Alphatec Spine, Inc.
Alphatec Holdings, Inc. (Form: 10-Q, Received: 11/06/2012 06:04:03)
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2012

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission file number 000-52024

ALPHATEC HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   20-2463898

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

5818 El Camino Real

Carlsbad, CA 92008

(Address of principal executive offices, including zip code)

(760) 431-9286

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

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

 

Large accelerated filer   ¨    Accelerated filer   x
Non-accelerated filer   ¨    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act)    Yes   ¨     No   x

As of October 31, 2012, there were 90,786,223 shares of the registrant’s common stock outstanding.

 

 

 


Table of Contents

ALPHATEC HOLDINGS, INC.

QUARTERLY REPORT ON FORM 10-Q

September 30, 2012

Table of Contents

 

          Page  
PART I – FINANCIAL INFORMATION   

Item 1

  

Financial Statements (Unaudited)

     3   
  

Condensed Consolidated Balance Sheets as of September 30, 2012 and December 31, 2011

     3   
  

Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2012 and 2011

     4   
  

Condensed Consolidated Statements of Comprehensive Income (Loss) for the three and nine months ended September 30, 2012 and 2011

     5   
  

Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2012 and 2011

     6   
  

Notes to Condensed Consolidated Financial Statements

     7   

Item 2

  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     17   

Item 3

  

Quantitative and Qualitative Disclosures About Market Risk

     26   

Item 4

  

Controls and Procedures

     26   
PART II – OTHER INFORMATION   

Item 1

  

Legal Proceedings

     27   

Item 1A

  

Risk Factors

     28   

Item 2

  

Unregistered Sales of Equity Securities and Use of Proceeds

     28   

Item 6

  

Exhibits

     29   

SIGNATURES

     30   

 

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PART I. FINANCIAL INFORMATION

 

Item 1. Financial Statements

ALPHATEC HOLDINGS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(UNAUDITED)

(In thousands, except for par value data)

 

     September 30,
2012
    December 31,
2011
 
Assets     

Current assets:

    

Cash and cash equivalents

   $ 25,941      $ 20,666   

Accounts receivable, net

     37,565        41,711   

Inventories, net

     48,344        45,916   

Prepaid expenses and other current assets

     7,344        6,888   

Deferred income tax assets

     2,576        1,248   
  

 

 

   

 

 

 

Total current assets

     121,770        116,429   

Property and equipment, net

     31,806        31,476   

Goodwill

     168,499        168,609   

Intangibles, net

     41,063        47,144   

Other assets

     2,528        3,034   
  

 

 

   

 

 

 

Total assets

   $ 365,666      $ 366,692   
  

 

 

   

 

 

 
Liabilities and Stockholders’ Equity     

Current liabilities:

    

Accounts payable

   $ 17,529      $ 17,390   

Accrued expenses

     30,886        32,583   

Deferred revenue

     3,069        2,768   

Current portion of long-term debt

     1,720        4,396   
  

 

 

   

 

 

 

Total current liabilities

     53,204        57,137   

Long-term debt, less current portion

     36,031        23,802   

Other long-term liabilities

     11,130        12,997   

Deferred income tax liabilities

     3,647        3,825   

Redeemable preferred stock, $0.0001 par value; 20,000 authorized at September 30, 2012 and December 31, 2011; 3,319 shares issued and outstanding at both September 30, 2012 and December 31, 2011

     23,603        23,603   

Commitments and contingencies

    

Stockholders’ equity:

    

Common stock, $0.0001 par value; 200,000 authorized at September 30, 2012 and December 31, 2011; 90,369 and 89,362 shares issued and outstanding at September 30, 2012 and December 31, 2011, respectively

     9        9   

Treasury stock, 19 shares

     (97     (97

Additional paid-in capital

     388,546        386,224   

Accumulated other comprehensive loss

     (2,307     (2,812

Accumulated deficit

     (148,100     (137,996
  

 

 

   

 

 

 

Total stockholders’ equity

     238,051        245,328   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 365,666      $ 366,692   
  

 

 

   

 

 

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

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ALPHATEC HOLDINGS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(UNAUDITED)

(in thousands, except per share amounts)

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2012     2011     2012     2011  

Revenues

   $ 46,839      $ 47,619      $ 143,535      $ 148,201   

Cost of revenues

     16,844        17,001        50,773        54,959   

Amortization of acquired intangible assets

     362        411        1,114        1,223   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     29,633        30,207        91,648        92,019   

Operating expenses:

        

Research and development

     3,216        3,858        11,003        13,653   

Sales and marketing

     17,778        19,145        55,843        57,065   

General and administrative

     9,758        8,627        28,714        26,707   

Amortization of acquired intangible assets

     491        545        1,574        1,629   

Transaction related expenses

     364        —          364        —     

Restructuring expenses

     —          394        —          993   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     31,607        32,569        97,498        100,047   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating loss

     (1,974     (2,362     (5,850     (8,028

Other income (expense):

        

Interest income

     33        48        108        103   

Interest expense

     (774     (725     (5,060     (2,292

Other income (loss), net

     208        202        (61     958   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense)

     (533     (475     (5,013     (1,231
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from continuing operations before taxes

     (2,507     (2,837     (10,863     (9,259

Income tax benefit

     (38     (1,533     (759     (3,044
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

   $ (2,469   $ (1,304   $ (10,104   $ (6,215
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per common share:

        

Basic and diluted net loss per share

   $ (0.03   $ (0.01   $ (0.11   $ (0.07
  

 

 

   

 

 

   

 

 

   

 

 

 

Weighted-average shares used in computing net loss per share:

        

Basic and diluted

     89,503        88,829        89,222        88,757   
  

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

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ALPHATEC HOLDINGS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

(UNAUDITED)

(in thousands)

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2012     2011     2012     2011  

Net loss

   $ (2,469   $ (1,304   $ (10,104   $ (6,215

Foreign currency translation adjustments

     4,825        (6,980     505        5,296   
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive income (loss)

   $ 2,356      $ (8,284   $ (9,599   $ (919
  

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to unaudited condensed consolidated financial statements.

 

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ALPHATEC HOLDINGS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(UNAUDITED)

(in thousands)

 

     Nine Months Ended September 30,  
     2012     2011  

Operating activities:

    

Net loss

   $ (10,104   $ (6,215

Adjustments to reconcile net loss to net cash provided by operating activities:

    

Depreciation and amortization

     17,423        14,939   

Stock-based compensation

     2,210        1,928   

Interest expense related to amortization of debt discount and debt issuance costs

     849        281   

Provision for doubtful accounts

     858        594   

Provision for excess and obsolete inventory

     3,980        3,365   

Deferred income tax benefit

     (1,507     (2,352

Other non-cash items

     1,890        —     

Changes in operating assets and liabilities:

    

Accounts receivable

     3,368        (1,919

Inventories

     (5,675     (140

Prepaid expenses and other current assets

     1,194        474   

Other assets

     714        828   

Accounts payable

     162        995   

Accrued expenses and other

     (3,660     (1,643

Deferred revenues

     189        (26
  

 

 

   

 

 

 

Net cash provided by operating activities

     11,891        11,109   

Investing activities:

    

Cash paid for acquisition of Brazilian subsidiary

     —          (620

Purchases of property and equipment

     (12,010     (8,033

Purchase of intangible assets

     (825     (445
  

 

 

   

 

 

 

Net cash used in investing activities

     (12,835     (9,098

Financing activities:

    

Exercise of stock options

     16        104   

Borrowings under lines of credit

     82,881        1,662   

Repayments under lines of credit

     (65,225     (3,114

Principal payments on capital lease obligations

     (303     (114

Principal payments on notes payable

     (11,877     (1,523
  

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     5,492        (2,985
  

 

 

   

 

 

 

Effect of exchange rate changes on cash and cash equivalents

     727        (50
  

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     5,275        (1,024

Cash and cash equivalents at beginning of period

     20,666        23,168   
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 25,941      $ 22,144   
  

 

 

   

 

 

 

Supplemental cash flow information:

    

Cash paid for interest

   $ 1,799      $ 1,828   

Cash paid for income taxes

   $ 633      $ 303   

Purchases of property and equipment in accounts payable

   $ 3,199      $ 2,241   

Property and equipment purchased under capital lease

   $ 1,650      $ 50   

See accompanying notes to unaudited condensed consolidated financial statements.

 

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ALPHATEC HOLDINGS, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

1. The Company and Basis of Presentation

The Company

Alphatec Holdings, Inc. (“Alphatec”, “Alphatec Holdings” or the “Company”), through its wholly owned subsidiary, Alphatec Spine, Inc. and its subsidiaries (“Alphatec Spine”) designs, develops, manufactures and markets products for the surgical treatment of spine disorders, primarily focused on the aging spine. In addition to its U.S. operations, the Company also markets its products in over 50 international markets through its affiliate, Scient’x S.A.S. and its subsidiaries (“Scient’x”), via a direct salesforce in France, Italy and the United Kingdom and via independent distributors in the rest of Europe, the Middle East and Africa. In South America and Latin America the Company conducts its operations through its Brazilian subsidiary, Cibramed Productos Medicos. In Asia and Australia, the Company markets its products through its subsidiary, Alphatec Pacific, Inc. and its subsidiaries (“Alphatec Pacific”) via a direct sales force and independent distributors, and through Scient’x’s distributors in other parts of Asia and Australia.

Basis of Presentation

The accompanying condensed consolidated balance sheet as of December 31, 2011, which has been derived from audited financial statements, and the unaudited interim condensed consolidated financial statements have been prepared by the Company in accordance with U.S. generally accepted accounting principles (“GAAP”) and the rules and regulations of the Securities and Exchange Commission (“SEC”) related to a quarterly report on Form 10-Q. Certain information and note disclosures normally included in annual audited financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to those rules and regulations, although the Company believes that the disclosures made in this quarterly report on Form 10-Q are adequate to make the information not misleading. The interim unaudited financial condensed consolidated statements reflect all adjustments which, in the opinion of management, are necessary for a fair statement of the financial position and results of operations for the periods presented. All such adjustments are of a normal and recurring nature. These unaudited condensed consolidated financial statements should be read in conjunction with the Company’s audited financial statements for the year ended December 31, 2011, which are included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 that was filed with the SEC on March 5, 2012.

Operating results for the three and nine months ended September 30, 2012 are not necessarily indicative of the results that may be expected for the year ending December 31, 2012, or any other future periods.

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. A going concern basis of accounting contemplates the recovery of the Company’s assets and the satisfaction of its liabilities in the normal course of business. Based on the Company’s annual operating plan, management believes that its existing cash and cash equivalents of $25.9 million and accounts receivable of $37.6 million at September 30, 2012 will be sufficient to fund its cash requirements through at least September 30, 2013. The Company’s credit facility (the “Credit Facility”) with MidCap Financial, LLC (“MidCap”) contains financial covenants consisting of a quarterly fixed charge coverage ratio and a senior leverage ratio (see Note 6).

Based on the Company’s board-approved current operating plan, the Company believes that it will be in compliance with the financial covenants of the Credit Facility in the foreseeable future. However, there is no assurance that the Company will be able to do so. If the Company is not able to achieve its planned revenue or incurs costs in excess of its forecasts, it may be required to substantially reduce discretionary spending and it could be in default of the Credit Facility which would require a waiver from MidCap. There can be no assurances that such a waiver could be obtained, that the Credit Facility could be successfully renegotiated or that the Company can modify its operations to maintain liquidity. If the Company is unable to obtain any required waivers or amendments, MidCap would have the right to exercise remedies specified in the Credit Facility, including accelerating the repayment of debt obligations. The Company may be forced to seek additional financing, which may include additional debt and/or equity financing or funding through other third party agreements. There can be no assurances that additional financing will be available on acceptable terms or available at all. Furthermore, any equity financing may result in dilution to existing stockholders and any debt financing may include restrictive covenants.

2. Summary of Significant Accounting Policies

The Company’s significant accounting policies are described in Note 2 to its audited consolidated financial statements for the year ended December 31, 2011, which are included in the Company’s Annual Report on Form 10-K that was filed with the SEC on March 5, 2012. These accounting policies have not significantly changed during the nine months ended September 30, 2012.

 

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Recent Accounting Pronouncements

In September 2011, the Financial Accounting Standards Board (“FASB”) amended its goodwill guidance by providing entities an option to use a qualitative approach to test goodwill for impairment. An entity will be able to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. If it is concluded that this is the case, it is necessary to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. The amendment is effective for the Company beginning January 1, 2012. This amendment did not have a material impact on the Company’s consolidated financial position or results of operations.

In 2011, the FASB issued new accounting guidance that requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance is effective for the Company beginning January 1, 2012. The new guidance eliminates the current option to report other comprehensive income and its components in the statement of shareholders’ equity. While the new guidance changes the presentation of other comprehensive income, there are no changes to the components that are recognized in other comprehensive income. Other than presentation, the adoption of this guidance did not have an impact on the Company’s consolidated financial position or results of operations.

3. Acquisitions

Acquisition of Cibramed

In January 2011, the Company acquired Cibramed Productos Medicos (“Cibramed”), a Brazilian medical device company. The Company purchased Cibramed to acquire its ANVISA regulatory registration certificates and its general licenses to conduct business in Brazil. The Company recorded an intangible asset of $0.6 million for the ANVISA regulatory registration certificates and licenses it purchased. The Company is amortizing this asset on a straight-line basis over its estimated life of 15 years. No product distribution rights were acquired. The Company paid the full purchase price of $0.6 million in 2011.

4. Select Balance Sheet Details

Accounts Receivable, net

Accounts receivable, net consist of the following (in thousands):

 

     September 30,
2012
    December 31,
2011
 

Accounts receivable

   $ 38,911      $ 42,766   

Allowance for doubtful accounts

     (1,346     (1,055
  

 

 

   

 

 

 

Accounts receivables, net

   $ 37,565      $ 41,711   
  

 

 

   

 

 

 

Inventories

Inventories consist of the following (in thousands):

 

     September 30, 2012      December 31, 2011  
     Gross      Reserve for
excess and
obsolete
    Net      Gross      Reserve for
excess and
obsolete
    Net  

Raw materials

   $ 4,939       $ —        $ 4,939       $ 3,715       $ —        $ 3,715   

Work-in-process

     1,477         —          1,477         2,088         —          2,088   

Finished goods

     57,127         (15,199     41,928         53,287         (13,174     40,113   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Inventories, net

   $ 63,543       $ (15,199   $ 48,344       $ 59,090       $ (13,174   $ 45,916   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

 

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Property and Equipment

Property and equipment consist of the following (in thousands except as indicated):

 

     Useful lives
(in years)
     September 30,
2012
    December 31,
2011
 

Surgical instruments

     4       $ 57,955      $ 52,690   

Machinery and equipment

     7         14,032        12,462   

Computer equipment

     5         3,270        3,013   

Office furniture and equipment

     5         3,548        3,578   

Leasehold improvements

     various         4,111        3,657   

Building

     39         71        71   

Land

     n/a         14        14   

Construction in progress

     n/a         449        634   
     

 

 

   

 

 

 
        83,450        76,119   

Less accumulated depreciation and amortization

        (51,644     (44,643
     

 

 

   

 

 

 

Property and equipment, net

      $ 31,806      $ 31,476   
     

 

 

   

 

 

 

Total depreciation expense was $3.5 million and $3.7 million for the three months ended September 30, 2012 and 2011, respectively. Total depreciation expense was $10.5 million and $11.1 million for the nine months ended September 30, 2012 and 2011, respectively.

Intangible Assets

Intangible assets consist of the following (in thousands except as indicated):

 

     Useful lives
(in years)
     September 30,
2012
    December 31,
2011
 

Developed product technology

     5-8       $ 22,865      $ 22,875   

Distribution rights

     3         4,535        4,531   

Intellectual property

     5         1,004        1,004   

License agreements

     1-7         15,122        14,297   

Core technology

     10         3,484        3,489   

In-process technology

     Indefinite         1,678        1,680   

Trademarks and trade names

     5-9         3,667        3,671   

Customer-related

     15         15,424        15,476   

Distribution network

     10         1,614        1,614   

Physician education programs

     10         2,968        2,972   

Supply agreement

     10         225        225   
     

 

 

   

 

 

 
        72,586        71,834   

Less accumulated amortization

        (31,523     (24,690
     

 

 

   

 

 

 

Intangible assets, net

      $ 41,063      $ 47,144   
     

 

 

   

 

 

 

Total amortization expense was $2.3 million and $1.3 million for the three months ended September 30, 2012 and 2011, respectively. Total amortization expense was $6.9 million and $3.8 million for the nine months ended September 30, 2012 and 2011, respectively.

5. License and Developmental Consulting Agreements

The Company’s license and supply agreements are described in Note 5 to its audited consolidated financial statements for the year ended December 31, 2011, which are included in its Annual Report on Form 10-K which was filed with the SEC on March 5, 2012. The description below is a supplement to such description in the Form 10-K.

Expandable VBR License and Consulting Agreement

On May 7, 2012, the Company and Stout Medical Group LP (“Stout”) entered into a mutual termination and release agreement (the “Termination Agreement”) that terminated an agreement that the Company and Stout entered into in March 2008 and amended in March 2009 and December 2010 (the “Amended and Restated License Agreement”). The Amended and Restated License Agreement

 

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provided the Company with a worldwide license to develop and commercialize Stout’s proprietary intellectual property related to an expandable interbody/vertebral body replacement device. Under the terms of the Amended and Restated License Agreement the Company had previously issued to Stout 101,944 shares of restricted stock of the Company. Additionally, under the Amended and Restated License Agreement the Company was required to make annual minimum royalty payments beginning in 2011. The Termination Agreement discharged the Company’s obligations under the Amended and Restated License Agreement including the annual minimum royalty payments. The Company reversed previously accrued minimum royalties of approximately $0.4 million in cost of revenues in the nine months ended September 30, 2012. Under the terms of the Termination Agreement Stout retained the 101,944 shares of the Company’s common stock that had been previously issued.

License Agreement with Merlot Orthopedix, Inc.

On June 12, 2012, the Company and Merlot Orthopedix, Inc. (“Merlot Ortho”) entered into a mutual termination and release agreement that terminated a license agreement that the Company and Merlot Ortho entered into in July 2010 (the “Merlot Ortho Agreement”). The Merlot Ortho Agreement provided the Company with a worldwide license to develop and commercialize Merlot Ortho’s proprietary intellectual property related to its bone anchorage, interbody stabilizer, locking mechanism and certain other technologies. The mutual termination and release agreement discharged the Company’s obligations under the Merlot Ortho Agreement and the Company paid Merlot Ortho $0.3 million, which was expensed in the nine months ended September 30, 2012.

6. Debt

Loan and Security Agreement

On June 7, 2012, the Company entered into the Credit Facility with MidCap, which permits the Company to borrow up to $50.0 million. The Credit Facility is due in June 2015 and consists of a revolving line of credit with a maximum borrowing base of $40.0 million, with the option to increase the maximum borrowing base to $50.0 million with the prior written consent of MidCap. The borrowing base is determined, from time to time, based on the value of domestic and foreign eligible accounts receivable and domestic eligible inventory. As collateral for the Credit Facility, the Company granted MidCap a security interest in substantially all of its assets, including all accounts receivable and all securities evidencing its interests in its subsidiaries. The revolving line of credit carries an interest equal to LIBOR plus 6.0%.

The Credit Facility includes traditional lending and reporting covenants including a quarterly fixed charge coverage ratio and a senior leverage ratio to be maintained by the Company. The Credit Facility also includes several potential events of default, such as payment default and insolvency conditions, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in MidCap’s right to declare all outstanding obligation immediately due and payable. The Company was in compliance with all of the covenants of the Credit Facility as of September 30, 2012.

Upon execution of the Credit Facility, the Company drew $34.3 million on the Credit Facility to pay off its existing term loan with Silicon Valley Bank (“SVB”) totaling $8.1 million and its existing line of credit with SVB totaling $17.6 million (collectively the “SVB Credit Facility”). The Company paid early termination and other fees to SVB associated with the SVB Credit Facility of $2.3 million and wrote-off $0.6 million of unamortized debt issuance and debt discount costs related to the SVB Credit Facility. The total loss on extinguishment of debt costs of $2.9 million is included in interest expense in the nine months ended September 30, 2012. The Company paid an up-front commitment fee to MidCap of $0.2 million and debt issuance costs of $0.2 million, which were capitalized as deferred debt issuance costs and are being amortized over the term of the Credit Facility using the effective interest method.

The Company has various capital lease arrangements. The leases bear interest at rates ranging from 4.5% to 9.6%, are generally due in monthly principal and interest installments, are collateralized by the related equipment, and have various maturity dates through July 2017. As of September 30, 2012, the balance of these capital leases totaled $1.5 million. In the first nine months of 2012, the Company entered into leases for machinery and equipment for an aggregate principal balance of $1.7 million.

 

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Principal payments on debt are due as follows as of September 30, 2012 (in thousands):

 

Year Ending December 31,

      

Remainder of 2012

   $ 498   

2013

     849   

2014

     —    

2015

     34,909   

2016

     —    

Thereafter

     —    
  

 

 

 

Total

     36,256   

Add: capital lease principal payments

     1,495   
  

 

 

 

Total

     37,751   

Less: current portion of long-term debt

     (1,720
  

 

 

 

Long-term debt, net of current portion

   $ 36,031   
  

 

 

 

7. Commitments and Contingencies

Leases

The Company leases certain equipment under capital leases which expire on various dates through 2017. The Company and Scient’x also lease their buildings and certain equipment and vehicles under operating leases which expire on various dates through 2017. Future minimum annual lease payments under such leases are as follows (in thousands):

 

Year Ending December 31,

   Operating      Capital  

Remainder of 2012

   $ 1,019       $ 138   

2013

     3,834         441   

2014

     2,786         411   

2015

     2,464         350   

2016

     1,284         331   

Thereafter

     430         82   
  

 

 

    

 

 

 
   $ 11,817         1,753   
  

 

 

    

Less: amount representing interest

        (258
     

 

 

 

Present value of minimum lease payments

        1,495   

Current portion of capital leases

        (373
     

 

 

 

Capital leases, less current portion

      $ 1,122   
     

 

 

 

Rent expense under operating leases for the three months ended September 30, 2012 and 2011 was $0.9 million and $1.0 million, respectively. Rent expense under operating leases for the nine months ended September 30, 2012 and 2011 was $2.8 million and $2.8 million, respectively.

Litigation

In 1998, Eurosurgical, a French company in the business of sales and marketing of spinal implants, entered into a distribution agreement for the United States, Mexico, Canada, India and Australia with Orthotec, LLC, a California company, or Orthotec. In 2004, Orthotec sued Eurosurgical in connection with a contractual dispute and a $9 million judgment was entered against Eurosurgical by a California court. At the same time, a federal court in California declared Eurosurgical liable to Orthotec for $30 million in connection with an intellectual property dispute. In 2006, Eurosurgical’s European assets were ultimately acquired by Surgiview, SAS, or Surgiview, in a sale agreement approved by a French court. Pursuant to this sale, Surgiview became a subsidiary of Scient’x in 2006. Orthotec attempted to recover on Eurosurgical’s obligations in California and federal courts by filing a motion in a California court to add Surgiview to the judgment against Eurosurgical on theories including successor liability and fraudulent conveyance. In February 2007, the California court denied Orthotec’s motion, indicating that Orthotec had not carried its burdens of proof. Orthotec chose to not proceed with a further hearing in September 2007. In May 2008, after the acquisition of Scient’x by HealthpointCapital in 2007, Orthotec sued Scient’x, Surgiview, HealthpointCapital and certain former Scient’x directors (who currently serve on the Company’s board) in a new action in California state court. In addition, at the same time, a similar action was filed in New York against HealthpointCapital and two former directors of Scient’x (who currently serve on the Company’s board). In April 2009, the

 

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California court dismissed this matter on jurisdictional grounds, and Orthotec appealed such ruling. In December 2010, the California Court of Appeal issued a decision that affirmed in part and reversed in part the trial court’s decision dismissing the entire California action based on lack of personal jurisdiction. The Court of Appeal affirmed the trial court’s ruling that Orthotec failed to establish personal jurisdiction over all parties except Surgiview, finding that the trial court could exercise jurisdiction over that entity. In November 2009, the New York court dismissed Orthotec’s claims based on collateral estoppel, and Orthotec appealed this ruling. In March 2011, the state appeals court in New York reversed the lower court’s decision to dismiss Orthotec’s claims, and the New York matter is proceeding with HealthpointCapital and certain former Scient’x directors (who currently serve on the Company’s board) as the only defendants. While the Company intends to vigorously defend against the complaint, and believes that the plaintiff’s allegations are without merit, the outcome of the litigation cannot be predicted at this time and any outcome in favor of Orthotec could have a significant adverse effect on the Company’s financial condition and results of operations.

In August 2009, a complaint filed under the qui tam provisions of the United States Federal False Claims Act (the “FCA”) that had been filed by private parties against Scient’x USA was unsealed by the United States District Court for the Middle District of Florida (Hudak v. Scient’x USA, Inc., et al. (Civil Action No. 6:08-cv-1556-Orl-22DAB, U.S. District Court, W.D. Florida). The complaint alleged violations of the FCA arising from allegations that Scient’x USA engaged in improper activities related to consulting payments to surgeon customers. Under the FCA, the United States Department of Justice, Civil Division, (the “DOJ”), had a certain period of time in which to decide whether to intervene and conduct the action against Scient’x, or to decline to intervene and allow the private plaintiffs to proceed with the case. In August 2009, the DOJ filed a notice informing the court that it was declining to intervene in the case. In December 2009, the private plaintiffs who filed the action moved the court to dismiss the matter without prejudice, the Attorney General consented to such dismissal and the matter was dismissed without prejudice. Despite the dismissal of this matter, the DOJ is continuing its review of the facts alleged by the original plaintiffs in this matter. To date, neither the Company nor Scient’x USA has been subpoenaed by any governmental agency in connection with this review. The Company believes that Scient’x USA’s business practices were in compliance with the FCA and intends to vigorously defend itself with respect to the allegations contained in the qui tam complaint. However, the outcome of the matter cannot be predicted at this time and any adverse outcome could have a significant adverse effect on the Company’s financial condition and results of operations.

On August 10, 2010, a purported securities class action complaint was filed in the United States District Court for the Southern District of California on behalf of all persons who purchased the Company’s common stock between December 19, 2009 and August 5, 2010 against the Company and certain of its directors and executives alleging violations of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 thereunder. On February 17, 2011, an amended complaint was filed against the Company and certain of its directors and officers adding alleged violations of the Securities Act of 1933. HealthpointCapital, Jefferies & Company, Inc., Canaccord Adams, Inc., Cowen and Company, Inc., and Lazard Capital Markets LLC are also defendants in this action. The complaint alleges that the defendants made false or misleading statements, as well as failed to disclose material facts, about the Company’s business, financial condition, operations and prospects, particularly relating to the Scient’x transaction and the Company’s financial guidance following the closing of the acquisition. The complaint seeks unspecified monetary damages, attorneys’ fees, and other unspecified relief. On March 21, 2012, the court granted the defendants’ motions to dismiss the plaintiff’s complaint against all defendants and gave the plaintiff leave to file an amended complaint. On April 19, 2012, the plaintiff filed an amended complaint and the defendants have answered this amended complaint with a motion to dismiss the amended complaint. The Company believes the claims are without merit and intends to vigorously defend itself against this complaint; however no assurances can be given as to the timing or outcome of this lawsuit.

On August 25, 2010, an alleged shareholder of the Company’s filed a derivative lawsuit in the Superior Court of California, San Diego County, purporting to assert claims on behalf of the Company against all of its directors and certain of its officers and HealthpointCapital. Following the filing of this complaint, similar complaints were filed in the same court and in the U.S. District Court for the Southern District of California against the same defendants containing similar allegations. The complaint filed in federal court was dismissed by the plaintiff without prejudice in July 2011. The state court complaints have been consolidated into a single action. The Company has been named as a nominal defendant in the consolidated action. Each complaint alleges that the Company’s directors and certain of its officers breached their fiduciary duties to the Company related to the Scient’x transaction, and by making

 

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allegedly false statements that led to unjust enrichment of HealthpointCapital and certain of the Company’s directors. The complaints seek unspecified monetary damages and an order directing the Company to adopt certain measures purportedly designed to improve its corporate governance and internal procedures. This consolidated lawsuit has been stayed by order of the court until February 8, 2013. The Company believes the claims are without merit and intends to vigorously defend itself against these complaints; however no assurances can be given as to the timing or outcome of this lawsuit.

At September 30, 2012, the probable outcome of any of the aforementioned litigation matters cannot be determined nor can the Company estimate a range of potential loss. Accordingly, in accordance with the authoritative guidance on the evaluation of contingencies, the Company has not recorded an accrual related to these litigation matters. The Company is and may become involved in various other legal proceedings arising from its business activities. While management does not believe the ultimate disposition of these matters will have a material adverse impact on the Company’s consolidated results of operations, cash flows or financial position, litigation is inherently unpredictable, and depending on the nature and timing of these proceedings, an unfavorable resolution could materially affect the Company’s future consolidated results of operations, cash flows or financial position in a particular period.

Royalties

The Company has entered into various intellectual property agreements requiring the payment of royalties based on the sale of products that utilize such intellectual property. These royalties primarily relate to products sold by Alphatec Spine and are calculated either as a percentage of net sales or in one instance on a per-unit sold basis. Royalties are included on the accompanying condensed consolidated statement of operations as a component of cost of revenues.

During the quarter ended September 30, 2012 the Company recorded a $0.7 million reduction in royalty expense due to the correction of an error in accruing a probable milestone payment related to one of the Company’s royalty agreements. We performed an evaluation to determine if the financial statement impacts resulting from this error in accounting were material, considering both quantitative and qualitative factors. Based on this materiality analysis, we concluded that correcting the cumulative error would be immaterial to the expected current year financial results and a correction of the error would not have a material impact to any individual prior period financial statements.

8. Net Loss Per Share

Basic earnings per share (“EPS”) is calculated by dividing the net income or loss available to common stockholders by the weighted average number of common shares outstanding for the period, without consideration for common stock equivalents. Diluted EPS is computed by dividing the net income available to common stockholders by the weighted average number of common shares outstanding for the period and the weighted average number of dilutive common stock equivalents outstanding for the period determined using the treasury-stock method. For purposes of this calculation, common stock subject to repurchase by the Company and options are considered to be common stock equivalents and are only included in the calculation of diluted earnings per share when their effect is dilutive (in thousands, except per share data):

 

    Three Months Ended September 30,     Nine Months Ended September 30,  
    2012     2011     2012     2011  

Numerator:

       

Net loss

  $ (2,469   $ (1,304   $ (10,104   $ (6,215
 

 

 

   

 

 

   

 

 

   

 

 

 

Denominator:

       

Weighted average common shares outstanding

    90,216        89,219        89,812        89,120   

Weighted average unvested common shares subject to repurchase

    (713     (390     (590     (363
 

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average common shares outstanding - basic

    89,503        88,829        89,222        88,757   

Effect of dilutive securities:

       

Options, warrants and restricted share awards

    —          —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average common shares outstanding - diluted

    89,503        88,829        89,222        88,757   
 

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per common share:

       

Basic and diluted net loss per share

  $ (0.03   $ (0.01   $ (0.11   $ (0.07
 

 

 

   

 

 

   

 

 

   

 

 

 

 

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The weighted-average anti-dilutive securities not included in diluted net loss per share were as follows (in thousands):

 

     Three Months Ended September 30,      Nine Months Ended September 30,  
     2012      2011      2012      2011  

Options to purchase common stock

     4,754         4,381         4,773         4,210   

Unvested restricted share awards

     713         390         590         363   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     5,467         4,771         5,363         4,573   
  

 

 

    

 

 

    

 

 

    

 

 

 

9. Equity Transactions

Warrants

In March 2012, the Company entered into a consulting agreement with a third-party entity and pursuant to such consulting agreement, the Company issued a warrant to the consultant to purchase an aggregate of 500,000 shares of the Company’s common stock at an exercise price of $2.50 per share. The warrant vests 25% on the last day of September 2012, December 2012, March 2013 and June 2013 and the warrant expires on March 1, 2015.

Eclipse Advisors, LLC

On May 8, 2012, the Company entered into an equity line of credit arrangement with Eclipse Advisors, LLC (“Eclipse”), which provides that, upon the terms and subject to the conditions set forth therein, the Company is entitled to sell and Eclipse is committed to purchase up to $25 million of shares of the Company’s common stock over a 24-month term (the “Investment Agreement). From time to time, and at the Company’s sole discretion, the Company may present Eclipse with put notices, to purchase the Company’s common stock in two tranches over a 31-day period (a “put period”) with each put period subject to being reduced by the Company based on a minimum threshold price of the Company’s common stock during the put period. The Company may not present Eclipse with a new put notice at any time there is an outstanding put notice.

Once presented with a put notice, Eclipse is required to purchase: (i) 50% of the dollar amount of the shares specified in the put notice on the 16th day after the date of the put notice; and (ii) 50% of the dollar amount of the shares specified in the put notice on the 31st day after the date of the put notice. The price per share for the sale of such common stock for each of the two closings in a put period shall be 90% of the volume weighted average price for the Company’s common stock over the trading days that exist during the 15 days prior to such closing date. If the daily volume weighted average price of the Company’s common stock falls below a threshold price established by the Company on any trading day during a put period, the Company has the right to send a cancellation notice to Eclipse, which will reduce the Company’s obligation to sell the shares to Eclipse to no greater than 50% of the dollar amount set forth in the put notice.

Upon execution of the Investment Agreement and as provided for therein, the Company issued Eclipse 231,045 shares of common stock representing a $500,000 commitment fee, determined by dividing $500,000 by the volume weighted average price for the Company’s common stock for the five trading days preceding the effective date of the Investment Agreement. The Company has not sold any shares to Eclipse under the Investment Agreement.

Media Advertising Agreement

In July 2012, the Company entered into a consulting agreement with a third-party entity for marketing and advertising services. In connection with this agreement the Company paid the consultant $0.1 million and issued 150,000 shares of the Company’s common stock and 176,000 shares of the Company’s restricted stock.

10. Income Taxes

Ordinarily, to calculate its interim tax provision, at the end of each interim period the Company estimates the annual effective tax rate and applies that to its ordinary quarterly earnings. However, when a reliable estimate of the annual effective tax rate cannot be made, the actual effective tax rate for the year-to-date period may be the best estimate of the annual effective tax rate. In addition, the effect of changes in enacted tax laws or rates or tax status is recognized in the interim period in which the change occurs. The computation of the annual estimated effective tax rate at each interim period requires certain estimates and significant judgment including, but not limited to, the expected operating income for the year, projections of the proportion of income earned and taxed in foreign jurisdictions, permanent and temporary differences between book and tax amounts, and the likelihood of recovering deferred tax assets generated in the current year. For the three and nine months ended September 30, 2012, the Company used the actual year-to-date effective tax rate in the United States in computing its tax provision as a reliable estimate of the annual effective tax rate cannot be made as relatively small changes in projected income or loss produce significant variances in the Company’s effective tax rate. The accounting estimates used to compute the provision for income taxes may change as new events occur, additional information is obtained or as the tax environment changes.

 

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The Company recognizes interest and penalties related to uncertain tax positions as a component of the income tax provision. The Company’s unrecognized tax benefits decreased $0.1 million during the nine months ended September 30, 2012. The decrease in unrecognized tax benefits during the nine months ended September 30, 2012 was primarily related to an increase related to state research credits and decrease in uncertain tax positions within the Company’s French subsidiaries. The unrecognized tax benefits at September 30, 2012 were $4.2 million. With the facts and circumstances currently available to the Company, it is reasonably possible that less than $0.1 million of the Company’s unrecognized tax benefits could decrease within the next 12 months due to the expiration of statutes of limitations or tax examination settlement.

The income tax benefit consists primarily of income tax benefits related to operations in France and a settlement with the French tax authorities, partially offset by a valuation allowance on the French deferred tax assets, state income taxes, the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill and operations in foreign jurisdictions.

The Company is not currently under examination by the IRS. The Company has been contacted by the State of Texas and will be undergoing an exam of the 2009 year. A subsidiary of Scient’x’s 2008, 2009 and 2010 tax years was under audit by the French tax authorities and that audit is now complete. The Company reached a settlement and has adjusted the previously recorded uncertain tax positions and the income tax liability accordingly with the difference being reflected in the consolidated statement of operations in the current period.

11. Segment and Geographical Information

Operating segments are defined as components of an enterprise for which separate financial information is available and evaluated regularly by the chief operating decision maker, or decision-making group, in deciding how to allocate resources and in assessing performance. The Company has one operating and one reportable business segment.

During the three and nine months ended September 30, 2012 and 2011, the Company operated in two geographic regions, the U.S. and International which consists of locations outside of the U.S. In the International geographic segment, sales in Japan for the three months ended September 30, 2012 and 2011 totaled $7.5 million and $6.5 million, respectively, which represented greater than 10 percent of the Company’s consolidated revenues for the respective periods. For the nine months ended September 30, 2012 and 2011 sales in Japan totaled $21.0 and $17.6 million, respectively, which represented greater than 10 percent of the Company’s consolidated revenues for such period.

Revenues attributed to the geographic location of the customer were as follows (in thousands):

 

     Three Months Ended
September 30,
     Nine Months Ended
September 30,
 
     2012      2011      2012      2011  

United States

   $ 30,980       $ 32,674       $ 96,430       $ 101,073   

International

     15,859         14,945         47,105         47,128   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total consolidated revenues

   $ 46,839       $ 47,619       $ 143,535       $ 148,201   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total assets by region were as follows (in thousands):

 

     September 30,
2012
     December 31,
2011
 

United States

   $ 201,164       $ 198,578   

International

     164,502         168,114   
  

 

 

    

 

 

 

Total consolidated assets

   $ 365,666       $ 366,692   
  

 

 

    

 

 

 

 

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12. Related Party Transactions

As of September 30, 2012, the Company had a liability of $0.1 million payable to HealthpointCapital, LLC for travel and administrative expenses.

The Company has entered into indemnification agreements with certain of its directors which are named defendants in the Orthotec matter (See Note 7 – Commitments and Contingencies – Litigation). The indemnification agreements require the Company to indemnify these individuals to the fullest extent permitted by applicable law and to advance expenses incurred by them in connection with any proceeding against them with respect to which they may be entitled to indemnification by the Company. For the nine months ended September 30, 2012, the Company incurred legal expenses of approximately $1.9 million in connection with the Company’s indemnification obligations in the Orthotec matter.

13. Subsequent Events

On October 19, 2012, the “Company entered into an Asset Purchase Agreement (the “Asset Purchase Agreement) with Phygen, LLC (“Phygen), pursuant to which the Company agreed to purchase Phygen’s right, title and interest in and certain assets used by Phygen in connection with the design, development, marketing and distribution of certain of Phygen’s spinal implant products, together with the intellectual property rights, contractual rights, inventories and certain liabilities related thereto. At the closing of the transaction the Company will issue to Phygen 4,069,087 unregistered shares of the Company’s common stock and pay to Phygen $2 million in cash. The Company will issue 1,170,960 unregistered shares of its common stock into an escrow account, which will secure the indemnification obligations of Phygen under the Asset Purchase Agreement for a period of 12 months following the closing. In addition, the Company will pay to Phygen $4 million in cash on April 10, 2013, with such amount subject to set-off for any indemnification claims. In connection with the Phygen acquisition the Company incurred transaction related expenses of $0.4 million in the three and six months ended September 30, 2012.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

Our management’s discussion and analysis of our financial condition and results of operations include the identification of certain trends and other statements that may predict or anticipate future business or financial results that are subject to important factors, such as those set forth in Item 1A “Risk Factors” in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K for the year ending December 31, 2011, as well as any updates to those risk factors filed from time to time in our Quarterly Reports on Form 10-Q or Current Reports on Form 8-K.

Overview

We are a medical technology company focused on the design, development, manufacturing and marketing of products for the surgical treatment of spine disorders, with a focus on products that treat conditions that affect the aging spine. We have a comprehensive product portfolio and pipeline that addresses the cervical, thoracolumbar and intervertebral regions of the spine and covers a variety of major spinal disorders and procedures such as vertebral compression fracture, disorders related to poor bone quality, spinal stenosis and minimally invasive access techniques. Our principal product offerings are focused on the global market for orthopedic spinal disorder solution products. Our “surgeons’ culture” emphasizes collaboration with spinal surgeons to conceptualize, design and co-develop a broad range of products. We have a state-of-the-art, in-house manufacturing facility that provides us with a unique competitive advantage, and enables us to rapidly deliver solutions to meet surgeons’ and patients’ critical needs. Our products and systems are made of titanium, titanium alloy, stainless steel, cobalt chrome, ceramic, and a strong, heat resistant, radiolucent, biocompatible plastic called polyetheretherketone, or PEEK. We also sell products made of allograft, which is human tissue that surgeons can use in place of metal and PEEK. We also sell bone-grafting products that are comprised of both human tissue and synthetic materials. We believe that our products and systems have enhanced features and benefits that make them attractive to surgeons and that our broad portfolio of products and systems provide a comprehensive solution for the safe and successful surgical treatment of spine disorders.

Revenue and Expense Components

The following is a description of the primary components of our revenues and expenses:

Revenues. We derive our revenues primarily from the sale of spinal surgery implants used in the treatment of spine disorders. Spinal implant products include spine screws and complementary products, interbody devices, plates, products to treat vertebral compression fractures and bone grafting materials. Our revenues are generated by our direct sales force and independent distributors. Our products are requested directly by surgeons and shipped and billed to hospitals or surgical centers. In general, except for those countries where we have a direct sales force (the U.S., Japan, France, and the United Kingdom), we use independent distributors that purchase our products and market them to their surgeon customers. A majority of our business is conducted with customers within markets in which we have experience and with payment terms that are customary. If we offer payment terms greater than our customary business terms or begin operating in a new market, revenues are deferred until the sooner of when payments become due or cash is received from the related distributors.

Cost of revenues. Cost of revenues consists of direct product costs, royalties, depreciation of our surgical instruments, and the amortization of purchased intangibles. We manufacture substantially all of the non-allograft implants that we sell. Our product costs consist primarily of direct labor, manufacturing overhead, and raw materials and components. The product costs of certain of our biologics products include the cost of procuring and processing human tissue. We incur royalties related to the technologies that we license from others and the products that are developed in part by surgeons with whom we collaborate in the product development process. Amortization of purchased intangibles consists of amortization of developed product technology.

Research and development expense. Research and development expense consists of costs associated with the design, development, testing, and enhancement of our products. Research and development expense also includes salaries and related employee benefits, research-related overhead expenses, fees paid to external service providers, and costs associated with our Scientific Advisory Board and Executive Surgeon Panels.

Sales and marketing expense. Sales and marketing expense consists primarily of salaries and related employee benefits, sales commissions and support costs, professional service fees, travel, medical education, trade show and marketing costs.

General and administrative expense. General and administrative expense consists primarily of salaries and related employee benefits, professional service fees and legal expenses.

Restructuring expense. Restructuring expense consists of severance and other personnel costs incurred in connection with the reorganization of the Company’s management and those costs associated with exit or disposal activities related to the acquisition of Scient’x.

 

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Total other income (expense). Total other income (expense) includes interest income, interest expense, gains and losses from foreign currency exchanges and other non-operating gains and losses.

Income tax (benefit) provision. Income tax (benefit) provision consists primarily of state and foreign income taxes and the tax effect of changes in deferred tax liabilities associated with tax goodwill.

Critical Accounting Policies and Estimates

Our discussion and analysis of our financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures. On an on-going basis, we evaluate our estimates and assumptions, including those related to revenue recognition, allowances for accounts receivable, inventories, goodwill and intangible assets, stock-based compensation and income taxes. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumption conditions.

Critical accounting policies are those that, in management’s view, are most important in the portrayal of our financial condition and results of operations. Management believes there have been no material changes during the nine months ended September 30, 2012 to the critical accounting policies discussed in the Management’s Discussion and Analysis of Financial Condition and Results of Operations section of our Annual Report on Form 10-K for the year ended December 31, 2011.

Results of Operations

The table below sets forth certain statements of operations data for the periods indicated. Our historical results are not necessarily indicative of the operating results that may be expected in the future.

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2012     2011     2012     2011  

Revenues

   $ 46,839      $ 47,619      $ 143,535      $ 148,201   

Cost of revenues

     16,844        17,001        50,773        54,959   

Amortization of acquired intangible assets

     362        411        1,114        1,223   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     29,633        30,207        91,648        92,019   

Operating expenses:

        

Research and development

     3,216        3,858        11,003        13,653   

Sales and marketing

     17,778        19,145        55,843        57,065   

General and administrative

     9,758        8,627        28,714        26,707   

Amortization of acquired intangible assets

     491        545        1,574        1,629   

Transaction related expenses

     364        —          364        —     

Restructuring expenses

     —          394        —          993   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     31,607        32,569        97,498        100,047   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating loss

     (1,974     (2,362     (5,850     (8,028

Other income (expense):

        

Interest income

     33        48        108        103   

Interest expense

     (774     (725     (5,060     (2,292

Other income (loss), net

     208        202        (61     958   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense)

     (533     (475     (5,013     (1,231
  

 

 

   

 

 

   

 

 

   

 

 

 

Loss from continuing operations before taxes

     (2,507     (2,837     (10,863     (9,259

Income tax benefit

     (38     (1,533     (759     (3,044
  

 

 

   

 

 

   

 

 

   

 

 

 

Net loss

   $ (2,469   $ (1,304   $ (10,104   $ (6,215
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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Three Months Ended September 30, 2012 Compared to the Three Months Ended September 30, 2011

Revenues. Revenues were $46.8 million for the three months ended September 30, 2012 compared to $47.6 million for the three months ended September 30, 2011, representing a decrease of $0.8 million, or 1.6%. The decrease was the effect of an increase in the International region of $0.9 million, offset by a decrease in the U.S. region of $1.7 million.

U.S. revenues were $31.0 million for the three months ended September 30, 2012 compared to $32.7 million for the three months ended September 30, 2011, representing a decrease of $1.7 million, or 5.2%. The decrease was due to a decrease in the sales of instruments and implants ($2.3 million) and a decrease in the sales of Scient’x products ($0.8 million), offset by an increase in sales of Biologics ($1.4 million).

International revenues were $15.8 million for the three months ended September 30, 2012 compared to $14.9 million for the three months ended September 30, 2011, representing an increase of $0.9 million, or 6.1%. The decrease was due to a decrease in Scient’x sales ($1.3 million), offset by increased sales of Alphatec as aging products in the Scient’x portfolio are replaced by Alphatec products ($2.2 million). The increase in revenues is inclusive of $0.9 million in negative exchange rate effect.

Cost of revenues. Cost of revenues was $16.8 million for the three months ended September 30, 2012 compared to $17.0 million for the three months ended September 30, 2011, representing a decrease of $0.2 million, or 0.9%. The decrease was primarily related to favorable manufacturing and absorption variances ($1.0 million), a reduction in royalty expenses due to lower sales volumes ($0.3 million), and a reduction in milestone expense related to an adjustment of an accrual ($0.7 million) offset by an increase in the reserve for excess and obsolete inventory ($0.8 million) and the amortization expenses associated with the settlement agreement we entered into in December 2011 with Biomet related to royalties on the sales of our polyaxial screws ($1.0 million).

Amortization of acquired intangible assets. Amortization of acquired intangible assets was $0.4 million for the three months ended September 30, 2012 and for the three months ended September 30, 2011. This expense represents amortization in the period for intangible assets associated with product related assets obtained in the Scient’x acquisition.

Gross profit. Gross profit was $29.6 million for the three months ended September 30, 2012 compared to $30.2 million for the three months ended September 30, 2011, representing a decrease of $0.6 million, or 1.9%. The decrease was due to a reduction in the cost of revenues ($0.2 million), offset by a decrease in sales volume and variation in product mix ($0.8 million).

Gross margin. Gross margin was 63.2% for the three months ended September 30, 2012 compared to 63.4% for the three months ended September 30, 2011. The decrease of 0.2 percentage points was the result of a reduction in the cost of revenues (0.2 percentage points), offset by an unfavorable variation in product mix (0.4 percentage points).

Gross margin for the U.S. region was 68.9% for the three months ended September 30, 2012 compared to 68.1% for the three months ended September 30, 2011. The increase of 0.8 percentage points was the result of reduced cost of revenues ($1.4 million), offset by a decrease in sales volume and variation in product mix ($2.3 million).

Gross margin for the International region was 52.2% for the three months ended September 30, 2012 compared to 53.2% for the three months ended September 30, 2011. The decrease of 1.1 percentage points was the result of increased cost of revenues ($1.1 million), offset by an increase due to variation in product mix ($1.4 million).

Research and development expense. Research and development expense was $3.2 million for the three months ended September 30, 2012 compared to $3.9 million for the three months ended September 30, 2011, representing a decrease of $0.6 million, or 16.6%. The reduction in expenses was primarily related to a reduction in European research and development activities supporting the Scient’x products ($0.5 million).

Sales and marketing expense . Sales and marketing expense was $17.8 million for the three months ended September 30, 2012 compared to $19.1 million for the three months ended September 30, 2011, representing a decrease of $1.4 million, or 7.1%. The reduction in expenses was primarily related to a reduction in commission expense that is directly related to a decrease in U.S. revenue.

General and administrative expense. General and administrative expense was $9.8 million for the three months ended September 30, 2012 compared to $8.6 million for the three months ended September 30, 2011, representing an increase of $1.1 million, or 13.1%. The increase was primarily related to increased legal expense ($0.5 million), increased expenses related to executive management ($0.3 million), severance costs ($0.7 million), offset by a reduction in International expenses resulting from efficiencies ($0.5 million).

Amortization of acquired intangible assets. Amortization of acquired intangible assets was $0.5 million for the three months ended September 30, 2012 and for the three months ended September 30, 2011. This expense represents amortization in the period for intangible assets associated with general business assets obtained in the Scient’x acquisition.

 

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Transaction related expenses. Transaction related expenses was $0.4 million for the three months ended September, 30 2012 compared to $0 for the three months ended September 30, 2011. The transaction related expenses were due to legal and professional fees in connection with the Company’s asset acquisition of Phygen, LLC.

Interest expense. Interest expense was $0.8 million for the three months ended September 30, 2012 compared to $0.7 million for the three months ended September 30, 2011, representing an increase of $0.1 million.

Other income (expense), net . Other income (expense), net was $0.2 million for the three months ended September 30, 2012 and for the three months ended September 30, 2011. This income represents favorable foreign currency exchange results realized.

Income tax benefit. Income tax was a benefit of $0.0 million for the three months ended September 30, 2012 compared to a benefit of $1.5 million for the three months ended September 30, 2011. The income tax benefit consists primarily of income tax benefits related to operations in France and a settlement with the French tax authorities. The income tax benefit is partially offset by a valuation allowance on the French deferred tax assets, income tax expense for various other foreign jurisdictions, state income taxes, and the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill.

Nine Months Ended September 30, 2012 Compared to the Nine Months Ended September 30, 2011

Revenues. Revenues were $143.5 million for the nine months ended September 30, 2012 compared to $148.2 million for the nine months ended September 30, 2011, representing a decrease of $4.7 million, or 3.1%. The decrease was primarily the result of the U.S. region.

U.S. revenues were $96.4 million for the nine months ended September 30, 2012 compared to $101.1 million for the nine months ended September 30, 2011, representing a decrease of $4.7 million, or 4.6%. The decrease was due to decrease in the sales of instruments and implants ($6.4 million) and a decrease in the sales of Scient’x products ($2.3 million), offset by an increase in sales of Biologics ($4.0 million).

International revenues were $47.1 million for the nine months ended September 30, 2012 and for the nine months ended September 30, 2011. The decrease was the result of a decrease in Scient’x sales ($5.2 million), offset by increased sales of Alphatec as aging products in the Scient’x portfolio are replaced by Alphatec products ($5.2 million). The result is inclusive of $1.8 million in unfavorable exchange rate effect.

Cost of revenues. Cost of revenues was $50.8 million for the nine months ended September 30, 2012 compared to $55.0 million for the nine months ended September 30, 2011, representing a decrease of $4.2 million, or 7.6%. The decrease was primarily related to lower product costs due to a decrease in sales volume and variation in product mix ($1.3 million), favorable manufacturing and absorption variances ($3.8 million), a reduction to inventory adjustments ($1.6 million), a reduction in instrument depreciation expense ($0.3 million), a reduction in royalty and milestone expenses due to the cancellation of certain agreements, lower sales volumes and an adjustment to accruals ($1.5 million), and a decrease in inventory step-up expense related to the Scient’x acquisition ($0.8 million), offset by an increase in the reserve for excess and obsolete inventory ($1.9 million) and the amortization expenses associated with the settlement agreement we entered into in December 2011 with Biomet related to royalties on the sales of our polyaxial screws ($3.2 million).

Amortization of acquired intangible assets. Amortization of acquired intangible assets was $1.1 million for the nine months ended September 30, 2012 compared to $1.2 million for the nine months ended September 30, 2011. This expense represents amortization in the period for intangible assets associated with product related assets obtained in the Scient’x acquisition.

Gross profit. Gross profit was $91.6 million for the nine months ended September 30, 2012 compared to $92.0 million for the nine months ended September 30, 2011, representing a decrease of $0.4 million, or 0.4%. The decrease was due to a reduction in cost of revenues ($3.0 million), offset by a decrease in sales volume and variation in product mix ($3.4 million).

Gross margin. Gross margin was 63.9% for the nine months ended September 30, 2012 compared to 62.1% for the nine months ended September 30, 2011. The increase of 1.8 percentage points was the result of a reduction in the cost of revenues (1.5 percentage points) and a favorable variation in product mix (0.3 percentage points).

Gross margin for the U.S. region was 69.3% for the nine months ended September 30, 2012 compared to 67.7% for the nine months ended September 30, 2011. The increase of 1.6 percentage points was the result of reduced cost of revenues ($4.3 million), offset by a decrease in sales volume and a negative variation in product mix ($5.9 million).

 

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Gross margin for the International region was 52.8% for the nine months ended September 30, 2012 compared to 50.1% for the nine months ended September 30, 2011. The increase of 2.7 percentage points was the result of a favorable variation in product mix ($2.6 million), offset by increased cost of revenues ($1.3 million).

Research and development expense. Research and development expense was $11.0 million for the nine months ended September 30, 2012 compared to $13.7 million for the nine months ended September 30, 2011, representing a decrease of $2.7 million, or 19.4%. The decrease was primarily related to reduced European research and development activities to support the Scient’x products ($1.5 million), reduced personnel expenses in the U.S. ($0.5 million), and reduced activity due to the variation in the timing of the cycle for development and testing ($0.7 million).

Sales and marketing expense . Sales and marketing expense was $55.8 million for the nine months ended September 30, 2012 compared to $57.1 million for the nine months ended September 30, 2011, representing a decrease of $1.2 million, or 2.1%. The reduction in expenses was primarily related to a reduction in commission expense that is directly related to a decrease in U.S. revenue.

General and administrative expense. General and administrative expense was $28.7 million for the nine months ended September 30, 2012 compared to $26.7 million for the nine months ended September 30, 2011, representing an increase of $2.0 million, or 7.5%. The increase was primarily related to increased legal expense ($1.1 million), increased expenses related to executive management ($1.1 million), severance costs ($0.7 million), offset by a reduction in IT related expenses ($0.5 million) and a reduction in International expenses expense resulting from efficiencies ($0.5 million).

Amortization of acquired intangible assets. Amortization of acquired intangible assets was $1.6 million for the nine months ended September 30, 2012 and the nine months ended September 30, 2011. This expense represents amortization in the period for intangible assets associated with general business assets obtained in the Scient’x acquisition.

Transaction related expenses. Transaction related expenses was $0.4 million for the nine months ended September, 30 2012 compared to $0 for the nine months ended September 30, 2011. The transaction related expenses were due to legal and professional fees in connection with the Company’s asset acquisition of Phygen, LLC.

Restructuring expense. Restructuring expense was $0 for the nine months ended September 30, 2012 compared to $1.0 million for the nine months ended September 30, 2011. The restructuring expenses were due to severance and other personnel costs incurred in connection with restructuring activities in the United States and Europe in 2011.

Interest expense. Interest expense was $5.1 million for the nine months ended September 30, 2012 compared to $2.3 million for the nine months ended September 30, 2011, representing an increase of $2.8 million. Interest expense for the nine months ended September 30, 2012 includes loss on extinguishment of debt costs of $2.9 million related to the refinancing of the term note and revolving credit facility with Silicon Valley Bank consisting of $2.3 million of early termination fees and $0.6 million for the write-off of capitalized deferred debt offering costs.

Other income (expense), net . Other income (expense), net was ($0.1 million) for the nine months ended September 30, 2012 compared to $1.0 million for the nine months ended September 30, 2011, representing a decrease of $1.1 million. The decrease was due to unfavorable foreign currency exchange results realized in 2012 as compared to favorable results in 2011.

Income tax benefit. Income tax was a benefit of $0.8 million for the nine months ended September 30, 2012 compared to a benefit of $3.0 million for the nine months ended September 30, 2011. The income tax benefit consists primarily of income tax benefits related to operations in France and a settlement with the French tax authorities partially offset by a valuation allowance on the French deferred tax assets, income tax expense for various other foreign jurisdictions, state income taxes and the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill.

Non-GAAP Financial Measures

We utilize certain financial measures that are not calculated based on Generally Accepted Accounting Principles, or GAAP. Certain of these financial measures are considered “non-GAAP” financial measures within the meaning of Item 10 of Regulation S-K promulgated by the SEC. We believe that non-GAAP financial measures reflect an additional way of viewing aspects of our operations that, when viewed with the GAAP results, provide a more complete understanding of our results of operations and the factors and trends affecting our business. These non-GAAP financial measures are also used by our management to evaluate financial results and to plan and forecast future periods. However, non-GAAP financial measures should be considered as a supplement to, and not as a substitute for, or superior to, the corresponding measures calculated in accordance with GAAP. Non-GAAP financial measures used by us may differ from the non-GAAP measures used by other companies, including our competitors.

Adjusted EBITDA represents net income (loss) excluding the effects of interest, taxes, depreciation, amortization, stock-based compensation and other non-recurring income or expense items, such as in-process research and development expense and acquisition related transaction and restructuring expenses. Severance expenses of $0.7 million are included in restructuring and other expenses for the three and nine months ended September 30, 2012. We believe that the most directly comparable GAAP financial measure to adjusted EBITDA is net income (loss). Adjusted EBITDA has limitations, therefore, it should not be considered either in isolation or as a substitute for analysis of our results as reported under GAAP. Furthermore, adjusted EBITDA should not be considered as an alternative to operating income (loss) or net income (loss) as a measure of operating performance or to net cash provided by operating, investing or financing activities, or as a measure of our ability to meet cash needs.

 

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The following is a reconciliation of adjusted EBITDA to the most comparable GAAP measure, net loss, for the three and nine months ended September 30, 2012 and 2011 (in thousands):

 

     Three Months Ended September 30,     Nine Months Ended September 30,  
     2012     2011     2012     2011  

Net loss

   $ (2,469   $ (1,304   $ (10,104   $ (6,215

Stock-based compensation

     1,000        480        2,210        1,928   

Depreciation

     3,542        3,671        10,536        11,105   

Amortization of intangible assets

     1,405        330        4,199        982   

Amortization of acquired intangible assets

     853        956        2,688        2,852   

Interest expense, net

     741        677        4,952        2,189   

Income tax benefit

     (38     (1,533     (759     (3,044

Other (income) expense, net

     (208     (202     61        (958

Acquisition-related inventory step-up

     —          —          —          751   

Transaction related expenses

     364        —          364        —     

Restructuring and other expenses

     793        394        793        993   
  

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

   $ 5,983      $ 3,469      $ 14,940      $ 10,583   
  

 

 

   

 

 

   

 

 

   

 

 

 

Liquidity and Capital Resources

At September 30, 2012, our principal sources of liquidity consisted of cash and cash equivalents of $25.9 million and accounts receivable, net of $37.6 million. Based on our operating plan and cash forecast, management believes that on a combined basis, such amounts will be sufficient to fund our projected operating requirements through at least September 30, 2013.

Our Credit Facility with MidCap Financial, LLC, or MidCap, contains financial covenants consisting of a quarterly fixed charge coverage ratio and a senior leverage ratio. The Company was in compliance with all of the covenants of the Credit Facility as of September 30, 2012. (See “Credit Facility and Other Debt” below).

Based on our current operating plan, we believe that we will be in compliance with our financial covenants of the Credit Facility in the foreseeable future. However, there is no assurance that we will be able to do so. If we are not able to achieve our planned revenue or incur costs in excess of our forecasts, we may be required to substantially reduce discretionary spending, and we could be in default of the Credit Facility which would require a waiver from MidCap. There can be no assurances that such a waiver could be obtained, that the Credit Facility could be successfully renegotiated or that we could modify our operations to maintain liquidity. If we are unable to obtain any required waivers or amendments, MidCap would have the right to exercise remedies specified in the Credit Facility, including accelerating the repayment of debt obligations. We may be forced to seek additional financing, which may include additional debt and/or equity financing or funding through other third party agreements. There can be no assurances that additional financing will be available on acceptable terms or available at all. Furthermore, any equity financing may result in dilution to existing stockholders and any debt financing may include restrictive covenants.

Historically, our principal sources of cash have included customer payments from the sale of our products, proceeds from the issuance of common and preferred stock and proceeds from the issuance of debt. Our principal uses of cash have included cash used in operations, acquisitions of businesses and intellectual property rights, payments relating to purchases of property and equipment and repayments of borrowings. We expect that our principal uses of cash in the future will be for operations, working capital, capital expenditures, and potential acquisitions. We expect that, as our revenues grow, our sales and marketing and research and development expenses will continue to grow and, as a result, we will need to generate significant net revenues to achieve profitability.

We will need to invest in working capital and surgical instruments (the costs of which are capitalized) in order to support our revenue projections through at least September 30, 2013. Should we not be able to achieve our revenue forecast and cash consumption starts to exceed forecasted consumption, management will need to adjust our investment in surgical instruments and manage our inventory to the decreased sales volumes. If we do not make these adjustments in a timely manner, there could be an adverse impact on our financial resources.

A substantial portion of our available cash funds is in business accounts with reputable financial institutions. However, our deposits, at times, may exceed federally insured limits. The capital markets have recently been highly volatile and there has been a lack of liquidity for certain financial instruments, especially those with exposure to mortgage-backed securities and auction rate securities. This lack of liquidity has made it difficult for the fair value of these types of instruments to be determined. We did not hold any marketable securities as of September 30, 2012.

 

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As a result of the continued volatility in the capital markets, the cost and availability of credit has been and may continue to be adversely affected by illiquid credit markets and wider credit spreads. Concern about the stability of the markets generally and the strength of counterparties specifically has led many lenders and institutional investors to reduce, and in some cases, cease to provide funding to borrowers. Continued turbulence in the U.S. and international markets and economies may adversely affect our ability to obtain additional financing on terms acceptable to us, or at all. If these market conditions continue, they may limit our ability to timely replace maturing liabilities and to access the capital markets to meet liquidity needs.

Operating Activities

We generated net cash of $11.9 million from operating activities for the nine months ended September 30, 2012. During this period, net cash provided by operating activities primarily consisted of a net loss of $10.1 million and an increase in working capital and other assets of $3.7 million, which were offset by $25.7 million of non-cash costs including amortization, depreciation, deferred income taxes, stock-based compensation, provision for excess and obsolete inventory, and interest expense related to amortization of debt discount and issue costs. The increase in working capital and other assets of $3.7 million consisted of increases in inventory of $5.7 million and decreases in accrued expenses and other liabilities of $3.7 million, partially offset by decreases in accounts receivable of $3.4 million and decreases in prepaid expenses and other assets of $1.2 million.

Investing Activities

We used net cash of $12.8 million in investing activities for the nine months ended September 30, 2012 primarily for the purchase of surgical instruments and the purchase of an intangible asset.

Financing Activities

Net cash of $5.5 million was provided by financing activities for the nine months ended September 30, 2012. Upon execution of the Credit Facility with MidCap, we drew $34.3 million on the Credit Facility to pay off our existing term loan with Silicon Valley Bank (“SVB”) totaling $8.1 million and a line of credit with SVB totaling $17.6 million (collectively the “SVB Credit Facility”). The Company paid an up-front commitment fee to MidCap of $0.2 million and debt issuance costs of $0.2 million which were capitalized as deferred debt issuance costs. The Company paid early termination and other fees to SVB associated with the SVB Credit Facility of $2.3 million

Credit Facility and Other Debt

On June 7, 2012, we entered into a Credit Facility with MidCap, which permits the Company to borrow up to $50.0 million. The Credit Facility is due in June 2015 and consists of a revolving line of credit with a maximum borrowing base of $40.0 million, with the option to increase the maximum borrowing base to $50.0 million with the prior written consent of MidCap. The borrowing base is determined, from time to time, based on the value of domestic and foreign eligible accounts receivable and domestic eligible inventory. As collateral for the Credit Facility, we granted MidCap a security interest in substantially all of our assets, including all accounts receivable and all securities evidencing our interests in our subsidiaries.

The Credit Facility includes traditional lending and reporting covenants including a quarterly fixed charge coverage ratio and a senior leverage ratio to be maintained by us. The Credit Facility also includes several potential events of default, such as payment default and insolvency conditions, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in MidCap’s right to declare all outstanding obligation immediately due and payable. We were in compliance with all of the covenants of the Credit Facility as of September 30, 2012.

We have various capital lease arrangements. The leases bear interest at rates ranging from 4.5% to 9.6%, are generally due in monthly principal and interest installments, are collateralized by the related equipment, and have various maturity dates through 2017. As of September 30, 2012, the balance of these capital leases totaled $1.5 million. We entered into leases for machinery and equipment for an aggregate principal balance of $1.7 million during the nine months ended September 30, 2012.

 

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Contractual obligations and commercial commitments

Total contractual obligations and commercial commitments as of September 30, 2012 are summarized in the following table (in thousands):

 

     Payment Due by Year  
     Total      2012
(3  months)
     2013      2014      2015      2016      Thereafter  

Line of Credit with MidCap

   $ 34,909       $ —         $ —         $ —         $ 34,909       $ —         $ —     

Note payable for software licenses

     115         57         58         —           —           —           —     

Note payable to Oracle

     52         52         —           —           —           —           —     

Notes payable for insurance premiums

     1,180         389         791         —           —           —           —     

Capital lease obligations

     1,495         110         344         341         308         311         81   

Operating lease obligations

     11,817         1,019         3,834         2,786         2,464         1,284         430   

Guaranteed minimum royalty obligations

     5,320         928         1,098         1,098         1,098         1,098         —     

New product development milestones (1)

     6,600         —           3,100         1,500         —           2,000         —     

Litigation settlement

     12,000         1,000         4,000         4,000         3,000         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 73,488       $ 3,555       $ 13,225       $ 9,725       $ 41,779       $ 4,693       $ 511   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) This commitment represents payments in cash, and is subject to attaining certain development milestones such as the Food and Drug Administration approval, product design and functionality testing requirements, which we believe are reasonably likely to be achieved.

Stock-based Compensation

Stock-based compensation has been classified as follows in the accompanying condensed consolidated statements of operations (in thousands, except per share data):

 

     Three Months Ended September 30,     Nine Months Ended September 30,  
     2012     2011     2012     2011  

Cost of revenues

   $ 35      $ 47      $ 101      $ 139   

Research and development

     44        (70     220        225   

Sales and marketing

     515        183        830        569   

General and administrative

     406        320        1,059        995   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total

   $ 1,000      $ 480      $ 2,210      $ 1,928   
  

 

 

   

 

 

   

 

 

   

 

 

 

Effect on basic and diluted net loss per share

   $ (0.01   $ (0.01   $ (0.02   $ (0.02
  

 

 

   

 

 

   

 

 

   

 

 

 

Recent Accounting Pronouncements

In September 2011, the Financial Accounting Standards Board (“FASB”) amended its goodwill guidance by providing entities an option to use a qualitative approach to test goodwill for impairment. An entity will be able to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. If it is concluded that this is the case, it is necessary to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. The amendment is effective for the Company beginning January 1, 2012. This amendment did not have a material impact on the Company’s consolidated financial position or results of operations.

In 2011, the FASB issued new accounting guidance that requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance is effective for the Company beginning January 1, 2012. The new guidance eliminates the current option to report other comprehensive income and its components in the statement of shareholders’ equity. While the new guidance changes the presentation of other comprehensive income, there are no changes to the components that are recognized in other comprehensive income. Other than presentation, the adoption of this guidance did not have an impact on the Company’s consolidated financial position or results of operations.

 

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Forward Looking Statements

This Quarterly Report on Form 10-Q incorporates a number of forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act, including statements regarding:

 

   

our estimates regarding anticipated operating losses, future revenue, expenses, capital requirements, and liquidity, including our anticipated revenue growth and cost savings;

 

   

our ability to meet our cash requirements and our expectations for the future uses of cash;

 

   

our ability to market, commercialize and achieve market acceptance of any of our products or any product candidates that we are developing or may develop in the future;

 

   

our ability to achieve development milestones for new product candidates;

 

   

our ability to successfully integrate, and realize benefits from acquisitions of companies or new products, including the Phygen acquisition;

 

   

our ability to successfully achieve and maintain regulatory clearance or approval for our products in applicable jurisdictions;

 

   

the effect of any existing or future federal, state or international regulations on our ability to effectively conduct our business;

 

   

our estimates of market sizes and anticipated uses of our products, including without limitation the market size of the aging spine market and our ability to successfully penetrate such market;

 

   

our business strategy and our underlying assumptions about market data, demographic trends, reimbursement trends, pricing trends, and trends relating to customer collections;

 

   

trends related to the treatment of spine disorders, including without limitation the aging spine market;

 

   

our ability to control our costs, achieve profitability, and the potential need to raise additional funding;

 

   

the amount of our legal expenses associated with the securities and stockholder derivative litigation, litigation regarding our intellectual property and any future litigation that may arise, and the adequacy of our insurance policy coverage regarding those expenses and any damages or settlement payments related to such litigation;

 

   

our ability to maintain an adequate sales network for our products, including to attract and retain independent distributors;

 

   

our ability to enhance our U.S. and international sales networks and product penetration;

 

   

our ability to attract and retain a qualified management team, as well as other qualified personnel and advisors;

 

   

our ability to enter into licensing and business combination agreements with third parties and to successfully integrate the acquired technology and/or businesses;

 

   

our management team’s ability to accommodate growth and manage a larger organization;

 

   

our ability to protect our intellectual property, and to not infringe upon the intellectual property of third parties;

 

   

our ability to maintain compliance with the quality requirements of the FDA and similar regulatory authorities outside of the U.S.;

 

   

our ability to meet the financial covenants under our credit facility and to meet the financial obligations of the Cross Medical settlement;

 

   

our ability to conclude that we have effective disclosure controls and procedures;

 

   

our ability to establish the industry standard in clinical and legal compliance and corporate governance programs;

 

   

the effects of the loss of key personnel;

 

   

potential liability resulting from litigation;

 

   

our belief that we have adequately provided for items under tax examination by government entities;

 

   

potential liability resulting from a governmental review of our or Scient’x’s business practices; and

 

   

other factors discussed elsewhere in this Quarterly Report on Form 10-Q or any document incorporated by reference herein or therein.

Any or all of our forward-looking statements in this Quarterly Report on Form 10-Q may turn out to be wrong. They can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties. Many factors mentioned in our discussion in this Quarterly Report Form 10-Q will be important in determining future results. Consequently, no forward-looking statement can be guaranteed, and actual future results may vary materially.

 

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We also provide a cautionary discussion of risks and uncertainties under “Risk Factors” in Item 1A of this Quarterly Report on Form 10-Q, our Annual Report on Form 10-K for the year ended December 31, 2011 and any updates to those risk factors filed from time to time in our Quarterly Reports on Form 10-Q. These are factors that we think could cause our actual results to differ materially from expected results. Other factors besides those listed there could also adversely affect us.

Without limiting the foregoing, the words “believes,” “anticipates,” “plans,” “expects” and similar expressions are intended to identify forward-looking statements. There are a number of factors that could cause actual events or results to differ materially from those indicated by such forward-looking statements, many of which are beyond our control, including the factors set forth under “Item 1A – Risk Factors.” In addition, the forward-looking statements contained herein represent our estimate only as of the date of this filing and should not be relied upon as representing our estimate as of any subsequent date. While we may elect to update these forward-looking statements at some point in the future, we specifically disclaim any obligation to do so to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking statements.

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

Interest Rate Risk

Our borrowings under our line of credit expose us to market risk related to changes in interest rates. As of September 30, 2012, our outstanding floating rate indebtedness totaled $34.9 million. The primary base interest rate is the U.S. federal prime rate. Assuming the outstanding balance on our floating rate indebtedness remains constant over a year, a 100 basis point increase in the interest rate would decrease pre-tax income and cash flow by approximately $0.3 million. Other outstanding debt consists of fixed rate instruments, including notes payable and capital leases.

Foreign Currency Risk

Our foreign currency exposure continues to grow as we expand internationally. Our exposure to foreign currency transaction gains and losses is the result of certain net receivables due from our foreign subsidiaries and customers being denominated in currencies other than the U.S. dollar, primarily the Euro and Japanese Yen, in which our revenues and profits are denominated. We do not currently engage in hedging or similar transactions to reduce these risks. Fluctuations in currency exchange rates could impact our results of operations, financial position, and cash flows.

Commodity Price Risk

We purchase raw materials that are processed from commodities, such as titanium and stainless steel. These purchases expose us to fluctuations in commodity prices. Given the historical volatility of certain commodity prices, this exposure can impact our product costs. However, because our raw material prices comprise a small portion of our cost of revenues, we have not experienced any material impact on our results of operations from changes in commodity prices. A 10% change in commodity prices would not have a material impact on our results of operations for the three months ended September 30, 2012.

 

Item 4. Controls and Procedures

Disclosure Controls and Procedures

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s (SEC’s”) rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, we carried out an evaluation of the effectiveness of our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this Quarterly Report on Form 10-Q. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

 

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PART II. OTHER INFORMATION

 

Item 1. Legal Proceedings

Litigation

In 1998, Eurosurgical, a French company in the business of sales and marketing of spinal implants, entered into a distribution agreement for the United States, Mexico, Canada, India and Australia with Orthotec, LLC, a California company, or Orthotec. In 2004, Orthotec sued Eurosurgical in connection with a contractual dispute and a $9 million judgment was entered against Eurosurgical by a California court. At the same time, a federal court in California declared Eurosurgical liable to Orthotec for $30 million in connection with an intellectual property dispute. In 2006, Eurosurgical’s European assets were ultimately acquired by Surgiview, SAS, or Surgiview, in a sale agreement approved by a French court. Pursuant to this sale, Surgiview became a subsidiary of Scient’x in 2006. Orthotec attempted to recover on Eurosurgical’s obligations in California and federal courts by filing a motion in a California court to add Surgiview to the judgment against Eurosurgical on theories including successor liability and fraudulent conveyance. In February 2007, the California court denied Orthotec’s motion, indicating that Orthotec had not carried its burdens of proof. Orthotec chose to not proceed with a further hearing in September 2007. In May 2008, after the acquisition of Scient’x by HealthpointCapital in 2007, Orthotec sued Scient’x, Surgiview, HealthpointCapital and certain former Scient’x directors (who currently serve on our board) in a new action in California state court. In addition, at the same time, a similar action was filed in New York against HealthpointCapital and two former directors of Scient’x (who currently serve on our board). In April 2009, the California court dismissed this matter on jurisdictional grounds, and Orthotec appealed such ruling. In December 2010, the California Court of Appeal issued a decision that affirmed in part and reversed in part the trial court’s decision dismissing the entire California action based on lack of personal jurisdiction. The Court of Appeal affirmed the trial court’s ruling that Orthotec failed to establish personal jurisdiction over all parties except Surgiview, finding that the trial court could exercise jurisdiction over that entity. In November 2009, the New York court dismissed Orthotec’s claims based on collateral estoppel, and Orthotec appealed this ruling. In March 2011, the state appeals court in New York reversed the lower court’s decision to dismiss Orthotec’s claims, and the New York matter is proceeding with HealthpointCapital and certain former Scient’x directors (who currently serve on our board) as the only defendants. While the Company intends to vigorously defend against the complaint, and believes that the plaintiff’s allegations are without merit, the outcome of the litigation cannot be predicted at this time and any outcome in favor of Orthotec could have a significant adverse effect on the Company’s financial condition and results of operations.

In August 2009, a complaint filed under the qui tam provisions of the United States Federal False Claims Act (the “FCA”) that had been filed by private parties against Scient’x USA was unsealed by the United States District Court for the Middle District of Florida (Hudak v. Scient’x USA, Inc., et al. (Civil Action No. 6:08-cv-1556-Orl-22DAB, U.S. District Court, W.D. Florida). The complaint alleged violations of the FCA arising from allegations that Scient’x USA engaged in improper activities related to consulting payments to surgeon customers. Under the FCA, the United States Department of Justice, Civil Division, (“DOJ”), had a certain period of time in which to decide whether to intervene and conduct the action against Scient’x, or to decline to intervene and allow the private plaintiffs to proceed with the case. In August 2009, the DOJ filed a notice informing the court that it was declining to intervene in the case. In December 2009, the private plaintiffs who filed the action moved the court to dismiss the matter without prejudice, the Attorney General consented to such dismissal and the matter was dismissed without prejudice. Despite the dismissal of this matter, the DOJ is continuing its review of the facts alleged by the original plaintiffs in this matter. To date, neither the Company nor Scient’x USA has been subpoenaed by any governmental agency in connection with this review. The Company believes that Scient’x USA’s business practices were in compliance with the FCA and intends to vigorously defend itself with respect to the allegations contained in the qui tam complaint. The outcome of the matter, however, cannot be predicted at this time and any adverse outcome could have a significant adverse effect on the Company’s financial condition and results of operations.

On August 10, 2010, a purported securities class action complaint was filed in the United States District Court for the Southern District of California against us and certain of our directors and executives on behalf of all persons who purchased the Company’s common stock between December 19, 2009 and August 5, 2010 alleging violations of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 thereunder. On February 17, 2011, an amended complaint was filed against the Company and certain of its directors and officers adding alleged violations of the Securities Act of 1933. HealthpointCapital, Jefferies & Company, Inc.,

 

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Canaccord Adams, Inc., Cowen and Company, Inc., and Lazard Capital Markets LLC are also defendants in this action. The complaint alleges that the defendants made false or misleading statements, and failed to disclose material facts, about the Company’s business, financial condition, operations and prospects, particularly relating to the Scient’x transaction and the Company’s financial guidance following the closing of the acquisition. The complaint seeks unspecified monetary damages, attorneys’ fees, and other unspecified relief. On March 21, 2012, the court granted the defendants’ motions to dismiss the plaintiff’s complaint against all defendants and gave the plaintiff leave to file an amended complaint. On April 19, 2012, the plaintiff filed an amended complaint and the defendants have answered this amended complaint with a motion to dismiss the amended complaint. The Company believes the claims are without merit and intends to vigorously defend itself against this complaint. However, no assurances can be given as to the timing or outcome of this lawsuit.

On August 25, 2010, an alleged shareholder of the Company’s filed a derivative lawsuit in the Superior Court of California, San Diego County, purporting to assert claims on behalf of the Company against all of its directors and certain of its officers and HealthpointCapital. Following the filing of this complaint, similar complaints were filed in the same court and in the U.S. District Court for the Southern District of California against the same defendants containing similar allegations. The complaint filed in federal court was dismissed by the plaintiff without prejudice in July 2011. The state court complaints have been consolidated into a single action. The Company has been named as a nominal defendant in the consolidated action. Each complaint alleges that the Company’s directors and certain of its officers breached their fiduciary duties to the Company related to the Scient’x transaction, and by making allegedly false statements that led to unjust enrichment of HealthpointCapital and certain of the Company’s directors. The complaints seek unspecified monetary damages and an order directing the Company to adopt certain measures purportedly designed to improve its corporate governance and internal procedures. This consolidated lawsuit has been stayed by order of the court until February 8, 2013. The Company believes the claims are without merit and intends to vigorously defend itself against these complaints; however no assurances can be given as to the timing or outcome of this lawsuit.

At September 30, 2012, the probable outcome of any of the aforementioned litigation matters cannot be determined nor can the Company estimate a range of potential loss. Accordingly, in accordance with the authoritative guidance on the evaluation of contingencies, the Company has not recorded an accrual related to these litigation matters. The Company is and may become involved in various other legal proceedings arising from its business activities. While management does not believe the ultimate disposition of these matters will have a material adverse impact on the Company’s consolidated results of operations, cash flows or financial position, litigation is inherently unpredictable, and depending on the nature and timing of these proceedings, an unfavorable resolution could materially affect the Company’s future consolidated results of operations, cash flows or financial position in a particular period.

 

Item 1A. Risk Factors

There have been no material changes to the risk factors described under Item 1A of Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 as well as any updates to those risk factors filed from time to time in our Quarterly Reports on Form 10-Q.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Unregistered Sales of Equity Securities

In July 2012, we entered into a consulting agreement with a third-party entity for marketing and advertising services. In connection with this agreement the issued 176,000 unregistered shares of our common stock, par value $0.001 per share (the “Stock Consideration”). We did not receive any cash proceeds from the issuance of the Stock Consideration. The Stock Consideration was issued in reliance upon an exemption from registration under federal securities laws provided by Section 4(2) of the Securities Act and/or Rule 506 of Regulation D promulgated under the Securities Act, for the issuance and exchange of securities in transactions by an issuer not involving a public offering. The Company does not have an obligation, nor does it anticipate, registering the Stock Consideration for resale on a registration statement pursuant to the Securities Act.

Issuer Purchases of Equity Securities

Under the terms of our Amended and Restated 2005 Employee, Director and Consultant Stock Plan, or the 2005 Plan, we may award shares of restricted stock to our employees, directors and consultants. These shares of restricted stock are subject to a lapsing right of repurchase by us. We may exercise this right of repurchase in the event that a restricted stock recipient’s employment, directorship or consulting relationship with us terminates prior to the end of the vesting period. If we exercise this right, we are required to repay the purchase price paid by or on behalf of the recipient for the repurchased restricted shares. Repurchased shares are returned to the 2005 Plan and are available for future awards under the terms of the 2005 Plan. Shares repurchased during the three months ended September 30, 2012 were as follows:

 

Month/Year

  Total Number
of Shares
Purchased (1)
    Average Price
Paid per
Share
    Total Number  of
Shares Purchased
as Part of Publicly
Announced Plans
or Programs
    Maximum Number
of  Shares that May
Yet be Purchased
Under the Plans or
Programs
 

July 2012

    —        $ —          —          —     

August 2012

    —        $ —          —          —     

September 2012

    —        $ —          —          —     

 

(1) Not included in the table above are 2,357 forfeited and retired shares in connection with the payment of minimum statutory withholding taxes due upon the vesting of certain stock awards or the exercise of certain stock options. In lieu of making a cash payment with respect to such withholding taxes, the holders of such stock forfeited a number of shares at the then current fair market value to pay such taxes.

 

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Item 6. Exhibits

 

*10.1    Separation Agreement and Release by and among Alphatec Holdings, Inc. and Dirk Kuyper dated August 7, 2012.
*10.2    Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Steven Lubisher, dated August 24, 2012.
*10.3    Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Mitsuo Asai, dated August 21, 2012.
  31.1    Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  31.2    Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  32    Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101    The following materials from Alphatec Holdings, Inc.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, formatted in XBRL (eXtensible Business Reporting Language); (i) Condensed Consolidated Balance Sheets as of September 30, 2012 and December 31, 2011, (ii) Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2012 and 2011, (iii) Condensed Consolidated Statements of Comprehensive Income (Loss) for the nine months ended September 30, 2012 and 2011, (iv) Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2012 and 2011, and (v) Notes to Condensed Consolidated Financial Statements**.

 

* Management contract or compensatory plan or arrangement.
** Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.

 

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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 thereunto duly authorized.

 

ALPHATEC HOLDINGS, INC.
By:  

/s/ Leslie H. Cross

  Leslie H. Cross
 

Chairman and Chief Executive Officer

(principal executive officer)

By:  

/s/ Michael O’Neill

  Michael O’Neill
 

Chief Financial Officer, Vice President and Treasurer

(principal financial and accounting officer)

Date: November 5, 2012

 

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Exhibit Index

 

*10.1    Separation Agreement and Release by and among Alphatec Holdings, Inc. and Dirk Kuyper dated August 7, 2012.
*10.2    Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Steven Lubisher, dated August 24, 2012.
*10.3    Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Mitsuo Asai, dated August 21, 2012.
  31.1    Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  31.2    Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  32    Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101    The following materials from Alphatec Holdings, Inc.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, formatted in XBRL (eXtensible Business Reporting Language); (i) Condensed Consolidated Balance Sheets as of September 30, 2012 and December 31, 2011, (ii) Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2012 and 2011, (iii) Condensed Consolidated Statements of Comprehensive Income (Loss) for the nine months ended September 30, 2012 and 2011, (iv) Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2012 and 2011, and (v) Notes to Condensed Consolidated Financial Statements**.

 

* Management contract or compensatory plan or arrangement.
** Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.

 

31

Exhibit 10.1

CONSULTING AGREEMENT

This Consulting Agreement (the “ Agreement ”) is entered into as of August 7, 2012 (the “ Effective Date ”), by and between Alphatec Spine, Inc. (the “ Company ”), a California Corporation and Dirk Kuyper, (the “ Service Provider ”), an individual, (each a “ Party ”, and together, the “ Parties ”).

WHEREAS, the Company desires to retain the Service Provider to render certain professional services to the Company and the Service Provider desires to be so retained by the Company and to perform the services specified herein, all in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises, conditions and representations set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Company and the Service Provider agree as follows:

 

1.

PROFESSIONAL SERVICES

1.1 Statement of Work . The Company hereby engages the Service Provider to provide professional services (the “ Services ”) to the Company during the term of this Agreement, and the Service Provider hereby accepts such engagement. The Service Provider agrees to perform for the Company the Services, and to provide to the Company the work product, set forth in Schedule A (the “ Statement of Work ”) which is attached hereto and incorporated herein by reference. The Statement of Work may be amended from time to time by mutual written agreement of the Parties.

1.2 Best Efforts . The Service Provider shall use its best efforts to perform the Services for the Company, and to provide the work product to the Company, in accordance with the schedule forth in the Statement of Work.

1.3 Location and Access . Except as otherwise stated in the Statement of Work, the Service Provider may perform the Services at the Company’s premises, the Service Provider’s premises or such other premises that the Company and the Service Provider may deem appropriate. The Company shall permit the Service Provider to have reasonable access to the Company’s premises and personnel for the purposes of performing the Services.

1.4 Records and Reports . The Service Provider shall keep accurate written records of its activities under this Agreement and shall make such records available to the Company upon request. Unless otherwise stated in the Statement of Work, the Service Provider shall provide the Company with periodic written reports on such activities. The Service Provider shall also provide the Company with such other reports that the Company may periodically request during the term of this Agreement.

 

1


2.

PAYMENT

The Company agrees to compensate the Service Provider for the Services that it performs pursuant to this Agreement in accordance with the payment terms set forth in Schedule B attached hereto and incorporated herein by reference. Payment shall be made only for work that, in the sole discretion of the Company (i) has been performed satisfactorily and in a timely manner; (ii) is accompanied by the written work product required by the terms of the applicable Statement of Work; and (iii) is accompanied by an approved written invoice. The Service Provider shall be solely responsible for complying with all federal, state, local and other tax laws and regulations applicable to payments received from the Company under this Agreement.

 

3.

PROHIBITED ACTIVITIES

3.1 Non-Solicitation . While the Service Provider performs Services hereunder and for a period of six months following the termination of the Service Provider’s engagement hereunder, the Service Provider shall not, without the prior written consent of the Company:

(a) either individually or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate, for the purpose of competing with the Company or any of its affiliates (the “Company Group”), any customer or patrons of the Company Group, or any prospective customers or patrons with respect to which the Company Group has made a sales presentation (or similar offering of the Company’s products and services);

(b) either individually or on behalf of or through any third party, directly or indirectly, solicit, entice or persuade or attempt to solicit, entice or persuade any employee, agent, consultant or contractor of the Company Group to leave the service of the Company Group for any reason; or

(c) either individually or on behalf of or through any third party, directly or indirectly, interfere with, or attempt to interfere with, the relations between the Company Group and any vendor or supplier to the Company Group.

3.2 Reasonableness of Restrictions . The Service Provider further recognizes and acknowledges that (i) the types of activities prohibited by this Section 3 are narrow, reasonable, and necessary based on the Service Provider’s access to trade secrets and Confidential Information (as defined below); and (ii) the time period and the geographical scope of the provisions of this Section 3 are reasonable, legitimate and fair to the Service Provider in light of the Company Group’s need to market its services and sell its products in a large geographic area in order to have a sufficient customer base to make the Company Group’s business profitable and in light of the limited restrictions on the types of activities prohibited herein.

 

4.

PROTECTED INFORMATION

4.1 The Service Provider acknowledges that, while the Service Provider performs Services hereunder, the Company shall, and its designees and agents may, furnish, disclose or make available to the Service Provider Confidential Information (as defined below) and that the Company may provide the Service Provider with unique and specialized training. Additionally, the Service Provider acknowledges that that, while the Service Provider performs Services hereunder, the Service Provider may create additional Confidential Information.

 

2


4.2 For purposes of this Agreement, “Confidential Information” means confidential and proprietary information of the Company Group, whether in written, oral, electronic or other form, including but not limited to, information and facts concerning business plans, customers, future customers, suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and materials, financial information, sales prospects, client lists, inventions, the schedules attached hereto, or any other scientific, technical or trade secrets of the Company Group, that is either provided to the Service Provider by the Company Group or its designees or agents or created during the performance of Services pursuant to this Agreement, provided that Confidential Information shall not include information that is in the public domain other than through any fault or act by the Service Provider or any third party that did not have an obligation to keep such information confidential.

4.3 Each Party agrees that the existence of and the terms of this Agreement shall be deemed to be “Confidential Information” and shall be treated in accordance with this Section.

4.4 The Service Provider shall at all times, both during the period while the Service Provider performs Services hereunder and after the termination or expiration of this Agreement for any reason or for no reason, maintain in confidence and shall not, without the prior written consent of the Company, use, disclose, or give to others any Confidential Information, except in connection with the provision of Services hereunder. The terms of this Section 4 shall survive indefinitely the termination or expiration of this Agreement.

 

5.

OWNERSHIP OF IDEAS, COPYRIGHTS AND PATENTS

5.1 Property of the Company . All ideas, discoveries, creations, manuscripts and properties, innovations, improvements, know-how, inventions, designs, drawings, developments, apparatus, techniques, methods, data and results whether patentable, copyrightable or not, which the Service Provider may conceive, reduce to practice or develop while the Service Provider performs Services during the term of this Agreement (and, if based on or related to any Company Confidential Information, after the termination or expiration of this Agreement), alone or in conjunction with another or others, whether during or out of regular business hours, whether or not on the Company’s premises or with the use of its equipment, and whether at the request or upon the suggestion of the Company or otherwise (collectively, the “Inventions”), shall be and hereby are the sole and exclusive property of the Company Group, and the Service Provider shall not publish any of the Inventions without the prior written consent of the Company. Without limiting the foregoing, the Service Provider also acknowledges that all original works of authorship which are made by the Service Provider (solely or jointly with others) which were created during the Service Provider’s performance of Services hereunder (and, if based on or related to any Confidential Information, after the termination or expiration of this Agreement), which are protectable by copyright are “works made for hire” pursuant to the United States Copyright Act (17 U.S.C. Section 101). The Service Provider hereby assigns to the Company all of the Service Provider’s right, title and interest in and to all Inventions. The Service Provider further represents that, to the best of the Service Provider’s knowledge and belief, none of the Inventions shall violate or infringe upon any right, patent, copyright, trademark or right of

 

3


privacy, or constitute libel or slander against or violate any other rights of any person, firm or corporation, and that the Service Provider shall use the Service Provider’s best efforts to prevent any such violation.

5.2 Cooperation . At any time during the Service Provider’s service hereunder or after the termination of the Service Provider’s engagement hereunder for any reason or for no reason, the Service Provider shall cooperate fully with the Company and its attorneys and agents in the preparation and filing of all papers and other documents as may be required to perfect the Company’s rights in and to any Inventions described in Section 5.1 , including, but not limited to, joining in any proceeding to obtain letters patent, copyrights, trademarks or other legal rights with respect to any such Inventions in the United States and in any and all other countries, provided that the Company shall bear the expense of such proceedings, and that any patent or other legal right so issued to the Service Provider personally shall be assigned by the Service Provider to the Company without charge by the Service Provider.

 

6.

SERVICE PROVIDER WARRANTIES

The Service Provider warrants and represents to the Company as follows:

(i) Any works of authorship, copyrightable material or other Inventions developed under this Agreement shall not infringe any patent, copyright, trade secret, trademark or other rights of any third party;

(ii) The execution and performance of this Agreement shall not constitute a breach or default under any contract or instrument to which the Service Provider is a party, or by which it is bound, and the Service Provider is under no contractual or other obligation to any third party which would prevent or limit its performance of Services under this Agreement;

(iii) The Service Provider is free at the present time to disclose to the Company, without breach of any obligation to a third party, any and all information, ideas, suggestions, developments, or know-how that the Service Provider shall divulge in performing the Services under this Agreement;

(iv) The Service Provider has complied with and shall comply with all federal, state, and local laws in connection with the Services to be performed under this Agreement;

(v) The Services shall conform to the highest standards of workmanship and the specifications, timelines, and budgets set out in the Statement of Work or otherwise agreed by the Parties; and

(vii) Except as otherwise disclosed in the applicable Statement of Work, the deliverables under such Statement of Work do not and shall not incorporate any pre-existing work, either in whole or in part.

 

4


7.

INDEMNITY

7.1 Indemnification by the Service Provider . The Service Provider agrees that it shall defend, at its own expense, and shall indemnify and hold harmless the Company, and its officers, directors employees, agents, and assigns (the “ Company Indemnitees ”) from and against any and all damages, demands, expenses, claims, liabilities, injuries, suits, and proceedings, including, without limitation, attorneys’ fees (the “ Losses ”), to the extent that such Losses arise from (i) the Service Provider’s breach of this Agreement, (ii) any act or omission of a Service Provider Indemnitee (as defined below) (including without limitation any infringement of a third party’s intellectual property rights) or any negligence or willful misconduct, (iii) a breach by the Service Provider of any of the Service Provider’s obligations to a third party that arises during the performance of the Services under this Agreement, or (iv) a violation of any federal, state or local law, regulation, or ordinance by a Service Provider Indemnitee.

7.2 Indemnification by the Company . The Company will defend, indemnify and hold harmless the Service Provider and its employees, agents and assigns (the “ Service Provider Indemnitees ”) from and against any and all Losses, to the extent that such Losses arise from (i) the Company’s breach of this Agreement, (ii) any act or omission of a Company Indemnitee (including without limitation any infringement of a third party’s intellectual property rights) or any negligence or willful misconduct, (iii) a breach by the Company of any of the Company’s obligations to a third party that arises in connection with the Services provided under this Agreement, or (iv) a violation of any federal, state or local law, regulation, or ordinance by a Company Indemnitee.

7.3 Indemnification Procedures . Each Party will notify the other Party promptly upon learning of a claim, demand, suit, or proceeding that might give rise to a Loss, and the potentially indemnifying Party may control defense and settlement thereof provided it does so diligently, in good faith and using reasonably experienced counsel with expertise in the relevant field. The potentially indemnified Party will reasonably cooperate in such defense and/or settlement at the potentially indemnifying Party’s request and expense and may participate at its own expense using its own counsel. The obligations of indemnification set forth in this Section 7 shall apply to third party claims and claims made between the Parties.

 

  7.4

Limitation of Liability

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE TO SERVICE PROVIDER FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID UNDER THIS AGREEMENT FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM.

 

8.

TERM AND TERMINATION

8.1 Term . This Agreement shall be effective on the Effective Date and shall continue in full force and effect for 90 days, unless earlier terminated as permitted herein.

 

5


8.2 Termination for Convenience . Either Party may terminate this Agreement at any time upon written notice to the other Party. Upon termination, the Service Provider shall not be entitled to receive any further payments other than for Services rendered to, and approved costs and expenses incurred on behalf of, the Company prior to the date of termination of this Agreement, all in accordance with Schedule B hereto and any applicable Statements of Work.

8.3 Termination for Breach . If one Party defaults in the performance of, or fails to perform, any of its material obligations under this Agreement, and such default is not remedied within 30 days of the receipt of written notice from the non-defaulting Party, then the non-defaulting Party shall have the right to terminate this Agreement upon written notice and avail itself of any and all rights and remedies to which it may be entitled in accordance with the applicable provisions of this Agreement.

8.4 Return of Company Materials . Upon expiration or termination of this Agreement for any reason, or at any time upon request by the Company, the Service Provider shall immediately return to the Company all property belonging to the Company Group, including without limitation all Confidential Information in the Service Provider’s possession or control, any and all notes, drawings, lists, memoranda, magnetic disks or tapes, or other recording media containing such Confidential Information, whether alone or together with nonconfidential information, all documents, reports, files, memoranda, records, software, credit cards, door and file keys, computer access codes, disks and instructional manuals, or any other physical or personal property that the Service Provider received, prepared, or helped prepare in connection with its performance of Services under this Agreement. If any such property is not in the Service Provider’s possession and control, the Service Provider shall use its best efforts to obtain and return the same and the Service Provider shall not retain any copies, duplicates, reproductions, or excerpts thereof, nor shall it show or give any of the above to any third party.

 

9.

NOTICES

All notices, requests, consents and other communications hereunder which are required to be provided, or which the sender elects to provide, in writing, shall be addressed to the receiving Party’s address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either (i) delivered by hand, or (ii) sent by a nationally recognized overnight courier. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving Party at the address of such Party set forth below, or (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service.

If to the Company:

Alphatec Spine, Inc.

5818 El Camino Real

Carlsbad, California 92008

Attn: Legal Department

If to the Service Provider:

Address on file with the Company

 

6


10.

GENERAL

10.1 Entire Agreement; Prior Activities . This Agreement embodies the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. The Parties agree and acknowledge that prior to the Effective Date the Service Provider provided consulting services to the Company, and that Service Provider has been paid in full for the performance of such services.

10.2 Modifications and Amendments . The terms and provisions of this Agreement may be modified or amended only by written agreement executed by the Parties hereto.

10.3 Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

10.4 Assignment . The Company may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of the Company’s business or that aspect of the Company’s business in which the Service Provider is principally involved. The Service Provider’s rights and obligations under this Agreement may not be assigned without the prior written consent of the Company and any such attempted assignment by the Service Provider without the prior written consent of the Company shall be void.

10.5 Governing Law . The parties hereto expressly agree that this Agreement shall be governed by and construed in accordance with the laws of the State of California and the venue of any action brought shall be in the state or federal courts located in San Diego County, California.

10.6 Severability . The Parties intend this Agreement to be enforced as written. However, (i) if any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a duly authorized court or arbiter having jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law, and (ii) if any provision, or part thereof, is held to be unenforceable because of the duration of such provision or the geographic area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the duration and/or geographic area of such provision, and/or to delete specific words and phrases (“blue-penciling”), and in its reduced or blue-penciled form such provision shall then be enforceable and shall be enforced.

 

7


10.7 Injunctive Relief . The Service Provider hereby expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in Section 3, 4 or 5 of this Agreement shall result in substantial, continuing and irreparable injury to the Company. Therefore, in addition to any other remedy that may be available to the Company, the Company shall be entitled to injunctive or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of Section 3, 4 or 5 of this Agreement.

10.8 No Waiver of Rights, Powers and Remedies . No failure or delay by a Party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the Parties hereto, shall operate as a waiver of any such right, power or remedy of the Party. No single or partial exercise of any right, power or remedy under this Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.

10.9 Independent Contractor. The Company and the Service Provider agree that the relationship of the Service Provider to the Company is at all times that of an independent contractor and not that of an employee, partner or joint-venturer of or with the Company. The Service Provider hereby acknowledges that it is not, and shall not be, entitled to any benefits that may be afforded to employees of the Company from time to time, including, without limitation, any insurance, employee benefit plans or Company policies that may be in effect from time to time.

10.10 Opportunity to Review . The Service Provider hereby acknowledges that the Service Provider has had adequate opportunity to review these terms and conditions and to reflect upon and consider the terms and conditions of this Agreement, and that the Service Provider has had the opportunity to consult with counsel of the Service Provider’s own choosing regarding such terms. The Service Provider further acknowledges that the Service Provider fully understands the terms of this Agreement and has voluntarily executed this Agreement.

10.11 Survival . Notwithstanding any other provision in this Agreement, the Parties agree that those provisions contained herein which by their nature are intended to survive the termination of this Agreement shall survive, including Sections 3, 4, 5, 7, 8.4, 10.5 and 10.7 .

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

* * *

 

8


IN WITNESS WHEREOF, the Parties have set their hands and seals to this Agreement as of the Effective Date.

ALPHATEC SPINE, INC.

 

/s/ Les Cross

Les Cross

Chairman and Chief Executive Officer

SERVICE PROVIDER

 

/s/ Dirk Kuyper

Dirk Kuyper

 

9


SCHEDULE A

STATEMENT OF WORK

 

1.

Services

Service Provider will carry out an efficient and cooperative transition of his former job duties and provide such other transition services as are reasonably requested by the Company.

 

2.

Schedule

The Service Provider shall perform the Services in accordance with a schedule agreed upon by the Parties.

 

3.

Location in which the Services shall be conducted

The Service Provider may perform the Services at the premises that the Company and the Service Provider mutually deem appropriate. It is anticipated that the Services shall require the Service Provider to travel both within and outside of the United States.

 

4.

Deliverables/specifications

The description and nature of specific deliverables by the Service Provider shall be determined by the Parties during the research and development process.

 

5.

Acceptance

Following receipt of any deliverable, Company shall have the right, but not the obligation, to perform its own evaluations to confirm that the deliverables substantially conform to the specifications set out herein. If they do not, Company shall describe with particularity any material nonconformity with the specifications in a notice of rejection. Following receipt of a notice of rejection, Service Provider shall devote its best efforts to promptly remedy the nonconformity described in the notice. If Service Provider fails to remedy the nonconformity within 30 days of receipt of notice, Company may exercise one of the following options: (i) Company may extend the time period for delivery of the corrected deliverable at no additional cost; or (ii) Company may terminate the Agreement pursuant to the provisions of Section 8.3 the relevant Statement of Work, or the particular Services which are nonconforming. In the event that Service Provider supplies corrected deliverables in accordance with this provision, the process described in this Section shall begin anew and shall apply to the corrected deliverables. The process shall be repeated until the earlier of acceptance of the deliverables or termination of the Agreement or Services.

 

10


SCHEDULE B

Consideration for the Services

The Parties agree and acknowledge that Service Provider has been granted an aggregate of 50,000 vested options to acquire Company shares (the “ Options ”) pursuant to an award agreement dated November 4, 2012 with a strike price of $2.31 per share (the “Grant Agreement”). Pursuant to the terms of the Grant Agreement, the Service Provider has until the 90th day following the Service Provider’s termination of employment with the Company to exercise the Options. As consideration for the Services provided under this Agreement, the Company agrees to cause the Grant Agreement to be amended to extend the period in which Service Provider may exercise certain of the Options (the “ Extended Options ”) to the third anniversary of the date of the extension. The number of Extended Options shall be the number of Options (calculated on the Black-Scholes model) equal in value to the aggregate amount invoiced in accordance with this Agreement by the Service Provider for the Services (with the Service Provider’s hourly fee for Services being $240 per hour), with the calculation performed on the earlier of (i) the 90 th day after the Effective Date (or the prior trading day, if such date is not a trading day); and (ii) the termination date of this Agreement (or the prior trading day, if such date is not a trading day).

In addition, during the term of the Agreement the Service Provider shall be entitled to continue to use the automobile provided to the Service Provider during his employment with the Company. However, during such time period: (i) the Company will be responsible only for the vehicle’s lease payments and the cost of automobile liability insurance coverage; and (ii) the Service Provider shall be responsible for all other operating expenses related to the automobile. The value ascribed to such automobile usage shall be $1,000 per 30-day period. In the event that the consideration paid to the Service Provider set forth in the proceeding paragraph exceeds the value of all of the Extended Options, credit shall then be given against the Service Provider’s hourly Services in an amount equal to the aggregate value ascribed to such automobile usage.

Each month the Service Provider shall submit an itemized invoice for Services provided to Company.

 

11

Exhibit 10.2

RETENTION BONUS AGREEMENT

This RETENTION BONUS AGREEMENT (“Agreement”) is made as of August 24, 2012 (the “Effective Date”), between Alphatec Spine, Inc. (together with its subsidiary, Alphatec Pacific, Inc., and any of their successors or assigns, the “Company”), and Stephen Lubischer (the “Executive”). The Company and the Executive are sometimes hereinafter referred to individually as a “Party” and together as “Parties.”

WHEREAS, Company and Executive are parties to a certain Employment Agreement (the “Employment Agreement”); and

WHEREAS, the Executive has business knowledge and expertise in the conduct of the Company’s business and the Company desires to assure itself of the continued services of the Executive so it will have the continued benefit of his/her ability, experience and services.

NOW THEREFORE, in consideration of the reciprocal obligations and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

1. Retention Bonus .

(a) Subject to the provisions set forth in Section 1(c) and 1(d) below, the Company agrees to pay the Executive a retention bonus (the “Retention Bonus”) as set forth in Exhibit 1 .

(b) Executive’s entitlement to a Retention Bonus pursuant to this Agreement is in addition to any compensation and/or benefits to which Executive is entitled pursuant to the Employment Agreement. Notwithstanding anything to the contrary in this Agreement, Executive’s employment with the Company remains subject to the terms and conditions of the Employment Agreement. Company and Executive agree that nothing in this Agreement shall amend, alter or otherwise modify any of the terms in the Employment Agreement. In the event of a conflict between this Agreement and the Employment Agreement, the terms of the Employment Agreement shall take precedence and control.

(c) If Executive’s employment with the Company is terminated prior to September 30, 2013: (i) by the Company for “Cause” (as defined below); or (ii) by the Executive for any reason (each a “Repayment Termination”), the Retention Bonus shall be considered unearned and not payable to the Executive. If the Company has already paid a portion of the Retention Bonus to Executive at the time of termination of employment and such termination is a Repayment Termination, Executive shall return the paid portion of the Retention Bonus to the Company within fifteen (15) days of the termination date. To the extent permitted by law, Executive hereby authorizes the Company to deduct from any amount due the Executive from the Company, including but not limited to Executive’s final paycheck and any severance or other benefit, any Retention Bonus amount subject to this repayment provision. If such deductions are insufficient to reimburse the Company for the full amount owed by Executive, Executive shall remain personally liable for the remaining balance. For purposes of this Agreement, “Cause” means any one of the following: (i) Executive being convicted of a felony; (ii) failure or refusal by Executive to follow policies or directives reasonably established by the Executive’s supervisor; (iii) a material breach of the Employment Agreement; (iv) any gross or willful misconduct, dishonesty, fraud or negligence; (v) a failure by the Executive to perform its duties to a reasonable level of expectations; or (vi) egregious conduct by Executive that brings Company or any of its subsidiaries or affiliates into public disgrace or disrepute.

(d) The initial payment of the Retention Bonus shall be paid within fifteen (15) days of this Agreement. The second payment of the Retention Bonus shall be conditioned on the Executive being employed by the Company on September 30, 2013.

2. Executive’s Representations . Executive hereby represents and warrants to the Company that (i) Executive has entered into this Agreement of Executive’s own free will for no consideration other than as referred to herein, (ii) the execution, delivery and performance of this Agreement by him/her do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he/she is bound, and (iii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable


in accordance with its terms. Executive hereby acknowledges and represents that Executive has had the opportunity to consult with independent legal counsel regarding his/her rights and obligations under this Agreement and that Executive fully understands the terms and conditions contained herein.

3. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight courier service, sent by telecopy (with hard copy to follow by regular mail) or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:

Notices to the Executive : At the address on file.

Notices to the Company :

Alphatec Spine, Inc.

Attn: SVP, Global Human Resources

5818 El Camino Real

Carlsbad, CA 92008

or such other address or to the attention of such other person as the recipient Party shall have specified by prior written notice to the sending Party. Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.

4. Choice of Law . ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.

5. Mutual Waiver of Jury Trial . THE COMPANY AND EXECUTIVE EACH WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY AND THE EXECUTIVE EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

6. Section 409A. To the extent any amounts payable hereunder are deferred compensation within the meaning of Section 409A, this Agreement is intended to comply with Section 409A and the terms of this Agreement shall be applied consistent with the requirements of Section 409A. To the extent that any provision of this Agreement is or will be in violation of Section 409A, the Company and Executive agree to amend this Agreement so that it complies with Section 409A. If any amounts payable under this Agreement would be subject to any penalty tax by reason of the application of Section 409A, the Company will use commercially reasonable efforts to take such reasonable steps as it may determine to be necessary or desirable, with Executive’s consent, to ensure that such amounts are not subject to such penalty tax. However, any such tax under Section 409A is ultimately the responsibility of the Executive. Executive is advised to seek tax advice and agrees to assume such personal tax liability as may be incurred under this Agreement. Each amount to be paid or benefit to be provided to Executive pursuant to this Agreement shall be construed as a separate identified payment for purposes of Section 409A.

 

2


7. Amendment and Waiver . The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing or exercising any of the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.

8. Counterparts . This Agreement or any amendment hereto may be executed in counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Agreement may be executed and delivered by facsimile or electronic transmission with the same force and effect as if the same were a fully executed and delivered original manual counterpart.

9. Survival . Sections 2 through 9 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment with the Company, or this Agreement.

[Signatures Follow]

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

 

ALHATEC SPINE, INC.

By:

 

/s/ Heather Rider

Heather Rider

SVP, Global HR

EXECUTIVE

/s/ Stephen Lubischer

 

3


Exhibit 1

Retention Bonus

 

Initial Payment

 

   Second Payment    Total Retention Bonus

$50,000

   $100,000    $150,000

 

4

Exhibit 10.3

RETENTION BONUS AGREEMENT

This RETENTION BONUS AGREEMENT (“Agreement”) is made as of August 21, 2012 (the “Effective Date”), between Alphatec Spine, Inc. (together with its subsidiary, Alphatec Pacific, Inc., and any of their successors or assigns, the “Company”), and Mitsuo Asai (the “Executive”). The Company and the Executive are sometimes hereinafter referred to individually as a “Party” and together as “Parties.”

WHEREAS, Company and Executive are parties to a certain Employment Agreement (the “Employment Agreement”); and

WHEREAS, the Executive has business knowledge and expertise in the conduct of the Company’s business and the Company desires to assure itself of the continued services of the Executive so it will have the continued benefit of his/her ability, experience and services.

NOW THEREFORE, in consideration of the reciprocal obligations and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

1. Retention Bonus .

(a) Subject to the provisions set forth in Section 1(c) and 1(d) below, the Company agrees to pay the Executive a retention bonus (the “Retention Bonus”) as set forth in Exhibit 1 .

(b) Executive’s entitlement to a Retention Bonus pursuant to this Agreement is in addition to any compensation and/or benefits to which Executive is entitled pursuant to the Employment Agreement. Notwithstanding anything to the contrary in this Agreement, Executive’s employment with the Company remains subject to the terms and conditions of the Employment Agreement. Company and Executive agree that nothing in this Agreement shall amend, alter or otherwise modify any of the terms in the Employment Agreement. In the event of a conflict between this Agreement and the Employment Agreement, the terms of the Employment Agreement shall take precedence and control.

(c) If Executive’s employment with the Company is terminated prior to August 21, 2013: (i) by the Company for “Cause” (as defined below); or (ii) by the Executive for any reason (each a “Repayment Termination”), the Retention Bonus shall be considered unearned and not payable to the Executive. If the Company has already paid a portion of the Retention Bonus to Executive at the time of termination of employment and such termination is a Repayment Termination, Executive shall return the paid portion of the Retention Bonus to the Company within fifteen (15) days of the termination date. To the extent permitted by law, Executive hereby authorizes the Company to deduct from any amount due the Executive from the Company, including but not limited to Executive’s final paycheck and any severance or other benefit, any Retention Bonus amount subject to this repayment provision. If such deductions are insufficient to reimburse the Company for the full amount owed by Executive, Executive shall remain personally liable for the remaining balance. For purposes of this Agreement, “Cause” means any one of the following: (i) Executive being convicted of a felony; (ii) failure or refusal by Executive to follow policies or directives reasonably established by the Executive’s supervisor; (iii) a material breach of the Employment Agreement; (iv) any gross or willful misconduct, dishonesty, fraud or negligence; (v) a failure by the Executive to perform its duties to a reasonable level of expectations; or (vi) egregious conduct by Executive that brings Company or any of its subsidiaries or affiliates into public disgrace or disrepute.

(d) The initial payment of the Retention Bonus shall be paid within fifteen (15) days of this Agreement. The second payment of the Retention Bonus shall be conditioned on the Executive being employed by the Company on August 21, 2013.

2. Executive’s Representations . Executive hereby represents and warrants to the Company that (i) Executive has entered into this Agreement of Executive’s own free will for no consideration other than as referred to herein, (ii) the execution, delivery and performance of this Agreement by him/her do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he/she is bound, and (iii) upon the execution and delivery of this


Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that Executive has had the opportunity to consult with independent legal counsel regarding his/her rights and obligations under this Agreement and that Executive fully understands the terms and conditions contained herein.

3. Notices . Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight courier service, sent by telecopy (with hard copy to follow by regular mail) or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:

Notices to the Executive : At the address on file.

Notices to the Company :

Alphatec Spine, Inc.

Attn: SVP, Global Human Resources

5818 El Camino Real

Carlsbad, CA 92008

or such other address or to the attention of such other person as the recipient Party shall have specified by prior written notice to the sending Party. Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.

4. Choice of Law . ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.

5. Mutual Waiver of Jury Trial . THE COMPANY AND EXECUTIVE EACH WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY AND THE EXECUTIVE EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

6. Section 409A. To the extent any amounts payable hereunder are deferred compensation within the meaning of Section 409A, this Agreement is intended to comply with Section 409A and the terms of this Agreement shall be applied consistent with the requirements of Section 409A. To the extent that any provision of this Agreement is or will be in violation of Section 409A, the Company and Executive agree to amend this Agreement so that it complies with Section 409A. If any amounts payable under this Agreement would be subject to any penalty tax by reason of the application of Section 409A, the Company will use commercially reasonable efforts to take such reasonable steps as it may determine to be necessary or desirable, with Executive’s consent, to ensure that such amounts are not subject to such penalty tax. However, any such tax under Section 409A is ultimately the responsibility of the Executive. Executive is advised to seek tax advice and agrees to assume such personal tax liability as may be incurred under this Agreement. Each amount to be paid or benefit to be provided to Executive pursuant to this Agreement shall be construed as a separate identified payment for purposes of Section 409A.

 

2


7. Amendment and Waiver . The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing or exercising any of the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.

8. Counterparts . This Agreement or any amendment hereto may be executed in counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Agreement may be executed and delivered by facsimile or electronic transmission with the same force and effect as if the same were a fully executed and delivered original manual counterpart.

9. Survival . Sections 2 through 9 shall survive and continue in full force in accordance with their terms notwithstanding the termination of Executive’s employment with the Company, or this Agreement.

[Signatures Follow]

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

 

ALHATEC SPINE, INC.

By:

 

/s/ Heather Rider

Heather Rider

SVP, Global HR

EXECUTIVE

/s/ Mitsuo Asai

 

3


Exhibit 1

Retention Bonus

 

Initial Payment

 

  Second Payment   Total Retention Bonus

$35,000

  $65,000   $100,000

 

4

Exhibit 31.1

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Leslie H. Cross, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Alphatec Holdings, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

By:  

/s/ Leslie H. Cross

  Leslie H. Cross
 

Chairman and Chief Executive Officer

(principal executive officer)

  November 5, 2012

Exhibit 31.2

CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Michael O’Neill, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Alphatec Holdings, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

By:  

/s/ Michael O’Neill

  Michael O’Neill
  Chief Financial Officer, Vice President and Treasurer
 

(principal financial officer)

November 5, 2012

Exhibit 32

CERTIFICATION UNDER

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), each of the undersigned officers of Alphatec Holdings, Inc., a Delaware corporation (the “Company”), does hereby certify, to such officer’s knowledge, that:

The Quarterly Report for the quarter ended September 30, 2012 (the “Form 10-Q”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and the information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated: November 5, 2012  

/s/ Leslie H. Cross

  Leslie H. Cross
  Chairman and Chief Executive Officer
  (principal executive officer of the Company)
Dated: November 5, 2012  

/s/ Michael O’Neill

  Michael O’Neill
  Chief Financial Officer, Vice President and Treasurer
  (principal financial and accounting officer of the Company)