Securities Registration: Employee Benefit Plan (s-8)
May 12 2017 - 6:06AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 11, 2017
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Alphatec Holdings, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
20-2463898
(I.R.S. Employer Identification No.)
Alphatec Holdings, Inc.
5818 El Camino Real
Carlsbad, California 92008
(Address of Principal Executive Offices) (Zip Code)
Alphatec
Holdings, Inc. Amended and Restated 2007 Employee Stock Purchase Plan
(Full Title of the Plan)
Craig Hunsaker
EVP,
People & Culture and General Counsel
Alphatec Holdings, Inc.
5818 El Camino Real
Carlsbad, California 92008
(Name and Address of Agent for Service)
(760)
431-9286
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Matthew T. Bush, Esq.
Latham & Watkins, LLP
12670 High Bluff Drive
San Diego, California 92130
(858)
523-5400
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer,
smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use
the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities
To Be Registered
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Amount
To Be
Registered(1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.0001 per share
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500,000 shares(2)
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$2.065(3)
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$1,032,500
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$119.67
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(1)
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The maximum number of shares which may be issued under the Alphatec Holdings, Inc. Amended and Restated 2007
Employee Stock Purchase Plan (the “Plan”) is subject to adjustment in accordance with certain anti-dilution and other provisions of the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such anti-dilution
and other provisions.
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(2)
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Represents an additional 500,000 shares of common stock, par value $0.0001 per share (“Common
Stock”), available for future issuance under the Plan, which shares were added pursuant to an amendment and restatement of the Plan approved by the Registrant’s board of directors effective May 16, 2017, subject to stockholder approval.
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(3)
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This estimate is made pursuant to Rules 457(c) and 457(h) of the Securities Act solely for purposes of
calculating the registration fee. The Proposed Maximum Offering Price Per Share is $2.065, which is the average of the high and low prices for the Registrant’s common stock as reported on The Nasdaq Global Select Market on May 5, 2017.
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Proposed sales to take place as soon after the effective date of the registration statement as awards granted under the
above-named Plan are granted, exercised and/or distributed.
EXPLANATORY NOTE
This Registration Statement registers the offer and sale of an additional 500,000 shares of common stock of the Registrant for
issuance under the Plan. In accordance with Instruction E to Form
S-8,
the contents of the prior registration statements on Form
S-8,
File Nos.
333-211182,
333-202504,
333-196616,
333-187189,
333-147212,
and
333-217055,
previously filed with respect to the Plan, in each case, are hereby incorporated by reference.
In accordance with the instructional Note to Part I of Form
S-8
as promulgated by the
Securities and Exchange Commission (the “Commission”), the information specified by Part I of Form
S-8
has been omitted from this Registration Statement on Form
S-8
for offers of Common Stock pursuant to the Plans. The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as
required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed
by the Registrant with the Commission are incorporated herein by reference:
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The Registrant’s Annual Report on Form
10-K
for the fiscal year
ended December 31, 2016, filed with the Commission on March 30, 2017, as amended by Amendment No. 1 on Form
10-K/A,
filed with the Commission on April 28, 2017;
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The Registrant’s Quarterly Report on Form
10-Q
for the quarter
ended March 31, 2017, filed with the Commission on May 11, 2017;
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The Registrant’s Current Reports on Form
8-K
filed with the
Commission on January 5, 2017, January 26, 2017, February 14, 2017, March 6, 2017, March 9, 2017, March 23, 2017, March 29, 2017 and May 5, 2017 (except for the information furnished under Items 2.02 or 7.01
and the exhibits furnished thereto); and
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The description of the Common Stock contained in the Registrant’s Registration Statement on Form
8-A
(File
No. 000-52024)
filed under the Exchange Act, filed with the Commission on May 26, 2006, including any amendment or report filed for the purpose of updating
such description.
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All reports and other documents filed by the Registrant after the date hereof
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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The Registrant’s
restated certificate of incorporation, as amended, and restated bylaws provide that it shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding
because such person is or was a director or officer of the Registrant or is or was serving as an officer or director of another entity at the Registrant’s request, against all expense, loss or liability reasonably incurred or suffered in
connection therewith. The Registrant’s restated certificate of incorporation, as amended, and restated bylaws provide that the right to indemnification includes the right to be paid expenses incurred in defending any such proceeding in advance
of its final disposition, provided, however, that such advance payment will only be made upon delivery to the Registrant of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined
that such director or officer is not entitled to
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indemnification. If the Registrant does not pay a proper claim for indemnification in full within 60 days after it receives a written claim for such indemnification, the Registrant’s
restated bylaws authorize the claimant to bring an action against the Registrant to recover the unpaid amount of the claim.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the
corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in right of the corporation) brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. In a derivative action, (i.e., one
brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in
good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Delaware Chancery Court or the court in which the action or suit was brought shall determine that such person is fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, Article Tenth of the
Registrant’s restated certificate of incorporation, as amended, eliminates the liability of a director to the Registrant or its stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
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from any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law;
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under Section 174 of the Delaware General Corporation Law; and
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from any transaction from which the director derived an improper personal benefit.
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The Registrant has entered into indemnification agreements with its
non-employee
directors, in addition to the indemnification provided for in the Registrant’s restated certificate of incorporation, as amended, and restated
by-laws.
As permitted by Section 145 of the Delaware General Corporation Law, the Registrant carries insurance policies insuring
its directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
The foregoing discussion of the Registrant’s restated certificate of incorporation, as amended, restated bylaws,
indemnification agreements and Delaware law is not intended to be exhaustive and is qualified in its entirety by such restated certificate of incorporation, as amended, restated bylaws, indemnification agreements or law.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
A list of exhibits included as part of this Registration
Statement is set forth in the Exhibit Index to this Registration Statement and is incorporated herein by reference.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however
, that Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form
S-8,
and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-8
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Carlsbad, State of California, on May 11, 2017.
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ALPHATEC HOLDINGS, INC.
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By:
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/s/ Terry M. Rich
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Terry M. Rich
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Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Alphatec Holdings, Inc. (the “
Company
”), hereby severally
constitute and appoint Terry M. Rich and Craig Hunsaker, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated below, any and all
amendments to this Registration Statement, and all other documents in connection therewith to be filed with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in such capacities to enable the
Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
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Signature
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Title(s)
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Date
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/s/ Mortimer Berkowitz
III
Mortimer Berkowitz III
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Chairman of the Board of Directors
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May 11, 2017
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/s/ Terry M.
Rich
Terry M. Rich
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Director and Chief Executive Officer (Principal Executive Officer)
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May 11, 2017
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/s/ Jeffrey G.
Black
Jeffrey G. Black
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Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting
Officer)
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May 11, 2017
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/s/ Leslie H.
Cross
Leslie H. Cross
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Director
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May 11, 2017
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/s/ David R.
Mowry
David R. Mowry
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Director
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May 11, 2017
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/s/ R. Ian
Molson
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Director
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May 11, 2017
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R. Ian Molson
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/s/ Stephen E.
O’Neil
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Director
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May 11, 2017
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Stephen E. O’Neil
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/s/ Donald A.
Williams
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Director
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May 11, 2017
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Donald A. Williams
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Alphatec Holdings, Inc.
INDEX TO EXHIBITS FILED WITH FORM
S-8
REGISTRATION STATEMENT
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Exhibit
Number
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Exhibit Description
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Filed with
this
Report
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Incorporated by
Reference herein from
Form or Schedule
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Filing Date
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SEC File/
Reg.
Number
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3.1.1
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Restated Certificate of Incorporation of the Registrant
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Amendment No. 2 to
Form
S-1
(Exhibit 3.2)
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04/20/2006
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333-131609
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3.1.2
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Certificate of Amendment to Restated Certificate of Incorporation of the Registrant
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Form
8-K
(Exhibit 3.1(b))
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08/24/2016
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000-52024
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3.1.3
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Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of the
Registrant
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Form
8-K
(Exhibit 3.1)
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03/23/2017
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000-52024
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3.2
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Restated Bylaws
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Amendment No. 5 to
Form
S-1
(Exhibit 3.4)
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05/26/2006
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333-131609
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4.1
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Form of Common Stock Certificate
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Form
10-K
(Exhibit 4.1)
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03/20/2014
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000-52024
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4.2
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Corporate Governance Agreement, dated December 17, 2009, between the Company and certain shareholders of Scient’x
Groupe S.A.S. and Scient’x S.A.
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Form
8-K
(Exhibit 10.1)
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12/22/2009
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000-52024
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4.3
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Registration Rights Agreement, dated March 26, 2010, by and among Alphatec Holdings, Inc. and the other
signatories thereto
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Form
8-K
(Exhibit 4.1)
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03/31/2010
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000-52024
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4.4
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Warrant with Silicon Valley Bank as the Warrantholder, dated December 16, 2011
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Form
10-K
(Exhibit 4.8)
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03/05/2012
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000-52024
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4.5
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Form of Warrant issued to certain investors on March 28, 2017
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Form
8-K
(Exhibit 4.1)
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03/23/2017
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000-52024
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4.6
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Registration Rights Agreement, dated as of March 28, 2017, by and among the Registrant and certain investors
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Form
8-K
(Exhibit 4.2)
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03/23/2017
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000-52024
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5.1
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Opinion of Latham & Watkins LLP
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X
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10.1
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Alphatec Holdings, Inc. Amended and Restated 2007 Employee Stock Purchase Plan
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Schedule 14A
(Appendix B)
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05/05/2017
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000-52024
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23.1
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Consent of Independent Registered Public Accounting Firm
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23.2
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Consent of Latham & Watkins LLP (included in Exhibit 5.1)
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