exv10w2



 







EXHIBIT 10.2




[NUVASIVE, INC. LETTERHEAD]




May 23, 2006




Mr. Alexis V. Lukianov

4545 Towne Centre Court

San Diego, California 92121




	 	 	 
	Re:

	 	Amendment to Severance Provisions






Dear Alex,




     The purpose of this letter is to memorialize our understanding regarding the amendment of the
terms of your original offer letter with NuVasive, Inc. (the “Company”) dated July 12, 1999, as
amended on January 20, 2004 (the “Offer Letter”). For purposes of this letter, the terms
Involuntary Termination and Corporate Transaction shall have the meaning set forth in the Company’s
1998 Stock Option/Stock Issuance Plan.



     1. Severance. In the event of your Involuntarily Termination, whether prior or
subsequent to any Corporate Transaction, in lieu of any severance contemplated by your Offer
Letter, the Company shall pay you a cash payment equal to two hundred percent (200%) of your
compensation earned (including any bonus with respect to performance during) the most recently
completed calendar year upon your execution of a release of all claims against the Company.



     These terms are in lieu of and replace the current terms of any severance obligations set
forth in the Offer Letter. The severance obligations set forth herein constitute the entirety of
any severance obligation owed to you by the Company. Except as amended and set forth in this
letter, the Offer Letter shall continue in full force and effect.



     For purposes of clarification, your employment with the Company will remain on an “at will”
basis, meaning that (except for the obligations contemplated by the Offer Letter and this letter)
either you or the Company may terminate your employment at any time for any reason or no reason,
without further obligation or liability. This policy of at-will employment is the entire agreement
as to the duration of your employment and may only be modified in an express written agreement
signed by an officer of the Company authorized by the Company’s Board of Directors and you.



     This letter agreement 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.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	NUVASIVE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin O’Boyle	 	 
	 

	 	 	 	 

Kevin O’Boyle
	 	 
	 

	 	 	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 






	 	 	 
	ACCEPTED AND AGREED:
	 	 
	 
	 	 
	/s/ Alexis V. Lukianov
	 	 
	 

Alexis V. Lukianov

	 	 






 









 






[NUVASIVE, INC. LETTERHEAD]




January 20, 2004                              




Mr. Alexis Lukianov

10065 Old Grove Road

San Diego, CA 92131




     Re:     Additional Severance/Retention Benefit and Vesting Acceleration



Dear Alex,




     The purpose of this letter is to memorialize our understanding regarding the amendment of the
terms of your original offer letter with the NuVasive, Inc. (the “Company”) dated July 12, 1999
(the “Offer Letter”) and the terms of your various option grants (the “Option Grants”). For
purposes of this letter, the terms Involuntary Termination, Corporate Transaction and Service shall
have the meaning set forth in the Company’s 1998 Stock Option/Stock Issuance Plan (the “Plan”).



     1. Involuntary Termination within 12 Months of Corporate Transaction. Upon your
Involuntary Termination within 12 months following a Corporate Transaction (if, and only if, you
are still providing Service to the Company or its successor, as applicable, at such time), the
Company or its successor, as the case may be, shall pay you a cash payment equal to two times your
compensation earned (including any bonus with respect to performance during) the most recently
completed calendar year (“Compensation”).



     2. Involuntary Termination beyond 12 Months of Corporate Transaction. Upon your
Involuntary Termination beginning 12 months following a Corporate Transaction (if, and only if, you
are still providing Service to the Company or its successor, as applicable, at such time), the
Company or its successor, as the case may be, shall pay you a cash payment equal to one hundred
twenty-five percent (125%) of your Compensation.



     3. Vesting Acceleration at Corporate Transaction. Upon the closing of a Corporate
Transaction (if, and only if, you are still providing Service to the Company or its successor, as
applicable, at such time), fifty percent (50%) of your unvested stock (and options) will
immediately vest; provided however, that this amount shall be one hundred percent (100%) in the
event that your stock (and options) are not assumed in full as part of the Corporate Transaction.



     4. Additional Vesting Acceleration following Corporate Transaction. If not
otherwise fully vested, any remaining unvested stock (and options) shall fully vest upon the
earlier of (a) your Involuntary Termination following a Corporate Transaction and (b) the date 12
months from the closing of the Corporate Transaction, (if, and only if, you are still providing
Service to the Company or its successor, as applicable, at such time).



     5. Severance. In the event of your Involuntarily Termination prior to a Corporate
Transaction, in lieu of any severance contemplated by your Offer Letter, the Company shall pay you
a cash payment equal to one hundred percent (100%) of your Compensation upon your execution of a
release of all claims against the Company.



     6. Nonsolicitation. You agree that while providing Service to the Company and for
one (1) year following the date upon which you cease to provide Service to the Company, you will
not, either directly or through others solicit or attempt to solicit, or hire or attempt to hire,
any person (including any entity) who is an employee, consultant or independent contractor of the
Company to terminate his, her or its relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person or entity.



     For purposes of clarification, your employment with the Company will remain on an “at will”
basis, meaning that (except for the obligations contemplated by the Offer Letter and this letter)
either you or the Company may terminate your employment at any time for any reason or no reason,
without further obligation or liability. These
terms are in lieu of and replace the current terms of any severance obligations or vesting
acceleration set forth in the



 









 




Offer Letter and the Option Grants. The severance obligations and
vesting acceleration set forth herein constitute the entirety of any severance obligation owed to
you by the Company and any accelerated vesting to which you are entitled following a Corporate
Transaction. This policy of at-will employment is the entire agreement as to the duration of your
employment and may only be modified in an express written agreement signed by an officer of the
Company authorized by the Company’s Board of Directors and you.




     This letter agreement 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.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	NUVASIVE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin O’Boyle	 	 
	 

	 	 	 	 

Kevin O’Boyle
	 	 
	 

	 	 	 	Chief Financial Officer	 	 






	 	 	 
	AS ACCEPTED AND AGREED:
	 	 
	 
	 	 
	/s/ Alexis Lukianov
	 	 
	 

Alexis Lukianov

	 	 






 









 






[NUVASIVE, INC. LETTERHEAD]




July 12, 1999                              




Mr. Alex Lukianov

14 Wolcott Drive

Freehold NJ 07729




Dear Alex:



On behalf of the Board of Directors and the senior management team at NuVasive, we want to
reiterate how impressed we are with you and how strongly we believe that You are the person we want
running NuVasive as Chief Executive Officer. We believe this is an outstanding fit between your
skills and the company’s short and long term needs.



Our strong sense is that you are in an ideal stage in your career to move into an explosive growth,
development stage, medical device enterprise. The key components of our offer of employment are as
follows:



Title. You will be immediately named President and Chief Executive Officer, will report
to and will serve ass a member of the Board of Directors including having a voting seat. You will
have full day-to-day operating responsibility for the entire enterprise.



Base Salary. Your base salary for the first year will be $20,933 per month which
annualizes $250,000 per year. Your performance and salary will be reviewed on an annual basis.



Equity Participation. As you know, the most significant portion of wealth accumulation
will be in the form of equity participation in NuVasive. You will be granted common stock options
in a number equivalent to 7% of the current outstanding issued shares (0.07 × 6,600,000 or 462,000
shares). The number of issued Preferred shares is 6,200,000 plus approximately 400,000 Common which
have been granted but not issued from the 1.3 Million ISO Pool for a total of 7.5 Million
authorized shares. The most recent round of financing was conducted at $1.00 per share; your strike
price on this initial grant of stock options will be 10 cents per share. The vesting on the options
will be as follows:



Over a four year period of time the first 25% of the shares will vest on your first anniversary.
They will then vest 1/36 per month over the remaining 3 years.



Under separate cover, you will receive a full copy of the company’s stock option program. Stock
options are reviewed by the Board on an annual basis with regard to further grants. Clearly our
intention is that as the enterprise grows and succeeds under your direction it will be to
everyone’s mutual interest to have key management in the company incented with additional option
participation as warranted and determined by the Board of Directors and Shareholders. We would look
to you to fashion a stock option program for key members of management after you have joined the
company. In addition, we will be raising another $10 Million to $15 Million of equity at market
price per share with your leadership.



With regard to accelerated vesting of your options it would only take place if the company were
acquired and the acquiring company did not put in place a comparable stock option plan or if you
were asked to assume a role in the acquired company with substantially less responsibility. In
other words, it is NuVasive’s best interest to retain key members of management including the CEO
at the time of a sale of the company. If the acquiring company does not require your services all
stock options would immediately vest or if the acquiring company did not put in a comparable stock
option plan and retain you in a significant management role, you would have the opportunity to
accelerate vesting of your shares.




 









 







Management Incentive/Cash Bonus. You will he eligible to receive a $25,000 sign-on-bonus
at the start of your employment. Additionally, you will be eligible to achieve another $50,000
based upon the achievement of specific milestones to be mutually agreed upon. We would anticipate
that within 60 days after joining NuVasive as CEO you and the Board will agree on these objectives
to be completed within the next year and these will serve as the basis for the $50,000 bonus. With
this above compensation structure, your first year’s annual compensation could achieve $325,000.



Start Date. We would like you to begin employment with NuVasive as soon as possible and
would hope that you could start with the organization no later than August 16, 1999. We understand
due to your consulting engagements that you would not want to make a public announcement of your
joining NuVasive. We are all dealing in good faith and with your signature below signifying your
acceptance of our agreement, we will be operating under the assumption that you will be the CEO and
that all other search activities on your part will cease with regard to other employers. We also
understand that between August 16 and the first day of October you will have some minimal wrapping
up of consulting projects which may consume up to 10% of your time and which in agreeable to us. We
ask that you disclose to as the nature of these projects in case there may be any perceived or real
conflict.



Relocation. It is our wish to have you and your family move to the Southern California
area as soon as is reasonably feasible and with as little interruption to your family while keeping
an eye on expenses to the company. Rather than got into the details of a specific relocation plan
we are prepared to offer you up to $120,000 to compensate you for the expenses of selling your
home, physical relocation and temporary living. In this regard, this allotment of $120,000 is
available for your use if expenses are incurred. Please submit all receipts. In other words, we
would ask that you submit your expenses to the Board and you will be reimbursed for the amount
incurred up the expense level or $120,000, whichever is less. The normal and customary expenses
will be reimbursed but does not include escrow fees or other real estate acquisition fees. The
spirit of this portion of the offer is to have you move in a comfortable, yet frugal, fashion to
Southern California. We recognize that we do not want you to have any out-of-pocket expenses, at
the same time, minimizing the cost to the company.



Benefits. Under separate cover you will receive a packet fully detailing NuVasive’s
benefits program which includes medical, health insurance and other items. Additionally, you will
be eligible for four weeks vacation as time permits at your discretion. Your benefits will be the
same as the other employees of the company.



Non-Compete Agreement, Confidential Disclosure, Salary Continuation. You will not be
required to sign a non-compete agreement in joining NuVasive. We will ask for you to execute a
confidentiality agreement relating to our proprietary technology and business trade secrets. In
agreement with this intellectual property protection, your salary will be continued in the unlikely
event of your termination by the company for any reason other than cause for a period of up to 9
months of your current salary or until you find suitable employment whichever is less.



References. While we are still in the process of completing reference checks we would
like to get them completed in the next couple of days prior to Friday, July 16, 1999. This offer is
contingent upon the successful completion of those final references.



Alex, on the part of all of us at NuVasive, we are looking forward to having you and, hopefully,
your wife visit us July 13th.



Please sign your acceptance below and return to me by fax no later than noon on Friday, 16, 1999.
All of us at NuVasive look forward to working with you and making NuVasive a world-class medical
device company.




Sincerely yours,




	 	 	 	 	 	 	 
	/s/ Andrew E. Senyei	 	 	 	 
	 	 	 	 	 
	Andrew E. Senyei	 	 	 	 
	General Partner, Enterprise Partners	 	 	 	 
	Member of the Board of Directors. NuVasive	 	 	 	 
	cc:

	 	Jim Marino
	 	 	 	 






 









 






	 	 	 	 	 	 	 
	 

	 	Joe Lacob
	 	 	 	 
	 

	 	Dan O’Hara
	 	 	 	 





I understand and accept the terms of this proposal.




	 	 	 	 	 
	/s/ Alex Lukianov

	 	7-13-99	 	 
	 

Alex Lukianov

	 	 

Date