Dear Mr. Lukianov,
Exhibit 10.1
August 5, 2008
Dear Xx. Xxxxxxxx,
This letter agreement confirms the material compensation terms of your continued employment
with NuVasive. This letter agreement supersedes all prior agreements relating to your compensation
arrangements and is in addition to any and all benefits that are made generally available to
NuVasive employees. It is also in addition to benefits available to you as an executive of
NuVasive. Defined terms used herein have the meanings set forth in the attached Appendix of
Defined Terms.
This letter agreement has no impact on other types of agreements or arrangements between you
and NuVasive, including agreements related to confidentiality, intellectual property ownership,
non-solicitation or non-competition obligations, etc. You agree to continue abiding by all such
arrangements, as well as all NuVasive policies and procedures.
Your current annual base salary is $600,000, payable in installments in accordance with
NuVasive’s regular payroll practices. Your base salary is subject to change and is reviewed at
least annually. You are eligible to receive a performance bonus on an annual basis. The
performance bonus is determined at the discretion of the Board of Directors and is based on a
combination of company performance and your individual performance. Your current target annual
cash bonus is 75% — 100% of your base salary (with ability to over-perform), with the actual amount
being determined at the discretion of the Board of Directors. Additionally, the Board of Directors
has established an unvested stock option target for you of 1,000,000 shares (combined with vested
and owned shares, representing approximately 4% of the Company’s equity), and to reach that target
has established an intention to grant you an additional 400,000 stock options in early 2009,
subject to individual and company performance and at the Board’s discretion.
You also have certain severance benefits related to a termination of your employment or a
Change of Control of NuVasive. In the event of any termination of your employment, you shall be
entitled to the Severance Benefit. In the event of a Change of Control of NuVasive, you shall be
entitled to the Change of Control Benefit. In addition, the Section 409A Terms shall be applicable
to the Severance Benefit.
We look forward to your continued success with NuVasive.
| Truly Yours, | ||||
| NUVASIVE, INC. | ||||
| /s/ Xxxxxx X. Xxxx | ||||
Page 2 – Compensation Letter
I have read and accept the terms of this letter.
/s/ Xxxxxx X. Xxxxxxxx |
||
Defined Terms:
“Change of Control Benefit” is defined as follows: Company Acceleration Plan applies with respect
to 50% of unvested stock options vesting immediately upon a Change of Control, and the remaining
unvested stock options vest in 12 equal monthly installments following the Change of Control;
provided that all unvested stock options shall immediately vest upon an Involuntary Termination
following the Change of Control.
“Severance Benefit” upon any termination of your employment (whether voluntary or involuntary) at
any time, severance is equal to 200% of Compensation. Such amount shall be due and payable
immediately upon any such termination and upon the condition that you execute NuVasive’s standard
form of release of claims.
“Change of Control” is defined as either a Change in Control or Fundamental Transaction as defined
in the 2004 Equity Incentive Plan.
“Company Acceleration Plan” is defined as the Company’s policy pursuant to which 50% of all
unvested options under any of the Company’s equity compensation plans (including the 1998 Stock
Option/Stock Issuance Plan and 2004 Equity Incentive Plan) immediately accelerate upon a Change of
Control of the Company, and all remaining stock options immediately accelerate upon an involuntary
termination (except for death, disability or cause) of service within 18 months following such an
event.
“Compensation” is defined as annual salary and bonus most recently paid (even if not in prior
year).
“Section 409A Terms” – the following terms shall be applicable to the Severance Benefit:
Notwithstanding anything in this Agreement to the contrary, no Severance Benefit payable pursuant
to this Agreement 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 until Executive has incurred a “separation from service” within the meaning of the Section
409A Regulations. Furthermore, to the extent that Executive is a “specified employee” within the
meaning of the Section 409A Regulations no Severance Benefit that constitutes a deferral of
compensation shall paid to Executive before the date (the “Delayed Payment Date”) which is first
day of the seventh month after the date of Executive’s separation from service or, if earlier, the
date of Executive’s death following such separation from service. All such amounts that would, but
for these defined terms, become payable prior to the Delayed Payment Date will be accumulated and
paid on the Delayed Payment Date. The Company intends that the Severance Benefit will not be
subject to taxation under Section 409A of the Code. The provisions of this Letter Agreement shall
be interpreted and construed in favor of satisfying any applicable requirements of Section 409A of
the Code. However, the Company does not guarantee any particular tax effect for income provided to
Executive pursuant to this
Agreement. In any event, except for the Company’s responsibility to withhold applicable income and
employment taxes from compensation paid or provided to Executive, the Company shall not be
responsible for the payment of any applicable taxes on compensation paid or provided to Executive
pursuant to this Agreement.
