UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 23, 2007
NUVASIVE, INC.
(Exact name of registrant as specified in its charter)
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| Delaware
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000-50744
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33-0768598 |
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| (State or Other Jurisdiction of
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(Commission File
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(I.R.S. Employer Identification |
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4545 Towne Centre Court, San Diego, California 92121
(Address of principal executive offices, with zip code)
(858) 909-1800
(Registrant’s telephone number, including area code)
n/a
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Item 1.01. Entry Into a Material Definitive Agreement.
Item 2.01. Completion of Acquisition or Disposition of Assets.
Item 3.02. Unregistered Sale of Equity Securities.
On
January 23, 2007, NuVasive, Inc. (“NuVasive”) and Radius Medical, LLC (“Radius”),
along with certain members and managers of Radius, entered into an Asset Purchase Agreement (the
“Purchase Agreement”) providing for the acquisition by NuVasive of substantially all of Radius’
right, title and interest in and to the assets used by Radius in connection with the design,
development, marketing and distribution of collagen-based medical biomaterials, together with the
intellectual property rights, contractual rights, inventories, and certain liabilities related
thereto (collectively, the “Radius Business”).
The closing of the acquisition was completed on the same date as the Purchase Agreement. As a
result of the acquisition, the Radius Business will be included in the consolidated financial
results of NuVasive for periods from and subsequent to January 23, 2007.
Pursuant to the Purchase Agreement, Radius received $5,800,000 in cash (less a working capital
adjustment of approximately $113,000) and 451,677 unregistered shares of NuVasive common stock (the
“Shares”) at the closing. The Shares were issued to Radius in reliance on the exemption
from registration under Section 4(2) of the Securities Act of 1933, as amended, and/or Rule 506 of
Regulation D promulgated under the Securities Act. NuVasive also funded at closing $2,000,000 in cash
into an escrow account, which will be maintained by a third party escrow agent and will secure the
indemnification obligations of Radius and its members under the Purchase Agreement for eighteen
(18) months following the closing. At the end of this eighteen month period, the funds held in
escrow that are not subject to pending indemnification claims will be disbursed to Radius.
Pursuant to the Purchase Agreement, NuVasive has an obligation to register the Shares for resale. In
addition, the parties have agreed that (a) Radius shall pay to NuVasive in cash the amount by which the
trading value of the Shares (as determined using the average closing sale price of NuVasive common
stock for the ten consecutive trading day period ending three business days prior to the date of
effectiveness of the registration statement) exceeds $10,200,000, and (b) NuVasive shall pay to Radius
in cash the amount by which the trading value of the Shares (as determined in the manner described
above) is less than $10,200,000.
As part of the acquisition, NuVasive also acquired, as of January 23, 2007, all of Radius’ right, title
and interest in and to that certain Supply Agreement dated November 4, 2004, by and between Maxigen
Biotech, Inc. (“MBI”) and Radius, as amended to date (the “MBI Supply Agreement”).
Under the MBI Supply Agreement and following NuVasive’s succession to Radius’ interest therein, MBI has
agreed to exclusively sell to NuVasive (and NuVasive has agreed to exclusively purchase from MBI) such
quantities as NuVasive may order of all current and future products manufactured by MBI for use as
synthetic bone graft substitutes consisting of certain collagens or ceramics, for distribution in
North America, EU countries, South America and Central America countries, Australia, New Zealand
and their respective territories (with additional territories on a non-exclusive basis). NuVasive will
be required to purchase certain minimum quantities of product from MBI per calendar year. MBI has
also granted to NuVasive an exclusive, perpetual, royalty-free license to use all such MBI products,
and all related proprietary rights and proprietary information relating thereto, including without
limitation, rights to conduct research and development, develop modifications, improvements or
additional products and to use and sell such improvements and additional products. Radius was
required to pay MBI a one-time license fee in consideration for the above described license, which
obligation NuVasive has not assumed in the acquisition described above.
The description of the acquisition by NuVasive set forth above and elsewhere in this report is
qualified in its entirety by reference to the Purchase Agreement filed with this current report as
Exhibit 2.1.