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Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(the “Agreement”), made this 13 th day of June, 2008 (the “Effective
Date”), is entered into among Peter Wulff
(“Executive”), Alphatec Spine, Inc., a California
corporation (the “ASI”), and Alphatec Holdings, Inc., a
Delaware corporation (“Parent”) (collectively, ASI and
Parent shall be referred to as the
“Company”).
1. Commencement . This
Agreement, which shall govern Executive’s employment by the
Company, shall become effective on the Effective Date and the
Executive’s employment pursuant to the terms of this
Agreement shall begin on June 16, 2008 (the
“Commencement Date”).
2. At-Will Employment
. The parties to this Agreement agree and acknowledge that the
Executive’s employment pursuant to this Agreement shall be
considered at-will. Either party may terminate this Agreement at
any time, with or without cause pursuant to the terms of this
Agreement. Similarly, the Company may change Executive’s
position, responsibilities or compensation with or without cause or
notice. Executive agrees and acknowledges that Executive’s
initial performance review will take place within 90 days of the
Commencement Date.
3. Title; Capacity;
Office . The Company shall employ Executive, and Executive
agrees to work for the Company initially as its Chief Financial
Officer, Vice President and Treasurer. Executive shall perform the
duties and responsibilities inherent in the position in which
Executive serves and such other duties and responsibilities as the
President and Chief Executive Officer (or his or her designee(s))
shall from time to time reasonably assign to Executive. Executive
shall report to the President and Chief Executive Officer (or his
or her designee(s)).
4. Compensation and
Benefits . While employed by the Company, Executive shall be
entitled to the following (it being agreed, for the avoidance of
doubt, that, except as provided in Section 5.2, amounts
payable on the happening of any specified event will not be payable
if the Executive is not employed by the Company upon the happening
of such event):
4.1 Salary .
Commencing on the Commencement Date, the Company shall pay
Executive a salary at an annualized rate of $260,000, less
applicable payroll withholdings, payable in accordance with the
Company’s customary payroll practices.
4.2 Performance Bonus
. If Executive remains employed through the last day of a fiscal
year, Executive will be eligible to receive a discretionary cash
performance bonus each fiscal year in an amount equal to 50% of the
annual base salary for such fiscal year (the “Total Bonus
Amount”) based on Executive’s achievement of annual
performance objectives established by the board of directors of the
Company (the “Board”) or their designee(s) at the
beginning of each fiscal year. If Executive does not remain
employed through the end of a fiscal year, he/she will not be
eligible to receive any amount as a performance bonus. The amount
of the bonus paid to the Executive shall be prorated with respect
to any year in which the Executive was not a full-time employee at
the start of such year.
4.3 Reimbursement of
Expenses . Executive shall be entitled to prompt reimbursement
for reasonable expenses incurred or paid by Executive in connection
with, or related to the performance of, Executive’s duties,
responsibilities or services under this Agreement, upon
presentation by Executive of documentation, expense statements,
vouchers and/or such other supporting information as the Company
may reasonably request. Expenses that do not comply with applicable
law and/or the Company’s Travel and Entertainment Policy will
not be reimbursed under any circumstances.
4.4 Equity . The
Company will recommend to the board of directors of the Parent that
Executive receive a grant of options to purchase 150,000 shares of
the common stock of Parent (the “Options”). If granted,
the Options shall have an exercise price equal to the closing price
of Parent’s common stock on the date of issuance. The Options
shall vest over a four-year period in 16 equal installments with
the first tranch vesting three months after the date of issuance
and an additional 1/16 th of
the options vesting every three months thereafter. The Options
shall be subject, in all respects, to (i) the Alphatec
Holdings, Inc. 2005 Employee, Director and Consultant Stock Plan
(the “Plan”), and (ii) an Incentive Stock Option
Agreement to be entered into by the Parent and the
Executive.
4.5 Vacation . The
Executive may take up to four (4) weeks of paid vacation
during each year at such times as shall be consistent with the
Company’s vacation policies and with vacations scheduled for
other executives and employees (excluding the President and CEO) of
the Company.
5. Termination of
Employment . The Executive’s employment can terminate at
any time with or without cause or notice:
5.1 Termination by the
Company for Cause . If the Company terminates Executive for
Cause, the Company shall have no obligation to Executive other than
for payment of wages earned through the termination date. For
purposes of this Agreement, “Cause” means any one of
the following: (i) Executive being convicted of a felony;
(ii) Executive committing any act of fraud or dishonesty
resulting or intended to result directly or indirectly in personal
enrichment at the expense of the Company; (iii) failure or
refusal by Executive to follow policies or directives reasonably
established by the President and Chief Executive Officer or his or
her designee(s) that goes uncorrected after notice has been
provided to Executive; (iv) a mate
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