Purchase Plan
Exhibit 10.6
Purchase Plan, adopted March 12, 2019 (the “Purchase Plan, and such date the “Adoption Date”), between L-5 Healthcare Partners II, LLC (“Purchaser”) and X.X. Xxxxxx Securities LLC (“JPMS”). The purpose of this Purchase Plan is to aid in achieving the investment
objectives of the Purchaser.
RECITALS
WHEREAS, the Purchaser desires to establish this Purchase Plan to buy common shares (the “Stock”) of Alphatec Holdings,
Inc. (the “Issuer”);
WHEREAS, the Purchaser desires to buy a total number of shares of Stock with an aggregate purchase price (before deduction
of standard and customary commissions and fees) of between $2,450,000 (the “Minimum Total Buying Limit”) and $2,550,000 (the “Maximum Total Buying Limit”) over the term of this Purchase Plan (all shares of Stock purchased pursuant to this Purchase
Plan, the “Total Plan Shares”); and
WHEREAS, the Purchaser desires to engage JPMS to effect purchases of shares of Stock in accordance with the Purchase Plan;
NOW, THEREFORE, the Purchaser and JPMS hereby agree as follows:
A. IMPLEMENTATION OF THE PURCHASE PLAN
1. JPMS shall effect purchases (each a “Purchase”) of shares of Stock only on days on which the NASDAQ Global Select (the
“Exchange”) is open and the Stock trades regular way on the Exchange (“Trading Day”), pursuant to the specific instructions specified on Schedule A.
2. Purchaser acknowledges and agrees that JPMS will handle the above order on a best efforts basis. In the event any
limit prices of orders are away from the prevailing market at any time, there can be no assurance that such orders will be executed in whole or in part. Purchaser agrees that all orders may be partially executed and will not be treated as an all
or none order.
3. In accordance with JPMS’s customary procedures, JPMS will deposit shares of Stock purchased hereunder into the
JPMorgan Chase Bank, N.A. Asset Custody Account or JPMS Margin Brokerage Account (“Account”) of Purchaser against payment to JPMS of the purchase price therefor and commissions and other amounts in respect thereof payable pursuant to this Section.
Purchaser will be notified of all transactions pursuant to customary trade confirmations and will pay for such purchases within one standard settlement cycle after such purchase. Purchaser’s obligation to make payment in respect of any shares of
Stock purchased prior to any termination hereof shall survive such termination hereof.
4. JPMS will charge its reasonable and customary commissions for the purchase of shares of Stock under this Purchase
Plan, together with any other expenses incurred by JPMS in connection with such purchases.
5. The Minimum Total Buying Limit, the Maximum Total Buying Limit, and the share amounts and prices, if applicable, set
forth above and in Schedule A shall be adjusted automatically on a proportionate basis to take into account any stock split, reverse stock split or stock dividend with respect to the Stock or any change in capitalization with respect to the Issuer
that occurs during the term of this Purchase Plan.
6. Subject to Paragraph E.6, purchases will commence under this Purchase Plan on the Purchase Commencement Date, as
defined in Schedule A, and shall terminate on the earlier of (a) the close of business on September 30, 2019; (b) the first date on which the aggregate price (before deduction of standard and customary commissions and fees) of the Total Plan Shares
equals or exceeds the Minimum Total Buying Limit; (c) the date this Purchase Plan is terminated pursuant to Section D; (d) the dissolution or termination of Purchaser’s existence under applicable law, provided that any such dissolution or
termination shall be made in good faith and not (i) for the purpose of indirectly causing termination of this Purchase Plan, (ii) as a part of a plan or scheme to evade the prohibitions of Rule 10b5-1 or other applicable securities laws, or (iii)
as a part of a plan or scheme to evade the provisions of Section E of this Purchase Plan; (e) the date on which the unit of JPMS responsible for executing purchases of Stock pursuant to this Purchase Plan receives notice or otherwise becomes aware
of (i) the closing of a tender or exchange offer with respect to the Stock or of a merger, acquisition, reorganization, recapitalization or comparable transaction affecting the securities of the Issuer as a result of which the Stock is to be
exchanged or converted into shares of another company or for other consideration; or (ii) the commencement or impending commencement of any proceedings in respect of or triggered by Purchaser’s bankruptcy or insolvency; or (e) the failure of
Purchaser to comply with Paragraph A.3 above. Notwithstanding the above, this Purchase Plan shall not be considered effective, but instead shall be considered null and void, if at least one of the accounts referenced in A.3 above has not been
established in the name of Purchaser and open for the receipt of Stock by the Purchase Commencement Date. Purchaser understands that such an account cannot be opened until JPMS and its affiliates have performed customer due diligence and customer
identification in accordance with internal policies and procedures and relevant federal laws including, but not limited to, the Bank Secrecy Act as amended by the USA PATRIOT Act and the regulations promulgated thereunder. Purchaser understands
that there may be significant time delays during this process and that an account may not be open for the receipt of Stock by the Purchase Commencement Date.
7. Purchaser acknowledges and agrees that it (which for purposes of this Paragraph A.7 shall include both Purchaser
itself and all persons acting on its behalf, which may include such Purchaser’s owners, managers and investment advisors, such persons collectively, “Purchaser Related Persons”) does not have authority, influence or control over any purchases of
Stock effected by JPMS pursuant to this Purchase Plan, and will not attempt to exercise any authority, influence or control over such purchases. JPMS agrees not to seek advice from Purchaser with respect to the manner in which it effects purchases
under this Purchase Plan. JPMS may use its discretion in how to work the order to attempt to achieve the best execution below the maximum price per share, but at no time will the Purchaser communicate to JPMS any instructions on how to execute the
order.
8. Purchaser will be notified of all transactions pursuant to customary trade confirmations that are provided in the
normal course of business. In addition, JPMS will use reasonable efforts notify both the Issuer and the Purchaser via email of each transaction pursuant to this Purchase Plan no later than one Trading Day after the trading date of such
transaction. Such notifications shall be sent to the following distribution list:
(i) Xxxx Xxxxx (xxxxxx@xxxxxxx.xxx);
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxxx.xxx); Xxxxxxxx Xxxxx (xxxxxx@xxxxxxx.xxx); Xxxx
Xxxx (xxxxx@xxxxxxx.xxx)
(ii) Xxxxx Xxxxxxxx (XXxxxxxxx@xxxxxxxxx.xxx);
Xxxxx Xxxxxxxx (XXxxxxxxx@xxxxxxxxx.xxx)
or such other persons as Purchaser may direct in writing from time to time.
9. Purchaser understands that JPMS may not be able to effect a purchase due to a market disruption or a legal, regulatory
or contractual restriction or internal policy applicable to JPMS. If any purchase cannot be executed as required by Paragraph A.1, due to a market disruption, a legal, regulatory or contractual restriction applicable to JPMS or any other such
event, such purchase shall be cancelled and shall not be effected pursuant to this Purchase Plan, and, notwithstanding any language to the contrary herein, there shall be no carryover associated with such cancelled purchase.
10. It is the intent of the parties that this Purchase Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) and
Rule 10b-18 under the Securities Exchange Act of 1934 (the “Exchange Act”) and this Purchase Plan shall be interpreted to comply with the requirements thereof. JPMS shall comply with the requirements of paragraphs (b)(2), (b)(3) and (b)(4) of Rule
10b-18 under the Exchange Act in connection with Purchases of Stock in the open market pursuant to this Purchase Plan. The Purchaser agrees not to take any action or cause another person to take any action that would cause Purchases not to comply
with Rule 10b-18 or Rule 10b5-1.
B. REPRESENTATIONS AND AGREEMENTS OF PURCHASER
1. Purchaser (on behalf of itself and all Purchaser Related Persons) represents and warrants that as of the time of
execution of, and entering into, this Purchase Plan, (a) to the best of Purchaser’s knowledge there is no blackout period (as defined in 17 C.F.R. Section 245.100(b), a “Blackout Period”) in effect for Issuer, (b) neither the Purchaser nor any
person controlling the Purchaser (as such term is defined in Rule 405 under the Securities Act) is aware of material, nonpublic information with respect to the Issuer or any securities of the Issuer (including the Stock) or of the actual or
approximate beginning or ending dates of a Blackout period for Issuer, and (c) the Purchaser is entering into this Purchase Plan, and the transactions contemplated herein, in good faith and not as part of a plan or scheme to evade the prohibitions
of any applicable laws or regulations, such as Rules 10b5-1 and 10b-18 under the Exchange Act.
2. At the time of Purchaser’s execution of this Purchase Plan, neither Purchaser nor any Purchaser Related Person has
entered into or altered a corresponding or hedging transaction with respect to the Total Plan Shares. Purchaser agrees not to enter into any such transaction while this Purchase Plan remains in effect.
3. Purchaser agrees to make all filings, if any, required under and monitor his own compliance with Sections 13(d), 13(g)
and 16 of the Exchange Act.
4. Purchaser acknowledges and agrees that JPMS has no duty to determine whether Purchaser has violated Sections 13(d),
13(g) or 16 of the Securities Exchange Act of 1934, as amended, or the rules adopted by the SEC thereunder, or any other laws or regulations applicable to the Purchaser in connection with this Purchase Plan. Purchaser understands that this Plan in
no way alters his obligations and responsibilities under Section 16, including those prohibitions against short swing profits.
5. Purchaser understands the laws and regulations of U.S. states or non-United States jurisdictions (collectively, “State
or Foreign Regulation”) may impose further restrictions or limitations on purchases of shares of Stock by or on behalf of Purchaser. State or Foreign Regulation may include, without limitation, the European Union Market Abuse Regulation (Regulation
(EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014). Purchaser acknowledges and agrees that JPMS has no duty to determine whether any State or Foreign Regulation would impose restrictions or limitations on this Purchase
Plan. Purchaser understands that this Purchase Plan in no way alters his obligations and responsibilities, or the obligations and responsibilities of the Issuer, under State or Foreign Regulation. For the avoidance of doubt, references in this
Purchase Plan to applicable laws, regulations and legal/regulatory restrictions shall be construed to include any applicable State and Foreign Regulation.
6. Purchaser acknowledges and agrees that JPMS has not provided Purchaser with any tax, accounting or legal advice.
Purchaser understands that he should seek the advice of counsel regarding this Purchase Plan and the various securities and tax law issues related thereto.
7. Purchaser agrees to notify JPMS promptly in the event of (a) trading restrictions being imposed as the result of any
applicable regulatory prohibition or lock up event restricting purchases by or on behalf of affiliates, such as a stock offering or tender offer or (b) circumstances that would cause the purchases contemplated by this Purchase Plan not to qualify
as “Rule 10b-18 purchases” as defined in Rule 10b-18(a)(13).
8. Purchaser represents and warrants that it is able to purchase shares of Stock, as contemplated by this Purchase Plan,
in accordance with the Issuer’s xxxxxxx xxxxxxx policies and Purchaser has obtained the acknowledgement of the Issuer that Purchaser has entered into this Purchase Plan.
C. INDEMNIFICATION AND LIMITATION ON LIABILITY
1. Purchaser agrees to indemnify and hold harmless JPMS and its directors, officers, employees and affiliates from and
against all claims, losses, damages and liabilities (including without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) arising out of or attributable to JPMS’s
actions taken or not taken in compliance with this Purchase Plan or arising out of or attributable to any breach by Purchaser of this Purchase Plan (including Purchaser’s representations and warranties hereunder) or any violation by Purchaser of
applicable laws or regulations. This indemnification shall survive termination of this Purchase Plan. Notwithstanding the foregoing, Purchaser shall have no indemnification obligation to the extent any claims, losses, damages or liabilities are
due to the gross negligence, recklessness or willful misconduct of JPMS or any other indemnified person.
2. Notwithstanding any other provision hereof, JPMS shall not be liable to Purchaser for: (a) special, indirect,
punitive, exemplary or consequential damages, or incidental losses or damages of any kind, even if advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen; or (b) any failure to perform
or to cease performance or any delay in performance that results from a cause or circumstance that is beyond its reasonable control, including but not limited to failure of electronic or mechanical equipment, strikes, failure of common carrier or
utility systems, severe weather, market disruptions or other causes commonly known as “acts of God”.
D. SUSPENSION, TERMINATION AND AMENDMENT
1. This Purchase Plan may be terminated by Purchaser at any time upon one Trading Day prior written notice; provided
however that JPMS may in its sole discretion decide to terminate on the same Trading Day that written notice is provided, if JPMS deems such action practicable. Any such termination shall be made in good faith and not as a part of a plan or scheme
to evade the prohibitions of Rule 10b5-1 or other applicable securities laws. JPMS will require certain representations from Purchaser and acknowledgement of Issuer as a condition to such termination.
2. This Purchase Plan shall be suspended, or at JPMS’s option, terminated, if JPMS receives notice, whether pursuant to
Paragraph B.7 or otherwise, of (a) the occurrence of any legal, contractual or regulatory restriction applicable to Purchaser or its affiliates, including without limitation, any restriction related to a merger or acquisition, or (b) a stock
offering requiring an affiliate lock-up, that would prohibit purchases pursuant to this Purchase Plan, or (c) if the Stock has been delisted from the Exchange, or becomes subject to the delisting procedure from the Exchange.
3. Purchaser may amend or modify the economic trading parameters of this Purchase Plan (such as the number, size, price
and timing of orders) only upon the written consent of JPMS. Any such amendment or modification shall be made in good faith and not as a part of a plan or scheme to evade the prohibitions of Rule 10b5-1 or other applicable securities laws.
Purchaser agrees that it will not amend or modify this Purchase Plan at any time: (a) that a Blackout Period is in effect for Issuer or (b) that it or any person controlling Purchaser (as such term is defined in Rule 405 under the Securities Act)
is aware of any material non-public information about the Issuer and/or the Stock or of the actual or approximate beginning or ending dates of a Blackout Period for Issuer. JPMS will require certain representations from Purchaser and
acknowledgement of Issuer as a condition to such amendment or modification.
E. GENERAL
1. This Purchase Plan shall be governed by and construed in accordance with the laws of the State of New York without
reference to choice of law principles. Except for modifications or amendments governed by Paragraph D.3, this Purchase Plan may be modified or amended only by a writing signed by the parties hereto and acknowledged by the Issuer.
2. This Purchase Plan shall be subject to all terms and conditions governing the Purchaser’s Account, including the
General Terms for Accounts and Services, the Asset Account Agreement and the JPMS Brokerage Agreement, including such provisions dealing with binding arbitration and waiving the right to litigate. This Purchase Plan, together with the terms and
conditions referenced in the preceding sentence, as well as any amendments or modifications made pursuant to this Purchase Plan and those terms and conditions, represent the complete agreement between the parties on these subjects.
3. For the avoidance of doubt, to the extent this Purchase Plan requires Purchaser or any Purchaser Related Person to
comply with the internal policies or procedures of the Issuer, Purchaser acknowledges and agrees that JPMS may rely solely on Purchaser’s execution of this Purchase Plan and has no duty to inquire independently as to Purchaser’s or any Purchaser
Related Person’s compliance with such Issuer policies or procedures.
4. All notices to JPMS under this Purchase Plan shall be given to JPMS by facsimile at (000) 000-0000 or by certified
mail at X.X. Xxxxxx Securities LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxxx Xxxxxxxxxx.
5. Purchaser’s rights and obligations under this Purchase Plan may not be assigned or delegated without the written
permission of JPMS.
6. This Purchase Plan shall not be effective until executed by Purchaser and JPMS, and acknowledged
by Issuer. This Purchase Plan may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument.
[Signature page follows.]
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Signature(s):
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L-5 Healthcare Partners II, LLC
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By:
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/s/ Xxxx
Xxxxx
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March 12, 2019
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Name: Xxxx Xxxxx
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Title: President
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X.X. Xxxxxx Securities LLC
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By:
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/s/ Xxxxxxxx Xxxxxxxxxx
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March 12, 2019
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Name: Xxxxxxxx Xxxxxxxxxx
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Title: Managing Director
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Acknowledged:
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Alphatec Holdings, Inc.
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By:
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/s/ Xxxxx Xxxxxxxx
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March 12, 2019
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Name: Xxxxx Xxxxxxxx
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Title: EVP & General Counsel
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Address: 0000 Xx Xxxxxx Xxxx,
Xxxxxxxx, XX 00000
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