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EX-99.1 - EX-99.1 - NUVASIVE INCd730450dex991.htm

Exhibit 99.3

NUVASIVE, INC.

EXECUTIVE SEVERANCE PLAN

I.        INTRODUCTION

NuVasive, Inc. (“NuVasive”) hereby adopts the NuVasive, Inc. Executive Severance Plan and Summary Plan Description (the “Plan”), to provide severance benefits to eligible executives of NuVasive whose employment is terminated involuntarily under certain circumstances. The Plan is effective as of May 13, 2014, and supersedes any and all other severance plans, policies or practices. All benefit determinations under the Plan and interpretation of Plan provisions will be made by NuVasive (or its designee) in its sole discretion as Plan Administrator. The Plan is described in further detail below.

II.        ELIGIBILITY

Any executive working for NuVasive at a position designated by the Plan Administrator at the level of Vice President and above (hereinafter referred to as “executive”), and whose employment is terminated involuntarily is eligible for severance benefits described in Section III of this Plan, PROVIDED each of the following requirements is met:

A.        The termination of employment is involuntary.

B.        The termination is not due to retirement, death or disability of the executive, with the sole exception that the termination of employment due to death or disability of the executive serving as the Chief Executive Officer of NuVasive on the effective date of this Plan shall be treated as an involuntary termination of that executive’s employment for purposes of this Plan.

C.        The termination of employment is not for “cause” (as defined below). For purposes of the Plan, “cause” shall mean the following:

1.        executive’s repeated failure to satisfactorily perform executive’s job duties;

2.        refusal or failure to follow the lawful directions of executive’s direct supervisor, the Company’s Chief Executive Officer or Board of Directors, as applicable;

3.        conviction of a crime involving moral turpitude; or

4.        engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of the executive with respect to his/her obligations or otherwise relating to the business of NuVasive, its affiliates or customers.

NuVasive, as Plan Administrator, will, in its sole discretion, determine if a termination of employment is for “cause”.


D.        The executive is not a temporary employee or a new hire who has not yet started to work on a regular, full-time or part-time basis (as appropriate).

E.        The executive is not covered under any other severance-type plan, policy, arrangement or agreement that provides severance payments and benefits more favorable in the aggregate to those provided herein. If any such plan, policy, arrangement or agreement exists, the executive will receive payments and benefits pursuant to that plan, policy, arrangement or agreement and shall not receive any of the severance payments and benefits described herein. In no case will the executive receive severance payments and benefits under any other such severance-type plan, policy, arrangement or agreement and this Plan.

F.        In the event that an executive is party to a “Change in Control” Agreement with NuVasive that also provides for severance benefits, in the event of a “Change in Control” (as defined therein) the executive shall not receive benefits under this Plan, but instead shall receive only the severance benefits provided under such “Change in Control” Agreement (i.e., there shall be no “double-dipping and only the “Change in Control” Agreement shall apply in such an event).

G.        The executive has not agreed in writing to waive severance benefits under this Plan or otherwise payable from NuVasive.

H.        The executive (or, in the event of the executive’s death or incapacity, the executive’s executor, representative or guardian, as applicable) signs and does not revoke a separation agreement and general release of all claims in such form as the Company may from time-to-time reasonably require (“Separation Agreement”).

I.        The executive has returned all NuVasive property and equipment that was assigned to, or taken general control of by, her or him during his or her tenure with NuVasive.

A terminated executive must satisfy all of the requirements set forth above in order to receive severance benefits under the Plan. Eligibility for severance benefits under the Plan will be determined by NuVasive upon an eligible executive’s termination of employment. NuVasive has full power and authority to interpret the provisions of the Plan and render decisions on eligibility for benefits. If NuVasive determines that an eligible executive satisfies all of the eligibility conditions described above, the executive will receive severance benefits calculated in accordance with Section III below. The severance benefits will be paid following the eligible executive’s termination of employment in accordance with the terms set forth below and in the respective Separation Agreement.

III.        SEVERANCE BENEFITS

A.        Severance Pay and Benefits. The following severance pay and benefits are payable under this Plan:

1)        Severance Pay. The severance pay provided to an eligible involuntarily terminated executive under this Plan consists of (a) for the Chief Executive Officer, an amount equal to the sum of (i) two times (2x) the sum of (x) his or her regular annual base salary and (y) his or her annual target incentive bonus in effect for calendar year in which the termination of

 

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employment occurs, (ii) the pro-rated amount (measuring the number of days from January 1st to the date of involuntary termination as the numerator and 365 as the denominator) of the cash performance award that he or she was eligible for in the year of separation, which pro rated amount shall be determined based on actual performance for the relevant performance period, plus (iii) a lump-sum amount equal to the after-tax cost of health benefits for a period of two (2) years from the date of termination of employment; and (b) for any eligible executive other than the Chief Executive Officer, an amount equal to the sum of (i) one times (1x) his or her regular annual base salary, (ii) the pro-rated amount (measuring the number of days from January 1st to the date of involuntary termination as the numerator and 365 as the denominator ) of his or her annual incentive bonus target in effect for the calendar year in which the termination of employment occurs (with any such pro-rated bonus being paid as a severance benefit and not under any Company performance plan), plus (iii) a lump-sum amount equal to the after-tax cost of health benefits for a period of one (1) year from the date of termination of employment.

The amount of severance pay to an eligible executive shall be based upon the executive’s regular annual base salary in effect immediately before executive’s termination of employment, determined without regard to any overtime, bonuses, fringe benefits, reimbursements or other irregular payments. The executive’s general release of all claims referred to in Section II.H. must be effective the sixtieth (60th) day following the executive’s termination of employment in order for executive to receive any severance pay or benefits under the Plan. Severance pay will be paid in a single cash lump-sum on the sixtieth (60th) day following the executive’s termination of employment (or as soon as administratively practicable after such sixtieth (60th) day), provided that the amount specified in Section III.A.1)(a)(ii) shall be paid in a lump-sum cash payment on the sixtieth (60th) day following the end of the performance period.

2)        Outplacement Services. NuVasive will provide nine (9) months of outplacement assistance through a designated service provider to eligible executives. In no event shall an eligible executive receive cash or other severance benefits in lieu of outplacement assistance.

3)        After-tax Cost of Health Benefits. The after-tax cost of health benefits for purposes of Section III.A.1) this Plan shall be a lump-sum cash amount equal to (a) 229.56% multiplied by (b) the total cost of the projected premiums for group medical, dental and vision insurance coverage (the “Health Benefits”) for the applicable period following termination of employment specified in Section III.A.1), based on the projected premium rates for such period for continuation coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), determined, in all cases, as of the date of the termination of employment (i) based on the NuVasive plans in which the executive participates and the level of the executive’s health benefits coverage as of immediately preceding the date of termination of employment, and (ii) assuming, to the extent applicable, an increase of four percent (4%) in the applicable COBRA premium rates at the beginning of each calendar year during the applicable period following termination of employment specified in Section III.A.1), from those in effect as of the end of the previous calendar year.

4)        Effect on Equity and Long-term Incentive Awards Granted to Current CEO. Notwithstanding any provision in any relevant plan or award agreement to the contrary and solely with respect to the Chief Executive Officer of NuVasive on the effective date of this

 

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Plan, (a) all outstanding equity and long-term incentive awards held by the Chief Executive Officer on the date of termination of employment (including, but not limited to, those subject to performance conditions) shall, subject only to the measurement conditions for performance-based awards (as provided for in subsection 4(c) immediately below) - become fully vested, (b) all vested, outstanding and unexercised stock options outstanding on the date of termination of employment (including those that become vested pursuant to this Section III.A.4) shall remain exercisable for a period equal to the lesser of twenty-four (24) months following the date of termination of employment or the remaining term thereof, and (c) all outstanding equity and long-term incentive awards outstanding on the date of termination of employment that are subject to performance conditions shall remain subject to and payable in accordance with the performance conditions and terms thereof (provided, however, that – in furtherance of subsection 4(a) immediately above – any continued service requirement thereof shall be deemed to have been fulfilled).

B.        No Separate Fund. All severance benefits payable under the Plan are payable from NuVasive’s general assets. There is no separate trust or fund established for the payment of severance benefits under the Plan. All amounts shall be less all appropriate deductions, including federal, state and local withholding taxes.

C.        Additional Benefits. NuVasive reserves the right to pay benefits in addition to those required by the Plan based on special circumstances. Any exception will be considered unique and shall not be precedent-setting. Payment of additional amounts or provision of additional benefits will be subject to such terms and conditions as NuVasive may determine. Any and all such determinations shall be made by NuVasive in its sole and absolute discretion.

D.        Section 409A.

1.        It is the intent of this Plan that the payments and benefits provided are exempt from Section 409A, and should be interpreted and construed in such a manner

2.        “Termination of employment”, “resignation”, “separation from service”, or correlative phrases or terms, as used in this Plan means, for purposes of any payments under this Plan that are payments of deferred compensation, has the same meaning as “separation from service” as defined in section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

3.        If a payment obligation under this Plan arises on account of the executive’s separation from service while the executive is a “specified employee” (as defined under section 409A of the Code and determined in good faith by the Compensation Committee), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue with interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of the executive’s estate following his death. For purposes of the preceding sentence, interest shall accrue at the six (6)-month Libor rate.

 

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4.        Each payment and benefit payable under this Plan, and each other benefit required to be aggregated with the payment and benefits under this Plan pursuant to section 409A of the Code, is hereby designated as a separate payment, as provided in Treasury Regulation section 1.409A-2(b)(2)(iii), and will not collectively be treated as a single payment.

IV.        CLAIMS PROCEDURE

Severance benefits under this Plan will automatically be paid to executives who qualify for such benefits. An executive who believes that he or she is entitled to severance benefits under this Plan that have not been provided should file a claim with NuVasive’s Human Resources Department. The claim must be in writing. If the claim is denied, NuVasive shall provide written notice of such denial to the petitioning executive within 90 days (180 days if additional processing time is required) of its initial receipt of the claim. Such notice will include an explanation of the factors on which the denial is based (including specific reasons for the denial and specific references to plan provisions) and what, if any, additional information is needed to support the claim or to request a review of the decision. Further review of the claim and access to relevant plan information may be obtained by filing a written request for review with the Human Resources Department within 90 days of receiving the denial. The decision on review will be made no later than 60 days (120 days if additional processing time is required) after the request for review is received and shall contain an explanation of the right to file suit under ERISA Section 502(a) with respect to a claim denied upon such review.

V.        STATEMENT OF RIGHTS ERISA

The Plan is an employee benefit plan subject to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA). The following statement is required by ERISA:

ERISA provides that all employees who may become eligible for benefits under the Plan shall be entitled to:

 

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Examine, without charge, at NuVasive’s offices all documents relating to the Plan.

 

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Obtain copies of all documents relating to the Plan upon written request. A reasonable charge may be imposed for the copies.

In addition to creating rights for employees, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. These people, called “fiduciaries” of the plan, have a duty to act prudently and in the interest of all employees. No one, including NuVasive, or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a benefit or exercising your rights under ERISA. If your claim for a benefit is denied in whole or in part, you must receive a written explanation of the reason for the denial. You have the right to have NuVasive review and reconsider your claim. Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request materials from NuVasive and do not receive them within 30 days, you may file a suit in federal court and the court may require NuVasive to provide the materials and pay you a penalty of up to $110 per day until you receive the materials, unless the materials were not sent because of reasons beyond

 

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the control of NuVasive. If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court. If you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous. If you have any questions about the Plan, you should contact NuVasive (Human Resources). If you have any questions about this statement or about your rights under ERISA, you should contact the nearest Area Office of the Employee Benefits Security Administration, U.S. Department of Labor listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, D.C. 20210.

VI.       AMENDMENT AND TERMINATION

NuVasive, by action of its Board of Directors or Compensation Committee of the Board of Directors, reserves the right to terminate or amend the Plan at any time and in any manner in its sole discretion. No executive shall have any vested interest in severance benefits payable under this Plan prior to satisfying all of the terms and conditions for payment of benefits under this Plan.

VII.      EMPLOYMENT RIGHTS

Nothing in this Plan shall have any effect on NuVasive’s right to terminate an executive, with or without cause, at any time (subject to the terms of any written employment contract between the executive and NuVasive). The payment of severance benefits under this Plan does not extend an executive’s term of employment.

VIII.     NON-ALIENATION OF BENEFITS

No benefit under the Plan may be assigned, transferred, pledged as security for indebtedness or otherwise encumbered by any eligible executive or subject to any legal process for the payment of any claim against an eligible executive.

IX.       GOVERNING LAW

This Plan shall be governed by and construed in accordance with the laws of the State of California to the extent such laws are not preempted by ERISA.

 

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