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EXHIBIT 10.6    
    


THIS
WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE
NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THIS WARRANT. 


 
 

NUVASIVE, INC.    
    
    WARRANT TO PURCHASE 22,530 SHARES
  OF SERIES D PREFERRED STOCK    



        THIS
CERTIFIES THAT, for value received, GATX VENTURES, INC. and its permitted assignees are entitled to subscribe for and purchase Twenty-Two Thousand Five Hundred
Thirty (22,530) shares of fully paid and nonassessable Series D Preferred Stock (as adjusted pursuant to Section 4 hereof, the "Shares") of NuVasive, Inc., a Delaware corporation
(the "Company"), at the price of $2.53 per share (such price and such other price as shall result, from time to time, from the adjustments specified in Section 4 hereof is herein referred to as
the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein, (a) the term "Series Preferred" shall mean the Company's presently
authorized Series D Preferred Stock, or, if such Series D Preferred Stock is hereafter converted or exchanged, any stock into or for which such Series D Preferred Stock may
hereafter be converted or exchanged, and after the automatic conversion of the Series D Preferred Stock to Common Stock shall mean the Company's Common Stock, (b) the term "Date of
Grant" shall mean December 27, 2001, and (c) the term "Other Warrants" shall mean any other warrants issued by the Company in connection with the transaction with respect to which this
Warrant was issued, and any warrant issued upon transfer or partial exercise of or in lieu of this
Warrant. The term "Warrant" as used herein shall be deemed to include Other Warrants unless the context clearly requires otherwise. 


        1.    Term.    Subject to the terms hereof, the purchase right represented by this
Warrant is exercisable, in whole or in part, at any time and from time to time from the Date of Grant through the later of (i) seven (7) years after the Date of Grant or
(ii) three (3) years after the closing of the Company's initial public offering of its Common Stock ("IPO") effected pursuant to a Registration Statement on Form S-1
(or its successor) filed under the Securities Act of 1933, as amended (the "Act"). 


        2.    Method of Exercise; Payment; Issuance of New Warrant.    Subject to
Section 1 hereof, the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or in part and from time to time, at the election of the holder hereof, by
(a) the surrender of this Warrant (with the notice of exercise substantially in the form attached hereto as Exhibit A-1 duly completed and executed) at the principal office
of the Company and by the payment to the Company, by certified or bank check, or by wire transfer to an account designated by the Company (a "Wire Transfer") of an amount equal to the then applicable
Warrant Price multiplied by the number of Shares then being purchased; (b) if in connection with a registered public offering of the Company's securities, the surrender of this Warrant (with
the notice of exercise form attached hereto as Exhibit A-2 duly completed and executed) at the principal office of the Company together with notice of arrangements reasonably
satisfactory to the Company and to the underwriters of such public offering for payment to the Company either by certified or bank check or by Wire Transfer from the proceeds of the sale of shares to
be sold by the holder in such public offering of an amount equal to the then applicable 


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Warrant
Price per share multiplied by the number of Shares then being purchased; or (c) exercise of the "net issuance" right provided for in Section 10.2 hereof The person or persons in
whose name(s) any certificate(s) representing shares of Series Preferred shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated
for all purposes as the record holder(s) of, the shares represented thereby (and such shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon
which this Warrant is exercised. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be delivered to the holder hereof as
soon as possible and in any event within thirty (30) days after such exercise and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the Shares,
if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the holder hereof as soon as possible and in any event within such thirty-day period;
provided, however, at such time as the Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, if requested by the holder of this Warrant, the Company
shall use its best efforts to cause its transfer agent to deliver the certificate representing Shares issued upon exercise of this Warrant to a broker or other person (as directed by the holder
exercising this Warrant) within the time period required to settle any trade made by the holder after exercise of this Warrant. 



        3.    Stock Fully Paid; Reservation of Shares.    All Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance pursuant to the terms and conditions herein, be fully paid and nonassessable, and free from all preemptive rights and taxes,
liens and charges with respect to the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with the issue thereof). During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Series Preferred to provide for the exercise of the rights represented by this Warrant and a sufficient number of shares of its Common Stock to provide for the
conversion of the Series Preferred into Common Stock. 


        4.    Adjustment of Warrant Price and Number of Shares.    The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: 



        (a)    Reclassification or Merger.    In case of any reclassification or change of
securities of the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger of the Company with or into another corporation (other than a merger with another corporation in which the Company is the acquiring and the surviving
corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all of the
assets of the Company, the Company, or such successor or purchasing corporation, as the case may be, shall duly execute and deliver to the holder of this Warrant a new Warrant (in form and substance
satisfactory to the holder of this Warrant), or the Company shall make appropriate provision without the issuance of a new Warrant, so that the holder of this Warrant shall have the right to receive
upon exercise of this Warrant, at a total purchase price not to exceed that payable upon the exercise of the unexercised portion of this Warrant, and in lieu of the shares of Series Preferred
theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, change, merger or sale by a
holder of the number of shares of Series Preferred then purchasable under this Warrant. Any new Warrant shall provide for adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. The provisions of this Section 4(a) shall similarly apply to successive reclassifications, changes, mergers and sales. 



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        (b)    Subdivision or Combination of Shares.    If the Company at any time while this
Warrant remains outstanding and unexpired shall subdivide or combine its outstanding shares of Series Preferred, the Warrant Price shall be proportionately decreased and the number of Shares issuable
hereunder shall be proportionately increased in the case of a subdivision and the Warrant Price shall be proportionately increased and the number of Shares issuable hereunder shall be proportionately
decreased in the case of a combination. 


        (c)    Stock Dividends and Other Distributions.    If the Company at any time while this
Warrant is outstanding and unexpired shall (i) pay a dividend with respect to Series Preferred payable in Series Preferred, then the Warrant Price shall be adjusted, from and after the date of
determination of shareholders entitled to receive such dividend or distribution, to that price determined by multiplying the Warrant Price in effect immediately prior to such date of determination by
a fraction (A) the numerator of which shall be the total number of shares of Series Preferred outstanding immediately prior to such dividend or distribution, and (B) the denominator of
which shall be the total number of shares of Series Preferred outstanding immediately after such dividend or distribution; or (ii) make any other distribution with respect to Series Preferred
(except any distribution specifically provided for in Sections 4(a) and 4(b)), then, in each such case, provision shall be made by the Company such that the holder of this Warrant shall receive upon
exercise of this Warrant a proportionate share of any such dividend or distribution as though it were the holder of the Series Preferred as of the record date fixed for the determination of the
shareholders of the Company entitled to receive such dividend or distribution. 


        (d)    Adjustment of Number of Shares.    Upon each adjustment in the Warrant Price, the
number of shares of Series Preferred purchasable hereunder shall be adjusted, to the nearest whole share, to the product obtained by multiplying the number of shares purchasable immediately prior to
such adjustment in the Warrant Price by a fraction, the numerator of which shall be the Warrant Price immediately prior to such adjustment and the denominator of which shall be the Warrant Price
immediately thereafter. 


        (e)    Antidilution Rights.    The other antidilution rights applicable to the Shares of
Series Preferred purchasable hereunder are set forth in the Company's Certificate of Incorporation, as amended through the Date of Grant, a true and complete copy of which is attached hereto as
Exhibit B (the "Charter"). Such antidilution rights shall not be restated, amended, modified or waived in any manner that treats the holder hereof any differently than any other holder of
Series Preferred without such holder's prior written consent. The Company shall promptly provide the holder hereof with any restatement, amendment, modification or waiver of the Charter promptly after
the same has been made. 




        5.    Notice of Adjustments.    Whenever the Warrant Price or the number of Shares
purchasable hereunder shall be adjusted pursuant to Section 4 hereof, the Company shall make a certificate signed by its chief financial officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price and the number of Shares purchasable hereunder after giving effect to
such adjustment, and shall cause copies of such certificate to be mailed (without regard to Section 13 hereof, by first class mail, postage prepaid) to the holder of this Warrant. In addition,
whenever the conversion price or conversion ratio of the Series Preferred shall be adjusted, the Company shall cause a copy of any certificate of adjustment delivered to the holders of Series
Preferred pursuant to the Charter to be mailed (without regard to Section 13 hereof, by first class mail, postage prepaid) to the holder of this Warrant. 


        6.    Fractional Shares.    No fractional shares of Series Preferred will be issued in
connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment 


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therefor
based on the fair market value of the Series Preferred on the date of exercise as reasonably determined in good faith by the Company's Board of Directors. 



        7.    Compliance with Act; Disposition of Warrant or Shares of Series Preferred.    



        (a)    Compliance with Act.    The holder of this Warrant, by acceptance hereof, agrees
that this Warrant, and the shares of Series Preferred to be issued upon exercise hereof and any Common Stock issued upon conversion thereof (collectively, the "Securities") are being acquired for
investment and that such holder will not offer, sell or otherwise dispose of the Securities except under circumstances which will not result in a violation of the Act or any applicable state
securities laws. Upon exercise of this Warrant, unless the Shares being acquired are registered under the Act and any applicable state securities laws or an exemption from such registration is
available (which does not require confirmation as set forth in the remaining portion of this sentence), the holder hereof shall confirm in writing that the shares of Series Preferred so purchased (and
any shares of Common Stock issued upon conversion thereof) are being acquired for investment and not with a view toward distribution or resale in violation of the Act and shall confirm such other
matters related thereto as may be reasonably requested by the Company. The Securities (unless registered under the Act and any applicable state securities laws) shall be stamped or imprinted with
legends in substantially the following forms: 



        (1)   "THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE
NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT
UNDER WHICH THESE SECURITIES WERE ISSUED, DIRECTLY OR INDIRECTLY." 


        (2)   Any
legend required by the laws of the state of California, including any legend required by the California Department of Corporations and Sections 417 and 418 of the
California Corporations Code. 


        (3)   Any
legend required by any investors' nights agreement, stockholders agreement or voting agreement to which the holder of the Securities is a party. 




        Said
legends shall be removed by the Company, upon the request of a holder, at such time as the restrictions relating to the applicable security shall have terminated. In addition, in
connection with the issuance of this Warrant, the holder specifically represents to the Company by acceptance of this Warrant as follows: 



        (1)   The
holder is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its
investment and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities. Furthermore, the holder is
aware of the Company's business affairs and financial condition, and has acquired information about the Company sufficient to reach an informed and knowledgeable decision to acquire the Securities.
The holder is acquiring the Securities for its own account for investment purposes only and not with a view to, or for the resale in connection with, any "distribution" thereof in violation of the Act
or state securities laws. 


        (2)   The
holder understands that this Warrant has not been registered under the Act or qualified under state securities laws in reliance upon specific exemptions therefrom,
which 




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exemptions
depend upon, among other things, the bona fide nature of the holder's investment intent as expressed herein. 


        (3)   The
holder further understands that the Securities must be held indefinitely unless subsequently registered under the Act and qualified under any applicable state
securities laws, or unless exemptions from registration and qualification are otherwise available and any restrictions on transfer set forth herein are satisfied. The holder is aware of the provisions
of Rule 144, promulgated under the Act. 


        (4)   The
holder is an "accredited investor" as such ten-n is defined in Rule 501 of Regulation D promulgated under the Act. 




        (b)    Disposition of Warrant or Shares.    With respect to any offer, sale or other
disposition of the Securities prior to registration of such Securities, the holder hereof agrees to give written notice to the Company prior thereto, describing briefly the manner thereof, together
with a written opinion of such holder's counsel, or other evidence, if reasonably satisfactory to the Company, to the effect that such offer, sale or other disposition may be effected without
registration or qualification (under the Act as then in effect or any federal or state securities law then in effect) of the Securities and indicating whether or not under the Act and state securities
laws certificates for the Securities to be sold or otherwise disposed of require any restrictive legend as to applicable restrictions on transferability in order to ensure compliance with such laws.
Upon receiving such written notice and reasonably satisfactory opinion or other evidence, the Company, as promptly as practicable but no later than fifteen (15) days after receipt of the
written notice, shall notify such holder that such holder may sell or otherwise dispose of the Securities, all in accordance with the terms of the notice delivered to the
Company. If a determination has been made pursuant to this Section 7(b) that the opinion of counsel for the holder or other evidence is not reasonably satisfactory to the Company, the Company
shall so notify the holder promptly with details thereof after such determination has been made. Notwithstanding the foregoing, the Securities may, as to such federal laws, be offered, sold or
otherwise disposed of in accordance with Rule 144 or 144A under the Act, provided that the Company shall have been furnished with such information as the Company may reasonably request to
provide a reasonable assurance that the provisions of Rule 144 or 144A have been satisfied. Each certificate representing the Securities thus transferred shall bear a legend as to the
applicable restrictions on transferability in order to ensure compliance with such laws, unless in the aforesaid opinion of counsel for the holder, such legend is not required in order to ensure
compliance with such laws. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 



        (c)    Applicability of Restrictions.    Provided the holder complies with applicable
federal and state securities laws, neither any restrictions of any legend described in this Warrant nor the requirements of Section 7(b) above shall apply to any transfer of, or grant of a
security interest in, the Securities or any part thereof to any affiliate of the holder if the holder is a corporation; provided, however, in
any such transfer, if applicable, the transferee shall agree in writing to be bound by the terms of this Warrant as if an original holder hereof. 




        8.    Rights as Shareholders; Information.    No holder of this Warrant, as such, shall
be entitled to vote or receive dividends or be deemed the holder of Series Preferred or any other securities of the Company which may at any time be issuable upon the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof, or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until this Warrant shall
have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. Notwithstanding the foregoing, the Company will transmit to the holder of
this Warrant such 


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information,
documents and reports as are generally distributed to the holders of the Series Preferred concurrently with the distribution thereof to such shareholders. 


        9.    Registration Rights.    The Company shall enter into an amendment to its Amended
and Restated Investors' Rights Agreement in substantially the form attached hereto as Exhibit C in order to make the holder of this Warrant a party to such agreement; and the holder of this
Warrant agrees to be subject to the restrictions contained in such Amended and Restate Investors' Rights Agreement, as amended from time to time, including the Market Standoff provisions contained in
Section 1.15 of such agreement (which currently requires each Holder to agree that, during the period of duration specified the Company and an underwriter of Common Stock or other securities of
the Company, following the effective date of a registration statement of the Company filed under the Act, it shall not, to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase or otherwise transfer or dispose of (other than to donees or partners of
Investors who agree to be similarly bound) any securities of the Company held by it at any time during such period except Common Stock included in
such registration; provided, however, that such agreement shall only apply to the first such registration statement of the Company which covers Common Stock (or other securities) to be sold on its
behalf to the public in an underwritten offering and that such agreement shall not exceed 180 days after the effective date for such registration statement). 


        10.    Additional Rights.    


        10.1    Acquisition Transactions.    The Company shall provide the holder of this Warrant
with at least ten (10) days' written notice prior to closing thereof of the terms and conditions of any of the following transactions (to the extent the Company has notice thereof):
(i) the sale, lease, exchange, conveyance or other disposition of all or substantially all of the Company's property or business, or (ii) its merger into or consolidation with any other
corporation (other than a wholly-owned subsidiary of the Company), or any transaction (including a merger or other reorganization) or series of related transactions, in which more than 50% of the
voting power of the Company is disposed of. 


        10.2    Right to Convert Warrant into Stock: Net Issuance.    



        (a)    Right to Convert.    In addition to and without limiting the rights of the holder
under the terms of this Warrant, the holder shall have the right to convert this Warrant or any portion thereof (the "Conversion Right") into shares of Series Preferred as provided in this
Section 10.2 at any time or from time to time during the term of this Warrant. Upon exercise of the Conversion Right with respect to a particular number of shares subject to this Warrant (the
"Converted Warrant Shares"), the Company shall deliver to the holder (without payment by the holder of any 



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exercise
price or any cash or other consideration) that number of shares of fully paid and nonassessable Series Preferred as is determined according to the following formula: 



	X =	 	B-A

Y	 	 






	

Where: X =	
 	

the number of shares of Series Preferred that shall be issued to holder
	

Y =	
 	

the fair market value of one share of Series Preferred on the Conversion date (as defined below)
	

A =	
 	

the aggregate Warrant Price of the specified number of Converted Warrant Shares immediately prior to the exercise of the Conversion Right (i.e., the number of Converted Warrant Shares multiplied by the Warrant Price on the Conversion Date)
	

B =	
 	

the aggregate fair market value of the specified number of Converted Warrant Shares on the date of such conversion (i.e., the number of Converted Warrant Shares multiplied
by the fair market value of one Converted Warrant Share on the Conversion Date)






        No
fractional shares shall be issuable upon exercise of the Conversion Right, and, if the number of shares to be issued determined in accordance with the foregoing formula is other than
a whole number, the Company shall pay to the holder an amount in cash equal to the fair market value of the resulting fractional share on the Conversion Date (as hereinafter defined). For purposes of
Section 10 of this Warrant, shares issued pursuant to the Conversion Right shall be treated as if they were issued upon the exercise of this Warrant. 


        (b)    Method of Exercise.    The Conversion Right may be exercised by the holder by the
surrender of this Warrant at the principal office of the Company together with a written statement (which may be in the form of Exhibit A- I or Exhibit A-2
hereto) specifying that the holder thereby intends to exercise the Conversion Right and indicating the number of shares subject to this Warrant which are being surrendered (referred to in
Section 10.2(a) hereof as the Converted Warrant Shares) in exercise of the Conversion Right. Such conversion shall be effective upon receipt by the Company of this Warrant together with the
aforesaid written statement, or on such later date as is specified therein (the "Conversion Date"), and, at the election of the holder hereof, may be made contingent upon the closing of the sale of
the Company's Common Stock to the public in a public offering pursuant to a Registration Statement under the Act (a "Public Offering"). Certificates for the shares issuable upon exercise of the
Conversion Right and, if applicable, a new warrant evidencing the balance of the shares remaining subject to this Warrant, shall be issued as of the Conversion Date and shall be delivered to the
holder within thirty (30) days following the Conversion Date. 


        (c)    Determination of Fair Market Value.    For purposes of this Section 10.2,
"fair market value" of a share of Series Preferred as of the Conversion Date shall mean: 



        (i)    If
the Conversion Right is exercised in connection with and contingent upon a Public Offering, and if the Company's Registration Statement relating to such Public
Offering ("Registration Statement") has been declared effective by the Securities and Exchange Commission, then the initial "Price to Public" specified in the final prospectus with respect to such
offering. 




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        (ii)   If
the Conversion Right is not exercised in connection with and contingent upon a Public Offering, then as follows: 



        (A)  If
traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such
exchange over the five trading days immediately prior to the Conversion Date, and the fair market value of the Series Preferred shall be deemed to be such fair market value of the Common Stock
multiplied by the number of shares of Common Stock into which each share of Series Preferred is then convertible; 


        (B)  If
traded on the Nasdaq Stock Market or other over-the-counter system, the fair market value of the Common Stock shall be deemed to be the
average of the closing bid prices of the Common Stock over the five trading days immediately prior to the Conversion Date, and the fair market value of the Series Preferred shall be deemed to be such
fair market value of the Common Stock multiplied by the number of shares of Common Stock into which each share of Series Preferred is then convertible; and 



        (C)  If
there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Company's Board of Directors. 






In
making a determination under clauses (A) or (B) above, if on the Conversion Date, five trading days had not passed since the IPO, then the fair market value of the Common Stock shall
be the average closing prices or closing bid prices, as applicable, for the shorter period beginning on and including the date of the IPO and ending on the trading day prior to the Conversion Date (or
if such period includes only one trading day the closing price or closing bid price, as applicable, for such trading day). If closing prices or closing bid prices are no longer reported by a
securities exchange or other trading system, the closing price or closing bid price shall be that which is reported by such securities exchange or other trading system at 4:00 p.m. New York
City time on the applicable trading day. 


        10.3    Exercise Prior to Expiration.    To the extent this Warrant is not previously
exercised as to all of the Shares subject hereto, and if the fair market value of one share of the Series Preferred is greater than the Warrant Price then in effect, this Warrant shall be deemed
automatically exercised pursuant to Section 10.2 above (even if not surrendered) immediately before its expiration. For purposes of such
automatic exercise, the fair market value of one share of the Series Preferred upon such expiration shall be determined pursuant to Section 10.2(c). To the extent this Warrant or any portion
thereof is deemed automatically exercised pursuant to this Section 10.3, the Company agrees to promptly notify the holder hereof of the number of Shares, if any, the holder hereof is to receive
by reason of such automatic exercise. 


        11.    Representations and Warranties.    The Company represents and warrants to the
holder of this Warrant as follows: 



        (a)   This
Warrant has been duly authorized and executed by the Company and is a valid and binding obligation of the Company enforceable in accordance with its terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the rules of law or principles at equity governing specific performance, injunctive relief and other
equitable remedies. 


        (b)   The
Shares have been duly authorized and reserved for issuance by the Company and, when issued in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and free from preemptive rights. 


        (c)   The
rights, preferences, privileges and restrictions granted to or imposed upon the Series Preferred and the holders thereof are as set forth in the Charter, and on the
Date of Grant, each 



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share
of the Series Preferred represented by this Warrant is convertible into one share of Common Stock. 


        (d)   The
shares of Common Stock issuable upon conversion of the Shares have been duly authorized and reserved for issuance by the Company and, when issued in accordance with
the terms of the Charter will be validly issued, fully paid and nonassessable. 


        (e)   The
execution and delivery of this Warrant are not, and the issuance of the Shares upon exercise of this Warrant in accordance with the terms hereof will not be,
inconsistent with the Company's Charter or by-laws, do not and will not contravene any law, governmental rule or regulation, judgment or order applicable to the Company, and do not and
will not conflict with or contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument of which the Company is a party or by which it is bound or
require the consent or approval of, the giving of notice to, the registration or filing with or the taking of any action in respect of or by, any Federal, state or local government authority or agency
or other person, except for the filing of notices pursuant to federal and state securities laws, which filings will be effected by the time required thereby. 


        (f)    There
are no actions, suits, audits, investigations or proceedings pending or, to the knowledge of the Company, threatened against the Company in any court or before any
governmental commission, board or authority which, if adversely determined, could have a material adverse effect on the ability of the Company to perform its obligations under this Warrant. 



        (g)   The
number of shares of Common Stock of the Company outstanding on the date hereof, on a fully diluted basis (assuming the conversion of all outstanding convertible
securities and the exercise of all outstanding options and warrants), does not exceed 28,120,045 shares. 




        12.    Modification and Waiver.    This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. 



        13.    Notices.    Any notice, request, communication or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be delivered, or shall be sent by certified or registered mail, postage prepaid, to each such holder at its address as
shown on the books of the Company or to the Company at the address indicated therefor on the signature page of this Warrant. 


        14.    Binding Effect on Successors.    This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of all or substantially all of the Company's assets, and all of the obligations of the Company relating to the Series
Preferred issuable upon the exercise or conversion of this Warrant shall survive the exercise, conversion and termination of this Warrant and all of the covenants and agreements of the Company shall
inure to the benefit of the permitted successors and assigns of the holder hereof. 


        15.    Lost Warrants or Stock Certificates.    The Company covenants to the holder hereof
that, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or any stock certificate and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or stock certificate, the
Company will make and deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate. 


        16.    Descriptive Headings.    The descriptive headings of the various Sections of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The language in this Warrant shall be construed as to its fair meaning without regard to which party drafted
this Warrant. 


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        17.    Governing Law.    This Warrant shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of California. 


        18.    Survival of Representations, Warranties and Agreements.    All representations and
warranties of the Company and the holder hereof contained herein shall survive the Date of Grant, the exercise or conversion of this Warrant (or any part hereof) or the termination or expiration of
rights hereunder. All agreements of the Company and the holder hereof contained herein shall survive indefinitely until, by their respective terms, they are no longer operative. 


        19.    Remedies.    In case any one or more of the covenants and agreements contained in
this Warrant shall have been breached, the holders hereof (in the case of a breach by the Company), or the Company (in the case of a breach by a holder), may proceed to protect and enforce their or
its rights either by suit in equity and/or by action at law, including, but not limited to, an action for damages as a result of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Warrant. 


        20.    No Impairment of Rights.    The Company will not, by amendment of its Charter or
through any other means, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holder of this Warrant against impairment. 



        21.    Severability.    The invalidity or unenforceability of any provision of this
Warrant in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction, or affect any other provision of this Warrant, which shall remain in full force
and effect. 


        22.    Recovery of Litigation Costs.    If any legal action or other proceeding is
brought for the enforcement of this Warrant, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Warrant, the successful or
prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be
entitled. 


        23.    Entire Agreement; Modification.    This Warrant constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and undertakings of the parties, whether oral or written,
with respect to such subject matter. 


10





 

        The
Company has caused this Warrant to be duly executed and delivered as of the Date of Grant specified above. 



	 	 	NUVASIVE, INC.
	

 	
 	

By	

/s/  STEVE MCGOWAN      

	 	 	Title	Chief Financial Officer

	 	 	Address:	10065 Old Grove Road

San Diego, CA 92131





	

ACKNOWLEDGED AND AGREED:	

 
	

GATX VENTURES, INC.	

 
	

By	

/s/  PATRICIA W. LEICHER      
	

 
	Title	SVP
	 




11







 
 

EXHIBIT A- I    
    
    NOTICE OF EXERCISE    



To:    NuVasive, Inc.
(the "Company") 


        1.     The
undersigned hereby: 



	 	 	o	 	elects to purchase            shares of [Series Preferred Stock] [Common Stock] of the Company pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full, or
	

 	
 	

o	
 	

elects to exercise its net issuance rights pursuant to Section 10.2 of the attached Warrant with respect to            Shares of [Series Preferred Stock] [Common Stock].





        2.     Please
issue a certificate or certificates representing                        shares in the name of the undersigned or in such other
name or names as are specified below: 



	

 	
 	

 (Name)	
 	

 
	

 	
 	

	
 	

 
	

 	
 	

 (Address)	
 	

 





        3.     The
undersigned represents that the aforesaid shares are being acquired for the account of the undersigned for investment and not with a view to, or for resale in
connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares, all except as in compliance with applicable securities laws. 



	

 	
 	

 (Signature)
	

 (Date)	
 	

 







 
 

EXHIBIT A-2    
    
    NOTICE OF EXERCISE    



To:    NuVasive, Inc.
(the "Company") 


        1.     Contingent
upon and effective immediately prior to the closing (the "Closing") of the Company's public offering contemplated by the Registration Statement on
Form S            , filed    200    , the undersigned hereby: 


        o
elects to purchase          shares of [Series Preferred Stock] [Common Stock] of
the Company (or such lesser number of shares as may be sold on behalf of the undersigned at the Closing) pursuant to the terms of the attached Warrant, or 



        o elects to exercise its net issuance rights pursuant to Section 10.2 of the attached Warrant with respect to
          Shares of [Series Preferred Stock] [Common Stock]. 


        2.     Please
deliver to the custodian for the selling shareholders a stock certificate representing such          shares. 


        3.     The
undersigned has instructed the custodian for the selling shareholders to deliver to the Company $            or, if less, the net proceeds due the undersigned
from the sale of shares in the aforesaid public offering. If such net proceeds are less than the purchase price for such shares, the undersigned agrees to deliver the difference to the Company prior
to the Closing. 



	 	 	
 (Signature)
	

 (Date)	
 	

 











QuickLinks



EXHIBIT 10.6


NUVASIVE, INC. WARRANT TO PURCHASE 22,530 SHARES OF SERIES D PREFERRED STOCK


EXHIBIT A- I NOTICE OF EXERCISE

EXHIBIT A-2 NOTICE OF EXERCISE