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): May 22, 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  5.02 Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Effective on May 22, 2015, the Board of Directors (the “Board”) of NuVasive, Inc. (the “Company”) appointed Gregory T. Lucier, age 51, as its Chief Executive Officer (in addition to his current role as Chairman of the Board). Mr. Lucier had served as Chairman of the Board and interim Chief Executive Officer since March 27, 2015 and as a member of the Company’s Board since December 2013.

The Board has structured a compensation package for Mr. Lucier that is highly tied to the Company achieving specific financial and operational targets, including total shareholder return performance, specific stock price hurdles, revenue growth, and growth in non-GAAP operating margins.

Mr. Lucier has entered into a letter agreement with the Company setting out certain terms of his employment as Chairman of the Board and Chief Executive Officer (the “Letter Agreement”). Pursuant to that Letter Agreement, Mr. Lucier’s initial base salary is $800,000 per year and is subject to annual review by the Board, and his target annual cash incentive bonus is 115% of his base salary with a range between 0% and 230% based on Company performance against performance measures previously established by the Board’s Compensation Committee (applicable for all eligible Company Shareowners (employees)), with a payout for 2015 equal to the greater of actual performance payout or $1 million.

Mr. Lucier received a long-term incentive award for fiscal year 2015 (“2015 Long-term Incentive Award”) that consists of (i) a grant of 55,991 restricted stock units that vest in equal installments over four years subject to a 2015 non-GAAP EPS performance goal which must be satisfied before such stock units can vest; (ii) a grant of 27,996 performance restricted stock units “(PRSUs”) that cliff vest and are settled in shares of our common stock based on a performance multiplier based on the Company’s relative shareholder return (“relative TSR”) over a three-year period; and (iii) a performance-based cash award of $1,250,000 that cliff vests after three years and is paid in cash based on a performance multiplier based on the Company’s non-GAAP operating margin at the end of 2017. Mr. Lucier also received (a) a one-time performance inducement grant designed to drive sustainable performance that delivers long term value to the Company’s stockholders (the “Inducement Award”) of 156,775 PRSUs that cliff vest after four years and are settled in shares of our common stock within a range of 0% to 200% based on the Company’s relative TSR over that period, and (b) a share purchase matching PRSU award (the “Matching Award”) whereby the Company will grant Mr. Lucier one (1) PRSU for each share of Company stock purchased by Mr. Lucier prior to the ninetieth day after the grant of the award that he holds through the vesting period (not to exceed 115,000 PRSUs), with such PRSUs vesting after five years of service and being settled in shares of Company common stock with a range of 0% to 200% according to the Company’s stock price performance at the end of the five-year period, with no shares earned if the Company’s stock price is less than $70 per share at such time (adjusted for certain stock splits, stock dividends, reclassifications, and the like). The 2015 Long-term Incentive Award, the Matching Award and the Inducement Award provide for pro-rata accelerated vesting based on service and performance achieved in the event that Mr. Lucier’s employment is involuntarily terminated without cause, and for full vesting in the event of death or disability. The foregoing description of the Inducement Award and Matching Award is a general description only and is qualified in its entirety by reference to the forms of such award agreements that are filed as exhibits to this Form 8-K. The foregoing description of the 2015 Long-term Incentive Award is a general description only and is qualified in its entirety by reference to the forms of such award agreements that were filed with the Company’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 4, 2015 as Exhibits 10.3, 10.4, and 10.5 and incorporated herein by reference.

Mr. Lucier also entered into a Change of Control Agreement (the “Change in Control Agreement”) with the Company and, in consideration for entering into Change in Control Agreement and as specified in the Letter Agreement, has agreed that, in the event his employment is terminated and he receives severance payments and benefits under the Change in Control Agreement, for a period of two (2) years following that termination of employment he will not compete with the Company and will hold himself out as available to perform certain services for the Company. Additionally, Mr. Lucier will be covered by the Company’s Executive Severance Plan during his employment with the Company; provided, however, that the Letter Agreement provides for certain modifications to the eligibility provisions under the Executive Severance Plan as it applies to Mr. Lucier.

The foregoing general descriptions of certain provisions of the Letter Agreement is a limited and general description only and is qualified in its entirety by reference to such letter agreement which is filed as an exhibit to this Form 8-K and hereby incorporated by reference. The form of the Change in Control Agreement and the Executive Severance Plan were previously approved by the Compensation Committee in May 2014, and filed with the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 19, 2014 as Exhibits 99.2 and 99.3 and incorporated herein by reference.

 

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As previously disclosed 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.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

10.1

Letter Agreement by and between Mr. Gregory T. Lucier and NuVasive, Inc. setting out certain terms of his employment as Chairman of the Board and Chief Executive Officer.

10.2

NuVasive, Inc. Notice of Grant of Share Purchase Matching Performance Restricted Stock Units and Award Agreement, granted to Mr. Gregory T. Lucier on May 22, 2015.

10.3

NuVasive, Inc. Notice of Grant of “Inducement” Performance Restricted Stock Units and Award Agreement, granted to Mr. Gregory T. Lucier on May 22, 2015.

99.1

Press release issued by NuVasive, Inc. on May 26, 2015 announcing appointment of Gregory T. Lucier as Chief Executive Officer.

 

 

3

 

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: May 26, 2015

By:

/s/ Jason Hannon

Jason Hannon

Executive Vice President & General Counsel

 

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Exhibit Index

 

Exhibit

Number

   

Description

10.1   

Letter Agreement by and between Mr. Gregory T. Lucier and NuVasive, Inc. setting out certain terms of his employment as Chairman of the Board and Chief Executive Officer.

10.2   

NuVasive, Inc. Notice of Grant of Share Purchase Matching Performance Restricted Stock Units and Award Agreement, granted to Mr. Gregory T. Lucier on May 22, 2015.

10.3   

NuVasive, Inc. Notice of Grant of “Inducement” Performance Restricted Stock Units and Award Agreement, granted to Mr. Gregory T. Lucier on May 22, 2015.

99.1   

Press release issued by NuVasive, Inc. on May 26, 2015 announcing appointment of Gregory T. Lucier as Chief Executive Officer.

 

5



Exhibit 10.1

 

LOGO

May 22, 2015

Mr. Gregory T. Lucier

Dear Greg:

The Board of Directors (the “Board”) of NuVasive, Inc. (the “Company”) is pleased to offer to you the position of Chief Executive Officer of the Company (in addition to your continuing role as Chairman of the Board) subject to the terms and conditions of this letter agreement and the accompanying agreements.

1. Title, Duties and Responsibilities. Your title will be Chairman of the Board and Chief Executive Officer of the Company. In this capacity, you will be a full-time employee of the Company, report directly to the Board of Directors of the Company (the “Board”), and have all of the duties and responsibilities attendant to the position of Chairman of the Board and Chief Executive Officer as provided in the Company’s Bylaws and such other duties and responsibilities as are reasonably assigned by the Board.

You may continue to engage in charitable activities and serve as a member of the board of directors of Catalent Corp., Invuity, Inc., and such other companies as the Board may approve from time-to-time.

2. Effective Date and Term. Your employment with the Company will be effective on the date you execute this letter agreement (the “Effective Date”) and not be for any specific term and may be terminated by you or by the Company at any time, with or without cause and with or without notice. The at-will nature of your employment described in the forgoing sentence shall constitute the entire agreement between you and the Company concerning the duration of your employment and the circumstances under which either you or the Company may terminate your at-will employment relationship, subject to your right to severance as provided in this letter agreement and the other accompanying agreements.

3. Compensation.

Base Salary. Your initial base salary will be $800,000 per year, less applicable taxes and other withholdings, which will be paid in accordance with NuVasive’s normal payroll practices. The base salary will be paid retroactive to March 27, 2015, the date on which you became the interim Chief Executive Officer of the Company, net of the amount of cash retainer paid to you by the Company for your service as a Director on and after March 27, 2015. Your base salary will be reviewed annually by the Compensation Committee of the Board (“Compensation Committee”). The base salary shall not be reduced, except in circumstances in which salary reductions are applied generally and uniformly to members of senior management of the Company.

Bonus. You will participate in the Company’s Annual Bonus plan. For 2015, your target bonus opportunity is 115% of your base salary, and the maximum payout for that plan will be 230% of your base salary. The actual payout will be based on achievement of the plan-specified 2015 performance measures as previously established by the Compensation Committee, although, if the 2015 operating plan is achieved, your actual payout will be equal to the greater of $1 million or the actual performance payout as determined by the Compensation Committee.

Benefits. NuVasive provides an excellent benefits package. You will be eligible to apply for all standard benefits available to other full-time NuVasive Shareowners (employees), subject to NuVasive’s policies, the applicable plan documents and benefit plan provisions. Additionally, you will be eligible for the executive benefits package that includes an annual executive physical. All compensation, benefits and employer policies and programs will be administered in accordance with the respective NuVasive policies, plans and procedures, which may include waiting periods and other eligibility requirements to participate. NuVasive reserves the right to change or eliminate these policies and programs at any time during the course of your employment, without notice.

Long-term Incentive Awards. Conditioned upon your acceptance of employment as provided in this letter agreement, the Compensation Committee has granted to you the following awards, subject to the terms and conditions set forth in the corresponding award agreements accompanying this letter: (i) 156,775 Performance Restricted Stock Units; (ii) up to 115,000 Share Purchase Matching Performance Restricted Stock Units; (iii) 55,991 Executive Restricted Stock Units; (iv) 27,996 Performance Restricted Stock Units; and (v) a Performance Cash Award. You will receive additional long-term incentive awards as determined by the Compensation Committee pursuant to its annual review of compensation of the Company’s executive officers, and those awards will include provisions for pro rata vesting that are similar to those contained in your annual Long-term Incentive award agreements for 2015. It is currently the Compensation Committee’s intent that you will receive a 2016 long-term incentive award with an aggregate grant value of $5 million.

4. Severance and Change in Control. You will be eligible for severance benefits as provided in the NuVasive, Inc. Executive Severance Plan as in effect on the Effective Date and without regard to any amendments or termination thereof. For purposes of that plan, we agree that (1) if you terminate your employment within ninety (90) days after the Board fails to nominate you for election as a member of the Board, the termination of your employment shall be treated as involuntary, and (2) you must be provided a period of at least sixty (60) days following receipt of written notice outlining with specificity all facts or omissions that the Company alleges give rise to a termination for cause pursuant to Section II,C.1 or 2, during which period you may effect a cure of any curable actions or omissions forming the basis for the termination for cause.

Also, you will be subject to the provisions of the accompanying Change in Control Agreement provided you execute that agreement and the accompanying Proprietary Information and Inventions Assignment and Restrictive Covenant Agreement. As a further condition to entering into that Change in Control Agreement, you hereby agree that, in the event that your employment is terminated and you receive severance payments and benefits under the Change in Control Agreement, then, for a period of two (2) years following the effective date of that termination of employment (the “Restricted Period”), you:

(1) will not directly or indirectly, own, operate, control or participate in the ownership, operation or control of any business enterprise (including, without limitation, any corporation, partnership, proprietorship or other venture) engaged in any line or type of business conducted by the Company or any of its subsidiaries or affiliates during the period in which you have has been employed by the Company prior to the Change in Control (as defined in the Change in Control Agreement), provided that this restriction shall not prevent you from purchasing or owning, directly or beneficially, as a passive investment, less than five percent (5%) of any class of the publicly traded securities of any corporation; and

(2) will hold yourself out as available to perform consulting services for the Company or its successor upon such reasonable terms and conditions as shall be agreed upon between you and the Company (or its successor).

As a Shareowner (employee) of the Company, you will be required to comply with all Company policies and procedures. You will also be subject to stock ownership guidelines, as determined from time-to-time by the Compensation Committee, which require that you, as the Company’s Chief Executive Officer, have holdings in Company stock equal to three times (3x) your base salary, with five (5) years allowed for you to achieve the guided holdings.

The provisions of this letter agreement shall be governed by the laws of the State of Delaware other than the conflicts of laws provisions thereof.

Please sign below and return the fully executed letter agreement to Karen Osgood. We are looking forward to having you join the NuVasive team.

 

Very truly yours,

NUVASIVE, INC.

By:

 

  Jack Blair, Lead Director

I have read this letter in its entirety and agree with the terms and conditions of employment set forth in this letter agreement.

 

Dated: May 22, 2015

 

Gregory T. Lucier


Exhibit 10.2

NUVASIVE, INC.

NOTICE OF GRANT OF SHARE PURCHASE MATCHING PERFORMANCE RESTRICTED STOCK UNITS

NuVasive, Inc. (the “Company”) has granted to the participant identified below (the “Participant”) an award (the “Award”) of the number of performance restricted stock units specified below in this Grant Notice (each, a “Performance Restricted Stock Unit” or “PRSU”) pursuant to the 2014 Equity Incentive Plan of NuVasive, Inc. (the “Plan”). This Award is subject to all of the terms and conditions set forth in the Performance Restricted Stock Unit Agreement attached hereto (together with this Grant Notice, the “Agreement”) and the Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Plan or the Agreement, as appropriate, and, in the event of any inconsistency between the Plan and the Agreement, the terms of the Plan shall control.

 

Participant:

 Gregory T. Lucier

Participant ID:                                 

Date of Grant:

 May 22, 2015

Number of PRSUs:

The number of PRSUs granted hereunder will be equal to the number shares of Stock purchased by the Participant prior to August 19, 2015 (i.e., before the 90th day following his appointment as the Company’s Chief Executive Officer) up to a maximum of 115,000 (the “Qualifying Shares”); provided, however, that the foregoing in no way alters the requirement that Participant act in accordance with the terms and conditions of the Company’s Insider Trading Policy. Such PRSUs shall thereafter be subject to adjustment and conditions provided in the Agreement.

Performance Period:

May 22, 2015 – May 22, 2020 (or (i) in the event of a Change in Control, ending as of the day prior to the transaction, or (ii) in the event of a termination of employment not for cause (as defined below), ending on the date that the Participant’s Service to the Company following or due to such termination of employment).

Vesting Schedule:

Subject to the terms and conditions of the Agreement (including, without limitation, conditions requiring continued Service as an Employee or Director and the Participant’s continued ownership of the Stock purchased pursuant to this Agreement through the applicable date), all of the PRSUs vest on May 22, 2020 (the “Scheduled Vesting Date”).

By electronically accepting the Award according to the instructions in the Participant’s E*TRADE account (pursuant to which the Participant received this Grant Notice), the Participant agrees that the Award is governed by this Grant Notice and by the provisions of the Plan and the Agreement, both of which are made a part of this document.

The Participant acknowledges that copies of the Plan, the Agreement, and the prospectus for the Plan are available via the Participant’s E*TRADE account.

The Participant represents that the Participant has read and is familiar with the provisions of the Plan and the Agreement, and hereby accepts the Award subject to all of their terms and conditions.

NUVASIVE, INC.

PERFORMANCE RESTRICTED STOCK UNIT AGREEMENT

NuVasive, Inc. has granted to the Participant named in the Notice of Grant of Performance Restricted Stock Units (the “Grant Notice”) to which this Performance Restricted Stock Unit Agreement is attached (together, the Performance Restricted Stock Unit Agreement and the Grant Notice being referred to collectively herein as this “Agreement”) an Award consisting of Performance Restricted Stock Units (“PRSUs”) subject to the terms and conditions set forth in this Agreement. The Award has been granted pursuant to, and shall - in all respects - be subject to the terms and conditions of, the 2014 Equity Incentive Plan of NuVasive, Inc. (the “Plan”), as amended from time-to-time, the provisions of which are incorporated herein by reference. By electronically accepting the Award (as provided in the Grant Notice), the Participant: (a) acknowledges receipt of, and represents that the Participant has read and is familiar with, this Agreement, the Plan and the prospectus for the Plan prepared in connection with the registration with the Securities and Exchange Commission of the shares of Stock issuable pursuant to the Award (the “Plan Prospectus”), (b) accepts the Award subject to all of the terms and conditions of this Agreement and the Plan, and (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee or its delegate (to the extent delegation is permitted under the Plan) in the event any questions arise (and/or interpretation may be required) regarding this Agreement or the Plan.

1 DEFINITIONS AND CONSTRUCTION.

1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Grant Notice or the Plan.

(a) “Dividend Equivalent Units” mean any additional Performance Restricted Stock Units credited pursuant to Section 3.4.

(b) “Ending Period Average Price” means the average official closing price per share of Stock over the 15 consecutive trading days ending with and including the last day of the Performance Period (as respectively defined) (if the applicable day is not a trading day, the immediately preceding trading day).

(c) “Performance Multiplier” means the respective percentage calculated using (or as identified in) the table below:

 

 

Ending Period Average Price

 

 

Performance Multiplier

 

 

$100.00 per share or greater

 

 

200%

 

 

$95.00 per share

 

 

175%

 

 

$85.00 per share

 

 

150%

 

 

$80.00 per share

 

 

125%

 

 

$78.00 per share

 

 

100%

 

 

$76.00 per share

 

 

75%

 

 

$74.00 per share

 

 

50%

 

 

$72.00 per share

 

 

35%

 

 

$70.00 per share

 

 

25%

 

 

<$70.00 per share

 

 

0%

 

If the Company achieves an Ending Period Average Price that falls between two of the foregoing levels above the $70.00 per share threshold and below the $100.00 per share maximum, the Performance Multiplier will be will be determined by linear interpolation between such two levels. In each case, the Performance Multiplier shall be rounded up to the nearest tenth of a percent.

(d) “PRSUs” mean the Performance Restricted Stock Units originally granted pursuant to the Award (i.e., a number of units equal to the number of Qualifying Shares purchased as provided in the Notice of Grant) and any Dividend Equivalent Units credited pursuant to the Award, as each may be adjusted from time-to-time pursuant to Section 4.4 (Adjustments for Changes in Capital Structure) or Section 4.5 (Assumption or Substitution of Awards) of the Plan.

1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

2 ADMINISTRATION.

2.1 Committee Actions. All questions of interpretation concerning this Agreement, the Plan or any other form of agreement or other document employed by the Company in the administration of the Plan or the Award shall be determined by the Committee or its delegate. All such determinations by the Committee or its delegate shall be final, binding and conclusive upon all persons having an interest in the Award, unless fraudulent or made in bad faith. Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or the Award or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest in the Award.

2.2 Express Authority Required. Only individuals expressly designated by the Committee shall have the authority to act on behalf of the Committee with respect to certain of the matters, rights, obligations, modifications, or elections allocated to the Company herein (or in the Plan).

3 THE AWARD; PAYMENT.

3.1 Grant of PRSUs. On the 90th day following Date of Grant, the Participant shall acquire, subject to the provisions of this Agreement, a number of PRSUs equal to the number of Qualifying Shares purchased as provided in the Grant Notice, subject to (a) the Company’s confirmation of the Stock purchases by the Participant through August 19, 2015; (b) determination as set forth in Section 3.2 (Amount of Payment) below; and (c) adjustment as provided in Section 4.4 (Adjustments for Changes in Capital Structure) or Section 4.5 (Assumption or Substitution of Awards) of the Plan.

3.1 Amount of Payment. Subject to certification by the Committee in writing of the number of shares of Stock (if any) that are payable under this Agreement, which certification and determination shall be made by the Committee in accordance with Section 5.1(a) following the end of the Performance Period, and except as otherwise specified in subsections (a), (b), and (c) immediately below), the number of shares of Stock that shall be issued in settlement of this Award on the date specified in Section 4.1 below, shall be equal to the Number of PRSUs multiplied by the Performance Multiplier (expressed as a decimal number), rounding up to the nearest whole share of Stock. If the Performance Multiplier is 0%, all PRSUs are forfeited and no shares will be paid.

(a) Death or Disability. Upon the Participant’s death or termination of Service due to Disability, the number of shares of Stock that shall be issued in full settlement of this Award on the date specified in Section 4.1 below shall be the Number of PRSUs (as determined on or promptly following August 19, 2015 pursuant to the measurement criteria specified in the Notice of Grant, or such earlier date of the Participant’s Death or Disability based upon Participant’s purchases prior to such date. In such an event, there shall be no application of the Performance Multiplier hereunder.

(b) Change in Control. Upon any Change in Control, the number of shares of Stock that shall be issued in full settlement of this Award shall be equal to the greatest of (i) the number of PRSUs initially awarded hereunder (i.e., a number of units equal to the number of Qualifying Shares purchased as provided Notice of Grant), or (ii) such number of PRSUs multiplied by the Performance Multiplier determined using a Performance Period that ends on the day prior to such Change in Control transaction, in each case rounding up to the nearest whole share of Stock.

 

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(c) Involuntary Separation of Employment Not for Cause. In the event that the Participant’s employment with the Company is terminated not for “cause” (as defined below), the number of shares of Stock that shall be issued in full settlement of this Award shall be equal to (i) the product of (x) the number of PRSUs initially awarded hereunder (i.e., a number of units equal to the number of Qualifying Shares purchased as provided Notice of Grant) times (y) the result of a fraction, the numerator of which shall be the number of full months that the Participant provided Service to the Company during the Performance Period and the denominator of which shall be sixty (60), multiplied by (ii) the Performance Multiplier determined using a Performance Period that ends on the date that the Participant’s Service to the Company ends, with the resultant number of shares of Stock (if any) rounded-up to the nearest whole share of Stock.

For purposes of this Agreement, “cause” shall mean the following:

 

  A.

Participant’s willful and repeated failure to satisfactorily perform executive’s job duties;

 

  B.

Participant’s willful and repeated refusal or failure to follow the reasonable and lawful directions of or the Company’s Board of Directors, as applicable;

 

  C.

Participant’s conviction of a crime involving moral turpitude; or

 

  D.

Participant engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of the executive with respect to his/her obligations or otherwise relating to the business of Company, its affiliates or customers.

Notwithstanding the forgoing, the Participant must be provided a period of at least sixty (60) days following receipt of written notice outlining with specificity all acts or omissions that the Company alleges give rise to a termination for cause pursuant to Section 3.2(c)(A) or (B) above, during which Participant may effect a cure of any remediable actions or omissions forming the basis for the termination for cause.

In addition, a resignation by the Participant within ninety (90) days of the Company’s failure to nominate Participant for membership to the Company’s Board shall be deemed an involuntary termination by the Company for purposes of this Agreement effective as of the date of such resignation.

For purposes of this definition, no act or failure to act shall be deemed “willful” unless effected by Participant not in good faith and without a reasonable belief that such action or failure to act was in or not opposed to the Company’s best interests.

3.2 No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the PRSUs or any shares of Stock issued upon settlement of Vested PRSUs (as defined in Section 4.1 below), the consideration for which shall be the Participant rendering Service as provided in this Agreement to a Participating Company or for its benefit.

3.3 Dividend Equivalent Units. On the date that the Company pays a cash dividend to holders of Stock generally, if any, the Participant shall be credited with a number of additional whole Dividend Equivalent Units determined by dividing (a) the product of (i) the dollar amount of the cash dividend paid per share of Stock on such date, and (ii) the number of PRSUs which have not been settled as of such date, by (b) the Fair Market Value per share of Stock on such date. Any resulting fractional Dividend Equivalent Unit shall be rounded to the nearest whole number. Any such additional Dividend Equivalent Units shall be added to the Number of PRSUs specified in the Grant Notice and shall be subject to the same terms and conditions, and shall be settled or forfeited in the same manner and at the same time, as the PRSUs with respect to which they have been credited.

4 VESTING; FORFEITURE.

4.1 Vesting of PRSUs. Provided that the Participant remains in Service as of the applicable date and continues to retain the Qualifying Shares purchased (as tracked by Participant’s brokerage firm without regard to transactions involving any other Shares that the Participant may otherwise own or receive (including via post-August 19, 2015 purchase or vesting of other Company equity awards during his Service)), any PRSUs achieved pursuant to the Award shall become vested upon the earliest date to occur of the following (the “Vesting Date”):

(a) the Scheduled Vesting Date (as provided in the Grant Notice);

(b) the Participant’s death;

(c) termination of the Participant’s Service due to Disability;

 

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(d) termination of the Participant’s Service following or due to termination of employment not for cause; and

(e) immediately before any Change in Control.

Such PRSUs, when so vested, are referred to herein as “Vested PRSUs”.

4.2 Leaves of Absence.

(a) If Participant takes an approved medical, FMLA (or other statutorily protected leave), or military leave (each, an “Approved Leave”) and returns from such leave for at least thirty calendar days, then Participant shall be treated as if the period of such Approved Leave had been a period of continuous Service with the Company or Affiliate, and such Vested PRSUs shall be settled in accordance with Section 5.

(b) In the event the Participant takes a leave of absence other than an Approved Leave, the number of Vested PRSUs, as determined under Section 3.2, shall be prorated by multiplying the Vested PRSUs by a fraction the numerator of which is the number of whole months during the Performance Period that Participant had been in continuous Service with the Company or Affiliate, and the denominator of which is the number of months the Performance Period spans, rounding up to the nearest whole number.

(c) In the event of Participant’s termination of Service during any leave of absence, then the PRSUs shall expire in accordance with the provisions set forth in Section 4.4 below.

4.3 Vesting of Dividend Equivalent Units. Any Dividend Equivalent Units shall become vested (and also constitute “Vested PRSUs”) at the same time as the PRSUs with respect to which they have been credited.

4.4 Forfeiture of PRSUs That Are Not Vested PRSUs Upon Termination of Service. Except as otherwise provided in Section 4.1, any PRSUs that are not Vested PRSUs will terminate automatically without any further action by the Company and be forfeited without further notice and at no cost to the Company upon Participant’s termination of Service.

5 SETTLEMENT OF VESTED PRSUS.

5.1 Distribution of Shares in Settlement of Vested PRSUs.

(a) Subject to the terms and conditions of the Plan and this Agreement, any shares of Stock that are determined to be payable pursuant to Section 3.2 shall be distributed to Participant (or Participant’s estate in the event of death) with respect to Participant’s Vested PRSUs within thirty days following the Vesting Date for such PRSUs, except as otherwise provided in Section 6.3 or Section 9.1 (the “Settlement Date”).

(b) All distributions of shares of Stock with respect to Participant’s Vested PRSUs shall be made by the Company in the form of whole shares. In lieu of any fractional share of Stock, the Company shall make a cash payment to Participant equal to the Fair Market Value of such fractional share on the date the PRSUs are settled as provided herein. The Company shall not be required to issue fractional shares of Stock upon the settlement of Vested PRSUs.

(c) Shares of Stock issued in settlement of Vested PRSUs shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Section 5.3 or the Company’s Insider Trading Policy.

5.2 Certificate Registration. The Participant hereby authorizes the Company, in its sole discretion, to deposit any or all shares of Stock acquired by the Participant pursuant to the settlement of Vested PRSUs with the Company’s transfer agent, including any successor transfer agent, to be held in book entry form, or to deposit such shares for the benefit of the Participant with any broker with which the Participant has an account relationship of which the Company has notice. Except as provided by the foregoing, a certificate for the shares of Stock acquired by the Participant shall be registered in the name of the Participant, or, if applicable, in the name of the Participant’s estate.

 

4

5.3 Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of Vested PRSUs shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance of any shares of Stock subject to the Award shall relieve the Company of any liability in respect of the failure to issue such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of Vested PRSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.

6 TAX WITHHOLDING.

6.1 In General. By electronically accepting the Award (as provided in the Grant Notice), the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, including withholding of shares of Stock otherwise issuable to the Participant in settlement of Vested PRSUs, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax (including any social insurance) withholding obligations of the Participating Company, if any, which arise in connection with the Award, the vesting of PRSUs or the issuance of shares of Stock in settlement of Vested PRSUs. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company have been satisfied by the Participant.

6.2 Withholding in Shares. The Company shall have the right, but not the obligation, to require the Participant to satisfy all or any portion of a Participating Company’s tax withholding obligations by deducting from the shares of Stock otherwise deliverable to the Participant in settlement of Vested PRSUs a number of whole shares of Stock having a Fair Market Value, as determined by the Company as of the date on which the tax withholding obligations arise, not in excess of the amount of such tax withholding obligations determined by the applicable minimum statutory withholding rates (and subsequently making a payment of Company cash equal to the amount of any such tax obligation to the respective tax authorities).

6.3 Assignment of Sale Proceeds. Subject to compliance with applicable law and the Company’s Insider Trading Policy, if permitted by the Company, the Participant may satisfy the Participating Company’s tax withholding obligations in accordance with procedures established by the Company providing for delivery by the Participant to the Company or a broker approved by the Company of properly executed instructions, in a form approved by the Company, providing for the assignment to the Company of the proceeds of a sale with respect to some or all of the shares of Stock being acquired upon settlement of Vested PRSUs. If the Settlement Date would occur on a date on which a sale of the shares of Stock by the Participant would violate the Insider Trading Policy of the Company, the Settlement Date for such Vested PRSUs shall be deferred until the earlier of (a) the next day on which the sale of shares by the Participant would not violate the Insider Trading Policy, or (b) the 15th day of the third calendar month following calendar year of the Settlement Date.

7 RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT.

The Participant shall have no rights as a stockholder with respect to any shares of Stock which may be issued in settlement of Vested PRSUs until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date the shares of Stock are issued, except as provided in Section 3.4 of this Agreement and Section 4.4 of the Plan (Adjustments for Changes in Capital Structure). If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is “at will” and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service at any time.

 

5

8 LEGENDS.

The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Stock acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section.

9 COMPLIANCE WITH SECTION 409A.

It is intended that the settlement of Vested PRSUs as set forth in this Agreement qualify for exemption from, or comply with, the requirements of Section 409A, and any ambiguities herein will be interpreted to so qualify or comply. Notwithstanding the foregoing, if it is determined that the PRSUs fail to satisfy the requirements of the “short-term deferral” exemption and are otherwise Section 409A Deferred Compensation, it is intended that any payment or benefit which is made or provided pursuant to or in connection with this Award shall comply in all respects with the applicable requirements of Section 409A (including applicable regulations or other administrative guidance thereunder, as determined by the Committee in good faith) to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A, the following shall apply:

9.1 Separation from Service; Required Delay in Payment to Specified Employee. Notwithstanding anything set forth herein to the contrary, no amount payable pursuant to this Agreement on account of the Participant’s termination of Service which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until the Participant has incurred a “separation from service” within the meaning of the Section 409A Regulations. Furthermore, to the extent that the Participant is a “specified employee” within the meaning of the Section 409A Regulations as of the date of the Participant’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of the Participant’s separation from service shall be paid to the Participant before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of the Participant’s separation from service or, if earlier, the date of the Participant’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.

9.2 Other Changes in Time of Payment. Neither the Participant nor the Company shall take any action to accelerate or delay the payment of any benefits under this Agreement in any manner which would not be in compliance with the Section 409A Regulations.

9.3 Amendments to Comply with Section 409A; Indemnification. Notwithstanding any other provision of this Agreement to the contrary, the Company is authorized to amend this Agreement, to void or amend any election made by the Participant under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by the Company, in its discretion, to be necessary or appropriate to comply with the Section 409A Regulations without prior notice to or consent of the Participant. The Participant hereby releases and holds harmless the Company, its directors, officers and stockholders from any and all claims that may arise from or relate to any tax liability, penalties, interest, costs, fees or other liability incurred by the Participant in connection with the Award, including as a result of the application of Section 409A.

9.4 Advice of Independent Tax Advisor. The Company has not obtained a tax ruling or other confirmation from the Internal Revenue Service with regard to the application of Section 409A to the Award, and the Company does not represent or warrant that this Agreement will avoid adverse tax consequences to the Participant, including as a result of the application of Section 409A to the Award. The Participant hereby acknowledges that he or she has been advised to seek the advice of his or her own independent tax advisor prior to entering into this Agreement and is not relying upon any representations of the Company or any of its agents as to the effect of or the advisability of entering into this Agreement.

10 MISCELLANEOUS PROVISIONS.

10.1 Termination or Amendment. The Committee may terminate or amend the Plan or this Agreement at any time; provided, however, that no such termination or amendment may have a materially adverse effect on the Participant’s rights under this Agreement without the consent of the Participant unless such termination or amendment is necessary to comply with applicable law or government regulation, including, but not limited to, Section 409A. No amendment or addition to this Agreement shall be effective unless in writing.

 

6

10.2 Nontransferability of the Award. Prior to the issuance of shares of Stock on the applicable Settlement Date, neither this Award nor any PRSUs subject to this Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.

10.3 Repayment/Forfeiture. Any benefits the Participant may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with (a) any applicable listing standards of a national securities exchange adopted in accordance with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder, (b) similar rules under the laws of any other jurisdiction, and (c) the Company’s Incentive Compensation Recoupment Policy or any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to the Participant.

10.4 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

10.5 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant’s heirs, executors, administrators, successors and assigns.

10.6 Delivery of Documents and Notices. Any document relating to participation in the Plan or any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address, if any, provided for the Participant by a Participating Company, or upon deposit in the U.S. Post Office or foreign postal service, by registered or certified mail, or with a nationally recognized overnight courier service, with postage and fees prepaid, addressed to the other party at the address of such party set forth in the Grant Notice or at such other address as such party may designate in writing from time to time to the other party.

(a) Description of Electronic Delivery. The Plan documents, which may include but do not necessarily include: the Plan, this Agreement, the Plan Prospectus, and any reports of the Company provided generally to the Company’s stockholders, may be delivered to the Participant electronically. In addition, if permitted by the Company, the Participant may deliver electronically the Grant Notice to the Company or to such third party involved in administering the Plan as the Company may designate from time to time. Such means of electronic delivery may include but do not necessarily include the delivery of a link to a Company intranet or the Internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other means of electronic delivery specified by the Company.

(b) Consent to Electronic Delivery. The Participant acknowledges that the Participant has read Section 10.6(a) of this Agreement and consents to the electronic delivery of the Plan documents and, if permitted by the Company, the delivery of the Grant Notice, as described in Section 10.6(a). The Participant acknowledges that he or she may receive from the Company a paper copy of any documents delivered electronically at no cost to the Participant by contacting the Company by telephone or in writing. The Participant further acknowledges that the Participant will be provided with a paper copy of any documents if the attempted electronic delivery of such documents fails. Similarly, the Participant understands that the Participant must provide the Company or any designated third party administrator with a paper copy of any documents if the attempted electronic delivery of such documents fails. The Participant may revoke his or her consent to the electronic delivery of documents described in Section 10.6(a) or may change the electronic mail address to which such documents are to be delivered (if Participant has provided an electronic mail address) at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail. Finally, the Participant understands that he or she is not required to consent to electronic delivery of documents described in Section 10.6(a), but has nevertheless knowingly and voluntarily chosen to do so by electronically accepting the Award (as provided in the Grant Notice).

10.7 Integrated Agreement. This Agreement and the Plan shall constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter. To the extent contemplated herein or therein, the provisions of this Agreement and the Plan shall survive any settlement of Vested PRSUs and shall remain in full force and effect.

 

7

10.8 Applicable Law. This Agreement shall be governed by the laws of the State of Delaware as such laws are applied to agreements between Delaware residents entered into and to be performed entirely within the State of Delaware.

Terms and Conditions Subject to Change in the Event the Participant Transfers Outside of the United States. Should the Participant transfer his or her residence and/or employment with the Company to another country, the Company, in its sole discretion, shall determine whether application of certain additional and/or supplemental terms and conditions is necessary or advisable in order to comply with respective laws, rules and regulations or to facilitate the operation and administration of the Award and the Plan. In all circumstances, the Company will provide the Participant with its ordinary-course terms and conditions for such country(ies) in the form of an amendment and/or addendum, which shall thereafter be part of this Agreement.

 

8



Exhibit 10.3

NUVASIVE, INC.

NOTICE OF GRANT OF PERFORMANCE RESTRICTED STOCK UNITS

NuVasive, Inc. (the “Company”) has granted to the participant identified below (the “Participant”) an award (the “Award”) of the number of performance restricted stock units specified below in this Grant Notice (each, a “Performance Restricted Stock Unit” or “PRSU”) pursuant to the 2014 Equity Incentive Plan of NuVasive, Inc. (the “Plan”). This Award is subject to all of the terms and conditions set forth in the Performance Restricted Stock Unit Agreement attached hereto (together with this Grant Notice, the “Agreement”) and the Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Plan or the Agreement, as appropriate, and, in the event of any inconsistency between the Plan and the Agreement, the terms of the Plan shall control.

 

Participant:

Gregory T. Lucier

Participant ID:                                     

Date of Grant:

May 22, 2015

Number of PRSUs:

156,775 subject to adjustment as provided by the Agreement.

Performance Period:

May 1, 2015 – April 30, 2019 (or (i) in the event of a Change in Control, ending the day prior to such transaction, or (ii) in the event of a termination of employment not for cause (as defined below), ending on the date that the Participant’s Service to the Company ends following or due to such termination of employment).

Vesting Schedule:

Subject to the terms and conditions of the Agreement (including, without limitation, conditions requiring continued Service with the Company through the applicable date), all of the PRSUs vest on May 22, 2019 (the “Scheduled Vesting Date”).

By electronically accepting the Award according to the instructions in the Participant’s E*TRADE account (pursuant to which the Participant received this Grant Notice), the Participant agrees that the Award is governed by this Grant Notice and by the provisions of the Plan and the Agreement, both of which are made a part of this document.

The Participant acknowledges that copies of the Plan, the Agreement, and the prospectus for the Plan are available via the Participant’s E*TRADE account.

The Participant represents that the Participant has read and is familiar with the provisions of the Plan and the Agreement, and hereby accepts the Award subject to all of their terms and conditions.

NUVASIVE, INC.

PERFORMANCE RESTRICTED STOCK UNIT AGREEMENT

NuVasive, Inc. has granted to the Participant named in the Notice of Grant of Performance Restricted Stock Units (the “Grant Notice”) to which this Performance Restricted Stock Unit Agreement is attached (together, the Performance Restricted Stock Unit Agreement and the Grant Notice being referred to collectively herein as this “Agreement”) an Award consisting of Performance Restricted Stock Units (“PRSUs”) subject to the terms and conditions set forth in this Agreement. The Award has been granted pursuant to, and shall - in all respects - be subject to the terms and conditions of, the 2014 Equity Incentive Plan of NuVasive, Inc. (the “Plan”), as amended from time-to-time, the provisions of which are incorporated herein by reference. By electronically accepting the Award (as provided in the Grant Notice), the Participant: (a) acknowledges receipt of, and represents that the Participant has read and is familiar with, this Agreement, the Plan and the prospectus for the Plan prepared in connection with the registration with the Securities and Exchange Commission of the shares of Stock issuable pursuant to the Award (the “Plan Prospectus”), (b) accepts the Award subject to all of the terms and conditions of this Agreement and the Plan, and (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee or its delegate (to the extent delegation is permitted under the Plan) in the event any questions arise (and/or interpretation may be required) regarding this Agreement or the Plan.

1. DEFINITIONS AND CONSTRUCTION.

1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Grant Notice or the Plan.

(a) “Beginning Period Price” means the closing price per share of the respective company on May 1, 2015.

(b) “Dividend Equivalent Units” mean any additional Performance Restricted Stock Units credited pursuant to Section 3.4.

(c) “Ending Period Average Price” means the average official closing price per share of the respective company over the fifteen consecutive trading days ending with and including the last day of the Performance Period (as respectively defined) (if the applicable day is not a trading day, the immediately preceding trading day).

(d) “Performance Multiplier” means the respective percentage calculated using (or as identified in) the table below, subject to the Value Cap limitations provided below:

 

 

TSR Percentile Ranking

 

 

% Goal Achieved

 

 

Performance Multiplier*

 

 

75th Percentile

 

 

150.0%

 

 

200.0%

 

 

70th Percentile

 

 

140.0%

 

 

180.0%

 

 

65th Percentile

 

 

130.0%

 

 

160.0%

 

 

60th Percentile

 

 

120.0%

 

 

140.0%

 

 

55th Percentile

 

 

110.0%

 

 

120.0%

 

 

50th Percentile

 

 

100.0%

 

 

100.0%

 

 

40th Percentile

 

 

80.0%

 

 

50.0%

 

 

35th Percentile

 

 

70.0%

 

 

25.0%

 

 

<35th Percentile

 

 

<70.0%

 

 

No Payout

 

If the Company achieves a TSR Percentile Ranking that falls between the foregoing levels above the 35th percentile level and below the 75th percentile level, the Performance Multiplier will be determined by linear interpolation between such two levels and using the following guiding principles:

  •  

a 5.0% decrease in funding for each TSR percentile ranking below the 50th percentile and above the 35th percentile (e.g., a TSR percentile ranking of 49th = a Performance Multiplier of 95.0% and a TSR percentile ranking of 36th = a Performance Multiplier of 30.0%), with a Performance Multiplier of 0.0% for any TSR percentile ranking below the 35th percentile; and

 

  •  

a 4.0% increase in funding for each TSR percentile ranking above the 50th percentile (e.g., a TSR percentile ranking of 99th = a Performance Multiplier of 198% and a TSR percentile ranking of 51st = a Performance Multiplier of 102.0%), with a Performance Multiplier of 200.0% for any TSR percentile ranking at or above the 75th percentile.

In each case, the Performance Multiplier shall be rounded up to the nearest tenth of a percent.

 

*

Notwithstanding anything to the contrary in this Agreement, at no point shall the Performance Multiplier result in the aggregate value of the Shares issued upon settlement of the PRSUs issued hereunder (including after applying the Performance Multiplier and any credited dividend equivalents that may vest pursuant to such units under this Agreement) exceeding an amount in the aggregate equal to the product of (x) the Fair Market Value of a Share on the Date of Grant times (y) the number of PRSUs issued under this Award (156,775) times (z) five and a half (5.5) (the “Valuation Cap”). In furtherance thereof, the Performance Multiplier shall be limited such that, in the event the Valuation Cap would otherwise be exceeded, the number of Shares to be issued hereunder in the aggregate shall be determined by dividing the aggregate Valuation Cap by the Fair Market Value of a Share on the determination date under Section 3.2 below (without any further crediting of dividend equivalents that may vest pursuant to such units under this Agreement.

(e) “Index Companies” mean the companies that are included in the S&P 500 Index continuously from the beginning through the end of the Performance Period. The Committee shall have the authority to make appropriate adjustments to the extent necessary to account for extraordinary, unusual and infrequently occurring events and transactions involving an Index Company.

(f) “PRSUs” mean the Performance Restricted Stock Units originally granted pursuant to the Award and any Dividend Equivalent Units credited pursuant to the Award, as each may be adjusted from time-to-time pursuant to Section 4.4 (Adjustments for Changes in Capital Structure) or Section 4.5 (Assumption or Substitution of Awards) of the Plan.

(g) “TSR” means total shareholder return as determined by dividing (i) the sum of (A) the Ending Period Average Price minus the Beginning Period Price plus (B) all dividends and other distributions paid on a company’s shares during the Performance Period by (ii) the Beginning Period Price. In calculating TSR, all dividends are assumed to have been reinvested in shares when paid. The Committee shall have the authority to make appropriate equitable adjustments to account for extraordinary items affecting a company’s TSR for the Performance Period.

(h) “TSR Percentile Ranking” means the Company’s percentile ranking relative to the Index Companies, based on TSR. TSR Percentile Ranking is determined by ordering the Index Companies (plus the Company if the Company is not one of the Index Companies) from highest to lowest based on TSR for the Performance Period and counting down from the company with the highest TSR (ranked first) to the Company’s position on the list. (If two companies are ranked equally, the ranking of the next company shall account for the tie, so that if one company is ranked first, and two companies are tied for second, the next company is ranked fourth.) After this ranking, the TSR Percentile Ranking will be calculated using the following formula, rounded to the nearest whole percentile by application of regular rounding:

 

TSR Percentile Ranking =

    (N – R)    

 * 100
(N – 1)

“N” represents the number of Index Companies for the Performance Period (plus one if the Company is not one of the Index Companies for the Performance Period).

“R” represents the Company’s ranking among the Index Companies (including the Company if the Company is not one of the Index Companies for the Performance Period).

For example, if there are 100 Index Companies (including the Company), and the Company ranked 40th, the TSR Percentile Ranking would be the 61st percentile (61% = (100 – 40)/(100 – 1) * 100, rounded to the nearest whole percentile by application of regular rounding).

1.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.

2. ADMINISTRATION.

2.1 Committee Actions. All questions of interpretation concerning this Agreement, the Plan or any other form of agreement or other document employed by the Company in the administration of the Plan or the Award shall be determined by the Committee or its delegate. All such determinations by the Committee or its delegate shall be final, binding and conclusive upon all persons having an interest in the Award, unless fraudulent or made in bad faith. Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or the Award or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest in the Award.

2.2 Express Authority Required. Only individuals expressly designated by the Committee shall have the authority to act on behalf of the Committee with respect to certain of the matters, rights, obligations, modifications, or elections allocated to the Company herein (or in the Plan).

3. THE AWARD; PAYMENT.

3.1 Grant of PRSUs. On the Date of Grant, the Participant shall acquire, subject to the provisions of this Agreement, the Number of PRSUs set forth in the Grant Notice, subject to (a) determination as set forth in Section 3.2 (Amount of Payment) below, and (b) adjustment as provided in Section 4.4 (Adjustments for Changes in Capital Structure) or Section 4.5 (Assumption or Substitution of Awards) of the Plan.

3.2 Amount of Payment. Subject to certification by the Committee in writing of the number of shares of Stock (if any) that are payable under this Agreement, which certification and determination shall be made by the Committee in accordance with Section 5.1(a) following the end of the Performance Period, and except as otherwise specified in subsections (a), (b), and (c) immediately below), the number of shares of Stock that shall be issued in settlement of this Award on the date specified in Section 4.1 below, shall be equal to the Number of PRSUs multiplied by the Performance Multiplier (applying the Value Cap if needed), rounding up to the nearest whole share of Stock (unless doing so would cause the aggregate value delivered hereunder to exceed the Value Cap, in which case, there shall be no such rounding up). If the Performance Multiplier is 0%, all PRSUs are forfeited and no shares will be paid.

(a) Death or Disability. Upon the Participant’s death or termination of Service due to Disability, the number of shares of Stock that shall be issued in full settlement of this Award on the date specified in Section 4.1 below shall be the Number of PRSUs (as provided in the Notice of Grant, with no application of the Performance Multiplier).

(b) Change in Control. Upon any Change in Control, the number of shares of Stock that shall be issued in full settlement of this Award shall be equal to the greater of (i) the number of PRSUs (as set forth in the Notice of Grant), or (ii) such number of PRSUs multiplied by the Performance Multiplier (determined using a Performance Period that ends on the day prior to such Change in Control transaction), rounding up to the nearest whole share of Stock.

(c) Involuntary Separation of Employment Not for Cause. In the event that the Participant’s employment with the Company is terminated not for “cause” (as defined below), the number of shares of Stock that shall be issued in full settlement of this Award shall be equal to (i) the product of (x) the number of PRSUs initially awarded hereunder (i.e., a number of units equal to the number set forth in the Notice of Grant) times (y) the result of a fraction, the numerator of which shall be the number of full months that the Participant provided Service to the Company during the Performance Period and the denominator of which shall be forty-eight (48), multiplied by (ii) the Performance Multiplier determined using a Performance Period that ends on the date that the Participant’s Service to the Company ends, with the resultant number of shares of Stock (if any) rounded-up to the nearest whole share of Stock.

For purposes of this Agreement, “cause” shall mean the following:

 

  A.

Participant’s willful and repeated failure to satisfactorily perform executive’s job duties;

 

  B.

Participant’s willful and repeated refusal or failure to follow the reasonable and lawful directions of or the Company’s Board of Directors, as applicable;

 

  C.

Participant’s conviction of a crime involving moral turpitude; or

 

  D.

Participant engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of the executive with respect to his/her obligations or otherwise relating to the business of Company, its affiliates or customers.

Notwithstanding the forgoing, the Participant must be provided a period of at least sixty (60) days following receipt of written notice outlining with specificity all acts or omissions that the Company alleges give rise to a termination for cause pursuant to Section 3.2(c)(A) or (B) above, during which Participant may effect a cure of any remediable actions or omissions forming the basis for the termination for cause.

In addition, a resignation by the Participant within ninety (90) days of the Company’s failure to nominate Participant for membership to the Company’s Board shall be deemed an involuntary termination by the Company for purposes of this Agreement effective as of the date of such resignation.

For purposes of this definition, no act or failure to act shall be deemed “willful” unless effected by Participant not in good faith and without a reasonable belief that such action or failure to act was in or not opposed to the Company’s best interests.

3.3 No Monetary Payment Required. The Participant is not required to make any monetary payment (other than applicable tax withholding, if any) as a condition to receiving the PRSUs or any shares of Stock issued upon settlement of Vested PRSUs (as defined in Section 4.1 below), the consideration for which shall be the Participant rendering Service as provided in this Agreement to a Participating Company or for its benefit.

3.4 Dividend Equivalent Units. On the date that the Company pays a cash dividend to holders of Stock generally, if any, the Participant shall be credited with a number of additional whole Dividend Equivalent Units determined by dividing (a) the product of (i) the dollar amount of the cash dividend paid per share of Stock on such date, and (ii) the number of PRSUs which have not been settled as of such date, by (b) the Fair Market Value per share of Stock on such date. Any resulting fractional Dividend Equivalent Unit shall be rounded to the nearest whole number. Any such additional Dividend Equivalent Units shall be added to the Number of PRSUs specified in the Grant Notice and shall be subject to the same terms and conditions, and shall be settled or forfeited in the same manner and at the same time, as the PRSUs with respect to which they have been credited.

4. VESTING; FORFEITURE.

4.1 Vesting of PRSUs. Provided that the Participant’s Service has not terminated prior to the applicable date, any PRSUs achieved pursuant to the Award shall become vested upon the earliest date to occur of the following (the “Vesting Date”):

 

  (a)

the Scheduled Vesting Date (as provided in the Grant Notice);

 

  (b)

the Participant’s death;

 

  (c)

termination of the Participant’s Service due to Disability;

 

  (d)

termination of the Participant’s Service following or due to termination of employment not for cause and

 

  (e)

immediately before any Change in Control.

Such PRSUs, when so vested, are referred to herein as “Vested PRSUs”.

4.2 Leaves of Absence.

(a) If Participant takes an approved medical, FMLA (or other statutorily protected leave), or military leave (each, an “Approved Leave”) and returns from such leave for at least thirty calendar days, then Participant shall be treated as if the period of such Approved Leave had been a period of continuous Service with the Company or Affiliate, and such Vested PRSUs shall be settled in accordance with Section 5.

(b) In the event the Participant takes a leave of absence other than an Approved Leave, the number of Vested PRSUs, as determined under Section 3.2, shall be prorated by multiplying the Vested PRSUs by a fraction the numerator of which is the number of whole months during the Performance Period that Participant had been in continuous Service with the Company or Affiliate, and the denominator of which is the number of months the Performance Period spans, rounding up to the nearest whole number.

(c) In the event of Participant’s termination of Service during any leave of absence, then the PRSUs shall expire in accordance with the provisions set forth in Section 4.4 below.

4.3 Vesting of Dividend Equivalent Units. Any Dividend Equivalent Units shall become vested (and also constitute “Vested PRSUs”) at the same time as the PRSUs with respect to which they have been credited.

4.4 Forfeiture of PRSUs That Are Not Vested PRSUs Upon Termination of Service. Except as otherwise provided in Section 4.1, any PRSUs that are not Vested PRSUs will terminate automatically without any further action by the Company and be forfeited without further notice and at no cost to the Company upon Participant’s termination of Service.

5. SETTLEMENT OF VESTED PRSUS.

5.1 Distribution of Shares in Settlement of Vested PRSUs.

(a) Subject to the terms and conditions of the Plan and this Agreement, any shares of Stock that are determined to be payable pursuant to Section 3.2 shall be distributed to Participant (or Participant’s estate in the event of death) with respect to Participant’s Vested PRSUs within thirty days following the Vesting Date for such PRSUs, except as otherwise provided in Section 6.3 or Section 9.1 (the “Settlement Date”).

(b) All distributions of shares of Stock with respect to Participant’s Vested PRSUs shall be made by the Company in the form of whole shares. In lieu of any fractional share of Stock, the Company shall make a cash payment to Participant equal to the Fair Market Value of such fractional share on the date the PRSUs are settled as provided herein. The Company shall not be required to issue fractional shares of Stock upon the settlement of Vested PRSUs.

(c) Shares of Stock issued in settlement of Vested PRSUs shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Section 5.3 or the Company’s Insider Trading Policy.

5.2 Certificate Registration. The Participant hereby authorizes the Company, in its sole discretion, to deposit any or all shares of Stock acquired by the Participant pursuant to the settlement of Vested PRSUs with the Company’s transfer agent, including any successor transfer agent, to be held in book entry form, or to deposit such shares for the benefit of the Participant with any broker with which the Participant has an account relationship of which the Company has notice. Except as provided by the foregoing, a certificate for the shares of Stock acquired by the Participant shall be registered in the name of the Participant, or, if applicable, in the name of the Participant’s estate.

5.3 Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of Vested PRSUs shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance of any shares of Stock subject to the Award shall relieve the Company of any liability in respect of the failure to issue such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of Vested PRSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.

6. TAX WITHHOLDING.

6.1 In General. By electronically accepting the Award (as provided in the Grant Notice), the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, including withholding of shares of Stock otherwise issuable to the Participant in settlement of Vested PRSUs, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax (including any social insurance) withholding obligations of the Participating Company, if any, which arise in connection with the Award, the vesting of PRSUs or the issuance of shares of Stock in settlement of Vested PRSUs. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Participating Company have been satisfied by the Participant.

6.2 Withholding in Shares. The Company shall have the right, but not the obligation, to require the Participant to satisfy all or any portion of a Participating Company’s tax withholding obligations by deducting from the shares of Stock otherwise deliverable to the Participant in settlement of Vested PRSUs a number of whole shares of Stock having a Fair Market Value, as determined by the Company as of the date on which the tax withholding obligations arise, not in excess of the amount of such tax withholding obligations determined by the applicable minimum statutory withholding rates (and subsequently making a payment of Company cash equal to the amount of any such tax obligation to the respective tax authorities).

6.3 Assignment of Sale Proceeds. Subject to compliance with applicable law and the Company’s Insider Trading Policy, if permitted by the Company, the Participant may satisfy the Participating Company’s tax withholding obligations in accordance with procedures established by the Company providing for delivery by the Participant to the Company or a broker approved by the Company of properly executed instructions, in a form approved by the Company, providing for the assignment to the Company of the proceeds of a sale with respect to some or all of the shares of Stock being acquired upon settlement of Vested PRSUs. If the Settlement Date would occur on a date on which a sale of the shares of Stock by the Participant would violate the Insider Trading Policy of the Company, the Settlement Date for such Vested PRSUs shall be deferred until the earlier of (a) the next day on which the sale of shares by the Participant would not violate the Insider Trading Policy, or (b) the 15th day of the third calendar month following calendar year of the Settlement Date.

7. RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT.

The Participant shall have no rights as a stockholder with respect to any shares of Stock which may be issued in settlement of Vested PRSUs until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date the shares of Stock are issued, except as provided in Section 3.4 of this Agreement and Section 4.4 of the Plan (Adjustments for Changes in Capital Structure). If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is “at will” and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service at any time.

8. LEGENDS.

The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Stock acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section.

9. COMPLIANCE WITH SECTION 409A.

It is intended that the settlement of Vested PRSUs as set forth in this Agreement qualify for exemption from, or comply with, the requirements of Section 409A, and any ambiguities herein will be interpreted to so qualify or comply. Notwithstanding the foregoing, if it is determined that the PRSUs fail to satisfy the requirements of the “short-term deferral” exemption and are otherwise Section 409A Deferred Compensation, it is intended that any payment or benefit which is made or provided pursuant to or in connection with this Award shall comply in all respects with the applicable requirements of Section 409A (including applicable regulations or other administrative guidance thereunder, as determined by the Committee in good faith) to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A, the following shall apply:

9.1 Separation from Service; Required Delay in Payment to Specified Employee. Notwithstanding anything set forth herein to the contrary, no amount payable pursuant to this Agreement on account of the Participant’s termination of Service which constitutes a “deferral of compensation” within the meaning of the Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”) shall be paid unless and until the Participant has incurred a “separation from service” within the meaning of the Section 409A Regulations. Furthermore, to the extent that the Participant is a “specified employee” within the meaning of the Section 409A Regulations as of the date of the Participant’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of the Participant’s separation from service shall be paid to the Participant before the date (the “Delayed Payment Date”) which is first day of the seventh month after the date of the Participant’s separation from service or, if earlier, the date of the Participant’s death following such separation from service. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.

9.2 Other Changes in Time of Payment. Neither the Participant nor the Company shall take any action to accelerate or delay the payment of any benefits under this Agreement in any manner which would not be in compliance with the Section 409A Regulations.

9.3 Amendments to Comply with Section 409A; Indemnification. Notwithstanding any other provision of this Agreement to the contrary, the Company is authorized to amend this Agreement, to void or amend any election made by the Participant under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by the Company, in its discretion, to be necessary or appropriate to comply with the Section 409A Regulations without prior notice to or consent of the Participant. The Participant hereby releases and holds harmless the Company, its directors, officers and stockholders from any and all claims that may arise from or relate to any tax liability, penalties, interest, costs, fees or other liability incurred by the Participant in connection with the Award, including as a result of the application of Section 409A.

9.4 Advice of Independent Tax Advisor. The Company has not obtained a tax ruling or other confirmation from the Internal Revenue Service with regard to the application of Section 409A to the Award, and the Company does not represent or warrant that this Agreement will avoid adverse tax consequences to the Participant, including as a result of the application of Section 409A to the Award. The Participant hereby acknowledges that he or she has been advised to seek the advice of his or her own independent tax advisor prior to entering into this Agreement and is not relying upon any representations of the Company or any of its agents as to the effect of or the advisability of entering into this Agreement.

10. MISCELLANEOUS PROVISIONS.

10.1 Termination or Amendment. The Committee may terminate or amend the Plan or this Agreement at any time; provided, however, that no such termination or amendment may have a materially adverse effect on the Participant’s rights under this Agreement without the consent of the Participant unless such termination or amendment is necessary to comply with applicable law or government regulation, including, but not limited to, Section 409A. No amendment or addition to this Agreement shall be effective unless in writing.

10.2 Nontransferability of the Award. Prior to the issuance of shares of Stock on the applicable Settlement Date, neither this Award nor any PRSUs subject to this Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant or the Participant’s guardian or legal representative.

10.3 Repayment/Forfeiture. Any benefits the Participant may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with (a) any applicable listing standards of a national securities exchange adopted in accordance with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder, (b) similar rules under the laws of any other jurisdiction, and (c) the Company’s Incentive Compensation Recoupment Policy or any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to the Participant.

10.4 Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

10.5 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the Participant and the Participant’s heirs, executors, administrators, successors and assigns.

10.6 Delivery of Documents and Notices. Any document relating to participation in the Plan or any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address, if any, provided for the Participant by a Participating Company, or upon deposit in the U.S. Post Office or foreign postal service, by registered or certified mail, or with a nationally recognized overnight courier service, with postage and fees prepaid, addressed to the other party at the address of such party set forth in the Grant Notice or at such other address as such party may designate in writing from time to time to the other party.

(a) Description of Electronic Delivery. The Plan documents, which may include but do not necessarily include: the Plan, this Agreement, the Plan Prospectus, and any reports of the Company provided generally to the Company’s stockholders, may be delivered to the Participant electronically. In addition, if permitted by the Company, the Participant may deliver electronically the Grant Notice to the Company or to such third party involved in administering the Plan as the Company may designate from time to time. Such means of electronic delivery may include but do not necessarily include the delivery of a link to a Company intranet or the Internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other means of electronic delivery specified by the Company.

(b) Consent to Electronic Delivery. The Participant acknowledges that the Participant has read Section 10.6(a) of this Agreement and consents to the electronic delivery of the Plan documents and, if permitted by the Company, the delivery of the Grant Notice, as described in Section 10.6(a). The Participant acknowledges that he or she may receive from the Company a paper copy of any documents delivered electronically at no cost to the Participant by contacting the Company by telephone or in writing. The Participant further acknowledges that the Participant will be provided with a paper copy of any documents if the attempted electronic delivery of such documents fails. Similarly, the Participant understands that the Participant must provide the Company or any designated third party administrator with a paper copy of any documents if the attempted electronic delivery of such documents fails. The Participant may revoke his or her consent to the electronic delivery of documents described in Section 10.6(a) or may change the electronic mail address to which such documents are to be delivered (if Participant has provided an electronic mail address) at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail. Finally, the Participant understands that he or she is not required to consent to electronic delivery of documents described in Section 10.6(a), but has nevertheless knowingly and voluntarily chosen to do so by electronically accepting the Award (as provided in the Grant Notice).

10.7 Integrated Agreement. This Agreement and the Plan shall constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersede any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter. To the extent contemplated herein or therein, the provisions of this Agreement and the Plan shall survive any settlement of Vested PRSUs and shall remain in full force and effect.

10.8 Applicable Law. This Agreement shall be governed by the laws of the State of Delaware as such laws are applied to agreements between Delaware residents entered into and to be performed entirely within the State of Delaware.

Terms and Conditions Subject to Change in the Event the Participant Transfers Outside of the United States. Should the Participant transfer his or her residence and/or employment with the Company to another country, the Company, in its sole discretion, shall determine whether application of certain additional and/or supplemental terms and conditions is necessary or advisable in order to comply with respective laws, rules and regulations or to facilitate the operation and administration of the Award and the Plan. In all circumstances, the Company will provide the Participant with its ordinary-course terms and conditions for such country(ies) in the form of an amendment and/or addendum, which shall thereafter be part of this Agreement.



Exhibit 99.1

 

LOGO

NEWS RELEASE

Investor/Media Contact:

Stacy Roughan

NuVasive, Inc.

1-858-909-1812

sroughan@nuvasive.com

NUVASIVE APPOINTS GREGORY T. LUCIER CHIEF EXECUTIVE OFFICER

SAN DIEGO, CA – MAY 26, 2015 – NuVasive, Inc. (NASDAQ: NUVA) (“NuVasive” or the “Company”), a leading medical device company focused on transforming spine surgery with minimally disruptive, procedurally-integrated solutions, today announced that Gregory T. Lucier has been appointed Chief Executive Officer, effective immediately. Mr. Lucier, who has been serving as Interim Chief Executive Officer since April 1, 2015, will continue as Chairman of the NuVasive Board of Directors.

“Since being appointed Interim CEO, Greg has hit the ground running with an intense focus on driving NuVasive’s industry leadership,” said Jack R. Blair, Lead Independent Director of the NuVasive Board. “As the Board considered the needs of the Company, we determined that this focus as well as Greg’s broad healthcare and leadership experience made him the right person to lead NuVasive forward. In addition to having a solid understanding of our strategy and business as a director, Greg brings a record of execution in areas that are also areas of strategic growth for NuVasive, including driving cutting-edge innovation, increased operational efficiencies and targeted expansion in key markets and geographies. With the support of our talented team of employee shareowners, we are confident that Greg will apply his skill set to the spine market to also drive compelling growth and value creation at NuVasive.”

Mr. Lucier said, “NuVasive benefits from a dedicated and passionate team, a culture of innovation and strong surgeon customer relationships. I am excited to work as CEO alongside NuVasive’s exceptional management team and more than 1,500 employee shareowners around the world to capitalize on the strength of the Company’s market share-taking strategies, integrated procedural offerings and significant growth potential. Together, we are committed to scaling our business and more efficiently deploying resources, rapidly growing our presence outside the U.S. and leading innovation in the spine market through the introduction of game-changing technologies such as our recently launched Integrated Global Alignment platform. We have a tremendous amount of opportunity ahead of us, and I am confident in our ability to accelerate our positive momentum and continue to generate value for our shareholders in 2015 and beyond.”

About Gregory T. Lucier

Mr. Lucier has served as a member of the NuVasive Board of Directors since December 2013.

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 and applied his more than 25 years of strategic management experience to deliver industry-leading operating margins, double-digit compounded annual growth in earnings per share and significant free cash flow.

 

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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, is a member of the Catalent, Inc. Board of Directors 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 associated with acceptance of the Company’s surgical products and procedures by spine surgeons, development and acceptance of new products or product enhancements, clinical and statistical verification of the benefits achieved via the use of NuVasive’s products (including the iGA™ platform), 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, 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.

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