Item 1.01 Entry into a Material Definitive Agreement.
On May 8, 2023, NuVasive, Inc. (the "Company") and certain of its subsidiaries,
as guarantors (the "Guarantors"), entered into an Amendment No. 2 to Credit
Agreement ("Amendment No. 2 to Credit Agreement") with Bank of America, N.A., as
administrative agent (the "Agent"), and the other lenders party thereto.
Amendment No. 2 to Credit Agreement modifies certain provisions of the Second
Amended and Restated Credit Agreement, dated as of February 24, 2020, among the
Company, the Guarantors, the Agent and the lenders party thereto, as amended by
Amendment No. 1 to Credit Agreement dated May 26, 2020 (the "Existing Credit
Agreement"), evidencing a revolving senior credit facility (the "Facility"). The
Facility provides for secured revolving loans, multicurrency loan options and
letters of credit in an aggregate amount of up to $550.0 million.
The modifications to the Existing Credit Agreement pursuant to Amendment No. 2
to Credit Agreement provides for the replacement of LIBOR-based rates with a
SOFR-based rate (including a customary spread adjustment) and other rates for
"Alternate Currencies" including, Euros (EURIBOR), Japanese Yen (TIBOR),
Australian Dollars (BBSY) and Sterling (SONIA) and adjusts certain other
provisions to reflect current documentation standards and other agreed
modifications.
The Company intends to draw upon this Facility and use available cash on hand to
repay the outstanding $450.0 million principal amount of Senior Convertible
Notes due June 2023. As of May 10, the Company had no outstanding borrowings
under the Facility.
The foregoing is a summary description of certain terms of the modifications to
the Existing Credit Agreement pursuant to Amendment No. 2 to Credit Agreement,
which is filed as Exhibit 10.1 to this Current Report, and does not purport to
be complete, and it is qualified in its entirety by reference to the full text
of the Amendment No. 2 to Credit Agreement which is incorporated herein by
reference.
Item 2.02 Results of Operations and Financial Condition.
On May 10, 2023, the Company issued a press release announcing its financial
results for the quarter ended March 31, 2023. A copy of this press release is
furnished as Exhibit 99.1 to this Current Report.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement of a Registrant.
On May 8, 2023, the Company and the Guarantors entered into Amendment No. 2 to
Credit Agreement.
The information set forth in Item 1.01 of this Current Report related to the
Amendment No. 2 to Credit Agreement is incorporated by reference into this Item
2.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On May 8, 2023, Marc Rosenbaum notified the Board of Directors of the Company of
his decision to resign from his position as Vice President, Corporate Controller
and Chief Accounting Officer. Mr. Rosenbaum indicated that he is leaving the
Company to pursue another opportunity outside the spine industry and that his
resignation is not the result of any dispute or disagreement with the Company,
including any matters relating to the Company's accounting practices or
financial reporting. The effective date of Mr. Rosenbaum's departure will be
May 19, 2023. Matthew Harbaugh, the Company's Executive Vice President and Chief
Financial Officer, will assume the responsibilities of Chief Accounting Officer
effective upon Mr. Rosenbaum's departure and will serve as the Company's
principal financial officer and principal accounting officer for purposes of the
rules and regulations of the U.S. Securities and Exchange Commission (the
"SEC"). Biographical information concerning Mr. Harbaugh, as described in Items
401(b) and (e) of Regulation S-K, is disclosed in the Company's 2022 Annual
Report on Form 10-K/A filed with the SEC on April 12, 2023.
As previously disclosed, on February 8, 2023, NuVasive entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Globus Medical, Inc. ("Globus
Medical") and Zebra Merger Sub, Inc. ("Merger Sub"), a Delaware corporation and
a wholly owned subsidiary of Globus Medical. The Merger Agreement provides,
among other things, that subject to the satisfaction or waiver of the conditions
set forth therein, including the expiration or termination of the applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, Merger Sub will merge with and into NuVasive (the "Merger"), with
NuVasive surviving the Merger as a wholly owned subsidiary of Globus Medical.
Mr. Rosenbaum has agreed to provide consulting services to the Company following
his departure in support of the Merger and to assist with integration planning
efforts through the closing of the Merger and for a period of time post-closing
as may be reasonably requested by the Company and Globus Medical.
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Item 7.01 Regulation FD Disclosure.
During a conference call scheduled to be held at 1:30 p.m. Pacific Time on
May 10, 2023, the Company's Chief Executive Officer and Chief Financial Officer
will discuss the Company's results for the quarter ended March 31, 2023 and the
Company's outlook for the year ending December 31, 2023.
The information contained in this Current Report pursuant to Item 2.02 and in
Exhibit 99.1 hereto shall not be deemed "filed" for purposes of Section 18 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
incorporated by reference in any filing under the Securities Act of 1933, as
amended, or the Exchange Act, except as shall be expressly set forth by specific
reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
10.1 Amendment No. 2 to Credit Agreement, dated as of May 8, 2023, by and
among NuVasive, Inc., certain of its subsidiaries, as guarantors, Bank
of America, N.A., as administrative agent, and each of those
additional lenders that are a party to such agreement.
99.1 Press Release issued by NuVasive, Inc. on May 10, 2023
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* * *
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 NuVasive's net sales outlook for 2023 and expectations
regarding longer-term financial performance, and the consummation of the
proposed transaction with Globus Medical 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 impact of the COVID-19
pandemic on NuVasive's business and financial results; (ii) further
deterioration of general macroeconomic conditions, including inflationary
pressures, disruptions to the global supply chain, fluctuations in currency
exchange rates, higher freight and labor costs, and weakness in economic
conditions generally; (iii) NuVasive's ability to maintain operations to support
its customers and patients in the near-term and to capitalize on future growth
opportunities; (iv) risks associated with acceptance of NuVasive's surgical
products and procedures by spine surgeons and hospitals, (v) development and
acceptance of new products or product enhancements, (vi) clinical and
statistical verification of the benefits achieved via the use of NuVasive's
products, (vii) NuVasive's ability to adequately manage inventory as it
continues to release new products, (viii) the remaining conditions to closing of
the transaction with Globus Medical may not be satisfied on a timely basis or at
all, including obtaining regulatory approval, (ix) the anticipated tax treatment
of the transaction may not be obtained, (x) 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, (xi) potential litigation relating to the proposed transaction
that could be instituted against Globus Medical, NuVasive or their respective
directors, (xii) potential adverse reactions or changes to business
relationships resulting from the announcement or completion of the transactions,
(xiii) 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,
(xiv) risks associated with third party contracts containing consent and/or
other provisions that may be triggered by the proposed transaction, (xv) 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, (xvi) the risk that disruptions from the proposed
transaction will harm Globus Medical's or NuVasive's business, including current
plans and operations, (xvii) the ability of Globus Medical or NuVasive to retain
and hire key personnel and uncertainties arising from leadership changes,
(xviii) legislative, regulatory and economic developments, and (xix) 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. In addition, this Current Report
contains selected financial results for NuVasive for the period ended March 31,
2023 which are prior to the completion of review and audit procedures by
NuVasive's external auditors and are subject to adjustment. NuVasive's
projections for 2023 net sales guidance and expectations regarding longer-term
financial performance represent initial estimates and are subject to the risk of
being inaccurate because of the preliminary nature of the forecasts, the risk of
further adjustment, or unanticipated difficulty in selling products or
generating expected profitability.
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These risks, as well as other risks associated with the proposed transaction,
are more fully discussed in the joint proxy statement/prospectus included in the
registration statement on Form S-4 initially filed by Globus Medical with the
SEC on March 10, 2023, as amended on March 24, 2023, in connection with the
proposed transaction. While the list of factors presented here is, and the list
of factors 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.
No Offer
This Current Report is not intended to and does not constitute an offer to
subscribe for, buy or sell, or the solicitation of an offer to subscribe for,
buy or sell, nor shall there be any sale, issuance or transfer of securities in
any jurisdiction in which such offer, sale or solicitation would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction. No offer of securities shall be made except by means of a
prospectus meeting the requirements of Section 10 of the Securities Act of 1933,
as amended, and otherwise in accordance with applicable law.
Important Information About the Transaction and Where To Find It
This Current Report references the proposed business combination of NuVasive and
Globus Medical. In connection with the proposed transaction, Globus Medical
filed a registration statement on Form S-4 with the SEC on March 10, 2023, which
was amended on March 24, 2023, and that includes a joint proxy
statement/prospectus. The registration statement on Form S-4, including the
joint proxy statement/prospectus, provides details of the proposed transaction
and the attendant benefits and risks. The registration statement was declared
effective on March 28, 2023, and NuVasive filed a definitive proxy statement on
March 28, 2023. Globus Medical and NuVasive commenced mailing of the definitive
joint proxy statement/prospectus to their respective stockholders on March 29,
2023. Globus Medical and NuVasive may also file other documents with the SEC
regarding the proposed transaction. This document is not a substitute for the
joint proxy statement/prospectus or the registration statement on Form S-4 or
any other document which Globus Medical or NuVasive may file with the SEC.
INVESTORS AND SECURITY HOLDERS OF GLOBUS MEDICAL AND NUVASIVE ARE URGED TO READ
THE REGISTRATION STATEMENT, INCLUDING THE JOINT PROXY STATEMENT/PROSPECTUS, AND
ANY OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC, AS
WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR
ENTIRETY BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION AND RELATED MATTERS. The documents filed by Globus Medical
or NuVasive with the SEC will be available free of charge at the SEC's website
(www.sec.gov) and from Globus Medical and NuVasive, as applicable. 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.
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