Alphatec Holdings, Inc. (Form: S-8, Received: 07/16/2019 06:02:37)

As filed with the Securities and Exchange Commission on July 15, 2019

Registration No. 333-_______

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Alphatec Holdings, Inc.

(Exact Name of Registrant as Specified in Its Charter)


Delaware		20-2463898
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, California 92008

(Address of Principal Executive Offices) (Zip Code)

Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan
Alphatec Holdings, Inc. 2016 Equity Incentive Plan

Alphatec Holdings, Inc. 2007 Employee Stock Purchase Plan

(Full Title of the Plan)

Craig E. Hunsaker, Esq.

EVP, People & Culture and General Counsel

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, California 92008

(Name and Address of Agent for Service)

(760) 431-9286

(Telephone Number, Including Area Code, of Agent For Service)

Copy to:

Joshua E. Little, Esq.

Durham Jones & Pinegar, P.C.

192 E. 200 N., Third Floor

St. George, Utah 84770

(435) 674-0400

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “ large accelerated filer, ” “ accelerated filer, ” “ smaller reporting company, ” and “ emerging growth company ” in Rule 12b-2 of the Exchange Act.


Large accelerated filer ☐	Accelerated filer ☐
Non-accelerated filer ☐	Smaller reporting company ☒
	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 7(a)(2)(B) of Securities Act. ☐

CALCULATION OF REGISTRATION FEE


Title of Securities To Be Registered	Amount To Be Registered	Proposed Maximum Offering Price Per Share ⁽²⁾	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, par value $0.0001 per share	400,000 shares (1)	$4.41 (2)	$1,764,000	$213.80
Common Stock, par value $0.0001 per share	4,000,000 shares (3)	$4.41 (2)	$17,640,000	$2,137.97
Common Stock, par value $0.0001 per share	750,000 shares (4)	$4.41 (2)	$3,307,500	$400.87
Total shares of Common Stock, par value $0.0001 per share	5,150,000 shares	-	$22,711,500	$2,752.64

(1)

Represents an additional 400,000 shares of common stock, par value $0.0001 per share ( “ Common Stock ” ) available for future issuance under the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan (the “ Inducement Plan ” ) pursuant to an amendment to the Inducement Plan approved by the Compensation Committee of the Board of Directors of Alphatec Holdings, Inc. (the “ Company ” ) on May 13, 2019. The maximum number of shares which may be sold upon the exercise of such options or issuance of stock-based awards granted under the Inducement Plan are subject to adjustment in accordance with certain anti-dilution and other provisions of the Inducement Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “ Securities Act ” ), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such anti-dilution and other provisions.

(2)

This estimate is made pursuant to Rules 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The Proposed Maximum Offering Price Per Share is $4.41, which is the average of the high and low prices for the Registrant ’ s common stock as reported on The Nasdaq Global Select Market on July 15, 2019.

(3)

Represents an additional 4,000,000 shares of Common Stock available for future issuance under the Alphatec Holdings, Inc. 2016 Equity Incentive Plan (the “ Equity Plan ”) pursuant to the amendment of the Equity Plan approved by the stockholders of the Company on June 12, 2019, which increased the shares of Common Stock available for issuance under the Equity Plan by 4,000,000. The maximum number of shares which may be sold upon the exercise of such options or issuance of stock-based awards granted under the Equity Plan are subject to adjustment in accordance with certain anti-dilution and other provisions of the Equity Plan. Accordingly, pursuant to Rule 416 under the Securities Act, this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such anti-dilution and other provisions.

(4) Represents an additional 750,000 shares of Common Stock available for future issuance under the Alphatec Holdings, Inc. Amended and Restated 2007 Employee Stock Purchase Plan (the “ Purchase Plan ” and together with the Inducement Plan and Equity Plan, the “ Plans ”), pursuant to an amendment of the Purchase Plan approved by the stockholders of the Company on June 12, 2019.

Proposed sales to take place as soon after the effective date of the registration statement as awards granted under the above-named Plans are granted, exercised and/or distributed.

EXPLANATORY NOTE

This Registration Statement registers the offer and sale of an additional aggregate 5,150,000 shares of Common Stock for issuance under the Plans. In accordance with Instruction E to Form S-8, the contents of the following prior registration statement on Form S-8, previously filed with respect to the Plans (the “Prior Registration Statements”), are hereby incorporated by reference:

•

With respect to the Inducement Plan, the Company previously registered (i) 350,000 shares of Common Stock on Form S-8 filed with the Securities and Exchange Commission (the “ Commission ” ) on October 5, 2016 (File No. 333-213981), (ii) 600,000 shares of Common Stock on Form S-8 filed with the Commission on December 12, 2016 (File No. 333-215036), (iii) 600,000 shares of Common Stock on Form S-8 filed with the Commission on March 30, 2017 (File No. 333-217055), (iv) 1,000,000 shares of Common Stock on Form S-8 filed with the Commission on October 24, 2017 (File No. 333-221084), and (v) 600,000 shares of Common Stock on Form S-8 filed with the Commission on May 21, 2018 (File No. 333-225080); and

•

With respect to the Equity Plan, the Company previously registered (i) 1,083,333 shares of Common Stock on Form S-8 filed with the Commission on October 5, 2016 (File No. 333-213981), and (ii) 5,000,000 shares of Common Stock on Form S-8 filed with the Commission on May 21, 2018 (File No. 333-225080); and

•

With respect to the Purchase Plan, the Company previously registered (i) 500,000 shares of Common Stock on Form S-8 filed with the Commission on May 12, 2017 (File No. 333-217901), (ii) 58,333 shares of Common Stock on Form S-8 filed with the Commission on March 31, 2017 (File No. 333-217055), (iii) 700,000 shares of Common Stock on May 6, 2016 (File No. 333-211182), (iv) 700,000 shares of Common Stock on Form S-8 filed with the Commission on March 5, 2015 (File No. 333-202504), (v) 1,500,000 shares of Common Stock on Form S-8 filed with the Commission on June 9, 2014 (File No. 333-19619), (vi) 700,000 shares of Common Stock filed with the Commission on March 12, 2013 (File No. 333-187189), (vii) 350,000 shares of Common Stock on Form S-8 filed with the Commission on November 7, 2007 (File No. 333-147212).

In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock pursuant to the Plans. The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

In accordance with the rules and regulations of the Commission, the information called for in Part I of Form S-8 is not being filed with or included in this Registration Statement or in a prospectus or prospectus supplement pursuant to Rule 424 of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Exhibits.

A list of exhibits included as part of this Registration Statement is set forth in the Exhibit Index to this Registration Statement and is incorporated herein by reference.

INDEX TO EXHIBITS FILED WITH FORM S-8 REGISTRATION STATEMENT


Exhibit Number	Exhibit Description	Filed with this Report	Incorporated by Reference herein from Form or Schedule	Filing Date	SEC File/Reg. Number
5.1	Opinion of Durham Jones & Pinegar, P.C., filed herewith	X

10.1	Alphatec Holdings, Inc. 2016 Equity Incentive Award Plan		Form S-8 (Exhibit 10.1)	10/05/16	333-213981

10.2	First Amendment to the Amended and Restated 2016 Equity Incentive Award Plan		Form 8-K (Exhibit 10.2)	05/18/18	000-52024

10.3	Second Amendment to the Amended and Restated 2016 Equity Incentive Award Plan		Form 10-Q (Exhibit 10.1)	11/09/18	000-52024

10.4	Third Amendment to the Amended and Restated 2016 Equity Incentive Award Plan		Form 8-K (Exhibit 10.2)	06/13/19	000-52024

10.5	Amended and Restated 2007 Employee Stock Purchase Plan		Form 8-K/A (Exhibit 10.1)	06/22/17	000-52024

10.6	First Amendment to the Amended and Restated 2007 Employee Stock Purchase Plan		Form 8-K (Exhibit 10.1)	06/13/19	000-52024

10.7	Alphatec Holdings, Inc. 2016 Employment Inducement Plan		Form S-8 (Exhibit 10.2)	10/05/16	333-213981

10.8	First Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan		Form S-8 (Exhibit 10.2)	12/12/16	333-215036

10.9	Second Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan		Form S-8 (Exhibit 10.2)	03/31/17	333-217055

10.10	Third Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan		Form 8-K (Exhibit 10.4)	10/2/17	000-52024

10.11	Fourth Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan		Form 8-K (Exhibit 10.9)	03/12/18	000-52024

10.11	Fifth Amendment to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan	X

23.1	Consent of Independent Registered Public Accounting Firm, Mayer Hoffman McCann P.C., filed herewith	X

23.3	Consent of Durham Jones & Pinegar, P.C. (included in Exhibit 5.1)	X

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carlsbad, State of California, on July 15, 2019.


ALPHATEC HOLDINGS, INC.

By:		/s/ Patrick S. Miles
		Patrick S. Miles
		Chairman and Chief Executive Officer

POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of Alphatec Holdings, Inc. (the “Company” ), hereby severally constitute and appoint Jeffrey G. Black and Craig E. Hunsaker, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated below, any and all amendments to this Registration Statement, and all other documents in connection therewith to be filed with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in such capacities to enable the Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:


Signature	Title(s)	Date

/s/ Patrick Miles Patrick Miles	Chairman and Chief Executive Officer (Principal Executive Officer)	July 15, 2019

/s/ Jeffrey G. Black Jeffrey G. Black	EVP, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	July 15, 2019

/s/ Evan Bakst Evan Bakst	Director	July 15, 2019

/s/ Mortimer Berkowitz III Mortimer Berkowitz III	Director	July 15, 2019

/s/ Quentin Blackford Quentin Blackford	Director	July 15, 2019

/s/ Jason Hochberg Jason Hochberg	Director	July 15, 2019

/s/ Karen McGinnis Karen McGinnis	Director	July 15, 2019

/s/ David H. Mowry David H. Mowry	Director	July 15, 2019

/s/ Jeffrey P. Rydin Jeffrey P. Rydin	Director	July 15, 2019

/s/ Ward W. Woods Ward W. Woods	Director	July 15, 2019

/s/ James L.L. Tullis James L.L. Tullis	Director	July 15, 2019

/s/ Donald A. Williams Donald A. Williams	Director	July 15, 2019

Exhibit 5.1

July 15, 2019

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, CA 92008

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special counsel to Alphatec Holdings, Inc., a Delaware corporation (the “ Company ”), in connection with the proposed issuance of 4,000,000 shares (the “ Plan Shares ”) of common stock, $0.0001 par value per share, of the Company (the “ Common Stock ”), pursuant to the Alphatec Ho ldings, Inc. 2016 Equity Incentive Plan (as amended, the “ Equity Plan ”), 400,000 shares (the “ Inducement Shares ”) of Common Stock pursuant to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan (as amended, the “ Inducement Plan ”), and 750,000 shares (the “ Purchase Shares ”, and together with Inducement Shares and Plan Shares, the “ Shares ”) of Common Stock pursuant to the Alphatec Holdings, Inc. Amended and Restated 2007 Employee Stock Purchase Plan (as amended, the “ Purchase Plan ”, and together with the Equity Plan and Inducement Plan, the “ Plans ” and each, a “ Plan ”). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “ Act ”), filed with the Securities and Exchange Commission (the “ Commission ”) on July 15, 2019 (the “ Registration Statement ”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as expressly stated herein with respect to the issuance of the Shares.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein only as to the General Corporation Law of the State of Delaware, as amended, and we express no opinion with respect to the applicability thereto, or the effect thereon, of any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.

In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as copies.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares have been issued by the Company against payment therefor, in the circumstances contemplated by the Plans, assuming in each case that the individual grants or awards under the Plans are duly authorized by all necessary corporate action and exercised in

Alphatec Holdings, Inc.

July 15, 2019

Page 2

accordance with the requirements of law, such corporate action and the Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by a ll necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. This opinion letter is rendered to you as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even if the change may affect the legal analysis, legal conclusion or other matters in this opinion letter.

We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Durham Jones & Pinegar, P.C.

Exhibit 10.11

FIFTH AMENDMENT TO THE

ALPHATEC HOLDINGS, INC.

2016 EMPLOYMENT INDUCEMENT AWARD PLAN

This Fifth 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. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan.

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 3,550,000 shares of Common Stock.”

2. This Amendment is effective as of May 13, 2019.

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 May 13, 2019.


ALPHATEC HOLDINGS, INC.

By:		/s/ Patrick S. Miles
Name:		Patrick S. Miles
Its:		Chief Executive Officer, President & Chairman

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Alphatec Holdings, Inc. 2016 Employment Inducement Award Plan, 2016 Equity Incentive Plan, and 2007 Employee Stock Purchase Plan of our report dated March 29, 2019, with respect to the consolidated financial statements of Alphatec Holdings, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 2018, filed with the Securities and Exchange Commission.

/s/ Mayer Hoffman McCann P.C.

San Diego, California

July 15, 2019

Member of Kreston International — a global network of independent accounting firms