Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22429 Page 1 of 11
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`EXHIBIT 4
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`TO THE DECLARATION OF BRIAN J. NISBET
`IN SUPPORT OF DEFENDANTS’ MOTION
`FOR SUMMARY JUDGMENT OR, IN THE
`ALTERNATIVE, SUMMARY ADJUDICATION
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`

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`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22430 Page 2 of 11
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`I
`
`/Speed of Innovation'"
`
`Consulting Agreement Memo
`
`Date:
`
`To:
`
`CC:
`
`RE:
`
`March 27, 2017
`
`Jason Hannon
`
`jL
`EthicalBIZ Exclusion
`~
`CV & ANA Check
`SSAB Consulting Agreement for Dr. Jim Youssef/Durango Spine, LLLP
`
`File
`
`Dr. Youssef (contracting as Durango Spine, LLLP) has submitted a new consulting agreement
`that covers his engagement on the Senior Surgeon Advisory Board.
`
`Services:
`
`Senior Surgeon Advisory Board Member
`
`Hourly Compensation:
`
`$8,333.25 per quarter
`
`Milestones:
`
`Term:
`
`•
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`•
`
`•
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`2,380 shares of common stock upon the
`commercial
`launch of NuVasive's next
`generation XLIF implant system for Net Sales
`up to $100,000,000
`
`2,380 shares of common stock upon the
`commercial
`launch of NuVasive's next
`generation XLIF access system for Net Sales
`up to $100,000,000
`
`the
`2,380 shares of common stock upon
`completion of an updated and comprehensive
`peer to peer surgeon education strategy for
`NuVasive's XLIF procedure
`
`Three years; NuVasive has the right to renew the
`Agreement for additional on-year terms upon written
`notice
`
`Please return the signed agreement to Rebecca Jones.
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_ATEC0318321
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`

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`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22431 Page 3 of 11
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`SURGEON ADVISORY BOARD CONSUL TING AGREEMENT
`
`is dated as of
`This SURGEON ADVISORY BOARD CONSULTING AGREEMENT (the "Agreement")
`~~v'"'~") 75
`, 2017 (the "Effective Date"), by and between NuVasive,
`Inc., a Delaware corporation
`("NuVasive"), and Durango Spine, LLLP ("Consultant").
`
`WHEREAS, NuVasive is a medical device company that develops, manufactures and supplies certain surgical
`products and procedurally-integrated solutions for the spine and, in connection therewith, consults with licensed
`medical professionals for assistance in a variety of areas in order to improve spine surgery and patient outcomes;
`and
`
`WHEREAS, Consultant, through the personal services of Jim Youssef, M.D., a licensed physician and agent of
`Consultant ("HCP" and together with Consultant, jointly and severally, "Provider"), has the appropriate expertise
`and qualifications to consult with NuVasive regarding certain of its products and procedures.
`
`NOW, THEREFORE, the parties hereby agree as follows:
`
`1.
`
`SERVICES.
`
`(a)
`NuVasive hereby engages Consultant, and Consultant accepts such engagement, to provide the
`services (the "Services") set forth on the Scope(s) of Work (each, an "SOW") entered into under this Agreement
`from time to time by the parties. Consultant agrees that all Services under this Agreement shall be performed
`exclusively by HCP unless otherwise agreed in writing by NuVasive. Consultant covenants, acknowledges and
`agrees that it shall be responsible for (i) HCP's compliance with the terms and conditions applicable to HCP and
`Provider hereunder and (ii) all acts and omissions of HCP hereunder. In addition, HCP covenants, acknowledges
`and agrees that HCP is personally responsible for complying with the terms and conditions applicable to HCP and
`Provider hereunder.
`
`The initial SOW is attached hereto as EXHIBIT A, and, as additional Services may be requested of
`(b)
`Consultant by NuVasive, such additional SeNices will be documented by additional SOWs to be acknowledged by
`NuVasive, Consultant and HCP. Each SOW shall be deemed a part of this Agreement and subject to the same
`terms and conditions set forth herein. For purposes of clarity, any reference to "Agreement" herein shall be
`interpreted to include this Agreement and any applicable SOW. In addition to describing the SeNices of a respective
`engagement by NuYasive of Consultant, each SOW may also contain certain terms and conditions applicable with
`respect to each such engagement. When the engagement involves product development services, such additional
`terms and conditions will address, among other matters, ownership of certain inventions or discoveries.
`
`In performing the Services under this Agreement, Provider shall report and be responsible to the
`(c)
`NuVasive employee designated in the applicable SOW and/or such other person(s) as may be subsequently
`designated by NuVasive (the "NuVasive Designee(s)").
`
`(d)
`Provider shall provide all Services in a professional, skilled, and efficient manner, consistent with
`pertinent industry standards. Provider shall also use commercially reasonable efforts and such working time and
`energy as may be required for the satisfactory performance of the Services in accordance with NuVasive's requests
`and instructions.
`
`2.
`
`COMPENSATION.
`
`(a)
`NuVasive shall pay Consultant for Services actually requested by, and provided to, NuVasive at
`the rate(s) set forth in the applicable SOW. The parties acknowledge and agree that the compensation represents
`fair market value for the Services outlined. Further, nothing herein shall obligate Provider to purchase, utilize,
`recommend, or arrange for the use of any NuVasive products, and the compensation outlined herein does not in
`any way take into account the volume or value of any referrals or business otherwise generated between Provider
`and NuVasive. Consultant agrees to submit a quarterly work progress summary to NuVasive for all Services
`Provider provides in an applicable quarter. Such work progress summary shall include a detailed description of the
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_A TEC0318322
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22432 Page 4 of 11
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`Services provided (e.g., preparation, research, speaking, meetings attended, travel, teleconference, etc.) and the
`approximate amount of time spent providing the Services. Within 60 days of completion of the Services or expiration
`or termination of this Agreement, Consultant shall submit a final work progress summary to NuVasive. No amount
`shall be owed by NuVasive at any point after a final invoice has been submitted and paid by NuVasive.
`
`No part of Consultant's fees will be subject to payroll tax withholding and payment by NuVasive
`{b)
`including, but not limited to, federal income tax, state income tax, federal and state employment taxes, federal social
`security tax, and federal Medicare tax. Consultant agrees to complete and return to NuVasive a completed W-9
`form and to report to the appropriate taxing authorities any and all compensation received from NuVasive hereunder
`and shall be solely responsible for the payment of any and all taxes respective thereto. NuVasive will report
`consulting fee payments as required by applicable federal, state or local tax law or regulations. Upon receipt by
`NuVasive of copies of receipts or other appropriate evidence of expenditures by Consultant, NuVasive shall
`reimburse Consultant for pre-approved, reasonable travel expenses incurred by Consultant at the request of
`NuVasive in the course of rendering Services hereunder in accordance with NuVasive's travel and expense policies.
`
`(c)
`NuVasive shall report any compensation paid to Consultant hereunder as required by federal and
`state transparency laws, including, without limitation, the Federal Physician Payments Sunshine Act.
`
`3.
`
`RELATIONSHIP OF PARTIES; COMPLIANT PROVISION OF SERVICES.
`
`Provider's relationship with NuVasive will be that of an independent contractor, and nothing in this
`{a)
`Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment
`relationship. NuVasive will not be responsible for Provider's acts while performing the Services, whether on
`NuVasive's premises or elsewhere, and Provider will not have authority to speak for, represent, or obligate
`NuVasive in any way. Provider will not be entitled to any of the benefits that NuVasive may make available to its
`employees, including, but not limited to, group health, life insurance, profit-sharing or retirement benefits, paid
`vacation, holidays or sick leave. Provider will not be authorized to make any representation, contract or commitment
`on behalf of NuVasive unless spedfically requested or authorized in writing to do so by an authorized officer or
`employee of NuVasive. Provider will be solely responsible for obtaining any business or similar licenses required
`by any federal, state or local authority. In addition, NuVasive shall not provide any insurance coverage of any kind
`for Provider.
`
`Provider represents and warrants that Provider has the requisite expertise, ability, and legal right
`(b)
`to provide the Services and will perform the Services in an efficient manner and in accordance with the terms of this
`Agreement. Provider warrants that Provider will abide by all laws, rules, and regulations that apply to the
`performance of the Services and will comply with all of NuVasive's policies and procedures with respect to
`appropriate conduct, including, without limitation, federal and state anti-fraud and anti-kickback laws, the Federal
`Food, Drug, and Cosmetic Act, and any law, order, or regulatory provision related to the advertising and promotion
`of medical device products and NuVasive's policies and procedures relating to those laws, including, without
`limitation , NuVasive's policy against the improper promotion of products with off-label information and NuVasive's
`policy prohibiting offers or solicitation of kickbacks.
`In addition, Provider will be provided a copy of relevant
`NuVasive policies and Provider agrees to review such policies and undergo and certify to any compliance-related
`training required by NuVasive prior to performing the Services contemplated hereunder. During the pendency of
`this Agreement, Provider shall maintain the high standards of ethics and integrity by which NuVasive conducts
`business. Provider shall have the right to control the performance of the Services, as the result of the work is the
`primary factor bargained for in this consultancy, and not the manner, method or means by which the result is
`obtained.
`
`Provider agrees and acknowledges that any payments or other reimbursement made under this
`(c)
`Agreement are made solely for services rendered to NuVasive, and that no payments or any other reimbursement
`provided by NuVasive to Provider are to be construed as compensation for activities that Provider performs in
`connection with membership in any professional society, including but not limited lo, the North American Spine
`Society or the Society of Lateral Access Surgery ("Society(ies)"). With respect to proctoring or other activities
`Provider performs in connection with Society memberships, Provider acknowledges and agrees that such activities
`are not in any way at the request or for the benefit of NuVasive, and that Provider is not in any way acting as
`NuVasive's agent or representative in connection with such Society activities. Provider further acknowledges and
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_ATEC0318323
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22433 Page 5 of 11
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`agrees that when conducting Society activities, Provider is in no way expected or obligated to discuss, mention,
`recommend or endorse NuVaslve products, and Provider may freely and openly discuss any subject Provider
`deems relevant. including competitor products. Provider 1urther understands that any statements or representations
`made by Provider in connection with Society activities are not in any way endorsed or authorized by NuVasive.
`
`4.
`
`CONFIDENTIALITY.
`
`During discussions leading up to this Agreement and during the course of providing the Services,
`{a)
`it is anticipated that Provider will learn confidential and/or proprietary information of NuVasive. Provider will keep
`confidential and not use, except in connection with the performance of the Services hereunder, any and all
`information provided to Provider by NuVasive and/or developed by Provider while performing Services, including,
`without limitation, information concerning NuVasive's products, manufacturing processes, customers, product
`pricing, and technical know-how, unless and until NuVasive consents to disclosure in writing, or unless such
`information otherwise was previously known by Provider, as documented by Provider in writing, or becomes
`generally available to the public through no fault of Provider. Provider further represents that any and all information
`disclosed to NuVasive, or used for the benefit of NuVasive, by Provider does not and will not include any
`confidential, trade secret, or proprietary information of others. Except as required by Provider Disclosure
`Obligations (as defined below), Provider will not disclose to others, without NuVasive's written consent, any of the
`terms or conditions of this Agreement. The foregoing obligations of nonuse and confidentiality shall survive the
`expiration or termination of this Agreement. Upon termination of the Services set forth on an applicable SOW,
`Provider will return to NuVasive all copies of drawings, specifications, manuals, and other printed or reproduced
`material (including information stored on machine readable media) provided to Provider by NuVasive or developed
`by Provider during the performance of Services under this Agreement.
`In the event of a breach or threatened
`breach by Provider of any of the provisions hereof, Provider hereby consents and agrees that NuVasive shall be
`entitled to pre-judgment injunctive relief or similar equitable relief to restrain Provider from committing or continuing
`any such breach or threatened breach.
`
`Provider acknowledges that (i) any NuVasive information being furnished hereunder may contain
`(b)
`material, non-public information regarding NuVasive or its business partners, and (ii) United States securities laws
`may prohibit any persons who have material, non-public information regarding NuVasive or its business partners
`from purchasing or selling securities of NuVasive in reliance upon such information, or from communicating such
`information to any person under circumstances in which it is reasonably foreseeable that such person is likely to
`purchase or sell such securities of NuVasive or its business partners in reliance upon such information.
`
`CONFLICTS OF INTEREST. Provider represents and warrants that it has no relationship with any third party,
`5.
`including a competitor of NuVasive, which would present a conflict of interest with the Services, or which would
`prevent Provider from carrying out the terms of this Agreement. Provider agrees to advise NuVasive in writing of
`any such relationships that arise during the term of this Agreement. Upon learning of the existence of any such
`relationship, NuVasive will have the option to terminate this Agreement and any Services set forth on an SOW
`without further liability except to pay for any Services actually rendered. Provider shall have no recourse against
`NuVasive for termination under this Section 5. In addition, in the event Provider's relationship with NuVasive
`hereunder creates a conflict of interest between Provider and a third party (whether as of the Effective Date or
`during the term of this Agreement), Provider acknowledges and agrees that It shall be Provider's obligation to inform
`any such third party of such conflict of interest to the extent disclosure is required.
`
`6.
`
`DISCLOSURES TO THIRD~PARTIES.
`
`(a}
`Notwithstanding the confidentiality obligations contained in this Agreement, including but not limited
`to those set forth in Section 4, Provider may have obligations to disclose information regarding the existence of this
`Agreement and the terms hereof and/or any payment made hereunder ("Provider Disclosure Obligations") pursuant
`to (i) federal, state or local laws, rules or regulations, (ii) requirements of, or obligations to, hospitals, academic
`institutions, professional organizations, or other entities relating to conflicts of interests, or (iii) other obligations
`Provider has to disclose potential conflicts of interest created by Provider's relationship with NuVasive hereunder
`to third parties, including patients or employers. Provider acknowledges and agrees that Provider is solely
`responsible for identifying and complying with such Provider Disclosure Obligations.
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_ATEC0318324
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22434 Page 6 of 11
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`NuVasive may have obligations to disclose information regarding the existence of this Agreement
`(b)
`and the terms hereof and/or any payment hereunder pursuant to federal, state or local laws, rules or regulations
`("NuVasive Disclosure Obligations"). NuVasive acknowledges and agrees that NuVasive is solely responsible for
`identifying and complying with such NuVasive Disclosure Obligations.
`
`7.
`NON-INTERFERENCE WITH BUSINESS. During the term of this Agreement and for a period of one year after
`the expiration or termination hereof, Provider agrees not to perform for any other person or entity, and - in particular
`- any other person or entity engaged in the development, manufacture, distribution or sales of health care products
`or services - any service that reasonably may utilize any of the information obtained from NuVasive or any
`information developed during the course of performing the Services for NuVasive. Notwithstanding the foregoing,
`but subject to Sections 6(a} and 6(b), NuVasive's Confidential Information shall not be shared by Provider with third
`parties, at any time. Provider hereby agrees to take no action that is likely to be detrimental to the reputation or
`business of NuVasive or any of its affiliates and/or subsidiaries, whether while performing the Services or otherwise.
`Additionally, during the term of this Agreement and for a period of one year after the expiration or termination hereof,
`Provider agrees that Provider shall not, for any or no reason, whether directly on Provider's own behalf or as an
`employee, independent contractor, partner, owner, officer, director of any entity or in any other capacity or indirectly,
`employ, solicit or offer work to any of NuVasive's employees, agents or representatives, without the express, written
`consent of NuVasive.
`
`8.
`
`INSURANCE; INDEMNIFICATION AND COOPERATION.
`
`Neither party shall be liable for any loss or liability not caused by such party's own negligence or
`(a)
`willful act or omission, or such party's failure to comply with its obligations hereunder, and each party hereto agrees
`to indemnify and hold harmless the other from and against any and all claims, expenses, losses, and obligations
`arising out of such party's negligent acts or omissions (including, in the case of Consultant, the negligent acts or
`omissions of HCP). Each party shall fully cooperate with the other party and such other party's duly authorized
`employees, agents, and attorneys in investigating, defending or prosecuting incidents involving potential claims or
`lawsuits arising out of or in connection with this Agreement. This Section 8 shall be without prejudice to the
`prosecution of any claims which a party may have against the other and shall not require cooperation in the event
`of such claims.
`
`Provider shall indemnify and hold harmless NuVasive and its affiliates and their respective officers,
`{b)
`directors, and employees (collectively, "NuVasive Indemnified Parties") for any loss, penalty, settlement amount,
`cost, liability or expense (including but not limited to reasonable attorneys' fees and expenses) (collectively,
`"Losses") incurred by any NuVasive Indemnified Parties in connection with any third party claim related to (i)
`Provider's improper or unauthorized use or disclosure of the confidential information of third parties, regardless of
`whether such confidential information constitutes trade secrets, in the course of Provider's performance under this
`Agreement; (ii) Provider's violation of any employment agreement or non-compete agreement; and (iii) a disclosure
`made by Provider in the course of providing the Services to NuVasive that is alleged to infringe, misappropriate or
`violate any patents, copyrights, trade secrets, confidentiality rights, license rights, privacy rights or other rights of
`any third party.
`
`NuVasive shall indemnify and hold harmless Provider for any Losses incurred by Provider in
`(c)
`connection with any third party claim related to (i) the material breach by NuVasive of any representation, warranty,
`covenant or agreement made by it under this Agreement, or (ii) the gross negligence or willful misconduct of any of the
`NuVasive Indemnified Parties.
`
`DISCLOSURES TO NUVASIVE. If, during the term of this Agreement, Provider discloses any copyrightable
`9.
`works, inventions (whether or not patentable), discoveries, or ideas to NuVasive which were conceived or written
`by Provider prior to the Effective Date, or which are not based upon any information received from NuVasive and/or
`developed as a result of performing the Services under this Agreement, NuVasive will have no liability to Provider
`(or any affiliate thereof) during or after the term of this Agreement because of NuVasive's use of such works,
`inventions, discoveries, or ideas, except liability for infringement of any valid registered copyright or patent (to the
`extent validly issued prior to such use. Provider warrants that all disclosures and Developments made by Provider
`to NuVasive in the course of providing the Services set forth on EXHIBIT A hereto to NuVasive shall be original to
`Provider and shall not infringe any patent, copyright, trademark or trade secret of any third party, including without
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_A TEC0318325
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22435 Page 7 of 11
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`limitation any employer or other third party to whom Provider provides services.
`
`10.
`
`PUBLICITY.
`
`(a)
`No press releases, literature, advertising, publicity, or written statements in connection with the
`Services under this Agreement shall be made by Provider without the prior, written consent of NuVasive. except
`pursuant to Provider Disclosure Obligations.
`
`Provider hereby grants NuVasive unrestricted permission to list Provider's name, likeness,
`(b)
`credentials, academic and professional background, experience and identification of authored publications in any
`and all marketing, advertising or promotional materials that NuVasive deems appropriate for the marketing,
`advertisement or promotion of the Services under this Agreement.
`
`TERM AND TERMINATION. This Agreement shall take effect on the Effective Date and, unless earlier
`11.
`terminated in accordance with this Section 11, continue until the third anniversary of the Effective Date: provided,
`that NuVasive may renew this Agreement for additional one-year terms by providing Consultant written notice of its
`intent to renew at least 30 days prior to the end of the then-current term (each, a "Renewal Term"). If this Agreement
`is renewed for any Renewal Term(s) pursuant to this Section 11, the terms and conditions of this Agreement during
`each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal.
`Either party may terminate this Agreement at any time by giving notice to the other party at least 30 days in advance
`of the termination date specified in such notice. In the event of a default by either party in the performance of its
`obligations hereunder, the other party may terminate this Agreement by giving written notice to the defaulting party
`at least 10 days in advance of the termination date specified in such notice. Should NuVasive terminate this
`Agreement early under this Section 11, the parties agree that Consultant shall have no recourse against NuVasive
`except for any compensation Consultant may be entitled to under Section 2 for any time actually spent by Consultant
`in providing Services under this Agreement. Notwithstanding the foregoing, the terms and conditions provided in
`Sections 2 (Compensation), 4 (Confidentiality), 7 (Non-Interference with Business), 9 (Disclosures to NuVasive),
`and 11 (Term and Termination) of this Agreement, as well as those regarding any (a) ownership of Developments,
`or (b) milestones or royalties that may be due and payable, in each case, as provided under any SOW to this
`Agreement, shall survive termination of this Agreement pursuant to the respective terms and conditions thereof.
`
`12.
`ASSIGNMENT. This Agreement is personal to Consultant and Consultant shall therefore have no right or
`authority to assign this Agreement or any portion hereof or otherwise delegate performance under this Agreement
`without the prior, written consent of NuVasive. NuVasive may, without prior written notice to, and without the consent
`of, Consultant, assign this Agreement and any of its rights under this Agreement if such assignment is to: (a) an
`affiliate of NuVasive, (b) a successor of NuVasive, by consolidation, merger or operation of law, or (c) a purchaser
`of all or substantially all of NuVasive's assets. Consultant agrees that, if this Agreement is assigned to a third party,
`all terms and conditions of this Agreement shall be of the same force and effect as if said Agreement had been
`made between Consultant and such third party in the first instance. No assignment by Consultant of this Agreement,
`or any sums due under it, will be binding on NuVasive without NuVasive's prior, written consent.
`
`NOTICES. Except as otherwise noted herein, any notices permitted or required hereunder shall be deemed
`13.
`effective if made in writing and sent, postage prepaid, as follows:
`
`If to NuVasive:
`
`With a copy to:
`
`If to Consultant:
`
`NUV ASIVE, INC.
`7475 Lusk Blvd.
`San Diego, CA 92121
`Attention: Chief Operating Officer
`
`NUV ASIVE, INC.
`7475 Lusk Blvd.
`San Diego, CA 92121
`Attention: Legal Department
`
`DURANGO SPINE, LLLP
`280 Ball Lane
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_ATEC0318326
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22436 Page 8 of 11
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`Durango, CO 81301
`Attention: Jim Youssef, M.D.
`
`Either party may change its notice address in this Section by providing the other party 30 days prior, written notice
`of the new notice information.
`
`GENERAL. This Agreement constitutes the entire agreement between the parties with respect to the subject
`14.
`matter hereof. There are no promises, agreements, conditions, undertakings, warranties, or representations, oral or
`written, expressed or implied, between the parties other than as set forth herein. This Agreement may only be modified
`by an agreement in writing signed by both parties hereto. Each party agrees that, in the event of any dispute or claim
`relating to or arising out of the terms of this Agreement or its interpretation, all such disputes shall be fully and finally
`resolved by binding arbitration conducted before a single neutral arbitrator from the American Arbitration Association
`("AAA") in the state in which Consultant resides, pursuant to the then current commercial dispute rules, which rules
`can be accessed at www.adr.com. The arbitrator shall permit adequate discovery. In addition, the arbitrator is
`empowered to award all remedies otherwise available in a court of competent jurisdiction. Any judgment rendered
`by the arbitrator may be entered by any court of competent jurisdiction. The arbitrator shall issue an award in writing
`and state the essential findings and conclusions on which the award is based. By executing this Agreement, the
`parties are both waiving the right to a jury trial with respect to any such disputes. The parties shall split the costs
`of the arbitrator, forum and filings fees equally. The prevailing party shall be entitled to recover its reasonable
`attorneys' fees and costs as may be awarded by the arbitrator. This arbitration section does not include claims that.
`by law, may not be subject to mandatory arbitration. In addition, this arbitration section does not prevent either party
`from seeking temporary injunctive relief, as permitted by applicable state law, through either AAA or an appropriate
`court of competent jurisdiction. This Agreement shall be construed according to the laws of the State of Delaware.
`If any of the provisions of this Agreement are void or unenforceable, the remaining provisions shall nevertheless be
`effective, the intent being to effectuate this Agreement to the fullest extent possible. The waiver by either party of a
`breach or violation of any provision of thls Agreement shall not operate as or be construed to be a continuing waiver or
`a waiver of any subsequent breach of either the same or any other provision of this Agreement. This Agreement is
`intended solely for the mutual benefit of the parties hereto and there is no intention, expressed or otherwise, to create
`any rights or interests for any other party or person other than the parties. Each of NuVasive and Provider agrees to
`comply with any and all applicable federal, state or local laws, rules and regulations in the performance of this
`Agreement. Each of NuVasive and Provider represents that it is not debarred, suspended, excluded or otherwise
`ineligible to participate in any federal or state healthcare program. Should NuVasive or Provider become debarred,
`suspended, excluded or otherwise ineligible to particlpate in any federal or state healthcare program, NuVasive or
`Consultant, as the case may be, shall have the right to immediately terminate this Agreement. This Agreement may be
`executed and delivered in counterpart signature pages and delivered via electronic transmission {.pdf format included),
`and any such counterpart shall be deemed an original for all intents and purposes.
`
`15.
`PRIOR AGREEMENT(s). The parties acknowledge that NuVasive and Consultant previously entered into that
`certain General Consulting Services Agreement, dated April 1, 2009 (as previously amended, the ''Prior
`Agreement"). The Prior Agreement shall remain in full force and effect in accordance with the terms thereof and all
`services provided by Consultant under the Prior Agreement, whether before or after the Effective Date, shall be
`governed by the Prior Agreement.
`
`{Signature Page Follows]
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUVA_ATEC0318327
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22437 Page 9 of 11
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`IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the Effective Date.
`
`NUV ASIVE, INC.
`
`DURANGO SPINE , LLLP
`
`By:----,-------:~.,......,.,_---1,,11~ - - -- (cid:173)
`Jason Han n
`President and C
`
`By ~
`/'
`Name::::r:::/
`uvS<:-< t--, «1 b
`Title:
`.,_j 1 """'-
`l>t'-"") p~
`~
`Acknowledged and Agreed:
`
`25i?: _____ _
`
`Highly Confidential - Outside Attorney's Eyes Only
`
`NUV A_A TEC0318328
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 253-4 Filed 01/18/20 PageID.22438 Page 10 of
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`EXHIBIT A
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`SCOPE OF WORK
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`Services:
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`Provider shall serve as a member of NuVasive's Senior Surgeon Advisory Board (the "SSAB") during the term of
`this Agreement. As an SSAB member, Provider shall consult with NuVasive's senior management on its products
`and procedural solutions, with a focus on advancing NuVasive's XLIF® procedure, including the integration of new
`technology into the XLIF procedure and the identification of unmet clinical needs. Provider agrees to commit time
`and commercially reasonable efforts to performing Services as a member of the SSAB. Provider shall (i) attend
`and participate in up to two in-person meetings of the SSAB per year at a location designated by NuVasive, (ii)
`participate in telephonic SSAB meetings, (iii) consult individually with other SSAB members and NuVasive's officers
`and employees, and (iv) review and evaluate materials related to NuVasive's business, products and technology
`development and acquisition targets, in each case, as requested by NuVasive. Provider's membership on the
`SSAB may be terminated at any time by Consultant or NuVasive.
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`Compensation:
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`As compensation for Provider's Services under this Agreement, NuVasive shall pay to Consultant