April 6, 2021
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Exhibit 10.1
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April 6, 2021
X. Xxxx Xxxxxx
Re: Offer of Employment with Alphatec Spine, Inc.
Dear Xxxx:
I am very pleased to provide you with the following offer of employment with Alphatec Holdings, Inc. (“AHI”), together with any of its subsidiaries and affiliates, and any successor(s) thereto (collectively, “Alphatec,” “ATEC,” or the “Company”).
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1. |
Term. The term of this Agreement will commence on April 19, 2021, or such other date as shall be mutually agreeable (the “Effective Date”), and will continue until terminated, according to the terms of this Agreement. |
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Position. On the Effective Date, you will begin to serve as Chief Financial Officer of the Company. In this capacity, you will report directly to Xxx Xxxxx, the Company’s Chairman and Chief Executive Officer (“CEO”) and have all of the customary authorities, duties and responsibilities that accompany your position. Throughout your employment with the Company, you agree to devote substantially all of your working time and attention to the business and affairs of the Company and to perform your duties in a diligent, competent, professional and skillful manner and in accordance with applicable law and the Company’s policies and procedures. |
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Annual Compensation. Your initial compensation package will be as follows: |
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a. |
Base Cash Salary. Your initial base cash salary will be at a rate of $410,000 per year, payable in accordance with the Company’s customary payroll process. |
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c. |
Long Term Incentive. You are be eligible, subject to your continued employment by the Company, to participate in such long-term incentive programs that are made available at the level determined by the Committee, in its discretion, consistent with your role and responsibilities as an Executive Vice President of the Company. For 2021, that participation is as follows: an equity grant of 40,000 Restricted Stock Units (“RSUs”) and 10,000 Performance Stock Units (“PSUs”), with the PSUs leveraging from 0% to 500%, based on the Company’s 2021 U.S. revenue growth (with the maximum units achieved at 50% year-over-year growth). The RSUs and (if earned) PSUs will vest ratably over three (3) years, with the first vesting occurring on the one-year anniversary of the grant date. |
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Benefits. You will be eligible to participate in the employee welfare and benefit programs of the Company at the level available to other members of the Company’s executive management. Participation in Company benefits programs is subject to meeting the relevant eligibility requirements, payment of the required premiums, and the terms of the plans themselves. |
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Equity Compensation. In addition to your eligibility for regular grants of long-term incentives, you will be granted an equity award of one hundred fifty thousand (150,000) restricted stock units of Holdings (the “Sign-On RSUs”). Your Sign-On RSUs will vest ratably over four (4) years, with vesting upon a Change in Control of the Company (as defined in Exhibit B hereto). The Sign-On RSUs are subject to actual grant to you by the Committee in its sole discretion, pursuant to the applicable plan document and subject to terms and conditions established by the Committee in its discretion, which will be detailed in separate agreements you receive after the award is made. You acknowledge that these equity awards are “employment inducement awards” that will be granted to you outside of the Company’s 2016 Equity Incentive Plan pursuant to NASDAQ Listing Rule 5635(c)(4). |
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Certain Post-Employment Covenants. During your employment with the Company, and for a period of one year following the termination of your employment with the Company, you shall not, without the prior written consent of the Company: (i) either individually or on behalf of or through any third party, directly or indirectly, solicit, entice or persuade or attempt to solicit, entice or persuade any employee, agent, consultant or contractor of the Company or any of its affiliates (the “Company Group”) to leave the service of the Company Group for any reason; or (ii) in a manner that is dependent upon the use of the Company’s proprietary information, either individually or on behalf of or through any third |
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party, directly or indirectly, interfere with, or attempt to interfere with, the business relationship between the Company Group and any vendor, supplier, surgeon or hospital with which you have interacted during the course of your employment with the Company. |
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Indemnification and Cooperation. During and after your employment, the Company will indemnify you in your capacity as an officer, employee or agent of the Company to the fullest extent required by applicable law and the Company’s charter and by-laws, and will provide you with director and officer liability insurance coverage (including post-termination tail coverage) on the same basis as the Company’s other executive officers. You agree (whether during or after your employment with the Company) to reasonably cooperate with the Company in connection with any litigation or regulatory matter or with any government authority on any matter, in each case, pertaining to the Company and with respect to which you may have relevant knowledge. |
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Withholding. Tax will be withheld by the Company as appropriate under applicable Federal tax requirements for any payments or deliveries under this Agreement. |
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No Guarantee of Employment or Fixed Compensation. This Agreement is not a guarantee of employment or a guarantee of compensation for the Term. Your employment will be on an “at-will” basis, meaning that you and the Company may terminate your employment at any time and for any reason during the Term, with or without prior notice, subject to the provisions of this Agreement (including Exhibit A and Exhibit B). |
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Entire Agreement. This Agreement (including Exhibit A and Exhibit B) constitutes the Company’s only statement relating to its offer of employment to you and supersedes any previous communications or representations, oral or written, from or on behalf of the Company or any of its affiliates. |
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Miscellaneous Representations. You confirm and represent to the Company, by signing this letter, that: (a) you are under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent you from becoming an employee of the Company or that would adversely impact your ability to perform the expected services on behalf of the Company; (b) you have not taken (or failed to return) any confidential information belonging to your prior employer or any other entity, and, to the extent you remain in possession of any such information, you will neither bring such information to the Company, nor use or disclose such information to the Company or any of its employees, agents or affiliates; and (c) you understand and accept all of the terms and conditions of this offer. |
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Offer Contingencies. This offer is contingent upon (i) you successful completion of a background check; (ii) your execution of the Company’s current form of Mutual Agreement to Arbitrate Claims, Confidential and Proprietary Information Agreement, and those other forms that the Company requests all of its employees to execute prior to the initiation of their employment. |
You may accept this offer of employment by signing this letter. Your signature on this letter and your submission of a signed copy to the Company will evidence your agreement set forth herein.
We are pleased to offer you the opportunity to join the Company’s Senior Leadership Team, and we look forward to having you aboard. We are confident that you will make an important contribution to our unique and exciting enterprise.
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Sincerely, |
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/s/ Xxxxx X. Xxxxxxxx |
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Xxxxx X. Xxxxxxxx |
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Executive Vice President, People & Culture |
I agree with and accept the foregoing terms.
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/s/ X. Xxxx Xxxxxx |
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X. Xxxx Xxxxxx |
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Exhibit A
ATEC SEVERANCE agreement
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1. |
INTRODUCTION |
This Severance Agreement (the “Agreement”) is entered into as of April 19, 2021 (the “Commencement Date”), by and between Alphatec Holdings, Inc., together with any of its subsidiaries and affiliates, and any successor(s) thereto (collectively, “Alphatec,” “ATEC” or the “Company”) and X. Xxxx Xxxxxx (the “Executive”) to provide severance benefits to the Executive in the event his employment is terminated under certain circumstances. All benefit determinations under this Severance Agreement and any interpretation of provisions in this Severance Agreement will be made by the Board of Directors of the Company (the “Board”) or its designee in its sole discretion. The Agreement is described in further detail below.
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ELIGIBILITY |
In the event the Executive’s employment is terminated he will be eligible for severance benefits described in Section III of this Agreement, PROVIDED each of the following requirements is met:
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A. |
The termination of employment is involuntary. |
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B. |
The termination is not due to retirement, death or disability of the Executive. |
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C. |
The termination of employment is not for “Cause” (as defined below). For purposes of the Agreement, “Cause” shall mean the following: |
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A. |
The Executive’s repeated failure to satisfactorily perform his job duties; |
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B. |
The Executive’s refusal or failure to follow the lawful directions of the Company’s Chief Executive Officer or Board, as applicable; |
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C. |
The Executive’s conviction of, or plea of guilty or nolo contendere to a crime involving moral turpitude; or |
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D. |
The Executive engaging in acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of the Executive with respect to his obligations to the Company, or otherwise relating to the business of the Company, its affiliates or customers. |
The Executive must be provided a period of at least thirty (30) days following receipt of written notice outlining with specificity all acts or omissions that the Company alleges give rise to a termination for Cause pursuant to Section II, C.1 or C.2 immediately above, during which period he may effect a cure of any curable
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actions or omissions forming the basis for the termination for Cause. The Board will, in its sole discretion, apply the definitions of “Cause” herein to determine if a termination of employment is for “Cause.”
D.The Executive is not a temporary employee or a new hire who has not yet started to work on a regular, full-time or part-time basis (as appropriate).
E.The Executive is not covered under any other severance-type plan, policy, arrangement or agreement that provides severance payments and benefits more favorable in the aggregate to those provided herein. If any such plan, policy, arrangement or agreement exists, the Executive will receive payments and benefits pursuant to that plan, policy, arrangement or agreement and shall not receive any of the severance payments and benefits described herein. In no case will the Executive receive severance payments and benefits under any other such severance-type plan, policy, arrangement or agreement and this Agreement.
F.In the event that the Executive is party to a “Change in Control” Agreement with Company that also provides for severance benefits, in the event of a “Change in Control” (as defined therein) the Executive shall not receive benefits under this Agreement, but instead shall receive only the severance benefits provided under such “Change in Control” Agreement (i.e., there shall be no “double-dipping” and only the “Change in Control” Agreement shall apply in such an event).
G.The Executive has not agreed in writing to waive severance benefits under this Agreement or otherwise payable from the Company.
H.The Executive (or, in the event of the Executive’s death or incapacity, the Executive’s executor, representative or guardian, as applicable) signs and does not revoke a separation agreement and general release of all claims in such form as the Company may from time-to-time reasonably require (“Separation Agreement”).
I.The Executive has returned all Company property and equipment that was assigned to, or taken general control of by him during his tenure with the Company.
Upon termination of his employment, the Executive must satisfy all of the requirements set forth above in order to receive severance benefits under this Agreement. Eligibility for severance benefits under this Agreement will be determined by the Company upon the Executive’s termination of employment. The Company has full power and authority to interpret the provisions of this Agreement and render decisions on eligibility for benefits. If the Company determines that the Executive satisfies all of the eligibility conditions described above, the Executive will receive severance benefits calculated in accordance with Section III below. The severance benefits will be paid following the Executive’s termination of employment in accordance with the terms set forth below and in the respective Separation Agreement.
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3. |
SEVERANCE BENEFITS |
X.Xxxxxxxxx Pay and Benefits. The following severance pay and benefits are payable under this Agreement:
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X. |
Xxxxxxxxx Pay. The severance pay provided to the Executive if his employment is involuntarily terminated under the terms of this Agreement consists of an amount equal to one times (1x) his regular annual base salary. |
The amount of severance pay to the Executive shall be based upon the Executive’s regular annual base salary in effect immediately before the termination of Executive’s employment, determined without regard to any overtime, bonuses, fringe benefits, reimbursements or other irregular payments. The Executive’s Separation Agreement referred to in Section II.H. must be effective no later than the sixtieth (60th) day following the Executive’s termination of employment in order for the Executive to receive any severance pay or benefits under the Agreement. Severance pay will be paid in a single cash lump-sum on the sixtieth (60th) day following the Executive’s termination of employment (or as soon as administratively practicable after such sixtieth (60th) day).
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B. |
Benefits Continuation. Upon an involuntary termination of employment pursuant to which the Executive is entitled to severance pay under Section III.A.1., subject to the Executive’s timely election of continuation coverage under the Consolidated Budget Omnibus Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay the premiums for the Executive for a period of eighteen (18) months based on the level of coverage in effect as of the date of the Executive’s termination. Notwithstanding the foregoing, in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company’s obligations under this Section III.A.2. shall immediately cease. The Executive will notify the Company of his eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility. |
In the event that the Company’s making payments under this Section III.A.2 would violate nondiscrimination rules or result in the imposition of penalties under the Patient Protection and Affordable Care Act of 2010 (“PPACA”) and related regulations and guidance promulgated thereunder, the parties agree to reform this Section III.A.2. in such manner as is necessary to comply with tax laws and the PPACA, as applicable.
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C. |
Equity Awards. Upon a termination of employment pursuant to which the Executive is entitled to severance pay under Section III.A.1., any vested stock option awards held by Executive at the time of his termination will remain exercisable by the Executive for the greater of (i) 90 days following the effective date of the Executive’s termination and (ii) the remaining term of such option award, and all other Company equity awards held by Executive that remain unvested upon the effective date of his termination will be forfeited for no consideration. |
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OTHER PROVISIONS |
A.No Separate Fund. All severance benefits payable under this Agreement are payable from the Company’s general assets. There is no separate trust or fund established for the payment of severance benefits under this Agreement. All amounts payable hereunder shall be less all appropriate deductions, including federal, state and local withholding taxes.
B.Section 409A.
1.It is the intent of the parties that the payments and benefits provided hereunder are exempt from Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and should be interpreted and construed in such a manner.
2.“Termination of employment”, “resignation”, “separation from service”, or correlative phrases or terms, as used in this Agreement, for purposes of any payments under this Agreement that are payments of deferred compensation, have the same meaning as “separation from service” as defined in Section 409A.
3.If a payment obligation under this Agreement arises on account of the Executive’s separation from service while the Executive is a “specified employee” (as defined under Section 409A and determined in good faith by the Board), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue with interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of the Executive’s estate following his death.
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4.Each payment and benefit payable under this Agreement, and each other benefit required to be aggregated with the payment and benefits under this Agreement pursuant to Section 409A, is hereby designated as a separate payment, as provided in Treasury Regulation section 1.409A-2(b)(2)(iii), and will not collectively be treated as a single payment.
C.Amendment or Waiver. No provisions of this Agreement may be amended, modified, waived or discharged unless Executive and the Company agree to such amendment, modification, waiver or discharge in writing.
D.Entire Agreement. This Agreement represents the entire agreement between Executive and the Company with respect to the matters set forth herein and supersedes and replaces any prior agreements in their entirety. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement will be made by either party which are not set forth expressly herein. No future agreement between Executive and the Company may supersede this Agreement, unless it is in writing and specifically makes reference to this Section IV.D.
E.Executive’s Successors. This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive dies while any amounts are still payable hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee, or other designee or, if there be no such designees, to Executive’s estate.
F.Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.
G.Counterparts; Electronic Signatures. This Agreement may be executed (including via electronic signature) in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed effective as of the date set forth above.
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Alphatec Spine, Inc. |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Xxxxx X. Xxxxxxxx EVP, People & Culture and General Counsel |
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ACCEPTED AND AGREED TO AS OF THE DATE FIRST SET FORTH ABOVE: |
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/s/ X. Xxxx Xxxxxx |
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X. Xxxx Xxxxxx |
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EXHIBIT b
ATEC CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the “Agreement”) is entered into as of April 19, 2021 (the “Commencement Date”), by and between Alphatec Holdings, Inc., together with any of its subsidiaries and affiliates, and any successor(s) thereto (collectively, “Alphatec,” “ATEC” or the “Company”) and X. Xxxx Xxxxxx (the “Executive”) (each a “Party”, and, collectively, the “Parties”).
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1. |
Term of Agreement. This Agreement shall commence on the date hereof and continue in effect until the earlier of (a) the Executive’s Separation from Service other than within twenty-four (24) months following a Change in Control (each as defined below); (b) the Company’s satisfaction of all of its obligations under this Agreement; or (c) the execution of a written agreement between the Company and Executive terminating this Agreement. |
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2. |
Definitions. As used in this Agreement: |
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A. |
“Annual Compensation” means the sum of the following: |
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one year of the Executive’s base salary, the highest rate at which the Executive was paid at any time during the twelve (12)-month period prior to the Executive’s Separation from Service; plus |
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B. |
the greater of (A) the Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service. |
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B. |
“Cause” means (i) the Executive’s willful and repeated failure to satisfactorily perform his or her material duties which is not remedied within thirty (30) days’ written notice from the Company specifying such failure; (ii) the Executive’s repeated and willful failure to follow the lawful directions of the Company’s Chief Executive Officer or Board of Directors which is not remedied within thirty (30) days’ written notice from the Company specifying such failure; (iii) the Executive’s conviction of or plea of guilty or nolo contendere to a crime involving moral turpitude; (iv) the Executive engaging, or in any manner participating, in any activity which is directly competitive and materially and demonstrably injurious to the Company; or (v) the Executive’s commission of an intentional act of fraud, embezzlement or theft |
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in the course of the Executive’s employment by the Company. |
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C. |
“Change in Control” has the meaning set forth in the Company’s 2016 Equity Incentive Plan. |
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D. |
“COBRA” means the Consolidated Budget Omnibus Reconciliation Act of 1985, as amended. |
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E. |
“Code” means the Internal Revenue Code of 1986, as amended from time-to-time. |
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F. |
“Disability” means that, at the time the Executive Separates from Service, the Executive has been unable to perform the duties of his position for a period of 180 consecutive days as the result of an incapacity due to physical or mental illness. |
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G. |
“Good Reason” means the occurrence of one of the following which occurs within twenty-four (24) months following a Change in Control and without Executive’s express, written consent: (i) a significant reduction of the Executive’s duties, position or responsibilities (including, without limitation, any negative change in reporting hierarchy involving the Executive or the person to whom he or she directly reports), or the Executive’s removal from such position and responsibilities; (ii) a material reduction by the Company in the Executive’s base salary or target annual bonus as in effect immediately prior to such reduction; (iii) a material reduction by the Company in the kind or aggregate level of employee benefits to which the Executive is entitled immediately prior to such reduction with the result that the Executive’s overall benefits package is significantly reduced; (iv) a request that the Executive relocate (except for office relocations that would not increase the Executive’s one-way commute to more than fifty (50) miles); or (v) the failure of the Company to obtain the assumption of this Agreement pursuant to Section 7. For avoidance of doubt (as examples and not an exhaustive list), a significant reduction of duties, position or responsibilities shall have occurred if the Executive was a Section 16 reporting officer immediately prior to the Change in Control and is no longer a Section 16 reporting officer immediately following the Change in Control. The Executive may terminate her employment for “Good Reason” within 90 days after the Executive has actual knowledge of the occurrence, without the written consent of the Executive, of one of the above events that has not been cured within 30 days after written notice thereof has been given by the Executive to the Company setting forth in reasonable detail the basis of the event (provided that such notice must be |
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given to the Company within 30 days of the Executive becoming aware of such condition). |
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H. |
“Long-term Incentive Award Value” means the highest grant date fair value of any long-term incentive award (cash and/or equity-based incentive) granted to the Executive in the three (3) calendar year period prior to the calendar year of the Separation from Service. |
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I. |
“PPACA” means the Patient Protection and Affordable Care Act of 2010 and related regulations and guidance promulgated thereunder. |
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J. |
“Separation from Service” or “Separates from Service” means a termination of employment with the Company that qualifies as a separation from service in accordance with Section 409A of the Code. |
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X. |
“Specified Employee” means an employee who is determined by the Company to be a Specified Employee in accordance with Section 409A of the Code. |
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3. |
Severance Payments and Benefits. |
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A. |
If a Change in Control occurs and within a period of twenty-four (24) months thereafter, the Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) the Executive signing and not revoking a separation and general release agreement (the “Release”) in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, the Executive shall receive (and the Company (or any successor thereto) shall pay, award and/or provide): |
(1) a lump-sum cash severance payment in an amount equal to the sum of (a) one times (1x) the Executive’s Annual Compensation; (b) the product of (x) the Executive’s Long-term Incentive Award Value, multiplied by (y) a fraction, the numerator of which is the number of full and partial calendar months between January 1 of the year of Separation from Service and the date of the Executive’s Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is twelve (12); and (c) the product of (x) the greater of (A) the Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and partial
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calendar months between January 1 of the year of Separation from Service and the date of the Executive’s Separation from Service and the denominator of which is twelve (12); and
(2) twelve (12) months of continued coverage under the Company’s group health plans (based on the level of the Executive’s coverage in effect on the date of the Executive’s Separation from Service), at the Company’s expense, subject to the Executive’s timely election of continuation coverage under the COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company’s obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of her eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company’s making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the PPACA, as applicable.
(3) full vesting in all Company equity and long-term incentive awards granted to the Executive (including, but not limited to, all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the extent that such vesting is based on service with the Company. With respect to any performance shares and performance unit awards, (a) the final number of units and/or shares payable under such awards shall only be determined in accordance with the terms and conditions of the respective grant agreement governing such award, and accordingly, (b) distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the foregoing, the full and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) the right, notwithstanding anything to the contrary in the respective award agreement(s), to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing
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model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following the Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
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B. |
If the Executive is not a Specified Employee, all payments made to the Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following the Executive’s Separation from Service, provided that the Executive’s Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If the Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of the seventh (7th) month after the date of the Executive’s Separation from Service, provided that no such payment shall be made to the Executive if the Release has not become effective as of the six (6)-month anniversary of the date of the Executive’s Separation from Service. |
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4. |
Parachute Payments. In the event that any of the severance payments and other benefits provided by this Agreement or otherwise payable to the Executive (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then the Executive’s severance payments and benefits under this Agreement or otherwise shall be payable either in full or in such lesser amount which would result in no portion of such severance payments or benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of severance payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such severance payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the severance payments and benefits required by this Section shall be made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to the Executive. The calculations in Section 4 will be performed by the professional firm engaged by the Company for general tax purposes as of the day prior to the date of the event that might reasonably be anticipated to result in severance payments and benefits that would otherwise be subject to the Excise |
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Tax. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company shall appoint a nationally recognized tax firm to make the determinations required by this Section. The Company shall bear all expenses with respect to the determinations by such firm required to be made by this Section 4. The Company and the Executive shall furnish such tax firm such information and documents as the tax firm may reasonably request in order to make its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and the Executive as soon as practicable following its engagement. Any good faith determinations of the tax firm made hereunder shall be final, binding and conclusive upon the Company and the Executive. As a result of the uncertainty in the application of Sections 409A, 280G or 4999 of the Code at the time of the initial determination by the professional tax firm described in this Section 4, it is possible that the Internal Revenue Service (the “IRS”) or other agency will claim that an Excise Tax greater than that amount, if any, determined by such professional firm for the purposes of Section 4 is due (the “Additional Excise Tax”). The Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require payment of Additional Excise Tax. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to payments made or due to the Executive. The Company shall pay all reasonable fees, expenses and penalties of Executive relating to a claim by the IRS or other agency. In the event it is finally determined that a further reduction would have been required under Section 4 to place the Executive in a better after-tax position, the Executive shall repay the Company such amount within 30 days thereof in order to effect such result. |
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No Mitigation. The Executive shall not be required to mitigate the amount of any payment or benefit provided for in Section 3 hereof by seeking other employment or otherwise, nor shall the amount of such payment be reduced by reason of compensation or other income the Executive receives for services rendered after the Executive’s Separation from Service from the Company. |
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Exclusive Remedy. In the event of the Executive’s Separation from Service on account of an involuntary termination without Cause or a voluntary termination for Good Reason within twenty-four (24) months following a Change in Control, the provisions of Section 3 are intended to be and are exclusive and in lieu of any other rights or remedies to which the Executive or the Company may otherwise be entitled (including any contrary provisions in any employment agreement the Executive may have with the Company), whether at law, tort or contract, in |
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equity, or under this Agreement. Payments made to or on behalf of the Executive under any other severance plan, policy, contract or arrangement with the Company shall reduce amounts payable under this Agreement on a dollar-for-dollar basis. |
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7. |
Company’s Successors. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, to expressly assume and agree to perform the obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. As used in this Section 7, Company includes any successor to its business or assets as aforesaid which executes and delivers this Agreement or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. |
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Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or five (5) days after deposit with postal authorities transmitted by United States registered or certified mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the first or last page of this Agreement, or to such other address as either Party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. |
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Amendment or Waiver. No provisions of this Agreement may be amended, modified, waived or discharged unless the Executive and the Company agree to such amendment, modification, waiver or discharge in writing. No amendment, modification, waiver or discharge of this Agreement shall result in the accelerated payment of any benefit or payment provided for in Section 3. No waiver by either party at any time of the breach of, or lack of compliance with, any conditions or provisions of this Agreement shall be deemed a waiver of the provisions or conditions hereof. |
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Entire Agreement. This Agreement represents the entire agreement between the Executive and the Company with respect to the matters set forth herein and supersedes and replaces any prior agreements in their entirety. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement will be made by either Party which are not set forth expressly herein. No future agreement between the Executive and the Company may supersede this Agreement, unless it is in writing and specifically makes reference to this Section 10. |
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Executive’s Successors. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive dies while any amounts are still payable hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee, or other designee or, if there be no such designees, to the Executive’s estate. |
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No Funding Obligation. This Agreement shall be unfunded. Any payment made under this Agreement shall be made from the Company’s general assets, and the the Executive’s rights shall be no greater than those of general unsecured creditor of the Company. |
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Legal Fees. In the event of any dispute or controversy arising out, relating to, or in connection with this Agreement, the Company shall reimburse the Executive for reasonable attorney fees, costs and expenses incurred with respect thereto if the Executive substantially prevails on the merits with respect to any breach of this Agreement by the Company. |
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14. |
Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement. |
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Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. |
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Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable income, employment and excise taxes. |
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Applicable Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California (with the exception of its conflict of law provisions). This Agreement is intended to comply with or be exempt from Section 409A of the Code and the regulations promulgated thereunder. |
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18. |
Counterparts; Electronic Signatures. This Agreement may be executed (including via electronic signature) in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. |
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IN WITNESS WHEREOF, this Agreement is executed effective as of the date set forth above.
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Alphatec Holdings, Inc. |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Xxxxx X. Xxxxxxxx EVP, People & Culture and General Counsel |
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ACCEPTED AND AGREED TO AS OF THE DATE FIRST SET FORTH ABOVE: |
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/s/ X. Xxxx Xxxxxx |
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X. Xxxx Xxxxxx |
