ALPHATEC HOLDINGS, INC. (NASDAQ:ATEC) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive Agreement
Private Placement and Securities Purchase Agreement
On March22, 2017, Alphatec Holdings, Inc. (the Company) entered
into a securities purchase agreement (the Purchase Agreement)
with certain institutional and accredited investors
(collectively, the Purchasers), including certain directors and
executive officers of the Company, providing for the sale by the
Company of 1,809,628shares (the Common Shares) of its common
stock (the Common Stock) at a purchase price of $2.00 per share,
15,245 shares (the Preferred Shares, and together with the Common
Shares, the Shares) of newly designated Series A Convertible
Preferred Stock (the Series A Convertible Preferred Stock) at a
purchase price of $1,000 per share (which Preferred Shares are
convertible into approximately 7,622,372shares of Common Stock,
subject to limitations on conversion until the approval by the
Companys stockholders (Stockholder Approval) as required in
accordance with the NASDAQ Global Select Market rules as further
described below), and warrants to purchase up to 9,432,000shares
of its Common Stock at an exercise price of $2.00 per share (the
Warrants), in a private placement (the Private Placement). The
Warrants will become exercisable following Stockholder Approval,
are subject to certain ownership limitations, and expire five
years after the date of such Stockholder approval.
The aggregate gross proceeds for the Private Placement will be
approximately $18.9million. The Company intends to use the net
proceeds from the Private Placement for general corporate and
working capital purposes. The Private Placement is expected to
close on or about March28, 2017 (the Closing), subject to the
satisfaction of customary closing conditions.
Certain directors and executive officers of the Company agreed to
purchase an aggregate of $2.35million of shares of Series A
Convertible Preferred Stock, which shares are convertible into
approximately 1,175,000shares of Common Stock, and Warrants to
purchase up to 1,175,000shares of Common Stock.
to the terms of the Purchase Agreement, from the Closing until
the later of 90 days after the effective date of the Resale
Registration Statement (as defined below) or the date of
Stockholder Approval, the Company is prohibited from issuing, or
entering into any agreement to issue, or announcing the issuance
or proposed issuance of, any shares of Common Stock or Common
Stock equivalents, subject to certain permitted exceptions.
The Private Placement is exempt from the registration
requirements of the Securities Act of 1933, as amended (the
Securities Act) to the exemption for transactions by an issuer
not involving any public offering under Section4(a)(2) of the
Securities Act and Rule 506 of Regulation D of the Securities Act
and in reliance on similar exemptions under applicable state
laws. Each of the Purchasers represented that it is an accredited
investor within the meaning of Rule 501(a) of Regulation D, and
was acquiring the securities for investment only and not with a
view towards, or for resale in connection with, the public sale
or distribution thereof. The securities were offered without any
general solicitation by the Company or its representatives.
The securities sold and issued in the Private Placement will not
be registered under the Securities Act or any state securities
laws and may not be offered or sold in the United States absent
registration with the Securities and Exchange Commission (the
SEC) or an applicable exemption from the registration
requirements.
Series A Convertible Preferred Stock
A total of 15,245shares of Series A Convertible Preferred Stock
will be authorized for issuance under a Certificate of
Designation of Preferences, Rights and Limitations of Series A
Convertible Preferred Stock of the Company (the Certificate of
Designation), to be filed with the Secretary of State of the
State of Delaware in connection with the Closing. The shares of
Series A Convertible Preferred Stock have a stated value of
$1,000 per share and will be convertible into approximately
500shares of the Companys Common Stock. Until the date that
Stockholder Approval is obtained, the Certificate of Designation
limits the number of shares of Common Stock issuable upon
conversion of the Series A Convertible Preferred Stock such that,
when aggregated with the shares of Common Stock issued at the
Closing, such issuances shall not exceed 19.99% of the Companys
issued and
outstanding Common Stock, as required by the rules and
regulations of the NASDAQ Global Select Market. In addition, the
Companys directors and officers will be unable to convert shares
of Series A Convertible Preferred Stock until Stockholder
Approval is obtained, to the NASDAQ Global Select Market rules.
The Series A Convertible Preferred Stock will be entitled to
dividends on an as-if-converted basis in the same form as any
dividends actually paid on shares of Common Stock or other
securities.
Shares of a holder of Series A Convertible Preferred Stock shall
not be converted if, after giving effect to the conversion, such
holder and its affiliated persons would own beneficially more
than 4.99% of the Common Stock (subject to adjustment up to 9.99%
solely at the holders discretion upon 61 days prior notice to the
Company or, solely as to a holder, if such limitation is waived
by such holder upon execution of the Purchase Agreement). The
initial conversion price of $2.00 is subject to appropriate
adjustment in the event of a stock split, stock dividend,
combination, reclassification or other recapitalization affecting
the Common Stock. In addition, for a period ending on the earlier
of one year from effective date of the Resale Registration
Statement or the date on which there are no shares of Series A
Convertible Preferred Stock outstanding, the conversion price is
also subject to full ratchet anti-dilution protection in the
event the Company issues securities at an effective price less
than the initial conversion price, subject to certain exceptions.
to the NASDAQ Global Select Market rules, holders of Series A
Convertible Preferred Stock will not be entitled to cast votes as
to the approval of the conversion feature with respect to any
shares of Common Stock purchased under the Purchase Agreement. If
the Companys stockholders do not approve the conversion feature
of the Series A Convertible Preferred Stock, the shares of Series
A Convertible Preferred Stock will not become convertible, and
will remain outstanding in accordance with the terms of the
Certificate of Designation.
Except as otherwise required by law, the holders of Series A
Convertible Preferred Stock will have no right to vote on matters
submitted to a vote of the Companys stockholders. Without the
prior written consent of 75% of the outstanding shares of Series
A Convertible Preferred Stock, however, the Company may not:
(a)alter or change adversely the powers, preferences or rights
given to the Preferred Stock or alter or amend the Certificate of
Designation, (b)amend the Companys certificate of incorporation
or other charter documents in any manner that adversely affects
any rights of the holders of Series A Convertible Preferred
Stock, (c)increase the number of authorized shares of Series A
Convertible Preferred Stock, or (d)enter into any agreement with
respect to any of the foregoing.
In the event of the dissolution and winding up of the Company,
the proceeds available for distribution to the Companys
stockholders shall be distributed pari passu among the holders of
the shares of Common Stock and Series A Convertible Preferred
Stock, pro rata based upon the number of shares held by each such
holder, as if the outstanding shares of Series A Convertible
Preferred Stock were convertible, and were converted, into shares
of Common Stock.
Registration Rights Agreement
In connection with the Private Placement, the Company agreed to
enter into a registration rights agreement (the Registration
Rights Agreement) with the Purchasers, to be effective as of the
Closing. to the Registration Rights Agreement, the Company agreed
to prepare and file a registration statement (the Resale
Registration Statement) with the SEC within 30 days after the
Closing for purposes of registering the resale ofthe Common
Shares, the shares of Common Stock issuable upon conversion of
the Preferred Shares, and the shares of Common Stock issuable
upon exercise of the Warrants. The Company also agreed to use its
reasonable best efforts to cause this registration statement to
be declared effective by the SEC within 60 days after the Closing
(90 days in the event the registration statement is reviewed by
the SEC). If the Company fails to meet the specified filing
deadlines or keep the Resale Registration Statement effective,
subject to certain permitted exceptions, the Company will be
required to pay liquidated damages to the Purchasers. The Company
also agreed, among other things, to indemnify the selling holders
under the registration statements from certain liabilities and to
pay all fees and expenses incident to the Companys performance of
or compliance with the Registration Rights Agreement.
Support Agreements
Prior to and as a condition for the Closing, certain stockholders
of the Company will enter into support agreements (the Support
Agreements), to which such stockholders will agree to vote all
shares of Common Stock owned by them in favor of transactions
contemplated by the Purchase Agreement. The Support Agreements
will terminate on the earlier of (i)the termination of the
Purchase Agreement to its terms or (ii)the date that is five days
following the stockholders meeting at which Stockholder Approval
is obtained.
Engagement Letter
The Company also entered into an engagement letter (the
Engagement Letter) on March1, 2017 with H.C. Wainwright Co., LLC
(Wainwright), to which Wainwright agreed to serve as exclusive
placement agent for the issuance and sale of the securities in
the Private Placement. The Company has agreed to pay Wainwright
an aggregate fee equal to 7% of the gross proceeds received by
the Company from the sale of the securities in the transaction;
provided, however, that such fee will be reduced to 3.5% of the
gross proceeds received by the Company from the sale of the
securities in the Private Placement made to the Companys officers
and directors and their affiliates. to the Engagement Letter, the
Company also agreed to grant to Wainwright or its designees
warrants to purchase up to 5% of the aggregate number of shares
sold in the Private Placement (the Wainwright Warrants). The
Engagement Letter has a six month tail and right of first offer
period, indemnity and other customary provisions for transactions
of this nature. The Wainwright Warrants have substantially the
same terms as the Warrants, except that the Wainwright Warrants
will have an exercise price equal to 125% of the exercise price
of the Warrants. The Wainwright Warrants and the shares issuable
upon exercise of the Wainwright Warrants will be issued in
reliance on the exemption from registration provided by
Section4(a)(2)of the Securities Act as transactions not involving
a public offering and in reliance on similar exemptions under
applicable state laws. The Company will also pay Wainwright a
reimbursement for non-accountable expenses, including legal fees
and expenses of the placement agent in an amount up to $65,000.
Transaction Documents
The representations, warranties and covenants contained in the
Purchase Agreement were made solely for the benefit of the
parties to the Purchase Agreement and may be subject to
limitations agreed upon by the contracting parties. In addition,
such representations, warranties and covenants (i)are intended as
a way of allocating the risk between the parties to the Purchase
Agreement and not as statements of fact, and (ii)may apply
standards of materiality in a way that is different from what may
be viewed as material by stockholders of, or other investors in,
the Company. Accordingly, the Purchase Agreement is filed with
this report only to provide investors with information regarding
the terms of transaction, and not to provide investors with any
other factual information regarding the Company. Stockholders
should not rely on the representations, warranties and covenants
or any descriptions thereof as characterizations of the actual
state of facts or condition of the Company. Moreover, information
concerning the subject matter of the representations and
warranties may change after the date of the Purchase Agreement,
which subsequent information may or may not be fully reflected in
public disclosures.
The foregoing description of the Private Placement and the
Purchase Agreement, the Warrants, the Certificate of Designation,
the Registration Rights Agreement, the Engagement Letter and the
Support Agreement is qualified in its entirety by reference to
the Purchase Agreement, the form of Warrant, the form of
Certificate of Designation, the form of Registration Rights
Agreement, the Engagement Letter and the form of Support
Agreement, which are filed hereto as Exhibits 10.1, 4.1, 3.1,
4.2, 10.2, and 10.3 respectively.
Item3.02 Unregistered Sales of Equity
Securities.
The information regarding the Private Placement, the issuance of
the Shares, the Warrants and the Wainwright Warrants included
under Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
Item5.03 Amendments to Articles of Incorporation or
Bylaws; Change in Fiscal Year.
Prior to the scheduled Closing described in Item 1.01 above, the
Company intends to amend its restated certificate of
incorporation by filing with the Secretary of State of the State
of Delaware the Certificate of Designation. The description of
the rights and preferences of the Series A Convertible Preferred
Stock in Item 1.01 of this Current Report is incorporated herein
by reference.
Item7.01 Other Events.
On March23, 2017, the Company issued a press release announcing
the Private Placement, which is attached hereto as Exhibit 99.1
and is incorporated herein by reference.
The information furnished under this Item 7.01 of this Current
Report on Form 8-K, including Exhibit 99.1, shall not be deemed
filed for the purposes of Section18 of the Securities Exchange
Act of 1934, as amended, or otherwise subject to the liabilities
of that section.
Forward-Looking Statements
This Current Report on Form 8-K may contain forward-looking
statements within the meaning of the Private Securities
Litigation Reform Act of 1995 that involve risks and uncertainty.
Such statements are based on managements current expectations and
are subject to a number of risks and uncertainties that could
cause actual results to differ materially from those described in
the forward-looking statements. The Company cautions investors
that there can be no assurance that actual results or business
conditions will not differ materially from those projected or
suggested in such forward-looking statements as a result of
various factors. Forward looking statements include statements
regarding the Companys expectations on the completion, timing and
size of the Private Placement and the anticipated use of proceeds
therefrom.The important factors that could cause actual operating
results to differ significantly from those expressed or implied
by such forward-looking statements include, but are not limited
to, risks and uncertainties associated with market conditions and
the satisfaction of customary closing conditions related to the
Private Placement and other risks and uncertainties inherent in
the Companys business, including those detailed from time to time
in the Companys reports that it files with the SEC, including its
Annual Report on Form 10-K for the year ended December31, 2015,
filed on March15, 2016 with the Securities and Exchange
Commission, and its Amended Annual Report on Form 10-K/A filed on
April29, 2016, as well as its Quarterly Reports on Form 10-Q and
periodic filings on Form 8-K. The words believe, will, should,
expect, intend, estimate and anticipate, variations of such words
and similar expressions identify forward-looking statements, but
their absence does not mean that a statement is not a
forward-looking statement.The Company disclaims any intention or
obligation to update or revise any forward-looking statements,
whether as a result of new information, future events, or
otherwise, unless required by law
Item9.01 Financial Statements and Exhibits.
(d)Exhibits
|
ExhibitNo. |
Description |
|
| 3.1 |
Form of Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Alphatec Holdings, Inc. |
|
| 4.1 | Form of Warrant | |
| 4.2 | Form of Registration Rights Agreement | |
| 10.1 |
Securities Purchase Agreement dated as of March22, 2017, between Alphatec Holdings, Inc. and each purchaser named in the pages thereto |
|
| 10.2 |
Engagement Letter between Alphatec Holdings, Inc. and Rodman Renshaw, a unit of H.C. Wainwright Co.,LLC, dated as of March1, 2017 |
|
| 10.3 | Form of Support Agreement | |
| 99.1 |
Press Release issued by Alphatec Holdings, Inc. on March23, 2017 |
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| ALPHATEC HOLDINGS, INC. | ||||||
| Date:March 23, 2017 | By: |
/s/ Craig Hunsaker, Esq. |
||||
| Name: | Craig Hunsaker, Esq. | |||||
| Title: | Executive Vice President, People Culture and General Counsel |
EXHIBIT INDEX
|
ExhibitNo. |
Description |
|
| 3.1 |
Form of Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Alphatec Holdings, Inc. |
|
| 4.1 | Form of Warrant | |
| 4.2 | Form of Registration Rights Agreement | |
| 10.1 |
Securities Purchase Agreement dated as of March22, 2017, between Alphatec Holdings, Inc. and each purchaser named in the |
About ALPHATEC HOLDINGS, INC. (NASDAQ:ATEC)
Alphatec Holdings, Inc. is a medical technology company. The Company through its subsidiary, Alphatec Spine, Inc. and its subsidiaries, designs, develops, manufactures and markets products for the surgical treatment of spine disorders. Its product portfolio and pipeline addresses the cervical, thoracolumbar and intervertebral regions of the spine and covers a range of spinal disorders and surgical procedures. Its products include Cervical and Cervico-Thoracic Products, which include Trestle Luxe Anterior Cervical Plate System and Pegasus Anchored Cervical Interbody; Thoracolumbar Fixation Products, which include Arsenal Degenerative System and OsseoScrew Spinal Fixation System; Spinal Spacers, which include Battalion Universal Spacer System and Alphatec Solus Locking ALIF Spinal Spacer; minimally invasive surgery Products, which include Illico Minimally Invasive Surgery System and BridgePoint Spinous Process Fixation System, and Biologics, which include Neocore Osteoconductive Matrix. ALPHATEC HOLDINGS, INC. (NASDAQ:ATEC) Recent Trading Information
ALPHATEC HOLDINGS, INC. (NASDAQ:ATEC) closed its last trading session down -0.45 at 2.21 with 146,690 shares trading hands.