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EXHIBIT 4.2    
    


 
 

NUVASIVE, INC.    
    
    AMENDMENT NO. 1 TO
  SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT    
    


        This Amendment No. 1 to Second Amended and Restated Investors' Rights Agreement (this "Amendment") is made as of June 19, 2003 by and among
NuVasive, Inc., Inc., a Delaware corporation (the "Company"), and the persons and entities listed on Schedule A hereto (each, an "Investor" and
collectively, the "Investors"). Capitalized terms used herein which are not defined herein shall have the definition ascribed to them in the Second Amended and Restated Investors' Rights Agreement
dated July 11, 2002 (the "Agreement"), among the Company and certain of the Investors (the "Existing Investors"). 


 
 

RECITALS    
    


        A. The Company and the Existing Investors have previously entered into the Agreement, pursuant to which the Existing Investors have certain registration and other
investor rights. 


        B.
The Company desires to sell and issue additional shares of its Series D-1 Preferred Stock ("Series D-1 Preferred Stock") and warrants to purchase
shares of its Common Stock ("Common Stock") pursuant to the terms and conditions set forth in the Series D-1 Preferred Stock and Warrant Purchase Agreement dated as of the date of
this Amendment (the "Purchase Agreement") to certain of the Existing Investors and other new Investors (each, a "New Investor" and collectively, the "New Investors") and such Investors desire to
purchase the Series D-1 Preferred Stock and Warrants from the Company pursuant to the terms and conditions of the Purchase Agreement. 



        C.
The Company and the Existing Investors desire to amend the Agreement to add the New Investors as additional parties to the Agreement as "Investors" whether such New Investors acquire
shares of Series D-1 Preferred Stock and Warrants in the Closing (as defined in the Purchase Agreement) or an Additional Closing (as defined in the Purchase Agreement). 


        D.
The Company and the Existing Investors acknowledge that they are entering into this Amendment as an inducement to and in consideration of the New Investors' purchase of the
Series D-1 Preferred Stock and Warrants in the Closing or an Additional Closing. 



        E.
Section 3.7 of the Agreement provides that the Agreement may be amended with the written consent of (1) the Company and (2) the Existing Investors holding
sixty-six and two-thirds percent (662/3%) of the Registrable Securities then outstanding. 


 
 

AGREEMENT    
    


        NOW, THEREFORE, in consideration of the foregoing and the promises and covenants contained herein and in the Agreement, and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: 



        1.     Addition of New Investors. By executing this Amendment and purchasing shares of Series D-1 Preferred
Stock and Warrants in the Closing or an Additional Closing, the Agreement is hereby amended to add each New Investor as a party to the Agreement and such New Investor agrees to be bound by the terms
and conditions of the Agreement and this Amendment as an Investor and Holder, as applicable. Schedule A attached hereto shall be amended to add
each New Investor. 


        2.     Effect of Amendment. Except as expressly modified by this Amendment, the Agreement shall remain unmodified and in full
force and effect. 


        3.     Entire Agreement. This Amendment together with the Agreement and all documents referred to herein and therein constitute
the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. 





 



        4.     Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Amendment shall inure to the
benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Amendment, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Amendment, except as expressly provided in this Amendment. 


        5.     Governing Law. This Amendment shall be governed by and construed under the laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely within California. 



        6.     Counterparts. This Amendment may be executed in two or more counterparts and the signatures delivered by facsimile, each
of which shall be deemed an original, with the same effect as if the signatures were upon the same instrument and delivered in person. 


        7.     Amendments and Waivers. Any term of this Amendment may be amended and the observance of any term hereof may be waived
(either generally or in a particular instance and either retroactively or prospectively), only with the written consent of (a) the Company and (b) the person and entities holding
sixty-six and two-thirds percent (662/3%) of the Registrable Securities then outstanding. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon all the Investors, each transferee, and the Company. 


        8.     Severability. If one or more provisions of this Amendment are held to be unenforceable under applicable law, such
provision shall be excluded from this Amendment and the balance of the Amendment shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 



        9.     Representation. By executing this Amendment, each Investor acknowledges and agrees that Heller Ehrman White &
McAuliffe LLP represents the Company solely and that Investor has had an opportunity to consult with its own attorney in connection with this Agreement. 


[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK] 


2





 

        IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. 



	 	 	 	 	NUVASIVE, INC.
	

 	
 	

 	
 	

By:	
 	

/s/  ALEXIS V. LUKIANOV      
 Alexis V. Lukianov, President
	

 	
 	

Address:	
 	

10065 Old Grove Road,

San Diego, CA 92131
	

 	
 	

 	
 	

INVESTORS:
	

 	
 	

 	
 	

WILLIAM BLAIR CAPITAL PARTNERS VII, QP, L.P.
	

 	
 	

 	
 	

By:	
 	

William Blair Capital Management VII, L.P.
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

By:	
 	

William Blair Capital Management VII, L.L.C.
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  A. M. MINOCHERHOMJEE      

	 	 	 	 	 	 	Title:	 	Managing Director
	

 	
 	

Address:	
 	

227 West Monroe Street, 35th Floor

Chicago, Illinois 60606
	

 	
 	

 	
 	

WILLIAM BLAIR CAPITAL PARTNERS VII, L.P.
	

 	
 	

 	
 	

By:	
 	

William Blair Capital Management VII, L.P.
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

By:	
 	

William Blair Capital Management, L.L.C.
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  A. M. MINOCHERHOMJEE      

	 	 	 	 	 	 	Title:	 	Managing Director
	

 	
 	

Address:	
 	

227 West Monroe Street, 35th Floor

Chicago, Illinois 60606




[SIGNATURE
PAGE TO SECOND AMENDED AND RESTATED

INVESTORS' RIGHTS AGREEMENT] 


3





 


	

 	
 	

 	
 	

ENTERPRISE PARTNERS IV, LP
	

 	
 	

 	
 	

By:	
 	

Enterprise Management Partners IV, LP
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  ANDREW SENYEI      

	 	 	 	 	 	 	Title:	 	General Partner
	

 	
 	

Address:	
 	

2223 Avenida de la Playa, Suite 300

La Jolla, CA 92037

Attention: Andrew Senyei
	

 	
 	

 	
 	

ENTERPRISE PARTNERS IV ASSOCIATES, LP
	

 	
 	

 	
 	

By:	
 	

Enterprise Management Partners IV, LP
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  ANDREW SENYEI      

	 	 	 	 	 	 	Title:	 	General Partner
	

 	
 	

Address:	
 	

2223 Avenida de la Playa, Suite 300

La Jolla, CA 92037

Attention: Andrew Senyei
	

 	
 	

 	
 	

ENTERPRISE PARTNERS ANNEX FUND IV, LP
	

 	
 	

 	
 	

By:	
 	

Enterprise Management Partners IV-A, LP
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  ANDREW SENYEI      

	 	 	 	 	 	 	Title:	 	General Partner
	

 	
 	

Address:	
 	

2223 Avenida de la Playa, Suite 300

La Jolla, CA 92037

Attention: Andrew Senyei
	

 	
 	

 	
 	

ENTERPRISE PARTNERS ANNEX FUND IV-A, L.P.
	

 	
 	

 	
 	

By:	
 	

Enterprise Management Partners IV-A, LP
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  ANDREW SENYEI      

	 	 	 	 	 	 	Title:	 	General Partner
	

 	
 	

Address:	
 	

2223 Avenida de la Playa, Suite 300

La Jolla, CA 92037

Attention: Andrew Senyei




[SIGNATURE
PAGE TO SECOND AMENDED AND RESTATED

INVESTORS' RIGHTS AGREEMENT] 


4





 


	

 	
 	

 	
 	

KLEINER PERKINS CAUFIELD & BYERS VIII, L.P.
	

 	
 	

 	
 	

By:	
 	

/s/  JOSEPH LACOB      
 Joseph Lacob, General Partner
	

 	
 	

Address:	
 	

2750 Sand Hill Road

Menlo Park, CA 94025

Attn: Joseph Lacob
	

 	
 	

 	
 	

KPCB LIFE SCIENCES ZAIBATSU FUND II
	

 	
 	

 	
 	

By:	
 	

/s/  JOSEPH LACOB      
 Joseph Lacob, General Partner
	

 	
 	

Address:	
 	

2750 Sand Hill Road

Menlo Park, CA 94025

Attn: Joseph Lacob
	

 	
 	

 	
 	

KPCB VIII FOUNDERS FUND
	

 	
 	

 	
 	

By:	
 	

/s/  JOSEPH LACOB      
 Joseph Lacob, General Partner
	

 	
 	

Address:	
 	

2750 Sand Hill Road

Menlo Park, CA 94025

Attn: Joseph Lacob
	

 	
 	

 	
 	

DOMAIN PARTNERS IV, L.P.
	

 	
 	

 	
 	

By:	
 	

One Palmer Square Associates IV, L.L.C.
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  KATHLEEN K. SCHOEMAKER      
 Kathleen K. Schoemaker,

Managing Member
	

 	
 	

Address:	
 	

One Palmer Square

Princeton, NJ 08542
	

 	
 	

 	
 	

DP IV ASSOCIATES, L.P.
	

 	
 	

 	
 	

By:	
 	

One Palmer Square Associates IV, L.L.C.
	 	 	 	 	Its	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  KATHLEEN K. SCHOEMAKER      
 Kathleen K. Schoemaker,

Managing Member
	

 	
 	

Address:	
 	

One Palmer Square

Princeton, NJ 08542




[SIGNATURE
PAGE TO SECOND AMENDED AND RESTATED

INVESTORS' RIGHTS AGREEMENT] 


5





 


	

 	
 	

 	
 	

CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
	

 	
 	

 	
 	

By:	
 	

/s/ JACQUE DOUZIECH    /s/ DENIS DIONNE

	

 	
 	

 	
 	

Its:	
 	

Senior Partner                    General Partner

	 	 	 	 	Print Name:	 	Jacque Douziech        Denis Dionne

	

 	
 	

Address:	
 	

Place CDP Capital 1000 Jean-Paul Riopelle

Montréal, Québec, Canada

H2Z 2B3
	

 	
 	

 	
 	

A. M. PAPPAS LIFE SCIENCE VENTURES II, LP
	

 	
 	

 	
 	

By:	
 	

AMP&A Management II, LLC
	 	 	 	 	Its:	 	General Partner
	

 	
 	

 	
 	

 	
 	

By:	
 	

/s/  FORD S. WORTHY      
 Ford S. Worthy, Senior Vice President
	

 	
 	

Address:	
 	

7030 Kit Creek Road

P.O. Box 110287

Research Triangle Park, NC 27709
	

 	
 	

 	
 	

JOHNSON & JOHNSON DEVELOPMENT CORPORATION
	

 	
 	

 	
 	

By:	
 	

/s/  JOHN ONOPCHENKO      

	 	 	 	 	Name:	 	John Onopchenko

	 	 	 	 	Title:	 	Vice President

	

 	
 	

Address:	
 	

One Johnson & Johnson Plaza

New Brunswick, NJ 08933

Attn: Messrs. John Onopchenko and Eric Jung
	

 	
 	

 	
 	

With a copy to:
	

 	
 	

 	
 	

Ropes & Gray LLP

45 Rockefeller Plaza

New York, NY 10111

Attn: Kristopher Brown, Esq.




[SIGNATURE
PAGE TO SECOND AMENDED AND RESTATED

INVESTORS' RIGHTS AGREEMENT] 


6






  



 
 

SCHEDULE A    
    
    SCHEDULE OF INVESTORS    
    


Enterprise
Partners IV, L.P.

Enterprise Partners IV Associates, L.P.

Enterprise Partners Annex Fund IV, L.P.

Enterprise Partners Annex Fund IV-A, L.P.

Kleiner Perkins Caufield & Byers VIII

KPCB Life Sciences Zaibatsu Fund II

KPCB VIII Founders Fund

Brobeck, Phleger & Harrison LLP

Craig S. Andrews

Domain Partners IV, L.P.

DP IV Associates, L.P.

Comdisco, Inc.

Matthew Frank

William Blair Capital Partners VII, QP, L.P.

William Blair Capital Partners VII, L.P.

Caisse de depot et placement du Quebec

A. M. Pappas Life Science Ventures II, LP

Robertson Stephens, Inc.

RS Coinvestment Fund, L.L.C.

Johnson & Johnson Development Corporation

Innovative Orthotics & Rehabilitation Inc.

David Merrill

Klaus Hagenmeyer

Frederick J. Thabet

Craig Sparks

Todd Marinchak

Peter A. Guagliano

Regis William Haid, Jr.

Mark D. Peterson

Alexander & Marjorie Vaccaro

Griffith Rogan Fry

Joe C. Loy

Keith C. Valentine

SSI Spinal Solutions

James Gleason

Anthony Ross

Jeff Hughes

R. Jay Thabet, Jr.

Integral Capital Partners VI, L.P.

Ronald Clayton Childs

Tom L. Meyer, III

Gregg Lacoste

William Houston, Jr.

Behrooz A. Akbarnia

Sam & Dawn Maywood

Bruce & Nina Van Dam

Scot Martinelli & Bobbi-Jo Romanishan



A-1





 



MLPF&S
Cust. William Player Barefoot IRA

Scott Kitchel

Rudolph Bertagnoli

Jonathan Spangler

Tony Salerni

Kevin Armstrong

Andy Cappuccino 


A-2









QuickLinks



EXHIBIT 4.2


NUVASIVE, INC. AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT

RECITALS

AGREEMENT


SCHEDULE A SCHEDULE OF INVESTORS