NUVA Nuvasive Inc

On February 8, 2023, NuVasive, Inc., a Delaware corporation (“NuVasive” or the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Globus Medical, Inc., a Delaware corporation (“Globus Medical”) and Zebra Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Globus Medical (“Merger Sub”).

The Merger Agreement provides, among other things, that subject to the satisfaction or waiver of the conditions set forth therein, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Globus Medical.

Merger Consideration

Under the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each share of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) issued and outstanding immediately prior to the Effective Time (other than certain excluded shares as described in the Merger Agreement) will be cancelled and converted into the right to receive 0.75 fully paid and non-assessable shares of Class A common stock of Globus Medical, $0.001 par value per share (the “Globus Medical Class A Common Stock”), and the right to receive cash in lieu of fractional shares.

Conditions to the Merger

The respective obligations of the Company and Globus Medical to consummate the transactions contemplated by the Merger Agreement are subject to the satisfaction or waiver of a number of conditions, including: (1) the adoption of the Merger Agreement by the Company’s stockholders; (2) approval by Globus Medical’s stockholders of the issuance of shares of Globus Medical Class A Common Stock in connection with the Merger (the “Issuance”); (3) the absence of any law or order prohibiting consummation of the Merger; (4) Globus Medical’s registration statement on Form S-4 with respect to the Globus Medical Class A Common Stock to be issued in connection with the Merger having been declared effective by the U.S. Securities and Exchange Commission; (5) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act Approval”); (6) accuracy of the other party’s representations and warranties, subject to certain materiality standards set forth in the Merger Agreement; (7) compliance by the other party in all material respects with such other party’s obligations under the Merger Agreement; and (8) the absence of a material adverse effect on the other party since February 8, 2023.

Representations and Warranties; Covenants

The Merger Agreement contains customary representations and warranties given by the Company, Globus Medical and Merger Sub. The Merger Agreement also contains customary pre-closing covenants, including covenants by each of the parties relating to conduct of their respective business prior to the closing of the Merger. In addition, the parties have agreed to use their respective reasonable best efforts to take all actions necessary, proper or advisable to complete the Merger and the other transactions contemplated by the Merger Agreement as soon as reasonably practicable, including obtaining each regulatory approval necessary to complete the Merger or to avoid an action or proceeding by a governmental body. In addition, Globus Medical has agreed to take all actions necessary, proper, or advisable to eliminate any impediment under any antitrust law, including proposing, negotiating, committing to, effecting any divestiture, except that (x) Globus Medical is not required to divest any business, asset, property or product line of the Company, Globus Medical or any of their respective subsidiaries that generated total net sales in excess of $40,000,000 in the twelve (12) month period ending December 31, 2022, and (y) the Company is only required to take or commit to take any action requested by Globus Medical pursuant to the regulatory efforts covenant, if such action is binding on the Company only in the event the closing of the Merger occurs.

The Merger Agreement also provides that each of the Company and Globus Medical is subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide information to third parties and to engage in discussions with third parties regarding alternative acquisition proposals, subject to customary exceptions. In addition, the board of directors of each of the Company and Globus Medical are required to recommend that their respective stockholders vote in favor of the transaction, subject to exceptions for superior proposals and other situations where failure to effect a recommendation change would be inconsistent with such board’s fiduciary duties.

At the closing of the Merger, three members of the Company’s board of directors (to be proposed by the Company and acceptable to Globus Medical prior to the closing of Merger) will be appointed to Globus Medical’s board of directors.

Termination and Termination Fees

Either the Company or Globus Medical may terminate the Merger Agreement under certain circumstances, including if (1) the Merger is not completed by October 8, 2023, subject to two additional two-month extensions by the Company or Globus Medical in certain circumstances in the event that the HSR Act Approval has not been obtained or a legal restraint under anti-trust law is in effect (the “End Date”), (2) the Company’s stockholders fail to adopt the Merger Agreement, (3) Globus Medical’s stockholders fail to approve the Issuance, (4) the Merger violates any final and non-appealable order or a law has been enacted after the date of the Merger Agreement that makes the Merger illegal or otherwise prohibited, (5) the other party breaches its representations, warranties or covenants in the Merger Agreement in a way that would entitle the party seeking to terminate the Merger Agreement not to consummate the Merger, subject to the right of the breaching party to cure the breach, (6) prior to receiving stockholder approval, a party terminates the Merger Agreement in order to enter into a definitive agreement with respect to a superior proposal, (7) the other party commits an intentional and material breach of its restrictions with respect to the solicitation of alternative transactions, or (8) the other party’s board of directors has changed its recommendation in favor of the Merger.

The Company will be required to make a payment to Globus Medical equal to $120 million if the Merger Agreement is terminated in certain circumstances, including because (1) Globus Medical has terminated the Merger Agreement because the Company’s board of directors has changed its recommendation in favor of the Merger; provided that the termination fee will be reduced to $75 million if the change in recommendation occurs during the 30-day period following the date of the Merger Agreement (which period may be extended for an additional five (5) days in the event an acquisition proposal is received on or after the 25^th day of such 30-day period) (such period, the “Specified Period”) with respect to a superior proposal, (2) the Company has terminated the Merger Agreement in order to enter into an agreement providing for a superior proposal; provided that the termination fee will be reduced to $75 million if such termination occurs during the Specified Period, or (3) the Company materially and intentionally breaches its restrictions with respect to the solicitation of alternative transactions. The Company will also be required to make a payment to Globus Medical equal to $60 million if the Merger Agreement is terminated because the Company’s stockholders fail to adopt the Merger Agreement and at the time of such failure, the Company’s board of directors has not changed its recommendation.

Globus Medical will be required to make a payment to the Company equal to $120 million if the Merger Agreement is terminated in certain circumstances, including because (1) the Company has terminated the Merger Agreement because Globus Medical’s board of directors has changed its recommendation in favor of the Issuance; provided that the termination fee will be reduced to $75 million if the change in recommendation occurs during the Specified Period for Globus Medical with respect to a superior proposal, (2) Globus Medical has terminated the Merger Agreement in order to enter into an agreement providing for a superior proposal; provided that the termination fee will be reduced to $75 million if such termination occurs during the Specified Period in order to accept a superior proposal, or (3) Globus Medical materially and intentionally breaches its restrictions with respect to the solicitation of alternative transactions. Globus Medical will also be required to make a payment of $120 million to the Company if its stockholders fail to approve the Issuance; provided that the termination fee will be reduced to $75 million if Globus Medical’s board of directors changes its recommendation during the Specified Period in response to a superior proposal.

Additional Information

The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, and is incorporated herein by reference. A copy of the Merger Agreement has been included to provide investors with information regarding its terms and is not intended to provide any factual information about the Company or Globus Medical.

The Merger Agreement contains representations, warranties, covenants and agreements, which were made only for purposes of such agreement and as of specified dates. The representations and warranties in the Merger Agreement reflect negotiations between the parties to the Merger Agreement and are not intended as statements of fact to be relied upon by the Company’s stockholders or Globus Medical’s stockholders. In particular, the representations, warranties, covenants and agreements in the Merger Agreement may be subject to limitations agreed by the parties, including having been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, and having been made for purposes of allocating risk among the parties rather than establishing matters of fact. In addition, the parties may apply standards of materiality in a way that is different from what may be viewed as material by investors. As such, the representations and warranties in the Merger Agreement may not describe the actual state of affairs at the date they were made or at any other time and you should not rely on them as statements of fact. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, and unless required by applicable law, the Company undertakes no obligation to update such information.

Voting Agreement

David Paul and Sonali Paul, each a stockholder of Globus Medical (together, the “Stockholders”), have entered into a voting and support agreement (the “Voting Agreement”) with the Company and Globus Medical pursuant to which such Stockholders have agreed to vote their shares of Class B common stock, par value $0.001 per share, of Globus Medical (“Globus Medical Class B Common Stock”) in accordance with the recommendation of Globus Medical’s board of directors. The Stockholders collectively own approximately 20,867,524 shares of Globus Medical Class B Common Stock, representing approximately 70% of the total voting power of outstanding common stock of Globus Medical.

The Voting Agreement will terminate at the earliest to occur of (a) the effective time of the Merger, (b) if Globus Medical’s board of directors changes its recommendation, (c) receipt of the approval of Globus Medical’s stockholders for the Issuance and (d) such date and time as the Merger Agreement is validly terminated.

The foregoing description of the Voting Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Voting Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.

State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal court for the District of Delaware) as the sole and exclusive forum for certain types of actions and proceedings, and (ii) the federal district courts of the United States of America as the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, against the Company or any director or officer of the Company. The foregoing description is qualified in its entirety by reference to the text of the amendment to the bylaws, a copy of which is filed as Exhibit 3.1 hereto and is incorporated by reference herein.

NuVasive with the SEC will be available free of charge at the SEC’s website (www.sec.gov) and from Globus Medical and NuVasive. Requests for copies of the joint proxy statement/ prospectus and other documents filed by Globus Medical with the SEC may be made by contacting Keith Pfeil, Chief Financial Officer by phone at (610) 930-1800 or by email at kpfeil@globusmedical.com, and request for copies of the joint proxy statement/prospectus and other documents filed by NuVasive may be made by contacting Matt Harbaugh, Chief Financial Officer, by phone at (858) 210-2129 or by email at investorrelations@nuvasive.com.

Participants in the Solicitation

Globus Medical, NuVasive, their respective directors and certain of their executive officers and other employees may be deemed to be participants in the solicitation of proxies from Globus Medical’s and NuVasive’s shareholders in connection with the proposed transaction. Information about the directors and executive officers of Globus Medical and their ownership of Globus Medical stock is set forth in Globus Medical’s annual report on Form 10-K for the fiscal year ended December 31, 2021, which was filed with the SEC on February 17, 2022 and its proxy statement for its 2022 annual meeting of stockholders, which was filed with the SEC on April 21, 2022. Information regarding NuVasive’s directors and executive officers is contained in NuVasive’s annual report on Form 10-K for the fiscal year ended December 31, 2021, which was filed with the SEC on February 23, 2022, and its proxy statement for its 2022 annual meeting of stockholders, which was filed with the SEC on March 30, 2022. Certain directors and executive officers of Globus Medical and NuVasive may have a direct or indirect interest in the transaction due to securities holdings, vesting of equity awards and rights to severance payments. Additional information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of Globus Medical’s and NuVasive’s shareholders in connection with the proposed transaction will be included in the joint proxy statement/prospectus. These documents can be obtained free of charge from the sources indicated above.

Cautionary Notes on Forward-Looking Statements

This current report contains “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. In this context, forward-looking statements often address expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “may,” “target,” and similar expressions and variations or negatives of these words. Forward-looking statements by their nature address matters that are, to different degrees, uncertain, such as statements about the consummation of the proposed transaction and the anticipated benefits thereof. These and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements, including the failure to consummate the proposed transaction or to make any filing or take other action required to consummate such transaction in a timely matter or at all. Important risk factors that may cause such a difference include, but are not limited to: (i) the proposed transaction may not be completed on anticipated terms and timing, (ii) a condition to closing of the transaction may not be satisfied, including obtaining shareholder and regulatory approvals, (iii) the anticipated tax treatment of the transaction may not be obtained, (iv) the potential impact of unforeseen liabilities, future capital expenditures, revenues, costs, expenses, earnings, synergies, economic performance, indebtedness, financial condition and losses on the future prospects, business and management strategies for the management, expansion and growth of the combined business after the consummation of the transactions, (v) potential litigation relating to the proposed transaction that could be instituted against Globus Medical, NuVasive or their respective directors, (vi) potential adverse reactions or changes to business relationships resulting from the announcement or completion of the transactions, (vii) any negative effects of the announcement, pendency or consummation of the transactions on the market price of Globus Medical’s or NuVasive’s common stock and on Globus Medical’s or NuVasive’s businesses or operating results, (viii) risks associated with third party contracts containing consent and/or other provisions that may be triggered by the proposed transaction, (ix) the risks and costs associated with the integration of, and the ability of Globus Medical and NuVasive to integrate, their businesses successfully and to achieve anticipated synergies, (x) the risk that disruptions from the proposed transaction will harm Globus Medical’s or NuVasive’s business, including current plans and operations, (xi) the ability of Globus Medical or NuVasive to retain and hire key personnel and uncertainties arising from leadership changes, (xii) legislative, regulatory and economic developments, and (xiii) the other risks described in Globus Medical’s and NuVasive’s most recent annual reports on Form 10-K and quarterly reports on Form 10-Q.

These risks, as well as other risks associated with the proposed transaction, will be more fully discussed in the joint proxy statement/prospectus that will be included in the registration statement on Form S-4 that will be filed with the SEC in connection with the proposed transaction. While the list of factors presented here is, and the list of factors to be presented in the registration statement on Form S-4 are, considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Globus Medical’s or NuVasive’s consolidated financial condition, results of operations, credit rating or liquidity. Neither Globus Medical nor NuVasive assumes any obligation to publicly provide revisions or updates to any forward-looking statements, whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws.