Exhibit 10.27
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the “Agreement”), made this 10
th
day of
November, 2006, is by and among Steve Lubischer
(“Employee”), Alphatec Spine, Inc., a California
corporation (the “Company”), and Alphatec Holdings,
Inc., a Delaware corporation (“Parent”).
1. Commencement Date .
Employee’s employment with the Company pursuant to the terms
of this Agreement shall commence on November 30, 2006 (the
“Commencement Date”).
2. At-Will Employment . The
parties to this Agreement agree and acknowledge that the
Employee’s employment pursuant to this Agreement shall be
considered at will. Either party may terminate this Agreement at
any time, with or without Cause (as defined below) pursuant to the
terms of this Agreement.
3. Title; Capacity; Office .
The Company shall employ Employee, and Employee agrees to work for
the Company as its Vice President, Sales. Employee shall perform
the duties and responsibilities inherent in the position in which
Employee serves and such other duties and responsibilities as the
Senior Vice President, Sales and Marketing (or his or her
designee(s)) shall from time to time reasonably assign to
Employee.
4. Compensation and Benefits
. While employed by the Company, Employee shall be entitled to the
following (it being agreed, for the avoidance of doubt, that,
except as explicitly provided in this Agreement, bonuses or any
other amounts payable on the happening of any specified event will
not be payable if the Employee is not employed by the Company upon
the happening of such event):
4.1 Salary . The Company
shall pay Employee an annual base salary of $275,000, less
applicable payroll withholdings, payable in accordance with the
Company’s customary payroll practices, with salary increases,
if any, to be determined by the President and Chief Executive
Officer on an annual basis beginning January 1,
2008.
4.2 Incentive Bonus . From
the Commencement date until January 1, 2008, Employee will be
eligible to receive a cash performance bonus each fiscal year,
payable in accordance with the Company’s incentive bonus
policy in an amount of up to 50% of the base salary received by
Employee for such fiscal year. After January 1, 2008 the bonus
percentage shall be established by the President and Chief
Executive Officer.
4.3 Fringe Benefits and
Reimbursement of Expenses . Employee will be entitled to
participate in all benefit programs that the Company establishes
and makes available to employees with a comparable level of
employment with the Company. Employee will also be entitled to take
fully paid vacation in accordance with Company policy, which shall
be not less than three weeks per calendar year, and will accrue in
accordance with the Company’s vacation policy. Employee shall
be entitled to reimbursement for reasonable expenses incurred or
paid by Employee in connection with, or related to the performance
of, Employee’s duties,
responsibilities or services under this
Agreement. All such reimbursement shall be pursuant to and in
accordance with the Company’s travel and expense
reimbursement policy.
4.4 Equity .
(a) Employee acknowledges and agrees
that all grants of equity to the Employee (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: (i) Restricted
Stock Grant of 10,000 shares of Series A-1 Common Stock issued
August 12, 2005; and (ii) Restricted Stock Grant of 2,000
shares of Series A-1 Common Stock issued September 26, 2005
(collectively, the “Restricted Shares”).
(b) Following the execution of this
Agreement and upon the approval of the Parent’s board of
directors, Employee shall be granted options to purchase 7,160
shares of the common stock of Parent (the “Options”),
which Options shall have an exercise price equal to the closing
price of Parent’s common stock on the trading day prior to
issuance. The Options shall vest over a five-year period in equal
amounts beginning on the first anniversary of the date of issuance,
and shall vest immediately upon a Change in Control (as defined in
the Plan referenced below). The Options shall be subject, in all
respects, to (i) the Parent’s Amended and Restated 2005
Employee, Director and Consultant Stock Plan (the
“Plan”), (ii) an Incentive Stock Option Agreement
to be entered into by the Parent and the Employee, and
(iii) the Stockholders’ Agreement dated as of
March 17, 2005 between the Parent and its stockholders, to
which the Employee hereby agrees to be subject.
5. Termination of 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) Employee being convicted of a felony;
(ii) Employee 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 Employee to follow policies or directives reasonably
established by the President and Chief Executive Officer or his or
her designee(s) that goes uncorrected for a period of thirty
(30) consecutive days after written notice has been provided
to Employee; (iv) a material breach of this Agreement that
goes uncorrected for a period of thirty (30) consecutive days
after written notice has been provided to Employee; (v) any
gross or willful misconduct or gross negligence by Employee in the
performance of Employee’s duties; (vi) egregious conduct
by Employee that brings Company or any of its subsidiaries or
affiliates into public disgrace or disrepute; or (vii) a
material violation of the Company’s Code of
Conduct.
6. Effect of Termination for
Cause or at the Election of Employee . In the event that
Employee’s employment is terminated (i) for Cause
pursuant to Section 5; or (ii) at the election of the
Employee for any reason or for no reason, other than as
specifically set forth in this Agreement, the Company shall have no
further obligations under this Agreement other than to pay to
Employee the salary and benefits, including payment for accrued but
untaken vacation days, otherwise payable to Employee under
Section 4.1 and Section 4.3 through the last day of
Employee’s actual employment by the Company.
7. Proprietary Information and
Nonsolicitation .
2
7.1 Proprietary Information
.
(a) Employee agrees that all
information and know-how, whether or not in writing, of a private,
secret or confidential nature concerning the Company’s
business or financial affairs (collectively, “Proprietary
Information”) is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary
Information may include inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects,
developments, plans, research data, clinical data, financial data,
personnel data, computer programs,
