Exhibit 10.2
SUBSCRIPTION
AGREEMENT
SUBSCRIPTION AGREEMENT (the
“Subscription Agreement”) made as of this 4th day of
June 2009 (the “Effective Date”) between Alphatec
Holdings, Inc., a corporation organized under the laws of the State
of Delaware, (the “Company”), and HealthpointCapital
Partners II, L.P. (the “Subscriber”).
WHEREAS, the Company wishes to sell
and the Subscriber wishes to purchase $10,000,000 of shares (the
“Shares”) of the Company’s Common Stock, par
value $0.0001 per share (the “Common Stock”) on the
terms and conditions set forth herein.
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as
follows:
I. SUBSCRIPTION FOR
SHARES
1.1 Subscription for Shares.
Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby shall subscribe for and purchase from the Company
the number of Shares set forth on the signature page to this
Subscription Agreement at a price per share determined in
accordance with Section 1.2, with an aggregate purchase price
for the Shares of $10,000,000 and upon the acceptance and execution
of this Subscription Agreement by the Company, the Company agrees
to sell such Shares to the Subscriber for said price per share. The
purchase price is payable by certified or bank check made payable
to the Company or by wire transfer of funds. The Shares shall be
delivered by the Company on the Closing Date. In the event that the
purchase price per Share would result in the issuance of a
fractional Share to the Subscriber, the aggregate purchase price
for the Shares shall be $10,000,000 less the amount allocated to
such fractional Share, and the Company shall not issue such
fractional Share.
1.2 Price per Share. The
purchase price for the Shares shall be the higher of (i) the
average closing share price for the Common Stock on the Nasdaq
National Market for four trading days consisting of (a) the
three trading days prior to the Effective Date and (b) the
Effective Date; and (ii) the consolidated closing bid price
per share for the Common Stock on the Nasdaq National Market on the
Effective Date.
1.3 Delivery of the Shares at the
Closing. The completion of the purchase and sale of the Shares
(the “Closing”) shall occur at the offices of the
Company, on June 20, 2009, or on such later date or at such
different location as the parties shall agree in writing, but not
prior to the date that the conditions for Closing set forth below
have been satisfied or waived by the appropriate party (the
“Closing Date”).
II REPRESENTATIONS BY AND
COVENANTS OF SUBSCRIBER
2.1 Reliance on Exemptions.
The Subscriber acknowledges and understands that the Company is
relying in part upon the truth and accuracy of, and the
Subscriber’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the
Subscriber set forth herein in order to determine the eligibility
of the Subscriber to acquire the Shares.
2.2 Investment Purpose. The
Subscriber represents that the Shares are being purchased for its
own account, for investment purposes only and not for distribution
or resale to others in contravention of the registration
requirements of the Securities Act of 1933, as amended (the
“1933 Act”). The Subscriber agrees that it will not
sell or otherwise transfer the Shares unless they are registered
under the 1933 Act or unless an exemption from such registration is
available.
2.3 Accredited Investor. The
Subscriber represents and warrants that it is an “accredited
investor” as such term is defined in Rule 501 of Regulation D
promulgated under the 1933 Act, and that it is able to bear the
economic risk of any investment in the Shares.
2.4 Risk of Investment. The
Subscriber recognizes that the purchase of Shares involves a high
degree of risk in that: (a) an investment in the Company is
highly speculative and only investors who can afford the loss of
their entire investment should consider investing in the Company
and the Shares; and (b) transferability of the Shares is
limited.
2.5 Information. The
Subscriber hereby represents that: (a) the Subscriber has been
furnished by the Company during the course of this transaction with
all information regarding the Company which it has requested; and
(b) that the Subscriber has been afforded the opportunity to
ask questions of and receive answers from duly authorized officers
of the Company concerning the terms and conditions of this
transaction, and any additional information which it has
requested.
2.6 Legends. The Subscriber
understands that the certificates representing the Shares, until
such time as they have been registered under the 1933 Act or are
exempt from such registration requirement, shall bear a restrictive
legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such certificates or other
instruments):
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
(B) AN OPINION OF COUNSEL, IN A REASONABLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS, OR (II) UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT.
The legend set forth above shall be
removed and the Company shall issue a certificate without such
legend to the holder of the Shares upon which it is stamped, if
(a) such Shares are being sold pursuant to a registration
statement under the 1933 Act, (b) such holder delivers to the
Company an opinion of counsel, in a reasonably acceptable form that
a disposition of the Shares is being made
pursuant to an exemption from such registration,
or (c) such holder provides the Company with reasonable
assurance that a disposition of the Shares may be made pursuant to
Rule 144 under the 1933 Act without any restriction as to the
number of securities acquired as of a particular date that can then
be immediately sold.
2.7 No General Solicitation.
The Subscriber represents that the Subscriber was not induced to
invest by any form of general solicitation or general advertising
including, but not limited to, the following: (a) any
advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over the news
or radio; and (b) any seminar or meeting whose attendees were
invited by any general solicitation or advertising.
2.8 Validity; Enforcement.
The Subscriber represents and warrants that: (a) it is
authorized and otherwise duly qualified to purchase and hold the
Shares; and (b) that this Subscription Agreement has been duly
and validly authorized, executed and delivered and constitutes the
legal, binding and enforceable obligation of the
undersigned.
2.9 Entity Representation.
The Subscriber represents and warrants that: (a) it was not
formed for the purpose of investing in the Company; and (b) it
is authorized and otherwise duly qualified to purchase and hold the
Shares.
III. REPRESENTATIONS BY AND
COVENANTS OF THE COMPANY
3.1 Organization and
Qualification. The Company is duly organized and validly
existing in good standing under the laws of the State of Delaware,
and has the requisite corporate power and authority to own its
properties and to carry on its business as now being conducted. The
Company is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect. As used in this Subscription Agreement,
“Material Adverse Effect” means any material adverse
effect on the business, properties, assets, operations, results of
operations, financial condition or prospects of the Company, or on
the transactions contemplated hereby.
3.2 Authorization; Enforcement;
Validity. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this
Subscription Agreement, to perform its obligations under this
Subscription Agreement, and to issue the Shares in accordance with
the terms of this Subscription Agreement. When executed and
delivered by the Company, the execution and delivery of this
Subscription Agreement by the Company and the consummation by the
Company of the transactions contemplated by this Subscription
Agreement will have been duly authorized by the Company’s
board of directors.
3.3 Issuance of Securities.
The issuance, sale and delivery of the Shares has been duly
authorized by all requisite corporate action by the Company and,
upon issuance in accordance with this Subscription Agreement, shall
be (a) duly authorized, validly issued, fully paid and
non-assessable, and (b) free from a
