Alphatec Holdings, Inc. (Form: 8-K, Received: 10/02/2017 09:12:13)

Date: October 2, 2017

ALPHATEC HOLDINGS, INC.

/s/ Jeffrey Black

Jeffrey Black

Chief Financial Officer

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): October 1, 2017

ALPHATEC HOLDINGS, INC.

(Exact Name of Registrant as Specified in Charter)

Delaware

000-52024

20-2463898

(State or Other Jurisdiction

of Incorporation)

(Commission

File Number)

(I.R.S. Employer

Identification No.)

5818 El Camino Real

Carlsbad, California 92008

(Address of Principal Executive Offices)

(760) 431-9286

(Registrant’s telephone number, including area code)

Not applicable

(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:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14.a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01.

Entry into a Material Definitive Agreement

Private Placement and Securities Purchase Agreements

On October 2, 2017, Alphatec Holdings, Inc. (“the Company”) entered into Securities Purchase Agreements (collectively, the “Purchase Agreements”) with accredited investors Patrick Miles and Quentin Blackford (collectively, the “Purchasers”), pursuant to which Messrs. Miles and Blackford have agreed, subject to the satisfaction of customary closing conditions under the Purchase Agreements, to purchase from the Company, collectively, no less than 1,549,116 and as many as 1,769,912 shares of its common stock at a purchase price of $2.26 per share, which was the current market value of the shares purchased as defined by The Nasdaq Stock Market based on the consolidated closing bid price on September 29, 2017, the last trading day before execution of the Purchase Agreements. The closing of the share purchases under the Purchase Agreements by Messrs. Miles and Blackford is expected to occur on or before January 1, 2018, subject to the satisfaction of customary closing conditions. The Purchase Agreement executed by the Company and Mr. Miles also provides for the issuance by the Company to Mr. Miles at the closing of the share purchase (described above) of a warrant to purchase up to 1,327,434 shares of its common stock at an exercise price of $5.00 per share (the “Warrant”). The Warrant will become exercisable six months following the issuance of the Warrant. The Warrant will expire and no longer be exercisable, and its provisions shall have no further force or effect, upon the earlier of (a) the date on which the Warrant has been exercised for the maximum amount of shares available for issuance thereunder and (b) the fifth anniversary of the issuance of the Warrant.

The aggregate gross proceeds of the issuance and sale of the shares to Messrs. Miles and Blackford pursuant to the Purchase Agreements will be approximately $3.5 million to $4 million. Assuming exercise of all of the shares of common stock issuable under the Warrant, the Company will receive additional proceeds of approximately $6.6 million. The Company intends to use the net proceeds from the issuance and sale of the shares and the exercise of the shares of common stock issuable under the Warrant for general corporate and working capital purposes.

The issuance and sale of the shares and the issuance of the Warrant under the Purchase Agreements, and the issuance of the shares of common stock upon exercise of the Warrant (the “Private Placement”) is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D of the Securities Act and in reliance on similar exemptions under applicable state laws. Each of Messrs. Miles and Blackford represented that he is an accredited investor within the meaning of Rule 501(a) of Regulation D, and was acquiring the securities for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof. The securities were offered without any general solicitation by the Company or its representatives.

The securities sold and issued in the Private Placement will not be registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration with the Securities and Exchange Commission (the “SEC”) or an applicable exemption from the registration requirements.

Transaction Documents

The representations, warranties and covenants contained in the Purchase Agreements, if any, were made solely for the benefit of the parties to the Purchase Agreements and may be subject to limitations agreed upon by the contracting parties. In addition, such representations, warranties and covenants (i) are intended as a way of allocating the risk between the parties to the Purchase Agreements and not as statements of fact, and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Accordingly, the Purchase Agreements are filed with this report only to provide investors with information regarding the terms of transaction, and not to provide investors with any other factual information regarding the Company. Stockholders should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreements, which subsequent information may or may not be fully reflected in public disclosures.

The foregoing description of the Private Placement is qualified in its entirety by reference to the Purchase Agreements and Form of Warrant to be used for issuance of the Warrant upon the closing of the issuance and sale of the shares under the Miles Purchase Agreement, which are filed hereto as Exhibits 10.1, 10.2 and 4.1, respectively.

Item 3.02.

Unregistered Sales of Equity Securities

The information regarding the Private Placement, the issuance of the Shares and the Warrant included under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Departure of Stephen O’Neil

Effective October 1, 2017, Stephen O’Neil resigned as a member of the Board of Directors (the “Board”) of the Company and its operating subsidiary, Alphatec Spine, Inc. (“Spine”). Mr. O’Neil also was a member of the Board’s Nominating, Governance and Compensation Committee. Mr. O’Neil’s resignation was not the result of any disagreements between Mr. O’Neil and the Company on any matter relating to the Company’s operations, policies or practices. In connection with his departure from the Company’s Board, Mr. O’Neil and the Company entered into a Vesting Acceleration Agreement (the “Vesting Agreement”). Pursuant to the Vesting Agreement, as of October 1, 2017, all outstanding options to purchase the Company’s common stock and any restricted common stock held by Mr. O’Neil as of October 1, 2017, became vested and exercisable. In addition, the term during which Mr. O’Neil may exercise any stock option was extended until the earlier of: (i) October 1, 2019 (or the following business day if such day is not a business day of the Company), or (ii) the expiration date that would apply to such stock option. This summary of the Vesting Agreement is qualified in its entirety by reference to the full text of the Vesting Agreement, which is filed hereto as Exhibit 10.3.

Appointment of Quentin Blackford

On October 1, 2017, the Board appointed Quentin Blackford to fill the vacancy created by Mr. O’Neil’s resignation and to serve as a director for a term commencing on October 2, 2017 and expiring at the Annual Meeting of Stockholders of the Company in 2018 and until his successor is duly elected and qualifies, unless he sooner dies, retires or resigns. The Board of Directors has determined that Mr. Blackford satisfies the current “independent director” standards established by the rules of The Nasdaq Stock Market.

Mr. Blackford, age 38, currently serves as the Chief Financial Officer of DexCom, Inc. (“DexCom”), a company focused on developing and marketing continuous glucose monitoring systems for ambulatory use by people with diabetes and by healthcare providers. Prior to joining DexCom in August 2017, Mr. Blackford served since August 2016 as the Executive Vice President, Chief Financial Officer, Head of Strategy and Corporate Integrity of NuVasive, Inc. (“NuVasive”), a medical device company focused on developing minimally disruptive surgical products and procedures for the spine. In this role, Mr. Blackford was responsible for leading NuVasive’s Finance, Strategy and Corporate Development, Compliance and Regulatory functions. From August 2014 until August 2016, Mr. Blackford served as NuVasive’s Executive Vice President, Chief Financial Officer. From July 2012 to August 2014, Mr. Blackford served as NuVasive’s Executive Vice President of Finance and Investor Relations, and from January 2011 to June 2012, he served as NuVasive’s Vice President, Finance. Mr. Blackford joined NuVasive in 2009 as its Corporate Controller and was previously employed at Zimmer Holdings, Inc., including most recently as the Director of Finance and Controller for Zimmer’s Dental Division. He obtained his Certified Public Accounting license (currently inactive) following the achievement of dual Bachelor of Science degrees in Accounting and Business Administration, with an emphasis in Accounting, from Grace College.

The Board selected Mr. Blackford to serve on the Board because it believes that his knowledge and experience in the areas of finance, strategy and corporate development, along with his knowledge and experience in the medical device industry contribute to the breadth of knowledge of the Board of Directors.

Mr. Blackford will receive the following annual cash and equity compensation in accordance with the Company’s standard compensation program for independent directors: (i) an annual grant of nonqualified options equivalent in value to $30,000 on the date of grant with three-year vesting; (ii) an annual grant of shares of restricted stock equivalent in value to $45,000 on the date of grant with one-year vesting; (iii) an annual cash retainer of $25,000, which is paid quarterly; and (iv) an annual payment of $8,000, paid quarterly, to each independent director that serves as a member of a Board committee. In addition, it is anticipated that Mr. Blackford will enter into the Company’s standard form of indemnification agreement for non-employee directors, a copy of which is attached as Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed with the SEC on May 5, 2009, and incorporated herein by reference.

There are no other arrangements or understandings between Mr. Blackford and any other person pursuant to which he was selected to serve on the Board. There are no family relationships between Mr. Blackford and any director or executive officer of the Company, and he has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

Appointment of Patrick Miles

On October 1, 2017, the Board fixed the number of directors to serve on the Board at eight members and appointed Patrick Miles as Executive Chairman of the Company and Spine, effective October 2, 2017. In connection with Mr. Miles’ appointment, director Mortimer Berkowitz III stepped down from his position as Chairman of the Board, but remains a director of the Company. Due to Mr. Miles’ employment as an officer of the Company (as detailed below), the Board of Directors has determined that Mr. Miles does not satisfy the current “independent director” standards established by the rules of The Nasdaq Stock Market and, effective October 2, 2017, it appointed Mr. Berkowitz as the Lead Director of the Board.

Mr. Miles, age 51, has over 20 years of experience in the orthopaedic industry and most recently served, from September 2016 to September 2017, as the Vice Chairman of NuVasive. As Vice Chairman, Mr. Miles was responsible for enhancing the Company’s strategic plans for the future of spine surgery and supporting technology development. Mr. Miles served as a member of NuVasive’s Board of Directors since August 2016 until his resignation in September 2017. Prior to that, Mr. Miles served as NuVasive’s President

and Chief Operating Officer from February 2015 to September 2016. He previously served as NuVasive’s President of Global Products and Services from October 2011 to January 2015, President of the Americas from January 2010 to September 2011, Executive Vice President of Product Marketing and Development from January 2007 to December 2009, Senior Vice President of Marketing from December 2004 to January 2007, and as its Vice President, Marketing from January 2001 to December 2004. Prior to those positions, he served as Director of Marketing for ORATEC Interventions, Inc., a medical device company, and as a Director of Marketing for Minimally Invasive Systems and Cervical Spine Systems for Medtronic Sofamor Danek, and held several positions with Smith & Nephew. Mr. Miles received a B.S. in Finance from Mercer University.

The Board selected Mr. Miles to serve as Executive Chairman because it believes that he possesses specific attributes, perspective and experience gained as an executive and director of both private and publicly-traded medical device companies that qualify him to serve as the Company’s Executive Chairman.

There are no family relationships by or between Mr. Miles and any director or executive officer of the Company, and he has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

In connection with his appointment, the Company entered into an employment letter agreement with Mr. Miles, effective as of October 2, 2017, setting forth Mr. Miles’ compensation and certain other terms. Mr. Miles’ employment is at-will. Pursuant to his employment letter agreement, Mr. Miles will be paid an annual base salary of $550,000 and he will be eligible to receive an annual target cash bonus equal to 110% (prorated to 50% for fiscal 2017) of his annual base salary upon the Company’s and his achievement of goals to be established by the Company’s Board each fiscal year. Mr. Miles is also entitled to participate in all of the Company’s benefits programs available to management employees and to receive reimbursement of reasonable expenses he incurs in connection with his service to the Company.

Pursuant to the employment letter agreement, in connection with the commencement of his employment on October 2, 2017, Mr. Miles will receive restricted stock units (“RSUs”) covering 1,000,000 shares of the Company’s common stock (with the grant of such RSUs made subject to, and effective on, the date on which the Company files a Registration Statement on Form S-8 registering the shares of common stock issuable upon settlement of the RSUs, which filing is expected to occur later this month) under the Company’s 2016 Employment Inducement Award Plan, for which the Board approved an amendment in order to increase the shares reserved thereunder by 1,000,000 shares to 2,550,000 shares, effective October 2, 2017. Such awards were granted to Mr. Miles as a material inducement to his entering into employment with the Company, pursuant to NASDAQ rules. The RSUs will vest in equal installments on each of the first three anniversaries of Mr. Miles’ first date of employment, subject to Mr. Miles’ continued service with the Company through the applicable vesting date. In addition, the RSUs will fully vest upon a change in control (as defined in the 2016 Employment Inducement Award Plan, as amended) of the Company.

The Company and Mr. Miles also entered into a severance agreement and a change in control agreement, each effective October 2, 2017. The severance agreement provides that in the event Mr. Miles’ employment is terminated without cause, he will be eligible to receive the following severance and other benefits, subject to his execution of a release of claims against the Company and certain other conditions: (a) the payment of cash severance in a lump sum equal to one and one half times his regular annual base salary and his annual target bonus in effect for the calendar year in which the termination of the employment occurs; (b) the Company will pay premiums for the continuation of his health and dental insurance coverage pursuant to COBRA for a period of 18 months; and (c) the post-termination exercise period for any vested stock options held by Mr. Miles at the date of termination will be extended through the later of (i) 90 days after his date of termination or (ii) the remaining term of such awards.

Under the change in control agreement, in the event Mr. Miles’ employment is terminated without cause or for good reason (as defined in the agreement), and such termination occurs within 24 months following a change in control (as defined in the agreement), he will be eligible to receive the following severance and other benefits, subject to his execution of a release of claims against the Company: (1) a lump-sum cash severance payment in an amount equal to the sum of (a) two times his annual compensation; (b) the product of (x) his Long-term Incentive Award Value, multiplied by (y) a fraction, the numerator of which is the number of full and partial calendar months between January 1 of the year of Separation from Service and the date of the Executive’s Separation from Service (provided, however, that such numerator shall not exceed six) and the denominator of which is twelve; and (c) the product of (x) the greater of (A) his target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to him out of the three prior bonuses paid to the him prior to the his Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and partial calendar months between January 1 of the year of Separation from Service and the date of the Executive’s Separation from Service and the denominator of which is twelve (12); (2) the Company will pay premiums for the continuation of his health and dental insurance coverage pursuant to COBRA for a period of 18 months; and (3) all of his outstanding equity awards will become fully vested to the extent that such vesting is based on service with the Company.

The foregoing description of the employment letter agreement, severance agreement, and change in control agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreements, copies of which will be filed with the Company’s Quarterly Report on Form 10-Q for the quarter ending September 30, 2017.

Amendment of Inducement Award Plan

On October 1, 2017, the Board approved the Third Amendment to the Company’s 2016 Employment Inducement Award Plan, as amended (the “Plan”), to increase the shares of common stock reserved for issuance under the plan by 1,000,000 shares, to a total of 2,550,000 shares. A complete copy of the Plan amendment is filed as Exhibit 10.4 hereto and incorporated herein by reference. The above summary of the Plan amendment does not purport to be complete and is qualified in its entirety by reference to such exhibit.

Item 7.01.

Other Events

On October 2, 2017, the Company issued a press release announcing the Private Placement, the management and Board changes, and the amendment to the Plan, each as described and detailed above, which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

The information furnished under this Item 7.01 of this Current Report on Form 8-K, including as contained in Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, and it shall not be deemed incorporated by reference in any filing under the Securities Act or under the Exchange Act, whether made before or after the date hereof, except as expressly provided by specific reference in such a filing.

Forward-Looking Statements

This Current Report on Form 8-K may contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. The Company cautions investors that there can be no assurance that actual results or business conditions will not differ materially from those projected or suggested in such forward-looking statements as a result of various factors. Forward looking statements include statements regarding the Company’s expectations on the completion, timing and size of the Private Placement and the anticipated use of proceeds therefrom. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to, risks and uncertainties associated with market conditions and the satisfaction of customary closing conditions related to the Private Placement and other risks and uncertainties inherent in the Company’s business, including those detailed from time to time in the Company’s reports that it files with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2016, filed on March 31, 2017 with the Securities and Exchange Commission, and its Amended Annual Report on Form 10-K/A filed on April 28, 2017, as well as its Quarterly Reports on Form 10-Q and periodic filings on Form 8-K. The words “believe,” “will,” “should,” “expect,” “intend,” “estimate” and “anticipate,” variations of such words and similar expressions identify forward-looking statements, but their absence does not mean that a statement is not a forward-looking statement. The Company disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law.

Item 9.01.

Financial Statements and Exhibits

(d)

Exhibits .



4.1		Form of Warrant to Purchase Common Stock of Alphatec Holdings, Inc.

10.1		Purchase Agreement dated as of October 2, 2017, between Alphatec Holdings, Inc. and Patrick Miles.

10.2		Purchase Agreement dated as of October 2, 2017, between Alphatec Holdings, Inc. and Quentin Blackford.

10.3		Vesting Acceleration Agreement between Alphatec Holdings, Inc. and Stephen O’Neil, dated October 1, 2017.

10.4		Third Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan, dated October 1, 2017.

99.1		Press Release, dated October 2, 2017.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Exhibit 4.1

THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR STATE SECURITIES LAWS AND NO TRANSFER OF THESE SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND THE RULES AND REGULATIONS THEREUNDER AND OF ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, OR (B) PURSUANT TO AN EXEMPTION THEREFROM UNDER SAID ACT AND ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS WITH RESPECT TO WHICH THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE ACT.

WARRANT TO PURCHASE COMMON STOCK

ALPHATEC HOLDINGS, INC.

Warrant Shares: [ ]

[Date], 2017

THIS WARRANT CERTIFIES THAT, for value received, [NAME] (the “Holder”), or its assigns, is entitled to purchase up to [NUMBER] shares of Common Stock (the “ Shares ”) of Alphatec Holdings, Inc., a Delaware corporation (the “Company”) at an exercise price equal to $[MARKET PRICE] per Share (the “ Exercise Price ”), all on the terms and subject to the conditions and limitation as set forth herein.

ARTICLE 1. EXERCISE

Holder may exercise this Warrant in whole or in part, at any time and from time to time following [DATE], 2018 [TO BE 6 MONTHS AFTER GRANT DATE], in each case, by delivering a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 to the principal office of the Company and a check for the aggregate Exercise Price for the Shares being purchased. Promptly after Holder exercises this Warrant, the Company shall deliver to Holder certificates for the Shares acquired, and, if this Warrant has not been fully exercised, a new Warrant representing the Shares not so acquired shall be delivered to Holder. Subject to Article 4 and Section 5.2 below, the Company agrees that any Shares acquired by exercise of this Warrant in accordance with this Article 1 shall be deemed to be issued to the Holder as the record holder of such Shares as of the close of business on the date on which the Notice of Exercise shall have been delivered and payment made for the Exercise Price as aforesaid.

ARTICLE 2. ADJUSTMENTS TO THE SHARES

2.1. Split, Subdivision or Combination of Shares . Upon any subdivision of the Shares, by split or otherwise, or combination of the Shares, the number of Shares issuable upon the exercise of this Warrant shall forthwith be proportionately increased, in the case of a subdivision, or proportionately decreased in the case of a combination, and the Exercise Price shall forthwith be proportionately decreased in the case of a subdivision, or proportionately increased in the case of a combination.

2.2. Reclassification, Merger, Exchange or Substitution . Upon any reclassification, merger, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise of this Warrant, the Holder shall be entitled to receive, upon exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, merger, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder a new Warrant for such new securities or other property. The new Warrant shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 2 including, without limitation, adjustments to the Exercise Price and to the number of securities or property issuable upon exercise or conversion of the new Warrant. The provisions of this Section 2.2 shall similarly apply to successive reclassifications, mergers, exchanges, substitutions, or other events.

2.3. Notice of Adjustments . Whenever the number of Shares or Exercise Price is adjusted or there is any other adjustment of this Warrant as herein provided, the Company shall provide notice to the Holder of such adjustment or adjustments setting forth in reasonable detail the adjustments so made, a brief statement of the facts requiring such adjustment, and the computation by which such adjustment was made.

2.4. No Impairment . The Company shall not, through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by the Company, but shall at all times in good faith assist in carrying out of all the provisions of this Article 2. The Company shall at all times reserve and keep available out of the aggregate of its authorized but unissued Shares, free of preemptive rights, such number of its duly authorized Shares, or other stock or securities deliverable pursuant to this Article 2, as shall be sufficient to enable the Company at any time to fulfill all of its obligations under this Warrant. The Company covenants that all Shares that may be delivered upon exercise of this Warrant, assuming full payment of the Exercise Price, shall upon delivery by the Company be duly authorized and validly issued, fully paid and nonassessable, free from all stamp taxes, liens and charges with respect to the issue or delivery thereof and otherwise free of all other security interests, encumbrances and claims of any nature whatsoever other than those created by Holder.

ARTICLE 3. DURATION

This Warrant shall expire and no longer be exercisable, and its provisions shall have no further force or effect upon the earlier of (a) the date which this Warrant has been exercised for the maximum amount of Shares available for issuance upon an exercise of this Warrant and (b) [DATE], 2022.

ARTICLE 4. TRANSFER

This Warrant (as if this Warrant were the Common Stock issuable upon the exercise hereof) and the Shares issued upon the exercise thereof may be transferred in whole or in part only in compliance with all applicable securities laws related to the transfer of this Warrant or the Shares issuable upon the exercise hereof. Subject to such restrictions, the Company shall transfer all or portion of this Warrant from time to time upon the books to be maintained by the Company for that purpose, upon surrender hereof for transfer, properly endorsed or accompanied by appropriate instructions for transfer and such other documents as may be reasonably required by the Company, including, if required by the Company, an opinion of its counsel reasonably satisfactory to the Company to the effect that such transfer is exempt from the registration requirements of the Act, to establish that such transfer is being made in accordance with the terms hereof, and a new Warrant shall be issued to the transferee for the portion of this Warrant so transferred (and, if applicable, a new Warrant shall be issued to the Holder for any portion not transferred) and the surrendered Warrant shall be canceled by the Company.

ARTICLE 5. HOLDER REPRESENTATION

The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Shares or any part thereof in violation of the Act or any applicable state securities law, except pursuant to sales registered or exempted under the Act. The Holder acknowledges that the Shares acquired upon the exercise of this Warrant will have restrictions upon resale imposed by state and federal securities laws.

ARTICLE 6. MISCELLANEOUS

6.1. No Rights as Stockholder Until Exercise . This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company with respect to the Shares issuable upon exercise hereof prior to such exercise as set forth in Section 1.

6.2. Loss or Destruction of this Warrant . Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of indemnity reasonably satisfactory to the Company, and upon surrender of this Warrant, if mutilated, the Company will execute and deliver, without charge, a new Warrant of like tenor.

6.3. Amendment . This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder. This Warrant also may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.

6.4. Successors and Assigns . Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder.

6.5. Ownership of this Warrant and Shares . The Company may deem and treat the person in whose name this Warrant is registered as the holder and owner hereof (notwithstanding any notations of ownership or writing thereon made by anyone other than the Company) for all purposes.

6.6. Notices . Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Warrant shall be in writing and shall be deemed to have been duly given (a) when hand delivered to the other party; (b) when sent by email as set forth on the signature page hereto if sent between 8:00 a.m. and 5:00 p.m. recipient’s local time on a business day, or on the next business day if sent other than between 8:00 a.m. and 5:00 p.m. recipient’s local time on a business day; (c) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party as set forth on the signature page hereto; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth on the signature page hereto with next business day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. A party may change or supplement the addresses applicable hereunder, or designate additional addresses, for purposes of this Section 6.6 by giving the other party written notice of the new address in the manner set forth above.

6.7. Binding Effects; Benefits . This Warrant shall inure to the benefit of and shall be binding upon the Company and the Holder and their respective heirs, legal representatives, successors and permitted assigns; provided however, that neither this Warrant nor any rights or obligations hereunder shall be assigned by the Holder other than pursuant to a transfer permitted in accordance with Article 4. Nothing in this Warrant, expressed or implied, is intended to or shall confer on any person other than the Company and the Holder, or their respective heirs, legal representatives, successors or permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Warrant.

6.8. Severability . Any term or provision of this Warrant which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the terms and provisions of this Warrant or affecting the validity or enforceability of any of the terms or provisions of this Warrant in any other jurisdiction.

6.9. Governing Law . This Warrant shall be governed by and construed in accordance with the laws of the State of California.

6.10. Headings . The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

6.11. Further Assurances . Each of the Company and the Holder shall do and perform all such further acts and things and execute and deliver all such other certificates, instruments and documents as the Company or the Holder may, at any time and from time to time, reasonably request in connection with the performance of any of the provisions of this Warrant.

IN WITNESS WHEREOF, Alphatec Holdings, Inc. has caused this Warrant to be executed by its officer thereunto duly authorized.


Alphatec Holdings, Inc.

By:
Name:
Title:


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APPENDIX 1

NOTICE OF EXERCISE

1. The undersigned hereby elects to purchase shares of Common Stock of Alphatec Holdings, Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full.

2. Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name as is specified below:

3. The undersigned represents it is acquiring the shares of Common Stock solely for its own account and not as a nominee for any other party and not with a view toward the resale or distribution thereof except in compliance with applicable securities laws.

(Signature)

(Date)

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this “ Agreement ”) is made as of October 2, 2017 by and between Alphatec Holdings, Inc., a Delaware corporation (the “ Company ”), and the individual listed on the signature page attached hereto under the heading “Purchaser” (“ Purchaser ”).

WHEREAS, on the terms and subject to the conditions set forth herein, Purchaser desires to subscribe for and purchase, and the Company desires to sell to Purchaser, (a) that number of shares of common stock, par value $0.0001 per share, of the Company (the “ Shares ”) set forth below Purchaser’s signature hereto and (b) that number of common stock purchase warrants set forth below Purchaser’s signature hereto, which warrants shall (i) be issued pursuant to a Warrant Agreement in substantially the form of Exhibit A hereto (the “ Warrant Agreement ”), (ii) have an exercise price equal to $5.00 per Share, and (iii) shall be first exercisable on the six month anniversary of the issuance date of such warrants (collectively, the “ Securities ”), for the purchase price set forth below Purchaser’s signature hereto (the purchase price to be paid by Purchaser herein referred to as the “ Purchase Price ”).

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

SECTION 1. Issuance of Securities . On the terms and subject to the conditions contained herein, at the Closing, Purchaser agrees to purchase, and the Company agrees to issue, the Securities at the Purchase Price. On the terms and subject to the conditions contained herein, at the Closing, Purchaser shall deliver the Purchase Price to the Company in immediately available funds by wire transfer to an account designated by the Company. The consummation of the purchase and sale of the Securities hereunder (the “ Closing ”) shall take place at a mutually agreed time and on a mutually agreed date on or before January 1, 2018 (the “ Closing Date ”) following the satisfaction or waiver of the conditions set forth in Sections 4 and 5 below at the offices of the Company.

SECTION 2. Representations and Warranties of the Purchaser . As a material inducement to the Company to enter into this Agreement, Purchaser represents and warrants to the Company as of the date hereof and as of the Closing Date, that:

(a) Purchaser has full right, capacity and power to execute and deliver this Agreement and any other agreements and instruments contemplated hereby to which Purchaser is a party, and to perform his obligations hereunder and thereunder. This Agreement and all other agreements and instruments contemplated hereby to which Purchaser is or will become a party have been (or, when executed, will be) duly executed and delivered by or on behalf of Purchaser and, assuming due execution by other parties, constitute legal, valid and binding agreements, enforceable against Purchaser in accordance with their terms, except as such enforceability may be limited by (i) general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies and (ii) public policy underlying any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification, contribution or exculpation.

(b) The execution, delivery and performance of this Agreement and any other agreements and instruments contemplated hereby to which Purchaser is a party and the fulfillment of and compliance with the respective terms hereof and thereof by Purchaser, do not and will not (i) violate any requirements of any material obligation of Purchaser, or (ii) result in or constitute (with or without the giving of notice, lapse of time or both) any default or event of default under any such material obligation of Purchaser, or give rise to a right of termination of, or accelerate the performance required by, any terms of any such material obligation or (iii) violate any statute, law ordinance, rule, regulation or order of any court or governmental authority or any judgment, order or decree (U.S. federal, state or local or foreign) applicable to Purchaser.

(c) The Securities to be received by Purchaser will be acquired by Purchaser for investment only for Purchaser’s own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof in violation of applicable U.S. federal or state or foreign securities laws. Purchaser has no current intention of selling, granting participation in or otherwise distributing the Securities in violation of applicable U.S. federal or state or foreign securities laws. Purchaser does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participation to such person or entity, or to any third person or entity, with respect to any of the Securities, in each case, in violation of applicable U.S. federal or state or foreign securities laws.

(d) Purchaser understands that the offer and sale of the Securities have not been registered under the Securities Act of 1933 as amended (the “ Securities Act ”) or any applicable U.S. state or foreign securities laws, and that the Securities are being issued in reliance on an exemption from registration, which exemption depends upon, among other things, the bona fide nature of the investment intent and the accuracy of Purchaser’s representations as expressed herein.

(e) Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchaser’s investment. Purchaser is a sophisticated investor, has relied upon independent investigations made by Purchaser and, to the extent believed by Purchaser to be appropriate, Purchaser’s representatives, including Purchaser’s own professional, tax and other advisors, and is making an independent decision to invest in the Securities. Purchaser has been furnished with such documents, materials and information that Purchaser deems necessary or appropriate for evaluating an investment in the Company, and Purchaser has read carefully such documents, materials and information and understands and has evaluated the types of risks involved with a purchase of the Securities. Purchaser has not relied upon any representations or other information (whether oral or written) from the Company or its respective stockholders, directors, officers or affiliates, or from any other person or entity, in connection with Purchaser’s investment in the Securities. Purchaser acknowledges that the Company has not given any assurances with respect to the tax consequences of the acquisition, ownership and disposition of the Securities.

(f) Purchaser has had, prior to Purchaser’s execution of this Agreement, the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the transactions contemplated by this Agreement and Purchaser’s investment in the Securities and to obtain additional information necessary to verify the accuracy of any information furnished to Purchaser or to which Purchaser had access. Purchaser is satisfied with respect to any of the foregoing matters.

(g) Purchaser acknowledges that Purchaser has had the opportunity to seek legal advice from, and has received legal advice from, legal counsel on this Agreement, the transactions contemplated hereby and all documents, materials and information that Purchaser has requested or read relating to an investment in the Securities and confirms that Purchaser is satisfied with respect to any of the foregoing matters.

(h) Purchaser understands that no U.S. federal or state or foreign agency has passed upon this investment or upon the Company, or upon the accuracy, validity or completeness of any documentation provided to Purchaser in connection with the transactions contemplated by this Agreement, nor has any such agency made any finding or determination as to this investment.

(i) Purchaser understands that: (i) the Securities have not been and are not being registered under the Securities Act or any applicable U.S. state or foreign securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or (B) an exemption exists permitting such Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance on Rule 144 promulgated by the Securities and Exchange Commission (“ Rule 144 ”) may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder; and (iii) neither the Company nor any other person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

(j) Purchaser understands that (i) the Securities must be held indefinitely and Purchaser must continue to bear the economic risk of the investment in the Securities unless such Share is subsequently registered under the Securities Act or an exemption from such registration is available; (ii) Purchaser is prepared to bear the economic risk of this investment for an indefinite period of time; and (iii) the Securities are characterized as “restricted securities” under the U.S. federal securities laws.

(k) Purchaser understands that this investment is not recommended for investors who have any need for a current return on this investment or who cannot bear the risk of losing their entire investment. In that regard, Purchaser understands that Purchaser’s investment in the Securities involves a high degree of risk of loss of Purchaser’s investment therein, and that Purchaser may lose the entire amount of Purchaser’s investment. Purchaser acknowledges that: (i) Purchaser has adequate means of providing for Purchaser’s current needs and possible personal contingencies and has no need for liquidity in this investment; (ii) Purchaser’s commitment to investments which are not readily marketable is not disproportionate to Purchaser’s net worth; and (iii) Purchaser’s investment in the Securities will not cause Purchaser’s overall financial commitments to become excessive.

SECTION 3. Representations and Warranties of the Company. The Company represents and warrants to Purchaser as of the date hereof and as of the Closing Date, that:

(a) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, and has the requisite corporate power and authority to own its properties and to carry on its business as now being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing could not reasonably be expected to have a material adverse effect on any of: (i) the business, properties, assets, operations, results of operations or financial condition of the Company or (ii) the authority or ability of the Company to perform its obligations hereunder.

(b) The Company has full right, capacity and power to execute and deliver this Agreement and any other agreements and instruments contemplated hereby to which the Company is a party, and to perform its obligations hereunder and thereunder. This Agreement and all other agreements and instruments contemplated hereby to which the Company is or will become a party have been (or, when executed, will be) duly executed and delivered by or on behalf of the Company and, assuming due execution by other parties, constitute legal, valid and binding agreements, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by (i) general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies and (ii) public policy underlying any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification, contribution or exculpation.

(c) Upon issuance of the Shares by the Company at the Closing and payment in full by Purchaser as provided above, the Shares will be duly authorized and validly issued and will be fully paid and non-assessable, and upon issuance of any Shares upon exercise of the common stock purchase warrants issued hereunder and payment in full of the exercise price thereof, the Shares issued upon exercise of such warrant will be duly authorized and validly issued and will be fully paid and non-assessable.

SECTION 4. Conditions to Company ’ s Obligation to Close . The Company’s obligation to issue and sell the Securities at the Closing is subject to the fulfillment on or before the Closing of the following conditions, unless waived by the Company:

(a) Representations and Warranties . The representations and warranties made by Purchaser in Section 2 shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 2 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date of this Agreement and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specific date).

(b) Covenants . All covenants, agreements and conditions contained in the Agreements to be performed by Purchaser on or prior to the date of the Closing shall have been performed or complied with as of the date of the Closing.

(c) Compliance with Securities Laws . The Company shall be satisfied that the offer and sale of the Securities shall be qualified or exempt from registration or qualification under all applicable federal and state securities laws (including receipt by the Company of all necessary blue sky law permits and qualifications required by any state, if any).

SECTION 5. Conditions to Purchasers Obligations to Close. Purchaser’s obligation to purchase Securities at the Closing is subject to the fulfillment on or before the Closing of each of the following conditions, unless waived by Purchaser:

(a) Representations and Warranties . The representations and warranties made by the Company in Section 3 shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date of this Agreement and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specific date).

(b) Covenants . All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing shall have been performed or complied with as of the date of the Closing.

(c) Blue Sky . The Company shall have obtained all necessary Blue Sky law permits and qualifications, or have the availability of exemptions therefrom, required by any state for the offer and sale of the Securities.

(d) Qualifications . All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state or of any other person that are required in connection with the issuance and sale of the Securities pursuant to this Agreement (and except for such as may be properly filed subsequent to the Closing) under applicable laws, regulations, rules or listing requirements shall be obtained and effective as of the Closing.

(e) Authorizations. On or prior to the Closing Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by Purchaser, in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the state of its incorporation, other than Section 203 of the Delaware General Corporation Law, that is or could become applicable to P:urchaser as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and Purchaser’s ownership of the Securities.

SECTION 6. Miscellaneous.

(a) Entire Agreement . This Agreement and the Warrant Agreement supersede all other prior oral or written agreements between Purchaser, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the Warrant Agreement contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters.

(b) Binding Effect; Assignability; Benefit . This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party hereto without the consent of the other party. Nothing in this Agreement is intended to confer on any person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

(c) Notices . Any notice or other communication provided for herein or given hereunder to a party hereto must be in writing, and shall be deemed to have been given (i) when personally delivered or delivered by email with confirmation of delivery, (ii) one (1) business day after deposit with Federal Express or similar overnight courier service, or (iii) three (3) business days after being mailed by first class mail, return receipt requested. A notice shall be addressed, as follows:

if to the Company, to:

5818 El Camino Real

Carlsbad, CA 92008

Attention: General Counsel

Email: chunsaker@alphatecspine.com

if to Purchaser, to the address set forth below Purchaser’s signature hereto.

or to such other address or e-mail address as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed received on the next succeeding business day in the place of receipt.

(d) Waiver; Amendment; Termination . No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. No provision of this Agreement may be amended or otherwise modified except by an instrument in writing executed by the parties hereto. This Agreement may be terminated only by an instrument in writing executed by the parties hereto.

(e) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict or choice of law provisions thereof that would give rise to the application of the domestic substantive law of any other jurisdiction.

(f) Jurisdiction . In addition, each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the federal and state courts located in San Diego, California in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement; (ii) agrees that he, she or it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court; (iii) agrees that he, she or it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the federal or state courts located in San Diego, California; and (iv) to the fullest extent permitted by law, consents to service being made through the notice procedures set forth in Section 6(c). Each of the parties hereto hereby agrees that, to the fullest extent permitted by law, service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 6(c) shall be effective service of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby. Each of the parties hereto waives any right to a trial by jury in any such suit or proceeding.

(g) No Financial Advisor, Placement Agent, Broker or Finder . Each party represents and warrants to the other that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. Each party shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement agent, broker or finder engaged by such party relating to or arising out of the transactions contemplated hereby. Each party shall pay, and hold the other party harmless against, any liability, loss or expense (including, without limitation, attorneys’ fees and out of pocket expenses) arising in connection with any such claim.

(h) No Guarantee of Benefit or Gain . Purchaser acknowledges that the Company does not guarantee any benefit or a gain to Purchaser in connection with the Securities. Purchaser acknowledges that Purchaser is duly aware of the risks involved in investing in securities of the Company.

(i) No Right to Future Benefits . Purchaser acknowledges that the opportunity to purchase the Securities and this Agreement do not constitute an acquired right. The Company, in its sole discretion, maintains the right to make, or not to make, additional Securities available for purchase.

(j) Counterparts; Effectiveness . This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Any facsimile or electronic copies hereof or signature hereon shall, for all purposes, be deemed originals. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by the other party hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

(k) Severability . In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby.

(l) No Strict Construction . The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

(m) Further Assurances . Each party hereto agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.


Company		Purchaser

ALPHATEC HOLDINGS, INC.		/s/ P ATRICK M ILES
		Name: Patrick Miles
By:	/s/ T ERRY M. R ICH	Number of Shares:	1,327,434
Name:	Terry M. Rich
Title:	Chief Executive Officer	Purchase Price:	$2.26 per share, for an aggregate
			Purchase Price of $3,000,000.84

		Number of Warrants:	1,327,434



						Address:


						Email:

Exhibit 10.2

SECURITIES PURCHASE AGREEMENT

WHEREAS, on the terms and subject to the conditions set forth herein, Purchaser desires to subscribe for and purchase, and the Company desires to sell to Purchaser, that number of shares of common stock, par value $0.0001 per share, of the Company (the “ Shares ”) set forth below Purchaser’s signature hereto (the “ Securities ”), for the purchase price set forth below Purchaser’s signature hereto (the purchase price to be paid by Purchaser herein referred to as the “ Purchase Price ”).

Purchaser has been furnished with such documents, materials and information that Purchaser deems necessary or appropriate for evaluating an investment in the Company, and Purchaser has read carefully such documents, materials and information and understands and has evaluated the types of risks involved with a purchase of the Securities. Purchaser has not relied upon any representations or other information (whether oral or written) from the Company or its respective stockholders, directors, officers or affiliates, or from any other person or entity, in connection with Purchaser’s investment in the Securities. Purchaser acknowledges that the Company has not given any assurances with respect to the tax consequences of the acquisition, ownership and disposition of the Securities.

SECTION 3. Representations and Warranties of the Company. The Company represents and warrants to Purchaser as of the date hereof and as of the Closing Date, that:

have been (or, when executed, will be) duly executed and delivered by or on behalf of the Company and, assuming due execution by other parties, constitute legal, valid and binding agreements, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by (i) general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies and (ii) public policy underlying any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification, contribution or exculpation.

SECTION 6. Miscellaneous.

(a) Entire Agreement . This Agreement supersede all other prior oral or written agreements between Purchaser, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters.

if to the Company, to:

5818 El Camino Real

Carlsbad, CA 92008

Attention: General Counsel

Email: chunsaker@alphatecspine.com

if to Purchaser, to the address set forth below Purchaser’s signature hereto.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.


Company		Purchaser

ALPHATEC HOLDINGS, INC.		/s/ Q UENTIN B LACKFORD
		Name: Quentin Blackford

By:	/s/ T ERRY M. R ICH	Number of Shares:	No less than 221,682 Shares and
Name:	Terry M. Rich		no more than 442,478 Shares
Title:	Chief Executive Officer

		Purchase Price:	$2.26 per share, for an aggregate
			Purchase Price of no less than
			$501,001.32 and no more than $1,000,000.28



						Address:


						Email:

Exhibit 10.3

VESTING ACCELERATION AGREEMENT

THIS VESTING ACCELERATION AGREEMENT (this “ Agreement ”), dated as of October 1, 2017 (the “ Effective Date ”), is entered into by and between Alphatec Holdings, Inc. (the “ Company ”), and Stephen O’Neil (“ Director ”).

WHEREAS, the Company and Director currently are parties to several agreements related to the Company’s equity that are listed on Exhibit A (the “ Equity Agreements ”); and

WHEREAS, the Company has agreed to modify the Equity Agreements as set forth in this Agreement following the departure of the Director from the Company’s Board of Directors.

NOW THEREFORE, for consideration duly given, the undersigned agree to the following:

1. Accelerated Vesting of Equity Agreements . As of October 1, 2017 (the “ Departure Date ”), all outstanding options to purchase Company common stock and any restricted stock (each separate award is an “ Equity Interest ”) held by Director as of the Effective Date shall become vested and exercisable on the Departure Date.

2. Extension of Exercise Term . The term during which Director may exercise any Equity Interest consisting of a stock option or other exercisable Equity Interest shall be extended until the earlier of: (i) October 1, 2019 (or the following business day if such day is not a business day of the Company), or (ii) the expiration date that would apply to such stock option or other exercisable Equity Interest.

3. Miscellaneous .

a. Effect on Existing Equity Agreements . This Agreement shall supersede the Equity Agreements with respect to the subject matter hereof. The Equity Agreements shall otherwise remain in full force and effect with respect to any subject matter not covered by this Agreement.

b. Successors . This Agreement is personal to Director and, without the prior written consent of the Company, shall not be assignable by Director. Notwithstanding the foregoing, in the event of the Director’s death following the Departure Date, this Agreement shall remain in full force and effect and the personal representative of the Director’s estate shall be entitled to exercise any Equity Interest consisting of a stock option or other exercisable Equity Interest in accordance with Section 2 of this Agreement. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

c. Amendment; Waiver; Survival . No provisions of this Agreement may be amended, modified, or waived unless agreed to in writing and signed by Director and by a duly authorized officer of the Company. No waiver by either party of any breach by the other party of any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

d. Governing Law and Venue . The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California without

regard to its conflicts of law principles. The sole and exclusive venue for any actions filed with a court shall be the state or Federal courts located in San Diego County, California.

e. Validity . The invalidity or unenforceability of any provision or provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect.

f. Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.

g. Entire Agreement . This Agreement sets forth the final and entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by the Company and Director, or any representative of the Company or Director, with respect to the subject matter hereof.

The undersigned do hereby agree to be bound by the terms and conditions of this Agreement.


ALPHATEC HOLDINGS, INC.		STEPHEN O’NEIL

By:	/s/ Terry Rich	By:	/s/ Stephen O’Neil
Name:	Terry Rich	Name:	Stephen O’Neil
Title:	CEO

Exhibit A

Equity Agreements


Agreement Date	Agreement Type	Shares		Exercise Price		Vested Shares		Unvested Shares
7/31/2008	NQ Option		625	$	57.36		625		0
8/04/2009	NQ Option		625	$	53.40		625		0
11/04/2010	NQ Option		625	$	27.72		625		0
7/27/2011	NQ Option		2,083	$	34.32		2,083		0
7/25/2012	NQ Option		1,764	$	20.28		1,764		0
7/26/2013	NQ Option		1,674	$	28.44		1,674		0
7/29/2014	NQ Option		3,188	$	16.08		3,188		0
2/25/2015	NQ Option		3,401	$	16.20		2,268		1,133
12/12/2016	NQ Option		14,610	$	4.43		14,610		0
4/25/2017	NQ Option		28,090	$	1.98		0		28,090
4/25/2017	Restricted Stock		18,939		N/A		0		18,939

Exhibit 10.4

THIRD AMENDMENT TO THE

ALPHATEC HOLDINGS, INC.

2016 EMPLOYMENT INDUCEMENT AWARD PLAN

This Third Amendment (this “ Amendment ”) to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan (as amended and/or restated to date, the “ Plan ”) is made and adopted by Alphatec Holdings, Inc. (the “ Company ”), a corporation organized under the laws of State of Delaware.

1. Section 3(a) of the Plan is hereby amended to read as follows:

(a)

The number of Shares which may be issued from time to time pursuant to this Plan shall be 2,550,000 shares of Common Stock.

2. This Amendment is effective as of October 2, 2017.

3. This Amendment shall be and is hereby incorporated in and forms a part of the Plan. All other terms and provisions of the Plan shall remain unchanged except as specifically modified herein. The Plan, as amended by this Amendment, is hereby ratified and confirmed.

* * * * * * * *

I hereby certify that the foregoing Amendment was duly adopted by the Board of Directors of the Company on October 2, 2017.


ALPHATEC HOLDINGS, INC.

By:		/s/ Terry M. Rich
Name:		Terry M. Rich
Its:		Chief Executive Officer

Exhibit 99.1

FOR IMMEDIATE RELEASE

Alphatec Accelerates Business Transformation with

Additional Spine-Experienced Leadership Appointments

•

Patrick Miles to lead company as Executive Chairman

•

Quentin Blackford appointed to Board of Directors

•

Miles and Blackford to make equity investments totaling more than $3.5 million

CARLSBAD, Calif., October 2, 2017 — Alphatec Holdings, Inc. (Nasdaq: ATEC), a provider of innovative spine surgery solutions with a mission to improve patient lives through the relentless pursuit of superior outcomes, announced that Patrick Miles has been appointed as Executive Chairman and Quentin Blackford as a member of the Board, effective today. Miles will lead the organization, and Terry Rich, Alphatec‘s Chief Executive Officer, will continue in his role, reporting to Miles. In conjunction with these appointments, Miles and Blackford are personally investing in Alphatec common stock in an aggregate amount in excess of $3.5 million.

“Today’s announcement marks continued execution of our vision to reposition Alphatec as the most respected, fastest-growing company in U.S. spine,” said Mr. Rich. “Pat and Quentin have decades of industry experience and well-deserved reputations that speak for themselves. Their personal financial commitments are a powerful testament to their personal commitments to increase shareholder value; a conviction that has been expressed by our entire leadership team.”

Rich continued, “Pat is a globally recognized spine visionary and a proven driver of market-share expansion. His passionate belief that our most important business is in the operating room aligns absolutely with the Alphatec value system, and positions him extraordinarily well to lead the organization. I have great confidence that Pat’s influence on daily operations, product development decisions, and surgeon engagements will accelerate the business transformation that we are driving. I look forward to partnering with him to advance Alphatec’s growth trajectory by executing our mission to improve patient lives.”

Miles brings a wealth of orthopedics and innovation expertise, with over 25 years of industry experience, and as a named inventor on close to 100 industry patents. In his capacity as Executive Chairman, he will be fully engaged, focusing primarily on further defining and implementing Alphatec’s strategic initiatives, expanding and fortifying the Company’s relationships with surgeon customers, and leading Alphatec’s new technology development. Miles joins Alphatec following a 17-year tenure at NuVasive, Inc., where he was a central figure in the company’s expansion from a start-up business to a global spine corporation with close to $1 billion in revenues. He most recently served as NuVasive’s Vice Chairman; prior to that, he was its President and Chief Operating Officer, and President of Global Products and Services. Before joining

NuVasive, Mr. Miles held sales and marketing roles with Medtronic Sofamor Danek and Smith & Nephew.

“I am thrilled to work closely with Terry once again to reposition Alphatec as the next great growth story in spine. Together, we share roughly 50 years of spine and orthopedics expertise — a level unrivaled in spine leadership — which will guide us in determining how best to serve this market. I look forward to driving toward improved surgical outcomes and market share expansion,” said Miles. “Alphatec has a broad and impressive product portfolio, improving surgeon engagement, and great access to hospitals; all of which position the Company exceptionally well to take market share in today’s environment. This is a high-caliber team driving an important mission, and I feel incredibly lucky to be a part of it.”

Blackford joins the Alphatec Board of Directors with 17 years of experience in the medical device industry. He is currently Executive Vice President and Chief Financial Officer of DexCom, Inc. Prior to joining Dexcom, Blackford was Executive Vice President, Chief Financial Officer, Head of Strategy and Corporate Integrity for NuVasive. In that role, he led the Finance, Strategy and Corporate Development, Compliance and Regulatory functions. Before joining NuVasive in 2009, Mr. Blackford held various leadership roles with Zimmer Holdings, Inc., including Director of Finance and Controller for Zimmer Dental.

“Alphatec has assembled an exceptional team of spine industry leaders who are already transforming the business. I am excited to help shape the Company’s strategic direction as Alphatec evolves into a leading spine player,” said Blackford.

In connection with these appointments, Mortimer Berkowitz III, Alphatec’s Chairman since December 2016, will transition into the role of Lead Director. In addition, Stephen O’Neil has resigned from his position as a member of the Company’s Board of Directors, effective immediately. Mr. Rich will also remain a key member of the Alphatec Board.

Mr. Berkowitz said, “I would like to thank Steve for his 12 years of dedicated service to Alphatec, and for being a trusted colleague and counselor. I also enthusiastically welcome Pat and Quentin to the Alphatec family, and thank Terry for his efforts in bringing them aboard. They share the optimism and the vision that we have for the future of this Company, and I look forward to serving with them in the Lead Director role.”

Inducement Award

As an inducement to accepting employment with the Company, and in accordance with applicable NASDAQ listing requirements, the Board of Directors has also approved an award to Mr. Miles of 1,000,000 restricted stock units (RSUs).

The RSUs will be granted following registration of the common stock underlying the RSUs and will vest in equal annual installments on each of the first three anniversaries of Mr. Miles’ date of employment if he remains continuously employed by Alphatec as of

such vesting date. In addition, the RSUs will fully vest upon a change in control of Alphatec.

The Board approved an amendment to Alphatec’s 2016 Employment Inducement Award Plan to increase the shares reserved for issuance thereunder by 1 million shares, effective October 2, 2017.

Equity Investments in Alphatec Common Shares

Mr. Miles has agreed to purchase 1.3 million shares of common stock and Mr. Blackford has agreed to purchase at least 220,000 shares of common stock and up to 440,000 shares of common stock, all at a purchase price of $2.26 per share (the consolidated closing bid price of Alphatec common shares on September 29, 2017), for gross proceeds to the Company of between $3.5 million and $4 million. The share purchases are expected to close on or before January 1, 2018. In connection with his purchase of Alphatec common stock, at the closing, Mr. Miles will also receive a five-year warrant to purchase up to 1.3 million shares of common stock at a purchase price of $5.00 per share which, if exercised, will generate additional gross proceeds to the Company of $6.6 million.

About Alphatec Holdings, Inc.

Alphatec Holdings, Inc., through its wholly owned subsidiary Alphatec Spine, Inc., is a medical device company that designs, develops, and markets spinal fusion technology products and solutions for the treatment of spinal disorders associated with disease and degeneration, congenital deformities, and trauma. The Company’s mission is to improve lives by providing innovative spine surgery solutions through the relentless pursuit of superior outcomes. The Company markets its products in the U.S. via independent sales agents and a direct sales force.

Additional information can be found at www.alphatecspine.com .

Forward Looking Statements

This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. The Company cautions investors that there can be no assurance that actual results or business conditions will not differ materially from those projected or suggested in such forward-looking statements as a result of various factors. Forward-looking statements include the references to the Company’s strategy in significantly repositioning the Alphatec brand and turning the Company into a growth organization. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to: the uncertainty of success in developing new products or products currently in the Company’s pipeline; the

uncertainties in the Company’s ability to execute upon its strategic operating plan; the uncertainties regarding the ability to successfully license or acquire new products, and the commercial success of such products; failure to achieve acceptance of the Company’s products by the surgeon community, including Battalion and Arsenal Deformity; failure to obtain FDA or other regulatory clearance or approval for new products, or unexpected or prolonged delays in the process; continuation of favorable third party reimbursement for procedures performed using the Company’s products; unanticipated expenses or liabilities or other adverse events affecting cash flow or the Company’s ability to successfully control its costs or achieve profitability; uncertainty of additional funding; the Company’s ability to compete with other competing products and with emerging new technologies; product liability exposure; an unsuccessful outcome in any litigation in which the Company is a defendant; patent infringement claims; claims related to the Company’s intellectual property and the Company’s ability to meet its financial obligations under its credit agreements and the Orthotec settlement agreement. The words “believe,” “will,” “should,” “expect,” “intend,” “estimate” and “anticipate,” variations of such words and similar expressions identify forward-looking statements, but their absence does not mean that a statement is not a forward-looking statement. A further list and description of these and other factors, risks and uncertainties can be found in the Company’s most recent annual report, and any subsequent quarterly and current reports, filed with the Securities and Exchange Commission. Alphatec disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law.

Investor/Media Contact:

Zack Kubow

The Ruth Group

(646) 536-7000

alphatec@theruthgroup.com

Company Contact:

Jeff Black

Executive Vice President and Chief Financial Officer

Alphatec Holdings, Inc.

(760) 431-9286

Investorrelations@alphatecspine.com