As filed with the Securities and Exchange Commission on February 11, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUVASIVE, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 33-0768598 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
7475 Lusk Boulevard
San Diego, California 92121
(858) 909-1800
(Address of Principal Executive Offices)
Ellipse Technologies, Inc. 2015 Incentive Award Plan
(Full Title of the Plan)
Gregory T. Lucier
Chairman and Chief Executive Officer
NuVasive, Inc.
7475 Lusk Boulevard
San Diego, California 92121
(858) 909-1800
(Name, address, including zip code, and telephone number, including area code of agent for service)
Copy to:
Larry W. Nishnick, Esq.
DLA Piper LLP (US)
4365 Executive Drive
Suite 1100
San Diego, California 92121
(858) 677-1400
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price per Share |
Proposed Maximum Offering Price (3) |
Amount of Registration Fee | ||||
| Common Stock $0.001 par value per share, to be issued pursuant to the Ellipse Technologies, Inc. 2015 Incentive Award Plan |
1,508,423(2) | $41.03(3) | $61,890,595 | $6,232 | ||||
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| (1) | Pursuant to Rule 416(a), this registration statement shall also cover an indeterminable number of additional shares of common stock which may become issuable under the Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the receipt of consideration which results in an increase or decrease in the number of outstanding shares of common stock of the Company. |
| (2) | The Ellipse Technologies, Inc. 2015 Incentive Award Plan (the “Ellipse Plan”) is a plan previously adopted and maintained by Ellipse Technologies, Inc. (“Ellipse”). Pursuant to the Agreement and Plan of Merger, dated January 4, 2016, NuVasive, Inc. (the “Company”) acquired Ellipse Technologies, Inc. on February 11, 2016, whereby Ellipse became a wholly-owned subsidiary of the Company. Based upon such merger, the Company assumed the Ellipse Plan and the shares thereunder, subject to an equity exchange adjustment, for future awards by the Company; provided, however, such awards will not be granted to individuals who were employed by the Company or any of its subsidiaries (other than Ellipse) at the time the merger was consummated in accordance with Nasdaq Rule 5635(c). |
| (3) | This estimate is computed in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee, and is based on the average of the high and low prices of the registrant’s common stock on February 8, 2016 as reported on the NASDAQ Global Select Market. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
The documents containing the information specified in this Part I of Form S-8 (plan information and Registrant information and employee plan annual information) will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission (neither as part of this registration statement nor as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act). Such documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents filed with the Commission by the Registrant are incorporated by reference in this registration statement:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, as filed on February 11, 2016;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report referred to in (a) above (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K);
(c) The description of the Common Stock of the Registrant contained in the Registration Statement on Form 8-A (No. 000-50744) filed with the Commission on May 5, 2004, pursuant to Section 12 of the Exchange Act, and in any report filed for the purpose of amending such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered under this registration statement have been sold or which deregisters all of such shares then remaining unsold, are incorporated by reference in this registration statement and are a part hereof from the date of the filing of such documents, except as to any portion of any future annual, quarterly or current report or document that is not deemed filed with the Commission. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
You may request a copy of these filings, at no cost, by writing or telephoning the Registrant at:
NuVasive, Inc.
7475 Lusk Boulevard
San Diego, California 92121
Attn: Chief Financial Officer
(858) 909-1800
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You should rely only on the information provided or incorporated by reference in this registration statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this registration statement or any related prospectus is accurate as of any date other than the date on the front of the document.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| Item 6. | Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the “Securities Act”).
As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation includes a provision that eliminates the personal liability of the Registrant’s directors for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases) or (4) for any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Registrant’s bylaws provide that (1) it is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (2) the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law, (3) the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions and (4) the rights conferred in the bylaws are not exclusive.
The Registrant has entered into indemnification agreements with each of its directors and officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s certificate of incorporation and to provide additional procedural protections. The Registrant also intends to enter into indemnification agreements with any new directors and officers in the future.
The Registrant has obtained liability insurance for its officers and directors.
The indemnification provisions in the Registrant’s restated certificate of incorporation, restated bylaws and the indemnification agreements entered into between the Registrant and each of its directors and officers may be sufficiently broad to permit indemnification of its directors and officers for liabilities arising under the Securities Act.
| Item 7. | Exemption from Registration Claimed |
Not Applicable.
| Item 8. | Exhibits |
See Index to Exhibits below.
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| Item 9. | Undertakings |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 11th day of February, 2016.
| NUVASIVE, INC. | ||
| By: | /s/ Gregory T. Lucier | |
| Gregory T. Lucier | ||
| Chairman and Chief Executive Officer | ||
POWER OF ATTORNEY
We, the undersigned directors and/or officers of NuVasive, Inc. (the “Registrant”), hereby severally constitute and appoint Gregory T. Lucier, Chairman and Chief Executive Officer and Quentin S. Blackford, Executive Vice President and Chief Financial Officer, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys, with full powers to them and each of them to sign for us, in our names and in the capacities indicated below, the Registration Statement on Form S-8 filed with the Commission, and any and all amendments to said Registration Statement (including post-effective amendments), and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 in connection with the registration under the Securities Act of 1933 of the Registrant’s equity securities, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933 this registration statement has been signed by the following persons in the capacities and as of the dates indicated:
| Signature | Title(s) | |||
| /s/ Gregory T. Lucier Gregory T. Lucier |
Chairman, Chief Executive Officer, and Director (Principal Executive Officer) | |||
| /s/ Quentin S. Blackford Quentin S. Blackford |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting officer) | |||
| /s/ Jack R. Blair Jack R. Blair |
Director | |||
| /s/ Vickie L. Capps Vickie L. Capps |
Director | |||
| /s/ Peter C. Farrell, Ph.D., AM Peter C. Farrell, Ph.D., AM |
Director | |||
| /s/ Lesley H. Howe Lesley H. Howe |
Director | |||
| /s/ Leslie V. Norwalk, Esq. Leslie V. Norwalk, Esq. |
Director | |||
| /s/ Daniel J. Wolterman Daniel J. Wolterman |
Director | |||
INDEX TO EXHIBITS
| Exhibit |
Description | |
| 4.1(1) | Restated Certificate of Incorporation | |
| 4.2(2) | Certificate of Amendment to Restated Certificate of Incorporation | |
| 4.3(3) | Restated Bylaws | |
| 4.4(4) | Amendment No. 1 to the Restated Bylaws | |
| 4.5(5) | Specimen Common Stock Certificate | |
| 4.6(6) | Certificate of Designations of Series A Participating Preferred Stock filed with the Delaware secretary of State on June 28, 2011 | |
| 4.7(6) | Indenture dated as of June 28, 2011 between the Company and U.S. Bank National Association, as Trustee | |
| 4.8(6) | Form of 2.75% Convertible Senior Note due 2017 | |
| 5.1 | Opinion of DLA Piper LLP (US) | |
| 10.1(#) | 2015 Ellipse Technologies, Inc. Incentive Award Plan | |
| 23.1 | Consent of Ernst & Young LLP | |
| 23.2 | Consent of Deloitte & Touche LLP | |
| 23.2 | Consent of DLA Piper LLP (US) (filed as part of Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page to this registration statement) | |
| (1) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q filed with the Commission on August 13, 2004. |
| (2) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on September 28, 2011. |
| (3) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on January 6, 2012. |
| (4) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on May 19, 2014. |
| (5) | Incorporated by reference to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 15, 2006. |
| (6) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on June 29, 2011. |
| # | Indicates management contract or compensatory plan. |