake of clarity, Executive understands and acknowledges that he is not eligible for any benefits under the
NuVasive, Inc. Executive Severance Plan or any other severance plan of or agreement with the Company. The parties have separately entered into a consulting arrangement pursuant to the terms and conditions set forth in that certain Consulting
Agreement, in the form attached hereto as Exhibit A.
2. Consideration. In exchange for and subject to the releases and
other covenants of Executive set forth in this Agreement, the Company agrees to provide Executive Nine Hundred Thousand Dollars ($900,000) (the “Consideration”), of which Fifty Thousand Dollars ($50,000) is allocated to the
ADEA Consideration and be payable only as provided in Paragraph 10.7. The Consideration shall be paid two installments, as follows (i) Four Hundred Fifty Thousand Dollars ($450,000) within thirty (30) days of the date of this
Agreement; and (ii) the remaining Four Hundred Fifty Thousand Dollars ($450,000) on December 31, 2015, subject to Paragraph 10.8. Executive acknowledges that he would not otherwise be entitled to receive the Consideration if he did
not enter into this Agreement.
3. Tax Treatment. Executive understands and agrees that Company is neither providing tax nor
legal advice, nor is Company making representations regarding tax obligations or consequences, if any, related to this Agreement. Executive further agrees that he will assume any such tax obligations or consequences that may arise from this
Agreement, and that Executive shall not seek any indemnification from Company in this regard. Executive agrees that, in the event that any taxing body determines that additional taxes are due from Executive, Executive acknowledges and assumes
all responsibility for the payment of any such taxes and agrees to indemnify, defend, and hold Company harmless from the payment of such taxes, and any failure to withhold. Executive further agrees to pay, on Company’s behalf, any interest
or penalties imposed as a consequence of such tax obligations, and to pay any judgments, penalties, taxes, costs, and attorneys’ fees incurred by Company as a consequence of Executive’s failure to pay any taxes due.
4. Other Payments, Benefits, and Acknowledgments.
4.1 Executive confirms that as of the date he executes this Agreement and regardless of whether Executive executes this Agreement, Executive
has received all wages for all hours worked up to his Separation Date, including payment for all accrued and earned but unused vacation pay through the Separation Date, subject to all applicable withholdings and deductions.
4.2 Company will process any unpaid business expense reimbursements within thirty (30) days of the effective date of this Agreement
provided that Executive submits such expenses in accordance with and compliance with the Company’s expense reimbursement policy. Executive will submit such expenses within fourteen (14) days after the Separation Date and further agrees he
will not incur any other business expenses.
4.3 Should Executive wish to continue his health benefits coverage through Company’s group
insurance plans beyond his Separation Date, Executive will be responsible for paying the premium in full each month. Executive will receive a separate notice explaining Executive’s right to continuation and conversion of Executive’s health
benefits under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”) and/or any applicable state law.
4.4
Executive and the Company agree that Executive has certain equity awards outstanding which are and shall remain subject to certain vesting conditions as of the Separation Date, that a complete list of such equity awards is attached as Schedule
A, and that Executive’s rights under such equity awards will be determined pursuant to the terms of the relevant award agreements based on the terms and conditions thereof applicable to his voluntary resignation from employment on the
Separation Date without any good reason or other justification which may provide for additional rights, vesting or benefits thereunder arising out of such voluntary termination of employment, unless otherwise provided for pursuant to the Consulting
Agreement. Executive also holds certain options to purchase equity of the Company which are listed on Schedule A and which shall remain exercisable pursuant to the terms of such equity awards for so long as Executive continues to provide services to
the Company pursuant to the terms of the Consulting Agreement. Other than as specifically set forth herein or in the Consulting Agreement, Executive acknowledges that he shall no longer be entitled to receive any additional cash or equity awards or
vesting on any existing cash or equity awards from the Company.
4.5 Executive represents and confirms that he: (i) is not aware of
any unpaid wages, vacation, bonuses, or other amounts owed to Executive by Company, other than the Consideration and payments specifically promised in this Agreement; (ii) Executive has not been denied any request for leave to which Executive
believes he was legally entitled, and Executive was not otherwise deprived of his rights under the Family and Medical Leave Act or any similar state or local statute; and (iii) under this Agreement, Executive has been provided everything owed
and due under any other agreements to which he has executed or is bound. For the sake of clarity, Executive acknowledges that he will no longer be covered under the following programs as of and following the Separation Date: short and long term
disability, travel accident, vacation accrual, basic and supplemental accidental death & dismemberment insurance and supplemental life insurance and participation in the Company’s 401(k) program, among any other Company benefits.
4.6 The Company agrees not seek to claw back any compensation or benefit previously paid to Executive except as otherwise required by the
Company’s Incentive Compensation Recoupment Policy or otherwise required by law.
5. Executive Release of Claims. Executive
agrees that the foregoing Severance Benefits represents settlement in full of all outstanding obligations owed to Executive by Company. THIS IS A GENERAL RELEASE OF ALL CLAIMS. In exchange for the Consideration, Executive, on his own behalf,
and on behalf of his respective heirs, family members, executors, administrators, attorneys, representatives, and assigns, hereby fully and forever releases Company and its legal representatives, officers, directors, fiduciaries, employees,
investors, shareholders, insurers, agents, administrators, affiliates, divisions, subsidiaries, predecessor and successor corporations, and assigns, both in their individual and corporate capacities (collectively, the
“Releasees”), of and from any and all claims and causes of action, demands, duties, obligations, agreements, promises, liabilities, damages, costs, and/or fees, whether known or unknown, suspected or unsuspected, arising out
of or relating to Executive’s employment, including the termination of his employment, including, without limitation:
5.1 any and all
claims relating to or arising from Executive’s employment relationship with Company and the termination of that relationship;
5.2 any
and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of, shares of stock of Company, including, without limitation, any claims for fraud; misrepresentation; breach of fiduciary duty; breach of duty
under applicable state corporate law; and securities fraud under any state or federal law;
5.3 any and all claims under the law of any
jurisdiction including without limitation wrongful discharge of employment; constructive discharge from employment; termination in violation of public policy; discrimination; breach of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; promissory estoppel; negligent and intentional infliction of emotional distress; negligent and intentional misrepresentation; negligent and intentional interference with contract or prospective
economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; and conversion;
5.4 any and all claims for violation of any federal, state or municipal statute, including without limitation all employment laws, including
without limitation the California Fair Employment and Housing Act; the California Unruh Act; the Age Discrimination in Employment Act, as amended; Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1866; the Civil Rights
Act of 1871; the Fair Labor Standards Act; the Americans with Disabilities Act; the Older Workers’ Benefits Protection Act; the Family Medical Leave Act; the Equal Pay Act; the Employee Retirement Income Security Act of 1974; the National Labor
Relations Act; the California Constitution; the California Fair Employment and Housing Act; the California Labor Code; the California Business & Professions Code; the California Government Code; the California Civil Code; and all other laws
against discrimination or applicable to employment that may be the subject of a release under applicable law;
5.5 any and all claims for violation of the federal, or any state, constitution;
5.6 any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
5.7 any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the
proceeds received by Executive as a result of this Agreement; and
5.8 any and all claims for attorneys’ fees and costs.
6. Release of Unknown Claims/California Civil Code Section 1542 Waiver. Executive understands that this release extends to all of
the aforementioned claims and potential claims forever and to the fullest extent permissible by law, whether now known or unknown, suspected or unsuspected, and that this constitutes an essential term of this Agreement. Executive further understands
and acknowledges the significance and consequence of this Agreement and of each specific release and waiver, and expressly consents that this Agreement shall be given full force and effect according to each and all of its express terms and
provisions, including those relating to unknown and unsuspected claims, demands, obligations, and causes of action, if any, as well as those relating to any other claims, demands, obligations or causes of action herein above-specified. Executive
expressly waives any right or benefit available to him in any capacity under the provisions of California Civil Code section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
7. Executive Covenant
Not To Sue. Executive understands and agrees that, to the fullest extent permitted by law, Executive is precluded from filing or pursuing any legal claim of any kind against any of the Releasees at any time in the future, in any federal, state,
or municipal court, administrative agency, or other tribunal, arising out of any of the claims that Executive has waived by virtue of executing this Agreement. Executive agrees not to file or pursue any such legal claims and, if Executive
does pursue such legal claims, Executive waives any right to receive monetary recovery. By Executive’s signature below, Executive represents that he has not filed any such legal claims against any of the Releasees in any federal, state, or
municipal court, administrative agency, or other tribunal. Nothing in this Agreement shall be construed to waive any claims that cannot be waived as a matter of law. In addition, this Agreement does not prevent Executive from filing an
administrative charge against any Releasee that may not be released as a matter of law; however, Executive agrees that Executive shall not be entitled to recover any monetary payments or other individual benefits in any such proceeding. This release
does not waive any rights or claims that may arise after the date that Executive executed this Agreement, and nothing in this Agreement will affect the ability of Executive or Company to enforce rights or entitlements specifically provided for under
this Agreement as set forth herein.
8. Future Cooperation. In consideration for the Severance Payments and all other promises set
forth above, Executive shall provide to Releasee, and to any or all of its subsidiaries, divisions, and affiliated companies, such cooperation in legal proceedings as is reasonably requested, including by furnishing information and/or testimony in
connection with such legal proceedings. Executive expressly agrees to reasonably cooperate with Company, and Releasees (including Company’s outside counsel) in connection with the preparation of SEC filings and the contemplation, prosecution
and defense of all phases of existing, past and future litigation, regulatory or administrative actions about which Company reasonably believes Executive may have knowledge or information. Executive further agrees to make himself available at
mutually convenient times during regular business hours as reasonably deemed necessary by Company’s counsel. Executive also agrees to appear without the necessity of a subpoena to testify truthfully in any legal proceedings in which Company
calls him as a witness. The Company agrees to reimburse Executive for any reasonable travel expenses incurred at the request of the Company and other reasonable out of pocket expenses and fees that pre-approved by the Company that he incurs in
connection with this Paragraph 8. Executive further agrees that he shall not voluntarily provide information to or otherwise cooperate with any individual or private entity that is contemplating or pursuing litigation or any type of action or claim
against Company, its successors or affiliates, or any of their current or former officers, directors, employees, agents or representatives, except as required by law or regulation. Nothing within this Paragraph 8 shall require Executive to waive his
Constitutional rights.
9. Remedies. All remedies at law or in equity shall be available to the Releasees for the enforcement of
this Agreement. This Agreement may be pleaded as a full bar to the enforcement of any claim that Executive may assert against the Releasees.
10. Age Discrimination in Employment Act/Older Workers’ Benefit Protection Act. This
Agreement is intended to satisfy the requirements of the Older Workers’ Benefit Protection Act, 29 U.S.C. sec. 626(f). Executive acknowledges, agrees and understands that:
10.1 under the general release detailed above, Executive is waiving and releasing, among other claims, any rights and claims that may exist
under the Age Discrimination in Employment Act (“ADEA”);
10.2 the waiver and release of claims set forth in the
release above does not apply to any rights or claims that may arise under the ADEA after the date of execution of this Agreement;
10.3 the
payments and other consideration that are being provided to Executive are of significant value and are in addition to what Executive otherwise would be entitled;
10.4 Executive is being advised in writing to consult with an attorney before signing this Agreement;
10.5 Executive is being given a period of twenty-one (21) days within which to review and consider this Agreement before signing it,
though Executive may sign earlier, and if Executive fails to sign and return this Agreement within the twenty-one (21) day consideration period, the Company’s offer and this Agreement will expire on its own terms and the Company may assert
that Executive was terminated for cause or otherwise;
10.6 Executive may revoke his acceptance of this ADEA release and waiver by
providing written notice to the Company within seven (7) days following its execution, and any notice of revocation of this ADEA release and waiver must be in writing and transmitted by hand or certified mail to:
NuVasive, Inc.
7475 Lusk Blvd.
San Diego, CA 92121
Attention: General Counsel
10.7
Because of Executive’s right to revoke this ADEA release and waiver, this ADEA release and waiver shall not become effective and enforceable until the eighth (8th) day after the return
of an executed copy of this Agreement by Executive to the Company and Executive will not be entitled to the ADEA Consideration if he revokes this ADEA release and waiver; and
10.8 Should Executive revoke this ADEA release and waiver, all other provisions in this Agreement shall apply and be enforceable in exchange
for the Consideration other than the ADEA Consideration. For the sake of clarity, Executive is waiving and releasing ALL claims except for those related to age discrimination, even if he revokes his ADEA release and waiver. Should Executive revoke
his ADEA release and waiver under this Paragraph 10, he shall not receive the ADEA Consideration described in Paragraph 2, but he shall receive all other Consideration described in Paragraph 2 in exchange for the releases and
promised described in this Agreement.
11. Indemnification and Insurance. Notwithstanding the releases and covenants not to sue
made by Executive in this Agreement, nothing in this Agreement or the Consulting Agreement is intended to release, affect or compromise in any way any and all rights now or in the future to indemnity and advancement of expenses owed to Executive by
the Company or belonging to Executive, including, but not limited to, those provided for under the Indemnification Agreement dated May 14, 2014 (“Indemnification Agreement”) entered into between Company and Executive,
with which the Company agrees it will continue to comply. Similarly, nothing in this Agreement is intended to release, affect or compromise in any way any and all rights Executive may have now or in the future under applicable Directors’ and
Officers’ insurance policies and/or any other insurance policies providing coverage for Executive for conduct or actions as an officer, director and/or employee of the Company. The purpose of this paragraph, which is to be broadly construed, is
to preserve for now and in the future the full availability of indemnity, advancement and applicable insurance coverage to Executive under the Indemnification Agreement and as otherwise available to Executive as a current or former officer, director
and employee of the Company.
12. No Admissions. Neither the execution of this Agreement by the Releasees, nor the terms hereof,
constitute an admission by the Releasees of liability to Executive. Similarly, neither the execution of this Agreement by Executive, nor the terms hereof, constitute an admission by Executive of liability to the Company and/or the Releasees.
13. Non-Disparagement. Executive agrees that he will not make any voluntary statements, written or oral, or cause or encourage others
to make any such statements that defame, disparage or, for a period not to exceed three years, in any way criticize the personal and/or business reputations, practices or conduct of Company or any of the Releasees.
14. Non-Solicitation. For two (2) years following the Separation Date, Executive
covenants and agrees that Executive will not, directly or indirectly, either for himself or for any other person or company, solicit or induce any employee of Company or Releasee to terminate his or her employment with the Company or Releasee.
Executive understands this is a material term of this Agreement.
15. Standstill. For two (2) years following the Separation
Date, neither Executive nor any of his agents or Affiliates (for purposes of this Section, “Affiliates” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as defined herein), directly or
indirectly, shall:
15.1 (i) solicit proxies or written consents of holders of Company capital stock or become a “participant”
(as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”)) in or
assist any other person in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) with respect to any shares of Company capital stock (other than such encouragement, advice or
influence as is consistent with the Board’s recommendation in connection with such matter); or (ii) encourage any other person to solicit or withhold any proxy, consent or other authority with respect to any shares of Company capital stock
or otherwise advise, encourage or influence any other person with respect to voting any shares of Company capital stock (other than such encouragement, advice or influence as is consistent with the Board’s recommendation in connection with such
matter);
15.2 form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under
Section 13(d) of the Exchange Act, with respect to Company capital stock or otherwise support or participate in any effort by any third party with respect to the matters set forth in Paragraph 15.1 above;
15.3 present at any meeting of Company stockholders or through action by written consent any proposal for consideration for action by Company
stockholders or seek the removal of any member of the Board or propose any nominee for election to the Board or seek representation on the Board;
15.4 grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the
Company’s proxy card for any meeting of Company stockholders) or deposit any shares of Company capital stock in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any meeting of Company
stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
15.5 without the prior approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be
either a principal, partner or financing source, publicly propose or participate in, effect or seek to effect, any extraordinary corporate transaction, tender offer or exchange offer, merger, acquisition, reorganization, restructuring,
recapitalization, change in the Company’s dividend policy, change in the Company’s certificate of incorporation or bylaws, business combination involving Company or a material amount of the assets or businesses of Company or any action
which would result in a class of securities of Company being delisted from a national securities exchange or to ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act or encourage any other person in any such activity;
15.6 purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any shares of Company capital stock
(other than in connection with a stock split, dividend or similar transaction or the exercise of Stock Options in accordance herewith);
15.7 disclose any intention, plan or arrangement inconsistent with the foregoing;
15.8 instigate, encourage, join, act in concert with or assist any third party to do any of the foregoing;
15.9 take any action that would reasonably be expected to require Company to make a public announcement regarding the possibility of any of the
events described in this Paragraph 15 or any of its subparts;
15.10 request that Company or the Board or any of their respective
representatives amend or waive any provision of this Paragraph 15 or any of its subparts (including this sentence); or
15.11 without the prior written consent of the Company, which consent may be withheld for any
reason, directly or indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose of, any shares of Common Stock of the Company (“Common
Stock”) (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations promulgated under the Securities Act of 1933, as the same may be amended
or supplemented from time to time (such shares, the “Beneficially Owned Shares”)) or securities convertible into or exercisable or exchangeable for Common Stock in excess of 12,500 shares of Common Stock on any single day,
(ii) enter into any swap, hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into or exercisable or exchangeable for Common
Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or (iii) engage in any short selling of the Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock.
16. Confidentiality. Except to the extent the terms are publicly disclosed
in the SEC filings of the Company, Executive shall not disclose or publicize the terms or fact of this Agreement, directly or indirectly, to any person or entity, except to his accountant, attorney, spouse, and to others as required by law.
17. Return of Company Property. Executive understands and agrees that consistent with Company policy and as a condition of
receiving the Severance Benefits, all Company property must be returned to Company. Within seven (7) days of the execution date, Executive agrees to return all Company property, data and information belonging to Company, including all code
and computer programs, and information of whatever nature, as well as any other materials, keys, passcodes, access cards, credit cards, computers/laptops, cellular phones, hard or external drives, documents or information, including but not limited
to confidential information in Executive’s possession or control. Further, Executive represents that Executive has retained no copies thereof, including electronic copies and agrees that Executive will not use or disclose to others any
confidential or proprietary information of Company, including but not limited to employee information, marketing information, trade secret information, client or customer data or contact information, strategic plans, financial information,
correspondence, and training materials. To the extent Executive at any point discovers Company property that Executive failed to return, Executive shall return any and all such Company property immediately. The Company agrees to return
Executive’s personal property within fourteen (14) days of the effective date.
18. Continuing Obligations.
18.1 Confidential Information. Executive acknowledges that in the course of his employment he has obtained confidential and proprietary
information about the Company, including but not limited to financial, business, product, customer and marketing information, plans, forecasts, and strategies, and that he is required to maintain the confidentiality of all such non-public
information following the separation of his employment. The Executive shall at all times, both before and after termination of employment, cooperate with the Company in executing and delivering documents and taking any other actions that are
necessary or requested by the Company. Executive specifically acknowledges and agrees to advise and provide any information related to the Company including but not limited to emails, telephone calls, documents, or any other communications Executive
receives after the Separation Date to the Company and that Executive will make reasonable efforts to advise the Company of such dealings. Executive also specifically acknowledges that post-termination, he will be bound by any confidentiality,
proprietary information or intellectual property agreements he executed related to his employment with Company.
18.2 Fiduciary
Duties. Executive acknowledges and understands that by virtue of his role as CEO with Company, he will remain bound by certain fiduciary duties and obligations after his Separation Date, and that he will not breach such fiduciary duties or duty
of loyalty.
18.3 Continuing Obligations under Securities Law.
18.3.1 Executive acknowledges that Executive continues to be subject to Company’s Insider Trading policy and agrees that if Executive
is aware of material nonpublic information about Company at the Separation Date, Executive agrees not to trade in securities of Company or disclose material nonpublic information about Company to a third party other than on a need-to-know basis,
until that information has become public or is no longer material.
18.3.2 Executive acknowledges that after the Separation Date, Executive
may continue to be subject to Section 16 of the Securities Exchange Act of 1934 (“Section 16”) and agrees to comply with the requirements of Section 16.
18.3.3 Executive acknowledges that Executive may continue to be an “affiliate” for purposes of federal securities law and agrees to
sell Company stock in compliance with restrictions imposed by Rule 144 of the Securities Act of 1933.
19. Essential Terms and Reimbursement of Consideration. Executive understands and
acknowledges that the promises in this Agreement, including Paragraphs 2 and 4, are a material inducement for Releasees to enter this Agreement and are of the essence of this Agreement. Executive therefore agrees that if he should breach any of the
provisions of the aforementioned paragraphs, he will be obligated to return to Releasees any payments made under this Agreement, including the Consideration and the value of the Consideration, as determined solely by Company, to the extent permitted
by law. Further, should Executive breach any provision of this Agreement, and Company is compelled to seek legal recourse to enforce the terms of this Agreement, Company shall be entitled to recover, and Executive agrees to indemnify, Company for
all fees and costs, including attorneys’ fees, associated with enforcing this Agreement.
20. No Knowledge of Wrongdoing.
Executive represents that Executive has no knowledge of any wrongdoing involving improper or false claims against a federal or state governmental agency.
21. Fees and Costs; Injunctive Relief. The parties shall bear their own attorneys’ fees and costs associated with negotiation and
execution of this Agreement, except that the Company shall pay the actual and reasonable fees and costs incurred by Paul Hastings LLP related to the negotiation and execution of this Agreement. However, should either party be required to incur fees
and costs associated with enforcing this Agreement, the prevailing party shall be entitled to recover all fees and costs including attorneys’ fees from the breaching party. In addition, either party is entitled to seek all available legal
remedies to enforce this Agreement, including seeking injunctive or declaratory relief in any jurisdiction, notwithstanding Paragraph 28.
22. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, supersedes
any prior agreements or understandings with respect to the subject matter hereof. The parties acknowledge that in signing this Agreement, they do not rely upon and have not relied upon any representation or statement made by any of the parties or
their agents with respect to the subject matter, basis or effect of this Agreement, other than those specifically stated in this written Agreement.
23. Legally Binding. The terms of this Agreement contained herein are contractual, and not a mere recital. This Agreement shall be
binding upon the parties to this Agreement and upon their heirs, administrators, representatives, executors and assigns. Executive represents and warrants that he has not transferred to any person or entity any rights, causes of action or claims
released in this Agreement.
24. Severability. If any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, the validity or enforceability of the remaining terms or provisions shall not be affected, and such term or provision shall be deemed modified to the extent necessary to make it enforceable.
25. Advice of Counsel; Voluntary Agreement. Executive is hereby advised in writing to consult with an attorney prior to the execution
of this Agreement. Executive acknowledges that he is acting of his own free will, that he has been afforded a reasonable time to read and review the terms of this Agreement, and that he is voluntarily entering into this Agreement with full knowledge
of its provisions and effects. Executive intends that this Agreement shall not be subject to any claim for duress.
26. No
Representations. The parties represent that they each have had the opportunity to consult with an attorney, at their own expense, and have carefully read and understand the scope and effect of the provisions of this Agreement. Neither Party has
relied upon any representations or statements made by the other Party hereto which are not specifically set forth in this Agreement.
27.
Amendments. Neither this Agreement nor any term hereof may be orally changed, waived, discharged, or terminated, and may be amended only by a written agreement between the parties hereto.
28. Governing Law and Jurisdiction. Subject to either party’s right to seek injunctive or declaratory relief in any jurisdiction
as described in Paragraph 21, this Agreement shall be governed by the laws of the State of California without regard to the conflict of law principles of any jurisdiction and the Company and Executive each submit to the exclusive jurisdiction
and venue of any state or federal court in the County of San Diego, California.
29. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
30. Good Faith Compliance. The parties agree to cooperate in good faith and to do all things necessary to effectuate this
Agreement.
IN WITNESS WHEREOF, the parties, acknowledging that they are acting of their own free will, have
caused the execution of this Agreement as of this day and year written below.
EXECUTIVE:
|
|
|
|
|
|
|
|
|
|
|
| /s/ Alexis V. Lukianov |
|
|
|
|
Witness: |
|
|
/s/
Katherine Lukianov |
| Alexis V. Lukianov
Date: March 28, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
| COMPANY: |
|
|
|
|
|
|
|
|
|
|
|
|
|
| By: |
|
/s/ Jason M. Hannon |
|
|
|
|
Witness: |
|
|
/s/
Patrick Miles |
| Name: Jason M. Hannon
Title: EVP, Corporate Development & General Counsel |
|
|
|
|
|
|
|
|
Date: March 29, 2015
SCHEDULE A
|
|
|
|
|
|
|
|
|
| Grant Date |
|
Grant
Type |
|
Grant
Number |
|
Unvested
Shares* |
|
Vesting Schedule |
| 2/26/2013 |
|
RSU |
|
6516 |
|
35,347 |
|
last 1/3 of 3-year award; vests 2/1/2016, subject to continued service |
|
|
|
|
|
| 2/19/2014 |
|
RSU |
|
7273 |
|
37,378 |
|
last 2/3 of 3-year award; 3-year vest schedule (annual); 2 vesting tranches remain, subject to continued service |
|
|
|
|
|
| 2/19/2014 |
|
PRSU |
|
P7273 |
|
56,066 |
|
TSR measured at 12/31/15; vests in 2 installments - 2/1/2016 & 2/1/2017, subject to company performance and continued service |
|
|
|
|
|
| 2/17/2015 |
|
Exec PRSU |
|
7887 |
|
42,563 |
|
4-year vest schedule (annual), subject to company performance and continued service |
|
|
|
|
|
| 2/17/2015 |
|
PRSU |
|
7893 |
|
21,282 |
|
TSR measured at 12/31/17; cliff vests at 2/1/2018, subject to company performance and continued service |
|
|
|
|
|
|
|
|
|
|
|
192,636 |
|
|
*** If a “Change in Control,” as defined in Executive’s May 14, 2014 Change in Control Agreement,
occurs during the period in which the Consulting Agreement continues to be valid and in effect and prior to the expiration of the term of such Consulting Agreement, any of Executive’s unvested RSUs and PRSUs listed in the table above and
outstanding at the time of such Change of Control shall be treated in conformity with the operative Change in Control agreements for other Company senior executive officers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Grant Date |
|
Grant
Type |
|
|
Grant
Number |
|
|
Strike
Price |
|
|
Exercisable
Shares |
|
| 1/3/2006 |
|
|
ISO |
|
|
|
1131 |
|
|
$ |
18.31 |
|
|
|
5,461 |
|
| 1/3/2006 |
|
|
NQ |
|
|
|
1132 |
|
|
$ |
18.31 |
|
|
|
163,289 |
|
| 1/16/2007 |
|
|
ISO |
|
|
|
1142 |
|
|
$ |
23.24 |
|
|
|
14,969 |
|
| 1/16/2007 |
|
|
NQ |
|
|
|
1143 |
|
|
$ |
23.24 |
|
|
|
285,031 |
|
| 1/4/2008 |
|
|
ISO |
|
|
|
1765 |
|
|
$ |
38.94 |
|
|
|
2,568 |
|
| 1/4/2008 |
|
|
NQ |
|
|
|
1766 |
|
|
$ |
38.94 |
|
|
|
397,432 |
|
| 1/2/2009 |
|
|
ISO |
|
|
|
2210 |
|
|
$ |
34.82 |
|
|
|
2,871 |
|
| 1/2/2009 |
|
|
NQ |
|
|
|
2211 |
|
|
$ |
34.82 |
|
|
|
397,129 |
|
| 1/4/2010 |
|
|
ISO |
|
|
|
3154 |
|
|
$ |
32.80 |
|
|
|
3,048 |
|
| 1/4/2010 |
|
|
NQ |
|
|
|
3155 |
|
|
$ |
32.80 |
|
|
|
346,952 |
|
| 1/3/2011 |
|
|
ISO |
|
|
|
4281 |
|
|
$ |
26.62 |
|
|
|
3,757 |
|
| 1/3/2011 |
|
|
NQ |
|
|
|
4282 |
|
|
$ |
26.62 |
|
|
|
296,243 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,918,750 |
|
Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement (“Agreement”) is made and entered into as of March 27, 2015 (“Effective Date”) by and
between NuVasive, Inc. (“Company”), 7475 Lusk Blvd., San Diego, CA 92121, and Alexis V. Lukianov (“Consultant”) at 6546 La Valle Plateada, Rancho Santa Fe, CA 92067-1145.
1 Engagement of Services. Company hereby engages Consultant to provide the Services described in the Assignment, which is attached
to this Agreement as “Exhibit A” and incorporated herein (“Assignment”). In the event of a conflict between the terms of this Agreement and the Assignment, the terms of the Assignment will control. Consultant
will be obligated to provide the Services and to deliver the materials and deliverables as specified in the Assignment. 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 Company will comply with (i) the requirements set forth in the Assignment, (ii) the Company’s policies and procedures;
(iii) Consultant’s obligations to the Company as a shareholder; and (iv) any agreements into which the Parties have entered, including any severance, confidentiality or proprietary agreements.
2 Compensation; Timing. Company will pay Consultant the Fee set forth in the Assignment for the Services provided as specified in
that Assignment. Consultant is not expected nor required to generate any business related expenses; however, should he do so without advance notice to Company and the Company’s approval of such expenses, he is responsible for all such
expenses. Upon the end of the Term (as defined herein), Consultant will be paid any remaining Fee owed to him as stated in the Assignment. If, however, this Agreement is terminated prior to the end of the Term for any reason by Company, Employee
shall not be paid any of the end of Term fees, unless otherwise provided in writing. If Employee terminates this Agreement prior to the end of the Term, due to no fault of Consultant, Company shall pay Consultant a pro-rata portion of the Fee.
3 Independent Contractor Relationship. Consultant’s relationship with Company is that of an independent contractor, and
nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment, or similar relationship. Consultant will not be entitled to any of the benefits that Company may make available to its
employees, including, but not limited to, group health or life insurance, profit-sharing benefits, or retirement benefits, unless expressly provided in writing otherwise with respect to any equity in the
Company Consultant may have. Consultant is not authorized to make any representation, contract, or commitment on behalf of Company unless specifically requested or authorized in writing to do so by a Company officer. Consultant is solely
responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, or local tax authority with respect to the performance of Services and receipt of fees under this
Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Services under this Agreement. No part of Consultant’s fee will be subject to withholding by Company
for the payment of any social security, federal, state, or any other employee payroll taxes. Company will regularly report amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue
Service as required by law. Consultant will indemnify and hold harmless Company from and against any and all tax liability related to this Agreement as well as any claims, actions, or charges arising out of or caused by Consultant’s
classification as an independent contractor.
4 Disclosure and Assignment of Work Resulting from Project Assignments.
4.1 “Innovations” and “Company Innovations” Definitions. In this Agreement,
“Innovations” means all discoveries, designs, developments, improvements, inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable
under copyright laws), trade secrets, know-how, ideas (whether or not protectable under trade secret laws), mask works, trademarks, service marks, trade names and trade dress. “Company Innovations” means Innovations that Consultant,
solely or jointly with others, creates, derives, conceives, develops, makes or reduces to practice under a Project Assignment.
4.2 Disclosure and Assignment of Company Innovations. Consultant agrees to maintain adequate and
current records of all Company Innovations, which records shall be and remain the property of Company. Consultant agrees to promptly disclose and describe to Company all Company Innovations. Consultant represents, warrants and covenants that all
Company Innovations shall be free and clear of any liens and encumbrances. Consultant hereby does and will irrevocably assign to Company or Company’s designee all of Consultant’s right, title and interest in and to any and all Company
Innovations and all associated records, such assignment to occur with respect to each Company Innovation at the time the Company Innovation is first conceived, made, derived, developed, written or created, and regardless of when the Company
Innovation is first conceived, made, derived, developed, written or created. To the extent any of the rights, title and interest in and to Company Innovations cannot be assigned by Consultant to Company, Consultant hereby grants to Company an
exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest, including,
but not limited to, the right to make, use, sell, offer for sale, import, have made, and have sold, the Company Innovations. To the extent any of the rights, title and interest in and to the Company Innovations can neither be assigned nor licensed
by Consultant to Company, Consultant hereby irrevocably waives and agrees never to assert the non-assignable and non-licensable rights, title and interest against Company, any of Company’s successors in interest, or any of Company’s
customers. If any Company Innovations include any work of authorship that qualifies as a “work made for hire” as defined in subclause (2) under Section 101 of the Copyright Law of the United States (Title 17 of the United States
Code, as may be amended from time to time), Company and Consultant agree that Company owns such work of authorship as a work made for hire under such section.
4.3 Assistance. Consultant agrees to perform, during
and after the term of this Agreement, all acts that Company deems necessary or desirable to permit and assist Company, at its expense, in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and title throughout the world in the
Company Innovations as provided to Company under this Agreement. If Company is unable for any reason to secure Consultant’s signature to any document required to file, prosecute, register or memorialize the assignment of any rights under
any Company Innovations as provided under this Agreement, Consultant hereby irrevocably designates and appoints Company and Company’s duly authorized officers and agents as Consultant’s agents and attorneys-in-fact to act for and on
Consultant’s behalf and instead of Consultant to take all lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance and enforcement of rights in, to and under the Company Innovations, all
with the same legal force and effect as if executed by Consultant. The foregoing is deemed a power coupled with an interest and is irrevocable.
4.4 Assignment by Employees of Consultant. Consultant covenants, represents and warrants that each of
Consultant’s employees, to the extent Consultant has employees, who perform any Services for Consultant on behalf of Company has or will have a written agreement with Consultant that provides Consultant with all necessary rights to fulfill its
obligations under this Agreement, including but not limited to the obligations of this Section 4.
5 Confidentiality.
5.1 Definition of Confidential Information. “Confidential Information” means (a) any
technical and non-technical information related to the Company’s business and current, future, and proposed products and services of Company, including for example and without limitation, Company Innovations, Company Property (as defined in
Section 6 (Ownership and Return of Confidential Information and Company Property)), and Company’s information concerning research, development, design details and specifications, financial information, procurement requirements, business
forecasts, sales information, marketing plans, engineering and manufacturing information, customer lists and business plans, in each case whether or not marked as “confidential” or “proprietary” and (b) any information that
Company has received from others that Company makes known to Consultant and that Company is obligated to treat as confidential or proprietary, whether or not marked as “confidential” or “proprietary.”
5.2 Nondisclosure and Nonuse Obligations. Except as permitted in this Section, Consultant will not
(i) use any Confidential Information or (ii) disseminate or in any way disclose the Confidential Information to any person, firm, business or governmental agency or department. Consultant may use the Confidential Information solely to
perform Project Assignment(s) for the benefit of Company. Consultant shall treat all Confidential Information with the same degree of care as Consultant accords to Consultant’s own confidential information, but in no case shall Consultant
use less than reasonable care. If Consultant is not an individual, Consultant shall disclose Confidential Information only to those of Consultant’s employees who have a need to know the information as necessary for Consultant to perform
this Agreement. Consultant certifies that each of its employees will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions at least as protective as those terms
and conditions applicable to Consultant under this Agreement. Consultant shall immediately give notice to Company of any unauthorized use or disclosure of the Confidential Information. Consultant shall assist Company in remedying any the
unauthorized use or disclosure of the Confidential Information. Consultant agrees not to communicate any information to Company in violation of the proprietary rights of any third party.
5.3 Exclusions from Nondisclosure and Nonuse Obligations. Consultant’s obligations under
Section 5.2 do not apply to any Confidential Information that Consultant can demonstrate (a) was in the public domain at or subsequent to the time the Confidential Information was communicated to Consultant by Company through no fault of
Consultant; (b) was rightfully in Consultant’s possession free of any obligation of confidence at or subsequent to the time the Confidential Information was communicated to Consultant by Company; or (c) was independently developed by
employees of Consultant without use of, or reference to, any Confidential Information communicated to Consultant by Company. A disclosure of any Confidential Information by Consultant (a) in response to a valid order by a court or other
governmental body or (b) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Consultant provides prompt prior written notice thereof to
Company to enable Company to seek a protective order or otherwise prevent the disclosure.
6 Ownership and Return of Confidential Information and Company Property. All
Confidential Information and any materials and items (including, without limitation, software, equipment, tools, artwork, documents, drawings, papers, diskettes, tapes, models, apparatus, sketches, designs and lists) that Company furnishes to
Consultant by Company, whether delivered to Consultant by Company or made by Consultant in the performance of Services under this Agreement and whether or not they contain or disclose Confidential Information (collectively, the “Company
Property”), are the sole and exclusive property of Company or Company’s suppliers or customers. Consultant agrees to keep all Company Property at Consultant’s premises unless otherwise permitted in writing by Company. Within
five (5) days after any request by Company, Consultant shall destroy or deliver to Company, at Company’s option, (a) all Company Property and (b) all materials and items in Consultant’s possession or control that contain or
disclose any Confidential Information. Consultant will provide Company a written certification of Consultant’s compliance with Consultant’s obligations under this Section.
7 Indemnification.
7.1 Consultant will indemnify and hold harmless Company 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) a claim that any item, material, and other deliverable delivered by Consultant under this Agreement that
infringes any intellectual property rights of a third party; (ii) any violation of Consultant’s obligations with respect to disclosure of any confidential information, misrepresentations of Consultant on behalf of Company, improper or
negligent communications with Company’s employees, directors, officers, or agents, and any violation of the conflict of interest provision that causes any harm, in reputation or financially, to Company; (iii) any negligence or violation of
Company rules or policies by Consultant; or (iv) any breach of this Agreement by Consultant.
7.2
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 or: (i) arising out of
Consultant’s conduct on behalf of the Company, so long as it is within the scope and course of Consultant’s prior employment, and that falls within any liability coverage; and/or (ii) as required by law.
8 Observance of Company Rules. At all times, Consultant will observe Company’s rules and regulations with respect to conduct,
health, safety, anti-harassment/discrimination/retaliation and protection of persons and property, provided that Company provides Consultant with a copy of such Company rules and regulations.
9 No Conflict of Interest. During the term of this Agreement, Consultant will not accept work, enter into a contract or accept an
obligation inconsistent or incompatible with Consultant’s obligations, or the scope of Services to be rendered for Company, under this Agreement, or that compromises the interests of the Company. This includes engaging in providing services, in
any capacity, including as an agent, advisor, director, employee or consultant, to or for any competitor business of the Company, and soliciting, directly or indirectly, former or current employees of Company, or Company customers or clients, away
from doing business with Company. During the term of this Agreement, Consultant covenants and agrees that Consultant will not, directly or indirectly, either for himself or for any other person or company: (i) solicit or induce any employee of
Company to terminate his or her employment with the Company; or (ii) employ any such individual during his or her employment with the Company and for a period of three months after such individual terminates employment with the Company.
Consultant shall act in the best interest of Company while providing Services to Company. Consultant warrants that, to the best of Consultant’s knowledge, there is no other existing contract or duty on Consultant’s part that conflicts
with or is inconsistent with this Agreement. Consultant agrees to indemnify and hold harmless Company from any and all losses and liabilities incurred or suffered by Company by reason of the alleged breach by Consultant of any services
agreement between Consultant and any third party.
10 Term and Termination.
10.1 Term. This Agreement is effective as of the Effective Date set forth above and will terminate
on the eighteenth (18th) month anniversary thereof unless terminated earlier as set forth below (“Term”).
10.2 Termination by Company. Company may terminate this Agreement (a) upon Consultant’s
material, uncured breach of Section 4 (Disclosure and Assignment of Work Resulting from Assignments), 5 (Confidentiality), 9 (No Conflict of Interest) or 11 (Noninterference with Business), or (b) for any material breach of this Agreement
or his obligations by Consultant.
10.3 Termination by Consultant. Consultant may not terminate
this Agreement during the Term except or unless Company breaches this Agreement. Should Consultant believe that Company breached this Agreement, Consultant will notify the Company in writing and allow Company to cure any breach, so long as it is not
material, within ten (10) days after the date of Consultant’s written notice of breach.
10.4
Survival of Terms After Expiration or Termination. The definitions contained in this Agreement and the rights and obligations contained in this Section and Sections 4 (Disclosure and Assignment of Work Resulting from Assignments), 5
(Confidentiality), 6 (Ownership and Return of Confidential Information and Company Property), 7 (Indemnification), 11 (Noninterference with Business) and 13 (General Provisions) will survive any termination or expiration of this
Agreement.
11 Noninterference with Business. During this Agreement, and for a period of six (6) months immediately
following the termination or expiration of this Agreement, Consultant agrees not to solicit or induce any employee or independent contractor of Company with whom Consultant has contact in the performance of this Agreement to terminate or breach an
employment, contractual, or other relationship with Company.
12 General Provisions.
12.1 Successors and Assigns. Consultant shall not assign Consultant’s rights or delegate any
performance under this Agreement without the prior written consent of Company. For the avoidance of doubt, Consultant may not subcontract performance of any Services under this Agreement to any other contractor or consultant without
Company’s prior written consent. All assignments of rights by Consultant are prohibited under this paragraph, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For
purposes of this paragraph, (i) a “change of control” is deemed an assignment of rights; and (ii) “merger” refers to any merger in which Consultant participates, regardless of whether it is the surviving or disappearing
entity. Any purported assignment of rights or delegation of performance in violation of this paragraph is void. This Agreement will be for the benefit of Company’s successors and assigns, and will be binding on Consultant’s permitted
assignees.
12.2 Injunctive Relief. Consultant’s obligations under this Agreement are of a
unique character that gives them particular value; Consultant’s material, uncured breach of any of these obligations will cause irreparable and continuing damage to Company for which money damages are insufficient, and Company is entitled to
injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.
12.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be
delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of
receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may provide
in writing.
12.4 Governing Law; Forum. The laws of the United States of America and the State of
California govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts
located in San Diego, California, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of the federal or state courts located in San Diego, California,
personal jurisdiction will be non-exclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction. If
a proceeding is commenced to resolve any dispute that arises between the parties with respect to the matters covered by this Agreement, the prevailing party in that proceeding is entitled to receive its reasonable attorneys’ fees, expert
witness fees and out-of-pocket costs, in addition to any other relief to which that prevailing party may be entitled.
12.5 Severability. If a court of law holds any
provision of this Agreement to be illegal, invalid, or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) if a deemed
modification is not satisfactory in the judgment of such court, the unenforceable provision shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.
12.6 Waiver; Modification. If Company waives any term, provision, or Consultant’s breach of
this Agreement, such waiver shall not be effective unless it is in writing and signed by Company. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by Consultant. This Agreement
may be modified only by mutual written agreement of authorized representatives of the parties.
12.7
Signatures in Counterparts. This Agreement may be executed in one or more identical counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.
12.8 Entire Agreement. This Agreement, and the attached Assignment, which is Exhibit “A,”
constitute the final and exclusive agreement between the parties relating to this subject matter and supersedes all agreements, whether prior or contemporaneous, written or oral, concerning such subject matter.
IN WITNESS WHEREOF, the parties are signing this Assignment as of the later date below.
|
|
|
|
|
|
|
| NUVASIVE, INC. |
|
|
|
CONSULTANT |
|
|
|
|
| By: |
|
/s/ Jason M. Hannon |
|
|
|
/s/ Alexis V. Lukianov |
| Name: Jason M. Hannon |
|
|
|
Alexis V. Lukianov |
| Title: Executive Vice President, Corporate Development & General
Counsel Date: March 29, 2015 |
|
|
|
Date: March 28, 2015 |
Exhibit A
ASSIGNMENT
| 1. |
Consultant Services: Consultant will provide solely at the request of the Chief Executive Officer or his or her designee the following
Services (collectively, the “Services”): |
| |
• |
|
Transition assistance and such services in connection therewith as shall be requested by the Company. |
| |
• |
|
Guidance and expertise based on prior experience as CEO. |
| |
• |
|
Communication of any institutional knowledge, client or business information. |
| |
• |
|
General support of Company interests and goals. |
Consultant is not required, nor expected, to report to work or represent the Company or its parent, subsidiary, affiliate, divisions and
related entities (“Related Entities”), in any capacity. Consultant shall not represent himself as an agency of Company or its Related Entities.
The Services shall be performed by Consultant in his discretion, and Company shall not control Consultant as to the work done or manner and
means in which it is performed, nor shall Company supervise Consultant’s work on a day-to-day basis.
| 2. |
Tools and Materials: Consultant will use his own equipment and materials to perform the Services, and shall only utilize Company’s
equipment and materials to the extent Consultant deems necessary within his discretion. Consultant shall not have access to any Company property, including its computers, laptops, software or network. |
| 3. |
Non-Exclusivity: Company acknowledges and agrees that during the “Term” (as defined below), Consultant may render services
for other companies or individuals subject to the Agreement including Paragraph 9 (No Conflict of Interest) and Paragraph 11 (Noninterference with Business). For the sake of clarity, Consultant agrees he will not accept work, enter into a contract,
or accept an obligation inconsistent or incompatible with Consultant’s Services to be rendered for Company, as set forth herein. |
| 4. |
Fees: Subject to Consultant’s satisfactory completion of the Services, and Consultant’s compliance with the obligations and
promises herein, Company will pay Consultant a monthly fee of $27,777 commencing on April 1, 2015 through September 30, 2016 (i.e. 18 months of service for a total cash compensation of $500,000). Compliance with this Agreement includes
Consultant’s promise to not breach any provision in the Agreement including but not limited to Paragraph 5 (Confidentiality), Paragraph 9 (No Conflict of Interest), or Paragraph 11 (Noninterference with Business). If Consultant breaches
Paragraph 11 after the Term, Consultant is obligated to repay Company all of the Fee within 30 days of the breach. For the sake of clarity, if Consultant violates this Agreement, his Services shall be terminated and he will not be entitled to any
portion of the Fee, prorated or otherwise. |
Equity: Subject to Consultant’s compliance with this Agreement,
including, but not limited to, Consultant’s uninterrupted service to the Company and Consultant’s promise to not breach any provision in the Agreement, including, but not limited to, Paragraph 5 (Confidentiality), Paragraph 9 (No Conflict
of Interest), or Paragraph 11 (Noninterference with Business), Consultant’s rights under equity awards set forth on Schedule A will continue to be determined pursuant to the terms of the relevant award agreements based Consultant’s
continued service to the Company. Executive also holds certain options to purchase equity of the Company which shall remain exercisable pursuant to the terms of such equity awards for so long as Executive continues to provide services to the Company
pursuant to the terms of this Consulting Agreement.
Schedule A
|
|
|
|
|
|
|
|
|
| Grant Date |
|
Grant
Type |
|
Grant
Number |
|
Unvested
Shares* |
|
Vesting Schedule |
| 2/26/2013 |
|
RSU |
|
6516 |
|
35,347 |
|
last 1/3 of 3-year award; vests 2/1/2016, subject to continued service |
|
|
|
|
|
| 2/19/2014 |
|
RSU |
|
7273 |
|
37,378 |
|
last 2/3 of 3-year award; 3-year vest schedule (annual); 2 vesting tranches remain, subject to continued service |
|
|
|
|
|
| 2/19/2014 |
|
PRSU |
|
P7273 |
|
56,066 |
|
TSR measured at 12/31/15; vests in 2 installments - 2/1/2016 & 2/1/2017, subject to company performance and continued service |
|
|
|
|
|
| 2/17/2015 |
|
Exec PRSU |
|
7887 |
|
42,563 |
|
4-year vest schedule (annual), subject to company performance and continued service |
|
|
|
|
|
| 2/17/2015 |
|
PRSU |
|
7893 |
|
21,282 |
|
TSR measured at 12/31/17; cliff vests at 2/1/2018, subject to company performance and continued service |
|
|
|
|
|
|
|
|
|
|
|
192,636 |
|
|
*** If a “Change in Control,” as defined in Executive’s May 14, 2014 Change in Control
Agreement, occurs during the period in which the Consulting Agreement continues to be valid and in effect and prior to the expiration of the term of such Consulting Agreement, any of Executive’s unvested RSUs or PRSUs provided for in the table
above and outstanding at the time of such Change of Control shall be treated in conformity with the operative Change in Control agreements for other Company senior executive officers.
Exhibit 99.1
PRESS RELEASE
Investor/Media Contact:
Stacy Roughan
NuVasive, Inc.
1-858-909-1812
sroughan@nuvasive.com
NUVASIVE ANNOUNCES LEADERSHIP TRANSITION
| |
• |
|
Gregory T. Lucier Appointed Chairman and Interim Chief Executive Officer |
| |
• |
|
Alex V. Lukianov Steps Down as Chairman and Chief Executive Officer |
| |
• |
|
Company Anticipates 2015 First Quarter Revenue Will Exceed $190 Million, Including More Than $2 Million of Currency Headwinds
|
SAN DIEGO, CA – April 1, 2015 – NuVasive, Inc. (NASDAQ: NUVA) (“NuVasive” or the
“Company”), a medical device company focused on developing minimally disruptive surgical products and procedures for the spine, today announced that Greg Lucier, a member of the Company’s Board of Directors since 2013, has been
appointed to serve as Chairman of the Board and Interim Chief Executive Officer. This appointment follows Alex Lukianov’s resignation as Chief Executive Officer and a member of the Company’s Board.
Jack R. Blair, Lead Independent Director of the NuVasive Board, said, “The results of an independent investigation overseen by the Board
of Directors revealed that Alex had not complied with certain of the Company’s expense reimbursement and personnel policies. Although the amounts involved appear to be immaterial to the Company’s financial results, his actions in this
regard were not representative of the high standards by which NuVasive operates. We believe this leadership transition is appropriate and in the best interests of the Company and all of our stakeholders. We appreciate the positive contributions Alex
has made to the Company and wish him well in his future endeavors.”
Mr. Blair continued, “NuVasive has a talented and deep
team which has helped to establish the strong operating and financial foundation we have in place. We are pleased that Greg has agreed to work alongside this team and serve as Chairman and Interim CEO. Greg’s knowledge of our Company and his
record of executive leadership at companies in complementary industries make him the ideal choice to serve in these roles.
“As a
director since 2013, Greg has gained a solid understanding of NuVasive’s strategy, business and priorities moving forward. As the former Chairman and CEO of Life Technologies and a General Electric executive before that, Greg also brings
extensive experience in growing companies into globally competitive organizations, particularly within the healthcare and biotechnology markets. Together with our dedicated senior management team, we are confident that Greg’s leadership will
ensure a smooth transition,” Mr. Blair concluded.
Mr. Lucier said, “I look forward to working with the NuVasive Board
and management team in this expanded role. I have great confidence in the Company’s senior management team, strategic direction and opportunities that lie ahead. NuVasive benefits from an experienced team, which shares a commitment to improving
patient outcomes by providing our surgeon customers with the most innovative procedural offerings. The Company’s strengths have enabled NuVasive to become the #3 player in the global spine market. Going forward, we will remain focused on market
share-taking strategies that have been responsible for driving double-digit revenue growth. At the same time, we will continue to leverage meaningful scale and efficiencies in our business, which are translating to both accelerated profit growth and
strong free cash flow. All of us at NuVasive are committed to executing against our strategic priorities to ensure we build on our record of growth and value creation.”
First Quarter 2015 Revenue
The
Company today announced that it anticipates first quarter 2015 revenue will be in excess of $190 Million, including more than $2 million of currency headwinds, and remains on track for 2015 profitability goals. The Company will announce
complete financial and operating results on its first quarter 2015 performance and review its guidance for the full year 2015 when it reports first quarter 2015 results.
About Gregory T. Lucier
Mr. Lucier has served as a member of the NuVasive Board of Directors since December 2013 and is currently a member of the Board’s
Audit and Compensation committees.
From May 2003 to February 2014, Mr. Lucier served as Chairman and Chief Executive Officer of Life
Technologies, a global life sciences company acquired by Thermo Fisher Scientific in 2014. During Mr. Lucier’s 11-year tenure at Life Technologies, he led the company from a small start-up known as Invitrogen in 2003, directed the
acquisition and merger of Invitrogen with Applied Biosystems in 2008 into the renamed Life Technologies, and then transformed the organization by 2013 into a global, world-leading biotechnology firm with 50,000 products, 12,000 employees and nearly
$4 billion in sales in more than 180 countries. Serving in his leadership role, Mr. Lucier was responsible for fostering a culture of excellence at Life Technologies and applied his more than 25 years of strategic management experience to help
champion an era of personalized medicine.
Mr. Lucier previously was a Corporate Officer of General Electric and served as an executive at GE Medical
Systems.
He received a bachelor’s degree in engineering from Pennsylvania State University and a masters of business administration
from Harvard Business School. In addition to serving on the Board of NuVasive, Mr. Lucier serves as the Board Chairman for Sanford Burnham Medical Research Institute and is a former director of CareFusion Corporation, now part of Becton,
Dickinson & Co.
About NuVasive
NuVasive is an innovative global medical device company that is changing spine surgery with minimally disruptive surgical products and
procedurally-integrated solutions for the spine. The Company is the third largest player in the $9.0 billion global spine market. NuVasive offers a comprehensive spine portfolio of more than 90 unique products developed to improve spine surgery and
patient outcomes. The Company’s principal procedural solution is its Maximum Access Surgery, or MAS®, platform for lateral spine fusion. MAS was designed to provide safe, reproducible,
and clinically proven outcomes, and is a highly differentiated solution with fully integrated neuromonitoring, customizable exposure, and a broad offering of application-specific implants and fixation devices designed to address a variety of
pathologies.
Forward-Looking Statements
NuVasive cautions you that statements included in this news release that are not a description of historical facts are forward-looking
statements that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause NuVasive’s results to differ materially from historical results or those expressed or implied by such
forward-looking statements. The potential risks and uncertainties which contribute to the uncertain nature of these statements include, among others, risks that additional violations are identified, risks associated with acceptance of the
Company’s minimally disruptive surgical products by spine surgeons, development and acceptance of new products or product enhancements, the Company’s ability to effectually manage inventory as it continues to release new products, its
ability to recruit and retain management and key personnel (including with respect to its recruitment of a new Chief Executive Officer), and the other risks and uncertainties described in NuVasive’s news releases and periodic filings with the
Securities and Exchange Commission. NuVasive’s public filings with the Securities and Exchange Commission are available at www.sec.gov. NuVasive assumes no obligation to update any forward-looking statement to reflect events or
circumstances arising after the date on which it was made.
# # #
Nuvasive (NASDAQ:NUVA)
Historical Stock Chart
From Mar 2024 to Apr 2024
Nuvasive (NASDAQ:NUVA)
Historical Stock Chart
From Apr 2023 to Apr 2024
