Exhibit 10.26
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “Agreement”), made this 17th day of
July, 2006 (the "Commencement Date"), is entered into among Steven
Reinecke (“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 shall become effective on the Commencement Date and shall
govern Executive’s employment by the Company.
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
following 30 days written notice to the other party, with or
without Cause (as defined below) pursuant to the terms of this
Agreement.
3. Title; Capacity; Office .
The Company shall employ Executive, and Executive agrees to work
for the Company, as its Vice President and Chief Technology
Officer. 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 6.2, 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 an annual
base salary of $235,000.00, less applicable payroll withholdings,
payable in accordance with the Company’s customary payroll
practices, with salary increases, if any, to be determined by the
Board on an annual basis in January of each subsequent year of
Executive’s employment.
4.2 Performance Bonus .
Executive will be eligible to receive a 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 quarterly and annual performance
objectives established by the Board at the beginning of each fiscal
year. Up to twelve and a half percent (12.5%) of the Total
Bonus Amount shall be payable within 30 days of the end of each
fiscal quarter (for a total of up to 50% of the Total Bonus
Amount), based on Executive’s achievement of quarterly
objectives, and up to fifty percent (50%) of the Total Bonus
Amount shall be payable within 30 days after the end of the fiscal
year, based on Executive’s achievement of annual objectives.
For fiscal year 2006, the Total Bonus Amount shall be based on the
preexisting objectives established by the board of directors of the
Company and Parent (collectively, the "Board") for such
year.
4.3 Fringe Benefits .
Executive shall be entitled to participate in all benefit programs
that the Company establishes and makes available to its management
employees. Executive will also be entitled to take fully paid
vacation in accordance with Company policy, which shall be not less
than four (4) weeks per calendar year, with no forfeiture for
unused vacation days.
4.4 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. In addition, Executive shall receive a
corporate credit card that shall be used for reasonable expenses
related to the Executive’s performance of the
Executive’s obligations under this Agreement.
4.5 Equity .
(a) Executive acknowledges and
agrees that all grants of equity to the Executive (excluding any
shares held as a result of such shares being purchased in a private
placement) pursuant to any agreement, written or otherwise as of
the date of this Agreement are as follows: a grant of 12,500 shares
of Parent Series A-1 common stock (the "Restricted Shares") that
occurred on October 17, 2005.
(b) The Restricted Shares shall also
be subject to the terms of the agreement underlying the Restricted
Shares and the Shareholders’ Agreement entered into by Parent
and the holders of the other shares of Series A-1 common
stock.
(c) The parties agree that the
Executive will be granted options to purchase 10,000 shares of
Parent common stock in accordance with the Company’s regular
schedule for granting equity to its employees. Such options will be
issued pursuant to an incentive stock option agreement, which,
among other things, will provide for a five-year vesting schedule
and immediate vesting upon a change of control.
5. Termination of Employment
. The Executive’s employment shall terminate upon the
occurrence of any of the following:
5.1 Termination by the Company
for Cause . This Agreement may be terminated by the Company for
Cause upon the occurrence of any of the following (each of which
shall constitute "Cause"): (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) a
material breach of this Agreement that goes uncorrected for a
period of thirty (30) consecutive days after written notice
has been provided to Executive; (iv) any gross or willful
misconduct or gross negligence by Executive in the performance of
Executive’s duties; or (v) a material violation of the
Company’s Code of Conduct.
5.2 Termination Without Cause
. At the election of the Company, without
2
Cause, at any time, upon thirty (30) days
written notice to Executive.
5.3 Voluntary Termination .
At the election of the Executive, for any reason, upon thirty
(30) days notice to the Company.
6. Effect of Termination
.
6.1 Termination for Cause or at
the Election of Executive . In the event that Executive’s
employment is terminated for Cause pursuant to Section 5.1 or
at the election of the Executive pursuant to Section 5.3, the
Company shall have no further obligations under this Agreement
other than to pay to Executive the base salary and benefits,
including payment for accrued but untaken vacation days, otherwise
payable to Executive under Sections 4.1 through 4.3 respectively
through the last day of Executive’s actual employment by the
Company (collectively, the “Accrued
Obligations”).
6.2 Termination by the Company
Without Cause . In the event that Executive’s employment
is terminated pursuant to Section 5.2, the Company shall
con
