NUVASIVE, INC. (a Delaware corporation) Convertible Senior Notes due 2017 UNDERWRITING AGREEMENT Dated: June 22, 2011Underwriting Agreement • June 29th, 2011 • Nuvasive Inc • Surgical & medical instruments & apparatus • New York
under the caption “Business—Intellectual Property”, “—Patents” and “Trademarks”, and the statements set forth in the Company’s Form S-3 Registration Statement filed on June 21, 2011 (the “Registration Statement”) under the heading “Risk Factors—Risks Related to Our Intellectual Property and Litigation—Our Ability to Protect Our Intellectual Property and Proprietary Technology Through Patents and Other Means is Uncertain” as of the date thereof contain any untrue statement of material fact or fail to state any material fact necessary to make the statements therein not misleading.
To: NuVasive, Inc. San Diego, CA 92121 Attention: Chief Financial Officer Telephone No.: 858-909-1800 Facsimile No.: 858-909-2000Warrant Agreement • June 29th, 2011 • Nuvasive Inc • Surgical & medical instruments & apparatus • New York
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Warrants issued by NuVasive, Inc. (“Company”) to Goldman, Sachs & Co. (“Bank”) on the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This Confirmation shall replace any previous agreements and serve as the final documentation for this Transaction.
To: NuVasive, Inc. San Diego, CA 92121 Attention: Chief Financial Officer Telephone No.: 858-909-1800 Facsimile No.: 858-909-2000Call Option Transaction • June 29th, 2011 • Nuvasive Inc • Surgical & medical instruments & apparatus
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein have the meanings assigned to them in the indenture (the “Indenture”) to be dated as of June 28, 2011 between Counterparty and U.S. Bank National Association, as trustee, relating to the USD 402,500,000 principal amount of 2.75% Convertible Senior Notes due 2017 (the “Convertible Notes” and, each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”). In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. For the avoidance of doubt, references herein to sections of the Indenture are based on the draft of th
To: NuVasive, Inc. San Diego, CA 92121 Attention: Chief Financial Officer Telephone No.: 858-909-1800 Facsimile No.: 858-909-2000Base Call Option Transaction • June 29th, 2011 • Nuvasive Inc • Surgical & medical instruments & apparatus
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein have the meanings assigned to them in the indenture (the “Indenture”) to be dated as of June 28, 2011 between Counterparty and U.S. Bank National Association, as trustee, relating to the USD350,000,000 principal amount of 2.75% Convertible Senior Notes due 2017 (the “Convertible Notes” and, each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”). In the event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. For the avoidance of doubt, references herein to sections of the Indenture are based on the draft of the
