Exhibit 10.1
COOPERATION AGREEMENT
This COOPERATION AGREEMENT (this “Agreement”) is made and entered into as of February 20, 2024, by and among Nevro Corp., a Delaware corporation (the “Company”) and the persons set forth on Exhibit A hereto (collectively, the “Engaged Group” and, for clarity, as applicable, including each member thereof acting individually). The Company and the Engaged Group are each herein referred to as a “Party” and collectively, the “Parties.” Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in Section 12 below.
RECITALS
WHEREAS, the Company and the Engaged Group have engaged in various discussions and communications concerning the Company’s business, financial performance and strategic plans;
WHEREAS, as of the date hereof, the Engaged Group is the beneficial owner of 2,168,163 shares of Common Stock, constituting approximately 6.0% of the Common Stock issued and outstanding; and
WHEREAS, the Company and the Engaged Group have determined to come to an agreement with respect to the composition of the Board of Directors of the Company (the “Board”) and certain other matters, as provided in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
1
Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 3 shall not be deemed to restrict the Engaged Group from: (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3 or Section 6, or (iii)
taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Engaged Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in the exercise of the New Director’s fiduciary duties to the Company.
In this Agreement, unless a clear contrary intention appears, (i) the word “including” (in its various forms) means “including, without limitation;” (ii) the words “hereunder,” “hereof,” “hereto” and words of similar import are references in this Agreement as a whole and not to any particular provision of this Agreement; (iii) the word “or” is not exclusive; (iv) references to “Sections” in this Agreement are references to Sections of this Agreement unless otherwise indicated; and (v) whenever the context requires, the masculine gender shall include the feminine and neuter genders.
If to the Company:
Nevro Corp.
1800 Bridge Parkway
Redwood City, California 94065
Attention: Kashif Rashid
Email: kashif.rashid@nevro.com
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
140 Scott Drive
Menlo Park, CA 94025
Attention: Charles Ruck
Josh Dubofsky
Daniel Rees
E-mail: charles.ruck@lw.com
josh.dubofsky@lw.com
daniel.rees@lw.com
If to the Engaged Group:
Engaged Capital, LLC
610 Newport Center Drive, Suite 950
Newport Beach, California 92660
Attention: Glenn W. Welling
Email: glenn@engagedcapital.com
with a copy (which shall not constitute notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, New York 10019
Attention: Ryan Nebel
Email: rnebel@olshanlaw.com
[Signature Page Follows]
IN WITNESS WHEREOF, each Party has executed this Agreement, or caused the same to be executed by its duly authorized representative, as of the date first above written.
THE COMPANY:
NEVRO CORP.
By: /s/ Kevin Thornal
Name: Kevin Thornal
Title: Chief Executive Officer & President
[SIGNATURE PAGE TO COOPERATION AGREEMENT]
ENGAGED GROUP:
ENGAGED CAPITAL FLAGSHIP MASTER FUND, LP
By: Engaged Capital, LLC
General Partner
By: /s/ Glenn W. Welling
Name: Glenn W. Welling
Title: Founder and Chief Investment Officer
ENGAGED CAPITAL, LLC
By: /s/ Glenn W. Welling
Name: Glenn W. Welling
Title: Founder and Chief Investment Officer
ENGAGED CAPITAL HOLDINGS, LLC
By: /s/ Glenn W. Welling
Name: Glenn W. Welling
Title: Sole Member
/s/ Glenn W. Welling
GLENN W. WELLING
[SIGNATURE PAGE TO COOPERATION AGREEMENT]
Exhibit A
Engaged Capital Flagship Master Fund, LP
Engaged Capital, LLC
Engaged Capital Holdings, LLC
Glenn W. Welling
Exhibit B
Press Release