Exhibit 10.12
August 3, 2005
Mr. Bill Pastor
12420 West Gate
Kansas City, KS 66213
Dear Bill:
I
am very pleased to provide you with a summary of the terms of your
employment with Alphatec Spine, Inc. ("Alphatec"). Your
employment with Alphatec will commence once any conditions set
forth in this letter are satisfied, and you return the letter to
the Company. At this time, we anticipate that your employment will
be effective August 1, 2005.
1.
Position.
Your position will be Vice President Sales
and Customer Service. As you progress with Alphatec, your position
and assignments are, of course, subject to change. As an Alphatec
employee, we expect that you will perform any and all duties and
responsibilities normally associated with your position in a
satisfactory manner and to the best of your abilities at all
times.
2.
Starting Date/Nature of
Relationship. If you accept this offer,
and any conditions set forth herein are satisfied, your employment
with Alphatec will begin on August 1, 2005 (the "Commencement
Date"). Thereafter, you will be expected to devote all of your
working time to the performance of your duties at Alphatec
throughout your employment. No provision of this letter shall be
construed to create an express or implied employment contract, or a
promise of employment for any specific period of time. Your
employment with Alphatec is at-will employment which may be
terminated by you or Alphatec at any time for any reason with or
without advance notice.
3.
Compensation, Equity, Benefits,
Bonus. Your initial base pay shall be
at a rate of $5,480.77 weekly ($285,000.00 on an annualized basis)
minus customary deductions for federal and state taxes and the
like.
Subject
to approval by the Board of Directors, you will be granted 15,000
shares of Founder's stock. This stock will have a five year vesting
schedule along with change of control privileges.
In
addition to your compensation, you may choose to take advantage of
the 401(k) plan as all other employees.
Employee
will be eligible to receive a cash performance bonus each fiscal
year, payable within 30 days after the end of the Company's
fiscal year, in an amount of up to 50% of the base salary received
by Employee for such fiscal year. In the fiscal year ended
December 31, 2005 ("FY 2005"), Employee will be entitled to
his full performance bonus (which will be 50% of base salary paid
from the Commencement Date through December 31, 2005) if the
Company's Net Sales (as that term is used in the Company's audited
financial statements), exclusive of sales by businesses acquired
from and after the Commencement Date equal or exceed $50 Million.
In the event that Same Store Sales in FY 2005 are $33 Million,
Employee will receive 25% of his full performance bonus. In the
event that Same Store Sales in FY 2005 are $40 Million, Employee
will receive 50% of his full performance bonus. In the event that
Same Store Sales for FY 2005 are between $33 Million and $40
Million, the percentage of Employee's full performance bonus shall
be prorated between 25% and 50%, and in the event that Same Store
Sales for FY 2005 are between $40 Million and $50 Million, such
percentage shall be prorated between 50% and 100%. After FY 2005,
performance bonuses shall be based upon the achievement of
objectives established by the President and COO prior to the
commencement of the fiscal year.
As
also indicated you will be reimbursed for the expenses associated
with your housing during your tenure with Alphatec to include
corporate housing and utilities, a company car, meals and clothing
maintenance. We will also reimburse you for round trip airfare
expenses between Kansas and California as you deem appropriate with
an average not to exceed every other weekend.
4.
Your Certifications to Alphatec.
As a condition of your
employment:
You
hereby certify to Alphatec that (1) you are free to enter into
and fully perform the duties of your position and that you are not
subject to any employment, confidentiality, non-competition or
other agreement that would restrict your employment by Alphatec,
(2) signing this letter of employment with Alphatec does not
violate any order, judgment or injunction applicable to you, or
conflict with or breach any agreement to which you are a party or
by which you are bound, (3) you have disclosed to Alphatec any
applicability agreements that address confidentiality or other
post-employment obligations, (4) all facts you have presented
or will present to Alphatec are accurate and true. This includes,
but is not limited to, all oral and written statements you have
made (including those pertaining to your education, training,
qualifications, licensing and prior work experience) on any job
application, resume or c.v. , or in any interview or
discussion with Alphatec.
5.
Non-solicitation/Proprietary
Information/Non disclosure. For a
period of 12 months upon termination, the Employee is under a
non solicit, non disclosure agreement. Upon termination of
Employee's employment for any reason, Employee will not recruit,
solicit or induce, or attempt to induce, any Employees of the
Company to terminate their employment with, or otherwise cease
their relationship with, the Company for a period of
12 months.
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, and customer and supplier lists.
Employee will not disclose any Proprietary Information to others
outside the Company or use the same for any unauthorized purposes
without written approval by an officer of the Company, either
during or after his employment, unless and until such Proprietary
Information has become public knowledge without fault by
Employee.
Employee
agrees that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing
Proprietary Information, whether created by Employee or others,
which shall come into his custody or possession, shall be and are
the exclusive property of the Company to be used by Employee only
in the performance of his duties for the Company.
Employee
agrees that his obligation not to disclose or use information,
know-how and records of the types set forth in paragraphs
(a) and (b) above, also extends to such types of
information, know-how, records and tangible property of
subsidiaries and joint ventures of the Company, customers of the
Company or suppliers to the Company or other third parties who may
have disclosed or entrusted the same to the Company or to Employee
in the course of the Company's business.
6.
Miscellaneous.
This letter constitutes Alphatec's entire
offer regarding the terms and conditions of your prospective
employment with Alphatec. It s
