Alphatec Holdings, Inc S-3, filed Mar 31, 2021
Alphatec Holdings, Inc. (ATEC)
As filed with the Securities and Exchange Commission on March 31, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Alphatec Holdings, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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1950 Camino Vida Roble Carlsbad, CA 92008 (760) 431-9286 |
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20-2463898 |
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(State or other jurisdiction of incorporation or organization) |
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(Address of Principal Executive Offices including Zip Code) |
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(I.R.S. Employer Identification Number) |
Patrick S. Miles
Chief Executive Officer
Alphatec Holdings, Inc.
1950 Camino Vida Roble
Carlsbad, CA 92008
(760) 431-9286
(Name, address, including ZIP code, and telephone number, including area code, of agent for service)
Copies to:
Kevin C. Reyes
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, CA 92130
(858) 523-5400
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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 Class of Securities to be Registered |
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Number of Shares to be Registered(1) |
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Proposed Offering Price |
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Proposed Aggregate |
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Amount of Registration Fee |
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Common Stock, $0.0001 par value per share |
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15,121,512 |
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$15.005 |
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$226,898,288 |
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$24,755 |
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(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also includes an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of stock splits, stock dividends, recapitalizations or other similar transactions. |
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(2) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act based upon the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Select Market on March 30, 2021. |
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. The selling stockholders may not sell the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 31, 2021
PROSPECTUS
15,121,512 Shares of Common Stock
ALPHATEC HOLDINGS, INC.
This prospectus relates to the resale or other disposition by the selling stockholders identified in this prospectus of up to 15,121,512 shares of our common stock. We are not selling any shares of common stock under this prospectus and will not receive any of the proceeds from the sale or other disposition of common stock by the selling stockholders.
The selling stockholders or their pledgees, assignees or successors-in-interest may offer and sell or otherwise dispose of the shares of common stock described in this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders will bear all commissions and discounts, if any, attributable to the sales of shares. We will bear all costs, expenses and fees in connection with the registration of the shares.
The selling stockholders and any broker-dealer executing sell orders on behalf of the selling stockholders, may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended, or the Securities Act. Commissions received by any broker-dealer may be deemed to be underwriting commissions under the Securities Act. See “Plan of Distribution” beginning on page 13 for more information about how the selling stockholders may sell or dispose of their shares of common stock.
Our common stock is listed on the Nasdaq Global Select Market under the symbol “ATEC.” On March 30, 2021, the last reported sale price of our common stock was $15.31 per share.
Investing in our common stock involves a high degree of risk. Before making an investment decision, please read the information under the heading “Risk Factors” beginning on page 8 of this prospectus and in the documents incorporated by reference in this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021
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TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf registration process, the selling stockholders may from time to time offer to sell shares of common stock described in this prospectus in one or more offerings.
Before purchasing any securities, you should carefully read both this prospectus and any applicable prospectus supplement, together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation by Reference.” The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the prospectus supplement.
Neither we nor the selling stockholders have authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus or any applicable prospectus supplement. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. The selling stockholders will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any prospectus supplement may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus or any prospectus supplement may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus and any applicable prospectus supplement, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
When we refer to “Alphatec,” “we,” “our,” “us” and the “Company” in this prospectus, we mean Alphatec Holdings, Inc., unless otherwise specified. When we refer to “you,” we mean the potential holders of the applicable series of securities.
The Alphatec name and logo and the names of products and services offered by Alphatec, Alphatec Spine, Inc. and SafeOp Surgical, Inc. are trademarks, registered trademarks, service marks or registered service marks of Alphatec. All other trademarks, trade names and service marks appearing in this prospectus or the documents incorporated by reference herein are the property of their respective owners. Use or display by us of other parties’ trademarks, trade dress or products is not intended to and does not imply a relationship with, or endorsements or sponsorship of, us by the trademark or trade dress owner. Solely for convenience, trademarks and tradenames referred to in this prospectus appear without the ® and TM symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or that the applicable owner will not assert its rights, to these trademarks and tradenames.
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This summary description about us and our business highlights selected information contained elsewhere in this prospectus or incorporated in this prospectus by reference. This summary does not contain all of the information you should consider before investing in our common stock. You should carefully read this entire prospectus, including each of the documents incorporated herein by reference, before making an investment decision. As used in this prospectus, the terms “we,” “us,” “our,” “Alphatec Holdings” and “Alphatec” mean Alphatec Holdings, Inc. and our subsidiaries.
Alphatec Holdings, Inc.
Overview
We are a medical technology company focused on the design, development, and advancement of technology for better surgical treatment of spinal disorders. Through our wholly owned subsidiaries, Alphatec Spine, Inc. and SafeOp Surgical, Inc., our mission is to revolutionize the approach to spine surgery through clinical distinction. We are focused on developing new approaches that integrate seamlessly with the Alpha InformatiXTM System to provide real-time, objective nerve information that can enhance the safety and reproducibility of spine surgery.
We have a broad product portfolio designed to address the majority of spinal disorders. We have driven nine consecutive quarters of double-digit growth by exploiting our collective spine experience and investing in research and development to continually differentiate our solutions and improve spine surgery. Revenue from U.S. products was $141.1 million for the year ended December 31, 2020, compared to $108.2 million for the year ended December 31, 2019, representing an increase of $32.9 million, or 30%. We believe our future success will be fueled by introducing market-shifting innovation to the spine market, and we believe that we are well-positioned to capitalize on current spine market dynamics.
Corporate Information
We are a Delaware corporation incorporated in March 2005. Our principal executive office is located at 1950 Camino Vida Roble, Carlsbad, California 92008 and our telephone number is (760) 431-9286. Our Internet address is www.atecspine.com. Our website, and the information contained therein, is not a part of this prospectus.
The Offering
This prospectus covers up to 15,121,512 shares of common stock, 2,700,270 of which we issued on December 18, 2020 and 12,421,242 of which we issued March 1, 2021 to the selling stockholders.
On December 18, 2020, pursuant to a debt exchange agreement dated December 16, 2020 (the “Debt Exchange Agreement”), we exchanged (the “Debt Exchange”) $30 million of our outstanding debt obligations pursuant to the Credit, Security and Guaranty Agreement, dated as of November 6, 2018 (as amended, the “Credit Agreement”), by and among us, and Squadron Medical Finance Solutions LLC (“Squadron Medical”) for the issuance of 2,700,270 shares of common stock (the “Debt Exchange Shares”) to Squadron Capital LLC (together with Squadron Medical, “Squadron”) and Tawani Holdings LLC, based on a price of $11.11 per share.
Additionally, on March 1, 2021 (the “Closing Date”), pursuant to a securities purchase agreement dated December 16, 2020 (the “Purchase Agreement”), we issued to the selling stockholders an aggregate of 12,421,242 shares of common stock (the “Private Placement Shares”) for a purchase price of $11.11 per share (the “Private Placement Purchase Price”), in a private placement (the “Private Placement”). Pursuant to the terms of the Purchase Agreement, if the Tender Offer Agreement, dated December 16, 2020 between us and EOS Imaging S.A., a société anonyme organized and existing under the laws of France (the “Tender Offer Agreement”) is terminated or the closing of the tender offer contemplated by the Tender Offer Agreement has not occurred by July 31, 2021, then we shall repurchase the Private Placement Shares from the Purchasers for an amount per share equal to the Private Placement Purchase Price plus interest on the Private Placement Purchase Price at a rate of nine percent (9%) per year computed from the date of the Closing Date to the date of such repurchase.
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We agreed to file a registration statement, of which this prospectus is a part, within 30 days of the Closing Date, to register for resale the shares the Debt Exchange Shares and the Private Placement Shares. We have also agreed to have the registration statement declared effective as soon as possible and in any event between 30 and 60 days after the Closing Date. Once the registration statement is declared effective we have agreed to use our best efforts to keep it effective until all of the shares covered by this prospectus have been sold or may be sold without volume or manner-of-sale restrictions in accordance with Rule 144 under the Securities Act and with the requirement for us to be in compliance with the correct public information requirement of Rule 144 under the Securities Act. If the registration statement is not declared effective within 60 days following the date of issuance of the securities, or the selling stockholders are otherwise unable to re-sell the shares, we will be obligated to pay liquidated damages to the selling stockholders until the selling stockholders are again able to re-sell the shares.
We will not receive any proceeds from the sale of securities by the selling stockholders. See “Use of Proceeds” on page 9 of this prospectus.
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An investment in our common stock involves a high degree of risk. Prior to making a decision about investing in our common stock, you should carefully consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as updated by our subsequent filings with the Securities and Exchange Commission, or the SEC, under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which are incorporated herein by reference, together with the information in this prospectus and any other information incorporated by reference into this prospectus. See the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, financial condition or results of operations. The occurrence of any of these known or unknown risks might cause you to lose all or part of your investment in our common stock.
This prospectus and the information and documents incorporated by reference in this prospectus contain certain statements that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act, including statements regarding:
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our estimates regarding anticipated operating losses, future revenue, expenses, capital requirements, uses and sources of cash and liquidity, including our anticipated revenue growth and cost savings; |
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our ability to meet the affirmative and negative covenants under our credit facility; |
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our ability to ensure that we have effective disclosure controls and procedures; |
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our ability to meet our obligations under the Supply Agreement with Globus Medical, Inc.; |
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our ability to meet, and potential liability from not meeting, the payment obligations under the Orthotec LLC settlement agreement; |
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our ability to maintain compliance with the quality requirements of the U.S. Food and Drug Administration; |
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our ability to market, improve, grow, commercialize and achieve market acceptance of any of our products or any product candidates that we are developing or may develop in the future; |
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our beliefs about the features, strengths and benefits of our products; |
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our ability to continue to enhance our product offerings, outsource our manufacturing operations and expand the commercialization of our products, and the effect of our strategy; |
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our ability to successfully integrate, and realize benefits from licenses and acquisitions |
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the effect of any existing or future federal, state or international regulations on our ability to effectively conduct our business; |
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our estimates of market sizes and anticipated uses of our products; |
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our business strategy and our underlying assumptions about market data, demographic trends, reimbursement trends and pricing trends; |
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our ability to achieve profitability, and the potential need to raise additional funding; |
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our ability to maintain an adequate sales network for our products, including to attract and retain independent distributors; |
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our ability to enhance our U.S. distribution network; |
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our ability to increase the use and promotion of our products by training and educating spine surgeons and our sales network; |
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our ability to attract and retain a qualified management team, as well as other qualified personnel and advisors; |
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our ability to enter into licensing and business combination agreements with third parties and to successfully integrate the acquired technology and/or businesses; and |
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other factors discussed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 or any document incorporated by reference herein or therein. |
Any or all of our forward-looking statements included or incorporated by reference in this prospectus may turn out to be wrong. They can be affected by inaccurate assumptions by known or unknown risks and uncertainties. Many factors mentioned in our discussion included or incorporated by reference in this prospectus will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may vary materially from expected results.
We also provide a cautionary discussion of risks and uncertainties under “Risk Factors” in this prospectus. Other factors besides those discussed could also adversely affect us.
Without limiting the foregoing, the words “believe,” “anticipate,” “plan,” “expect,” “estimate,” “may,” “will,” “should,” “could,” “would,” “seek,” “intend,” “continue,” “project,” and similar expressions are intended to identify forward-looking statements. There are a number of factors and uncertainties 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 discussed under “Risk Factors” herein. In addition, the forward-looking statements contained herein represent our estimate only as of the date of this prospectus 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.
We will not receive any of the proceeds from the sale of shares of our common stock in this offering by the selling stockholders. The selling stockholders will receive all of the proceeds from this offering.
We have agreed to pay all costs, expenses and fees relating to the registration of the shares of our common stock covered by this prospectus. The selling stockholders will pay any brokerage commissions and/or similar charges incurred in connection with the sale or other disposition by them of the shares covered hereby.
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This prospectus relates to the possible resale by certain of our stockholders, who we refer to in this prospectus as the “selling stockholders,” from time to time of up to an aggregate of 15,121,512 shares of our common stock, consisting of the Debt Exchange Shares and the Private Placement Shares. For additional information regarding the issuances of those securities, see “Prospectus Summary—The Offering” above. When we refer to “selling stockholders” in this prospectus, we mean the stockholders listed in the table below, and any pledgees, donees, transferees, assignees and others who later come to hold some or all of the common stock covered by this prospectus.
The table below presents information regarding the selling stockholders, the shares of common stock beneficially owned by each of, the shares of common stock that they may sell or otherwise dispose of from time to time under this prospectus and the number and percentage of our common stock each of the selling stockholders will own assuming all of the shares covered by this prospectus are sold by the selling stockholders.
The selling stockholders include Squadron, our lender under the Credit Agreement. In connection with the Private Placement and the Debt Exchange, on December 16, 2020 we entered into a registration rights agreement (the “Registration Rights Agreement”), with the selling stockholders. In accordance with the terms of the Registration Rights Agreement, this prospectus covers the resale of Debt Exchange Shares and the Private Placement Shares. For additional information regarding material relationships between the selling stockholders (or their affiliates) and us, please refer to the documents filed by us with the SEC and incorporated by reference herein, including the exhibits thereto.
We do not know whether, when or in what amounts the selling stockholders may sell or otherwise dispose of the shares of common stock covered hereby. The selling stockholders might not sell or dispose of any or all of the shares covered by this prospectus or may sell or dispose of some or all of the shares other than pursuant to this prospectus. Because the selling stockholders may not sell or otherwise dispose of some or all of the shares covered by this prospectus and because there are currently no agreements, arrangements or understandings with respect to the sale or other disposition of any of the shares, we cannot estimate the number of the shares that will be held by the selling stockholders after completion of the offering. However, for purposes of this table, we have assumed that all of the shares of common stock covered by this prospectus will be sold by the selling stockholders and that any other shares of our common stock beneficially owned by these selling stockholders will continue to be beneficially owned.
The information in the table is based on 95,149,633 shares outstanding as of March 1, 2021 and was prepared based on information supplied to us by the selling stockholders. Beneficial ownership is determined in accordance with Section 13(d) of the Exchange Act and generally includes voting or investment power with respect to securities and including any securities that grant the selling stockholder the right to acquire shares of common stock within 60 days of March 1, 2021. Other than the transactions referred to herein and in documents filed by us with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, the selling stockholders have not within the past three years had any position, office or other material relationship with us or any of our subsidiaries other than as a holder of our securities.
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Shares of Common Stock Beneficially Owned Prior to the Offering (1) |
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Maximum Number of Shares that May Be Offered Pursuant to this |
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Shares Beneficially Owned After the Sale of the Maximum Number of Shares Offered Hereby (2) |
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Name of Selling Stockholder |
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Percent |
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Prospectus |
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Number |
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Percent |
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Squadron Capital LLC |
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11,395,045(3) |
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11.98% |
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9,450,945 |
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1,944,100 |
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2.04% |
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Tawani Holdings LLC |
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2,722,805 (4) |
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2.86% |
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1,350,135 |
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1,372,670 |
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1.44% |
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Entities affiliated with Avidity Master Fund LP |
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2,182,300 (5) |
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2.06% |
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1,800,180 |
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382,120 |
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* |
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First Light Focus Fund, LP |
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1,477,264(6) |
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1.55% |
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720,072 |
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757,192 |
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Perceptive Life Sciences Master Fund, Ltd. |
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1,800,180(7) |
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1.89% |
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1,800,180 |
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(1) |
“Beneficial ownership” is a term broadly defined by the SEC in Rule 13d-3 under the Exchange Act, and includes more than the typical form of stock ownership, that is, stock held in the person’s name. The term also includes what is referred to as “indirect ownership,” meaning ownership of shares as to which a person has or shares investment power. For purposes of this table, a person or group of persons is deemed to have “beneficial ownership” of any shares that are currently exercisable or exercisable within 60 days of March 1, 2021. |
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Assumes that all shares of common stock being registered under the registration statement of which this prospectus forms a part that are held by the selling stockholders are resold to third parties. However, the selling stockholder may sell all, part or none of its shares of common stock offered pursuant to this prospectus and may sell all, part or none of its common stock pursuant to one or more exemptions from the registration provisions of the Securities Act. |
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(3) |
Squadron Capital LLC (“Squadron Capital”) is a manager-managed limited liability company. The voting and investment decisions of Squadron Capital are made by its managing committee, the members of which are David R. Pelizzon, a member of our board of directors, and Jennifer N. Pritzker, and in such capacity each of Ms. Pritzker and Mr. Pelizzon may be deemed to beneficially own the shares of our common stock held directly by Squadron Capital. Ms. Pritzker also directly and/or jointly holds 30,200 shares of our common stock, and may be deemed to have beneficial ownership over (i) 2,000 shares of our common stock held by the Jennifer N. Pritzker Revocable Trust (“JNP Trust”) for which she serves as trustee, (ii) 2,722,805 shares of our common stock held directly by Tawani, as further described in footnote (4), and (iii) 10,000 shares of our common stock held directly by Mary’s Go Round LLC, a manager-managed limited liability company whose manager and sole member is Tawani Enterprises, Inc., a corporation solely owned by JNP Trust and where Ms. Pritzker is the sole director. Such shares are excluded from the table above. Mr. Pelizzon also directly holds 148,837 shares of our common stock, which are excluded from the table above. Squadron Capital Holdings LLC (“Squadron Holdings”) is a manager-managed limited liability company and the controlling member of Squadron Capital, and in such capacity may be deemed to beneficially own the shares of our common stock held directly by Squadron Capital. The voting and investment decisions of Squadron Holdings are made by its managing committee, consisting of Mary Parthe, Mr. Pelizzon and Michelle Nakfoor. The members of the managing committee of Squadron Holdings disclaim beneficial ownership as a result of serving as members of the managing committee. |
Squadron Medical Finance Solutions LLC (“Squadron Medical”), an affiliate of Squadron Capital, owns (i) warrants to purchase 537,910 shares of our common stock, with an exercise price of $4.88, and expiring on May 29, 2027, (ii) warrants to purchase 2,419,355 shares of our common stock, with an exercise price of $2.17, and expiring on May 29, 2027, and (iii) warrants to purchase 456,000 shares of our common stock, with an exercise price of $3.15, and expiring on May 29, 2027, all of which are immediately exercisable. The shares issuable upon exercise of the Squadron Medical warrants are not included in the table above because pursuant to the terms of the warrants, they are immediately exercisable, but cannot be exercised if, after giving effect to the issuance of common stock pursuant to the warrants, the holder of such warrants, together with any other persons acting as a group with the holder and any affiliates of the holder, would beneficially own in excess of 4.99% of the our common stock outstanding immediately after giving effect to such issuance. The address of Squadron Capital and Squadron Medical is 18 Hartford Ave., PO Box 223, Granby, CT 06035. The address of Squadron Holdings is 104 S. Michigan Avenue, Suite 500, Chicago, Illinois 60603.
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(4) |
Tawani Holdings also owns warrants to purchase 537,910 shares of our common stock, with an exercise price of $4.88, and expiring on May 29, 2027, (ii) warrants to purchase 2,419,355 shares of our common stock, with an exercise price of $2.17, and expiring on May 29, 2027, and (iii) warrants to purchase 389,000 shares of our common stock, with an exercise price of $3.15, and expiring on May 29, 2027. The shares issuable upon exercise of the Tawani Holdings warrants are not included in the table above because pursuant to the terms of the warrants, they are immediately exercisable, but cannot be exercised if, after giving effect to the issuance of common stock pursuant to the warrants, the holder of such warrants, together with any other persons acting as a group with the holder and any affiliates of the holder, would beneficially own in excess of 4.99% of the our common stock outstanding immediately after giving effect to such issuance. Tawani Holdings is a manager-managed limited liability company whose controlling member is JNP Trust and where Ms. Pritzker is one of two managers. In such capacity, Ms. Pritzker may be deemed to beneficially own the shares of our common stock held directly by Tawani Holdings, in addition to the shares of our common stock described in footnote (3). Ms. Pritzker is also one of two managers of Tawani Holdings. The address of Tawani Holdings LLC is 104 S. Michigan Avenue, Suite 500, Chicago, Illinois 60603. |
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(6) |
Consists of 720,072 shares of our common stock owned by First Light Focus Fund, L.P. (“First Light”) and 757,192 shares of our common stock owned by other entities affiliated with First Light Asset Management, LLC. First Light Asset Management, LLC is the investment advisor for First Light. First Light Focus Fund GP, LLC is the general partner of First Light. Mathew P. Arens is the chief executive officer of the managing member of First Light Focus Fund GP, LLC. Mr. Arens and each of the foregoing entities disclaim beneficial ownership of the shares held by First Light except to the extent of any pecuniary interest therein. |
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(7) |
Perceptive Advisors LLC is the investment manager to the Perceptive Life Sciences Master Fund LTD (“Master Fund”) and may be deemed to beneficially own the securities directly held by the Master Fund. Joseph Edelman is the managing member of Perceptive Advisors LLC. Perceptive Advisors LLC and Mr. Edelman may be deemed to beneficially own the shares held by the Master Fund. Perceptive reports that it holds shared voting power and shared dispositive power with respect to all shares held by it. The address of Perceptive is 51 Astor Place, 10th Floor, New York, NY 10003. |
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Securities Offered by the Selling Stockholders
The selling stockholders, including their pledgees, donees, transferees, assignees and others who later come to hold some or all of the common stock covered by this prospectus, may from time to time offer some or all of the shares of common stock covered by this prospectus. To the extent required, this prospectus may be amended and supplemented from time to time to describe a specific plan of distribution.
The selling stockholders will not pay any of the costs, expenses and fees in connection with the registration and sale of the shares covered by this prospectus, but they will pay any and all underwriting discounts, selling commissions and similar charges attributable to sales of the shares. We will not receive any proceeds from the sale of the shares of our common stock covered hereby. The selling stockholders may sell the shares of common stock covered by this prospectus from time to time, and may also decide not to sell all or any of the shares of common stock that they are allowed to sell under this prospectus. The selling stockholders will act independently of us in making decisions regarding the timing, manner and size of each sale. These dispositions may be at fixed prices, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at varying prices determined at the time of sale, or at privately negotiated prices. Sales may be made by the selling stockholders in one or more types of transactions, which may include:
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purchases by underwriters, dealers and agents who may receive compensation in the form of underwriting discounts, concessions or commissions from the selling stockholders and/or the purchasers of the shares of common stock for whom they may act as agent; |
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one or more block transactions, including transactions in which the broker or dealer so engaged will attempt to sell the shares of common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both sides of the trade; |
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ordinary brokerage transactions or transactions in which a broker solicits purchases; |
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purchases by a broker-dealer or market maker, as principal, and resale by the broker-dealer for its account; |
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the pledge of shares of common stock for any loan or obligation, including pledges to brokers or dealers who may from time to time effect distributions of shares of common stock; |
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short sales or transactions to cover short sales relating to the shares of common stock; |
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one or more exchanges or over-the-counter market transactions; |
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through distribution by a selling stockholder or its successor in interest to its members, general or limited partners or shareholders (or their respective members, general or limited partners or shareholders); |
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privately negotiated transactions; |
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the writing of options, whether the options are listed on an options exchange or otherwise; |
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distributions to creditors and equity holders of the selling stockholders; and |
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any combination of the foregoing, or any other available means allowable under applicable law. |
A selling stockholder may also resell all or a portion of its common stock in open market transactions in reliance upon Rule 144 under the Securities Act provided it meets the criteria and conforms to the requirements of Rule 144.
The selling stockholders may enter into sale, forward-sale and derivative transactions with third parties, or may sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those sale, forward-sale or derivative transactions, the third parties may sell securities covered by this prospectus or the applicable prospectus supplement, including in short sale transactions and by issuing securities that are not covered by this prospectus but are exchangeable for or represent beneficial interests in the common stock. The third parties also may use shares received under those sale,
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forward-sale or derivative arrangements or shares pledged by the selling stockholder or borrowed from the selling stockholders or others to settle such third-party sales or to close out any related open borrowings of common stock. The third parties may deliver this prospectus in connection with any such transactions. Any third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment to the registration statement of which this prospectus is a part).
In addition, the selling stockholders may engage in hedging transactions with broker-dealers in connection with distributions of common stock or otherwise. In those transactions, broker-dealers may engage in short sales of securities in the course of hedging the positions they assume with selling stockholders. The selling stockholders may also sell securities short and redeliver securities to close out such short positions. The selling stockholders may also enter into option or other transactions with broker-dealers which require the delivery of securities to the broker-dealer. The broker-dealer may then resell or otherwise transfer such securities pursuant to this prospectus. The selling stockholders also may loan or pledge shares, and the borrower or pledgee may sell or otherwise transfer the common stock so loaned or pledged pursuant to this prospectus. Such borrower or pledgee also may transfer those shares of common stock to investors in our securities or the selling stockholders’ securities or in connection with the offering of other securities not covered by this prospectus.
To the extent necessary, we may amend or supplement this prospectus from time to time to describe a specific plan of distribution. We will file a supplement to this prospectus, if required, upon being notified by the selling stockholders that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, offering or a purchase by a broker or dealer. The applicable prospectus supplement will set forth the specific terms of the offering of securities, including:
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the name of the selling stockholder and the participating broker-dealer; |
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the number of shares of common stock offered; |
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the price of such common stock; |
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the proceeds to the selling stockholders from the sale of such common stock; |
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the names of the underwriters or agents, if any; |
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any underwriting discounts, agency fees or other compensation to underwriters or agents; and |
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any discounts or concessions allowed or paid to dealers. |
In connection with sales of common stock covered hereby, the selling stockholders and any underwriter, broker-dealer or agent and any other participating broker-dealer that executes sales for the selling stockholders may be deemed to be an “underwriter” within the meaning of the Securities Act. Accordingly, any profits realized by the selling stockholders and any compensation earned by such underwriter, broker-dealer or agent may be deemed to be underwriting discounts and commissions. Because the selling stockholders may be deemed to be “underwriters” under the Securities Act, the selling stockholders must deliver this prospectus and any prospectus supplement in the manner required by the Securities Act. This prospectus delivery requirement may be satisfied through the facilities of the Nasdaq Global Select Market in accordance with Rule 153 under the Securities Act.
We and the selling stockholders have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act. In addition, we or the selling stockholders may agree to indemnify any underwriters, broker-dealers and agents against or contribute to any payments the underwriters, broker-dealers or agents may be required to make with respect to, civil liabilities, including liabilities under the Securities Act. Underwriters, broker-dealers and agents and their affiliates are permitted to be customers of, engage in transactions with, or perform services for us and our affiliates or the selling stockholders or their affiliates in the ordinary course of business.
The selling stockholders will be subject to applicable provisions of Regulation M of the Exchange Act and the rules and regulations thereunder, which provisions may limit the timing of purchases and sales of any of the common stock by the selling stockholders. Regulation M may also restrict the ability of any person engaged in the distribution of the common stock to engage in market-making activities with respect to the common stock. These restrictions may affect the marketability of such common stock.
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In order to comply with applicable securities laws of some states, the common stock may be sold in those jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the common stock may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirements is available. In addition, any common stock of a selling stockholder covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold in open market transactions under Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution.
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The following description of our capital stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our amended and restated certificate of incorporation, the Certificate of Designation and our restated bylaws, which have been publicly filed with the SEC. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
Our authorized capital stock consists of:
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200,000,000 shares of common stock, $0.0001 par value; and |
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20,000,000 shares of preferred stock, $0.0001 par value. |
In addition to the descriptions set forth below, please refer to our other publicly filed documents incorporated herein by reference, which describe our other outstanding preferred stock, warrants, registration rights, equity incentive plans and other securities.
Common Stock
As of March 1, 2021, there were 95,149,633 shares of our common stock outstanding.
Voting Rights
For all matters submitted to a vote of stockholders, each holder of our common stock is entitled to one vote for each share registered in his or her name. Except as may be required by law and in connection with some significant actions, such as mergers, consolidations, or amendments to our amended and restated certificate of incorporation that affect the rights of stockholders, holders of our common stock vote together as a single class. There is no cumulative voting in the election of our directors, which means that, subject to any rights to elect directors that are granted to the holders of any class or series of preferred stock, a plurality of the votes cast at a meeting of stockholders at which a quorum is present is sufficient to elect a director.
Dividend Rights
Subject to preferential dividend rights of any other class or series of stock, the holders of shares of our common stock are entitled to receive dividends, including dividends of our stock, as and when declared by our board of directors, subject to any limitations applicable by law and to the rights of the holders, if any, of our preferred stock.
Liquidation
In the event we are liquidated, dissolved or our affairs are wound up, after we pay or make adequate provision for all of our known debts and liabilities, each holder of our common stock will be entitled to share ratably in all assets that remain, subject to any rights that are granted to the holders of any class or series of preferred stock.
Other Rights and Preferences
Subject to the preferential rights of any other class or series of stock, all shares of our common stock have equal dividend, distribution, liquidation and other rights, and have no preference, appraisal or exchange rights, except for any appraisal rights provided by Delaware law. Furthermore, holders of our common stock have no conversion, sinking fund or redemption rights, or preemptive rights to subscribe for any of our securities. Our amended and restated certificate of incorporation and restated bylaws do not restrict the ability of a holder of our common stock to transfer his or her shares of our common stock.
The rights, powers, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of holders of shares of any series of preferred stock which we may designate and issue in the future.
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The transfer agent for our common stock is Computershare, Inc.
Registration Rights Agreement
In connection with the Private Placement and the Debt Exchange, the Company agreed to enter into the Registration Rights Agreement with the selling stockholders. Pursuant to the Registration Rights Agreement, we agreed to prepare and file this registration statement with the SEC within 30 days after the Closing Date for purposes of registering the resale of the shares of common stock sold and issued in the Private Placement and the Debt Exchange. We also agreed to use our reasonable best efforts to cause this registration statement to be declared effective by the SEC within 30 days after the initial filing of this registration statement (60 days in the event the registration statement is reviewed by the SEC). If we fail to meet the specified filing deadlines or keep this registration statement effective, subject to certain permitted exceptions, we will be required to pay liquidated damages to certain of the selling stockholders. We also agreed, among other things, to indemnify the selling stockholders under the registration statements from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration Rights Agreement.
Preferred Stock
Under our amended and restated certificate of incorporation, we have authority, subject to any limitations prescribed by law and without further stockholder approval, to issue from time to time up to 20,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preference and sinking fund terms, any or all of which may be greater than the rights of the common stock.
Series A Convertible Preferred Stock
In March 2017, we created a new class of preferred stock designated as Series A Convertible Preferred Stock. The rights of the Series A Convertible Preferred Stock are set forth in a Certificate of Designation filed with the Secretary of State of Delaware on March 22, 2018. A total of 15,245 shares of Series A Convertible Preferred Stock are authorized for issuance under such Certificate of Designation. The shares of Series A Convertible Preferred Stock have a stated value of $1,000 per share and are convertible into shares of our common stock at an initial conversion price of $2.00 per share. A total of 57.276 shares of Series A Convertible Preferred Stock are outstanding as of March 1, 2021.
Holders of the Series A Convertible Preferred Stock are entitled to dividends on an as-if-converted basis in the same form as any dividends actually paid on shares of our common stock.
Series B Convertible Preferred Stock
In March 2018, we created a new class of preferred stock designated as Series B Convertible Preferred Stock. The rights of the Series B Convertible Preferred Stock are set forth in a Certificate of Designation filed with the Secretary of State of Delaware on March 8, 2018. All of the shares of Series B Convertible Preferred Stock were converted into shares of our common stock in May 2018. No shares of Series B Convertible Preferred Stock are outstanding as of March 1, 2021.
New Redeemable Preferred Stock
As of March 1, 2021, our board of directors has designated 15,000,000 of the 20,000,000 authorized shares of preferred stock as new redeemable preferred stock.
The Company issued shares of redeemable preferred stock in connection with its initial public offering in June 2006. As of March 1, 2021, 3,319,816 shares of new redeemable preferred stock were issued and outstanding. The new redeemable preferred stock is not convertible into common stock but is redeemable at $9.00 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares) (i) upon our liquidation, dissolution or winding up, or the occurrence of
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certain mergers, consolidations or sales of all or substantially all of our assets, before any payment to the holders of our common stock, or (ii) at our option at any time. Holders of new redeemable preferred stock are generally not entitled to vote on matters submitted to the stockholders, except with respect to certain matters that will affect them adversely as class, and are not entitled to receive dividends.
The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. The issuance could have the effect of decreasing the market price of our common stock. The issuance of preferred stock also could have the effect of delaying, deterring or preventing a change in control of our company.
Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell in the certificate of designation relating to that series. This description will include:
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the title and stated value; |
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the number of shares we are offering; |
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the liquidation preference per share; |
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the purchase price per share; |
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the dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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our right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any; |
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock or other securities of ours, including depositary shares and warrants, and, if applicable, the conversion period and the conversion price or how the conversion price will be calculated, and under what circumstances it may be adjusted; |
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period and the exchange price or how the exchange price will be calculated, and under what circumstances it may be adjusted; |
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voting rights, if any, of the preferred stock; |
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preemption rights, if any; |
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restrictions on transfer, sale or other assignment, if any; |
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whether interests in the preferred stock will be represented by depositary shares; |
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a discussion of any material or special U.S. federal income tax considerations applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
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any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. |
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When we issue shares of our preferred stock, the shares will be fully paid and nonassessable and, unless specified in the applicable prospectus, will not have or be subject to any rights of first refusal or similar rights.
The Delaware General Corporation Law, or the DGCL, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
We are subject to the provisions of Section 203 of the DGCL. Under Section 203, we would generally be prohibited from engaging in any business combination with any interested stockholder for a period of three years following the time that this stockholder became an interested stockholder unless:
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prior to this time, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares owned by persons who are directors and also officers, and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
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at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
Under Section 203, a “business combination” includes:
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any merger or consolidation involving the corporation and the interested stockholder; |
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any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
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any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder, subject to limited exceptions; |
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested stockholder as an entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by such entity or person.
Certain provisions of our amended and restated certificate of incorporation and restated bylaws that are summarized below may be deemed to have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests, including attempts that might result in a premium being paid over the market price for the shares held by stockholders. Furthermore, these provisions could delay, until the next stockholders’ meeting, actions which are favored by the holders of a majority of our outstanding voting securities.
Among other things, our amended and restated certificate of incorporation and restated bylaws provide that:
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subject to the rights of the holders of any class or series of preferred stock then outstanding, our directors may be removed only by the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares then entitled to vote at an election of directors voting together as a single class, unless otherwise specified by law or by the amended and restated certificate of incorporation; |
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stockholder action may be taken only at a duly called and convened annual or special meeting of stockholders and then only if properly brought before the meeting; |
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stockholder action may not be taken by written action in lieu of a meeting; |
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special meetings of stockholders may be called only by our board of directors pursuant to a resolution adopted by a majority of the total number of directors; and |
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in order for any matter to be considered “properly brought” before a meeting, a stockholder must comply with requirements regarding specified information and advance notice to us. |
Our amended and restated certificate of incorporation also provides that no director of our company shall be personally liable for any monetary damages for any breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Our amended and restated certificate of incorporation also provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of our company shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Our amended and restated certificate of incorporation further provides that no amendment to or repeal of these provisions shall apply to or have any effect on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. Our amended and restated certificate of incorporation further provides for the indemnification of our directors and officers to the fullest extent permitted by the DGCL.
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The validity of the shares offered by this prospectus will be passed upon by Latham & Watkins LLP, San Diego, California.
Mayer Hoffman McCann P.C., independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K as of and for the fiscal years ended December 31, 2019 and 2020, as set forth in their report dated March 5, 2021, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Mayer Hoffman McCann P.C.’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
Our web site address is www.atecspine.com. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 5, 2021; |
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the information specifically incorporated by reference into our Annual Report on Form 10-K from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 28, 2020; |
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our Current Reports on Form 8-K filed with the SEC on February 22, 2021 and March 5, 2021; and |
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The description of our common stock contained in our Registration Statement on Form 8-A filed pursuant to Section 12(b) of the Exchange Act as filed with the SEC on May 26, 2006, including any subsequent amendments or reports filed for the purpose of updating such description. |
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, which we refer to as the “Exchange Act” in this prospectus, prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
Alphatec Holdings, Inc.
1950 Camino Vida Roble
Carlsbad, California 92008
(760) 431-9286
Attn: Corporate Secretary
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
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INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution.
The following table lists the costs and expenses payable by the registrant in connection with the sale of the common stock covered by this prospectus other than any sales commissions or discounts, which expenses will be paid by the selling stockholders. All amounts shown are estimates except for the SEC registration fee:
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Securities and Exchange Commission registration fee |
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$ |
24,755 |
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Printing and engraving expenses |
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5,000 |
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Legal fees and expenses |
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25,000 |
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Accounting fees and expenses |
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25,000 |
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Total |
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$ |
79,755 |
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Item 15.Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware, or the DGCL, empowers a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
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Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
Our amended and restated certificate of incorporation provides that we shall indemnify, to the fullest extent authorized by the DGCL, each person who is involved in any litigation or other proceeding because such person is or was our director or officer or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us 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 is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 60 days after we receive a written claim for such indemnification, our amended and restated certificate of incorporation and our restated by-laws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.
As permitted by Section 145 of the DGCL, we carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
We have entered into indemnification agreements with all of our directors. The indemnification agreements require us to indemnify these individuals to the fullest extent permitted by Delaware 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 us.
Item 16.Exhibits
|
Exhibit Number |
|
Exhibit Description |
|
Filed with this Report |
|
Incorporated by Reference herein from Form or Schedule |
|
Filing Date |
|
SEC File/ Reg. Number |
|
3.1 |
|
Amended and Restated Certificate of Incorporation of Alphatec Holdings, Inc. |
|
|
|
Amendment No. 2 to Form S-1 (Exhibit 3.2) |
|
04/20/2006
|
|
333-131609
|
|
3.2 |
|
Amendment to the Certificate of Incorporation of Alphatec Holdings, Inc. |
|
|
|
Form 8-K (Exhibit 3.1(b)) |
|
08/24/2016 |
|
000-52024
|
|
3.3 |
|
|
|
|
Amendment No. 5 to Form S-1 (Exhibit 3.4) |
|
05/26/2006
|
|
333-131609
|
|
|
3.4 |
|
|
|
|
Form 8-K (Exhibit 3.1) |
|
03/23/2017 |
|
000-52024
|
|
|
3.5 |
|
|
|
|
Form 8-K (Exhibit 3.1) |
|
03/12/2018 |
|
000-52024
|
24
|
4.1 |
|
|
|
|
Form 10-K |
|
03/20/2014
|
|
000-52024
|
|
|
|
|
|
|
Form 8-K/A (Exhibit 4.1) |
|
04/16/2018 |
|
000-52024 |
||
|
4.3 |
|
|
|
|
Form S-3/A (Exhibit 4.5) |
|
11/13/2018 |
|
333-221085 |
|
|
4.4 |
|
Warrant with Silicon Valley Bank as the Warrant holder, dated December 16, 2011 |
|
|
|
Form 10-K (Exhibit 4.8) |
|
03/05/2012 |
|
000-52024 |
|
4.5 |
|
Form of Warrant issued to certain investors on March 28, 2017 |
|
|
|
Form 8-K (Exhibit 4.1) |
|
03/23/2017 |
|
000-52024 |
|
4.6 |
|
Form of Warrant issued to certain investors on March 8, 2018 |
|
|
|
Form 8-K (Exhibit 4.1) |
|
03/12/2018 |
|
000-52024 |
|
4.7 |
|
|
|
|
Form 8-K (Exhibit 4.2) |
|
03/23/2017 |
|
000-52024 |
|
|
4.8 |
|
|
|
|
Form 10-Q (Exhibit 4.1) |
|
11/05/2020 |
|
000-52024 |
|
|
4.9 |
|
|
|
|
Form S-3/A (Exhibit 4.11) |
|
11/13/2018 |
|
333-221085 |
|
|
4.10 |
|
|
|
|
Form 8-K (Exhibit 10.1) |
|
06/27/2019 |
|
000-52024 |
|
|
4.11 |
|
|
|
|
Form 8-K (Exhibit 4.3) |
|
03/12/2018 |
|
000-52024 |
|
|
4.12 |
|
|
|
|
Form S-3/A (Exhibit 4.5) |
|
11/13/2018 |
|
333-221085 |
|
|
4.13 |
|
|
|
|
Form 8-K (Exhibit 10.2) |
|
06/27/2019 |
|
000-52024 |
|
|
4.14 |
|
|
|
|
Form 8-K (Exhibit 4.1) |
|
06/04/2020 |
|
000-52024
|
|
|
4.15 |
|
|
|
|
Form 8-K (Exhibit 4.2) |
|
06/04/2020 |
|
000-52024 |
|
|
4.16 |
|
|
|
|
Form 8-K (Exhibit 4.3) |
|
06/04/2020 |
|
000-52024 |
25
|
|
|
|
|
Form 8-K (Exhibit 4.4) |
|
06/04/2020 |
|
000-52024 |
||
|
4.18 |
|
|
|
|
Form 8-K (Exhibit 4.1) |
|
12/17/2020 |
|
000-52024 |
|
|
5.1 |
|
|
X |
|
|
|
|
|
|
|
|
10.1 |
|
|
|
|
Form 8-K (Exhibit 10.1) |
|
12/17/2020 |
|
000-52024
|
|
|
10.2 |
|
|
|
|
Form 8-K (Exhibit 10.2) |
|
12/17/2020 |
|
000-52024
|
|
|
23.1 |
|
|
X |
|
|
|
|
|
|
|
|
23.2 |
|
|
X |
|
|
|
|
|
|
|
|
24.1 |
|
Powers of Attorney (incorporated by reference to the signature page hereto) |
|
X |
|
|
|
|
|
|
Item 17.Undertakings
(a) The undersigned registrant hereby undertakes:
(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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(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), (a)(1)(ii), and (a)(1)(iii) above do not apply if 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
26
(2) 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.
(3) 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of the registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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, 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.
27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Carlsbad, California, on March 31, 2021.
|
|
|
|
|
Alphatec Holdings, Inc. |
||
|
|
|
|
|
By: |
|
/s/ Patrick S. Miles |
|
|
|
Patrick S. Miles |
|
|
|
Chief Executive Officer |
Each of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Patrick S. Miles, Jeffrey G. Black and Craig Hunsaker, and each of them singly (with full power to each of them to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him or her and in his or her name, place and stead, and in any and all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration statement and any other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
/s/ Patrick S. Miles |
|
Chairman and Chief Executive Officer (Principal Executive Officer) |
|
March 31, 2021 |
|
Patrick S. Miles |
|
|
|
|
|
|
|
|
|
|
|
/s/ Mortimer Berkowitz III |
|
Lead Director |
|
March 31, 2021 |
|
Mortimer Berkowitz III |
|
|
|
|
|
|
|
|
|
|
|
/s/ Evan Bakst |
|
Director |
|
March 31, 2021 |
|
Evan Bakst |
|
|
|
|
|
|
|
|
|
|
|
/s/ Quentin Blackford |
|
Director |
|
March 31, 2021 |
|
Quentin Blackford |
|
|
|
|
|
|
|
|
|
|
|
/s/ Jason Hochberg |
|
Director
|
|
March 31, 2021 |
|
Jason Hochberg |
|
|
|
|
|
|
|
|
|
|
|
/s/ Karen K. McGinnis |
|
Director |
|
March 31, 2021 |
|
Karen K. McGinnis |
|
|
|
|
|
|
|
|
|
|
|
/s/ David H. Mowry |
|
Director |
|
March 31, 2021 |
|
David H. Mowry |
|
|
|
|
|
|
|
|
|
|
|
/s/ David R. Pelizzon |
|
Director |
|
March 31, 2021 |
|
David R. Pelizzon |
|
|
|
|
|
|
|
|
|
|
28
|
|
Director |
|
March 31, 2021 |
|
|
Jeffrey P. Rydin |
|
|
|
|
|
|
|
|
|
|
|
/s/ James L.L. Tullis |
|
Director |
|
March 31, 2021 |
|
James L.L. Tullis |
|
|
|
|
|
|
|
|
|
|
|
/s/ Donald A. Williams |
|
Director |
|
March 31, 2021 |
|
Donald A. Williams |
|
|
|
|
|
|
|
|
|
|
|
/s/ Ward W. Woods |
|
Director |
|
March 31, 2021 |
|
Ward W. Woods |
|
|
|
|
29
Exhibit 5.1
March 31, 2021
Alphatec Holdings, Inc.
1950 Camino Vida Roble
Carlsbad, CA 92008
Re: Registration Statement on Form S-3; 15,121,512 Shares of Common Stock of Alphatec Holdings, Inc., par value $0.0001 per share
Ladies and Gentlemen:
We have acted as special counsel to Alphatec Holdings, Inc., a Delaware corporation (the “Company”), in connection with the registration for resale from time to time by certain selling stockholders (the “Selling Stockholders”) named in the Prospectus (as defined below) of 15,121,512 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (the “Common Stock”). The Shares are included in a registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), and the related prospectus included in the Registration Statement (the “Prospectus”), filed with the Securities and Exchange Commission (the “Commission”) on March 31, 2021.
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, the issue and sale of the Shares have been duly authorized by all necessary corporate action of the Company, and the Shares are validly issued, fully paid and nonassessable.
Page 2
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
|
Very truly yours, |
|
|
|
|
|
/s/ Latham & Watkins LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption “Experts” in the Registration Statement on Form S-3 and related Prospectus of Alphatec Holdings, Inc. and to the incorporation by reference therein of our report dated March 5, 2021, with respect to the consolidated financial statements of Alphatec Holdings, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ Mayer Hoffman McCann P.C.
San Diego, California
March 31, 2021
Exhibit 24.1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Carlsbad, California, on March 31, 2021.
|
Alphatec Holdings, Inc. |
||
|
|
|
|
|
By: |
|
/s/ Patrick S. Miles |
|
|
|
Patrick S. Miles |
|
|
|
Chief Executive Officer |
Each of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Patrick S. Miles, Jeffrey G. Black and Craig Hunsaker, and each of them singly (with full power to each of them to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him or her and in his or her name, place and stead, and in any and all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration statement and any other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
|||||
|
|
|
|
|
|
|||||
|
/s/ PATRICK S. MILES |
|
Chairman and Chief Executive Officer (Principal Executive Officer) |
|
March 31, 2021 |
|||||
|
Patrick S. Miles |
|
|
|
|
|||||
|
/s/MORTIMER BERKOWITZ III |
|
Lead Director |
|
March 31, 2021 |
|||||
|
Mortimer Berkowitz III |
|
|
|
||||||
|
|
|
|
|
|
|||||
|
/s/EVAN BAKST |
|
Director |
|
March 31, 2021 |
|||||
|
Evan Bakst |
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/QUENTIN BLACKFORD |
|
Director |
|
March 31, 2021 |
|||||
|
Quentin Blackford |
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/JASON HOCHBERG |
|
Director
|
|
March 31, 2021 |
|||||
|
Jason Hochberg |
|
|
|
||||||
|
|
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/KAREN K. MCGINNIS |
|
Director |
|
March 31, 2021 |
|||||
|
Karen K. McGinnis |
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/DAVID H. MOWRY |
|
Director |
|
March 31, 2021 |
|||||
|
David H. Mowry |
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/DAVID R. PELIZZON |
|
Director |
|
March 31, 2021 |
|||||
|
David R. Pelizzon
/s/JEFFREY P. RYDIN |
|
Director |
|
March 31, 2021 |
|||||
|
Jeffrey P. Rydin
/s/JAMES L.L. TULLIS |
|
Director |
|
March 31, 2021 |
|||||
|
James L.L. Tullis
|
|
|
|
|
|||||
|
/s/DONALD A. WILLIAMS |
|
Director |
|
March 31, 2021 |
|||||
|
Donald A. Williams |
|
|
|
|
|||||
|
|
|
|
|
|
|||||
|
/s/WARD W. WOODS |
|
Director |
|
March 31, 2021 |
|||||
|
Ward W. Woods |
|
|
|
|
|||||