NUVASIVE, INC. AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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NUVASIVE, INC.
AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 2 to Second Amended and Restated Investors' Rights Agreement (this "Amendment") is made as of February 5, 2004 by and among NuVasive, Inc., a Delaware corporation (the "Company"), the persons and entities listed on Schedule A hereto (each, an "Investor" and collectively, the "Investors"). Capitalized terms used herein which are not defined herein shall have the definition ascribed to them in the Second Amended and Restated Investors' Rights Agreement dated July 11, 2002 among the Company and the persons and entities listed therein (the "Agreement").
A. The Company and the Investors have previously entered into the Agreement and that certain Amendment No. 1 to the Agreement dated June 19, 2003 ("Amendment No. 1").
B. In consideration of the proposed underwritten initial public offering of common stock of the Company (the "Offering"), the Company and the Investors desire to amend certain provisions of the Agreement.
C. The undersigned parties are sufficient to effect an amendment to the Agreement pursuant to Section 3.7 thereof.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Section 2.5(i). Section 2.5(i) is hereby amended and restated in its entirety to read as follows:
"(i) the sale of securities pursuant to a registration statement filed by the Company under the Act in connection with a firm commitment underwritten offering of its securities to the general public, at an offering price of at least $5.00 per share (as adjusted for any stock dividends, stock splits, combinations or other recapitalizations with respect to such shares) and $25,000,000 in the aggregate"
2. Effect of Amendment. Except as expressly modified by this Amendment, the Agreement and Amendment No. 1 shall remain unmodified and in full force and effect.
3. Entire Agreement. This Amendment together with the Agreement, Amendment No. 1 and all documents referred to herein and therein constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
4. Governing Law. This Amendment shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and performed entirely within California.
5. Counterparts. This Amendment may be executed in two or more counterparts and the signatures delivered in facsimile, each of which shall be deemed an original, with the same effect as if the signatures were upon the same instrument and delivered in person.
6. Amendments and Waivers. Any term of this Amendment may be amended or modified only upon the written consent of the Company and the persons and entities holding at least sixty six and two-thirds percent (662/3%) of the Registrable Securities then outstanding. Any amendment or waiver effected in accordance with this paragraph shall be binding upon all the Investors, each transferee and the Company.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
| COMPANY: | NUVASIVE, INC. | ||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ President and Chief Executive Officer |
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[SIGNATURE
PAGE TO AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. The undersigned take this action with respect to all shares of the Company's capital stock owned by the undersigned.
| INVESTORS: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL PARTNERS VII QP, L.P. | ||
By: |
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management VII, L.P. |
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| Its: | General Partner | ||
By: |
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management VII, L.L.C. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Managing Director |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL PARTNERS VII, L.P. | |||
By: |
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management VII, L.P. |
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| Its: | General Partner | ||
By: |
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management VII, L.L.C. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Managing Director |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII, L.P. | |||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, General Partner |
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| KPCB LIFE SCIENCES ZAIBATSU FUND II | |||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, General Partner |
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| KPCB VIII FOUNDERS FUND | |||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, General Partner |
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| ENTERPRISE PARTNERS IV, L.P. | |||
By: |
Enterprise Management Partners IV, L.P. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner |
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| ENTERPRISE PARTNERS IV ASSOCIATES, L.P. | |||
By: |
Enterprise Management Partners IV, L.P. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner |
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| ENTERPRISE PARTNERS ANNEX FUND IV, L.P. | |||
By: |
Enterprise Management Partners IV-A, L.P. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner |
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| ENTERPRISE PARTNERS ANNEX FUND IV-A, L.P. | |||
By: |
Enterprise Management Partners IV-A, L.P. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner |
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| DOMAIN PARTNERS IV, L.P. | |||
By: |
One ▇▇▇▇▇▇ Square Associates IV, L.L.C. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Managing Member |
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| ▇▇ ▇▇ ASSOCIATES, L.P. | |||
By: |
One ▇▇▇▇▇▇ Square Associates IV, L.L.C. |
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| Its: | General Partner | ||
By: |
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Managing Member |
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| CAISSE DE DEPOT ET PLACEMENT DU QUEBEC | ||||||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
/s/ illegible |
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| Its: | Senior Partner | Partner | ||||
| Print Name: | ▇. ▇▇▇▇▇▇▇▇ | illegible | ||||
| A.M. ▇▇▇▇▇▇ LIFE SCIENCE VENTURES II, L.P. | ||||||
By: |
AMP&A Management II, LLC |
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| Its: | General Partner | |||||
By: |
/s/ Ford S. Worthy Ford S. Worthy, Senior Vice President |
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| ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ DEVELOPMENT CORPORATION | ||||||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President |
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| ▇▇▇▇▇▇▇, PHLEGER & ▇▇▇▇▇▇▇▇, LLP | ||||||
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
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| Its: | Trustee | |||||
| Print Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| COMDISCO, INC. | ||||||
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
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| Its: | Senior Vice President | |||||
| Print Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| INNOVATIVE ORTHOTICS & REHABILITATION INC. | ||||||
By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Its: | VP | |||||
| Print Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| MLPF&S CUST. ▇▇▇▇▇▇▇ PLAYER ▇▇▇▇▇▇▇▇ ▇▇▇, TAX ID# ▇▇-▇▇▇▇▇▇▇ | ||||||
By: |
/s/ ▇▇▇▇▇▇▇ Player Barefoot |
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| Its: | ||||||
| Print Name: | ▇▇▇▇▇▇▇ Player Barefoot | |||||
| MLFPS AS CUSTODIAN, FBO ▇▇▇▇▇ ▇▇▇▇▇▇▇ SEP | ||||
By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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| Its: | ||||
| Print Name: | ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇ FAMILY LLC | ||||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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| Its: | Manager | |||
| Print Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC. | ||||
By: |
/s/ Illegible |
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| Its: | Managing Director | |||
| Print Name: | illegible | |||
| RS COINVESTMENT FUND, L.L.C. | ||||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
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| Its: | GP | |||
| Print Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| SSI SPINAL SOLUTIONS | ||||
By: |
/s/ illegible |
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| Its: | illegible | |||
| Print Name: | illegible | |||
| CALLAWAY PRIVATE EQUITY PARTNERS, INC. | ||||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇ |
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| Its: | Managing Partner | |||
| Print Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| INTEGRAL CAPITAL PARTNERS VI, L.P. | ||||
By: |
Integral Capital Management VI, LLC |
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| Its: | General Partners | |||
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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| Its: | a Manager | |||
| Print Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇ Bertgnoli ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇ Cappuccino ▇▇▇▇▇▇ Cappuccino, an individual |
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By: |
/s/ ▇▇▇▇▇▇ ▇. Childs ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Childs, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual |
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By: |
/s/ ▇. ▇▇▇▇▇ Fry ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇, ▇▇. Regis ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇., an individual |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr., an individual |
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By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, an individual |
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By: |
▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇. ▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇, M.D. Dr. ▇▇▇▇▇ ▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇ Maywood ▇▇▇▇ Maywood, an individual |
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By: |
/s/ ▇▇▇ Maywood ▇▇▇ Maywood, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇, III, an individual |
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By: |
/s/ ▇▇▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual |
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By: |
/s/ R. ▇▇▇ ▇▇▇▇▇▇ R. ▇▇▇ ▇▇▇▇▇▇, ▇▇., an individual |
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By: |
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual |
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| BNDD, LP ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
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By: |
/s/ ▇▇▇▇▇ Van Dam ▇▇▇▇▇ Van Dam Managing Partner |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners VII, QP, L.P. | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners VII, L.P. | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| KPCB Life Sciences Zaibatsu Fund II | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| KPCB VIII Founders Fund | ▇▇▇▇▇▇ Cappuccino | |
| Enterprise Partners IV, L.P. | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Childs | |
| Enterprise Partners IV Associates, L.P. | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Enterprise Partners Annex Fund IV, ▇.▇. | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ | |
| Enterprise Partners Annex Fund IV-A, L.P. | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Domain Partners IV, L.P. | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| ▇▇ ▇▇ Associates, L.P. | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Caisse de depot et placement du Quebec | Regis ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. | |
| A.M. ▇▇▇▇▇▇ Life Science Ventures II, L.P. | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. | |
| ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development Corporation | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP | ▇▇▇ ▇. ▇▇▇ | |
| Comdisco, Inc. | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Innovative Orthotics & Rehabilitation Inc. | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Integral Capital Partners VI, L.P. | Dr. ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| MLPF&S Cust. ▇▇▇▇▇▇▇ Player ▇▇▇▇▇▇▇▇ ▇▇▇ | ▇▇▇ & ▇▇▇▇ Maywood | |
| MLFPS as Custodian, FBO ▇▇▇▇▇ ▇▇▇▇▇▇▇ SEP | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇ Family LLC | ▇▇▇ ▇. ▇▇▇▇▇, III. | |
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. | ▇▇▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| RS Coinvestment Fund, L.L.C. | ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| SSI Spinal Solutions | ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Callaway Private Equity Partners, Inc. | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ R. ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ BNDD, LP |
NUVASIVE, INC. AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
RECITALS
RECITALS
SCHEDULE A