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): September 26, 2006
NUVASIVE, INC.
(Exact name of registrant as specified in its charter)
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| Delaware |
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000-50744 |
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33-0768598 |
| (State or Other Jurisdiction of
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(Commission File
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(I.R.S. Employer |
| Incorporation)
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Number)
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Identification Number) |
4545 Towne Centre Court, 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):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
TABLE OF CONTENTS
Item 1.01. Entry Into a Material Definitive Agreement; Item 1.02 Termination of a Material
Definitive Agreement; Item 3.02 Unregistered Sales of Equity Securities
On
September 26, 2006, NuVasive, Inc. (“NuVasive”),
Pearsalls Limited (“Pearsalls”) and American Medical
Instruments Holdings, Inc. (“Pearsalls’ Parent”) entered into
an amendment (the “Purchase Agreement Amendment”) to the
Asset Purchase Agreement by and among
NuVasive, Pearsalls and Pearsalls’ Parent, dated as of August 4, 2005 (the “Purchase Agreement”), whereby NuVasive
will buyout its milestone and royalty obligations under the Purchase Agreement. Pursuant to the
Purchase Agreement, NuVasive acquired assets and technology from
Pearsalls in August 2005. Pursuant to the
Purchase Agreement Amendment, NuVasive will immediately make payments to Pearsalls totaling $20
million, satisfying all of NuVasive’s current and future payment obligations under the Purchase
Agreement. The current payments of $20 million include satisfaction of a $10.5 million milestone
payment related to FDA approval of the Investigational Device Exemption application for the
NeoDiscTM investigational device as well as future milestones related to completion of
the current NeoDisc clinical trial and ultimate FDA approval of the device. The current payments
also satisfy all future royalties, which would have been owed on sales of NeoDisc as well as sales
of other products based on the technology acquired from Pearsalls.
The $20 million payable under the Purchase Agreement Amendment will consist of $12 million in cash
and $8 million in unregistered shares of NuVasive’s common stock (which equals 401,956 shares).
The shares will be issued to Pearsalls in reliance on the exemption from registration under Section
4(2) of the Securities Act of 1933, as amended, and/or Rule 506 of Regulation D promulgated under
the Securities Act. Pursuant to the Purchase Agreement Amendment, NuVasive has an obligation to
register such shares for resale.
Additionally, in connection with the Purchase Agreement Amendment, NuVasive and Pearsalls entered
into an amendment (the “Manufacturing Agreement Amendment”) to their Exclusive Manufacturing
Agreement, dated as of August 4, 2005 (the “Manufacturing Agreement”), which, among other things,
terminates the exclusive nature of the manufacturing relationship, giving NuVasive the right, in
its sole discretion and at all times, to manufacture and to use third parties to manufacture and
supply NeoDisc and any other product subject to the Manufacturing Agreement.
The Purchase Agreement Amendment, the Manufacturing Agreement Amendment and a termination agreement
relating to the existing Registration Rights Agreement by and between NuVasive and Pearsalls are
filed as exhibits to this Current Report. A copy of NuVasive’s press release is furnished as
Exhibit 99.1 to this Current Report.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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| Exhibit No. |
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Description |
2.1
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Amendment No. 1 to Asset Purchase Agreement, dated as of
September 26, 2006, by and among NuVasive, Inc., Pearsalls
Limited and American Medical Instruments Holdings, Inc. |
4.1
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Registration Rights Agreement Termination Agreement, dated as
of September 26, 2006, by and between NuVasive, Inc. and
Pearsalls Limited |
10.1*
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Amendment No. 1 to Exclusive Manufacturing Agreement and
Services Agreement, dated as of September 26, 2006, by and
between NuVasive, Inc. and Pearsalls Limited |
99.1
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Press Release issued by NuVasive,
Inc. on September 27, 2006 |
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Certain confidential portions of this exhibit were omitted by means of redacting a portion of
the text. Application has been made to the Securities and Exchange Commission seeking
confidential treatment of such confidential portions under Rule 24b-2 under the Securities
Exchange Act of 1934, as amended. This exhibit has been filed separately with the Securities
and Exchange Commission without redactions in connection with NuVasive’s confidential treatment
request. |