Alphatec
Annual Report 2012

Plain-text annual report

Integrity Act ethically and professionally Communicate openly and honestly Customers Listen to our customers, understand their needs, and seek to exceed their expectations Deliver innovative, high-quality, easy-to-use products and solutions Teamwork Help each other by developing effective partnerships within and outside the company Share information and knowledge and treat each other respectfully Accountability Own your actions and fulfill the commitments you make Establish realistic goals, meet them, and strive to exceed them Results Take action that delivers value to our stakeholders Execute to plan without sacrificing quality Community Contribute to improving quality of life of our colleagues, our patients and where we live Use our resources wisely and minimize waste CORPORATE HEADQUARTERS CUSTOMER SERVICE 5818 El Camino Real Toll Free: 800.922.1356 Carlsbad, California 92008 Local: 760.431.9286 Fax: 800.431.1624 Alphatec Spine and the Alphatec Spine logo are registered trademarks of Alphatec Spine, Inc. ©2013 Alphatec Spine, Inc. All rights reserved. www.AlphatecSpine.com l A p h a t e c S p n e , i I n c . 2 0 1 2 | A n n u a l R e p o r t 2012 | Annual Report Providing physician-inspired solutions for patients with spinal disorders i i i i P r o v d n g p h y s c a n - n s p i r e d s o u t i o n s l i f o r p a t i e n t s w i t h s p n a i l i d s o r d e r s OUR VALUES Cover: Wais Azami is an active Cover: Wais Azami is an active individual. He is currently a law student individual. He is currently a law student who loves ocean sports, motorcycle who loves ocean sports, motorcycle riding and weight training. riding and weight training. “After one of my workouts, I felt a “After one of my workouts, I felt a sudden and strange sensation in my sudden and strange sensation in my neck area, as though a twisted rope neck area, as though a twisted rope was being unraveled, followed by a was being unraveled, followed by a sharp pain. I couldn’t even remove a sharp pain. I couldn’t even remove a shirt without screaming in pain.” shirt without screaming in pain.” Wais ruptured the disc between Wais ruptured the disc between vertebrae C6 and C7. vertebrae C6 and C7. Avalon® Occipital-Cervico- Thoracic Fixation System Avalon® Occipital-Cervico- Thoracic Fixation System Pegasus™ ACI Anchored Cervical Interbody Pegasus™ ACI Anchored Cervical Interbody Trestle Luxe® Anterior Cervical Plating System Trestle Luxe® Anterior Cervical Plating System Solanas® Posterior Cervico-Thoracic Fixation System Solanas® Posterior Cervico-Thoracic Fixation System Discocerv®1 Cervical Disc Prosthesis Discocerv®1 Cervical Disc Prosthesis Ebun S. Garner, Esq. Ebun S. Garner, Esq. General Counsel, General Counsel, Senior Vice President and Secretary Senior Vice President and Secretary PureGen® Cell Allograft PureGen® Cell Allograft Board of Directors Board of Directors Les Cross Les Cross Novel® Novel® Family of Interbody Fusion Family of Interbody Fusion and VBR Systems and VBR Systems Chairman and Chief Executive Officer, Chairman and Chief Executive Officer, Alphatec Spine, Inc. Alphatec Spine, Inc. 800.356.2017 800.356.2017 www.computershare.com www.computershare.com investorrelations@alphatecspine.com investorrelations@alphatecspine.com Stock Transfer Agent Stock Transfer Agent Computershare, Inc. Computershare, Inc. 480 Washington Blvd. 480 Washington Blvd. Jersey City, NJ 07310 Jersey City, NJ 07310 Shareholder Communication Center: Shareholder Communication Center: Zodiac® Degenerative & Deformity Spinal Fixation System Zodiac® Degenerative & Deformity Spinal Fixation System Alphatec NEXoss® Nanostructure BA Matrix Alphatec NEXoss® Nanostructure BA Matrix Epicage® Lumbar Interbody System Epicage® Lumbar Interbody System OsseoScrew®1 Spinal Fixation System OsseoScrew®1 Spinal Fixation System 3D Profuse™ Bioscaffold Osteoconductive Bioscaffold 3D Profuse™ Bioscaffold Osteoconductive Bioscaffold “Surgery meant getting off of mind- “Surgery meant getting off of mind- numbing pain killers, which allowed me numbing pain killers, which allowed me to study for and pass the California First to study for and pass the California First Year Law School Exam. This picture was Year Law School Exam. This picture was taken just before the exam and I knew I taken just before the exam and I knew I was ready. I nailed it!” was ready. I nailed it!” “I credit Dr. Abshire and Alphatec Spine for giving me back my active lifestyle.” “I credit Dr. Abshire and Alphatec Spine for giving me back my active lifestyle.” HeliFix®1 HeliFix®1 Interspinous Spacer System Interspinous Spacer System OsseoFix®1 Spinal Fracture Reduction System OsseoFix®1 Spinal Fracture Reduction System AmnioShield® Amniotic Tissue Barrier AmnioShield® Amniotic Tissue Barrier Aspida® Aspida® Anterior Lumber Plating System Anterior Lumber Plating System Corporate Information Corporate Information Executive Officers Executive Officers Corporate Headquarters Corporate Headquarters Securities Counsel Securities Counsel Les Cross Les Cross Chairman and Chief Executive Officer Chairman and Chief Executive Officer Michael O’Neill Michael O’Neill Chief Financial Officer, Chief Financial Officer, Vice President and Treasurer Vice President and Treasurer W. Patrick Ryan W. Patrick Ryan Chief Operating Officer and President, Chief Operating Officer and President, Senior Vice President, U.S. Commercial Senior Vice President, U.S. Commercial International International Thomas J. McLeer Thomas J. McLeer Operations Operations Mitsuo Asai Mitsuo Asai Alphatec Spine, Inc. Alphatec Spine, Inc. 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Telephone: 760.431.9286 Telephone: 760.431.9286 Fax: 760.431.9132 Fax: 760.431.9132 www.alphatecspine.com www.alphatecspine.com Stockholder Information Stockholder Information Investor Relations Investor Relations Alphatec Spine, Inc. Alphatec Spine, Inc. 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Telephone: 760.494.6610 Telephone: 760.494.6610 Fax: 760.930.2513 Fax: 760.930.2513 President, Alphatec Pacific, Inc. President, Alphatec Pacific, Inc. Email: Email: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. P.C. One Financial Center One Financial Center Boston, MA 02111 Boston, MA 02111 www.mintz.com www.mintz.com Independent Registered Public Independent Registered Public Accounting Firm Accounting Firm Ernst & Young LLP Ernst & Young LLP 4370 La Jolla Village Drive 4370 La Jolla Village Drive Suite 500 Suite 500 San Diego, CA 92122 San Diego, CA 92122 www.ey.com www.ey.com Notice of Annual Meeting Notice of Annual Meeting Thursday, June 21, 2012 Thursday, June 21, 2012 2:00 pm PT 2:00 pm PT Alphatec Spine, Inc. Alphatec Spine, Inc. Corporate Headquarters Corporate Headquarters 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Stock Symbol Stock Symbol The common stock of Alphatec Holdings, The common stock of Alphatec Holdings, Inc. is traded on the NASDAQ Global Select Inc. is traded on the NASDAQ Global Select Market under the ticker symbol “ATEC”. Market under the ticker symbol “ATEC”. Mortimer Berkowitz III Mortimer Berkowitz III President and Managing Director, President and Managing Director, HealthpointCapital, LLC HealthpointCapital, LLC John H. Foster John H. Foster Chairman and Managing Director, Chairman and Managing Director, HealthpointCapital, LLC HealthpointCapital, LLC Stephen E. O’Neil Stephen E. O’Neil Annual Report on Form 10-K Annual Report on Form 10-K A copy of Alphatec Spine’s annual report to the U.S. Securities and Exchange Commission A copy of Alphatec Spine’s annual report to the U.S. Securities and Exchange Commission on Form 10-K is available without charge online at www.alphatecspine.com or upon written on Form 10-K is available without charge online at www.alphatecspine.com or upon written request to the Investor Relations Department (listed above). request to the Investor Relations Department (listed above). Founder and Principal, The O’Neil Group Founder and Principal, The O’Neil Group Forward Looking Statements Forward Looking Statements - - Former Deputy Chairman of the Board, Former Deputy Chairman of the Board, R. Ian Molson R. Ian Molson Molson, Inc. Molson, Inc. James R. Glynn James R. Glynn Invitrogen Corp. Invitrogen Corp. Rohit M. Desai Rohit M. Desai Former President, CFO and Director, Former President, CFO and Director, Founder, Chairman and President, Founder, Chairman and President, Desai Capital Management Incorporated Desai Capital Management Incorporated Siri S. Marshall Siri S. Marshall Former General Counsel, Former General Counsel, General Mills, Inc. General Mills, Inc. Luke T. Faulstick Luke T. Faulstick Co-Owner, President and Chief Co-Owner, President and Chief Executive Offic Executive Offic er, Power Partners Inc. Power Partners Inc. er, We caution you that statements included in this annual report that are not a description of historical facts are forward-looking statements We caution you that statements included in this annual report that are not a description of historical facts are forward-looking statements that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause our results that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause our results to differ materially from historical results or those expressed or implied by such forward-looking statements. Forward looking statements to differ materially from historical results or those expressed or implied by such forward-looking statements. Forward looking statements - - include references to Alphatec Spine’s 2013 business prospects; new product development cycle and market success of those new include references to Alphatec Spine’s 2013 business prospects; new product development cycle and market success of those new products; improvements to the Company’s operations and reductions in the Company’s manufacturing costs and operating expenses; products; improvements to the Company’s operations and reductions in the Company’s manufacturing costs and operating expenses; and geographic expansion. The important factors that could cause actual operating results to differ significantly from those expressed and geographic expansion. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to; the uncertainty of success in developing new products or or implied by such forward-looking statements include, but are not limited to; the uncertainty of success in developing new products or products currently in Alphatec Spine’s pipeline; the successful integration of acquisitions such as Phygen; the successful global launch of products currently in Alphatec Spine’s pipeline; the successful integration of acquisitions such as Phygen; the successful global launch of the Company’s new products and the products in its development pipeline including Alphatec Solus, Alphatec NEXoss, BridgePoint, Illico the Company’s new products and the products in its development pipeline including Alphatec Solus, Alphatec NEXoss, BridgePoint, Illico FS, Pegasus, Illico MIS products, Trestle Luxe and Epicage; failure to achieve acceptance of Alphatec Spine’s products by the surgeon FS, Pegasus, Illico MIS products, Trestle Luxe and Epicage; failure to achieve acceptance of Alphatec Spine’s products by the surgeon community including products discussed in this annual report; timing of U.S. FDA or other foreign and domestic governmental agency community including products discussed in this annual report; timing of U.S. FDA or other foreign and domestic governmental agency decisions that impact commercialization and distribution of the Company’s products; the uncertain regulatory status of the Company’s decisions that impact commercialization and distribution of the Company’s products; the uncertain regulatory status of the Company’s Puregen product Alphatec Spine’s ability to develop and expand its U.S. and/or global revenues; continuation of favorable third party Puregen product Alphatec Spine’s ability to develop and expand its U.S. and/or global revenues; continuation of favorable third party ; ; payor reimbursement for procedures performed using Alphatec Spine’s products; pricing impacts on the spine market; unanticipated payor reimbursement for procedures performed using Alphatec Spine’s products; pricing impacts on the spine market; unanticipated expenses or liabilities or other adverse events affecting cash flow or Alphatec Spine’s ability to successfully control its costs or achieve expenses or liabilities or other adverse events affecting cash flow or Alphatec Spine’s ability to successfully control its costs or achieve profitability; uncertainty of additional funding; Alphatec Spine’s ability to compete with other competing products and with emerging new profitability; uncertainty of additional funding; Alphatec Spine’s ability to compete with other competing products and with emerging new technologies; product liability exposure; patent infringement claims and claims related to Alphatec Spine’s intellectual property. Please technologies; product liability exposure; patent infringement claims and claims related to Alphatec Spine’s intellectual property. Please refer to the risks detailed in Alphatec Spine’s SEC reports, including the attached Annual Report on Form 10-K and in our periodic filings refer to the risks detailed in Alphatec Spine’s SEC reports, including the attached Annual Report on Form 10-K and in our periodic filings including quarterly reports on Form 10-Q and reports on Form 8-K with the Securities and Exchange Commission. Our public filings including quarterly reports on Form 10-Q and reports on Form 8-K with the Securities and Exchange Commission. Our public filings with the Securities and Exchange Commission are available at www.sec.gov and on our website at www.alphatecspine.com. We do not with the Securities and Exchange Commission are available at www.sec.gov and on our website at www.alphatecspine.com. We do not intend to update any forward-looking statement to reflect events or circumstances arising after the date on which it was made. intend to update any forward-looking statement to reflect events or circumstances arising after the date on which it was made. Alphatec, Alphatec Spine, Alphatec, Alphatec Spine, , Aspida, Avalon, Illico, Illico SE, Illico FS, Illico Multi-Level, Trestle, Solanas, OsseoFix+, , Aspida, Avalon, Illico, Illico SE, Illico FS, Illico Multi-Level, Trestle, Solanas, OsseoFix+, Alphatec Solus, Trestle Luxe, AmnioShield, Alphatec NEXoss, 3D Profuse, Novel, OsseoFix, OsseoScrew, Epicage, HeliFix, Discocerv, Alphatec Solus, Trestle Luxe, AmnioShield, Alphatec NEXoss, 3D Profuse, Novel, OsseoFix, OsseoScrew, Epicage, HeliFix, Discocerv, Novel, PureGen, PCB Evolution, Pegasus, Samarys, SCS, TTL-IN, Xenon and Zodiac are trademarks or registered trademarks of Novel, PureGen, PCB Evolution, Pegasus, Samarys, SCS, TTL-IN, Xenon and Zodiac are trademarks or registered trademarks of Alphatec Spine, Inc., or its affiliates. ELA is a trademark of Parcell Laboratories. © 2013 Alphatec Spine, Inc. All rights reserved. The Alphatec Spine, Inc., or its affiliates. ELA is a trademark of Parcell Laboratories. © 2013 Alphatec Spine, Inc. All rights reserved. The Alphatec Solus product is not sponsored, endorsed by, or in any way affiliated with SOLAS® or The Society of Lateral Access Surgery. Alphatec Solus product is not sponsored, endorsed by, or in any way affiliated with SOLAS® or The Society of Lateral Access Surgery. www.alphatecspine.com www.alphatecspine.com BridgePoint® Spinous Process Fixation System BridgePoint® Spinous Process Fixation System Alphatec Solus® Alphatec Solus® Anterior Lumber Interbody Fusion Anterior Lumber Interbody Fusion 1 Not available for sale in the U.S. 1 Not available for sale in the U.S. Wais Azami received a single-level Wais Azami received a single-level anterior cervical discectomy fusion to anterior cervical discectomy fusion to repair his neck injury. Dr. Bret Abshire repair his neck injury. Dr. Bret Abshire from the Temecula Valley Spine & from the Temecula Valley Spine & Neurosurgery Center performed the Neurosurgery Center performed the procedure at the Inland Valley Medical procedure at the Inland Valley Medical center on January 31, 2012. Dr. center on January 31, 2012. Dr. Abshire used Alphatec Spine’s Trestle- Abshire used Alphatec Spine’s Trestle- Luxe anterior cervical plate and Novel® Luxe anterior cervical plate and Novel® CIS interbody spacer to fuse the CIS interbody spacer to fuse the vertebrae at C6 - C7. vertebrae at C6 - C7. ILLICO® SE MIS Posterior Fixation System ILLICO® SE MIS Posterior Fixation System 2012 Alphatec Spine Annual Report At Alphatec Spine our purpose is to provide surgeon- inspired solutions for patients with spinal disorders. We take pride in knowing that our products are used by spine surgeons to help their patients overcome debilitating back and neck pain and live life to the fullest. The 2012 Transition 2012 was an exciting, transitional year at Alphatec Spine. In my first year as Alphatec’s new leader, I focused on six major initiatives to strengthen our ability to deliver higher sales growth and operating profitability, and address stakeholder concerns about how Alphatec will succeed in a challenging spine market. I began with the realignment of our senior leadership team to ensure our performance culture is customer-focused and based on accountability and results. The remaining initiatives were: • Streamlining our cycle of innovation – We aligned Alphatec Spine’s R&D function around a “critical few projects” strategy to shorten commercialization time and more effectively deliver a continuous flow of new products and technology upgrades that improve the standard of care in spine procedures. From this effort, we developed several new minimally invasive surgical (MIS) systems: the ILLICO® Multi-Level System, the BridgePoint® Spinous Process Fixation System, and the ILLICO FS Facet Fixation System, among other products. $250 $200 $150 • Committing to operational excellence – We appointed Mike Plunkett leader of our U.S. Operations group to drive a world-class customer experience. This past year, Mike led Alphatec’s deep dive into building and sustaining a lean culture and the beginning of a scaled lean implementation effort. The team delivered impressive process efficiencies that helped strengthen margins and cash flow, reduced global inventory and improved asset utilization. I am extremely proud of the entire Alphatec Spine team for stepping up and embracing our initiatives and culture of high- performance throughout 2012. 2012 Performance Our revenue performance in 2012 reflected the combination of continued sluggish fundamentals in the spine market and the internal transformation that we undertook. For 2012, Alphatec Spine reported sales of $196.3 million, or about one percent less than 2011, which was a record revenue year for the Company. Excluding the effect of foreign currency exchange rates, our total sales in 2012 actually grew by about one percent compared to 2011. $197.7 $196.3 $171.6 $120.6 • Strengthening the leadership of our U.S. Commercial Team – We appointed Tom McLeer, a spine industry veteran, leader of our U.S. Commercial Operations, with responsibility for our Sales and Marketing, R&D and Biologics organizations. Tom will ensure Alphatec’s product development efforts are exactly aligned with the needs of our surgeon customers, the market opportunity and our internal timelines, in addition to expanding our U.S. sales and distribution infrastructure. $100 $50 $0 $ in Millions 2009 2010 2011 2012 • Strengthening the leadership of our International business – We appointed Pat Ryan leader of our international business, excluding Japan, to expand our impressive global footprint. In addition, Pat will continue to execute his responsibilities as Chief Operating Officer. • Expanding our business development efforts to accelerate growth – The right acquisitions add critical mass and fill gaps in our product portfolio, supporting Alphatec’s organic growth. With this in mind, we entered into supply agreements for Alphatec NEXoss®, a synthetic bone matrix and the Pegasus™ anchored cervical interbody device. We also acquired certain assets of Phygen LLC, a manufacturer and distributor of spinal implant products. I was pleased to see Alphatec achieve above-market sales growth in the fourth quarter of 2012, which we believe is evidence that our transformation is gaining traction. Adjusted EBITDA (Earnings Before Income Tax, Depreciation and Amortization), a measure of our operating performance, increased 112 percent to $19.9 million from $9.4 million in 2011. Our long-term goal is to grow Adjusted EBITDA to 20 percent of revenues and our cash flow to 10 percent of revenues. www.alphatecspine.comLooking forward to 2013 We expect 2013 to be a very positive year for Alphatec Spine. Our focus is on executing our plan to deliver on our revenue and profitability commitments. To help drive revenue growth, we expect to launch approximately seven new products in 2013, including Alphatec Solus, a unique and patented interbody device for the lumbar spine and our new and improved Epicage Lumbar Interbody System. The acquisition of certain assets of Phygen in late 2012 represents another important growth opportunity in 2013. The Phygen transaction provides us with access to a network of over 100 leading U.S. spine surgeons who formed Phygen out of a desire to deliver cost-effective products and improved outcomes for spinal disorders through surgeon-inspired technology. We also look forward to continued success from our international business driven by deeper penetration in our established markets, the receipt of approvals to begin selling Alphatec products in certain Latin American and Asia Pacific markets, and from the rec pt of approval in late 2012 to sell Alphatec’s Novel® PEEK Spinal Spacers in Japan. ei On the operations side of our business, continuous refinement of lean-practice implementation to streamline processes should drive further cost reductions in manufacturing, supply chain and inventory systems, strengthening margins and reducing working capital. Alphatec Spine has strengthened its competitive position as a leader in the spine market. I remain more confident than ever that we can accelerate the Company’s penetration in U.S. and international markets in 2013. Sincerely, Les Cross Chairman and Chief Executive Officer At Alphatec Spine, we are working hard to be the best at providing physician-inspired solutions for patients with spinal disorders. We operate in a culture of teamwork that is customer-focused and accountable for results to grow our global market share. We are building a world-class organization through: • • Leadership in product innovation • Global commercial strategy • Operational excellence • Performance culture Leadership in Product Innovation Alphatec Spine is delivering product innovations that advance patient care. The Company relies on a multi-faceted approach to its cycle of innovation: • Strong in-house research and development • Rapid prototyping capabilities to speed time to market • • Input from highly experienced and respected spine surgeons Acquisition and licensing of new technologies to accelerate commercialization and growth The Company continues to expand its impressive portfolio of spine solutions, which addresses nearly every category of spinal disorders including cervical, thoracolumbar, tumor, trauma, degeneration and congenital deformities in open and MIS procedures, all while using biologics to improve outcomes. Alphatec Spine broadened its product portfolio with the following new products: • BridgePoint® Spinous Process Fixation System – A MIS device that allows surgeons to fixate a spinal level with one clamp instead of four pedicle screws and two rods. The implant has unique telescoping plates that are designed to allow surgeons to compress the spine to restore spinal alignment and facilitate a reliable interbody fusion. • ILLICO® FS Facet Fixation System – A MIS system that allows surgeons to fixate a spinal level with two facet screws instead of four pedicle screws and two rods. We believe that ILLICO FS is one of the fastest facet screws to implant and revise, saving clinician time and patient exposure. ILLICO® Multi-Level System – A MIS instrumentation system that is designed for longer constructs by leveraging the strength of Alphatec’s ILLICO MIS system as it’s platform. The versatility of ILLICO Multi-Level allows surgeons multiple options to address reduction, compression, distraction and rod insertion. • Pegasus™ Anchored, Anterior Cervical Interbody Device – A cervical interbody device that features a single-step deployment of an anchor, which locks the device into adjacent vertebrae without the need for impaction. The system also allows for simple intra-operative repositioning or post-operative removal, if necessary. • Alphatec NEXoss® – A next- generation synthetic, bioactive bone matrix. Alphatec NEXoss’ biomimetic nanostructured HA crystals are similar in composition, structure and size to human bone and resorb like naturally occurring HA to provide an ideal environment for natural bone growth. • Alphatec Solus® Anterior Lumbar Interbody Fusion Device – A patented interbody device that features two counter-rotating titanium blades that deploy into adjacent vertebrae on a zero-degree axis, locking the device in place. This provides four points of fixation delivered in an industry-leading single step. Alphatec Solus is designed to provide enhanced segmental stability with a simplified surgical technique, while providing substantial spacing to insert bone graft to help promote rapid fusion at the site. • Epicage® – A unique lumbar interbody device that provides consistent, midline anterior cage placement. Epicage is a crescent- shaped PEEK device that is flexible, allowing it to be delivered through a small straight tube. As Epicage exits the delivery tube and enters the disc space, it flexes back to its original shape. This product will provide another option for surgeons focused on obtaining good anterior column support. www.alphatecspine.com Global Commercial Strategy Operational Excellence In U.S. markets, Alphatec Spine sells its implant and instrumentation devices plus a broad line of biologics products through a flexible distribution strategy that includes direct sales to hospitals, group purchasing organizations and to stocking distributors. In late 2012, Alphatec Spine acquired cert n assets of Phygen LLC, a U.S. manufacturer and distributor of spinal implant products. Phygen’s ownership structure includes a network of over 100 leading U.S. spine surgeons. The conversion of these surgeons over to Alphatec’s products represents an important growth opportunity for the Company in 2013. ai Alphatec is a global organization. In 2012, the Company’s international revenue represented almost 34% of total revenues for the year. The Company distributes its products in over 50 countries and maintains direct sales forces in France, the United Kingdom and Italy. Elsewhere in Europe, Japan, the Middle East, Africa, Asia Pacific and Latin America, the Company utilizes its network of local distributors. The Company expects to increase its international business in 2013 by obtaining registration approvals for new products in Latin America, Asia Pacific and Japan. Alphatec Spine’s Medical Education team organizes surgical training programs at its bio-skills lab in Carlsbad, California and third-party facilities throughout the world. The training is conducted by experienced spine surgeons to advance learning and surgical skills for improved patient outcomes. Alphatec Spine has undertaken several initiatives to strengthen its operating performance. In manufacturing, the Company is implementing lean practices to eliminate non-value added operations to strengthen margins and cash flow. Value-stream mapping of its high-volume products and complex processes has been undertaken to reveal inefficiencies and target opportunities for waste reduction. Additionally, in-sourcing more of the manufacturing capacity that is currently outsourced reduces manufacturing costs and cycle times. Last, supply chain optimization initiatives should increase efficiencies related to procurement, vendor- managed inventory, and reductions in work in process and finished goods inventory. The introduction of kanbans has taken Alphatec’s inventory production and management from a supply driven, push system to a demand driven, pull system, and has reduced work in process, thereby freeing up capital. To reduce inventory and improve asset utilization, Alphatec is implementing global sales and operations planning. This optimizes global inventory levels, manages product life cycles, and improves working capital efficiency. To drive a world-class customer experience, Alphatec has implemented technology upgrades to streamline implant and instrument set administration. This improves customer service levels through enhanced global fill rates and reliable delivery schedules. Performance Culture Alphatec Spine’s performance culture is driven by the Company’s values: Integrity, Customers, Teamwork, Accountability, Results and Community. Among other things, culture defines expected behaviors from employees. Our values are prominently displayed throughout our headquarters and regularly reinforced. The Company hires and rewards employees who best fit Alphatec’s culture and values. Alphatec Spine believes that building and reinforcing a strong culture leads to enhanced Company performance and shareholder value, and stronger communities. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 Form 10-K (Mark One) È ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2012 or ‘ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number: 000-52024 ALPHATEC HOLDINGS, INC. (Exact Name of Registrant as Specified in its Charter) Delaware (State or Other Jurisdiction of Incorporation or Organization) 5818 El Camino Real, Carlsbad, California (Address of Principal Executive Offices) 20-2463898 (I.R.S. Employer Identification No.) 92008 (Zip Code) (760) 431-9286 (Registrant’s Telephone Number, Including Area Code) Securities registered pursuant to Section 12(b) of the Exchange Act: Title of Each Class Name of Each Exchange on Which Registered Common Stock, par value $0.0001 per share The NASDAQ Global Select Market Securities registered pursuant to Section 12(g) of the Exchange Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ‘ No È Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ‘ No È Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes È No ‘ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes È No ‘ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ‘ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act: Large accelerated filer ‘ Non-accelerated filer ‘ Indicate by a check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Accelerated filer È Smaller reporting company ‘ (Do not check if a smaller reporting company) Act). Yes ‘ No È The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant (without admitting that any person whose shares are not included in such calculation is an affiliate) based on the last reported sale price of the common stock on June 30, 2012 was approximately $105.4 million. The number of outstanding shares of the registrant’s common stock, par value $0.0001 per share, as of February 28, 2013 was 96,704,666. DOCUMENTS INCORPORATED BY REFERENCE The following documents (or parts thereof) are incorporated by reference into the following parts of this Form 10-K: Certain information required in Part III of this Annual Report on Form 10-K is incorporated from the Registrant’s Proxy Statement for the 2013 Annual Meeting of Stockholders. ALPHATEC HOLDINGS, INC. FORM 10-K—ANNUAL REPORT For the Fiscal Year Ended December 31, 2012 Table of Contents PART I Item 1. Item 1A. Item 1B. Item 2. Item 3. Item 4. PART II Item 5. Item 6. Item 7. Item 7A. Item 8. Item 9. Item 9A. Item 9B. PART III Item 10. Item 11. Item 12. Item 13. Item 14. PART IV Item 15. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unresolved Staff Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mine Safety Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Management’s Discussion and Analysis of Financial Condition and Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Quantitative and Qualitative Disclosures About Market Risk . . . . . . . . . . . . . . . . . . . . . . . . . Financial Statements and Supplementary Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changes in and Disagreements with Accountants on Accounting and Financial Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Controls and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directors, Executive Officers and Corporate Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . Executive Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain Relationships and Related Transactions, and Director Independence . . . . . . . . . . . . Principal Accounting Fees and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1 20 47 47 47 48 49 50 51 67 67 67 67 70 71 71 71 71 71 Exhibits, Financial Statement Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 In this Annual Report on Form 10-K, the terms “we,” “us,” “our,” “Alphatec Holdings” and “Alphatec” mean Alphatec Holdings, Inc. and our subsidiaries. “Alphatec Spine” refers to our wholly-owned operating subsidiary Alphatec Spine, Inc. “Scient’x” refers to our operating affiliate, Scient’x S.A.S., which is wholly-owned by several of our subsidiaries, and Scient’x S.A.S.’s subsidiaries [THIS PAGE INTENTIONALLY LEFT BLANK] Item 1. Business Overview PART I We are a medical technology company focused on the design, development, manufacturing and marketing of products for the surgical treatment of spine disorders. We have a comprehensive product portfolio and pipeline that addresses the cervical, thoracolumbar and intervertebral regions of the spine and covers a variety of major spinal disorders and surgical procedures. Our principal product offerings are focused on the global market for orthopedic spinal disorder solutions. Our “surgeons’ culture” enables us to respond to changing surgeon needs through collaboration with spinal surgeons to conceptualize, design and co-develop a broad range of products. We have a state-of-the-art, in-house manufacturing facility that provides us with a unique competitive advantage, and enables us to rapidly deliver solutions to meet surgeons’ and patients’ critical needs. We believe that our products and systems have enhanced features and benefits that make them attractive to surgeons and that our broad portfolio of products and systems provide a comprehensive solution for the safe and successful surgical treatment of spinal disorders. Strategy Our strategy is to be a leading global independent full-line spine company by providing products for the surgical treatment of spinal disorders. Spinal disorders arise from degenerative conditions, deformities, trauma- based disorders and tumors from the aging spine such as poor bone density, vertebral compression fractures, adult deformity or scoliosis, degenerative disc disease, and spinal stenosis. Our broad line of spinal products are used to treat many of these conditions and facilitate the spinal procedures necessary to correct them. Most of our products are designed to promote spinal fusion. Spinal fusion surgery is designed to stabilize the spine after the defect has been corrected until natural bone healing or fusion, occurs. We sell implant products that interlock the segments of the spine until natural spinal fusion takes place. Additionally, we offer a broad line of biologic products that help promote or accelerate spinal fusion. To further differentiate our solutions, we have incorporated minimally invasive surgical, orMIS, devices and techniques and biologics-based solutions into our portfolio to improve patient outcomes. We achieve this through internal product development, technology acquisition, product licensing and by responding to surgeon feedback and input. We believe that we have developed a strong product platform for consistent and measured growth and intend to leverage this platform by, among other things, providing unmatched service to, and taking scientific direction from, surgeons. In addition to bringing innovative products to market, we understand that surgeons are a critical component of the product development process. Accordingly, we view our relationship with the surgeon community as an integral component of our strategy. The key elements of our strategy are: • Provide a Full Range of Spine Disorder Products and Continually Expand our Product Offerings. We offer a full range of spinal devices and surgical instruments used to treat spine disorders. We believe that this comprehensive approach enables us to maximize our revenue for each procedure by fulfilling a greater portion of a surgeon’s spine product needs. We intend to continue to enhance our product offerings by developing technologies that we can market through our sales organization to our established surgeon base and surgeons not yet using our products. • Continuously Refine and Improve our Manufacturing and Supply Chain Operations. We are a vertically integrated company with a major manufacturing facility in our Carlsbad, California headquarters. We employ lean manufacturing and Six Sigma concepts to streamline our operations to drive efficiencies and lower cost. We believe these lean principles and continuous improvement efforts will enhance our operating efficiencies and improve our ability to compete in an increasingly price sensitive healthcare industry. 1 • Enhance U.S. Sales and Marketing Efforts. Our products are sold in the U.S. through a network of over 115 independent distributors, which we believe employ approximately 275 sales representatives. We also employ 30 direct sales representatives and sales management employees and executives. We continually seek to increase the number and quality of our independent distributors, direct sales representatives, sales management employees and sales executives. • Develop Innovative Products and Solutions in Conjunction with Surgeons. One of our core competencies is our ability to develop and commercialize creative spinal implants and instruments that incorporate concepts and feedback from surgeons. We collaborate with surgeons to help us to enhance our current products and develop innovative new technologies. We believe that our short-term and long-term product pipeline will offer us increased revenue opportunities by addressing a wider range of spine disorders, and improving patient outcomes. • Grow our International Business. As the result of our acquisition of Scient’x, which transaction closed in March 2010, we now have an established global platform from which we can grow internationally. In addition to our previously existing subsidiaries in Japan, Germany, Brazil and Hong Kong, as a result of the Scient’x acquisition we added a direct sales force in each of France, Italy and the U.K., and independent distributors in Europe, South America, the Middle East, Africa, Asia and Latin America. We plan to continue expanding our distribution network and product offerings throughout the world. • Focus on Underserved and Rapidly Growing Segments of the Market. We are focused on creating solutions to address the rapidly growing elderly population and the unique issues facing elderly patients. We will focus on less invasive implants and techniques, solutions for adult onset deformities, vertebral compression fractures and stenosis and issues related to patients with poor bone quality, each of which represents a large underserved market segment. We believe that our strategic focus on underserved and rapidly growing market segments may increase our revenue and market penetration. Spine Anatomy The human spine is the core of the human skeleton and provides important structural support while remaining flexible to allow movement. The human spine is a column of 33 bones that protects the spinal cord and enables people to stand upright. Each bony segment of the spine is referred to as a vertebra (two or more are called vertebrae). The spine has five regions containing groups of similar bones, listed from top to bottom: seven cervical vertebrae in the neck, 12 thoracic vertebrae in the mid-back (each attached to a rib), five lumbar vertebrae in the lower back, five sacral vertebrae fused together to form one bone in the hip region, and four coccygeal bones fused together that form the tailbone. At the front of each vertebra is a block of bone called the vertebral body. The vertebral body consists of an inner core of soft cancellous bone, surrounded by a thin outer layer of hard cortical bone. Vertebrae are stacked on top of each other and enable people to sit and stand upright. Vertebrae in the cervical, thoracic and lumbar regions are separated from each other and cushioned by a rubbery soft tissue called the intervertebral disc. Segments of bone that extend outward at the back of each cervical, thoracic and lumbar vertebral body surround and protect the spinal cord and its nerve roots. These bones, known as the posterior spinous processes, can be felt along the middle of a person’s back. Disorders Affecting the Spine There are four major categories of spine disorders: degenerative conditions, deformities, trauma-based disorders and tumors. While our product offering addresses all four categories of spine disorders, the majority of our business is concentrated on products used in the treatment of degenerative and deformity conditions. These conditions can result in instability and pressure on the nerve roots as they exit the spinal column, causing back pain and potentially pain in the arms or legs. 2 Some of the most common degenerative conditions and deformities affecting the spine are as follows: • Degenerative disc disease is a common medical condition affecting the cervical, thoracic and lumbar regions of the spine and refers to the degeneration of the disc from aging and repetitive stresses, resulting in a loss of flexibility, elasticity and shock-absorbing properties. As degenerative disc disease progresses, the space between the vertebrae narrows, or the disc can bulge or rupture, which can pinch the nerves exiting the spine and result in back pain, leg pain, numbness and loss of motor function. This back pain can be overwhelming for patients as the resulting pain can have significant physical, psychological and financial implications. • A Vertebral compression fracture, or VCF, occurs when a vertebra in the spinal column fractures or collapses. Vertebral compression fractures have multiple acute and chronic consequences, including back pain, loss of back function and diminished quality of life. Chronic consequences of a VCF can also result in pulmonary and gastric dysfunction, as well as depression. Deformity resulting from a VCF worsens these problems and can increase the risk of another fracture, which can further exacerbate complications from the initial VCF, including an increase in the loss of mobility and ultimately increased mortality. • • Spinal stenosis is a narrowing of the spinal canal, which places pressure on the spinal cord. If the stenosis is located on the lower part of the spinal cord, it is called lumbar spinal stenosis. Stenosis in the upper part of the spinal cord is called cervical spinal stenosis. While spinal stenosis can be found in any part of the spine, the lumbar and cervical areas are the most commonly affected. Some patients are born with this narrowing, but most often spinal stenosis is seen in patients over the age of 50. In these patients, stenosis is the gradual result of aging and wear and tear on the spine during everyday activities. Spondylolisthesis occurs when one vertebra slips forward in relation to an adjacent vertebra, usually in the lumbar spine. The symptoms that accompany spondylolisthesis include pain in the lower back and legs, and muscle spasms and weakness. Spondylolisthesis can be congenital or develop later in life. The disorder may result from physical stresses to the spine, intense physical activity, and general wear and tear. The Alphatec Solution Our principal product offering includes a wide variety of spinal implant products and systems comprised of components such as spine screws and rods, spinal spacers, plates, and various biologics offerings. In addition, outside of the U.S. we sell solutions for treating vertebral compression fractures and spinal stenosis, both of which are conditions that disproportionately effect elderly patients. Certain of our biologics offerings are used as an alternative to synthetic products while others complement our synthetic products by promoting fusion. 3 The chart below illustrates the principal products in our broad portfolio of spine systems currently available for sale by market segment. Certain systems and products are described in greater detail below the chart. Items marked with an asterisk are not available for sale in the U.S. Current Products: Market Segment Cervical and Cervico-thoracic Thoracolumbar Fixation Spinal Spacers Minimally Invasive Surgery (MIS) Aging Spine Biologics Principal Products Trestle Anterior Cervical Plate Trestle Luxe Anterior Cervical Plate Solanas Posterior Cervico/Thoracic Fixation System Avalon Occipital Plate DiscoCerv Artificial Disc* PCB Evolution* Zodiac Degenerative Fixation System Zodiac Deformity Fixation System with Smart Set ILLICO FS Fixation System TTL IN Fixation System* Xenon Fixation System BridgePoint Spinous Process Fixation System Isobar Evolution Dynamic Rod* Aspida Anterior Lumbar Interbody Plate System TTL-D Fixation System* Hemi Fixation System Novel Spinal Spacers Alphatec Solus Locking ALIF Spacer* Samarys*/Samarys RF* Pegasus Anchored Cervical Interbody TeCorp* Illico MIS System GLIF/ARC Portal Access System OsseoScrew MIS System* Epicage TLIF System* OsseoFix Spinal Fracture Reduction System* OsseoFix+ Vertebroplasty System OsseoScrew Spinal Fixation System* HeliFix Interspinous Spacer System* AlphaGraft Structural Allograft Spacers AlphaGraft Demineralized Bone Matrix PureGen Osteoprogenitor Cell Allograft AlphaGraft ProFuse Demineralized Bone Scaffolds AmnioShield Amniotic Membrane Alphatec NEXoss Synthetic Bone Graft Cervical and Cervico-Thoracic Products Trestle Luxe Anterior Cervical Plate System Our Trestle Luxe Anterior Cervical Plate System has a large window that enables the surgeon to have improved graft site and end plate visualization; which is designed to allow for better placement of the plate. The Trestle Luxe Anterior Cervical Plate System also has a low-profile design, which we believe is among the lowest in the spine market. Low-profile cervical plates are intended to reduce the irritation of the tissue adjacent to the 4 plate following surgery. Other key features of the Trestle Luxe Anterior Cervical Plate system include a self- retaining screw-locking mechanism that is designed to ensure quick and easy locking of the plate and a flush profile after the screws are inserted. Solanas Posterior Cervico/Thoracic Fixation System and Avalon Occipital Plate Our Solanas Posterior Cervico/Thoracic Fixation System consists of rods, polyaxial screws, hooks, and connectors that provide a solution for posterior cervico/thoracic fusion procedures. We also designed the Solanas Posterior Cervico/Thoracic System to be used in combination with our existing Zodiac Degenerative Spinal Fixation System and our Avalon Occipital Plate, thereby providing surgeons with a solution for occipito-cervico- thoracic fixation. The Avalon Occipital Plate has a unique buttress design for optimal bone graft placement and superior fusion, including three points of plate rotation and translation, which is designed to ease the placement of the plate. DiscoCerv Artificial Disc Our DiscoCerv product is a cervical disc prosthesis. The design consists of convex upper and lower plates that are designed to fit into the anatomical curvature of the disc space. The disc provides angulations of nine degrees in the sagittal and coronal planes to preserve the physiological amplitude of a normal disc. Thoracolumbar Fixation Products Zodiac Degenerative Spinal Fixation System Our Zodiac Degenerative Spinal Fixation System is a comprehensive spinal system that offers a wide variety of polyaxial pedicle screws, connectors and advanced instruments for the stabilization of the thoracolumbar spine. The Zodiac Degenerative Spinal Fixation System offers surgeons a low-profile; friction-fit polyaxial screw with up to 76 degrees of variability and a secure buttress thread closure mechanism that eases final construct assembly. Our Zodiac Degenerative Spinal Fixation System offers pre-cut and pre-contoured rods, which allow surgeons to customize each construct depending on the patient’s needs. The Zodiac Degenerative Spinal Fixation System is designed to be used in combination with Novel Spinal Spacers and AlphaGraft Structural Allograft Spacers. Zodiac Deformity Spinal Fixation System Our Zodiac Deformity Spinal Fixation System is a comprehensive system of instrumentation and implants designed to enable the surgeon to address patient-specific spinal deformity correction procedures. The Zodiac Deformity Spinal Fixation System contains polyaxial screws that are similar in design to those in the Zodiac Degenerative Spinal Fixation System. The Zodiac Deformity Spinal Fixation System offers components that are frequently used in deformity correction procedures, such as fixed and uniplanar screws, high-strength deformity rods, including cobalt chromium, hooks, rod connectors, pelvic-fixation implants and deformity specific instrumentation. The Zodiac Degenerative Fixation System is designed to be used in combination with Novel Spinal Spacers and AlphaGraft Structural Allograft Spacers Aspida Anterior Lumbar Interbody Fusion, or ALIF, Plate System Our Aspida ALIF Plate System is designed to be used in conjunction with a spacer, and is intended to offer comparable stabilization to pedicle screw and rod systems. Our Aspida ALIF Plate System is designed to provide surgeons with the option of performing a single anterior procedure without having the need for a complementary posterior procedure. The Aspida ALIF Plate System is designed to be anatomically shaped and have a low profile, which is intended to minimize the risk of irritation or damage to the adjacent tissue. 5 Spinal Spacers Novel PEEK and Titanium Spinal Spacers Our family of Novel spinal spacers addresses the surgical need to accommodate varying patient anatomies, surgical approaches and composite material options. We offer multiple unique implant designs, each of which is available in numerous shapes and heights. Certain of our Novel spinal spacers are made of titanium and others are made of a strong, heat resistant, radiolucent, biocompatible plastic called polyetheretherketone, or PEEK. Our Novel PEEK spinal spacers have been approved for use in both the lumbar and cervical regions of the spine. A Novel PEEK spinal spacer is not visible during a magnetic resonance imaging, which allows the surgeon to better assess the progress of the healing process following surgery. Novel spacers and their accompanying instrumentation are designed to be inserted from several planes of the body to accommodate surgeons’ needs. Novel spinal spacers feature sizable central openings that help accommodate the placement of bone grafting material inside and around the spacer, which we believe promotes fusion. A ridge pattern on the top and bottom of our Novel spacers helps prevent movement after placement and enhances the stability of the overall construct. Alphatec Solus Locking ALIF Spinal Spacer Our Alphatec Solus locking ALIF spinal spacer, or Alphatec Solus, is a zero-profile PEEK and titanium device offering four points of fixation for improved stability. Alphatec Solus features a one-step insertion and deployment feature and is used in ALIF procedures. We believe that Alphatec Solus’ locking mechanism is a substantial upgrade over similar products currently on the market. Samarys/Samarys RF Our Samarys PEEK cervical cage restores disc height as well as cervical lordosis. The cage is anatomically designed for immediate stability and optimum fusion with a large graft window. Neither Samarys nor Samarys/ RF is approved for sale in the U.S. Both Samarys and Samarys/RF are available for sale in the European Union. Minimally Invasive Surgery, or MIS Products Illico Minimally Invasive Surgery System The Illico Minimally Invasive Surgery System is a cannulated pedicle screw and rod system that is designed to be inserted via a minimally invasive surgical procedure. Access to the spine is gained through a small incision. The surgeon is then able to see the surgical site by using a small canal through which implants are inserted into the patient with a minimum amount of disruption to the surrounding tissue. We believe that the Illico Minimally Invasive System limits trauma to the tissue surrounding the location of the surgery, which is designed to enable patients to recover faster. Guided Lumbar Interbody Fusion, or GLIF and ARC Portal Access System Our GLIF technique, used in conjunction with our ARC Portal Access System, is a unique access system that is designed to enable surgeons to perform a minimally invasive procedure from multiple surgical planes without the need for a second incision or to reposition the patient. The GLIF technique is intended to reduce the length of the procedure, trauma to the patient and reduce the post-surgery recovery period. Aging Spine OsseoFix Spinal Fracture Reduction System Our OsseoFix Spinal Fracture Reduction System provides a solution for VCF indications. The OsseoFix implant is an expandable titanium cage that is designed to be implanted in a minimally invasive manner into a vertebral body to treat a VCF. The OsseoFix system is designed to provide the surgeon with control over the 6 placement and expansion of the device as the fracture is treated. In addition, the OsseoFix System is designed to use less PMMA bone cement than current standards of care and may overcome one of the primary complications of kyphoplasty and vertebroplasty, which is the potential risk of extravasation of PMMA bone cement into the spinal canal or venous system. The OsseoFix System is not available for sale in the U.S. In early 2012, the Company filed an Investigational Device Exemption with the U.S. Food and Drug Administration, or FDA, to begin a clinical study of the OsseoFix System. The OsseoFix System is available for sale in the European Union. OsseoScrew Spinal Fixation System The OsseoScrew Spinal Fixation System is an innovative pedicle screw system that is designed to provide a solution for patients who have poor bone density. The OsseoScrew System is designed to be implanted into the pedicle and then expanded after implementation to achieve increased screw fixation in bone with poor density. We believe that the OsseoScrew Spinal Fixation System will help us reach our goal of providing solutions targeted at serving the needs of the spine surgeon and the aging spinal segment of the marketplace. The OsseoScrew Spinal Fixation System is available for sale in the European Union, but is not available for sale in the U.S. Helifix Interspinous Spacer System Our Helifix Interspinous Spacer System is designed to be inserted in a minimally invasive manner into a patient’s spinous process to treat lumbar spinal stenosis. The Helifix Interspinous Spacer System is a non-fusion interspinous device designed to provide relief from lumbar spinal stenosis by widening the spinal canal and decompressing the level of the compressed nerve, providing flexion in the posterior elements. The Helifix Interspinous Spacer System is available for sale in the European Union, is not available for sale in the U.S. Biologics AlphaGraft Structural Allograft Spacers We offer a broad portfolio of allograft spacers available in a wide range of shapes and sizes, each with corresponding instrumentation, which are intended for use in the cervical, thoracic, and lumbar regions of the spine. In addition, many of our allograft spacers are packaged in our VIP packaging system, or VIP System. The VIP System is a packaging and fluid delivery system that allows for fast and efficient infusion of the surgeon’s choice of hydration fluid. The VIP System provides rapid and uniform hydration, which reduces the brittleness of the graft and the length of the surgical procedure. PureGen Osteoprogenitor Cell Allograft Our PureGen Osteoprogenitor Cell Allograft, or PureGen, is a unique adult stem cell that supplements the body’s own cells and helps to stabilize the repair site, which allows the healing process to advance naturally and efficiently. There is a significant clinical need to improve fusion rates, especially in patients with impaired wound healing due to age, obesity, diabetes, smoking, anti-inflammatory medication, and other factors. PureGen is a safe and natural alternative to autograft, and other expensive fusion options. AlphaGraft ProFuse Demineralized Bone Scaffold Our AlphaGraft ProFuse Demineralized Bone Scaffold consists of a sponge-like demineralized bone matrix that has been pre-cut into sizes to fit within a spinal spacer. The AlphaGraft ProFuse Demineralized Bone Scaffold provides a natural scaffold derived entirely of bone that can be placed into a void within a spinal spacer or on top of a spinal spacer. The sponge-like qualities of the scaffold allow a surgeon to compress the scaffold and place it into a small space. Following placement, the scaffold expands for maximum contact between the spinal spacer and the endplate of the vertebral body and is designed to promote fusion. The AlphaGraft ProFuse Demineralized Bone Scaffold is pre-packaged in our proprietary VIP vacuum infusion packaging system. 7 Amnioshield Amniotic Tissue Barrier Our Amnioshield Amniotic Tissue Barrier is an allograft for spinal surgical barrier applications. The composite amniotic membrane reduces inflammation and enhances healing at the surgical site, reduces scar tissue formation and provides an excellent dissection plane. Alphagraft Demineralized Bone Matrix Our Alphagraft Demineralized Bone Matrix consists of demineralized human tissue that is mixed with a bioabsorbable carrier and used in surgery for bone grafting. Alphatec NEXoss Synthetic Bone Graft Our Alphatec NEXoss nanostructure bioactive matrix is the next-generation synthetic that is an innovative bioactive scaffold for bone grafting. The Alphatec NEXoss biomimetic nanostructured hydroxyapatite crystals mimic bone composition, structure and size to resorb similar to naturally occurring hydroxyapatite. Sales and Marketing Our U.S. sales force consists of over 115 independent distributors, which we believe employ approximately 275 agents dedicated to selling our products in the U.S., and approximately 30 direct sales representatives and sales management employees and executives. In general, in the U.S., although surgeons in the U.S. make the ultimate decision to use our products, we bill hospitals for the products that are used and pay commissions to our independent distributors and direct sales agents based on payments received from hospitals. In general, outside of the U.S. we sell products directly to distributors, and the distributors resell the products to hospitals. We compensate our sales management employees and sales executives through salaries and incentive bonuses based on performance measures. We select our sales force based on their expertise in selling spinal devices, reputation within the surgeon community, geographical coverage and established sales network. Increasingly, we contractually require our distributors to sell exclusively our products both within and outside of their allocated sales territory. We offer sales and product training to each of our independent distributors and direct sales representatives. We market our products at various industry conferences, organized surgical training courses, and in industry trade journals and periodicals. We plan on expanding our global sales coverage through the use of additional distributors and direct sales representatives in order to support continued adoption of our products by new surgeons and increased use of our products by surgeons who currently use our products. In Europe and the Middle East we have approximately 40 independent distributors who have a sales force consisting of approximately 150 sales representatives. We have 17 direct sales representatives and approximately 90 independent in Japan and 12 independent distributors in the rest of Asia. In Latin America and South America we conduct our sales and marketing activities through our subsidiary, Cibramed Products Medicos Ltda., which we plan to rename Alphatec Spine do Brazil. We currently have 18 independent distributors and two direct sales representatives selling our products in Latin America. In the markets in which we have a direct sales force, we bill the hospitals for the products that are used. In markets that use independent distributors, we sell our products to the distributor, and the distributor resells the products to the hospital. We plan to continue expanding our direct sales and distribution network and product offerings throughout the world. Similar to our sales and marketing activities in the U.S., outside of the U.S. we market our products at various international industry conferences, organized surgical training courses, and in industry trade journals and periodicals. In addition, we host several international educational conferences, including the International Spine Research and Innovation and Argos and Sisyphean Spinal Society meetings, in the U.S., Europe, Asia and Latin America and South America. 8 Surgeon Training and Education We devote significant resources to train and educate surgeons in the proper use of our implants, instrumentation, and surgical access technologies. We believe that one of the most effective ways to introduce and build market demand for our products is by training and educating spine surgeons, independent distributors, and direct sales representatives in the benefits and use of our products. We believe that surgeons, independent distributors, and direct sales representatives will become exposed to the merits and distinguishing features of our products through our training and education programs, and in doing so, will increase the use and promotion of our products. Research and Development Our research and development department has extensive experience in developing products to treat spine pathologies. Our research and development department works closely with our Scientific Advisory Board and surgeon collaborators to design products that are intended to improve patient care, simplify surgical techniques and reduce overall costs. We are focusing our research and development efforts in two major strategic areas. First, we focus on continually enhancing and upgrading our current product portfolio and supplementing it with new products where appropriate. Second, we devote significant resources to developing complementary products and unique technologies to create new solutions to address spinal pathologies that affect the aging spine. Our goal is to become the market leader in providing solutions for the aging spine by developing products that have superior efficacy for patients who suffer from conditions that disproportionally affect the aging spine, such as poor bone density, VCFs, adult deformity or scoliosis, degenerative disc disease and spinal stenosis. In order to further promote this strategy, we are focused on converting these research and development programs into commercially viable products that incorporate minimally invasive access techniques and biologics solutions to improve patient outcomes across all of our product lines. Manufacture and Supply We conduct a large portion of our manufacturing operations at our facilities in Carlsbad, California, although we also manufacture products at our facility in Beaurains, France. We manufacture a significant amount of our non-biologic implants in-house. Certain of our implants and a significant amount of our instrumentation are purchased from third parties. We believe that the in-house production of our implants maximizes efficiency, reduces product development time, simplifies production scheduling, reduces inventory backlogs and is more responsive to the changing needs of surgeons. Our facilities include seperate areas dedicated to the machining, tooling, quality control, cleaning and labeling of our products. Additionally, we have an advanced manufacturing group that includes design engineering and manufacturing personnel. The advanced manufacturing group is dedicated to providing rapid prototyping and innovative custom instrumentation for our research and development programs and our surgeon customers. We devote significant time and attention to ensure that all of our products are safe, effective, adhere to all applicable regulations and are of the highest quality. An established and comprehensive quality system drives our focus from the initial translation of surgeon needs into design specifications through an exhaustive series of quality control checks that are performed through the purchasing, production, and packaging of our products. We record the complete production history for every product, ensuring full traceability from the raw material stage through the delivery of the product into the marketplace. Following the receipt of products or product components that we receive from third parties, we conduct inspection, quality control, packaging and labeling, as needed, at our manufacturing facilities. The raw materials used in the manufacture of our products are principally titanium, titanium alloys, stainless steel, cobalt chrome, ceramic, allograft and PEEK. Invibio, Inc., or Invibio, is one of a limited number of companies that is currently approved in the U.S. to distribute PEEK for use in implantable devices. 9 With the exception of PEEK and tissue-based products, none of our raw material requirements is limited to any significant extent by critical supply. We are subject to the risk that Invibio will fail to supply PEEK in adequate amounts for our needs on a timely basis. In addition, because our biologics products are processed from human tissue, maintaining a steady supply can sometimes be challenging. See “Item 1A—Risk Factors.” Our manufacturing operations and those of the third-party manufacturers we use are subject to extensive regulation by the FDA or similar entities outside of the U.S. under its quality systems regulations, or QSRs, and other applicable device-related good manufacturing practices, or GMPs, or tissue-related tissue practices, or GTPs, and applicable local regulations. With respect to biologics products, we are FDA-registered and licensed in the states of California, New York and Florida, the only states that currently require licenses. Our facility and the facilities of the third-party manufacturers we use are subject to periodic unannounced inspections by regulatory authorities, and may undergo compliance inspections conducted by the FDA and corresponding state and foreign agencies. Competition Although we believe that our current broad product portfolio and development pipeline is differentiated and has numerous competitive advantages, the spinal implant industry is highly competitive, subject to rapid technological change, and significantly affected by new product introductions. We believe that the principal competitive factors in our market include: • • • • • • improved outcomes for spine pathology procedures; ease of use and reliability; effective sales, marketing and distribution; technical leadership and superiority; surgeon services, such as training and education; responsiveness and ability to develop unique products that addresses the needs of surgeons; • manufacturing capabilities; • • • acceptance by spine surgeons; product price and qualification for reimbursement; and speed to market. Our currently marketed products are, and any future products we commercialize will be, subject to intense competition and we are aware of several companies that compete in our current and future product areas. We believe that our most significant competitors are Medtronic Sofamor Danek, DePuy Spine, Stryker, Biomet, NuVasive, Zimmer, Orthofix, Globus, Integra and others, many of which have substantially greater financial resources than we do. In addition, these companies may have more established distribution networks, entrenched relationships with physicians, and greater experience in developing, launching, marketing, distributing and selling spinal implant products. Our competitors include providers of non-operative therapies for spine disorder conditions. While these non-operative treatments are considered to be an alternative to surgery, surgery is used in the event that non- operative treatments are unsuccessful. We do not believe that, to date, these non-operative treatments have caused a material reduction in the demand for surgical treatment of spinal disorders. Intellectual Property We rely on a combination of patent, trademark, copyright, trade secret and other intellectual property laws, nondisclosure agreements, proprietary information ownership agreements and other measures to protect our 10 intellectual property rights. We believe that in order to have a competitive advantage, we must develop, maintain and enforce the proprietary aspects of our technologies. We require our employees, consultants, co-developers, distributors and advisors to execute agreements governing the ownership of proprietary information and use and disclosure of confidential information in connection with their relationship with us. In general, these agreements require these people and entities to agree to disclose and assign to us all inventions that were conceived on our behalf or which relate to our property or business and to keep our confidential information confidential and only use such confidential information in connection with our business. Despite any measures taken to protect our intellectual property, unauthorized parties may attempt to copy aspects of our products or to obtain and use information that we regard as proprietary. In addition, our competitors may independently develop similar technologies. Further, as described in “Item 3—Legal Proceedings,” others may attempt to obtain royalties based on the net sales of our products, which may impact our revenues. We may lose market share to our competitors if we fail to protect our intellectual property rights. Patents As of December 31, 2012, we and our affiliates owned 73 issued U.S. patents, 71 pending U.S. patent applications and 347 issued or pending foreign patents. We own multiple patents relating to unique aspects and improvements for several of our products. We do not believe that the expiration of any single patent is likely to significantly affect our intellectual property position. The medical device industry is characterized by the existence of a large number of patents and frequent litigation based on allegations of patent infringement. Patent litigation can involve complex factual and legal questions and its outcome is uncertain. Any claim relating to infringement of patents that is successfully asserted against us may require us to pay substantial damages (including treble damages if our infringement is found to be willful) or may require us to remove our infringing product from the market. Even if we were to prevail, any litigation could be costly and time-consuming and would divert the attention of our management and key personnel from our business operations. Our success will also depend in part on our not infringing patents issued to others, including our competitors and potential competitors. If our products are found to infringe the patents of others, our development, manufacture and sale of such potential products could be severely restricted or prohibited. In addition, our competitors may independently develop similar technologies. We may lose market share to our competitors if we fail to protect our intellectual property rights. As the number of entrants into our market increases, the possibility of a patent infringement claim against us grows. While we make an effort to ensure that our products do not infringe other parties’ patents and proprietary rights, our products and methods may be covered by U.S. or foreign patents held by our competitors. In addition, our competitors may assert that future products we may manufacture or market infringes their patents. If we are accused of patent infringement, we may be required to obtain licenses to patents or proprietary rights of others in order to continue to commercialize our products. However, we may not be able to obtain any licenses required under any patents or proprietary rights of third parties on acceptable terms, or at all. Even if we were able to obtain rights to the third party’s intellectual property, these rights may be non-exclusive, thereby giving our competitors access to the same intellectual property. Ultimately, we may be unable to commercialize some of our potential products or may have to cease some of our business operations as a result of patent infringement claims, which could severely harm our business financial condition and results of operations. Trademarks As of December 31, 2012, we and our affiliates owned these registered US marks: Adonys, Aging Spine Center, Aladyn, Alphagraft, Alphagraft Duofuse, Alphagraft Nanoblast, Alphagraft Profuse, Alphatec, Alphatec logo, Alphatec MHS, Alphatec Solus, Alphatec Solus with logo, Alphatec Spine, Alphatec Spine with logo, Amnioshield, Antelys, ARC, Aspida, Aurys, Avalon, Biofill, Bone’x, Chorus, Corelys, Corlok, Cortek, Cortek 11 logo, Del Mar, Deltaloc, Discocerv, Dovetome, Dynamic-TTL Rod, Dynoss, Easys, Electra, Elfix, Ellys, Epicage, GLIF, Helifix, Illico, Isobar, Isobar Duo, Isobar Hemispherical Screw, Isobar LP, Isobar TTC, Isobar TTL, Isobar U-Screw, Laguna, Majorys, MX System, Novel, Openview, Osseofix, Osseofix with logo, Osseofix+ with logo, Osseoscrew, Osseoscrew with logo, Pach, Pantheon, Preview, Puregen, Samarys, Scient’x, Scient’x logo, Solanas, Solo, Solutions for the Aging Spine, Stella, Tamarack, Trestle, Trestle Luxe, Tribeca, Xenon, Zodiac. License and Supply Agreements As part of our product development strategy, when commercially feasible we enter into agreements with third parties that enable us to develop, commercialize and/or distribute products for the treatment of spinal disorders that are based upon technology owned by such third parties. License Agreements In June 2012, we entered into a Private Label Supply Agreement with a third party supplier whereby we acquired exclusive U.S. distribution rights to market a synthetic biologic product under our brand name. Under the terms of the agreement we are obligated to make payments of $1.0 million in connection with the execution of the agreement. Additionally, we are required to meet certain minimum purchase requirements of up to $3.0 million per year. The $1.0 million initial-payment will be capitalized as an intangible asset and will be amortized over the four-year term of the agreement. In October 2012, we entered into a Supply Agreement with a third party supplier whereby we acquired exclusive worldwide distribution rights to sell an anchored, fully retractable cervical interbody spacer. Under the terms of the agreement we are obligated to make payments of $1.0 million in connection with the execution of the agreement. Additionally, we are required to meet certain minimum annual purchase requirements ranging from $4.0 million to $5.9 million per year to maintain our exclusive distribution rights. The $1.0 million in initial payments will be capitalized as an intangible asset and will be amortized over the seven-year term of the agreement. Our additional key agreements are described in Note 5 to our consolidated financial statements under Part II, Item 8—Financial Statements and Supplementary Data. Phygen Acquisition On November 6, 2012, we closed a transaction related to the purchase of certain assets used in connection with the design, development, marketing and distribution of certain spinal implant products, together with the intellectual property rights, contractual rights, inventories, and certain liabilities related thereto, from Phygen, LLC, or Phygen, pursuant to an Asset Purchase Agreement, dated as of October 19, 2012. This acquisition should provide us with access to a network of over 100 leading U.S. spine surgeons who formed Phygen out of a desire to seek improved treatment outcomes for spinal disorders through surgeon-inspired technology that generates unique, high-quality and cost effective products. The acquisition should also enable us to collaboratively tap into the collective medical knowledge of members of the Phygen surgeon group, enhancing our product innovation and product refinement capabilities to help advance the standard of patient care in an evolving spine industry. With complementary cultures, product portfolios and distribution networks, Phygen should represent a great opportunity for both us and Phygen to layer their respective products into each other’s distribution network. Government Regulation Our products are subject to extensive regulation by the FDA and other U.S. federal and state regulatory bodies and comparable authorities in other countries. To ensure that medical products distributed domestically and internationally are safe and effective for their intended use, FDA and comparable authorities in other countries have imposed regulations that govern, among other things, the following activities that we or our partners perform and will continue to perform: • product design and development; 12 • • • • • • • • product testing; product manufacturing; product labeling; product storage; premarket clearance or approval; advertising and promotion; product marketing, sales and distribution; and post-market surveillance, including reporting deaths or serious injuries related to products and certain product malfunctions. FDA’s Premarket Clearance and Approval Requirements Unless an exemption applies, each medical device we wish to commercially distribute in the U.S. will require either prior 510(k) clearance or approval of a premarket approval application, or PMA. The information that must be submitted to the FDA in order to obtain clearance or approval to market a new medical device varies depending on how the medical device is classified by the FDA. Medical devices are classified into one of three classes on the basis of the intended use of the device, the indications for use and on controls deemed by the FDA to be necessary to reasonably ensure their safety and effectiveness. Class I devices, which are those that have the lowest level or risk associated with them, are subject to general controls, Class II devices are subject to general controls and special controls, including performance standards, and Class III devices, which have the highest level of risk associated with them, are subject to general controls and premarket approval. Most Class I devices and many Class II devices are exempt from the 510(k) requirement, although the manufacturers will still be subject to registration, listing, labeling and GMP requirements. Class III devices are subject to those requirements, too, but also require and PMA approval. A new medical device for which there is no substantially equivalent device is automatically designated a Class III device. Depending on the nature of the new device, the manufacturer may ask the FDA to make a risk-based determination of the new device and reclassify it in Class I or Class II. This process is referred to as the de novo process. If the FDA agrees, the new device will be reassigned to the appropriate other class. If it does not agree, the manufacturer will have to submit a PMA. Our current commercial products are Class II devices marketed under FDA 510(k) premarket clearance. Both premarket clearance and premarket approval applications are subject to the payment of user fees, paid at the time of submission for FDA review. 510(k) Clearance Pathway To obtain 510(k) clearance, we must submit a premarket notification demonstrating that the proposed device is substantially equivalent to a device legally marketed in the U.S. for which a PMA was not required. The FDA’s goal is to review and act on each 510(k) within 90 days of submission, but it may take longer based on requests for additional information by the FDA. Most 510(k)s do not require supporting data from clinical trials, but the FDA may request such data. After a device receives 510(k) clearance, any modification that could significantly affect its safety or effectiveness, or that would constitute a new or major change in its intended use, will require a new 510(k) clearance or, depending on the modification, require premarket approval. The FDA requires each manufacturer to determine whether the proposed change requires submission of a 510(k), or a premarket approval, but the FDA can review any such decision and can disagree with a manufacturer’s determination. If the FDA disagrees with a manufacturer’s determination, the FDA can require the manufacturer to cease marketing and/or recall the modified device until 510(k) clearance or premarket approval is obtained. If the FDA requires us to seek 510(k) clearance or premarket approval for any modifications to a previously cleared product, we may be required to 13 cease marketing or recall the modified device until we obtain this clearance or approval. Also, in these circumstances, we may be subject to significant regulatory fines or penalties. We have made and plan to continue to make additional product enhancements to our products, and we will consider on a case-by-case basis whether a new 510(k) or PMA is necessary. Premarket Approval Pathway A premarket approval application must be submitted if the device cannot be cleared through the 510(k) process. The premarket approval application process is generally more complex, costly and time consuming than the 510(k) process. A premarket approval application must be supported by extensive data including, but not limited to, technical, preclinical, clinical trials, manufacturing and labeling to demonstrate to the FDA’s satisfaction the safety and effectiveness of the device for its intended use. After a premarket approval application is sufficiently complete, the FDA will accept the application and begin an in-depth review of the submitted information. By statute, the FDA has 180 days to review the “accepted application,” although, generally, review of the application can take between one and three years. During this review period, the FDA may request additional information or clarification of information already provided. Also during the review period, an advisory panel of experts from outside the FDA may be convened to review and evaluate the application and provide recommendations to the FDA as to the approvability of the device. In addition, the FDA will conduct a preapproval inspection of the manufacturing facility to ensure compliance with quality system regulations. New premarket approval applications or premarket approval application supplements are required prior to marketing for product modifications that affect the safety and efficacy of the device. Premarket approval supplements often require submission of the same type of information as a premarket approval application, except that the supplement is limited to information needed to support any changes from the device covered by the original premarket approval application, and may not require clinical data or the convening of an advisory panel. We were not required to submit a PMA for any of our currently marketed products, but devices in development may require a PMA. Clinical Trials Clinical trials are usually required to support a PMA and are sometimes required for a 510(k). In the U.S., if the device is determined to present a “significant risk,” the manufacturer may not begin a clinical trial until it submits an investigational device exemption, or IDE, application and obtains approval of the IDE from the FDA. The IDE application must be supported by appropriate data, such as animal and laboratory testing results, showing that it is safe to test the device in humans and that the testing protocol is scientifically sound. These clinical trials are also subject to the review, approval and oversight of an institutional review board, or IRB, at each clinical trial site. The clinical trials must be conducted in accordance with FDA’s IDE regulations and international regulations concerning human subject protection. A clinical trial may be suspended by FDA, the sponsor or the IRB at any time for various reasons, including a belief that the risks to the study participants outweigh the benefits of participation in the study. Even if a study is completed, the results of a clinical trial may not demonstrate the safety and efficacy of a device, or may be equivocal or otherwise not be sufficient to obtain approval of a device. Pervasive and Continuing FDA Regulation After a device is placed on the market, numerous FDA and other regulatory requirements continue to apply. These include: • • quality system regulations, which require manufacturers, including third-party contract manufacturers, to follow stringent design, testing, control, documentation, record maintenance and other quality assurance controls, during all aspects of the manufacturing process and to maintain and investigate complaints; labeling regulations, and FDA prohibitions against the promotion of products for uncleared or unapproved “off-label” uses; 14 • medical device reporting obligations, which require that manufacturers submit reports to the FDA of adverse events; and • other post-market surveillance requirements, which apply when necessary to protect the public health or to provide additional safety and effectiveness data for the device. Failure to comply with applicable regulatory requirements can result in enforcement action by the FDA, which may include any of the following sanctions: • warning letters; • • • • • fines, injunctions, and civil penalties; recall or seizure of our products; operating restrictions, partial suspension or total shutdown of production; refusal to grant 510(k) clearance or PMA approvals of new products; and criminal prosecution. To ensure compliance with regulatory requirements, medical device manufacturers are subject to market surveillance and manufacturers and their third-party manufacturers are subject to periodic announced and unannounced inspection by the FDA. In June of 2011 the FDA sent an untitled letter to the manufacturer of our PureGen product, Parcell Laboratories, LLC regarding the regulatory status of the product. In the letter, the FDA raised questions in connection with Parcell’s position that the PureGen product is a human cell, tissue, and cellular or tissue-based products regulated solely under Section 361 of the Public Health Service Act and 21 C.F.R, Part 1271, and is not subject to any premarket review requirements. Parcell responded to the FDA’s letter in July of 2011 with additional information about PureGen and why the product qualifies as a Section 361 product. A formal request for designation of the regulatory status of PureGen was submitted in January 2013. While we believe that this product should be included within the classification of Section 361, the FDA may take a position contrary to ours which would require us to stop selling the product. In addition, in February 2013 each of the two vendors that are collectively responsible for the procurement, processing, storage and shipment of PureGen were inspected by the FDA. Following such inspections several Form 483 observations were issued related to PureGen. Despite the fact that the PureGen product has been implanted in over 3,500 patients with no adverse events related to the product, in February of, 2013 we voluntarily stopped shipping PureGen until all issues have been addressed to the FDA’s satisfaction. See “Item 1-A – Risk Factors”. International Device Regulations International sales of medical devices are subject to foreign government regulations, which vary substantially from country to country. The time required to obtain approval by a foreign country may be longer or shorter than that required for FDA approval, and the requirements may differ. Japan In Japan, certain medical devices classified as “highly controlled” must be approved prior to importation and commercial sale by the Ministry of Health, Labour and Welfare, or MHLW, pursuant to the Japanese Pharmaceutical Affairs Law. Manufacturers of medical devices outside of Japan which do not operate through a Japanese entity are required to appoint a contractually bound authorized representative to directly submit an application for device approval to the MHLW. The MHLW evaluates each device for safety and efficacy and may require that the product be tested in Japanese laboratories. After a device is approved for importation and commercial sale in Japan, the MHLW continues to monitor sales of approved products for compliance. Failure to 15 comply with applicable regulatory requirements can result in enforcement action by the MHLW, including administrative inspections and recommendations; recall or seizure of products; operating restrictions, including partial suspension or total shut down of marketing activity in Japan; withdrawal of product approvals; and criminal prosecution by a public prosecutor, including criminal fines and/or imprisonment. Our devices fall into the “highly controlled” medical device category. Currently, MHLW review times for our device applications range from one year if clinical data is not required, to up to two years if clinical data is required. The review times for our products are expected to be reduced to six months and one year, respectively, and we expect application fees to be reduced as new approval screening standards are established by the MHLW, which has delegated responsibility for these review functions to the Japanese Pharmaceuticals and Medical Devices Agency, for various medical device categories. Currently, the MHLW is working with trade organizations such as AdvaMed, and MHLW may adopt similar standards. European Union The European Union, which consists of 27 of the countries in Europe, has adopted numerous directives and standards regulating the design, manufacture, clinical trials, labeling, and adverse event reporting for medical devices. Other countries, such as Switzerland, have voluntarily adopted laws and regulations that mirror those of the European Union with respect to medical devices. Devices that comply with the requirements of a relevant directive will be entitled to bear CE conformity marking and, accordingly, can be commercially distributed throughout the member states of the European Union, and other countries that comply with or mirror these directives. The method of assessing conformity varies depending on the type and class of the product, but normally involves a combination of self-assessment by the manufacturer or a third-party assessment by a “Notified Body,” an independent and neutral institution appointed to conduct conformity assessment. This third- party assessment consists of an audit of the manufacturer’s quality system and technical review and testing of the manufacturer’s product. An assessment by a Notified Body in one country within the European Union is required in order for a manufacturer to commercially distribute the product throughout the European Union. In addition, compliance with voluntary harmonized standards including ISO 13845 issued by the International Organization for Standards establishes the presumption of conformity with the essential requirements for a CE mark. In October 2007, we were certified by Intertek Semko, a Notified Body, under the European Union Medical Device Directive allowing the CE conformity marking to be applied. In September 2012, the European Commission adopted a proposal for a regulation which if adopted will change the way that most medical devices are regulated in the European Union, and may subject our products to additional requirements. Environmental Matters Our facilities and operations are subject to extensive federal, state, and local environmental and occupational health and safety laws and regulations. These laws and regulations govern, among other things, air emissions; wastewater discharges; the generation, storage, handling, use and transportation of hazardous materials; the handling and disposal of hazardous wastes; the cleanup of contamination; and the health and safety of our employees. Under such laws and regulations, we are required to obtain permits from governmental authorities for some of our operations. If we violate or fail to comply with these laws, regulations or permits, we could be fined or otherwise sanctioned by regulators. We could also be held responsible for costs and damages arising from any contamination at our past or present facilities or at third-party waste disposal sites. We cannot completely eliminate the risk of contamination or injury resulting from hazardous materials, and we may incur material liability as a result of any contamination or injury. Compliance with Fraud and Abuse Laws and Other Applicable Statutes We are subject to various federal and state laws pertaining to healthcare fraud and abuse, including anti- kickback laws, physician self-referral laws, false claims laws, criminal health care fraud laws, and foreign corrupt practice laws. Violations of these laws are punishable by criminal and/or civil sanctions, including, in 16 some instances, fines, imprisonment and, within the United States, exclusion from participation in government healthcare programs, including Medicare, Medicaid and Veterans Administration health programs. These laws are administered by, among others, the U.S. Department of Justice, the Office of Inspector General of the Department of Health and Human Services and state attorneys general. Many of these agencies have increased their enforcement activities with respect to medical device manufacturers in recent years. The federal Anti-Kickback Statute, prohibits persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in exchange for or to induce either the referral of an individual, or the furnishing, arranging for or recommending a good or service, for which payment may be made in whole or part under federal healthcare programs, such as the Medicare and Medicaid programs. The Anti- Kickback Statute is broad and prohibits many arrangements and practices that are lawful in businesses outside of the healthcare industry. For example, the definition of “remuneration” has been broadly interpreted to include anything of value, including, gifts, discounts, the furnishing of supplies or equipment, credit arrangements, payments of cash, waivers of payments, ownership interests and providing anything at less than its fair market value. In addition, in March 2010, the U.S. Congress adopted and President Obama signed into law the Patient Protection and Affordable Health Care Act, which, as amended by the Health Care and Education Reconciliation Act, is referred to as ACA. ACA, among other things, amends the intent requirement of the federal Anti- Kickback Statute. A person or entity no longer needs to have actual knowledge of this statute or specific intent to violate it. In addition, ACA provides that the government may assert that a claim including items or services resulting from a violation of the Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal False Claims Act. In implementing the Anti-Kickback Statute, the Office of Inspector General, or OIG, has issued a series of regulations, known as the safe harbors, which began in July 1991. These safe harbors set forth provisions that, in circumstances where all the applicable requirements are met, will assure healthcare providers and other parties that they will not be prosecuted under the Anti-Kickback Statute. The failure of a transaction or arrangement to fit precisely within one or more safe harbors does not necessarily mean that it is illegal or that prosecution will be pursued. However, conduct and business arrangements that do not fully satisfy all requirements of an applicable safe harbor may result in increased scrutiny by government enforcement authorities such as the OIG. Penalties for violations of the Anti-Kickback Statute include criminal penalties and civil sanctions such as fines, imprisonment and possible exclusion from Medicare, Medicaid and other federal healthcare programs. Many states have anti-kickback laws that are similar to the federal law, including penalties, fines, sanctions for violations, and exclusions from state or commercial programs. The federal ban on physician self-referrals, commonly known as the Stark Law, prohibits, subject to certain exceptions, physician referrals of Medicare and Medicaid patients to an entity providing certain “designated health services” if the physician or an immediate family member of the physician has any financial relationship with the entity. Penalties for violating the Stark Law include fines, civil monetary penalties and possible exclusion from federal healthcare programs. In addition to the Stark Law, many states have their own self- referral laws. Often, these laws closely follow the language of the federal law, although they do not always have the same scope, exceptions or safe harbors. We have entered into various agreements with certain surgeons that perform services for us, including some who make clinical decisions to use our products. Some of our referring surgeons own our stock, which they either purchased in an arms’ length transaction on terms identical to those offered to non-surgeons or received from us as fair market value consideration for services performed. In addition, physician-owned distribution companies have increasingly become involved in the sale and distribution of medical devices, including the products for the surgical treatment of spine disorders. In many cases, these distribution companies enter into arrangements with hospitals that bill Medicare or Medicaid for the furnishing of medical services, and the physician-owners are among the physicians who refer patients to the hospitals for surgery. While we believe that our current operations comply with applicable fraud and abuse laws and do not believe that we are subject to any arrangements that violate any such laws, if material information regarding such entity were misrepresented or 17 omitted during our due diligence, we would not be in a position to be aware of all of the financial arrangements of the physician-owned distribution companies with which we contract, even after conducting reasonably inquiry. All arrangements we have that involve surgeons, sales agents or distributors have all been structured with the intention of complying with all applicable fraud and abuse laws, including the Anti-Kickback Statute, Stark Law and similar state self-referral laws. The federal False Claims Act prohibits persons from knowingly filing or causing to be filed a false or fraudulent claim to, or the knowing use of false statements to obtain payment from, the federal government. Private suits filed under the False Claims Act, known as qui tam actions, can be brought by individuals on behalf of the government. These individuals, sometimes known as “relators” or, more commonly, as “whistleblowers,” may share in any amounts paid by the entity to the government in fines or settlement. The number of filings of qui tam actions has increased significantly in recent years, causing more healthcare companies to have to defend a False Claim Act action. If an entity is determined to have violated the federal False Claims Act, it may be required to pay up to three times the actual damages sustained by the government, plus civil penalties of between $5,500 to $11,000 for each separate false claim and may be subject to exclusion from Medicare, Medicaid and other federal healthcare programs. Various states have also enacted similar laws modeled after the federal False Claims Act which apply to items and services reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payor. The Health Insurance Portability and Accountability Act, or HIPAA, created two new federal crimes: healthcare fraud and false statements relating to healthcare matters. The healthcare fraud statute prohibits knowingly and willfully executing a scheme to defraud any healthcare benefit program, including private payors. Under recent changes in ACA, the intent requirement of the healthcare fraud statute is lowered such that a person or entity no longer needs to have actual knowledge of this statute or specific intent to violate it. A violation of this statute is a felony and may result in fines, imprisonment or possible exclusion from Medicare, Medicaid and other federal healthcare programs. The false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false, fictitious or fraudulent statement in connection with the delivery of or payment for healthcare benefits, items, or services. A violation of this statute is a felony and may result in similar sanctions. ACA also includes various provisions designed to strengthen significantly fraud and abuse enforcement in addition to those changes discussed above. Among these additional provisions include increased funding for enforcement efforts and new “sunshine” provisions to require us to report and disclose to the Centers for Medicare and Medicaid Services, or CMS, any payment or “transfer of value” made or distributed to physicians or teaching hospitals. These sunshine provisions also require certain group purchasing organizations, including physician-owned distributors, to disclose physician ownership information to CMS. On February 8, 2013 CMS published a detailed regulation implementing these sunshine provisions. Under this final rule, starting August 1, 2013, the company and other device manufacturers will be required to collect specific data on payments to physicians and teaching hospitals for the remaining calendar year 2013, with such data to be assembled into a report due to CMS by March 31, 2014, and annually thereafter. CMS will then publish on its website all manufacturer reports of such payments and transfers of value. There are various state laws and initiatives that require device manufacturers to disclose to the appropriate regulatory agency certain payments or other transfers of value made to physicians, and in certain cases prohibit some forms of these payments, with the risk of fines for any violation of such requirements. Massachusetts has one of the most stringent of these laws, and the District of Columbia and Vermont passed such laws in 2008 and 2009, respectively. HIPAA also includes privacy and security provisions designed to regulate the use and disclosure of “protected health information” or “PHI” which is health information that identifies a patient and that is held by a health care provider, a health plan or health care clearinghouse. We are not directly regulated by HIPAA, but our ability to access PHI for purposes such as marketing, product development, clinical research or other uses is controlled by HIPAA and restrictions placed on health care providers and other covered entities. HIPAA was amended in 2009 by the Health Information Technology for Economic and Clinical Health Act (HITECH) which 18 strengthened the rule, increased penalties for violations and added a requirement for the disclosure of breaches to affected individuals, the government and in some cases the media. We must carefully structure any transaction involving PHI to avoid violation of HIPAA and HITECH requirements. Almost all states have adopted data security laws protecting personal information including social security numbers, state issued identification numbers, credit card or financial account information coupled with individuals’ names or initials. We must comply with all applicable state data security laws, even though they vary extensively, and must ensure that any breaches or accidental disclosures of personal information are promptly reported to affected individuals and responsible government entities. We must also ensure that we maintain compliant, written information security programs or run the risk of civil or even criminal sanctions for non-compliance as well as reputational harm for publicly reported breaches or violations. We may also be exposed to liabilities under the U.S. Foreign Corrupt Practices Act, or FCPA, which generally prohibits companies and their intermediaries from making corrupt payments to foreign officials for the purpose of obtaining or keeping business or otherwise obtaining favorable treatment, and requires companies to maintain adequate record-keeping and internal accounting practices to accurately reflect the transactions of the company. We are also subject to a number of other laws and regulations relating to money laundering, international money transfers and electronic fund transfers. These laws apply to companies, individual directors, officers, employees and agents. If any of our operations are found to have violated or be in violation of any of the laws described above and other applicable state and federal fraud and abuse laws, we may be subject to penalties, among them being civil and criminal penalties, damages, fines, exclusion from government healthcare programs, and the curtailment or restructuring of our operations. Third-Party Reimbursement In the U.S., healthcare providers generally rely on third-party payors, principally private insurers and governmental payors such as Medicare and Medicaid, to cover and pay for all or part of the cost of a spine surgery in which our medical devices are used. We expect that sales volumes and prices of our products will depend in large part on the continued availability of reimbursement from such third-party payors. These third- party payors may deny reimbursement if they determine that a device used in a procedure was not medically necessary in accordance with cost-effective treatment methods, as determined by the third-party payor, or was used for an unapproved indication. Particularly in the U.S., third-party payors continue to carefully review, and increasingly challenge, the prices charged for procedures and medical products. Medicare coverage and reimbursement policies are developed by CMS, the federal agency responsible for administering the Medicare program, and its contractors. CMS establishes these Medicare policies for medical products and procedures and such policies are periodically reviewed and updated. While private payors vary in their coverage and payment policies, the Medicare program is viewed as a benchmark. Medicare payment rates for the same or similar procedures vary due to geographic location, nature of the facility in which the procedure is performed (i.e., teaching or community hospital) and other factors. We cannot assure you that government or private third-party payors will cover and provide adequate payment for the procedures in which our products are used. ACA and other reform proposals contain significant changes regarding Medicare, Medicaid and other third party payors. Among these changes was the imposition of a 2.3% excise tax on domestic sales of medical devices that went into effect on January 1, 2013. These taxes will result in a significant increase in the tax burden on our industry. Other elements of this legislation include numerous provisions to limit Medicare spending through reductions in various fee schedule payments and by instituting more sweeping payment reforms, such as bundled payments for episodes of care, the establishment of “accountable care organizations” under which hospitals and physicians will be able to share savings that result from cost control efforts, comparative effectiveness research, 19 value-based purchasing, and the establishment of an independent payment advisory board. Many of these provisions will be implemented through the regulatory process, and policy details have not yet been finalized. In addition, although ACA has been subject to various legal challenges, in June 2012 the United States Supreme Court upheld the constitutionality of the minimum essential health insurance coverage rule, or so-called personal mandate, while holding that the federal government must give states option to accept ACA’s Medical expansion provisions without risk of losing all federal Medicaid funds. Other proposals have been introduced in Congress to repeal the device tax and various healthcare reform proposals have also emerged at the state level. Although not a prediction, it now appears likely that ACA will be implemented largely as enacted, but it is less clear what other healthcare initiatives at the federal or state level, if any, will be implemented. However, an expansion in government’s role in the U.S. healthcare industry may lower reimbursements for our products, reduce medical procedure volumes, and adversely affect our business and results of operations, possibly materially. At the same time, the failure of any state to expand its Medicaid program as prescribed in ACA will restrict the ability of populations potentially served by such expansion to use our products. Internationally, healthcare payment systems vary substantially from country to country and include single- payor, government-managed systems as well as systems in which private payors and government-managed systems exist side-by-side. Our ability to achieve market acceptance or significant sales volume in international markets we enter will be dependent in large part on the availability of reimbursement for procedures performed using our products under the healthcare payment systems in such markets. A small number of countries may require us to gather additional clinical data before covering our products. It is our intent to complete the requisite clinical studies and obtain coverage in countries where it makes economic sense to do so. We believe that the overall escalating cost of medical products and services has led to, and will continue to lead to, increased pressures on the healthcare industry to reduce the costs of products and services. We cannot assure you that government or private third-party payors will cover and provide adequate payment for the procedures using our products. In addition, it is possible that future legislation, regulation, or reimbursement policies of third-party payors will adversely affect the demand for procedures using our products or our ability to sell our products on a profitable basis. The unavailability or inadequacy of third-party payor coverage or reimbursement could have a significant adverse effect on our business, operating results and financial condition. Employees As of December 31, 2012, we had approximately 490 employees worldwide in the following areas: sales, physician services, marketing, clinical education, manufacturing, advanced manufacturing, quality assurance, regulatory affairs, research and development, human resources, finance, legal, information technology and administration. We have never experienced a work stoppage due to labor difficulties and believe that our relations with our employees are good. Certain employees in Europe have labor committees and collective bargaining agreements in place. Corporate and Available Information We are a Delaware corporation. We were incorporated in March 2005. Our principal executive office is located at 5818 El Camino Real, Carlsbad, California 92008. Our Internet address is www.alphatecspine.com. By referring to our website, we do not incorporate the website or any portion of the website by reference into this Annual Report on Form 10-K. We are not including the information contained on our website as a part of, or incorporating it by reference into, this Annual Report on Form 10-K. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, are available to you free of charge through the Investor Relations section of our website as soon as reasonably practicable after such materials have been electronically filed with, or furnished to, the Securities and Exchange Commission. Item 1A. Risk Factors Investing in our common stock involves a high degree of risk. You should carefully consider the following risk factors and all other information contained in this Annual Report on Form 10-K. The risks and uncertainties 20 described below are not the only ones facing us. Additional risks and uncertainties that we are unaware of, or that we currently deem immaterial, also may become important factors that affect us. If any of such risks or the risks described below occur, our business, financial condition or results of operations could be materially and adversely affected. In that case, the trading price of our common stock could decline, and you may lose some or all of your investment. Risks Related to Our Business and Industry Our business plan relies on certain assumptions pertaining to the market for our products that, if incorrect, may adversely affect our growth and profitability. We allocate our design, development, manufacturing, marketing, management and financial resources based on our business plan, which includes assumptions about various demographic trends and trends in the treatment of spine disorders and the resulting demand for our products. However, these trends are uncertain. There can be no assurance that our assumptions with respect to an aging population with broad medical coverage and longer life expectancy, which we expect to lead to increased spinal injuries and degeneration, are accurate. In addition, an increasing awareness and use of non-invasive means for the prevention and treatment of back pain and rehabilitation purposes may reduce demand for, or slow the growth of sales of, spine fusion products. A significant shift in technologies or methods used in the treatment of back pain or damaged or diseased bone and tissue could adversely affect demand for some or all of our products. For example, pharmaceutical advances could result in non-surgical treatments gaining more widespread acceptance as a viable alternative to spine fusion. The emergence of new biological or synthetic materials to facilitate regeneration of damaged or diseased bone and to repair damaged tissue could increasingly minimize or delay the need for spine fusion surgery and provide other biological alternatives to spine fusion. New surgical procedures could diminish demand for some of our products. The increased acceptance of emerging technologies that do not require spine fusion, such as artificial discs and nucleus replacement, for the surgical treatment of spine disorders would reduce demand for, or slow the growth of sales of, spine fusion products. If our assumptions regarding these factors prove to be incorrect or if alternative treatments to those offered by our products gain further acceptance, then actual demand for our products could be significantly less than the demand we anticipate for our products and we may not be able to achieve or sustain growth or profitability. If we fail to properly manage our anticipated growth, our business could suffer. We will continue to pursue growth in, the number of surgeons using our products, including, without limitation the surgeon members of Phygen, the types of products we offer and the geographic regions in which our products are sold. Such anticipated growth has placed and will continue to place significant demands on our managerial, operational and financial resources and systems. Future growth would impose significant added responsibilities on members of management, including the need to identify, recruit, maintain, motivate and integrate additional personnel. Also, our management may need to divert a disproportionate amount of its attention away from our day-to-day activities and devote a substantial amount of time to managing these anticipated growth activities. We are currently focused on increasing the size and effectiveness of our sales force and distribution network, marketing activities, research and development efforts, inventory management systems, management team and corporate infrastructure. If we do not manage our anticipated growth effectively, the quality of our products, our relationships with physicians, including the surgeon members of Phygen, distributors and hospitals, and our reputation could suffer, which would have a significant adverse effect on our business, financial condition and results of operations. We must attract and retain qualified personnel and third-party distributors and manage and train them effectively. Personnel qualified in the design, development, production and marketing of our products are difficult to find and hire, and enhancements of information technology systems to support our growth are difficult to implement. We will also need to carefully monitor and manage our surgeon services, our manufacturing capabilities, quality assurance and efficiency, and the quality assurance and efficiency of our suppliers and distributors. This managing, training and monitoring will require allocation of valuable management resources and significant expense. If our management is unable to effectively manage our 21 expected growth, our expenses may increase more than expected, our ability to generate and/or grow revenues could be reduced and we may not be able to implement our business strategy. We are in a highly competitive market segment, face competition from large, well-established medical device companies with significant resources, and may not be able to compete effectively. The market for spine fusion products and procedures is intensely competitive, subject to rapid technological change and significantly affected by new product introductions and other market activities of industry participants. In 2012, a large portion of global spinal implant product revenues was generated by Medtronic Sofamor Danek, a subsidiary of Medtronic, Inc., Depuy Spine, a subsidiary of Johnson & Johnson and Stryker Spine. Our competitors also include numerous other publicly traded companies and privately held companies. Several of our competitors enjoy competitive advantages over us, including: • more established relationships with spine surgeons; • more established distribution networks; • • • • • broader spine surgery product offerings; stronger intellectual property portfolios; greater financial and other resources for product research and development, sales and marketing, and patent litigation; greater experience in, and resources for, launching, marketing, distributing and selling products; significantly greater name recognition as well as more recognizable trademarks for products similar to the products that we sell; • more established relationships with healthcare providers and payors; • • products supported by more extensive clinical data; and greater experience in obtaining and maintaining FDA and other regulatory clearances or approvals for products and product enhancements. In addition, at any time our current competitors or other companies may develop alternative treatments, products or procedures for the treatment of spine disorders that compete directly or indirectly with our products, including ones that prove to be superior to our spine surgery products. For these reasons, we may not be able to compete successfully against our existing or potential competitors. Any such failure could lead us to modify our strategy, lower our prices, increase the commissions we pay on sales of our products and have a significant adverse effect on our business, financial condition and results of operations. A significant percentage of our revenues are derived from the sale of our systems that include polyaxial pedicle screws. Net sales of our systems that include polyaxial pedicle screws represented approximately 45% and 46% of our net sales for 2012 and 2011, respectively. A decline in sales of these systems, due to market demand, the introduction by a third party of a competitive product, an intellectual property dispute involving these systems, or otherwise, would have a significant adverse impact on our business, financial condition and results of operations. Some of the technology related to our polyaxial pedicle screw systems is licensed to us. Any action that would prevent us from manufacturing, marketing and selling our polyaxial pedicle screw systems would have a significant adverse effect on our business, financial condition and results of operations. 22 Our sales and marketing efforts in the U.S. are largely dependent upon third parties, some of which are free to market products that compete with our products. As of December 31, 2012, approximately 23% of our independent distributors in the U.S. also market and sell the products of our competitors, and those competitors may have the ability to influence the products that our independent distributors choose to market and sell. Our competitors may be able, by offering higher commission payments or otherwise, to convince our independent distributors to terminate their relationships with us, carry fewer of our products or reduce their sales and marketing efforts for our products. We may be unable to accurately predict future sales through distributors that purchase products directly from us, which could harm our ability to forecast sales performance. A portion of our sales are made through domestic and international third-party distributors that purchase our products directly from us and then resell such products to hospitals. As a result, our financial results, quarterly product sales, trends and comparisons are affected by fluctuations in the buying patterns and inventory levels of these distributors. While we attempt to assist such distributors in forecasting its future sales and maintaining adequate inventory levels, we may not be consistently accurate or successful. In addition, our distributors’ decision-making process regarding orders is complex and involves several factors, including surgeon demand levels, which can make it difficult to accurately predict our sales until late in a quarter. Our failure to accurately forecast sales through distributors that purchase products directly from us and the failure of such distributors to maintain adequate inventory levels could lead to a decline in sales and adversely affect our results of operations. If pricing pressures cause us to decrease prices for our goods and services and we are unable to compensate for such reductions through changes in our product mix and reductions to our expenses, our results of operations will suffer. We may experience decreasing prices for our goods and services we offer due to pricing pressure exerted by our customers in response to increased cost containment efforts from managed care organizations and other third- party payors and increased market power of our customers as the medical device industry consolidates. If we are unable to offset such price reductions through changes in our product mix or reductions in our expenses, our business, financial condition, results of operations and cash flows will be adversely affected. We conduct a significant amount of our sales activity outside of the U.S., which subjects us to additional business risks and may adversely affect our results of operations and financial condition. During the year ended December 31, 2012, we derived approximately $65.8 million, or 33% of our net sales from sales of products outside of the U.S. We intend to continue to pursue growth opportunities in sales internationally, which could expose us to additional risks associated with international sales and operations. Our international operations are, and will continue to be, subject to a number of risks and potential costs, including: • • • • • • • • • changes in foreign medical reimbursement policies and programs; changes in foreign regulatory requirements; differing local product preferences and product requirements; diminished protection of intellectual property in some countries outside of the U.S.; differing payment cycles; trade protection measures and import or export licensing requirements; difficulty in staffing, training and managing foreign operations; differing legal regulations and labor relations; potentially negative consequences from changes in tax laws (including potentially taxes payable on earnings of foreign subsidiaries upon repatriation); and 23 • political and economic instability. In addition, we are subject to risks arising from currency exchange rate fluctuations, which could decrease our revenues, increase our costs and may adversely affect our results of operations. Significant increases in the value of the U.S. dollar relative to foreign currencies could have a material adverse effect on our international results of operations. To be commercially successful, we must convince the spine surgeon community, including the surgeon members of Phygen, that our products are an attractive alternative to our competitors’ products. If the spine surgeon community, including the surgeon members of Phygen, does not use our products, our sales will decline and we will be unable to increase our sales and profits. In order for us to sell our products, surgeons, including the surgeon members of Phygen, must be convinced that they are superior to competing products for use in spine fusion procedures. Acceptance of our products depends on educating the spine surgeon community, including the surgeon members of Phygen, as to the distinctive characteristics, perceived benefits, safety and cost-effectiveness of our products compared to our competitors’ products and on training surgeons in the proper application of our products. If we are not successful in convincing the spine surgeon community, including the surgeon members of Phygen, of the merit of our products, our sales will decline and we will be unable to increase our sales and will be unable to achieve and sustain growth or profitability. There is a learning process involved for spine surgeons to become proficient in the use of our products. Although most spine surgeons may have adequate knowledge on how to use most of our products based on their clinical training and experience, we believe that the most effective way to introduce and build market demand for our products is by directly training spine surgeons in the use of our products. If surgeons are not properly trained, they may misuse or ineffectively use our products. This may also result in unsatisfactory patient outcomes, patient injury, negative publicity or lawsuits against us, any of which could have a significant adverse effect on our business, financial condition and results of operations. We must retain the current distributors of our products and attract new distributors of our products. As we launch new products and increase our marketing efforts with respect to existing products, we will need to expand our sales and marketing organization. We plan to accomplish this by increasing our network of independent distributors and hiring additional direct sales representatives. The establishment and development of a broader sales network and dedicated sales force may be expensive and time consuming. Because of the intense competition for their services, we may be unable to recruit or retain additional qualified independent distributors and to hire additional direct sales representatives to work with us. Often, our competitors enter into distribution agreements with independent distributors that require such distributors to exclusively sell the products of our competitors. Further, we may not be able to enter into agreements with independent distributors on commercially reasonable terms, if at all. Even if we do enter into agreements with additional independent distributors, it often takes 90 to 120 days for new distributors to reach full operational effectiveness and such distributors may not generate revenue as quickly as we expect them to, commit the necessary resources to effectively market and sell our products or ultimately be successful in selling our products. Our business, financial condition and results of operations will be materially adversely affected if we do not retain our existing independent distributors and attract new, additional independent distributors or if the marketing and sales efforts of our independent distributors and our own direct sales representatives are unsuccessful. We may not be successful in manufacturing products at the levels required to meet future market demand. We are seeking to rapidly grow sales of our products and if we are successful, such growth may strain our ability to manufacture an increasingly large supply of our products. We have never produced products in quantities significantly in excess of our current production levels. Manufacturers regularly experience difficulties 24 in scaling up production and we may face such difficulties in increasing our production levels. Moreover, we may not be able to manufacture our products with consistent and satisfactory quality or in sufficient quantities to meet demand. Our failure to produce products of satisfactory quality or in sufficient quantities could hurt our reputation; cause hospitals, surgeons or distributors to cancel orders or refrain from placing new orders for our products; and reduce or slow growth of sales of our products. Increases in our production volume also could make it harder for us to maintain control over expenses, manage our relationships with our suppliers, maintain good relations with our employees or otherwise manage our business. In addition, should we not be able to achieve our revenue forecast and cash consumption starts to exceed forecasted consumption, management will need to adjust our production of surgical instruments and manage our inventory to the decreased sales volumes. If we do not make these adjustments in a timely manner, there could be an adverse impact on our financial resources. We depend on various third-party suppliers, and in one case a single third-party supplier, for key raw materials used in our manufacturing processes and the loss of these third-party suppliers, or their inability to supply us with adequate raw materials, could harm our business. We use a number of raw materials, including titanium, titanium alloys, stainless steel, PEEK, and human tissue. We rely from time to time on a number of suppliers and in one case on a single source vendor, Invibio. We have a supply agreement with Invibio, pursuant to which it supplies us with PEEK, a biocompatible plastic that we use in some of our spacers. Invibio is one of a limited number of companies approved to distribute PEEK in the U.S. for use in implantable devices. During 2012 and 2011 approximately 14% and 16%, respectively, of our revenues were derived from products manufactured using PEEK. We depend on a limited number of sources of human tissue for use in our biologics products, and any failure to obtain tissue from these sources or to have the tissue processed by these entities for us in a timely manner will interfere with our ability to meet demand for our biologics products effectively. The processing of human tissue into biologics products is labor intensive and it is therefore difficult to maintain a steady supply stream. In addition, due to seasonal changes in mortality rates, some scarce tissues used for our biologics products are at times in particularly short supply. We cannot be certain that our supply of human tissue from our current suppliers and our current inventory of biologics products will be available at current levels or will be sufficient to meet our needs. Our dependence on a single third-party PEEK supplier and the challenges we may face in obtaining adequate supplies of biologics products involve several risks, including limited control over pricing, availability, quality and delivery schedules. In addition, any supply interruption in a limited or sole sourced component or raw material, such as PEEK or human tissue, could materially harm our ability to manufacture our products until a new source of supply, if any, could be found. We may be unable to find a sufficient alternative supply channel in a reasonable time period or on commercially reasonable terms, if at all, which would have a significant adverse effect on our business, financial condition and results of operations. Our tissue-based products and related technologies could become subject to significantly greater regulation by the FDA, which could disrupt our business. The FDA may regulate certain tissue-based products as medical devices, drugs or biologics if the product is deemed to have been more than minimally manipulated or indicated for nonhomologous use. Homologous use is generally interpreted as the use of tissue for the same basic function in the recipient as it fulfilled in the donor. If the FDA decides that any of our current or future tissue-based products are more than minimally manipulated or indicated for nonhomologous use, it would require us to either obtain 510(k) clearance or a PMA approval if the biologics product is viewed as a medical device or obtain approval as a drug or licensure as a biologic if it is viewed as a drug or biologic. Depending on the nature and extent of any FDA decision applicable to our tissue- based products, further distribution of the affected products could be interrupted for a substantial period of time, which would reduce our revenues and hurt our profitability. 25 The regulatory status of our PureGen product is unclear, and we could be forced to stop marketing the product. In addition, in February of 2013 we voluntarily stopped shipping PureGen. In 2010, we began to market and sell our PureGen Osteoprogenitor Cell Allograft product pursuant to section 361 of the Public Health Service Act and 21 CFR Part 1271 Human Cell & Tissue Products Controls, or the HCT/P. Such action was based on our good faith belief that PureGen was a 361 HCT/P tissue product. In June 2011 the manufacturer of PureGen, Parcell Laboratories, was contacted by FDA concerning the regulatory status of PureGen. These communications stated FDA’s belief that PureGen was a biologic product subject to regulation under Section 351 of the Public Health Service Act, or the PHS Act, by the Center for Biologics Evaluation and Research, or CBER. Both we and Parcell disagreed with this position. Parcell responded to the FDA’s letter in July of 2011 with more complete information of the function of PureGen and how the product meets all of the criteria for being marketed under Section 361. A formal request for designation of the regulatory status of PureGen was submitted in January 2013. In February 2013 each of the two vendors that are collectively responsible for the procurement, processing, storage and shipment of PureGen were inspected by the FDA. Following such inspections several Form 483 observations were issued related to PureGen. Despite the fact that the PureGen product has been implanted in over 3,500 patients with no adverse events related to the product, in February of, 2013 we voluntarily stopped shipping PureGen until all issues have been addressed to the FDA’s satisfaction, and we cannot be certain that such actions will take place in a timely manner, or if such actions will happen at all. In the event that the FDA requires us to stop marketing or selling PureGen until it has achieved regulatory approval as a medical device or biologic product, we would be forced to stop selling the product. In addition, if we fail to comply with applicable regulatory requirements related to PureGen, the FDA could deny future marketing clearance, approval or licensing, withdraw approvals or revoke licenses, or impose civil penalties, including fines, product seizures or product recalls and, in extreme cases, criminal sanctions. Negative publicity concerning methods of tissue recovery and screening of donor tissue in our industry could reduce demand for biologics products and impact the supply of available donor tissue. Media reports or other negative publicity concerning both alleged improper methods of tissue recovery from donors and disease transmission from donated tissue could limit widespread acceptance of biologics products. Unfavorable reports of improper or illegal tissue recovery practices, both in the U.S. and internationally, as well as incidents of improperly processed tissue leading to the transmission of disease, may broadly affect the rate of future tissue donation and market acceptance of biologics product. In addition, such negative publicity could cause the families of potential donors to become reluctant to agree to donate tissue to for-profit tissue processors, which could have a negative effect on our biologics products business. If we or our suppliers fail to comply with the FDA’s quality system and good tissue practice regulations, the manufacture of our products could be delayed. We and our suppliers are required to comply with the FDA’s QSRs, which cover the methods and documentation of the design, testing, production, control, quality assurance, labeling, packaging, sterilization, record keeping, storage and shipping of our products. In addition, suppliers and processors of products derived from human cells and tissues must comply with the FDA’s current good tissue practice regulations, or CGTPs, which govern the methods used in and the facilities and controls used for the manufacture of human cell tissue and cellular products, record keeping and the establishment of a quality program. The FDA audits compliance with the QSRs and CGTPs through inspections of manufacturing and other facilities. If we or our suppliers have significant non-compliance issues or if any corrective action plan is not sufficient, we or our suppliers could be forced to delay the manufacture of our products until such problems are corrected to the FDA’s satisfaction, which could have a material adverse effect on our business, financial condition and results of operations. Further, our products could be subject to recall if the FDA determines, for any reason, that our products are not safe or effective. Any recall or FDA requirement demanding that we seek additional approvals or clearances could result in delays, costs associated with modification of a product, loss of revenue and potential operating restrictions 26 imposed by the FDA, all of which could have a material adverse effect on our business, financial condition and results of operations. Global economic and credit market conditions could affect a portion of our client base, subcontractors and suppliers, which could materially affect our backlog and profits. Volatility and disruption in the global capital and credit markets have reduced the availability of liquidity and credit to fund or support the continuation and expansion of industrial business operations worldwide. Recent financial market conditions have resulted in significant write-downs of asset values by financial institutions, and have caused many financial institutions to seek additional capital, to merge with larger and stronger institutions and, in some cases, to fail. Many lenders and institutional investors have reduced and, in some cases, ceased to provide funding to borrowers. Continued disruption of the credit markets could adversely affect the borrowing capacity of us or our suppliers and customers, which support the continuation and expansion of our sales worldwide, and could result in suppliers not being able to supply us with raw materials or finished goods or payment delays or defaults by our customers. In addition, in response to current market conditions, vendors or customers may choose to seek contract terms more favorable to them. Finally, our ability to expand our business could be limited if, in the future, we are unable to raise capital, on favorable terms or at all. Healthcare policy changes, including recent federal legislation to reform the U.S. healthcare system, may have a material adverse effect on us. In response to perceived increases in health care costs in recent years, there have been and continue to be proposals by the federal government, state governments, regulators and third-party payors to control these costs and, more generally, to reform the U.S. healthcare system. Certain of these proposals could limit the prices we are able to charge for our products or the amounts of reimbursement available for our products, limit the acceptance and availability of our products, and have a material adverse effect on our financial position and results of operations. In March 2010, the U.S. Congress adopted and President Obama signed into law the ACA. The legislation imposes a 2.3% excise tax on domestic sales of medical devices which went into effect on January 1, 2013. These taxes are resulting in a significant increase in the tax burden on our industry. Other elements of this legislation include numerous provisions to limit Medicare spending through reductions in various fee schedule payments and by instituting more sweeping payment reforms, such as bundled payments for episodes of care, the establishment of “accountable care organizations” under which hospitals and physicians will be able to share savings that result from cost control efforts, comparative effectiveness research, value-based purchasing, and the establishment of an independent payment advisory board. Many of these provisions will be implemented through the regulatory process, and policy details have not yet been finalized. In addition, although ACA has been subject to various legal and legislative challenges, in June 2012 the United States Supreme Court upheld the constitutionality of the minimum essential health insurance coverage rule, or so-called personal mandate, while holding that the federal government must give states the option to accept ACA’s Medical expansion provisions without risk of losing all federal Medicaid funds. Other proposals have been introduced in Congress to repeal the device tax, and various healthcare reform proposals have also emerged at the state level. Although not a prediction, it now appears likely that ACA will be implemented largely as enacted, but it is less clear what other healthcare initiatives at the federal or state level, if any, will be implemented. However, an expansion in government’s role in the U.S. healthcare industry may lower reimbursements for our products, reduce medical procedure volumes and adversely affect our business and results of operations, possibly materially. At the same time, the failure of any state to expand its Medicaid program as prescribed in ACA will restrict the ability of populations potentially served by such expansion to use our products. 27 The demand for our products and the prices at which customers and patients are willing to pay for our products depend upon the ability of our customers to obtain adequate third-party coverage and reimbursement for their purchases of our products. Sales of our products depend in part on the availability of adequate coverage and reimbursement from governmental and private payors. In the U.S., healthcare providers that purchase our products generally rely on third-party payors, principally Medicare, Medicaid and private health insurance plans, to pay for all or a portion of the costs and fees associated with the use of our products. While our currently marketed products are eligible for reimbursement in the U.S., if surgical procedures utilizing our products are performed on an outpatient basis, it is possible that private payors may no longer provide reimbursement for our products without further supporting data on our procedure. Any delays in obtaining, or an inability to obtain, adequate coverage or reimbursement for procedures using our products could significantly affect the acceptance of our products and have a significant adverse effect on our business. Additionally, third-party payors continue to review their coverage policies carefully for existing and new therapies and can, without notice, deny coverage for treatments that include the use of our products. Our business would be negatively impacted to the extent any such changes reduce reimbursement for our products. With respect to coverage and reimbursement outside of the U.S., reimbursement systems in international markets vary significantly by country, and by region within some countries, and reimbursement approvals must be obtained on a country-by-country basis and can take up to 18 months, or longer. Many international markets have government-managed healthcare systems that govern reimbursement for new devices and procedures. In most markets, there are private insurance systems as well as government-managed systems. Additionally, some foreign reimbursement systems provide for limited payments in a given period and therefore result in extended payment periods. Reimbursement in international markets may require us to undertake country-specific reimbursement activities, including additional clinical studies, which could be time consuming, expensive and may not yield acceptable reimbursement rates. Furthermore, healthcare costs have risen significantly over the past decade. There have been and may continue to be proposals by legislators, regulators and third-party payors to contain these costs. Several such proposals were enacted as part of ACA, and include numerous provisions to limit Medicare spending through reductions in various fee schedule payments and sweeping payment reforms. Other federal and state cost-control measures include prospective payment systems, capitated rates, group purchasing, redesign of benefits, requiring pre-authorizations or second opinions prior to major surgery, encouragement of healthier lifestyles and exploration of more cost-effective methods of delivering healthcare. Some healthcare providers in the U.S. have adopted or are considering a managed care system in which the providers contract to provide comprehensive healthcare for a fixed cost per person. Healthcare providers may also attempt to control costs by authorizing fewer elective surgical procedures or by requiring the use of the least expensive devices possible. These cost- control methods also potentially limit the amount which healthcare providers may be willing to pay for medical devices. In addition, in the U.S., no uniform policy of coverage and reimbursement for medical technology exists among all these payors. Therefore, coverage of and reimbursement for medical technology can differ significantly from payor to payor. The continuing efforts of third-party payors, whether governmental or commercial, whether inside the U.S. or outside, to contain or reduce these costs, combined with closer scrutiny of such costs, could restrict our customers’ ability to obtain adequate coverage and reimbursement from these third- party payors. The cost containment measures contained in ACA and other measures being considered at the federal and state level, as well as internationally, could harm our business by adversely affecting the demand for our products or the price at which we can sell our products. 28 Consolidation in the healthcare industry could lead to demands for price concessions or to the exclusion of some suppliers from certain of our markets, which could have an adverse effect on our business, financial condition or results of operations. Because healthcare costs have risen significantly over the past decade, numerous initiatives and reforms initiated by legislators, regulators and third-party payors to curb these costs have resulted in a consolidation trend in the healthcare industry to create new companies with greater market power, including hospitals. As the healthcare industry consolidates, competition to provide products and services to industry participants has become and will continue to become more intense. This in turn has resulted and will likely continue to result in greater pricing pressures and the exclusion of certain suppliers from important market segments as group purchasing organizations, independent delivery networks and large single accounts continue to use their market power to consolidate purchasing decisions for some of our customers. We expect that market demand, government regulation, third-party reimbursement policies and societal pressures will continue to change the worldwide healthcare industry, resulting in further business consolidations and alliances among our customers, which may reduce competition, exert further downward pressure on the prices of our products and may adversely impact our business, financial condition or results of operations. We may be subject to or otherwise affected by federal and state healthcare laws, including fraud and abuse, health information privacy and security, and disclosure laws, and could face substantial penalties if we are unable to fully comply with such laws. Although we do not provide healthcare services, submit claims for third-party reimbursement, or receive payments directly from Medicare, Medicaid, or other third-party payors for our products or the procedures in which our products are used, healthcare regulation by federal and state governments significantly impacts our business. Healthcare fraud and abuse, health information privacy and security, and disclosure laws potentially applicable to our operations include: • • • the federal Anti-Kickback Statute, as well as state analogs, which constrains our marketing practices and those of our independent sales agents and distributors, educational programs, pricing policies, and relationships with healthcare providers by prohibiting, among other things, knowingly and willfully soliciting, receiving, offering or providing remuneration, intended to induce the purchase or recommendation of an item or service reimbursable under a federal (or state or commercial) healthcare program (such as the Medicare or Medicaid programs); the federal ban, as well as state analogs, on physician self-referrals, which prohibits, subject to certain exceptions, physician referrals of Medicare and Medicaid patients to an entity providing certain “designated health services” if the physician or an immediate family member of the physician has any financial relationship with the entity; federal false claims laws which prohibit, among other things, knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid, or other third-party payors that are false or fraudulent; • HIPAA, and its implementing regulations, which created federal criminal laws that prohibit executing a scheme to defraud any healthcare benefit program or making false statements relating to healthcare matters; • • the state and federal laws “sunshine” provisions that require detailed reporting and disclosures to CMS and applicable states of any payments or “transfer of value” made or distributed to prescribers and other health care providers, and for certain states prohibit some forms of these payments, require the adoption of marketing codes of conduct, and constrain their relationships with physicians and other referral sources; state laws analogous to each of the above federal laws, such as anti-kickback and false claims laws that may apply to items or services reimbursed by any third-party payor, including commercial insurers, and state laws governing the privacy of certain health information, many of which differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts; 29 • • the Administrative Simplification provisions of HIPAA, specifically, privacy and security provisions including recent amendments under HITECH which impose stringent restrictions on uses and disclosures of protected health information such as for marketing or clinical research purposes and impose significant civil and criminal penalties for non-compliance and require the reporting of breaches to affected individuals, the government and in some cases the media in the event of a violation; and a variety of state-imposed privacy and data security laws which require the protection of information beyond health information, such as employee information or any class of information combining name with state issued identification numbers, social security numbers, credit card, bank or other financial information and which require reporting to state officials in the event of breach or violation and which impose both civil and criminal penalties. ACA includes various provisions designed to strengthen significantly fraud and abuse enforcement, such as increased funding for enforcement efforts and the lowering of the intent requirement of the federal Anti- Kickback Statute and criminal healthcare fraud statute such that a person or entity no longer needs to have actual knowledge of these statutes or specific intent to violate them. If our past or present operations, or those of our independent sales agents and distributors are found to be in violation of any of such laws or any other governmental regulations that may apply to us, we may be subject to penalties, including civil and criminal penalties, damages, fines, exclusion from federal healthcare programs and/ or the curtailment or restructuring of our operations. Similarly, if the healthcare providers, sales agents, distributors or other entities with which we do business are found to be non-compliant with applicable laws, they may be subject to sanctions, which could also have a negative impact on us. Any penalties, damages, fines, curtailment or restructuring of our operations could adversely affect our ability to operate our business and our financial results. The risk of our being found in violation of these laws is increased by the fact that many of them have not been fully interpreted by the regulatory authorities or the Courts, and their provisions are open to a variety of interpretations. Any action against us for violation of these laws, even if we successfully defend against them, could cause us to incur significant legal expenses and divert our management’s attention from the operation of our business. In January 2004, the Advanced Medical Technology Association or AdvaMed, the principal U.S. trade association for the medical device industry, put in place a model “code of conduct”, or the AdvaMed Code, that sets forth standards by which its members should abide in the promotion of their products. Although we are not a member of AvaMed, we have in place policies and procedures for compliance that we believe are at least as stringent as those set forth in the AdvaMed Code, and we provide routine training to our sales and marketing personnel on our policies regarding sales and marketing practices. The AdvaMed Code was revised in 2009 to make it more stringent with respect to interactions with healthcare professionals. We have adopted the new aspects of the revised AdvaMed Code. The sales and marketing practices of our industry have been the subject of increased scrutiny from federal and state government agencies, and we believe that this trend will continue. Prosecutorial scrutiny and governmental oversight over some major device companies regarding the retention of healthcare professionals as consultants has affected and may continue to affect the manner in which medical device companies may retain healthcare professionals as consultants. We have in place policies to govern how we may retain healthcare professionals as consultants that reflect the current climate on this issue and are providing training on these policies. Any action against us for violation of these laws, even if we successfully defend against them, could cause us to incur significant legal expenses and divert our management’s attention from the operation of our business. Our international operations may expose us to liabilities under the Foreign Corrupt Practices Act and Money Laundering Laws. We may be exposed to liabilities under the U.S. Foreign Corrupt Practices Act, or FCPA, which generally prohibits companies and their intermediaries from making corrupt payments to foreign officials for the purpose 30 of obtaining or keeping business or otherwise obtaining favorable treatment, and requires companies to maintain adequate record keeping and internal accounting practices to accurately reflect the transactions of the company. We are also subject to a number of other laws and regulations relating to money laundering, international money transfers and electronic fund transfers, which we collectively refer to as Money Laundering Laws. These laws apply to companies, individual directors, officers, employees and agents. We operate in a number of jurisdictions with developing economies that pose a high risk of potential violations of the FCPA and Money Laundering Laws, and we utilize third-party distributorships that have government customers. If our employees, third-party distributors or other agents are found to have engaged in such practices, we could suffer severe penalties, including criminal and civil penalties, disgorgement and other remedial measures, any of which could have a material adverse effect on our business, financial condition and results of operations. If we fail to obtain, or experience significant delays in obtaining, FDA clearances or approvals for our future products or modifications to our products, our ability to commercially distribute and market our products could suffer. Our medical devices are subject to rigorous regulation by the FDA and numerous other federal, state and foreign governmental authorities. The process of obtaining regulatory clearances or approvals to market a medical device, particularly from the FDA, can be costly and time consuming, and there can be no assurance that such clearances or approvals will be granted on a timely basis, if at all. In particular, the FDA permits commercial distribution of most new medical devices only after the devices have received clearance under Section 510(k) of the Federal Food, Drug and Cosmetic Act, or 510(k), or are the subject of an approved premarket approval application, or a PMA. The 510(k) process generally takes three to nine months, but can take significantly longer, especially if the FDA requires a clinical study to support the 510(k) application. In connection with the 510(k) that we submitted for the OsseoFix system, the FDA required clinical data to support the 510(k). Currently, we are not certain as to whether the FDA will require clinical data in support of any other 510(k)s that we intend to submit for other products in our pipeline. In addition, the FDA is currently re- examining its 510(k) clearance process for medical devices and recently published several draft guidance documents that could change that process. Any changes that make the process more restrictive could increase the time it takes for us to obtain clearances or could make the 510(k) process unavailable for certain of our products. A PMA must be submitted to the FDA if the device cannot be cleared through the 510(k) process or is not exempt from premarket review by the FDA. A PMA must be supported by extensive data, including results of preclinical studies and clinical trials, manufacturing and control data and proposed labeling, to demonstrate to the FDA’s satisfaction the safety and effectiveness of the device for its intended use. The PMA process is more costly and uncertain than the 510(k) clearance process, and generally takes between one and three years, if not longer. In addition, any modification to a 510(k)-cleared device that could significantly affect its safety or effectiveness, or that would constitute a major change in its intended use, design or manufacture, requires a new 510(k) clearance or, possibly, a PMA. Our commercial distribution and marketing of any products or product modifications that we develop may be delayed since regulatory clearance or approval is required. In addition, because we cannot assure you that any new products or any product modifications we develop will be subject to the shorter 510(k) clearance process, the regulatory approval process for our new products or product modifications may take significantly longer than anticipated. There is no assurance that the FDA will not require a new product or product modification to go through the lengthy and expensive PMA approval process. Delays in obtaining regulatory clearances and approvals may: • • • • delay or prevent commercialization of products we develop; require us to perform costly procedures; diminish any competitive advantages that we might otherwise have obtained; and reduce our ability to collect revenues. 31 To date, all of our non-biologic medical device products that have required FDA review that are being sold in the U.S. have been cleared through the 510(k) process without any required clinical trials. However, the FDA may require clinical data in support of any 510(k)s that we intend to submit for products in our pipeline. We have limited experience in obtaining approval for a device through the 510(k) clinical trial process or the PMA process. If any of our products require the 510(k) clinical process or the PMA process, such processes could delay the commercialization of such products and could have a material adverse effect on our business, financial condition and results of operations. The safety of our products is not yet supported by long-term clinical data and may therefore prove to be less safe and effective than initially thought. We obtained clearance to offer all of our current non-biologic medical device products through the FDA’s 510(k) clearance process. The 510(k) clearance process is generally based on the FDA’s agreement that a new product is substantially equivalent to already marketed products. Thus, the FDA’s 510(k) review process is less rigorous than the PMA process and requires little, if any, supporting clinical data. For these reasons, surgeons may be slow to adopt our 510(k)-cleared products, we may not have the comparative data that our competitors have or are generating, and we may be subject to greater regulatory and product liability risks. With the passage of the American Recovery and Reinvestment Act of 2009, funds have been appropriated for the U.S. Department of Health and Human Services’ Healthcare Research and Quality to conduct comparative effectiveness research to determine the effectiveness of different drugs, medical devices, and procedures in treating certain conditions and diseases. Some of our products or procedures performed with our products could become the subject of such research. It is unknown what effect, if any, this research may have on our business. Further, future research or experience may indicate that treatment with our products does not improve patient outcomes. Such results would reduce demand for our products and this could cause us to withdraw our products from the market. Moreover, if future research or experience indicate that our products cause unexpected or serious complications or other unforeseen negative effects, we could be subject to significant legal liability, significant negative publicity, damage to our reputation and a dramatic reduction in sales of our products, all of which would have a material adverse effect on our business, financial condition and results of operations. If clinical trials of our current or future product candidates do not produce results necessary to support regulatory approval in the U.S., we will be unable to commercialize these products. Several investigational devices in our development pipeline, including our OsseoFix Spinal Fracture Reduction System, and our OsseoScrew System require either a 510(k) with clinical trial data or a PMA from the FDA before we can market such product in the U.S. The clinical trial is required by the FDA to demonstrate to the FDA’s satisfaction the safety and effectiveness of the device for its intended use. As a result, to receive regulatory approval in the U.S. for OsseoFix or OsseoScrew, we must conduct, at our own expense, a clinical trial to demonstrate efficacy and safety in humans. Clinical testing is expensive and has an uncertain outcome. Clinical failure can occur at any stage of the testing. Our clinical trials may produce negative or inconclusive results, and we may decide, or regulators may require us, to conduct additional clinical and/or non-clinical testing. Our failure to adequately demonstrate the efficacy and safety of any of our devices would prevent receipt of regulatory approval and, ultimately, the commercialization of that device. If we choose to acquire new and complementary businesses, products or technologies, we may be unable to complete these acquisitions or successfully integrate them in a cost-effective and non-disruptive manner. Our success depends in part on our ability to continually enhance and broaden our product offering in response to changing customer demands, competitive pressures and technologies and our ability to increase our market share. Accordingly, we have pursued and intend to pursue the acquisition of complementary businesses, products or technologies instead of developing them ourselves. We do not know if we will be able to successfully complete any acquisitions, or whether we will be able to successfully integrate any acquired business, product or technology into our business or retain any key personnel, suppliers or distributors. Our ability to successfully 32 grow through acquisitions depends upon our ability to identify, negotiate, complete and integrate suitable acquisitions and to obtain any necessary financing. These efforts could be expensive and time consuming, disrupt our ongoing business and distract management. If we are unable to integrate any future or recently acquired businesses, products or technologies effectively, our business, financial condition and results of operations will be materially adversely affected. For example, an acquisition could materially impair our operating results by causing us to incur debt or requiring us to amortize significant amounts of expenses, including non-cash acquisition costs, and acquired assets. We may not be able to timely develop new products or product enhancements that will be accepted by the market. We sell our products in a market that is characterized by technological change, product innovation, evolving industry standards, competing patent claims, patent litigation and intense competition. Our success will depend in part on our ability to develop and introduce new products and enhancements or modifications to our existing products, which we will need to do before our competitors do so and in a manner that does not infringe issued patents of third parties from which we do not have a license. We cannot assure you that we will be able to successfully develop or market new, improved or modified products, or that any of our future products will be accepted by even the surgeons who use our current products. Our competitors’ product development capabilities could be more effective than our capabilities, and their new products may get to market before our products. In addition, the products of our competitors may be more effective or less expensive than our products. The introduction of new products by our competitors may lead us to have price reductions, reduced margins or loss of market share and may render our products obsolete or noncompetitive. The success of any of our new product offerings or enhancement or modification to our existing products will depend on several factors, including our ability to: • • • • • • properly identify and anticipate surgeon and patient needs; develop new products or enhancements in a timely manner; obtain the necessary regulatory approvals for new products or product enhancements; provide adequate training to potential users of new products; receive adequate reimbursement approval of third-party payors such as Medicaid, Medicare and private insurers; and develop an effective marketing and distribution network. Developing products in a timely manner can be difficult, in particular because product designs change rapidly to adjust to third-party patent constraints and to market preferences. As a result, we may experience delays in our product launches which may significantly impede our ability to enter or compete in a given market and may reduce the sales that we are able to generate from these products. We may experience delays in any phase of a product launch, including during research and development, clinical trials, manufacturing, marketing and the surgeon training process. In addition, our suppliers of products or components that we do not manufacture can suffer similar delays, which could cause delays in our product introductions. If we do not develop new products or product enhancements in time to meet market demand or if there is insufficient demand for these new products or enhancements, it could have a significant adverse effect on our business financial condition and results of operations. We are dependent on our senior management team, sales and marketing team, engineering team and key surgeon advisors, and the loss of any of them could harm our business. Our continued success depends in part upon the continued availability and contributions of our senior management, sales and marketing team and engineering team and the continued participation of our key surgeon advisors. While we have entered into employment agreements with all members of our senior management team, 33 other than with respect to our President of Alphatec Pacific, none of these agreements guarantees the services of the individual for a specified period of time. We would be adversely affected if we fail to adequately prepare for future turnover of our senior management team. Our ability to grow or at least maintain our sales levels depends in large part on our ability to attract and retain sales and marketing personnel and for these sales people to maintain their relationships with surgeons directly and through our distributors. We rely on our engineering team to research, design and develop potential products for our product pipeline. We also rely on our surgeon advisors to advise us on our products, our product pipeline, long-term scientific planning, research and development and industry trends. We compete for personnel and advisors with other companies and other organizations, many of which are larger and have greater name recognition and financial and other resources than we do. The loss of members of our senior management team, sales and marketing team, engineering team and key surgeon advisors, or our inability to attract or retain other qualified personnel or advisors could have a significant adverse effect on our business, financial conditions and results of operations. We rely on our information technology systems for inventory management, distribution and other functions and to maintain our research and development data. If our information technology systems fail to adequately perform these functions, or if we experience an interruption in their operation, our business, financial condition and results of operations could be adversely affected. The efficient operation of our business is dependent on our information technology systems. We rely on our information technology systems to effectively manage accounting and financial functions; manage order entry, order fulfillment and inventory replenishment processes; and maintain our research and development data. The failure of our information technology systems to perform as we anticipate could disrupt our business and product development and could result in decreased sales, increased overhead costs, excess inventory and product shortages, all of which could have a significant adverse effect on our business, financial condition and results of operations. In addition, our information technology systems are vulnerable to damage or interruption from: • • • • earthquake, fire, flood and other natural disasters; terrorist attacks and attacks by computer viruses or hackers; power loss; and computer systems, or Internet, telecommunications or data network failure. Any such interruption could have significant adverse effect on our business, financial condition and results of operations. The majority of our operations and all of our manufacturing facilities are currently conducted in locations that may be at risk of damage from fire, earthquakes or other natural disasters. If a natural disaster strikes, we may be unable to manufacture certain products for a substantial amount of time. We currently conduct the majority of our development, manufacturing and management activities in Carlsbad, California near known wildfire areas and earthquake fault zones. We have taken precautions to safeguard our facilities, including obtaining property and casualty insurance, and implementing health and safety protocols. We have developed an Information Technology disaster recovery plan. However, any future natural disaster, such as a fire or an earthquake, could cause substantial delays in our operations, damage or destroy our equipment or inventory and cause us to incur additional expenses. A disaster could seriously harm our business, financial condition and results of operations. Our facilities would be difficult to replace and would require substantial lead time to repair or replace. The insurance we maintain against earthquakes, fires, and other natural disasters would not be adequate to cover a total loss of our manufacturing facilities, may not be adequate to cover our losses in any particular case and may not continue to be available to us on acceptable terms, or at all. 34 Alphatec Holdings is a holding company with no operations, and unless it receives dividends or other payments from its subsidiaries, it will be unable to fulfill its cash obligations. As a holding company with no business operations, Alphatec Holdings’ material assets consist only of the common stock of its subsidiaries, including Alphatec Spine and Scient’x, dividends and other payments received from time to time from its subsidiaries, and the proceeds raised from the sale of debt and equity securities. Alphatec Holdings’ subsidiaries are legally distinct from Alphatec Holdings and have no obligation, contingent or otherwise, to make funds available to Alphatec Holdings. Alphatec Holdings will have to rely upon dividends and other payments from its subsidiaries to generate the funds necessary to fulfill its cash obligations. Alphatec Holdings may not be able to access cash generated by its subsidiaries in order to fulfill cash commitments. The ability of Alphatec Spine to make dividend and other payments to Alphatec Holdings is subject to the availability of funds after taking into account its subsidiaries’ funding requirements, the terms of its subsidiaries’ indebtedness and applicable state laws. Compliance with changing regulations and standards for accounting, corporate governance and public disclosure may result in additional expenses. Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002, new SEC regulations, including accelerated SEC filing timelines and new Proxy rules, new NASDAQ Stock Market rules, and new accounting pronouncements are creating uncertainty and additional complexities for companies such as ours. In particular, the Section 404 internal control evaluation requirements under the Sarbanes-Oxley Act have added and will continue to add complexity and costs to our business and require a significant investment of our time and resources to complete each year. We take these requirements seriously and will make every effort to ensure that we receive clean attestations on our internal controls each year from our outside auditors, but there is no guarantee that our efforts to do so will be successful. To maintain high standards of corporate governance and public disclosure, we intend to invest all reasonably necessary resources to comply with all other evolving standards. These investments may result in increased general and administrative expenses and a diversion of management time and attention from strategic revenue generating and cost management activities. If we fail to maintain effective internal controls and procedures for financial reporting, we could be unable to provide timely and accurate financial information and therefore be subject to delisting from The NASDAQ Global Select Market, an investigation by the SEC, and civil or criminal sanctions. Additionally, ineffective internal control over financial reporting would place us at increased risk of fraud or misuse of corporate assets and could cause our stockholders, lenders, suppliers and others to lose confidence in the accuracy or completeness of our financial reports. Risks Related to Our Financial Results and Need for Financing The current global recession and credit crisis could adversely affect our business. The financial and credit crisis that began in 2007 triggered a period of upheaval characterized by bankruptcy, failure, collapse or sale at nominal amounts of various financial institutions. Despite the unprecedented level of intervention in the credit markets by the U.S. and foreign governments that has already occurred and is likely to continue to occur, this crisis could temporarily restrict our ability to borrow money on acceptable terms in the credit markets and potentially could affect our ability to draw on our current credit facility. The financial and credit crisis could make it difficult or, in many cases, impossible for our customers to borrow money to fund their operations. Their lack of or limited access to capital may adversely affect their ability to purchase our products or, in some cases, to pay for our products on a timely basis. Our quarterly financial results could fluctuate significantly. Our quarterly financial results are difficult to predict and may fluctuate significantly from period to period, particularly because our sales prospects are uncertain. The level of our revenues and results of operations at any given time will be based primarily on the following factors: • acceptance of our products by surgeons, patients, hospitals and third-party payors; 35 • • • • • • • • • • demand and pricing of our products; the mix of our products sold, because profit margins differ among our products; timing of new product offerings, acquisitions, licenses or other significant events by us or our competitors; our ability to grow and maintain a productive sales and marketing organization; regulatory approvals and legislative changes affecting the products we may offer or those of our competitors; the effect of competing technological and market developments; levels of third-party reimbursement for our products; interruption in the manufacturing or distribution of our products; our ability to produce or obtain products of satisfactory quality or in sufficient quantities to meet demand; and changes in our ability to obtain FDA, state and international approval or clearance for our products. In addition, until we have a larger base of surgeons using our products, occasional fluctuations in the use of our products by individual surgeons or small groups of surgeons will have a proportionately larger impact on our revenues than for companies with a larger customer base. Many of the products we may seek to develop and introduce in the future will require FDA, state and international approval or clearance. We cannot begin to commercialize any such products in the U.S. without FDA approval or clearance or outside of the U.S. without appropriate regulatory approvals and import licenses. As a result, it will be difficult for us to forecast demand for these products with any degree of certainty. We cannot assure you that our revenue will increase or be sustained in future periods or that we will be profitable in any future period. Any shortfalls in revenue or earnings from levels expected by our stockholders or by securities or industry analysts could have an immediate and significant adverse effect on the trading price of our common stock in any given period. We may need to raise additional funds in the future and such funds may not be available on acceptable terms, if at all. We believe that our current cash and cash equivalents, revenues from our operations, and Alphatec Spine’s ability to draw down on its credit facility, will be sufficient to fund our projected operating requirements through December 31, 2013. Despite this belief, we may seek additional funds from public and private stock offerings, borrowings under new debt facilities or other sources. Our capital requirements will depend on many factors, including: • • • • • • • • the revenues generated by sales of our products; the costs associated with expanding our sales and marketing efforts; the expenses we incur in manufacturing and selling our products; the costs of developing new products or technologies; the cost of obtaining and maintaining FDA or other regulatory approval or clearance for our products and products in development; the number and timing of acquisitions and other strategic transactions; the costs associated with increased capital expenditures; and the costs associated with our employee retention programs and related benefits. 36 As a result of these factors, we may need to raise additional funds and such funds may not be available on favorable terms, if at all. Furthermore, if we issue equity or debt securities to raise additional funds, our existing stockholders may experience dilution and the new equity or debt securities may have rights, preferences and privileges senior to those of our existing stockholders. In addition, if we raise additional funds through collaboration, licensing or other similar arrangements, it may be necessary to relinquish valuable rights to our potential products or proprietary technologies, or to grant licenses on terms that are not favorable to us. If we cannot raise funds on acceptable terms, we may not be able to develop or enhance our products, execute our business plan, take advantage of future opportunities, or respond to competitive pressures or unanticipated customer requirements. Any of these events could adversely affect our ability to achieve our development and commercialization goals and have a significant adverse effect on our business, financial condition and results of operations. We may be unable to comply with the covenants of our credit facility. We must comply with certain affirmative and negative covenants, including financial covenants, in our credit facility with MidCap Financial, LLC, or the Credit Facility. In order to comply with the financial covenants for 2013, we will need to achieve revenue and earnings that exceed our historical revenue and earnings levels. If we are not able to achieve planned revenue or earnings growth or if we incur costs in excess of our forecast, we may be required to substantially reduce discretionary spending and could be in default of the Credit Facility. In addition to financial covenants, the Credit Facility also contains customary affirmative and negative covenants for loan agreements of this type, including, but not limited to, limitations on the incurrence of indebtedness, asset dispositions, acquisitions, investments, dividends and other restricted payments, liens and transactions with affiliates, the breach of which could result in an event of default. There can be no assurance that at all times in the future we will satisfy all such financial or other covenants or obtain any required waiver or amendment, in which event of default the lenders party to the Credit Facility could refuse to make further extensions of credit to us and require all amounts borrowed under the Credit Facility, together with accrued interest and other fees, to be immediately due and payable. In addition to allowing the lenders to accelerate the loan, several events of default under the Credit Facility, such as our failure to make required payments of principal and interest and the occurrence of certain bankruptcy or insolvency events, could require us to pay interest at a rate which is up to five percentage points higher than the interest rate effective immediately before the event of default. An event of default under the Credit Facility could have a material adverse effect on us. Upon an event of default, if the lenders under the Credit Facility accelerate the repayment of all amounts borrowed, together with accrued interest and other fees, or if the lenders elect to charge us additional interest, we cannot assure you that we will have sufficient cash available to repay the amounts due, and we may be forced to seek to amend the terms of the Credit Facility or obtain alternative financing, which may not be available to us on acceptable terms, if at all. In addition, if we fail to pay amounts when due under the Credit Facility or upon the occurrence of another event of default, the lenders under the Credit Facility could proceed against the collateral granted to them pursuant to the Credit Facility. We have granted to the lenders a first priority security interest in substantially all of our assets, including all accounts receivable and all securities evidencing our interests in our subsidiaries, as collateral under the Credit Facility. If the lenders proceed against the collateral, such assets would no longer be available for use in our business, which would have a significant adverse affect our business, financial condition and results of operations. If we default on our obligations to make settlement payments to Cross Medical Products, the amounts due under the settlement agreements accelerates and becomes due and payable. Any default of our payment obligation under the settlement agreements we entered into with Cross Medical Products, or Cross, would give Cross the right to declare all of the future payments to be immediately payable, 37 together with additional payments to cover interest and Cross’ legal fees. As of March 1, 2013, the outstanding amount to be paid to Cross Medical through August 2015 is $10,000,000. If this acceleration of payments occurs, our business, financial condition and results of operations could be materially and adversely affected. Risks Related to Our Intellectual Property Regulatory Penalties and Potential Litigation If our patents and other intellectual property rights do not adequately protect our products, we may lose market share to our competitors and be unable to operate our business profitably. Our success depends significantly on our ability to protect our proprietary rights of the technologies used in our products. We rely on patent protection, as well as a combination of copyright, trade secret and trademark laws, and nondisclosure, confidentiality and other contractual restrictions to protect our proprietary technology. However, these legal means afford only limited protection and may not adequately protect our rights or permit us to gain or keep any competitive advantage. For example, we cannot assure you that any of our pending patent applications will result in the issuance of patents to us. The U.S. Patent and Trademark Office, or PTO, may deny or require significant narrowing of claims in our pending patent applications, and patents issued as a result of the pending patent applications, if any, may not provide us with significant commercial protection or be issued in a form that is advantageous to us. We could also incur substantial costs in proceedings before the PTO. These proceedings could result in adverse decisions as to the priority of our inventions and the narrowing or invalidation of claims in issued patents. Our issued patents and those that may be issued in the future could subsequently be successfully challenged by others and invalidated or rendered unenforceable, which could limit our ability to stop competitors from marketing and selling related products. In addition, our pending patent applications include claims to aspects of our products and procedures that are not currently protected by issued patents. Both the patent application process and the process of managing patent disputes can be time consuming and expensive. Competitors may be able to design around our patents or develop products that provide outcomes that are comparable to our products but fall outside of the scope of our patent protection. Although we have entered into confidentiality agreements and intellectual property assignment agreements with certain of our employees, consultants and advisors as one of the ways we seek to protect our intellectual property and other proprietary technology, such agreements may not be enforceable or may not provide meaningful protection for our trade secrets or other proprietary information in the event of unauthorized use or disclosure or other breaches of the agreements. Furthermore, the laws of some foreign countries may not protect our intellectual property rights to the same extent as the laws of the U.S., if at all. Since most of our issued patents and pending patent applications are for the U.S. only, we lack a corresponding scope of patent protection in other countries, including Japan. Thus, we may not be able to stop a competitor from marketing products in other countries that are similar to some of our products. In the event a competitor infringes upon one of our patents or other intellectual property rights, enforcing those patents and rights may be difficult and time consuming. Even if successful, litigation to defend our patents against challenges or to enforce our intellectual property rights could be expensive and time consuming and could divert management’s attention from managing our business. Moreover, we may not have sufficient resources to defend our patents against challenges or to enforce our intellectual property rights. The medical device industry is characterized by patent and other intellectual property litigation and we could become subject to litigation that could be costly, result in the diversion of management’s time and efforts, require us to pay damages, and/or prevent us from marketing our existing or future products. The medical device industry is characterized by extensive litigation and administrative proceedings over patent and other intellectual property rights. Determining whether a product infringes a patent involves complex legal and factual issues, the determination of which is often uncertain. Our competitors may assert that our products, the components of those products, the methods of using those products, or the methods we employ in 38 manufacturing or processing those products are covered by U.S. or foreign patents held by them. In addition, they may claim that their patents have priority over ours because their patents were filed first. Because patent applications can take many years to issue, there may be applications now pending of which we are unaware, which may later result in issued patents that our products may infringe. There could also be existing patents that one or more components of our products may be inadvertently infringing, of which we are unaware. As the number of participants in the market for spine disorder devices and treatments increases, the possibility of patent infringement claims against us also increases. Any such claim against us, even those without merit, may cause us to incur substantial costs, and could place a significant strain on our financial resources, divert the attention of management from our core business and harm our reputation. If the relevant patents were upheld as valid and enforceable and we were found to infringe, we could be required to pay substantial damages, including treble, or triple, damages if an infringement is found to be willful, and/or royalties and we could be prevented from selling our products unless we could obtain a license or were able to redesign our products to avoid infringement. Any such license may not be available on reasonable terms, if at all, and there can be no assurance that we would be able to redesign our products in a way that would not infringe those patents. If we fail to obtain any required licenses or make any necessary changes to our products or technologies, we may have to withdraw existing products from the market or may be unable to commercialize one or more of our products, either of which could have a significant adverse effect on our business, financial condition and results of operations. In addition, in order to further our product development efforts, from time to time we enter into agreements with surgeons to develop new products. As consideration for product development activities rendered pursuant to these agreements, in certain instances we have agreed to pay such surgeons royalties on products developed by cooperative involvement between us and such surgeons. There can be no assurance that surgeons with whom we have entered into such an arrangement will not claim to be entitled to a royalty even if we do not believe that such products were developed by cooperative involvement between us and such surgeons. Any such claim against us, even those without merit, may cause us to incur substantial costs, and could place a significant strain on our financial resources, divert the attention of management from our core business and harm our reputation. If we become subject to product liability claims, we may be required to pay damages that exceed our insurance coverage. Our business exposes us to potential product liability claims that are inherent in the testing, design, manufacture and sale of medical devices for spine surgery procedures. Spine surgery involves significant risk of serious complications, including bleeding, nerve injury, paralysis and even death. To date, our products have not been the subject of any material product liability claims. Currently, we carry product liability insurance in the amount of $10 million per occurrence and $10 million in the aggregate. Our existing product liability insurance coverage may be inadequate to satisfy liabilities we might incur. Any product liability claim brought against us, with or without merit, could result in the increase of our product liability insurance rates or our inability to secure coverage in the future on commercially reasonable terms, if at all. In addition, if our product liability insurance proves to be inadequate to pay a damage award, we may have to pay the excess out of our cash reserves, which could harm our financial condition. If longer-term patient results and experience indicate that our products or any component of our products cause tissue damage, motor impairment or other adverse effects, we could be subject to significant liability. Even a meritless or unsuccessful product liability claim could harm our reputation in the industry, lead to significant legal fees and result in the diversion of management’s attention from managing our business. If a product liability claim or series of claims is brought against us in excess of our insurance coverage limits, our business could suffer and our financial condition, results of operations and cash flow could be materially adversely impacted. 39 Because biologics products entail a potential risk of communicable disease to human recipients, we may be the subject of product liability claims regarding our biologics products. Our biologics products may expose us to additional potential product liability claims. The development of biologics products entails a risk of additional product liability claims because of the risk of transmitting disease to human recipients, and substantial product liability claims may be asserted against us. In addition, successful product liability claims made against one of our competitors could cause claims to be made against us or expose us to a perception that we are vulnerable to similar claims. Even a meritless or unsuccessful product liability claim could harm our reputation in the industry, lead to significant legal fees and result in the diversion of management’s attention from managing our business. Any claims relating to our improper handling, storage or disposal of biological, hazardous and radioactive materials could be time consuming and costly. The manufacture of certain of our products, including our biologics products, involves the controlled use of biological, hazardous and/or radioactive materials and waste. Our business and facilities and those of our suppliers are subject to foreign, federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of these hazardous materials and waste products. Although we believe that our safety procedures for handling and disposing of these materials comply with legally prescribed standards, we cannot completely eliminate the risk of accidental contamination or injury from these materials. In the event of an accident, we could be held liable for damages or penalized with fines. This liability could exceed our resources and any applicable insurance. In addition, under some environmental laws and regulations, we could also be held responsible for all of the costs relating to any contamination at our past or present facilities and at third-party waste disposal sites, even if such contamination was not caused by us. We may incur significant expenses in the future relating to any failure to comply with environmental laws. Any such future expenses or liability could have a significant negative impact on our business, financial condition and results of operations. We may be subject to damages resulting from claims that we, our employees or our independent distributors have wrongfully used or disclosed alleged trade secrets of our competitors or are in breach of non-competition or non-solicitation agreements with our competitors. Many of our employees were previously employed at other medical device companies, including our competitors or potential competitors. Many of our independent distributors sell, or in the past have sold, products of our competitors. We may be subject to claims that we, our employees or our independent distributors have inadvertently or otherwise used or disclosed the trade secrets or other proprietary information of our competitors. In addition, we have been and may in the future be subject to claims that we caused an employee or independent distributor to break the terms of his or her non-competition agreement or non-solicitation agreement. Litigation may be necessary to defend against such claims. Even if we are successful in defending against such claims, litigation could result in substantial costs and be a distraction to management. If we fail in defending such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights and/or personnel. A loss of key personnel and/or their work product could hamper or prevent our ability to commercialize products, which could have an adverse effect on our business, financial condition and results of operations. Scient’x was named as a defendant in a qui tam complaint, and despite the fact that the matter was dismissed without prejudice, the government continues to review the allegations raised in the complaint. On August 13, 2009, a complaint filed under the qui tam provisions of the Federal False Claims Act, or the FCA, that had been filed by private parties against Scient’x’s subsidiary, Scient’x USA, Inc., or Scient’x USA, was unsealed by the United States District Court for the Middle District of Florida (Hudak v. Scient’x USA, Inc., et al. (Civil Action No. 6:08-cv-1556-Orl-22DAB, U.S. District Court, W.D. Florida). Such complaint alleged violations of the FCA arising from allegations that Scient’x USA engaged in improper activities related to consulting payments to surgeon customers. Under the FCA, the United States Department of Justice, Civil 40 Division, or DOJ, had a certain period of time in which to decide whether to intervene and conduct the action against Scient’x USA, or to decline to intervene and allow the private plaintiffs to proceed with the case. On August 7, 2009, the DOJ filed a notice informing the court that it was declining to intervene in the case. On December 4, 2009, the private plaintiffs who filed the action moved the court to dismiss the matter without prejudice and the Attorney General consented to such dismissal on December 14, 2009. The matter was dismissed without prejudice on December 15, 2009. Despite the dismissal of this matter, the DOJ is continuing its review of the facts alleged by the original plaintiffs in this matter. Scient’x USA believes that its business practices were in compliance with the FCA and intends to vigorously defend itself with respect to the allegations contained in the qui tam complaint if further litigation is instituted. To date, Scient’x USA has not been subpoenaed by any governmental agency in connection with the governmental review. The ultimate outcome of any governmental review is difficult to estimate. A negative outcome of a governmental review is likely to have a material effect on the combined business’s cash flows, results of operations and financial position. We, certain of our directors and one of our affiliates has been named as a defendant in a litigation matter initiated by Orthotec, LLC, the result of which is uncertain. In 1998, Eurosurgical, a French company in the business of sales and marketing of spinal implants, entered into a distribution agreement for the United States, Mexico, Canada, India and Australia with Orthotec, LLC, a California company, or Orthotec. In 2004, Orthotec sued Eurosurgical in connection with a contractual dispute and a $9 million judgment was entered against Eurosurgical by a California court. At the same time, a federal court in California declared Eurosurgical liable to Orthotec for $30 million in connection with an intellectual property dispute. In 2006, Eurosurgical’s European assets were ultimately acquired by Surgiview, SAS, or Surgiview, in a sale agreement approved by a French court. Pursuant to this sale, Surgiview became a subsidiary of Scient’x in 2006. Orthotec attempted to recover on Eurosurgical’s obligations in California and federal courts by filing a motion in a California court to add Surgiview to the judgment against Eurosurgical on theories including successor liability and fraudulent conveyance. In February 2007, the California court denied Orthotec’s motion, indicating that Orthotec had not carried its burdens of proof. Orthotec chose to not proceed with a further hearing in September 2007. In May 2008, after the acquisition of Scient’x by HealthpointCapital in 2007, Orthotec sued Scient’x, Surgiview, HealthpointCapital and certain Scient’x former directors (who also serve on our board) in a new action in California state court. In addition, at the same time, a similar action was filed in New York against HealthpointCapital and two former directors of Scient’x (who also serve on our board). In April 2009, the California court dismissed this matter on jurisdictional grounds, and Orthotec appealed such ruling. In December 2010, the California Court of Appeal issued a decision that affirmed in part and reversed in part the trial court’s decision dismissing the entire California action based on lack of personal jurisdiction. The Court of Appeal affirmed the trial court’s ruling that Orthotec failed to establish personal jurisdiction over all parties except Surgiview, finding that the trial court could exercise jurisdiction over that entity. In November 2009, the New York court dismissed Orthotec’s claims based on collateral estoppel, and Orthotec appealed this ruling. In March 2011, the state appeals court in New York reversed the lower court’s decision to dismiss Orthotec’s claims, and the New York matter is proceeding with HealthpointCapital and certain former Scient’x directors (who also serve on our board) as the only defendants. While we intend to vigorously defend against the complaint, and believe that the plaintiff’s allegations are without merit, the outcome of the litigation cannot be predicted at this time and any outcome in favor of Orthotec, regardless of who the defendant is, could have a significant adverse effect on our financial condition and results of operations. We, certain of our directors and officers and HealthpointCapital have been named as a defendant in two related litigation matters, the result of which is uncertain. On August 10, 2010, a purported securities class action complaint was filed in the United States District Court for the Southern District of California on behalf of all persons who purchased the our common stock between December 19, 2009 and August 5, 2010 against us and certain of our directors and officers alleging 41 violations of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. On February 17, 2011, an amended complaint was filed against us and certain of its directors and officers adding alleged violations of the Securities Act of 1933. HealthpointCapital, Jefferies & Company, Inc., Canaccord Adams, Inc., Cowen and Company, Inc., and Lazard Capital Markets LLC are also defendants in this action. The complaint alleges that the defendants made false or misleading statements, as well as failed to disclose material facts, about the Company’s business, financial condition, operations and prospects, particularly relating to the Scient’x transaction and our financial guidance following the closing of the acquisition. The complaint seeks unspecified monetary damages, attorneys’ fees, and other unspecified relief. We believe that the claims are without merit and we intend to vigorously defend ourself against this complaint. However, the outcome of the litigation cannot be predicted at this time and any outcome that is adverse to us, regardless of who the defendant is, could have a significant adverse effect on our financial condition and results of operations. On August 25, 2010, an alleged shareholder of our filed a derivative lawsuit in the Superior Court of California, San Diego County, purporting to assert claims on behalf of us against all of our directors, certain of our officers and HealthpointCapital. Following the filing of this complaint, similar complaints were filed in the same court and in the U.S. District Court for the Southern District of California against the same defendants containing similar allegations. The complaint filed in federal court was dismissed by the plaintiff without prejudice in July 2011. The state court complaints have been consolidated into a single action. We have been named as a nominal defendant in the consolidated action. Each complaint alleges that our directors and certain of its officers breached their fiduciary duties to us related to the Scient’x transaction, and by making allegedly false statements that led to unjust enrichment of HealthpointCapital and certain of our directors. The complaints seek unspecified monetary damages and an order directing us to adopt certain measures purportedly designed to improve its corporate governance and internal procedures. This consolidated lawsuit has been stayed by order of the court until May 10, 2013. We believe that the claims are without merit and we intend to vigorously defend ourself against this complaint; however, the outcome of the litigation cannot be predicted at this time and any outcome that is adverse to us, regardless of who the defendant is, could have a significant adverse effect on our financial condition and results of operations. Risks Related to Our Common Stock We expect that the price of our common stock will fluctuate substantially and the market price of our common stock may decline in value in the future. The market price of our common stock is likely to be highly volatile and may fluctuate substantially due to many factors, including: • • • • • • • • • • volume and timing of orders for our products; quarterly variations in our or our competitors’ results of operations; our announcement or our competitors’ announcements regarding new products, product enhancements, significant contracts, number of distributors, number of hospitals and surgeons using products, acquisitions or strategic investments; announcements of technological or medical innovations for the treatment of spine pathology; changes in earnings estimates or recommendations by securities analysts; our ability to develop, obtain regulatory clearance or approval for, and market new and enhanced products on a timely basis; changes in healthcare policy in the U.S. and internationally; product liability claims or other litigation involving us; sales of large blocks of our common stock, including sales by our executive officers, directors and significant stockholders; changes in governmental regulations or in the status of our regulatory approvals, clearances or applications; 42 • • • • disputes or other developments with respect to intellectual property rights; changes in the availability of third-party reimbursement in the U.S. or other countries; changes in accounting principles; and general market conditions and other factors, including factors unrelated to our operating performance or the operating performance of our competitors. We and certain of our current officers and directors have been named as defendants in litigation that could result in substantial costs, divert management’s attention and otherwise result in dilution to our stockholders. We and certain of our current directors and former executive officers, have been sued for alleged violations of federal securities laws related to alleged false and misleading statements and breaches of fiduciary duties in connection with our acquisition of Scient’x, and the completion of the public offering that took place in April 2010. Currently there is a shareholder derivative litigations pending and one federal securities class action litigation pending. We have been engaged in a vigorous defense of such claims. If we are not successful in our defense of such claims, we may have to pay damages awards or otherwise enter into settlement arrangements in connection with such other lawsuits. Any such payments or settlement arrangements could have a material adverse effect on our business, operating results or financial condition. Even if the pending claims are not successful, the litigations could result in substantial costs and a significant adverse impact on our reputation and divert management’s attention and resources, which could have a material adverse effect on our business, operating results or financial condition. We may become involved in additional securities class action litigation that could divert management’s attention and harm our business. The stock market in general, and The NASDAQ Global Select Market and the market for medical device companies in particular, has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Further, the market prices of securities of medical device companies have been particularly volatile. In the past, following periods of volatility in the market price of a particular company’s securities, securities class action litigation has often been brought against that company. We may become involved in this type of litigation in the future. Litigation is often expensive and diverts management’s attention and resources, which could materially harm our financial condition, results of operations and business. Securities analysts may not continue to provide coverage of our common stock or may issue negative reports, which may have a negative impact on the market price of our common stock. Securities analysts may not continue to provide research coverage of our common stock. If securities analysts do not cover our common stock, the lack of research coverage may cause the market price of our common stock to decline. The trading market for our common stock may be affected in part by the research and reports that industry or financial analysts publish about our business. If one or more of the analysts who elects to cover us downgrades our stock, our stock price would likely decline rapidly. If one or more of these analysts ceases coverage of us, we could lose visibility in the market, which in turn could cause our stock price to decline. In addition, rules mandated by the Sarbanes-Oxley Act and a global settlement reached in 2003 between the SEC, other regulatory agencies and a number of investment banks have led to a number of fundamental changes in how analysts are reviewed and compensated. In particular, many investment banking firms are required to contract with independent financial analysts for their stock research. It may be difficult for companies such as ours, with smaller market capitalizations, to attract independent financial analysts that will cover our common stock. This could have a negative effect on the market price of our stock. Because of their significant stock ownership, our executive officers, directors and principal stockholders will be able to exert control over us and our significant corporate decisions. Based on shares outstanding at February 28, 2013, our executive officers, directors and stockholders holding more than 5% of our outstanding common stock and their affiliates, in the aggregate, beneficially own approximately 30% of our outstanding common stock. As a result, these persons will have the ability to impact significantly the outcome of all matters requiring stockholder approval, including the election and removal of directors and any merger, consolidation, or sale of all or substantially all of our assets. 43 This concentration of ownership may harm the market price of our common stock by, among other things: • • • • delaying, deferring or preventing our change in control; impeding a merger, consolidation, takeover or other business combination involving us; causing us to enter into transactions or agreements that are not in the best interests of all of our stockholders; or reducing our public float held by non-affiliates. Certain members of our Board of Directors also serve as officers and directors of HealthpointCapital, its affiliates and other portfolio companies. Four members of our Board of Directors also serve as officers and directors of our largest stockholder, HealthpointCapital, or its related entities and of other companies in which HealthpointCapital invests, including companies with which we compete or may in the future compete. As of February 28, 2013, HealthpointCapital owned approximately 30% of our outstanding common stock. The Chairman of our Executive Committee of our Board of Directors, Mortimer Berkowitz III, is a managing member of HGP, LLC and HGP II, LLC, the general partners of HealthpointCapital Partners, LP and HealthpointCapital Partners II, LP, respectively. John H. Foster, a member of our Board of Directors, is a managing member of HGP, LLC and HGP II, LLC and the Chairman, Chief Executive Officer, a member of the Board of Managers and a Managing Director of HealthpointCapital, LLC. Our directors R. Ian Molson and Stephen E. O’Neil also serve on the board of managers of HealthpointCapital, LLC. In addition, Messrs. Berkowitz, Foster, O’Neil, Molson, and two other directors, Messrs. Rohit Desai and James Glynn also have financial interests in HealthpointCapital investment funds. Because of these possible conflicts of interest, such directors may direct potential business and investment opportunities to other entities rather than to us or such directors may undertake or otherwise engage in activities or conduct on behalf of such other entities that is not in, or which may be adverse to, our best interests. Whether a director directs an opportunity to us or to another company, our directors may face claims of breaches of fiduciary duty and other duties relating to such opportunities. Our amended and restated certificate of incorporation requires us to indemnify our directors to the fullest extent permitted by law, which may require us to indemnify them against claims of breaches of such duties arising from their service on our Board of Directors. HealthpointCapital or its affiliates may pursue acquisition opportunities that may be complementary to our business and, as a result, those acquisition opportunities may not be available to us. Furthermore, HealthpointCapital may have an interest in us pursuing acquisitions, divestitures, financings or other transactions that, in its judgment, could enhance its equity investment, even though such transactions might involve risks to us and our stockholders generally. In addition, if we were to seek a business combination with a target business with which one or more of our existing stockholders or directors may be affiliated, conflicts of interest could arise in connection with negotiating the terms of and completing the business combination. Conflicts that may arise may not be resolved in our favor. Anti-takeover provisions in our organizational documents and change of control provisions in some of our employment agreements and agreements with distributors, and in some of our outstanding debt agreements, as well as the terms of our redeemable preferred stock, may discourage or prevent a change of control, even if an acquisition would be beneficial to our stockholders, which could affect our stock price adversely. Certain provisions of our amended and restated certificate of incorporation and restated by-laws could discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which our stockholders might otherwise receive a premium for their shares. These provisions also could limit the price that investors might be willing to pay in the future for shares of our common stock, thereby depressing the market price of our common stock. Stockholders who wish to participate in these transactions may not have the opportunity to do so. Furthermore, these provisions could prevent or frustrate attempts by our stockholders to replace or remove our management. These provisions: • • allow the authorized number of directors to be changed only by resolution of our Board of Directors; allow vacancies on our Board of Directors to be filled only by resolution of our Board of Directors; 44 • • • • authorize our Board of Directors to issue, without stockholder approval, blank check preferred stock that, if issued, could operate as a “poison pill” to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that is not approved by our Board of Directors; require that stockholder actions must be effected at a duly called stockholder meeting and prohibit stockholder action by written consent; establish advance notice requirements for stockholder nominations to our Board of Directors and for stockholder proposals that can be acted on at stockholder meetings; and limit who may call stockholder meetings. Some of our employment agreements and all of our restricted stock agreements and incentive stock option agreements provide for accelerated vesting of benefits, including full vesting of restricted stock and options, upon a change of control. A limited number of our agreements with our distributors include a provision that extends the term of the distribution agreement upon a change in control and makes it more difficult for us or our successor to terminate the agreement. These provisions may discourage or prevent a change of control. In addition, in the event of a change of control, we would be required to redeem all outstanding shares of our redeemable preferred stock for an aggregate of $29.9 million, at the price of $9.00 per share. Further, our amended and restated certificate of incorporation permits us to issue additional shares of preferred stock. The terms of our redeemable preferred stock or any new preferred stock we may issue could have the effect of delaying, deterring or preventing a change in control. SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS This Annual Report on Form 10-K and, in particular, the description of our Business set forth in Item 1, the Risk Factors set forth in this Item 1A and our Management’s Discussion and Analysis of Financial Condition and Results of Operations set forth in Item 7 contain or incorporate a number of forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act, including statements regarding: • • • • • • • • • • our estimates regarding anticipated operating losses, future revenue, expenses, capital requirements, and liquidity, including our anticipated revenue growth and cost savings our ability to market, commercialize and achieve market acceptance of any of our products or any product candidates that we are developing or may develop in the future; our ability to successfully integrate, and realize benefits from acquisitions, including the benefits of the Phygen acquisition our ability to successfully achieve and maintain regulatory clearance or approval for our products in applicable jurisdictions; the effect of any existing or future federal, state or international regulations on our ability to effectively conduct our business; our estimates of market sizes and anticipated uses of our products, including without limitation the market size of the aging spine market and our ability to successfully penetrate such market; our business strategy and our underlying assumptions about market data, demographic trends, reimbursement trends, pricing trends, and trends relating to customer collections; trends related to the treatment of spine disorders, including without limitation the aging spine market; our ability to control our costs, achieve profitability, and the potential need to raise additional funding; the amount of our legal expenses associated with the securities and stockholder derivative litigation, litigation regarding our intellectual property and any future litigation that may arise, and the adequacy of our 45 insurance policy coverage regarding those expenses and any damages or settlement payments related to such litigation; our ability to maintain an adequate sales network for our products, including to attract and retain independent distributors; our ability to enhance our U.S. and international sales networks and product penetration; the difficulty in accurately predicting the future purchases of our stocking distributors; our ability to attract and retain a qualified management team, as well as other qualified personnel and advisors; our ability to enter into licensing and business combination agreements with third parties and to successfully integrate the acquired technology and/or businesses; our management team’s ability to accommodate growth and manage a larger organization; our ability to protect our intellectual property, and to not infringe upon the intellectual property of third parties; our ability to maintain compliance with the quality requirements of the FDA and similar regulatory authorities outside of the U.S.; our ability to meet the financial covenants under our credit facilities; our ability to obtain alternative financing, if needed; our ability to conclude that we have effective disclosure controls and procedures; our ability to establish the industry standard in clinical and legal compliance and corporate governance programs; the effects of the loss of key personnel; potential liability resulting from litigation; potential liability resulting from a governmental review of our or Scient’x’s business practices; and other factors discussed elsewhere in this Annual Report on Form 10-K or any document incorporated by reference herein or therein. • • • • • • • • • • • • • • • • Any or all of our forward-looking statements in this Annual Report may turn out to be wrong. They can be affected by inaccurate assumptions by known or unknown risks and uncertainties. Many factors mentioned in our discussion in this Annual Report on Form 10-K will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may vary materially from expected results. We also provide a cautionary discussion of risks and uncertainties under “Risk Factors” in Item 1A of this Annual Report. These are factors that we think could cause our actual results to differ materially from expected results. Other factors besides those listed there could also adversely affect us. Without limiting the foregoing, the words “believes,” “anticipates,” “plans,” “expects” and similar expressions are intended to identify forward-looking statements. There are a number of factors and uncertainties that could cause actual events or results to differ materially from those indicated by such forward-looking statements, many of which are beyond our control, including the factors set forth under “Item 1A—Risk Factors.” In addition, the forward-looking statements contained herein represent our estimate only as of the date of this filing and should not be relied upon as representing our estimate as of any subsequent date. While we may elect to update these forward-looking statements at some point in the future, we specifically disclaim any obligation to do so to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking statements. 46 Item 1B. Unresolved Staff Comments We have not received from the Securities and exchange Commission any written comments that have not been resolved regarding our filings under the Exchange Act. Item 2. Properties Our corporate office and manufacturing facilities are located in Carlsbad, California. Certain of Scient’x’s operations are conducted in Beaurains, France. The table below provides selected information regarding our current material operating leased locations. Use Approximate Square Footage Lease Expiration Corporate headquarters and product design 76,693 January 2016 Product design and manufacturing Administration, manufacturing and distribution 73,480 35,400 January 2017 December 2013 Location Carlsbad, California Carlsbad, California Beaurains, France Item 3. Legal Proceedings Litigation In 1998, Eurosurgical, a French company in the business of sales and marketing of spinal implants, entered into a distribution agreement for the United States, Mexico, Canada, India and Australia with Orthotec, LLC, a California company, or Orthotec. In 2004, Orthotec sued Eurosurgical in connection with a contractual dispute and a $9 million judgment was entered against Eurosurgical by a California court in 2006. In 2007, a federal court in California declared Eurosurgical liable to Orthotec for $30 million in connection with an intellectual property dispute. In 2006, Eurosurgical’s European assets were ultimately acquired by Surgiview, SAS, or Surgiview, in a sale agreement approved by a French court. Pursuant to this sale, Surgiview became a subsidiary of Scient’x in 2006. Orthotec attempted to recover on Eurosurgical’s obligations by filing a motion in a California court to add Surgiview to the judgment against Eurosurgical on theories including successor liability and fraudulent conveyance. In February 2007, the California court denied Orthotec’s motion, indicating that Orthotec had not carried its burdens of proof. Orthotec chose to not proceed with a further hearing in September 2007. In May 2008, after the acquisition of Scient’x by HealthpointCapital in 2007, Orthotec sued Scient’x, Surgiview, HealthpointCapital and certain former directors of Scient’x (who also serve on our board) in a new action in California state court in which it sought, among other things, to have the defendant’s bear responsibility for the $39 million in judgments that had been assessed against Eurosurgical. In April 2009, the California court dismissed this matter on jurisdictional grounds, and Orthotec appealed the ruling. In December 2010, the California Court of Appeal issued a decision that affirmed in part and reversed in part the trial court’s decision dismissing the entire California action based on lack of personal jurisdiction. The Court of Appeal affirmed the trial court’s ruling that Orthotec failed to establish personal jurisdiction over all parties except Surgiview, finding that the trial court could exercise jurisdiction over that entity. In January 2012, OrthoTec amended its complaint and added us as a defendant to the California matter. We filed a motion for summary judgment in November 2012 that is fully briefed and the parties are awaiting a decision. The case is currently scheduled for trial in March 2013. In addition, also in May 2008, a similar action was filed in New York against HealthpointCapital, Scient’x and two former directors of Scient’x (who also serve on our board), in which Orthotec sought, among other things, to have the defendant’s bear responsibility for the $39 million in judgments that had been assessed against Eurosurgical. In July 2009, Orthotec voluntarily dismissed Scient’x from the action. In November 2009, the court dismissed Orthotec’s claims based on collateral estoppel, and Orthotec appealed this ruling. In March 2011, the 47 state appeals court reversed the lower court’s decision to dismiss Orthotec’s claims. The New York matter then proceeded with discovery, and the defendants filed a motion for summary judgment in December 2012, which is currently being briefed by the parties. Additionally, the defendants filed a motion to dismiss one of the plaintiff’s claims based upon Orthotec’s spoliation of evidence, which motion was denied, and that denial is currently on appeal. Since March 2010 we have been indemnifying HealthpointCapital and the two former directors of Scient’x in connection with the New York matter. While we intend to vigorously defend against these actions, and believes that the plaintiff’s allegations are without merit, the outcome of the litigations cannot be predicted at this time and any outcome in favor of Orthotec, regardless of who the defendant is, could have a significant adverse effect on out financial condition and results of operations. On August 25, 2010, an alleged shareholder of the Company’s filed a derivative lawsuit in the Superior Court of California, San Diego County, purporting to assert claims on behalf of the Company against all of its directors and certain of its officers and HealthpointCapital. Following the filing of this complaint, similar complaints were filed in the same court and in the U.S. District Court for the Southern District of California against the same defendants containing similar allegations. The complaint filed in Federal court was dismissed by the plaintiff without prejudice in July 2011. The state court complaints have been consolidated into a single action. The Company has been named as a nominal defendant in the consolidated action. Each complaint alleges that the Company’s directors and certain of its officers breached their fiduciary duties to the Company related to the Scient’x transaction, and by making allegedly false statements that led to unjust enrichment of HealthpointCapital and certain of the Company’s directors. The complaints seek unspecified monetary damages and an order directing the Company to adopt certain measures purportedly designed to improve its corporate governance and internal procedures. This consolidated lawsuit has been stayed by order of the court until May 10, 2013. The Company believes the claims are without merit and intends to vigorously defend itself against these complaints; however no assurances can be given as to the timing or outcome of this lawsuit. At December 31, 2012, the probable outcome of any of the aforementioned litigation matters cannot be determined nor can the Company estimate a range of potential loss. Accordingly, in accordance with the authoritative guidance on the evaluation of contingencies, the Company has not recorded an accrual related to these litigation matters. The Company is and may become involved in various other legal proceedings arising from its business activities. While management does not believe the ultimate disposition of these matters will have a material adverse impact on the Company’s consolidated results of operations, cash flows or financial position, litigation is inherently unpredictable, and depending on the nature and timing of these proceedings, an unfavorable resolution could materially affect the Company’s future consolidated results of operations, cash flows or financial position in a particular period. Item 4. Mine Safety Disclosures Not applicable 48 Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of PART II Equity Securities Market Information Our common stock is traded on The NASDAQ Global Select Market under the symbol “ATEC.” The following table sets forth the high and low sales prices for our common stock as reported on The NASDAQ Global Select Market for the periods indicated. Year Ended December 31, 2012 First quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Third quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fourth quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Year Ended December 31, 2011 First quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Third quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fourth quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . High $2.42 2.42 1.85 1.98 High $2.95 3.91 3.87 2.42 Low $1.56 1.55 1.50 1.41 Low $2.33 2.64 1.99 1.38 Stockholders As of February 28, 2013, there were approximately 309 holders of record of an aggregate 96,704,666 shares of our common stock. Dividend Policy We have never declared or paid cash dividends on our capital stock. We currently intend to retain all available funds and any future earnings for use in the operation and expansion of our business and do not anticipate paying any cash dividends in the foreseeable future. Sales of Unregistered Securities In October 2012, we entered into a consulting agreement with a third-party entity for marketing and advertising services. In connection with this agreement, on November 1, 2012 we issued 176,000 unregistered shares of our common stock, par value $0.0001 per share, or the Stock Consideration. We did not receive any cash proceeds from the issuance of the Stock Consideration. The Stock Consideration was issued in reliance upon an exemption from registration under federal securities laws provided by Section 4(2) of the Securities Act, for the issuance and exchange of securities in transactions by an issuer not involving a public offering. We do not have an obligation, nor does it anticipate, registering the Stock Consideration for resale on a registration statement pursuant to the Securities Act. Issuer Purchases of Equity Securities Under the terms of our Amended and Restated 2005 Employee, Director and Consultant Stock Plan, or the Stock Plan, we may award shares of restricted stock to our employees, directors and consultants. These shares of restricted stock are subject to a lapsing right of repurchase by us. We may exercise this right of repurchase in the event that a restricted stock recipient’s employment, directorship or consulting relationship with us terminates prior to the end of the vesting period. If we exercise this right, we are required to repay the purchase price paid by or on behalf of the recipient for the repurchased restricted shares. Repurchased shares are returned to the Stock Plan and are available for future awards under the terms of the Stock Plan. Common shares repurchased during the quarter ended December 31, 2012 were as follows: Period October 2012 . . . . . . . . . . . . . . November 2012 . . . . . . . . . . . . December 2012 . . . . . . . . . . . . Total Number of Shares Purchased (1) — — — Average Price Paid per Share $— $— $— 49 Total Number of Shares Purchased as part of Publicly Announced Plans or Programs — — — Maximum Number of Shares that may Yet be Purchased Under Plans or Programs — — — (1) Not included in the table above are 11,566 shares of common stock forfeited and retired in connection with the payment of minimum statutory withholding taxes due upon the vesting of certain stock awards or the exercise of certain stock options. In lieu of making a cash payment with respect to such withholding taxes, the holders of such stock forfeited a number of shares at the then current fair market value to pay such taxes. Item 6. Selected Financial Data The following table sets forth consolidated financial data with respect to the Company for each of the five years in the period ended December 31, 2012. The selected consolidated financial data set forth below have been derived from our audited consolidated financial statements, and may not be indicative of future operating results. The results of operations for the year ended December 31, 2010 do not include the results of Scient’x for the first quarter 2010 as the acquisition closed on March 26, 2010. The selected consolidated financial data set forth below should be read in conjunction with our audited consolidated financial statements and related notes thereto found at “Item 8—Financial Statements and Supplementary Data” and “Item 7—Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this Annual Report on Form 10-K. Year Ended December 31, 2012 2011 2010 2009 2008 (in thousands, except per share amounts) Consolidated Statement of Operations Data: Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operating loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss from continuing operations . . . . . . . . . . . . . . . . . Income from discontinued operations . . . . . . . . . . . . .. $196,278 (9,837) (15,459) $197,711 (24,516) (22,181) $171,610 (11,789) (14,433) — — 78 $120,618 (10,185) (13,505) 216 $ 92,181 (28,419) (29,688) 400 Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (15,459) $ (22,181) $ (14,355) $ (13,289) $(29,288) Net loss per common share: Basic and diluted . . . . . . . . . . . . . . . . . . . . . . . . . . $ (0.17) $ (0.25) $ (0.18) $ (0.27) $ (0.63) Weighted-average shares used in computing net loss per share: Basic and diluted . . . . . . . . . . . . . . . . . . . . . . . . . . 90,218 88,798 78,590 49,292 46,290 As of December 31, 2012 2011 2010 2009 2008 (in thousands) Consolidated Balance Sheet Data: Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Working capital Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Long-term debt, less current portion . . . . . . . . . . . . . . Redeemable preferred stock . . . . . . . . . . . . . . . . . . . . . Total stockholders’ equity . . . . . . . . . . . . . . . . . . . . . . $ 22,241 65,264 382,127 39,967 23,603 245,816 $ 20,666 59,292 366,692 23,802 23,603 245,328 $ 23,168 79,233 377,016 32,474 23,603 266,434 $ 10,085 29,543 161,888 23,631 23,603 74,829 $ 18,315 34,299 155,548 26,488 23,605 71,469 50 Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations Our management’s discussion and analysis of our financial condition and results of operations include the identification of certain trends and other statements that may predict or anticipate future business or financial results that are subject to important factors that could cause our actual results to differ materially from those indicated. See “Item 1A -Risk Factors” included elsewhere in this Annual Report on Form 10-K. Overview We are a medical technology company focused on the design, development, manufacturing and marketing of products for the surgical treatment of spine disorders. We have a comprehensive product portfolio and pipeline that addresses the cervical, thoracolumbar and intervertebral regions of the spine and covers a variety of major spinal disorders and surgical procedures. Our principal product offerings are focused on the global market for orthopedic spinal disorder solutions. Our “surgeons’ culture” enables us to respond to the changing needs of surgeons through collaboration with spinal surgeons to conceptualize, design and co-develop a broad range of products. We have a state-of-the-art, in-house manufacturing facility that provides us with a unique competitive advantage, and enables us to rapidly deliver solutions to meet the critical needs of surgeons’ and patients’. We believe that our products and systems have enhanced features and benefits that make them attractive to surgeons and that our broad portfolio of products and systems provide a comprehensive solution for the safe and successful surgical treatment of spinal disorders. Revenue and Expense Components The following is a description of the primary components of our revenues and expenses: Revenues. We derive our revenues primarily from the sale of spinal surgery implants used in the treatment of spine disorders. Spinal implant products include spine screws and complementary products, vertebral body replacement devices, plates, products to treat vertebral compression fractures and bone grafting materials. Our revenues are generated by our direct sales force and independent distributors. Our products are requested directly by surgeons and shipped and billed to hospitals and surgical centers. In general, except for those countries where we have a direct sales force (U.S., Japan, France, Italy, and the United Kingdom), we use independent distributors that purchase our products and market them to surgeons. A majority of our business is conducted with customers within markets in which we have experience and with payment terms that are customary to our business. If we offer payment terms greater than our customary business terms or begin operating in a new market, revenues are deferred until the sooner of when payments become due or cash is received from the related distributors. Cost of revenues. Cost of revenues consists of direct product costs, royalties, milestones, depreciation of our surgical instruments, and the amortization of purchased intangibles. We manufacture substantially all of the non- tissue-based implants that we sell. Our product costs consist primarily of direct labor, manufacturing overhead, and raw materials and components. The product costs of certain of our biologics products include the cost of procuring and processing human tissue. We incur royalties related to the technologies that we license from others and the products that are developed in part by surgeons with whom we collaborate in the product development process. Amortization of purchased intangibles consists of amortization of developed product technology. Research and development expense. Research and development expense consists of costs associated with the design, development, testing, and enhancement of our products. Research and development expense also includes salaries and related employee benefits, research-related overhead expenses, fees paid to external service providers, and costs associated with our Scientific Advisory Board and Executive Surgeon Panels. In-process research and development expense, or IPR&D. IPR&D expense consists of acquired research and development assets that were not part of an acquisition of a business and were not technologically feasible on the date we acquired such technology, provided that such technology did not have any alternative future use at 51 that date or IPR&D assets acquired in connection with a business acquisition that are determined to have no alternative future use. At the time of acquisition, we expect all acquired IPR&D will reach technological feasibility in the future, but there can be no assurance that commercial viability of a product will be achieved. The nature of the efforts to develop the acquired technologies into commercially viable products consists principally of planning, designing, and obtaining regulatory clearances. The risks associated with achieving commercialization include, but are not limited to, delays or failures during the development process, delays or failures to obtain regulatory clearances, and delays or failures due to intellectual property rights of third parties. Sales and marketing expense. Sales and marketing expense consists primarily of salaries and related employee benefits, sales commissions and support costs, professional service fees, travel, medical education, trade show and marketing costs. General and administrative expense. General and administrative expense consists primarily of salaries and related employee benefits, professional service fees, insurance and legal expenses. Transaction-related expense. Transaction-related expense consists of legal, accounting and financial advisory fees associated with acquisitions. Restructuring expense. Restructuring expense consists of severance and other personnel costs related to the reorganization of our management and those costs associated with exit or disposal activities related to the acquisition of Scient’x. Litigation settlement. Litigation settlement expense consists of material settlements of lawsuits. Total other income (expense). Total other income (expense) includes interest income, interest expense, gains and losses from foreign currency exchanges and other non-operating gains and losses. Income tax benefit. Income tax (benefit) provision consists primarily of income tax benefits related to the French income tax settlement and acquired Scient’x operations offset by state income taxes and the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill. 52 Results of Operations The first table below sets forth our statements of operations data for the periods presented. Statements of operations data for the year ended December 31, 2010 do not include the results of Scient’x for the first quarter 2010 as the acquisition closed on March 26, 2010. Our historical results are not necessarily indicative of the operating results that may be expected in the future. Year Ended December 31, 2012 2011 2010 Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cost of revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of acquired intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . $196,278 70,761 1,749 (in thousands) $197,711 79,168 1,613 $171,610 57,657 1,136 Gross profit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operating expenses: 123,768 116,930 112,817 Research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In-process research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sales and marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General and administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of acquired intangible assets . . . . . . . . . . . . . . . . . . . . . . . . Transaction related expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restructuring expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Litigation settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,886 341 75,177 39,939 2,180 1,082 — — 16,888 — 75,189 36,367 2,152 — 1,050 9,800 16,431 2,967 66,542 31,078 1,535 3,671 2,382 — Total operating expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133,605 141,446 124,606 Operating loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other income (expense): Interest income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other income (expense), net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total other income (expense) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss from continuing operations before taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income tax benefit Loss from continuing operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income from discontinued operations, net of tax . . . . . . . . . . . . . . . . . . . . . . . . (9,837) (24,516) (11,789) 118 (6,105) (794) (6,781) (16,618) (1,159) (15,459) — 148 (3,027) 707 (2,172) (26,688) (4,507) (22,181) — 81 (5,946) 1,167 (4,698) (16,487) (2,054) (14,433) 78 Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (15,459) $ (22,181) $ (14,355) Year Ended December 31, 2012 Compared to the Year Ended December 31, 2011 Revenues. Revenues were $196.3 million for the year ended December 31, 2012 compared to $197.7 million for the year ended December 31, 2011, representing a decrease of $1.4 million, or 0.7%. The decrease was a result of an increase in the International regions of $1.9 million, offset by a decrease in the U.S. of $3.3 million. U.S. revenues were $130.5 million for the year ended December 31, 2012 compared to $133.8 million for the year ended December 31, 2011, representing a decrease of $3.3 million, or 2.5%. The decrease was due to a decrease in the sales of Alphatec instruments and implants ($6.6 million) and a decrease in the sales of Scient’x products ($2.8 million), offset by an increase in sales of Biologics ($4.8 million) and the acquisition of Phygen ($1.3 million). International revenues were $65.8 million for the year ended December 31, 2012 compared to $63.9 million for the year ended December 31, 2011, representing an increase of $1.9 million, or 3.0%. The growth was due to increased sales of Alphatec products ($7.8 million), offset by a decrease in Scient’x products ($5.9 million). The 53 revenue from Alphatec product continues to grow as products in the aging Scient’x product portfolio are substituted with Alphatec products. The increase in revenues is inclusive of $2.6 million in negative exchange rate effect. Cost of revenues. Cost of revenues was $70.8 million for the year ended December 31, 2012 compared to $79.2 million for the year ended December 31, 2011, representing a decrease of $8.4 million, or 10.6%. The decrease was primarily related to lower product costs as a result of a decrease in sales volume and variation in product mix ($0.6 million), favorable manufacturing and absorption variances ($6.5 million), a reduction to inventory adjustments ($5.2 million), a reduction in instrument depreciation expense ($0.5 million), a reduction in royalty and milestone expenses due to the cancellation of certain agreements, lower sales volumes and an adjustment to accruals ($2.3 million), and a decrease in inventory step-up expense related primarily to the Scient’x acquisition ($0.6 million), offset by an increase in the reserve for excess and obsolete inventory ($3.1 million) and the amortization expenses associated with the settlement agreement we entered into in December 2011 with Biomet related to royalties on the sales of our polyaxial screws ($4.2 million). Amortization of acquired intangible assets. Amortization of acquired intangible assets was $1.8 million for the years ended December 31, 2012 compared to $1.6 million for the year ended December 31, 2011, representing an increase of $0.2 million, or 8.4%. The increase primarily relates to amortization of intangible assets acquired in the Phygen acquisition. Gross profit. Gross profit was $123.8 million for the year ended December 31, 2012 compared to $116.9 million for the year ended December 31, 2011, representing an increase of $6.9 million, or 5.8%. The increase is due to a change in cost of revenues ($7.9 million), offset by amortization of acquired intangibles ($0.2 million) and decrease in sales volume and variation in product mix ($0.8 million). Gross margin. Gross margin was 63.1% for the year ended December 31, 2012 compared to 59.1% for the year ended December 31, 2011. The increase of 3.9 percentage points was the result of a reduction in the cost of revenues (3.7 percentage points) and a favorable variation in product mix (0.2 percentage points). Gross margin for the U.S. region was 68.5% for the year ended December 31, 2012 compared to 65.1% for the year ended December 31, 2011. The increase of 3.4 percentage points was the result of reduced cost of revenues ($7.5 million), offset by a negative variation in revenue volume and product mix ($5.3 million). Gross margin for the International region was 52.3% for the year ended December 31, 2012 compared to 46.7% for the year ended December 31, 2011. The increase of 5.6 percentage points was the result of a favorable variation in revenue volume and product mix ($4.5 million). Research and development expense. Research and development expense was $14.9 million for the year ended December 31, 2012 compared to $16.9 million for the year ended December 31, 2011 representing a decrease of $2.0 million, or 11.9%. The decrease was primarily related to reduced European research and development activities to support the Scient’x products ($1.7 million), reorganized management structure in the U.S. ($0.3 million), and reduced activity due to the variation in the timing of the cycle for development and testing ($0.4 million), offset by increased spending on clinical study and trial activity ($0.4 million). In-process research and development expense. IPR&D expense was $0.3 million for the year ended December 31, 2012 compared to $0 million for the year ended December 31, 2011. During the fourth quarter of 2012, the Company decided that it would not pursue development of in-process research and development assets that had an indefinite life. The Company expensed $0.3 million as in-process research and development related to the write-off of a portion of the in-process research and development assets acquired in the Scient’x acquisition. 54 Sales and marketing expense. Sales and marketing expense was $75.2 million for the years ended December 31, 2012 and December 31, 2011. Expenses increased as a results sales growth in Japan ($1.8 million), but were offset by a reduction in commission expense related to a decrease in U.S. revenue ($0.6 million), a reduction in post marketing clinical trial expenses ($0.6 million), and a reduction in meeting expenses ($0.6 million). General and administrative expense. General and administrative expense was $39.9 million for the year ended December 31, 2012 compared to $36.4 million for the year ended December 31, 2011, representing an increase of $3.5 million, or 9.8%. The increase was primarily related to increased litigation expense ($2.0 million), increased expenses related to executive management and consulting costs ($1.5 million), the operating expenses related to the Phygen acquisition ($1.0 million) and severance costs ($0.7 million), offset by a reduction in sales and use tax accruals ($0.7 million) a reduction in recruiting fees ($0.6 million) and a reduction in information technology related expenses ($0.5 million). Amortization of acquired intangible assets. Amortization of acquired intangible assets was $2.2 million for the years ended December 31, 2012 and December 31, 2011. This expense represents amortization in the period for intangible assets associated with general business assets obtained in the Scient’x and Phygen acquisitions. Transaction-related expense. Transaction-related expense was $1.1 million for the year ended December 31, 2012 compared to $0.0 million for the year ended December 31, 2011. The transaction-related expenses were for legal, accounting and financial advisory fees associated with the asset acquisition of Phygen, LLC. Restructuring expense. Restructuring expense was $0 million for the year ended December 31, 2012 compared to $1.1 million for the year ended December 31, 2011. The restructuring expenses were due to severance and other personnel costs incurred in connection with restructuring activities in the United States and Europe. Litigation settlement. Litigation settlement expense was $9.8 million for the year ended December 31, 2011. The expense was due to a settlement agreement we entered into in December 2011 with Biomet. The amount expensed in 2011 represents the allocated value of the settlement and past royalties element due from the sale of our polyaxial screws. There was no corresponding litigation settlement expense in 2012. Interest income. Interest income was $0.1 million for the years ended December 31, 2012 and December 31, 2011. Interest income is earned on cash balances held in accounts invested in money market funds. Interest expense. Interest expense was $6.1 million for the year ended December 31, 2012 compared to $3.0 million for the year ended December 31, 2011, representing an increase of $3.1 million, or 101.7%. Interest expense consisted primarily of interest related to loan agreements and lines of credit. The expense in 2012 includes loss on extinguishment of debt costs of $2.9 million related to the refinancing of the term note and revolving credit facility with Silicon Valley Bank consisting of $2.3 million of early termination fees and $0.6 million for the write-off of capitalized deferred debt offering costs. Other income (expense), net. Other income (expense) was an expense of $(0.8) million for the year ended December 31, 2012 compared to income of $0.7 million for the year ended December 31, 2011. The decrease was due to unfavorable foreign currency exchange results realized in 2012 as compared to favorable results in 2011. Income tax benefit. Income tax was a benefit of $1.2 million for the year ended December 31, 2012 compared to a benefit of $4.5 million for the year ended December 31, 2011, representing a decrease of $3.3 million, or 74.3%. The 2012 benefit for income taxes primarily consists of benefits associated with the Company’s French operations and the reversal of the valuation allowance against the Japanese deferred tax assets partially offset by an increase in uncertain tax positions associated with the European operations and an increase in the goodwill deferred tax liability. The 2011 benefit for income taxes consists primarily of income tax benefits related to a French income tax settlement and acquired Scient’x operations, offset by state income taxes and the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill. 55 Year Ended December 31, 2011 Compared to the Year Ended December 31, 2010 Revenues. Revenues were $197.7 million for the year ended December 31, 2011 compared to $171.6 million for the year ended December 31, 2010, representing growth of $26.1 million, or 15.2%. The increase was comprised of $13.9 million and $12.2 million of sales in the U.S. and International regions, respectively. U.S. revenues were $133.8 million for the year ended December 31, 2011 compared to $119.9 million for the year ended December 31, 2010, representing an increase of $13.9 million, or 11.6%. The growth was due to increased sales of Alphatec products ($12.5 million) from instruments and implants ($8.3 million) and Biologics ($4.2 million) and sales of Scient’x products ($1.4 million). International revenues were $63.9 million for the year ended December 31, 2011 compared to $51.7 million for the year ended December 31, 2010, representing an increase of $12.2 million, or 23.5%. The growth was due to increased sales of Alphatec products of $9.9 million and Scient’x products of $4.1 million, offset by $1.8 million for the recognition of deferred revenue in 2010 related to a European sale that was not repeated in 2011. The increase in revenues is inclusive of $4.6 million in favorable exchange rate effect. Cost of revenues. Cost of revenues was $79.2 million for the year ended December 31, 2011 compared to $57.7 million for the year ended December 31, 2010, representing an increase of $21.5 million, or 37.3%. The increase was primarily related to greater product costs due to growth in sales and variation in product mix ($2.2 million), inventory write-offs resulting from the redesign of a deployment mechanism and the associated instrumentation ($2.1 million), inventory adjustments ($4.5 million), an increase in instrument depreciation costs based on a larger installed base of surgical instruments ($1.7 million), unfavorable purchase price variances ($0.5 million), unfavorable manufacturing and absorption variances related to production volume and operational costs ($6.7 million), offset by royalty and sales milestone accruals due to sales mix and timing of contractual obligations ($1.2 million), and a decrease in amortization expense related to acquired technology ($0.1 million). Our costs for Scient’x products for the year ended December 31, 2011 was $5.1 million higher than such product costs for the year ended December 31, 2010 as we sold Scient’x products for the full year of 2011 as compared to only nine months in 2010. Amortization of acquired intangible assets. Amortization of acquired intangible assets was $1.6 million for the year ended December 31, 2011 compared to $1.1 million for the year ended December 31, 2010, representing an increase of $0.5 million, or 42.0%. This expense represents amortization in the period for intangible assets associated with product related assets obtained in the Scient’x acquisition. Gross profit. Gross profit was $116.9 million for the year ended December 31, 2011 compared to $112.8 million for the year ended December 31, 2010, representing an increase of $4.1 million, or 3.6%. The increase is comprised of increased revenues from Scient’x products ($0.5 million) and Alphatec products in the International region ($5.6 million), offset by increased cost of revenues related to Alphatec products ($2.0 million). Gross margin. Gross margin was 59.1% for the year ended December 31, 2011 compared to 65.7% for the year ended December 31, 2010. The decrease of 6.6% was the result of a decrease in the gross margin of Scient’x products from 44.5% to 38.7% and a decrease in Alphatec products from 69.9% to 63.3%. Gross margin for the U.S. region was 65.1% for the year ended December 31, 2011 compared to 74.4% for the year ended December 31, 2010. The decrease of 9.4% was the result of a decrease in Scient’x gross margin (19.3 percentage points) and a decrease in Alphatec gross margins (8.9 percentage points), primarily related to inventory write-offs and unfavorable manufacturing and absorption variances. Gross margin for the International region was 46.7% for the year ended December 31, 2011 compared to 45.6% for the year ended December 31, 2010. The increase of 1.2% was the result of increased gross margin for Alphatec products (3.7 percentage points) offset by decreased gross margin for Scient’x products (3.1 percentage points) primarily related to a variation in product mix and pricing. 56 Research and development expense. Research and development expense was $16.9 million for the year ended December 31, 2011 compared to $16.4 million for the year ended December 31, 2010, representing an increase of $0.5 million, or 2.8%. The increase was primarily related to increased European research and development activities to support the Scient’x products ($0.9 million), increased testing, consulting and prototypes for new products ($2.0 million), offset by reduced activity due to the variation in the timing of the development cycle for clinical research and trials ($0.5 million) and biologics products ($1.1 million). In-process research and development expense. IPR&D expense was $0 for the year ended December 31, 2011 compared to $3.0 million for the year ended December 31, 2010. During 2010 we incurred expenses of $2.5 million for the acquisition of technology related to stem cells, $0.4 million for the acquisition of bone-anchoring screw technology and $0.1 million for the acquisition of technology related to an anterior cervical plate system. We did not have any acquisitions of a business during 2011. Sales and marketing expense. Sales and marketing expense was $75.2 million for the year ended December 31, 2011 compared to $66.5 million for the year ended December 31, 2010, representing an increase of $8.6 million, or 13.0%. The increase was primarily related to expenses related to increased European selling and marketing activities in support of the Scient’x products ($2.3 million), increased expense for our international sales force ($5.3 million), and increased selling and marketing activities in the U.S. to increase sales volume ($1.0 million). General and administrative expense. General and administrative expense was $36.4 million for the year ended December 31, 2011 compared to $31.1 million for the year ended December 31, 2010, representing an increase of $5.3 million, or 17.0%. The increase was primarily a result of an expanded administrative structure to drive sales growth in both the U.S. and International regions. Specifically, human resources ($1.5 million), finance and accounting ($0.8 million), information technology ($0.5 million), legal ($0.6 million) and increased sales and use tax accruals for periods under audit ($0.7 million). Increased expenses resulting from European general and administrative activities in support of the Scient’x products ($2.1 million) were partially offset by a reduction in international expenses resulting from integration efforts ($0.9 million). Amortization of acquired intangible assets. Amortization of acquired intangible assets was $2.2 million for the year ended December 31, 2011 compared to $1.5 million for the year ended December 31, 2010, representing an increase of $0.6 million, or 40.2%. This expense represents amortization in the period for intangible assets associated with general business assets obtained in the Scient’x acquisition. Transaction-related expense. Transaction-related expense was $0 for the year ended December 31, 2011 compared to $3.7 million for the year ended December 31, 2010. The transaction-related expenses were for legal, accounting and financial advisory fees associated with the acquisition of Scient’x. Restructuring expense. Restructuring expense was $1.1 million for the year ended December 31, 2011 compared to $2.4 million for the year ended December 31, 2010, representing a decrease of $1.3 million, or 55.9%. The restructuring expenses were due to severance and other personnel costs incurred in connection with restructuring activities in the United States and Europe. Litigation settlement. Litigation settlement expense was $9.8 million for the year ended December 31, 2011. The expense was due to a settlement agreement we entered into in December 2011 with Biomet. The amount expensed in 2011 represents the allocated value of the settlement and past royalties element due from the sale of our polyaxial screws. There was no corresponding litigation settlement expense in 2010. Interest income. Interest income was $0.1 million for the year ended December 31, 2011 compared to $0.1 million for the year ended December 31, 2010. Interest expense. Interest expense was $3.0 million for the year ended December 31, 2011 compared to $5.9 million for the year ended December 31, 2010, representing a decrease of $2.9 million, or 49.1%. Interest 57 expense consisted primarily of interest related to loan agreements and lines of credit with Silicon Valley Bank and the associated amortization expenses related to loan costs. The reduction in interest expense was due to lower interest rates resulting from a different loan structure during 2011 as compared to 2010. Other income (expense), net. Other income was $0.7 million for the year ended December 31, 2011 compared to $1.2 million for the year ended December 31, 2011, representing a decrease in income of $0.5 million, or 39.4%. The decrease was due to lower foreign currency exchange gains realized in 2011 as compared to 2010. Income tax benefit. Income tax was a benefit of $4.5 million for the year ended December 31, 2011 compared to a benefit of $2.1 million for the year ended December 31, 2010, representing an increase of $2.4 million, or 119.4%. The income tax benefit consists primarily of income tax benefits related to a French income tax settlement and acquired Scient’x operations, offset by state income taxes and the tax effect of changes in deferred tax liabilities associated with tax deductible goodwill. Discontinued Operations. We entered into an agreement to sell out wholly owned subsidiaries, IMC Co., to a third party in April 2010 and recorded $0.1 million in income from discontinued operations, net of tax, during 2010. Non-GAAP Financial Measures We utilize certain financial measures that are not calculated based on Generally Accepted Accounting Principles, or GAAP. Certain of these financial measures are considered “non-GAAP” financial measures within the meaning of Item 10 of Regulation S-K promulgated by the SEC. We believe that non-GAAP financial measures reflect an additional way of viewing aspects of our operations that, when viewed with the GAAP results, provide a more complete understanding of our results of operations and the factors and trends affecting our business. These non-GAAP financial measures are also used by our management to evaluate financial results and to plan and forecast future periods. However, non-GAAP financial measures should be considered as a supplement to, and not as a substitute for, or superior to, the corresponding measures calculated in accordance with GAAP. Non-GAAP financial measures used by us may differ from the non-GAAP measures used by other companies, including our competitors. Adjusted EBITDA represents net income (loss) excluding the effects of interest, taxes, depreciation, amortization, stock-based compensation and other non-recurring income or expense items, such as in-process research and development expense and acquisition related transaction expenses, restructuring expenses and litigation settlement expenses. Severance expenses of $0.7 million are included in restructuring and other expenses for the year ended December 31, 2012. We believe that the most directly comparable GAAP financial measure to adjusted EBITDA is net income (loss). Adjusted EBITDA has limitations, therefore, it should not be considered either in isolation or as a substitute for analysis of our results as reported under GAAP. Furthermore, adjusted EBITDA should not be considered as an alternative to operating income (loss) or net income (loss) as a measure of operating performance or to net cash provided by operating, investing or financing activities, or as a measure of our ability to meet cash needs. 58 The following is a reconciliation of adjusted EBITDA to the most comparable GAAP measure, net loss, for the years ended December 31, 2012, 2011 and 2010 (in thousands): Year Ended December 31, 2012 2011 2010 Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stock-based compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Depreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of acquired intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . In-process research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interest expense, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income tax (benefit) expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other (income) expense, net (Income) from discontinued operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acquisition-related inventory step up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transaction related expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restructuring and other expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Litigation settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $(15,459) $(22,181) $(14,355) 3,177 13,126 1,449 2,671 2,967 5,865 (2,054) (1,167) (78) 1,281 3,671 2,382 — 3,540 14,184 5,679 3,929 341 5,987 (1,159) 794 — 191 1,082 794 — 2,425 14,789 1,322 3,765 — 2,879 (4,507) (707) — 751 — 1,050 9,800 Adjusted EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 19,903 $ 9,386 $ 18,935 Liquidity and Capital Resources At December 31, 2012, our principal sources of liquidity consisted of cash and cash equivalents of $22.2 million and accounts receivable, net of $41.0 million. Based on our operating plan and cash forecast, management believes that on a combined basis, such amounts will be sufficient to fund our projected operating requirements through at least December 31, 2013. On June 7, 2012, we entered into a credit facility, or the Credit Facility, with MidCap Financial, LLC, or MidCap which permits us to borrow up to $50.0 million. The Credit Facility is due in June 2015 and consists of a revolving line of credit with a maximum borrowing base of $40.0 million, with the option to increase the maximum borrowing base to $50.0 million with the consent of MidCap. The Credit Facility bears an interest rate equal to the London Interbank Market Rate, or LIBOR, plus 6.0%. As of December 31, 2012, the interest rate on the Credit Facility was 6.2%. The Credit Facility contains certain financial covenants which require us to maintain a certain fixed charge coverage ratio and a senior leverage ratio in order to avoid default under the Credit Facility. We were in compliance with all of the covenants of the Credit Facility as of December 31, 2012. (See “Credit Facility and Other Debt” below). Based on our current operating plan, we believe that we will be in compliance with our financial covenants under the Credit Facility for the foreseeable future. However, there is no assurance that we will be able to do so. If we are not able to achieve our planned revenue or incur costs in excess of our forecasts, we may be required to substantially reduce discretionary spending, and we could be in default of the Credit Facility. Upon the occurrence of an event of default which is not waived by MidCap, MidCap could elect to declare the amounts outstanding under the Credit Facility immediately due and payable and refuse to extend further credit. If MidCap were to accelerate the repayment of borrowings under the Credit Facility, we may not have sufficient cash on hand to repay the amounts due under the Credit Facility and would have to seek to amend the terms of the Credit Facility or seek alternative financing. There can be no assurances that in the event of a default, a waiver could be obtained from MidCap, that the Credit Facility could be successfully renegotiated or that we could modify our operations to maintain liquidity. If we are forced to seek additional financing, which may include additional debt 59 and/or equity financing or funding through other third party agreements, there can be no assurances that additional financing will be available on favorable terms or available at all. Furthermore, any equity financing may result in dilution to existing stockholders and any debt financing may include restrictive covenants. Historically, our principal sources of cash have included customer payments from the sale of our products, proceeds from the issuance of common and preferred stock and proceeds from the issuance of debt. Our principal uses of cash have included cash used in operations, acquisitions of businesses and intellectual property rights, payments relating to purchases of surgical instruments, repayments of borrowings and payments due under the Biomet settlement agreement. We expect that our principal uses of cash in the future will be for operations, working capital, capital expenditures, and potential acquisitions. We expect that, as our revenues grow, our sales and marketing and research and development expenses will continue to grow and, as a result, we will need to generate significant net revenues to achieve profitability. We anticipate that to the extent that we require additional liquidity, it will be funded through borrowings under our revolving credit facility, the incurrence of other indebtedness, additional equity financings or a combination of these potential sources of liquidity. We will need to invest in working capital and surgical instruments (the costs of which are capitalized) in order to support our revenue projections through 2013. Should we not be able to achieve our revenue forecast and cash consumption starts to exceed forecasted consumption, management will need to adjust our investment in surgical instruments and manage our inventory to the decreased sales volumes. If we do not make these adjustments in a timely manner, there could be an adverse impact on our financial resources. Our revenue projections may be negatively impacted as a result of a decline in sales of our products, including declines due to changes in our customers’ ability to obtain third-party coverage and reimbursement for procedures that use our products, increased pricing pressures resulting from intensifying competition, and cost increases and slower product development cycles resulting from a changing regulatory environment. A substantial portion of our available cash funds is held in business accounts with reputable financial institutions. However, our deposits, at times, may exceed federally insured limits and thus we may face losses in the event of insolvency of any of the financial institutions where our funds are deposited. Additionally, the capital markets have recently been highly volatile and there has been a lack of liquidity for certain financial instruments, especially those with exposure to mortgage-backed securities and auction rate securities. This lack of liquidity has made it difficult for the fair value of these types of instruments to be determined. We did not hold any marketable securities as of December 31, 2012. As a result of the continued volatility in the capital markets, the cost and availability of credit has been and may continue to be adversely affected by illiquid credit markets and wider credit spreads. Concern about the stability of the markets generally and the strength of counterparties specifically has led many lenders and institutional investors to reduce, and in some cases, cease to provide funding to borrowers. Continued turbulence in the U.S. and international markets and economies may adversely affect our ability to obtain additional financing on terms acceptable to us, or at all. If these market conditions continue, they may limit our ability to timely replace maturing liabilities and to access the capital markets to meet liquidity needs. Operating Activities We generated net cash of $11.6 million in operating activities for the year ended December 31, 2012. During this period, net cash provided by operating activities primarily consisted of a net loss of $15.5 million and an increase in working capital and other assets of $7.8 million, which were offset by $35.0 million of non-cash costs including amortization, depreciation, deferred income taxes, stock-based compensation, provision for excess and obsolete inventory and interest expense related to amortization of debt discount and issue costs. The increase in working capital and other assets of $7.8 million consisted of increases in inventory of $7.9 million and decreases in accounts payable of $1.8 million and accrued expenses and other liabilities of $1.8 million, partially offset by decrease in accounts receivable of $0.4 million, prepaid expenses and other current assets of $1.7 million and other assets of $1.0 million. 60 Investing Activities We used net cash of $19.4 million in investing activities for the year ended December 31, 2012 primarily for the purchase of $15.6 million in surgical instruments, computer equipment, leasehold improvements and manufacturing equipment, payment for the acquisition of Phygen of $2.0 million and the purchase of intangible assets of $1.8 million. Financing Activities Net cash of $8.5 million was provided by financing activities for the year ended December 31, 2012. Upon execution of the Credit Facility with MidCap, we borrowed $34.3 million from the Credit Facility to pay off our existing credit facility with Silicon Valley Bank (“SVB”) consisting of a term loan totaling $8.1 million and a line of credit totaling $17.6 million. We paid an up-front commitment fee to MidCap of $0.2 million and debt issuance costs of $0.2 million which were capitalized as deferred debt issuance costs. The Company paid early termination and other fees to SVB associated with the credit facility with SVB of $2.3 million. Credit Facility and Other Debt On June 7, 2012, we entered into a Credit Facility with MidCap, which permits us to borrow up to $50.0 million. The Credit Facility is due in June 2015 and consists of a revolving line of credit with a maximum borrowing base of $40.0 million, with the option to increase the maximum borrowing base to $50.0 million with the consent of MidCap. The borrowing base is determined, from time to time, based on the value of domestic and foreign eligible accounts receivable and domestic eligible inventory. As collateral for the Credit Facility, we granted MidCap a security interest in substantially all of our assets, including all accounts receivable and all securities evidencing our interests in our subsidiaries. The Credit Facility includes traditional lending and reporting covenants which among other things requires us to maintain a fixed charge coverage ratio and a senior leverage ratio. The Credit Facility also includes several potential events of default, such as payment default and insolvency conditions, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in MidCap’s right to declare all outstanding obligation immediately due and payable. In January 2013, we entered into a limited waiver and limited consent agreement with MidCap. The waiver gave us consent on certain provisions under the Credit Facility related to the acquisition of Phygen and maintenance of cash balances in the U.S. In February 2013, we entered into a first amendment to the Credit Facility with MidCap. The first amendment allows us to exclude payments related to the Phygen acquisition and the settlement agreement with Cross Medical Products, LLC from calculation of the fixed charge coverage ratio and the senior leverage ratio. In conjunction with the first amendment, we paid MidCap a fee of $0.1 million. We were in compliance with all of the covenants of the Credit Facility as of December 31, 2012. We have various capital lease arrangements. The leases bear interest at rates ranging from 4.5% to 9.6%, are generally due in monthly principal and interest installments, are collateralized by the related equipment, and have various maturity dates through 2017. As of December 31, 2012, the balance of these capital leases totaled $1.7 million. We entered into leases for machinery and equipment for an aggregate principal balance of $2.2 million during the year ended December 31, 2012. 61 Contractual obligations and commercial commitments Total contractual obligations and commercial commitments as of December 31, 2012 are summarized in the following table (in thousands): Total 2013 2014 2015 2016 2017 Thereafter Payment Due by Year Credit Facility with MidCap . . . . . . . . . Interest expense . . . . . . . . . . . . . . . . . . Note payable for software licenses . . . . Note payable for insurance premiums . . . . . . . . . . . . . . . . . . . . . Capital lease obligations . . . . . . . . . . . . Operating lease obligations . . . . . . . . . Litigation settlement obligation . . . . . . Minimum purchase commitments . . . . Guaranteed minimum royalty 38,634 5,802 59 1,204 1,770 10,588 11,000 17,450 — 2,401 59 1,204 437 3,684 4,000 2,925 — 2,401 — — 439 2,735 4,000 5,662 38,634 1,000 — — 413 2,432 3,000 5,938 — — — — 400 1,286 — 2,925 — — — — 81 180 — — obligations . . . . . . . . . . . . . . . . . . . . 10,190 1,098 2,098 2,298 2,098 2,098 New product development — — — — — 271 — — 500 milestones (1) . . . . . . . . . . . . . . . . . . 7,000 1,000 1,500 — 2,500 — 2,000 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $103,697 $16,808 $18,835 $53,715 $9,209 $2,359 $2,771 (1) This commitment represents payments in cash, and is subject to attaining certain development milestones such as FDA approval, product design and functionality testing requirements, which we believe are reasonably likely to be achieved in 2013 through 2018. Real Property Leases In February 2008, we entered into a sublease agreement, or the Sublease, for office, engineering, and research and development space in Carlsbad, California, or Building 1. The Sublease term commenced May 2008 and ends on January 31, 2016. We are obligated under the Sublease to pay base rent and certain operating costs and taxes for Building 1. Monthly base rent payable by us was approximately $80,500 during the first year of the Sublease, increasing annually at a fixed annual rate of 2.5% to approximately $93,500 per month in the final year of the Sublease. Our rent was abated for months one through seven of the Sublease. Under the Sublease, we were required to provide the sublessor with a security deposit in the amount of approximately $93,500. The Sublease of Building 1 allowed us to consolidate all corporate, marketing, finance, administrative, and research and development activities into one building. In March 2008, we entered into a lease agreement, or the Lease, for additional office, engineering, research and development and warehouse and distribution space in Carlsbad, California, or Building 2. The Lease term commenced on December 1, 2008 and ends on January 31, 2017. We are obligated under the Lease to pay base rent and certain operating costs and taxes for Building 2. The monthly base rent payable for Building 2 was approximately $73,500 during the first year of the Lease, increasing annually at a fixed annual rate of 3.0% to approximately $93,000 per month in the final year of the Lease. Our rent was abated for the months two through eight of the term of the Lease in the amount of $38,480. Under the Lease, we were required to provide the lessor with a security deposit in the amount of $293,200, consisting of cash and/or one or more letters of credit. Following our achievement of certain financial milestones, the lessor is obligated to return a portion of the security deposit to us. The lessor provided a tenant improvement allowance of $1.1 million to assist with the configuration of the facility to meet our business needs. We consolidated all manufacturing, distribution and warehousing activities into Building 2 in April 2009. 62 Scient’x leases office and manufacturing warehouse and distribution space in Beaurains, France. The lease term commenced in December 2002 and ends in December 2013. The monthly base rent payable by Scient’x is approximately $40,000 per month, which increases annually with the cost of inflation in France. Off-Balance Sheet Arrangements As of December 31, 2012, we did not have any off-balance sheet arrangements. Critical Accounting Policies and Estimates Our discussion and analysis of our financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the U.S. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures. On an on-going basis, we evaluate our estimates and assumptions, including those related to revenue recognition, allowances for accounts receivable, inventories, goodwill and intangible assets, stock-based compensation and income taxes. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions conditions. We believe the following accounting policies to be critical to the judgments and estimates used in the preparation of our consolidated financial statements. Revenue Recognition We recognize revenue when all four of the following criteria are met: (i) persuasive evidence that an arrangement exists; (ii) delivery of the products and/or services has occurred; (iii) the selling price is fixed or determinable; and (iv) collectability is reasonably assured. In addition, we account for revenue under provisions which set forth guidelines for the timing of revenue recognition based upon factors such as passage of title, installation, payment and customer acceptance. Determination of criteria (iii) and (iv) are based on management’s judgment regarding the fixed nature of the fee charged for products delivered and the collectability of those fees. Specifically, our revenue from sales of spinal and other surgical implants is recognized upon receipt of written acknowledgement that the product has been used in a surgical procedure or upon shipment to third-party customers who immediately accept title to such implant. Should changes in conditions cause management to determine these criteria are not met for certain future transactions, revenues recognized for any reporting period could be adversely impacted. Deferred Revenues Deferred revenues consist of products sold to distributors with payment terms greater than our customary business terms due to lack of credit history or because the distributor is operating in a new market in which we have no prior experience. We defer the recognition of revenue until payments become due or cash is received from these distributors. Accounts Receivable Accounts receivable are presented net of allowance for doubtful accounts. We make judgments as to our ability to collect outstanding receivables and provide allowances for a portion of receivables when collection becomes doubtful. Provisions are made based upon a specific review of all significant outstanding invoices and the overall quality and age of those invoices are not specifically reviewed. In determining the provision for invoices not specifically reviewed, we analyze historical collection experience and current economic trends. If the historical data 63 used to calculate the allowance provided for doubtful accounts does not reflect our future ability to collect outstanding receivables or if the financial condition of customers were to deteriorate, resulting in impairment of their ability to make payments, an increase in the provision for doubtful accounts may be required. Inventories Inventories are stated at the lower of cost or market, with cost primarily determined under the first-in, first- out method. We review the components of inventory on a periodic basis for excess, obsolete and impaired inventory, and record a reserve for the identified items. We calculate an inventory reserve for estimated excess and obsolete inventory based upon historical turnover and assumptions about future demand for our products and market conditions. Our biologics product inventories are subject to demand fluctuations based on the availability and demand for alternative implant products. Our estimates and assumptions for excess and obsolete inventory are subject to uncertainty as we are a high growth company, and we are continually reviewing our existing products and introducing new products. Increases in the reserve for excess and obsolete inventory result in a corresponding increase to cost of revenues and establish a new cost basis for the inventory component. Valuation of Goodwill and Intangible Assets We assess the impairment of our goodwill and intangible assets annually in December or each quarter if business conditions change and an earlier impairment indicator arises. This assessment requires us to make assumptions and judgments regarding the carrying value of these assets. These assets are considered to be impaired if we determine that their carrying value may not be recoverable based upon our assessment of the following events or changes in circumstances: • • • • a determination that the carrying value of such assets cannot be recovered through undiscounted cash flows; loss of legal ownership or title to the assets; significant changes in our strategic business objectives and utilization of the assets; or the impact of significant negative industry or economic trends. If the assets are considered to be impaired, the impairment we recognize is the amount by which the carrying value of the assets exceeds the fair value of the assets. In addition, we base the useful lives and the related amortization expense on our estimate of the useful life of the assets. Due to the numerous variables associated with our judgments and assumptions relating to the carrying value of our goodwill and intangible assets and the effects of changes in circumstances affecting these valuations, both the precision and reliability of the resulting estimates are subject to uncertainty, and as additional information becomes known, we may change our estimate, in which case the likelihood of a material change in our reported results would increase. In conducting our annual goodwill impairment test, we have elected to bypass the option to perform a qualitative assessment and performed the quantitative analysis as prescribed by the authoritative literature. The goodwill impairment test is a two-step process. The first step compares the fair value to our net book value. If the fair value is less than the net book value, the second step of the test compares the implied fair value of our goodwill to our carrying amount. Our assessment resulted in a fair value that was greater than our carrying value at December 31, 2012 by approximately 6%. In accordance with the authoritative literature, the second step of the impairment test was not required to be performed and thus no impairment of goodwill was recorded as of December 31, 2012. We estimated the fair value in step one based on a combination of the income approach which included discounted cash flows as well as market approaches that utilized our market information and recent sales transactions. The majority of our estimated fair value is derived from the income approach. Our discounted cash flows required management judgment with respect to forecasted sales, launch of new products, gross margin, selling, general and administrative expenses, capital expenditures and the selection and use of an appropriate discount rate and terminal rate. We utilized our risk adjusted weighted average cost of capital of 14% as the discount rate for the projected future cash flows and our revenue and earnings multiples under the market approach. Our assessment resulted in a fair value that was greater than our carrying value at December 31, 2012 by approximately 6%. In accordance with the authoritative literature, the second step of the impairment test was not required to be performed and thus no impairment of goodwill was recorded as of December 31, 2012. 64 Significant management judgment is required in the forecast of future operating results that are used in our impairment analysis. The estimates we used are consistent with the plans and estimates that we use to manage our business. Significant assumptions utilized in our income approach included the growth rate of sales for recently introduced products and the introduction of anticipated new products similar to our historical growth rates. Another important assumption involved in forecasted sales is the projected mix of higher margin U.S. based sales and lower margin non-U.S. based sales. Additionally, we have projected an improvement in our gross margin similar to our historical improvements in gross margins, as a result of forecasted mix in U.S. sales versus non-U.S. based sales and lower manufacturing cost per unit based on the increase in forecasted volume to absorb applied overhead over the next ten years. Although we believe our underlying assumptions supporting this assessment are reasonable, if our forecasted sales, mix of product sales, growth rates of recently introduced new products, timing of and growth rates of new product introductions, gross margin, selling, general and administrative expenses, or the discount rate vary from our forecasts, we may be required to perform a interim analysis in 2013 that could expose us to material impairment charges in the future. In performing the 2012 annual test small changes in the discount rate, growth rate or gross margin assumptions could have a significant impact on the determination of the estimated fair value of us. For example an increase of 1.5% in the discount rate and decrease in the growth rate or gross margin of 2% - 3% in the projected cash flows would have resulted in us being required to complete step two of the analysis. We will be required to monitor changes in these factors as well as other factors which may impact the estimated fair value of the us for indicators of interim impairment of our goodwill prior to our next annual impairment test. Stock-Based Compensation We account for stock-based compensation under provisions which require that share-based payment transactions with employees be recognized in the financial statements based on their fair value and recognized as compensation expense over the vesting period. The amount of expense recognized during the period is affected by subjective assumptions, including: estimates of our future volatility, the expected term for our stock options, the number of options expected to ultimately vest, and the timing of vesting for our share-based awards. We use a Black-Scholes-Merton option-pricing model to estimate the fair value of our stock option awards. The calculation of the fair value of the awards using the Black-Scholes-Merton option-pricing model is affected by our stock price on the date of grant as well as assumptions regarding the following: • Estimated volatility is a measure of the amount by which our stock price is expected to fluctuate each year during the expected life of the award. Our estimated volatility through December 31, 2012 was based on our actual historical volatility since our initial public offering in June 2006. An increase in the estimated volatility would result in an increase to our stock-based compensation expense. • The expected term represents the period of time that awards granted are expected to be outstanding. Our estimated expected term through December 31, 2012 was calculated using a weighted-average term based on historical exercise patterns and the term from option date to full exercise for the options granted within the specified date range. An increase in the expected term would result in an increase to our stock-based compensation expense. • The risk-free interest rate is based on the yield curve of a zero-coupon U.S. Treasury bond on the date the stock option award is granted with a maturity equal to the expected term of the stock option award. An increase in the risk-free interest rate would result in an increase to our stock-based compensation expense. • The assumed dividend yield is based on our expectation of not paying dividends in the foreseeable future. We use historical data to estimate the number of future stock option forfeitures. Share-based compensation recorded in our consolidated statement of operations is based on awards expected to ultimately vest and has been reduced for estimated forfeitures. Our estimated forfeiture rates may differ from our actual forfeitures which would affect the amount of expense recognized during the period. We account for stock option grants to non-employees under provisions which require that the fair value of these instruments be recognized as an expense over the period in which the related services are rendered. 65 Share-based compensation expense of awards with performance conditions is recognized over the period from the date the performance condition is determined to be probable of occurring through the time the applicable condition is met. Determining the likelihood and timing of achieving performance conditions is a subjective judgment made by management which may affect the amount and timing of expense related to these share-based awards. Share-based compensation is adjusted to reflect the value of options which ultimately vest as such amounts become known in future periods. As a result of these subjective and forward-looking estimates, the actual value of our share-based awards could differ significantly from those amounts recorded in our financial statements. Stock-based compensation has been classified as follows in the accompanying consolidated statements of operations (in thousands, except per share data): Year Ended December 31, 2012 2011 2010 Cost of revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sales and marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General and administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 137 261 1,695 1,447 $ 180 289 693 1,263 $ 252 185 1,008 1,732 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,540 $2,425 $3,177 Effect on basic and diluted net loss per share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (0.04) $ (0.03) $ (0.04) Not included in the table above is stock-based compensation expense of $0.2 million included in transaction related expenses. Income Taxes We account for income taxes in accordance with provisions which set forth an asset and liability approach that requires the recognition of deferred tax assets and deferred tax liabilities for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. Valuation allowances are established when necessary to reduce deferred tax assets to the amount that is more likely than not expected to be realized. In making such a determination, a review of all available positive and negative evidence must be considered, including scheduled reversal of deferred tax liabilities, projected future taxable income, tax planning strategies, and recent financial performance. We recognize interest and penalties related to uncertain tax positions as a component of the income tax provision. Recent Accounting Pronouncements In September 2011, the Financial Accounting Standards Board, or FASB, amended its goodwill guidance by providing entities an option to use a qualitative approach to test goodwill for impairment. An entity will be able to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. If it is concluded that this is the case, it is necessary to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. This amendment was effective for us on January 1, 2012 and did not have a material impact on our financial position or results of operations. In 2011, the FASB issued new accounting guidance that requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance became effective for us on January 1, 2012. The new guidance eliminates the current option to report other comprehensive income and its components in the statement of shareholders’ equity. While the new guidance changes the presentation of other comprehensive income, there are no changes to the components that are recognized in other comprehensive income. Other than presentation, the adoption of this guidance did not have an impact on our financial position or results of operations. 66 Item 7A. Quantitative and Qualitative Disclosures About Market Risk Interest Rate Risk Our borrowings under our line of credit expose us to market risk related to changes in interest rates. As of December 31, 2012, our outstanding floating rate indebtedness totaled $38.6 million. The primary base interest rate is LIBOR. Assuming the outstanding balance on our floating rate indebtedness remains constant over a year, a 100 basis point increase in the interest rate would decrease pre-tax income and cash flow by approximately $0.4 million. Other outstanding debt consists of fixed rate instruments, including notes payable and capital leases. Foreign Currency Risk Our foreign currency exposure continues to grow as we expand internationally. Our exposure to foreign currency transaction gains and losses is the result of certain net receivables due from our foreign subsidiaries and customers being denominated in currencies other than the U.S. dollar, primarily the Euro and Japanese Yen, in which our revenues and profits are denominated. Additionally, we have exposure of U.S dollar denominated debt of approximately $6.3 million recorded on our Japanese Yen function currency subsidiary. We do not currently engage in hedging or similar transactions to reduce these risks. Fluctuations in currency exchange rates could impact our results of operations, financial position, and cash flows. Commodity Price Risk We purchase raw materials that are processed from commodities, such as titanium and stainless steel. These purchases expose us to fluctuations in commodity prices. Given the historical volatility of certain commodity prices, this exposure can impact our product costs. However, because our raw material prices comprise a small portion of our cost of revenues, we have not experienced any material impact on our results of operations from changes in commodity prices. A 10 percent change in commodity prices would not have a material impact on our results of operations for the year ended December 31, 2012. Item 8. Financial Statements and Supplementary Data The consolidated financial statements and supplementary data required by this item are set forth at the pages indicated in Item 15. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure None. Item 9A. Controls and Procedures Evaluation of Disclosure Controls and Procedures We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed by us in the reports we file or submit pursuant to the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, we carried out an evaluation of the effectiveness of the design and operation of 67 our disclosure controls and procedures (as such term is defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this Annual Report on Form 10-K. Based on the such evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were: (1) designed to ensure that material information relating to us is made known to our Chief Executive Officer and Chief Financial Officer by others within our company, particularly during the period in which this report was being prepared and (2) effective, in that they provide reasonable assurance that information required to be disclosed by us in reports that we file or submit under the Exchange Act, is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms. Management’s Annual Report on Internal Control Over Financial Reporting Our management, including our Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) under the Exchange Act). Our management, including our Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of our internal control over financial reporting as of December 31, 2012. Management based this assessment on criteria for effective internal control over financial reporting described in “Internal Control— Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, management concluded that our internal control over financial reporting was effective as of December 31, 2012. Ernst and Young LLP, an independent registered public accounting firm, who audited the consolidated financial statements included in this Annual Report on Form 10-K, has also audited the effectiveness of our internal control over financial reporting as stated in its report appearing elsewhere in this Annual Report on Form 10-K. Changes in Internal Control over Financial Reporting. There were no changes in our internal controls over financial reporting identified in connection with the evaluation of such internal control that occurred during the quarter ended December 31, 2012 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. 68 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors and Stockholders of Alphatec Holdings, Inc. We have audited Alphatec Holdings, Inc.’s internal control over financial reporting as of December 31, 2012, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Alphatec Holdings, Inc.’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Report of Management on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit. We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion. A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. In our opinion, Alphatec Holdings, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2012, based on the COSO criteria. We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Alphatec Holdings, Inc. as of December 31, 2012 and 2011, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2012 of Alphatec Holdings, Inc. and our report dated March 4, 2013 expressed an unqualified opinion thereon. /s/ Ernst & Young LLP San Diego, California March 4, 2013 69 Item 9B. Other Information Not applicable. 70 PART III Item 10. Directors, Executive Officers and Corporate Governance The information required by Item 10 of this Annual Report on Form 10-K is incorporated by reference from the discussion responsive thereto under the captions “Management,” “Corporate Governance Matters,” “Compliance with Section 16(a) of the Securities Exchange Act of 1934,” and “Code of Conduct and Ethics” in our Proxy Statement for the 2013 Annual Meeting of Stockholders. Item 11. Executive Compensation The information required by Item 11 of this Annual Report on Form 10-K is incorporated by reference from the discussion responsive thereto under the captions “Executive Officer and Director Compensation,” “Compensation Discussion and Analysis,” “Compensation Committee Interlocks and Insider Participation,” “Compensation Committee Report,” and “Compensation Practices and Policies Relating to Risk Management” in our Proxy Statement for the 2013 Annual Meeting of Stockholders. Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters The information required by Item 12 of this Annual Report on Form 10-K is incorporated by reference from the discussion responsive thereto under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Equity Compensation Plan Information” in our Proxy Statement for the 2013 Annual Meeting of Stockholders. Item 13. Certain Relationships and Related Transactions, and Director Independence The information required by Item 13 of this Annual Report on Form 10-K is incorporated by reference from the discussion responsive thereto under the captions “Certain Relationships and Related Transactions,” “Management” and “Corporate Governance Matters” in our Proxy Statement for the 2013 Annual Meeting of Stockholders. Item 14. Principal Accounting Fees and Services The information required by Item 14 of this Annual Report on Form 10-K is incorporated by reference from the discussion responsive thereto under the caption “Independent Public Accountants” in our Proxy Statement for the 2013 Annual Meeting of Stockholders. 71 Item 15. Exhibits and Financial Statement Schedules Item 15 (a) The following documents are filed as part of this Annual Report on Form 10-K: PART IV (1) Financial Statements: Report of Independent Registered Public Accounting Firm . . . . . . . . . . . . . . . . . . . . . . Consolidated Balance Sheets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Comprehensive Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Stockholders’ Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Cash Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page F-2 F-3 F-4 F-5 F-6 F-7 F-9 (2) Financial Statement Schedules: Schedule II—Valuation and Qualifying Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-45 All other financial statement schedules have been omitted because they are not applicable, not required or the information required is included in the consolidated financial statements or the notes thereto. Item 15(a)(3) Exhibits List The following is a list of exhibits filed as part of this Annual Report on Form 10-K. Exhibit Number 2.1 Exhibit Description Acquisition Agreement, dated December 17, 2009, by and among the Company and certain shareholders of Scient’x Groupe S.A.S. and Scient’x S.A. Filed with this Report Incorporated by Reference herein from Form or Schedule Form 8-K (Exhibit 2.1) Filing Date SEC File/ Reg. Number 12/22/09 000-52024 2.2† Asset Purchase Agreement, dated October 19, 2012, between the Company and Phygen, LLC X 3.1 Restated Certificate of Incorporation 3.2 Restated Bylaws 4.1 Form of Common Stock Certificate Amendment No. 2 to Form S-1 (Exhibit 3.2) Amendment No. 5 to Form S-1 (Exhibit 3.4) Amendment No. 5 to Form S-1 (Exhibit 4.1) 4/20/06 333-131609 5/26/06 333-131609 5/26/06 333-131609 72 Exhibit Number 4.2 4.3 4.4 4.5 4.6 4.7 4.8 10.1 10.2 10.3 Exhibit Description Stockholders’ Agreement by and among Alphatec Holdings, Inc., HealthpointCapital Partners, LP and certain investors, dated as of March 17, 2005 Subscription Agreement dated as of June 4, 2009, between Alphatec Holdings, Inc. and HealthpointCapital Partners II, L.P. Corporate Governance Agreement, dated December 17, 2009, between the Company and certain shareholders of Scient’x Groupe S.A.S. and Scient’x S.A. Registration Rights Agreement, dated March 26, 2010, by and among Alphatec Holdings, Inc. and the other signatories thereto Form of Subscription Agreement, dated as of February 9, 2010, between the Company and each of the investors in the Offering Warrant with Oxford Finance Corporation as the Warrantholder, dated as of December 5, 2008 Warrant with Silicon Valley Bank as the Warrantholder, dated December 16, 2011 Lease Agreements Standard Industrial Lease (Net) by and between Alphatec Holdings, Inc. and H.G. Fenton Property Company, dated as of January 30, 2008 Sublease Agreement by and between Alphatec Holdings, Inc. and K2 Inc., dated as of February 28, 2008 Loan Agreements Amended and Restated Loan and Security Agreement, dated as of March 26, 2010 by and among Silicon Valley Bank, Oxford Finance Corporation, Alphatec Holdings, Inc. and Alphatec Spine, Inc. Filed with this Report Incorporated by Reference herein from Form or Schedule Amendment No. 4 to Form S-1 (Exhibit 4.2) Filing Date SEC File/ Reg. Number 5/15/06 333-131609 Form 10-Q (Exhibit 10.2) 8/4/09 000-52024 Form 8-K (Exhibit 10.1) 12/22/09 000-52024 Form 8-K (Exhibit 4.1) 3/31/10 000-52024 Form 8-K (Exhibit 10.1) Form 10-K (Exhibit 4.4) Form 10-K (Exhibit 4.8) Form 10-Q (Exhibit 10.2) Form 10-Q (Exhibit 10.1) 2/10/10 000-52024 3/4/09 000-52024 3/5/12 000-52024 5/12/08 000-52024 5/12/08 000-52024 Form 10-Q (Exhibit 10.1) 5/10/10 000-52024 73 Exhibit Number 10.4† 10.5† 10.6† 10.7† 10.8† 10.9† 10.10† 10.11† Exhibit Description Second Amended and Restated Loan and Security Agreement, dated as of October 29, 2010 by and among Silicon Valley Bank, Alphatec Holdings, Inc. and Alphatec Spine, Inc. First Amendment to the Amended Loan and Security Agreement, dated as of January 31, 2011 by and among Silicon Valley Bank, Alphatec Holdings, Inc. and Alphatec Spine, Inc. Second Amendment to the Amended and Restated Loan and Security Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Silicon Valley Bank, dated August 5, 2011. Third Amendment to the Amended and Restated Loan and Security Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Silicon Valley Bank, dated December 16, 2011 Fourth Amendment to the Amended and Restated Loan and Security Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Silicon Valley Bank, dated February 26, 2012. Credit, Security and Guaranty Agreement by and among Alphatec Holdings, Inc., Alphatec Spine, Inc., Alphatec International, LLC, and Alphatec Pacific, Inc. and MidCap Financial, LLC, dated June 6, 2012. Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Reg. Number Form 10-K (Exhibit 10.8) 3/4/11 000-52024 Form 10-K (Exhibit 10.9) 3/4/11 000-52024 Form 10-Q (Exhibit 10.2) 8/8/2011 000-52024 Form 10-K (Exhibit 10.11) 3/5/2012 000-52024 Form 10-Q (Exhibit 10.4) 5/8/2012 000-52024 Form 10-Q (Exhibit 10.1) 8/8/2012 000-52024 Agreements with Respect to Collaborations, Licenses, Research and Development License Agreement by and between Alphatec Spine, Inc. and Cross Medical Products, Inc., dated as of April 24, 2003 Supply Agreement by and between Alphatec Spine, Inc. and Invibio, Inc., dated as of October 18, 2004 and amended by Letter of Amendment in respect of the Supply Agreement, dated as of December 13, 2004 Amendment No. 1 to Form S-1 (Exhibit 10.26) 3/23/06 333-131609 Amendment No. 4 to Form S-1 (Exhibit 10.29) 5/15/06 333-131609 74 Exhibit Number 10.12† 10.13† 10.14† 10.15† 10.16† 10.17† 10.18† 10.19† 10.20† Exhibit Description Exclusive License Agreement by and between Alphatec Spine, Inc. and Stout Medical Group, LP, dated as of September 11, 2007 First Amendment to the Exclusive License Agreement, effective March 31, 2009 between Alphatec Spine, Inc. and Stout Medical Group LP Exclusive License Agreement by and between Alphatec Spine, Inc. and JGMG Bengochea, LLC, dated as of September 11, 2007 Exclusive License Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Progressive Spinal Technologies LLC, dated as of December 18, 2007 Amendment to Exclusive License Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Progressive Spinal Technologies LLC, dated as of January 14, 2008 Second Amendment to Exclusive License Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Progressive Spinal Technologies LLC, dated as of January 12, 2009 Third Amendment to Exclusive License Agreement dated as of June 30, 2009, by and among Alphatec Holdings, Inc., Alphatec Spine, Inc. and Progressive Spinal Technologies LLC Fourth Amendment to Exclusive License Agreement dated as of December 7, 2009, by and among Alphatec Holdings, Inc., Alphatec Spine, Inc. and Progressive Spinal Technologies LLC Fifth Amendment to Exclusive License Agreement dated as of November 30, 2010, by and among Alphatec Holdings, Inc., Alphatec Spine, Inc. and Progressive Spinal Technologies LLC Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Reg. Number Form 10-Q (Exhibit 10.2) 11/9/07 000-52024 Form 10-Q (Exhibit 10.4) 5/5/09 000-52024 Form 10-Q (Exhibit 10.1) 11/9/07 000-52024 Form 10-K (Exhibit 10.29) 3/17/08 000-52024 Form 10-K/A (Exhibit 10.22) 7/7/09 000-52024 Form 10-K/A (Exhibit 10.23) 7/7/09 000-52024 Form 10-Q (Exhibit 10.3) 8/4/09 000-52024 Form 10-K/A (Exhibit 10.38) 4/8/10 000-52024 Form 10-K (Exhibit 10.22) 3/4/11 000-52024 75 Exhibit Number 10.21† 10.22† 10.23 10.24† 10.25* 10.26* 10.27* 10.28* 10.29* 10.30* 10.31*† Exhibit Description Cross License Agreement effective June 30, 2009, by and among Alphatec Holdings, Inc., Alphatec Spine, Inc. and International Spinal Innovations, LLC Letter Amendment between Alphatec Spine, Inc. and Invibio, Inc., dated November 24, 2010 Settlement Agreement and General Release by and among Alphatec Spine, Inc., Cross Medical Products, LLC, and EBI, LLC, dated December 30, 2011 Amended License Agreement between Alphatec Spine, Inc. and Cross Medical Products, LLC, dated December 30, 2011 Agreements with Officers and Directors Amended and Restated Employment Agreement by and between Alphatec Holdings, Inc. and Dirk Kuyper, dated January 1, 2011 Employment Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Michael O’Neill, dated October 11, 2010 Employment Agreement, dated February 26, 2012, by and among Alphatec Holdings, Inc., Alphatec Spine, Inc, and Leslie Cross. Amended and Restated Employment Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Dirk Kuyper, dated February 26, 2012. Amended and Restated Employment Agreement by and between Alphatec Spine, Inc. and Mitsuo Asai, dated January 14, 2011 Amended and Restated Employment Agreement by and among Alphatec Holdings, Inc., Alphatec Spine, Inc. and Ebun S. Garner, Esq., dated July 17, 2006 Consulting Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Stephen H. Hochschuler, M.D., dated October 13, 2006 Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Reg. Number Form 10-Q (Exhibit 10.1) Form 10-Q (Exhibit 10.3) Form 10-K (Exhibit 10.27) Form 10-K (Exhibit 10.28) 8/4/09 000-52024 5/6/2011 000-52024 3/5/12 000-52024 3/5/12 000-52024 Form 10-K (Exhibit 10.24) 3/4/11 000-52024 Form 10-Q (Exhibit 10.2) 11/8/10 000-52024 Form 10-Q (Exhibit 10.1) 5/8/12 000-52024 Form 10-Q (Exhibit 10.2) 5/8/12 000-52024 Form 10-K (Exhibit 10.31) 3/4/11 000-52024 Form 10-K (Exhibit 10.20) 3/17/08 000-52024 Form 10-K (Exhibit 10.30) 4/2/07 000-52024 76 Exhibit Number 10.32* 10.33* 10.34* 10.35* 10.36* 10.37* 10.38* Exhibit Description Employment Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Patrick Ryan, dated February 18, 2011 Non-Executive Chairman Consulting Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Leslie Cross dated July 27, 2011. First Amendment to the Consulting Agreement by and among Alphatec Spine, Inc., Alphatec Holdings, Inc. and Stephen H. Hochschuler, M.D. Form of Indemnification Agreement entered into with each of the Company’s non-employee directors. Separation Agreement and Release by and among Alphatec Holdings, Inc. and Dirk Kuyper dated August 7, 2012. Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Steven Lubisher, dated August 24, 2012. Retention Bonus Agreement by and between Alphatec Holdings, Inc. and Mitsuo Asai, dated August 21, 2012. Equity Compensation Plans Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Reg. Number Form 10-Q (Exhibit 10.1) 5/6/2011 000-52024 Form 10-Q (Exhibit 10.1) 11/4/11 000-52024 Form 10-K (Exhibit 10.41) 3/5/12 000-52024 Form 10-Q (Exhibit 10.5) Form 10-Q (Exhibit 10.1) Form 10-Q (Exhibit 10.2) Form 10-Q (Exhibit 10.3) 5/5/09 000-52024 11/6/12 000-52024 11/6/12 000-52024 11/6/12 000-52024 10.39* Amended and Restated 2005 Employee, Director and Consultant Stock Plan Amendment No. 5 to Form S-1 (Exhibit 10.5) 5/26/06 333-131609 10.40* 10.41* 10.42* Form of Non-Qualified Stock Option Agreement issued under the Amended and Restated 2005 Stock Plan Form of Incentive Stock Option Agreement issued under the Amended and Restated 2005 Stock Plan Form of Restricted Stock Agreement issued under the Amended and Restated 2005 Stock Plan 10.43* Summary Description of the Alphatec Holdings, Inc. 2012 Bonus Plan 21.1 List of subsidiaries of the Registrant X X X X 77 Form 10-Q (Exhibit 10.3) 5/8/2012 000-52024 Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/ Reg. Number X X X X Exhibit Number 23.1 31.1 31.2 32 101.1 101.2 101.3 101.4 101.5 101.6 Exhibit Description Consent of Independent Registered Public Accounting Firm Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes- Oxley Act of 2002 XBRL Instance Document** XBRL Taxonomy Extension Schema Document** XBRL Taxonomy Extension Calculation Linkbase Document** XBRL Taxonomy Extension Definition Linkbase Document** XBRL Taxonomy Extension Label Linkbase Document** XBRL Taxonomy Extension Presentation Linkbase Document** (*) Management contract or compensatory plan or arrangement. (†) Confidential treatment has been granted by the Securities and Exchange Commission as to certain portions. ** Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections. 78 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. SIGNATURES Dated: March 4, 2013 ALPHATEC HOLDINGS, INC. By: Name: Title: /S/ LESLIE H. CROSS Leslie H. Cross Chairman and Chief Executive Officer (principal executive officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date /S/ LESLIE H. CROSS Leslie H. Cross Chairman and Chief Executive Officer /S/ MORTIMER BERKOWITZ III Mortimer Berkowitz III /S/ MICHAEL O’NEILL Michael O’Neill /S/ ROHIT DESAI Rohit Desai March 4, 2013 March 4, 2013 March 4, 2013 Chairman of the Executive Committee of the Board of Directors Chief Financial Officer, Vice President and Treasurer (principal financial and accounting officer) Director March 4, 2013 /S/ LUKE T. FAULSTICK Director March 4, 2013 Luke T. Faulstick /S/ JOHN H. FOSTER John H. Foster /S/ JAMES R. GLYNN James R. Glynn /S/ SIRI MARSHALL Siri Marshall /S/ R. IAN MOLSON R. Ian Molson Director Director Director Director March 4, 2013 March 4, 2013 March 4, 2013 March 4, 2013 /S/ STEPHEN E. O’NEIL Director March 4, 2013 Stephen E. O’Neil 79 [THIS PAGE INTENTIONALLY LEFT BLANK] ALPHATEC HOLDINGS, INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Report of Independent Registered Public Accounting Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Balance Sheets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Comprehensive Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Stockholders’ Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consolidated Statements of Cash Flows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page F-2 F-3 F-4 F-5 F-6 F-7 F-9 F-1 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors and Stockholders of Alphatec Holdings, Inc. We have audited the accompanying consolidated balance sheets of Alphatec Holdings, Inc. as of December 31, 2012 and 2011, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2012. Our audits also included the financial statement schedule listed in the Index at Item 15(a)(2). These financial statements and schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Alphatec Holdings, Inc., at December 31, 2012 and 2011, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2012, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein. We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Alphatec Holdings, Inc.’s internal control over financial reporting as of December 31, 2012, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 4, 2013 expressed an unqualified opinion thereon. /s/ Ernst & Young LLP San Diego, California March 4, 2013 F-2 ALPHATEC HOLDINGS, INC. CONSOLIDATED BALANCE SHEETS (In thousands, except par value data) December 31, 2012 2011 Current assets: Assets Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accounts receivable, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inventories, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prepaid expenses and other current assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deferred income tax assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 22,241 41,012 49,855 5,953 2,991 $ 20,666 41,711 45,916 6,888 1,248 Total current assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property and equipment, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intangibles, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122,052 30,403 180,838 46,856 1,978 116,429 31,476 168,609 47,144 3,034 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 382,127 $ 366,692 Current liabilities: Liabilities and Stockholders’ Equity Accounts payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accrued expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deferred revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Current portion of long-term debt $ 15,237 38,490 1,361 1,700 $ 17,390 32,583 2,768 4,396 Total current liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Long-term debt, less current portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other long-term liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deferred income tax liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commitments and contingencies Redeemable preferred stock, $0.0001 par value; 20,000 authorized at December 31, 2012 and 2011; 3,319 shares issued and outstanding at both December 31, 2012 and 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,788 39,967 13,485 2,468 57,137 23,802 12,997 3,825 23,603 23,603 Stockholders’ equity: Common stock, $0.0001 par value; 200,000 authorized; 96,703 and 89,362 shares issued and outstanding at December 31, 2012 and 2011, respectively . . . . . . . . . Treasury stock, 19 shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional paid-in capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accumulated other comprehensive income (loss) . . . . . . . . . . . . . . . . . . . . . . . . . . . Accumulated deficit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 (97) 399,246 112 (153,455) 9 (97) 386,224 (2,812) (137,996) Total stockholders’ equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245,816 245,328 Total liabilities and stockholders’ equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 382,127 $ 366,692 See accompanying notes. F-3 ALPHATEC HOLDINGS, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except per share amounts) Year Ended December 31, 2012 2011 2010 Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cost of revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of acquired intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . $196,278 70,761 1,749 $197,711 79,168 1,613 $171,610 57,657 1,136 Gross profit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operating expenses: 123,768 116,930 112,817 Research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In-process research and development Sales and marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General and administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amortization of acquired intangible assets . . . . . . . . . . . . . . . . . . . . . . . . Transaction related expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restructuring expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Litigation settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,886 341 75,177 39,939 2,180 1,082 — — 16,888 — 75,189 36,367 2,152 — 1,050 9,800 16,431 2,967 66,542 31,078 1,535 3,671 2,382 — Total operating expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133,605 141,446 124,606 Operating loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other income (expense): Interest income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other income (expense), net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total other income (expense) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss from continuing operations before taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income tax benefit Loss from continuing operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income from discontinued operations, net of tax . . . . . . . . . . . . . . . . . . . . . . . . (9,837) (24,516) (11,789) 118 (6,105) (794) (6,781) (16,618) (1,159) (15,459) — 148 (3,027) 707 (2,172) (26,688) (4,507) (22,181) — 81 (5,946) 1,167 (4,698) (16,487) (2,054) (14,433) 78 Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (15,459) $ (22,181) $ (14,355) Net loss per common share: Basic and diluted net loss per share from continuing operations . . . . . . . . Basic and diluted net income per share from discontinued operations . . . Basic and diluted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ $ (0.17) $ (0.25) $ — — (0.18) — (0.17) $ (0.25) $ (0.18) Weighted-average shares used in computing net loss per share: Basic and diluted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90,218 88,798 78,590 See accompanying notes. F-4 ALPHATEC HOLDINGS, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS (in thousands) Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $(15,459) $(22,181) $(14,355) (2,573) (1,502) 2,924 Comprehensive loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $(12,535) $(23,683) $(16,928) Year Ended December 31, 2012 2011 2010 See accompanying notes. F-5 l a t o T d e t a l u m u c c A r e h t o ’ s r e d l o h k c o t s d e t a l u m u c c A y t i u q e t i c i f e d e v i s n e h e r p m o c ) s s o l ( e m o c n i y r u s a e r T k c o t s l a n o i t i d d A n i - d i a p l a t i p a c k c o t s n o m m o C t n u o m A s e r a h S . C N I , S G N I D L O H C E T A H P L A Y T I U Q E ’ S R E D L O H K C O T S F O S T N E M E T A T S D E T A D I L O S N O C ) s d n a s u o h t n I ( 3 1 2 ) 1 3 3 ( ) 9 6 2 ( 0 4 0 , 1 3 1 1 , 3 4 9 3 6 , 1 5 1 0 3 3 , 3 9 2 8 , 4 7 $ 1 5 1 — 0 0 5 , 3 6 4 5 , 6 ) 9 9 3 ( — ) 3 7 5 , 2 ( ) 5 5 3 , 4 1 ( 5 2 5 , 2 4 3 4 , 6 6 2 4 0 1 ) 3 9 1 ( ) 0 0 1 ( 9 9 2 4 1 — ) 2 0 5 , 1 ( ) 1 8 1 , 2 2 ( 6 0 4 , 2 8 2 3 , 5 4 2 6 7 ) 9 4 ( 4 8 2 , 1 0 5 2 6 5 8 , 8 0 0 2 — — 4 2 9 , 2 ) 9 5 4 , 5 1 ( — — — — — — — — — — — — — — — — — — — — — — ) 5 5 3 , 4 1 ( ) 5 1 8 , 5 1 1 ( ) 1 8 1 , 2 2 ( ) 6 9 9 , 7 3 1 ( — — — — — — — — — — ) 9 5 4 , 5 1 ( — — — — — — — — — — — — — ) 3 7 5 , 2 ( — ) 0 1 3 , 1 ( — — — — — — — ) 2 0 5 , 1 ( — ) 2 1 8 , 2 ( — — — — — — — — — 4 2 9 , 2 — ) 0 6 4 , 1 0 1 ( $ 3 6 2 , 1 $ — — — — — — — — — — — ) 7 9 ( — — — ) 7 9 ( — — — — — — — — — ) 7 9 ( — — — — — — — — — — — 3 1 2 ) 1 3 3 ( ) 9 6 2 ( 0 4 0 , 1 2 1 1 , 3 4 7 3 6 , 1 5 1 0 3 3 , 3 1 2 0 , 5 7 1 $ 1 5 1 — ) 2 0 3 ( 9 9 4 , 3 6 4 5 , 6 — — — 5 2 5 , 2 7 4 6 , 3 8 3 4 0 1 ) 3 9 1 ( ) 0 0 1 ( 9 9 2 4 1 — — — 6 7 ) 9 4 ( 4 8 2 , 1 0 5 2 5 5 8 , 8 0 0 2 — — — — 6 0 4 , 2 4 2 2 , 6 8 3 5 $ 8 5 5 , 2 5 — — — — 1 2 1 — — — — — — — — — — — — — — — — — — — — — — 9 9 1 — — — — — 5 6 ) 2 8 ( — — 0 0 2 , 9 1 3 7 , 3 2 6 5 1 2 1 — 2 2 6 , 1 2 9 5 , 1 ) 9 1 ( 6 9 1 — — 0 4 0 , 9 8 5 5 ) 7 6 ( — — — 3 6 1 7 2 — — 2 6 — ) 5 1 1 ( 8 3 9 9 3 1 0 4 2 , 5 2 6 3 , 9 8 1 3 2 5 4 1 1 0 7 — — 6 1 8 , 5 4 2 $ ) 5 5 4 , 3 5 1 ( $ 2 1 1 $ ) 7 9 ( $ 6 4 2 , 9 9 3 $ 0 1 $ 3 0 7 , 6 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . n o i t a s n e p m o c d e s a b - k c o t S . s n o i t p o k c o t s f o e s i c r e x E k c o t s n o m m o c f o e r u t i e f r o f r o / d n a e s a h c r u p e R k c o t s d e t c i r t s e r y t r a p d r i h t r o f t e k r a m - o t - k r a M s t s o c g n i r e f f o f o t e n , g n i r e f f O c i l b u P h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . n o i t i s i u q c a x ’ t n e i c S h t i w n o i t c e n n o c n i d e u s s i s n o i t p o k c o t S n a l p e s a h c r u p k c o t s e e y o l p m e r o f k c o t s n o m m o c f o e c n a u s s I n o i t i s i u q c a x ’ t n e i c S h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I s e e y o l p m e o t d e t n a r g s d r a w a e r a h s d e t c i r t s e r r o f k c o t s n o m m o c f o e c n a u s s I . . . . . . . . s t n e m e e r g a e s n e c i l h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I s t s o c g n i r e f f o f o t e n , t n e m e c a l p e t a v i r p h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . t n e m e l t t e s n o i t a g i t i l n i d e u s s i s e r a h s r o f t e k r a m o t k r a M e s i c r e x e t n a r r a w h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s t n e m t s u j d a n o i t a l s n a r t y c n e r r u c n g i e r o F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s s o l t e N n o i t a s n e p m o c d e s a b - k c o t S . s n o i t p o k c o t s f o e s i c r e x E 0 1 0 2 , 1 3 r e b m e c e D t a e c n a l a B k c o t s n o m m o c f o e r u t i e f r o f r o / d n a e s a h c r u p e R k c o t s d e t c i r t s e r y t r a p d r i h t r o f t e k r a m - o t - k r a M y t i l i c a f t i d e r c h t i w n o i t c e n n o c n i s t n a r r a w f o e c n a u s s I n a l p e s a h c r u p k c o t s e e y o l p m e r o f k c o t s n o m m o c f o e c n a u s s I s e e y o l p m e o t d e t n a r g s d r a w a e r a h s d e t c i r t s e r r o f k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s t n e m t s u j d a n o i t a l s n a r t y c n e r r u c n g i e r o F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s s o l t e N n o i t a s n e p m o c d e s a b - k c o t S . s n o i t p o k c o t s f o e s i c r e x E 1 1 0 2 , 1 3 r e b m e c e D t a e c n a l a B k c o t s n o m m o c f o e r u t i e f r o f r o / d n a e s a h c r u p e R . . . . . . . . s e c i v r e s g n i t l u s n o c r o f d e u s s i s e r a h S s t n e m e e r g a e s n e c i l h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I n o i t i s i u q c a n e g y h P h t i w n o i t c e n n o c n i k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . g n i r e f f o y t i u q e r o f k c o t s n o m m o c f o e c n a u s s I n a l p e s a h c r u p k c o t s e e y o l p m e r o f k c o t s n o m m o c f o e c n a u s s I s e e y o l p m e o t d e t n a r g s d r a w a e r a h s d e t c i r t s e r r o f k c o t s n o m m o c f o e c n a u s s I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s t n e m t s u j d a n o i t a l s n a r t y c n e r r u c n g i e r o F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s s o l t e N 2 1 0 2 , 1 3 r e b m e c e D t a e c n a l a B — $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 0 0 2 , 1 3 r e b m e c e D t a e c n a l a B F-6 ALPHATEC HOLDINGS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) Year Ended December 31, 2011 2012 2010 Operating activities: Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjustments to reconcile net loss to net cash provided by (used in) $ (15,459) $(22,181) $(14,355) operating activities: Depreciation and amortization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stock-based compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interest expense related to amortization of debt discount and debt issuance costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In-process research and development . . . . . . . . . . . . . . . . . . . . . . . . . Provision for doubtful accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision for excess and obsolete inventory . . . . . . . . . . . . . . . . . . . . Gain on sale of IMC Co. (discontinued operations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Litigation settlement Deferred income tax benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other non-cash items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changes in operating assets and liabilities: Accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prepaid expenses and other current assets . . . . . . . . . . . . . . . . . . . . . . Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accounts payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accrued expenses and other Deferred revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,792 3,690 19,876 2,425 17,246 3,177 919 341 859 6,658 — — (3,420) 2,158 382 (7,853) 1,681 992 (1,799) (1,764) 416 375 — 1,094 4,564 — 9,800 (4,345) — (5,004) 1,084 1,341 1,216 2,545 1,246 (628) 1,330 1,000 945 2,781 (188) — (1,945) — (2,179) (14,661) (2,130) 679 (5,203) (2,591) 1,261 Net cash provided by (used in) operating activities . . . . . . . . . . . . . . . . . . . . . . Investing activities: 11,593 13,408 (14,833) Cash received from acquisition of Scient’x . . . . . . . . . . . . . . . . . . . . . . . . . Proceeds from sale of IMC Co. (discontinued operations) . . . . . . . . . . . . . Purchases of property and equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purchase of intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cash paid for acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . — — (15,646) (1,750) (2,000) — — (8,206) (690) (620) 1,589 329 (14,028) (2,300) — Net cash used in investing activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financing activities: Net proceeds from issuance of common stock . . . . . . . . . . . . . . . . . . . . . . Exercise of stock options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Borrowings under lines of credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repayments under lines of credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Principal payments on capital lease obligations . . . . . . . . . . . . . . . . . . . . . Proceeds from issuance of notes payable . . . . . . . . . . . . . . . . . . . . . . . . . . Principal payments on notes payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purchase of noncontrolling interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net cash provided by (used in) financing activities . . . . . . . . . . . . . . . . . . . . . . Effect of exchange rate changes on cash and cash equivalents . . . . . . . . . . . . . . Net increase (decrease) in cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . Cash and cash equivalents at beginning of period . . . . . . . . . . . . . . . . . . . . . . . . (19,396) (9,516) (14,410) — 76 121,232 (99,853) (604) — (12,375) — 8,476 902 1,575 20,666 — 104 2,350 (17,346) (143) 10,000 (1,880) — 49,659 213 20,174 (3,059) (174) — (23,268) (480) (6,915) 43,065 521 (739) (2,502) 23,168 13,083 10,085 Cash and cash equivalents at end of period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 22,241 $ 20,666 $ 23,168 F-7 ALPHATEC HOLDINGS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS—(Continued) (in thousands) Year Ended December 31, 2010 2011 2012 Supplemental disclosure of cash flow information: Cash paid for interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cash paid for income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purchases of property and equipment in accounts payable . . . . . . . . . . . . . . . . Purchase of property and equipment through capital leases . . . . . . . . . . . . . . . Non-cash exercise of warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-cash purchases of license agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . Issuance of common stock in connection with acquisitions . . . . . . . . . . . . . . . Stock options issued in connection with Scient’x acquisition . . . . . . . . . . . . . . 4,245 $ $2,322 $2,592 426 $ $ 523 $ 989 3,487 $ $3,242 $1,367 $ — $ — $2,225 540 $ — $ — $ $8,000 $1,000 2,500 $ $ — $151,639 $8,856 1,040 $ — $ — $ See accompanying notes. F-8 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. The Company and Basis of Presentation The Company Alphatec Holdings, Inc. (“Alphatec”, “Alphatec Holdings” or the “Company”), through its wholly owned subsidiary, Alphatec Spine, Inc. and its subsidiaries (“Alphatec Spine”) designs, develops, manufactures and markets products for the surgical treatment of spine disorders, primarily focused on the aging spine. In addition to its U.S. operations, the Company also markets its products in over 50 international markets through its affiliate, Scient’x S.A.S. and its subsidiaries (“Scient’x”), via a direct salesforce in France, Italy and the United Kingdom and via independent distributors in the rest of Europe, the Middle East and Africa. In South America and Latin America the Company conducts its operations through its Brazilian subsidiary, Cibramed Productos Medicos. In Asia, the Company markets its products through its subsidiary, Alphatec Pacific, Inc. and its subsidiaries (“Alphatec Pacific”) via a direct sales force and independent distributors, and through distributors in other parts of Asia and Australia. Basis of Presentation The consolidated financial statements include the accounts of Alphatec and Alphatec Spine and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in the consolidated financial statements. The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. A going concern basis of accounting contemplates the recovery of the Company’s assets and the satisfaction of its liabilities in the normal course of business. Based on the Company’s annual operating plan, management believes that its existing cash and cash equivalents of $22.2 million combined with anticipated cash flow from operations in 2013 and other working capital of $43.0 million at December 31, 2012 will be sufficient to fund its cash requirements through at least December 31, 2013. The Company’s credit facility (the “Credit Facility”) with MidCap Financial, LLC (“MidCap”) contains financial covenants consisting of a monthly fixed charge coverage ratio and a senior leverage ratio (see Note 6). Based on the Company’s board-approved current operating plan, the Company believes that it will be in compliance with the financial covenants of the Credit Facility at least through December 31, 2013. However, there is no assurance that the Company will be able to do so. If the Company is not able to achieve its planned revenue or incurs costs in excess of its forecasts, it may be required to substantially reduce discretionary spending and it could be in default of the Credit Facility which would require a waiver from MidCap. There can be no assurance that such a waiver could be obtained, that the Credit Facility could be successfully renegotiated or that the Company can modify its operations to maintain liquidity. If the Company is unable to obtain any required waivers or amendments, MidCap would have the right to exercise remedies specified in the Credit Facility, including accelerating the repayment of debt obligations. The Company may be forced to seek additional financing, which may include additional debt and/or equity financing or funding through other third party agreements. There can be no assurances that additional financing will be available on acceptable terms or available at all. Furthermore, any equity financing may result in dilution to existing stockholders and any debt financing may include restrictive covenants. 2. Summary of Significant Accounting Policies Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts in the Company’s consolidated financial statements and accompanying notes. Actual results could differ from those estimates. F-9 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Concentrations of Credit Risk and Significant Customers Financial instruments, which potentially subject the Company to concentrations of credit risk, consist primarily of cash and cash equivalents and accounts receivable. The Company limits its exposure to credit loss by depositing its cash and cash equivalents with established financial institutions. As of December 31, 2012 a substantial portion of the Company’s available cash funds is in business accounts. Although the Company deposits its cash and cash equivalents with multiple financial institutions, its deposits, at times, may exceed federally insured limits. The Company’s customers are primarily hospitals, surgical centers and distributors and no single customer represented greater than 10 percent of consolidated revenues for any of the periods presented. Credit to customers is granted based on an analysis of the customers’ credit worthiness and credit losses have not been significant. Revenue Recognition The Company derives its revenues primarily from the sale of spinal surgery implants used in the treatment of spine disorders. The Company sells its products primarily through its direct sales force and independent distributors. Revenue is recognized when all four of the following criteria are met: (i) persuasive evidence of an arrangement exists; (ii) delivery of the products and/or services has occurred; (iii) the selling price is fixed or determinable; and (iv) collectability is reasonably assured. In addition, the Company accounts for revenue under provisions which sets forth guidelines for the timing of revenue recognition based upon factors such as passage of title, installation, payment and customer acceptance. The Company’s revenue from sales of spinal and other surgical implants is recognized upon receipt of written acknowledgement that the product has been used in a surgical procedure or upon shipment to third-party customers who immediately accept title to such implant. Deferred Revenues Deferred revenues consist of products sold to distributors with payment terms greater than the Company’s customary business terms due to lack of credit history or because the distributor is operating in a new market in which the Company has no prior experience. The Company defers the recognition of revenue until payments become due and cash is received from these distributors. As of December 31, 2012 and 2011, the balance in deferred revenue totaled $1.4 million and $2.8 million, respectively. Cash and Cash Equivalents The Company considers all investments with a maturity of three months or less from the date of acquisition to be cash equivalents. Cash equivalents primarily represent funds invested in money market funds, whose cost equals fair market value. Accounts Receivable Accounts receivable are presented net of allowance for doubtful accounts. The Company makes judgments as to its ability to collect outstanding receivables and provides allowances for a portion of receivables when collection becomes doubtful. Provisions are made based upon a specific review of all significant outstanding invoices and the overall quality and age of those invoices not specifically reviewed. In determining the provision for invoices not specifically reviewed, the Company analyzes historical collection experience. If the historical data used to calculate the allowance provided for doubtful accounts does not reflect the Company’s future ability F-10 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) to collect outstanding receivables or if the financial condition of customers were to deteriorate, resulting in impairment of their ability to make payments, an increase in the provision for doubtful accounts may be required. Inventories Inventories are stated at the lower of cost or market, with cost primarily determined under the first-in, first- out method. The Company reviews the components of inventory on a periodic basis for excess, obsolete and impaired inventory, and records a reserve for the identified items. The Company calculates an inventory reserve for estimated excess and obsolete inventory based upon historical turnover and assumptions about future demand for its products and market conditions. The Company’s biologics inventories have an expiration based on shelf life and are subject to demand fluctuations based on the availability and demand for alternative implant products. The Company’s estimates and assumptions for excess and obsolete inventory are reviewed and updated on a quarterly basis. Increases in the reserve for excess and obsolete inventory result in a corresponding increase to cost of revenues and establish a new cost basis for the part. Approximately $22.0 million and $15.0 million of inventory was held at consigned locations as of December 31, 2012 and 2011, respectively. Property and Equipment Property and equipment are stated at cost, net of accumulated depreciation and amortization. Depreciation is computed using the straight-line method over the estimated useful lives of the related assets, generally ranging from four to seven years. Leasehold improvements and assets acquired under capital leases are amortized over the shorter of their useful lives or the terms of the related leases. Goodwill and Other Intangible Assets The Company accounts for goodwill and other intangible assets in accordance with provisions which require that goodwill and other identifiable intangible assets with indefinite useful lives be tested for impairment at least annually. The Company tests goodwill and intangible assets for impairment in December of each year, or more frequently if events and circumstances warrant. These assets are impaired if the Company determines that their carrying values may not be recoverable based on an assessment of certain events or changes in circumstances. If the assets are considered to be impaired, the Company recognizes the amount by which the carrying value of the assets exceeds the fair value of the assets as an impairment loss. The Company has not recognized any impairment losses through December 31, 2012. In conducting its annual impairment test, the Company has elected to bypass the option to perform a qualitative assessment and performed the quantitative analysis as prescribed by the authoritative literature. The goodwill impairment test is a two-step process. The first step compares the Company’s fair value to its net book value. If the fair value is less than the net book value, the second step of the test compares the implied fair value of the Company’s goodwill to its carrying amount. If the carrying amount of goodwill exceeds its implied fair value, the Company would recognize an impairment loss equal to that excess amount. The Company estimated the fair value in step one based on a combination of the income approach which included discounted cash flows as well as market approaches that utilized the Company’s market information and recent sales transactions. A majority of the estimated fair value of the Company has been derived from the income approach. The Company’s discounted cash flows required management judgment with respect to forecasted sales, launch of new products, gross margin, selling, general and administrative expenses, capital expenditures and the selection and use of an appropriate discount rate and terminal rate. The Company utilized its risk adjusted weighted average cost of capital of 14% as the discount rate for the projected future cash flows and its revenue and earnings multiples under the market approach. The Company’s assessment resulted in a fair value that was greater than the Company’s carrying value at December 31, 2012 by approximately 6%. In accordance with the authoritative literature, the second step of the impairment test was not required to be performed and thus no impairment of goodwill was recorded as of December 31, 2012. F-11 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Significant management judgment is required in the forecast of future operating results that are used in the Company’s impairment analysis. The estimates the Company used are consistent with the plans and estimates that it uses to manage its business. Significant assumptions utilized in the Company’s income approach model included the growth rate of sales for recently introduced products and the introduction of anticipated new products similar to its historical growth rates. Another important assumption involved in forecasted sales is the projected mix of higher margin U.S. based sales and lower margin non-U.S. based sales. Additionally, the Company has projected an improvement in its gross margin, similar to its historical improvement in gross margins, as a result of its forecasted mix in U.S. sales versus non-U.S. based sales and lower manufacturing cost per unit based on the increase in forecasted volume to absorb applied overhead over the next ten years. Although the Company believes its underlying assumptions supporting this assessment are reasonable, if the Company’s forecasted sales, mix of product sales, growth rates of recently introduced new products, timing of and growth rates of new product introductions, gross margin, selling, general and administrative expenses, or the discount rate vary from its forecasts, the Company may be required to perform an interim analysis in 2013 that could expose the Company to material impairment charges in the future. In performing the 2012 annual test a small change in the discount rate, growth rate, or gross margin assumptions could have a significant impact on the determination of the estimated fair value of the Company. For example an increase of 1.5% in the discount rate and decrease in the growth rate or gross margin of 2% - 3% in the projected cash flows would have resulted in the Company being required to complete step two of the analysis. The accounting provisions also require that intangible assets with definite useful lives be amortized over their respective estimated useful lives and reviewed for indicators of impairment. The Company is amortizing its intangible assets, other than goodwill, on a straight-line basis over a one to fifteen-year period. Impairment of Long-Lived Assets The Company assesses potential impairment to its long-lived assets when there is evidence that events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. An impairment loss is recognized when the carrying amount of the long-lived assets is not recoverable if it exceeds the sum of the undiscounted cash flows expected to result from the use and eventual disposition of the asset. Any required impairment loss is measured as the amount by which the carrying amount of a long-lived asset exceeds it fair value and is recorded as a reduction in the carrying value of the related asset and a charge to operating results. During the fourth quarter of 2012, the Company decided that it would not pursue development of certain in- process research and development assets that had an indefinite life. The Company expensed $0.3 million as in- process research and development in the year ended December 31, 2012 related to the write-off of a portion of the in-process research and development assets acquired in the Scient’x acquisition. Foreign Currency The Company’s results of operations and cash flows are subject to fluctuations due to changes in foreign currency exchange rates. The Company’s primary functional currency is the U.S. dollar, while the functional currency of the Company’s Japanese subsidiary is the Japanese Yen, the Hong Kong subsidiary is the Hong Kong dollar and the functional currency of the Company’s European operations is the Euro. Assets and liabilities denominated in foreign currencies are translated at the rate of exchange on the balance sheet date. Revenues and expenses are translated using the average exchange rate for the period. Net gains and losses resulting from the translation of foreign financial statements are recorded as accumulated other comprehensive income (loss) in stockholders’ equity. Net foreign currency gains or (losses) resulting from transactions in currencies other than the functional currencies are included in other income (expense), net in the accompanying consolidated F-12 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) statements of operations. For the years ended December 31, 2012, 2011 and 2010, the Company recorded net foreign currency gains (losses) of approximately $(0.9) million, $0.5 million and $1.1 million, respectively. Fair Value of Financial Instruments The carrying value of accounts receivable, foreign cash accounts, prepaid expenses, other current assets, accounts payable, accrued expenses, and current portion of debt are considered to be representative of their respective fair values because of the short- term nature of those instruments. Based on the borrowing rates currently available to the Company for loans with similar terms, management believes the fair value of notes payable, capital leases and other long-term debt approximates their carrying values. Cash equivalents are valued based on quoted market prices for identical instruments. The Company measures its fair value of financial instruments in accordance with the established framework for fair value using “levels” which are defined as follows: Level 1 fair value is determined from observable, quoted prices in active markets for identical assets or liabilities. Level 2 fair value is determined from quoted prices for similar items in active markets or quoted prices for identical or similar items in markets that are not active. Level 3 fair value is determined using the entity’s own assumptions about the inputs that market participants would use in pricing an asset or liability. The Company reassesses the fair value of contingent consideration of $3.7 million to be settled in cash related to acquisitions on a quarterly basis using the present value of future royalty payments due. This is a Level 3 measurement. Significant assumptions used in the measurement include estimates of the royalty payments due. Research and Development Research and development expense consists of costs associated with the design, development, testing, and enhancement of the Company’s products. Research and development costs also include salaries and related employee benefits, research-related overhead expenses, fees paid to external service providers, and costs associated with the Company’s Scientific Advisory Board and Executive Surgeon Panels. Research and development costs are expensed as incurred. In-Process Research and Development In-process research and development (“IPR&D”) consists of acquired research and development assets that are not part of an acquisition of a business and were not technologically feasible on the date the Company acquired them and had no alternative future use at that date or IPR&D assets acquired in a business acquisition that are determined to have no alternative future use. The Company expects all acquired IPR&D will reach technological feasibility, but there can be no assurance that commercial viability of these products will ever be achieved. The nature of the efforts to develop the acquired technologies into commercially viable products consists principally of planning, designing, developing and testing products in order to obtain regulatory approvals. If commercial viability were not achieved, the Company would likely look to other alternatives to provide these products. Until the technological feasibility of the acquired research and development assets are established, the Company expenses these costs. Leases The Company leases its facilities and certain equipment and vehicles under operating leases, and certain equipment under capital leases. For facility leases that contain rent escalation or rent concession provisions, the Company records the total rent payable during the lease term on a straight-line basis over the term of the lease. The Company records the difference between the rent paid and the straight-line rent as a deferred rent liability in the accompanying consolidated balance sheets. F-13 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Product Shipment Cost Product shipment costs are included in sales and marketing expense in the accompanying consolidated statements of operations. Product shipment costs totaled $2.9 million, $3.6 million and $2.6 million for the years ended December 31, 2012, 2011 and 2010, respectively. Advertising Costs Advertising costs are expensed as incurred. Total advertising costs for each of the periods presented in the accompanying statements of operations were not significant. Stock-Based Compensation The Company accounts for stock-based compensation under provisions which require that share-based payment transactions with employees be recognized in the financial statements based on their fair value and recognized as compensation expense over the vesting period. The amount of expense recognized during the period is affected by subjective assumptions, including: estimates of the Company’s future volatility, the expected term for its stock options, the number of options expected to ultimately vest, and the timing of vesting for the Company’s share-based awards. The Company uses a Black-Scholes-Merton option-pricing model to estimate the fair value of its stock option awards. The calculation of the fair value of the awards using the Black-Scholes-Merton option-pricing model is affected by the Company’s stock price on the date of grant as well as assumptions regarding the following: • Estimated volatility is a measure of the amount by which the Company’s stock price is expected to fluctuate each year during the expected life of the award. The Company’s estimated volatility through December 31, 2012 was based on a weighted-average volatility of its actual historical volatility over a period equal to the expected life of the awards. • The expected term represents the period of time that awards granted are expected to be outstanding. Through December 31, 2012, the Company calculated the expected term using a weighted-average term based on historical exercise patterns and the term from option date to full exercise for the options granted within the specified date range. • The risk-free interest rate is based on the yield curve of a zero-coupon U.S. Treasury bond on the date the stock option award is granted with a maturity equal to the expected term of the stock option award. • The assumed dividend yield is based on the Company’s expectation of not paying dividends in the foreseeable future. The Company used historical data to estimate the number of future stock option forfeitures. Share-based compensation recorded in the Company’s consolidated statement of operations is based on awards expected to ultimately vest and has been reduced for estimated forfeitures. The Company’s estimated forfeiture rates may differ from its actual forfeitures which would affect the amount of expense recognized during the period. The Company values equity awards with a market condition using a Monte Carlo simulation model. The Company accounts for stock option grants to non-employees in accordance with provisions which require that the fair value of these instruments be recognized as an expense over the period in which the related services are rendered. F-14 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Share-based compensation expense of awards with performance conditions is recognized over the period from the date the performance condition is determined to be probable of occurring through the time the applicable condition is met. Determining the likelihood and timing of achieving performance conditions is a subjective judgment made by management which may affect the amount and timing of expense related to these share-based awards. Share-based compensation is adjusted to reflect the value of options which ultimately vest as such amounts become known in future periods. Valuation of Stock Option Awards The assumptions used to compute the share-based compensation costs for the stock options granted during the years ended December 31, 2012, 2011 and 2010 are as follows: Year Ended December 31, 2012 2011 2010 Risk-free interest rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Expected dividend yield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weighted average expected life (years) . . . . . . . . . . . . . . . . . . . . . . . . . Volatility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.9-1.2% 1.2-2.5% 1.9-2.8% — 5.8-5.9 — 5.3-5.8 75-78% 56-57% 56-57% — 6.0-6.2 Compensation Costs The compensation cost that has been included in the Company’s consolidated statement of operations for all stock-based compensation arrangements is detailed as follows (in thousands, except per share amounts): Year Ended December 31, 2012 2011 2010 Cost of revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Research and development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sales and marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General and administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 137 261 1,695 1,447 $ 180 289 693 1,263 $ 252 185 1,008 1,732 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,540 $2,425 $3,177 Effect on basic and diluted net loss per share . . . . . . . . . . . . . . . . . . . . . $ (0.04) $ (0.03) $ (0.04) The amounts above include stock-based compensation expense of $1.3 million, $0 million and $0.2 million during the years ended December 31, 2012, 2011 and 2010, respectively, related to the vesting of stock options and awards granted to non-employees under consulting agreements. Not included in the table above is stock- based compensation expense of $0.2 million included in transaction related expense. Income Taxes The Company accounts for income taxes in accordance with provisions which set forth an asset and liability approach that requires the recognition of deferred tax assets and deferred tax liabilities for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized. In making such determination, a review of all available positive and negative evidence must be considered, including scheduled reversal of deferred tax liabilities, projected future taxable income, tax planning strategies, and recent financial performance. The Company recognizes interest and penalties related to uncertain tax positions as a component of the income tax provision. F-15 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Net Loss per Share Basic earnings per share (“EPS”) is calculated by dividing the net income or loss available to common stockholders by the weighted average number of common shares outstanding for the period, without consideration for common stock equivalents. Diluted EPS is computed by dividing the net income or loss available to common stockholders by the weighted average number of common shares outstanding for the period and the weighted average number of dilutive common stock equivalents outstanding for the period determined using the treasury-stock method. For purposes of this calculation, common stock subject to repurchase by the Company and options are considered to be common stock equivalents and are only included in the calculation of diluted earnings per share when their effect is dilutive. (In thousands, except per share data): Year Ended December 31, 2012 2011 2010 Numerator: Loss from continuing operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income from discontinued operations, net of tax . . . . . . . . . . . . . . . . . . . . . . . .. $(15,459) $(22,181) $(14,433) — — 78 Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $(15,459) $(22,181) $(14,355) Denominator: Weighted average common shares outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . Weighted average unvested common shares subject to repurchase . . . . . . . . . . . Weighted average common shares outstanding—basic . . . . . . . . . . . . . . . . . . . . Effect of dilutive securities: 90,870 (652) 89,165 (368) 79,052 (462) 90,218 88,798 78,590 Options, warrants and restricted share awards . . . . . . . . . . . . . . . . . . . . . . . — — — Weighted average common shares outstanding—diluted . . . . . . . . . . . . . . . . . . 90,218 88,798 78,590 Net loss per common share: Basic and diluted net loss per share from continuing operations . . . . . . . . . Basic and diluted net income per share from discontinued operations . . . . Basic and diluted net loss per share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ $ (0.17) $ — (0.25) $ — (0.18) — (0.17) $ (0.25) $ (0.18) As of December 31, 2012, 2011 and 2010, none of the outstanding redeemable preferred stock is convertible to common stock. The weighted-average anti-dilutive securities not included in diluted net loss per share were as follows (in thousands): Options to purchase common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Warrants to purchase common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unvested restricted stock awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Year Ended December 31, 2012 2011 2010 4,621 594 877 6,092 4,323 94 368 4,785 2,631 — 462 3,093 F-16 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Recent Accounting Pronouncements In September 2011, the Financial Accounting Standards Board (“FASB”) amended its goodwill guidance by providing entities an option to use a qualitative approach to test goodwill for impairment. An entity will be able to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. If it is concluded that this is the case, it is necessary to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. The amendment was effective for the Company on January 1, 2012. This amendment did not have a material impact on the Company’s consolidated financial position or results of operations. In 2011, the FASB issued new accounting guidance that requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance was effective for the Company in on January 1, 2012. The new guidance eliminates the current option to report other comprehensive income and its components in the statement of shareholders’ equity. While the new guidance changes the presentation of other comprehensive income, there are no changes to the components that are recognized in other comprehensive income. Other than presentation, the adoption of this guidance did not have an impact on the Company’s consolidated financial position or results of operations. 3. Acquisitions and Investment Acquisition of Phygen, LLC On November 6, 2012, the Company closed the Asset Purchase Agreement (the “Asset Purchase Agreement”) with Phygen, LLC (“Phygen”), pursuant to which the Company agreed to purchase Phygen’s right, title and interest in and certain assets used by Phygen in connection with the design, development, marketing and distribution of certain of Phygen’s spinal implant products, together with the intellectual property rights, contractual rights, inventories and certain liabilities related thereto. At the closing of the transaction the Company issued to Phygen 4,069,087 unregistered shares of the Company’s common stock and paid to Phygen $2 million in cash. The Company placed 1,170,960 unregistered shares of the common stock into an escrow account, which will serve as security against any potential indemnification obligations of Phygen under the Asset Purchase Agreement for a period of 12 months following the closing. In addition, the Company will pay to Phygen $4 million in cash on April 10, 2013, with such amount subject to set-off for any indemnification claims. In connection with the Phygen acquisition the Company incurred transaction related expenses of $1.1 million in the year ended December 31, 2012. The results of Phygen’s operations are included in the consolidated financial statements from November 7, 2012. Based on the closing price of Alphatec’s common stock of $1.69 on November 6, 2012, cash consideration and contingent liabilities, the total purchase price was as follows (in thousands): Fair value of Alphatec common stock issued upon closing . . . . . . . . . . . . . . . . . . . . . . . . . . . Cash consideration paid and payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contingent consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 8,856 5,900 3,666 Total purchase price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,422 Under the acquisition method of accounting, the total purchase price was allocated to Phygen’s net tangible and intangible assets was based on their estimated fair values at the date of the completion of the acquisition. F-17 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The following table summarizes the allocation of the preliminary purchase price (pending final valuation of intangible assets, deferred income taxes and inventory valuation) for Phygen and the estimated useful lives for the acquired intangible assets (in thousands): Useful lives (in years) Estimated Fair Value Net tangible assets assumed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acquired intangibles: Developed technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Covenant not-to-compete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customer-related intangible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total purchase price allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 3 12 12 $ 1,936 170 57 376 3,467 2,292 10,124 $18,422 The Company allocated $1.9 million to Phygen’s net tangible assets assumed, and $6.4 million to identifiable intangible assets acquired and $3.7 million to contingent consideration. A value of $10.1 million, representing the difference between the total purchase price and the aggregate fair values assigned to the net tangible and intangible assets acquired, less liabilities and contingent consideration assumed, was assigned to goodwill. The Company acquired Phygen to expand its product offerings to Phygen’s existing surgeon base. This and other factors contributed to a purchase price for Phygen that resulted in the recognition of goodwill. The amount recorded as acquired intangibles and goodwill is expected to be deductible for tax purposes. The Company increased the value of inventory it acquired from Phygen to its estimated fair value (“step up”), which represented an amount equivalent to estimated selling prices less distribution related costs and a normative selling profit. Consistent with stock rotation, the inventory step up will reverse ratably over 6 months and will be included in the Company’s post-combination financial statements. For the technology-related assets, the Company determined the values for each of these categories by estimating the present values of the net cash flows expected to be generated by each category of technology. The Company calculated the value of the trademark by estimating the present value of future royalty costs that would be avoided by a market participant due to ownership of the trademarks acquired. The Company calculated the value of the covenant not-to-compete by estimating the difference between the present value of future cash flows with and without the covenant not-to-compete in place. The customer-related intangible includes hospitals and distributors that take title to Phygen’s products. The Company determined the value of such customer-related intangible by estimating the present value of expected future net cash flows derived from such customers. The distribution network includes U.S.-based distributors that sell Phygen’s products to customers on a consignment basis. The Company determined the value of the intangibles related to the distribution network by estimating the difference between the present values of expected future net cash flows generated with and without the distribution network in place. F-18 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The Company calculated the value of the contingent consideration by estimating the present value of future minimum royalty payments due under licensing agreements entered into in connection with the Phygen acquisition. The Company will revalue the contingent consideration each reporting period with an offset to any increase or decrease in the statement of operations. Pro forma supplemental financial information is not provided as the impact of the Phygen acquisition was not material to operating results in the year ended December 31, 2012 or 2011. Acquisition of Scient’x On December 17, 2009, the Company entered into an acquisition agreement to acquire all of the shares of Scient’x, with Scient’x continuing after the acquisition as a wholly-owned subsidiary of the Company’s newly formed and wholly owned Dutch subsidiary. The acquisition, which closed on March 26, 2010, is accounted for under the acquisition method of accounting. The effective acquisition date for accounting purposes was the close of business on March 31, 2010, the end of Scient’x’s fiscal first quarter. The Company purchased Scient’x to acquire Scient’x’s product portfolio and technology, its international distribution network and existing customer base, and because of the increased scale of the combined entities. The transaction was structured as an all-stock transaction such that all of the outstanding stock of Scient’x was exchanged, pursuant to a fixed ratio, for 24,000,000 shares of the Company’s common stock. The shares to be paid by the Company at the closing were reduced to 23,730,644 shares in exchange for the Company paying certain acquisition fees and expenses incurred by HealthpointCapital Partners, L.P. and HealthpointCapital Partners II, L.P. (collectively, “HealthpointCapital”), the Company’s and Scient’x’s principal stockholders. As required by the acquisition agreement, the holders of both vested and unvested options to purchase shares of Scient’x common stock who were employed by either Scient’x or Alphatec on the closing date were entitled to receive replacement options to purchase shares of Alphatec common stock upon closing of the acquisition (“Replacement Options”), and such optionees were given credit for the vesting of their Scient’x options up to the closing date. $1.0 million was included in the purchase price to represent the fair value of the Scient’x options attributable to pre-combination service and was estimated using the Black-Scholes-Merton option pricing model with market assumptions. Option pricing models require the use of highly subjective market assumptions, including expected stock price volatility, which if changed can materially affect fair value estimates. The assumptions used in estimating the fair value of the Replacement Options include expected volatility of 56.0%, expected term of 6.0 years, and a risk-free interest rate of 2.5%. The difference between the fair value of the replacement options and the amount included in consideration transferred is being recognized as compensation cost in the Company’s post-combination financial statements over the requisite service period. Based on the closing price of Alphatec’s common stock of $6.39 on March 26, 2010, the fair value of the Replacement Options, and the amount payable in exchange for reduction in shares, the total purchase price was as follows (in thousands): Fair value of Alphatec common stock issued upon closing . . . . . . . . . . . . . . . . . . . . . . . . . . Fair value of Scient’x Replacement Options attributable to pre-combination service . . . . . Payable in exchange for reduction in shares to be paid in cash . . . . . . . . . . . . . . . . . . . . . . . $151,639 1,040 1,618 Total purchase price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $154,297 Under the acquisition method of accounting, the total purchase price was allocated to Scient’x’s net tangible and intangible assets based on their estimated fair values at the date of the completion of the acquisition. F-19 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The following table summarizes the allocation of the purchase price (in thousands) for Scient’x and the estimated useful lives for the acquired intangible assets: Useful lives (in years) Estimated Fair Value Net tangible assets assumed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acquired intangibles: Core technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Developed technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In-process technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corporate trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Key product trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customer-related intangible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Physician education programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8 Indefinite 5 9 15 10 10 $ 2,577 3,632 9,552 1,749 1,614 2,179 16,009 1,614 3,095 112,276 Total purchase price allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $154,297 The Company allocated $2.6 million to Scient’x net tangible assets assumed and $39.4 million to identifiable intangible assets acquired. A value of $112.3 million, representing the difference between the total purchase price and the aggregate fair values assigned to the net tangible and intangible assets acquired, less liabilities assumed, was assigned to goodwill. Alphatec acquired Scient’x to expand its product offerings, increase its addressable market, increase the size of its international business, and increase its revenues primarily outside of the U.S. Alphatec also believed that significant cost reduction synergies would be realized when the integration of the acquired business was complete. These are among the factors that contributed to a purchase price for the Scient’x acquisition that resulted in the recognition of goodwill. The amount recorded as acquired intangibles and goodwill is not expected to be deductible for tax purposes. The Company increased the value of inventory it acquired from Scient’x to its estimated fair value (“step up”), which represented an amount equivalent to estimated selling prices less distribution related costs and a normative selling profit. Consistent with stock rotation, the inventory step up reversed ratably over 14 months and was included in the Company’s post-combination financial statements. For the technology-related assets, the Company separated the acquired product families into the following three categories: core, developed, and in-process technology. The Company determined the values for each of these categories by estimating the present values of the net cash flows expected to be generated by each category of technology. The Company separated trademarks into the following two categories: corporate trademarks and key product trademarks. The Company calculated the values of each of these trademark categories by estimating the present value of future royalty costs that would be avoided by a market participant due to ownership of the trademarks acquired. The customer-related intangible includes hospitals and distributors that take title to Scient’x’s products. The Company determined the value of such customer-related intangible by estimating the present value of expected future net cash flows derived from such customers. F-20 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The distribution network includes U.S.-based distributors that sell Scient’x products to customers on a consignment basis. The Company determined the value of the intangibles related to the distribution network by estimating the difference between the present values of expected future net cash flows generated with and without the distribution network in place. The Company determined the value of physician education programs value by estimating the costs to rebuild such programs. The following unaudited pro forma information presents the consolidated results of operations of the Company and Scient’x as if the acquisition had occurred on January 1, 2010 (in thousands, except share data): Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operating loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net loss per share, basic and diluted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Year Ended December 31, 2011 2010 $197,711 (23,466) (21,131) (0.24) $ $182,945 (6,892) (8,785) (0.10) $ For the years ended December 31, 2012, 2011 and 2010, the Company incurred restructuring charges related to the acquisition of $0 million, $0.6 million and $2.4, respectively. These costs consist of severance payments and severance-related benefits, rent and other expenses for facilities and the cost of exiting two terminated European distributor agreements. Acquisition of Cibramed In January 2011, the Company acquired Cibramed Productos Medicos (“Cibramed”), a Brazilian medical device company. The Company purchased Cibramed to acquire its ANVISA regulatory registration certificates and its general licenses to conduct business in Brazil. The Company recorded an intangible asset of $0.6 million for the ANVISA regulatory registration certificates and licenses it purchased. The Company is amortizing this asset on a straight-line basis over its estimate life of 15 years. No product distribution rights were acquired. The purchase price of $0.6 million was paid in installments consisting of (i) 60% upon execution of the acquisition agreement; (ii) 20% due 90 days from the execution of the acquisition agreement and; (iii) 20% due 180 days from the execution of the acquisition agreement. The Company paid the full purchase price of $0.6 million in 2011. 4. Balance Sheet Details Accounts Receivable Accounts receivable consist of the following (in thousands): Accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allowance for doubtful accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $42,086 (1,074) $42,766 (1,055) Accounts receivables, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $41,012 $41,711 December 31, 2012 2011 F-21 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Inventories Inventories consist of the following (in thousands): Raw materials . . . . . . . . . . . Work-in-process . . . . . . . . . . Finished goods . . . . . . . . . . . Gross $ 5,863 1,350 59,864 December 31, 2012 December 31, 2011 Reserve for excess and obsolete Net Gross Reserve for excess and obsolete Net $ — $ 5,863 1,350 — 42,642 (17,222) $ 3,715 2,088 53,287 $ — $ 3,715 2,088 — 40,113 (13,174) Inventories . . . . . . . . . . . . . . $67,077 $(17,222) $49,855 $59,090 $(13,174) $45,916 Property and Equipment Property and equipment consist of the following (in thousands): Useful lives (in years) December 31, 2012 2011 Surgical instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Machinery and equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Computer equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Office furniture and equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . Leasehold improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Construction in progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7 5 5 various 39 n/a n/a Less accumulated depreciation and amortization . . . . . . . . . . . . . Property and equipment, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 56,712 13,996 3,269 3,528 4,092 64 13 1,045 $ 52,690 12,462 3,013 3,578 3,657 71 14 634 82,719 (52,316) 76,119 (44,643) $ 30,403 $ 31,476 Total depreciation expense was $14.2 million, $14.8 million and $13.1 million for the years ended December 31, 2012, 2011 and 2010, respectively. F-22 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Intangible Assets Intangibles assets consist of the following (in thousands): Developed product technology . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intellectual property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . License agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Core technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In-process technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trademarks and trade names . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customer-related . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distribution network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Physician education programs . . . . . . . . . . . . . . . . . . . . . . . . . . . Supply agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Less accumulated amortization . . . . . . . . . . . . . . . . . . . . . . . . . . . Intangible assets, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Useful lives (in years) 5-8 3 5 1-7 10 Indefinite 5-9 15 10 10 10 December 31, 2012 2011 $ 23,253 4,281 1,004 17,423 4,940 — 3,796 19,221 3,906 3,039 225 $ 22,875 4,531 1,004 14,297 3,489 1,680 3,671 15,476 1,614 2,972 225 81,088 (34,232) 71,834 (24,690) $ 46,856 $ 47,144 Total amortization expense was $9.6 million, $5.1 million and $3.9 million for the years ended December 31, 2012, 2011 and 2010, respectively. The future expected amortization expense related to intangible assets as of December 31, 2012 is as follows (in thousands): Year Ending December 31, 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $10,217 6,300 5,802 5,457 4,993 14,087 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $46,856 F-23 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Accrued Expenses Accrued expenses consist of the following (in thousands): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Phygen purchase price payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restructuring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sales milestones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accrued taxes payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deferred rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payroll and related . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Litigation settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . December 31, 2012 2011 $ 939 847 3,936 749 — 2,423 1,605 1,483 1,911 5,371 7,027 4,102 8,097 $ 249 1,033 — — 123 2,344 1,457 1,746 2,409 4,120 6,348 7,000 5,754 Total accrued expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38,490 $32,583 Goodwill The changes in the carrying amount of goodwill from December 31, 2011 through December 31, 2012 were as follows (in thousands): Balance at December 31, 2011 and 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acquisition of Phygen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of foreign exchange rate on goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $168,609 10,124 2,105 $170,194 — (1,585) Balance at December 31, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $180,838 $168,609 December 31, 2012 2011 5. License and Consulting Agreements License Agreements In June 2012, the Company entered into a private label supply agreement with a third party supplier whereby the Company acquired exclusive U.S. distribution rights to market a patented synthetic biologic product under its own brand name (the “Biologic Supply Agreement”). The Company made an up-front payment of $1.0 million in connection upon the execution of the Biologic Supply Agreement. The up-front payment was capitalized as an intangible asset and will be amortized straight-line over the four-year term of the Biologic Supply Agreement. Additionally, the Company is required to meet certain minimum purchase requirements of up to $3.0 million per year. In October 2012, the Company entered into a supply agreement with a third party supplier whereby the Company acquired exclusive worldwide distribution rights to sell an anchored, fully retractable cervical inter- F-24 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) body spacer (the “Cervical Spacer Supply Agreement”). The Company is required to make up-front payments totaling $1.0 million upon the executions of the Cervical Spacer Supply Agreement. The $1.0 million up-front payments were capitalized as an intangible asset and will be amortized over the seven-year term of the Cervical Spacer Supply Agreement. Additionally, the Company is required to meet certain minimum purchase requirements of up to $5.9 million per year to maintain its exclusive distribution rights. OsseoFix Spinal Fracture Reduction System License Agreement On April 16, 2009, the Company and Stout Medical Group LP (“Stout”) amended the license agreement that the parties had entered into in September 2007 (the “License Amendment”) that provides the Company with a worldwide license to develop and commercialize Stout’s proprietary intellectual property related to a treatment for vertebral compression fractures. The effective date of the License Amendment is March 31, 2009. Under the License Amendment, the timing of the minimum royalty payments has been adjusted and Stout’s ability to terminate the License Amendment was revised. Under the original license agreement, the Company’s minimum royalty obligation began in the year ending December 31, 2009 and there are milestones due upon attainment of sales volumes. Pursuant to the License Amendment, the minimum royalty obligation is suspended until a licensed product obtains regulatory approval from the United States Food and Drug Administration (the “FDA”). In addition, under the terms of the License Amendment, Stout has the ability to terminate the License Amendment if the Company is not using commercially reasonable efforts to obtain regulatory approval to market and sell a licensed product; provided that the Company has the right to delay such termination in exchange for making certain payments to Stout. If, during the time period when such payments are made, the Company were to make a regulatory filing for the marketing and sale of a licensed product, such termination will be null and void. Pursuant to the License Amendment, Stout is entitled to retain all up-front payments that had been previously paid to it. The other material terms of the license agreement were not changed in the License Amendment. OsseoScrew License Agreement In December 2007, the Company entered into an exclusive license agreement (the “OsseoScrew License Agreement”), with Progressive Spinal Technologies LLC (“PST”), which provides the Company with an exclusive worldwide license to develop and commercialize PST’s proprietary intellectual property related to an expanding pedicle screw with increased pull-out strength. The financial terms of the OsseoScrew License Agreement include: (i) a cash payment payable following the execution of the agreement; (ii) development and sales milestone payments in cash and the Company’s common stock that began to be achieved and paid in 2008; and (iii) a royalty payment based on net sales of licensed products. The agreement included milestone payments of $3.6 million consisting of cash and the Company’s common stock upon the completion of the biomechanical testing, which were attained in 2009. Furthermore, the agreement includes milestone payments of $2.5 million consisting of cash and the Company’s common stock upon market launch. In November 2010, the Company and PST entered into a fifth amendment to the OsseoScrew License Agreement. The fifth amendment includes (i) a milestone payment of a $1.5 million and the issuance of $1.0 million in shares of the Company’s common stock upon market launch in Europe; and (ii) royalty payments based on net sales of licensed products with minimum annual royalties beginning at the end of 2011. During the fourth quarter of 2010, the Company recorded an intangible asset of $2.5 million for a milestone payment required upon market launch in Europe which consisted of the cash payment of $1.5 million and $1.0 million in shares of the Company’s common stock. The Company is amortizing this asset over seven years, the estimated life of the product. The total number of shares of common stock which were issued on December 15, 2010, was 452,488. F-25 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) License Agreement with Helix Point, LLC In February 2009, the Company entered into a license agreement (the “Helifuse/Helifix License Agreement”) with Helix Point, LLC (“Helix Point”) that provides the Company with a worldwide exclusive license (excluding the People’s Republic of China) to develop and commercialize Helix Point’s proprietary intellectual property related to a device for the treatment of spinal stenosis. The financial terms of the Helifuse/ Helifix License Agreement include: (i) a cash payment of $0.2 million payable following the execution of the Helifuse/Helifix License Agreement; (ii) the issuance of $0.4 million of shares of the Company’s common stock following the execution of the Helifuse/Helifix License Agreement; (iii) development and sales milestone payments in cash and the Company’s common stock; and (iv) a royalty payment based on net sales of licensed products, with minimum annual royalties beginning in the year after the first commercial sale of a licensed product. During the third quarter of 2010, the Company recorded an intangible asset of $0.2 million for the assets received as this product is cleared for sale in Europe and technological feasibility is considered to have been achieved. The Company is amortizing this asset over seven years, the estimated life of the product. License Agreement with International Spinal Innovations, LLC In June 2009, the Company entered into a cross license agreement (the “ISI License Agreement”) with International Spinal Innovations, LLC (“ISI”) that provides the Company with a worldwide license to develop and commercialize ISI’s proprietary intellectual property related to a stand-alone anterior lumbar interbody fusion device. The financial terms of the ISI License Agreement include: (i) the issuance of 260,000 shares of the Company’s common stock following the execution of the ISI License Agreement; (ii) sales milestone payments in cash that could begin to be achieved and paid in 2014; and (iii) a royalty payment based on net sales of licensed products. In 2012, the Company entered into an amended agreement that established a minimum royalty payment amount that began in 2012. Distribution Agreement with Parcell Spine, LLC In January 2010, the Company entered into an exclusive distribution agreement (the “Parcell Agreement”) with Parcell Spine, LLC (“Parcell Spine”), which provides the Company with the exclusive right to distribute Parcell Spine’s proprietary adult stem cells for the treatment of spinal disorders under either Parcell’s trademarks or Alphatec Spine’s private label. The financial terms of the Parcell Agreement include: (i) a cash payment of $0.5 million payable following the execution of the Parcell Agreement; (ii) a milestone payment consisting of $1.0 million in cash and the issuance of $1.0 million of shares of the Company’s common stock following the successful completion of a pre-clinical study; and (iii) sales milestone payments in cash and the Company’s common stock. During the first quarter of 2010, the Company recorded an IPR&D charge of $0.5 million for the initial cash payment. During the third quarter of 2010, the pre-clinical study milestone was achieved and the Company recorded an IPR&D charge totaling $2.0 million, which consisted of a cash payment of $1.0 million and the issuance of $1.0 million worth of the Company’s common stock. The amounts were expensed as the technological feasibility associated with the IPR&D had not been established since the final prototype of the device had not been completed, additional items subject to risk of completion were necessary to comply with regulatory requirements and no alternative future use exists. The total number of shares of common stock, which were issued in accordance with the agreement for the achievement of a development milestone, was 465,116. In addition, during the third quarter of 2010, the Company recorded an intangible asset of $1.5 million for a milestone payment required upon market launch when the product became commercially ready for sale which consisted of a cash payment of $0.5 million and $1.0 million worth of the Company’s common stock. The Company is amortizing this asset over seven years, the estimated life of the product. The total number of shares of common stock, which were issued in accordance with the agreement for the achievement of a development milestone in September 2010, was 476,190. F-26 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) License Agreement with R Tree Innovations LLC In September 2010, the Company entered into a License Agreement (the “R Tree License Agreement”) with R Tree Innovations LLC (“R Tree”) that provides the Company with a worldwide license to develop and commercialize R Tree’s proprietary intellectual property related to its Epicage interbody fusion device and related instrumentation. The financial terms of the R Tree License Agreement include: (i) a cash payment of $0.8 million and the issuance of $0.5 million of the Company’s common stock following the execution of the R Tree License Agreement; (ii) development and sales milestone payments in cash that could begin to be achieved and paid in 2013; and (iii) a royalty payment based on net sales of licensed products. During the third quarter of 2010, the Company recorded an intangible asset of $1.3 million following the execution of the R Tree License Agreement. In November 2012, the Company and R Tree entered into an amendment to the R Tree License Agreement (the “R-Tree Amendment”). In connection with the R-Tree Amendment the Company made a cash payment of $0.3 million and issued $0.2 million worth of its common stock to RTree. The total consideration of $0.5 million was recorded as an intangible asset. The Company is amortizing the intangible asset over seven years, the estimated life of the product. The total number of shares of common stock, which were issued in accordance with the R Tree License Agreement and the R-Tree Amendment was 367,044. 6. Debt MidCap Loan and Security Agreement On June 7, 2012, the Company entered into a credit facility with MidCap (the “Credit Facility”), which permits the Company to borrow up to $50.0 million. The Credit Facility is due in June 2015 and consists of a revolving line of credit with a maximum borrowing base of $40.0 million, with the option to increase the maximum borrowing base to $50.0 million with the prior written consent of MidCap. The borrowing base is determined, from time to time, based on the value of domestic and foreign eligible accounts receivable and domestic eligible inventory. As collateral for the Credit Facility, the Company granted MidCap a security interest in substantially all of its assets, including all accounts receivable and all securities evidencing its interests in its subsidiaries. The revolving line of credit carries an interest equal to the London Interbank Offered Rate (“LIBOR”) plus 6.0%, which was 6.2% at December 31, 2012. The Credit Facility includes traditional lending and reporting covenants including a fixed charge coverage ratio and a senior leverage ratio to be maintained by the Company. The Credit Facility also includes several potential events of default, such as payment default and insolvency conditions, which could cause interest to be charged at a rate which is up to five percentage points above the rate effective immediately before the event of default or result in MidCap’s right to declare all outstanding obligation immediately due and payable. In January 2013, the Company entered into a limited waiver and limited consent agreement with MidCap (the “Waiver”). The Waiver gave the Company consent on certain provisions under the Credit Facility related to the acquisition of Phygen and maintenance of cash balances in the U.S. In February 2013, the Company and MidCap entered into a first amendment to the Credit Facility (the First Amendment”). The First Amendment allows the Company to exclude payments related to the Phygen acquisition and the settlement agreement with Cross Medical Products, LLC (“Cross”) from calculation of the fixed charge coverage ratio and the senior leverage ratio. In conjunction with the First Amendment, the Company paid MidCap a fee of $0.1 million. The Company was in compliance with all of the covenants of the Credit Facility as of December 31, 2012. Upon execution of the Credit Facility, the Company drew $34.3 million on the Credit Facility to pay off its existing term loan with Silicon Valley Bank (“SVB”) totaling $8.1 million and its existing line of credit with SVB totaling $17.6 million (collectively the “SVB Credit Facility”). The Company paid early termination and other fees to SVB associated with the SVB Credit Facility of $2.3 million and wrote-off $0.6 million of F-27 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) unamortized debt issuance and debt discount costs related to the SVB Credit Facility. The total loss on extinguishment of debt costs of $2.9 million is included in interest expense in the year ended December 31, 2012. The Company paid an up-front commitment fee to MidCap of $0.2 million and debt issuance costs of $0.2 million, which were capitalized as deferred debt issuance costs and are being amortized over the term of the Credit Facility using the effective interest method. During the year ended December 31, 2012, the Company repaid $99.9 million and drew an additional $21.4 million on its working capital line of credit. The balance of the line of credit as of December 31, 2012 was $38.6 million. Amortization of the debt discount and debt issuance costs, accretion of the finance charge and non-cash extinguishment of debt costs, which were recorded as non-cash interest expense, totaled $0.9 million, $0.4 million and $2.2 million for the years ended December 30, 2012, 2011 and 2010, respectively. Interest expense for the term loans and the Company’s working capital line of credit, excluding debt discount and debt issuance cost amortization, accretion of the additional finance charge and extinguishment of debt costs, totaled $2.6 million, $2.2 million and $3.5 million for the years ended December 31, 2012, 2011 and 2010, respectively. SVB Loan and Security Agreement In December 2008, the Company entered into a Loan and Security Agreement with SVB and Oxford Finance Corporation (the “Lenders Credit Facility”), consisting of a $15.0 million term loan and a $15.0 million working capital line of credit. The term loan carried a fixed interest rate of 11.25% with interest payments due monthly and principal repayments commencing in October 2009. The working capital line of credit carried a variable interest rate equal to the prime rate plus either 2.5% or 2.0%, depending on the Company’s financial performance. Interest-only payments were due monthly and the principal was due at maturity in April 2012. On March 26, 2010, the Company and the lenders amended the Lenders Credit Facility. The working capital line of credit was increased by $10 million, to $25 million. In addition, the Company combined the previously existing term loan facility provided by Oxford to Scient’x with its existing term loan facility. The Company’s term loan interest rate was amended to a fixed rate of 12.0%. The Company was required to repay the principal plus interest in 25 equal monthly installments, ending in April 2012. The working capital line of credit interest rate was amended to equal the prime rate plus 4.5%, with a floor rate of 8.5%. Interest-only payments were due monthly and the principal was due at maturity in April 2012. In connection with the amendment, the Company paid debt issuance costs and other transaction fees totaling $0.8 million, which were capitalized and were being amortized over the remaining term of the loan using the effective interest method. On October 29, 2010, the Company amended and restated the Lenders Credit Facility (the “SVB Credit Facility”). As part of the SVB Credit Facility, Oxford was removed as a co-lender. The SVB Credit Facility consisted of a working capital line of credit, which permitted the Company to borrow up to $32 million. The actual amount available was based on eligible accounts receivable and eligible inventory. The working capital line of credit carried an interest rate of the greater of 5.5% or the prime rate plus 1.5%. Interest-only payments were due monthly and the principal was due at maturity, which occurs in October 2013. Upon execution of the SVB Credit Facility, the Company drew $17.6 million on the working capital line of credit, resulting in a total line of credit draw of $31.9 million. The funds from the working capital line of credit were used to pay off the Company’s then-existing term loans under the Lenders Credit Facility totaling $9.5 million and Scient’x’s then-existing term loan of $5.3 million with Oxford. In addition, the Company paid early termination and other fees of $0.5 million, a final finance charge of $1.2 million and accrued monthly interest of $0.2 million. The Company incurred debt issuance costs on the Amended Credit Facility of $0.6 million, which included an upfront fee of $0.2 million paid to SVB. The debt issuance costs were capitalized and were being F-28 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) amortized over the term of the loan using the effective interest method. In addition, the Company recorded non- cash interest expense of approximately $0.5 million to write off its debt issuance costs and debt discount related to its prior term loans. The SVB Credit Facility contained customary lending and reporting covenants, including compliance with financial covenants consisting of a minimum adjusted quick ratio and minimum quarterly free cash flow. In January 2011, the Company executed a first amendment to the SVB Credit Facility. The working capital line of credit interest rate was amended to equal the SVB prime rate plus 3.5% during the first half of 2011, the SVB prime rate plus 3.0% during the third quarter of 2011, the SVB prime rate plus 2.0% during the fourth quarter of 2011, and the greater of 5.5% or the SVB prime rate plus 1.5% thereafter. In addition, the adjusted quick ratio covenant was amended to allow for a lower minimum ratio. In August 2011, the Company executed a second amendment to the SVB Credit Facility with SVB. The second amendment included a waiver for non-compliance with the minimum quarterly free cash flow covenant for the quarterly period ended June 30, 2011. The working capital line of credit interest rate was amended to equal the greater of 5.5% or the SVB prime rate plus 2.0% beginning on January 1, 2012. In conjunction with the second amendment, the Company paid SVB a fee of $50,000. In December 2011, the Company executed a third amendment to the SVB Credit Facility with SVB. The third amendment included a waiver for non-compliance with the minimum quarterly financial covenants for the quarterly period ended September 30, 2011 and it also restructured the credit facility terms consisting of a $10 million term loan and a working capital line of credit which permitted the Company to borrow up to $22 million. The term loan carried a fixed interest rate equal to the greater of 8.5% or the SVB prime rate plus 4.5% with principal plus interest repayments due in 16 equal quarterly installments. The term loan matured October 2015 and the Company was subject to a prepayment penalty if the term loan is repaid prior to maturity. The funds from the term loan were used to refinance a portion of the line of credit under the SVB Credit Facility. In connection with the third amendment to the SVB Credit Facility, finance charges totaling $0.2 million were waived in exchange for the issuance of 93,750 warrants to SVB to purchase shares of the Company’s common stock. The warrants are immediately exercisable, can be exercised through a cashless exercise, have an exercise price of $1.60 per share and have a ten year term. The Company recorded the value of the warrants of $0.1 million as a debt discount. The value of the warrants was determined on the date of grant using the Black- Scholes-Merton valuation method with the following assumptions: risk free interest rate of 1.23%, volatility of 57.4%, a ten year term and no dividend yield. Under the third amendment to the SVB Credit Facility, the Company was required to maintain compliance with financial covenants consisting of a quarterly minimum adjusted quick ratio and a quarterly minimum EBITDA level, as well as a maximum annual capital expenditures limit. The minimum adjust quick ratio is defined as the sum of the Company’s cash held with SVB and 80% of eligible domestic accounts receivable divided by the SVB Credit Facility balance. In February 2012, the Company executed a fourth amendment to the SVB Credit Facility. The fourth amended to the SVB Credit Facility included a waiver for non-compliance with the minimum quarterly EBITDA covenant for the quarterly period ended December 31, 2011. The amendment also reduced the maximum amount available on the working capital line of credit from $22 million to $19.5 million and accelerated one of the quarterly term loan payments of $0.6 million which was due and payable upon execution of the amendment. In conjunction with the fourth amendment to the SVB Credit Facility, the Company paid SVB a fee of $0.1 million. F-29 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Other Debt Agreements The Company has various capital lease arrangements. The leases bear interest at rates ranging from 6.6% to 9.6%, are generally due in monthly principal and interest installments, are collateralized by the related equipment, and have various maturity dates through June 2017. Long-term debt consists of the following (in thousands): December 31, 2012 2011 Line of credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Term loan, net of debt discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notes payable to Japanese banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Capital leases (See Note 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bond payable to a Japanese bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Note payable related to software license purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financing agreements for premiums on insurance policies . . . . . . . . . . . . . . . . . . . . . . . . . . . $38,634 — — 1,770 — 59 1,204 $16,854 9,903 138 233 64 270 736 Total debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Less: current portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,667 (1,700) 28,198 (4,396) Total long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39,967 $23,802 Principal payments on debt are as follows as of December 31, 2012 (in thousands): Year Ending December 31, 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add: capital lease principal payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Less: current portion of long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,263 — 38,634 — — — 39,897 1,770 41,667 (1,700) Long-term debt, net of current portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39,967 7. Commitments and Contingencies Leases During the first quarter of 2008, the Company entered into a lease agreement and sublease agreement in order to consolidate the use and occupation of its then existing premises into two adjacent facilities, as described below. The Company also leases certain equipment and vehicles under operating leases which expire on various dates through 2017, and certain equipment under capital leases which expire on various dates through 2017. In February 2008, the Company entered into a sublease agreement (the “Sublease”), for office, engineering, and research and development space. The Sublease term commenced May 2008 and ends on January 31, 2016. F-30 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The Company is obligated under the Sublease to pay base rent and certain operating costs and taxes for the building. Monthly base rent payable by the Company was approximately $80,500 during the first year of the Sublease, increasing annually at a fixed annual rate of 2.5% to approximately $93,500 per month in the final year of the Sublease. The Company’s rent was abated for months one through seven of the Sublease. At the sublease inception, the Company paid a security deposit in the amount of approximately $93,500. In March 2008, the Company entered into a lease agreement (the “Lease”) for additional office, engineering, research and development and warehouse and distribution space. The Lease term commenced on December 1, 2008 and ends on January 31, 2017. The Company is obligated under the Lease to pay base rent and certain operating costs and taxes for the building. The monthly base rent payable by the Company was approximately $73,500 during the first year of the Lease, increasing annually at a fixed annual rate of 3.0% to approximately $93,000 per month in the final year of the Lease. The Company’s rent was abated for the months two through eight of the term of the Lease in the amount of $38,480. At the lease inception, the Company paid a security deposit in the amount of approximately $293,200 consisting of cash and two letters of credit. Following the Company’s achievement of certain financial milestones, the lessor is obligated to return a portion of the security deposit to the Company. The lessor provided a tenant improvement allowance of $1.1 million to assist with the configuration of the facility to meet the Company’s business needs. Scient’x leases office and manufacturing warehouse and distribution space in Beaurains, France. The lease term commenced in December 2002 and ends in December 2013. The monthly base rent payable by Scient’x is approximately $40,000 per month, which increases annually with the cost of inflation in France. Future minimum annual lease payments under the Company’s operating and capital leases are as follows (in thousands): Year ending December 31, Operating Capital 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Less: amount representing interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Present value of minimum lease payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Current portion of capital leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Capital leases, less current portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,684 2,735 2,432 1,286 180 271 $10,588 $ 558 527 466 423 82 — 2,056 (286) 1,770 437 $1,333 Rent expense under operating leases for the years ended December 31, 2012, 2011 and 2010 was $3.7 million, $3.7 million and $3.2 million, respectively. F-31 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Litigation In 1998, Eurosurgical, a French company in the business of sales and marketing of spinal implants, entered into a distribution agreement for the United States, Mexico, Canada, India and Australia with Orthotec, LLC, a California company, or Orthotec. In 2004, Orthotec sued Eurosurgical in connection with a contractual dispute and a $9 million judgment was entered against Eurosurgical by a California court in 2006. In 2007, a federal court in California declared Eurosurgical liable to Orthotec for $30 million in connection with an intellectual property dispute. In 2006, Eurosurgical’s European assets were ultimately acquired by Surgiview, SAS, or Surgiview, in a sale agreement approved by a French court. Pursuant to this sale, Surgiview became a subsidiary of Scient’x in 2006. Orthotec attempted to recover on Eurosurgical’s obligations by filing a motion in a California court to add Surgiview to the judgment against Eurosurgical on theories including successor liability and fraudulent conveyance. In February 2007, the California court denied Orthotec’s motion, indicating that Orthotec had not carried its burdens of proof. Orthotec chose to not proceed with a further hearing in September 2007. In May 2008, after the acquisition of Scient’x by HealthpointCapital in 2007, Orthotec sued Scient’x, Surgiview, HealthpointCapital and certain former directors of Scient’x (who also serve on the Company’s board) in a new action in California state court in which it sought, among other things, to have the defendant’s bear responsibility for the $39 million in judgments that had been assessed against Eurosurgical. In April 2009, the California court dismissed this matter on jurisdictional grounds, and Orthotec appealed the ruling. In December 2010, the California Court of Appeal issued a decision that affirmed in part and reversed in part the trial court’s decision dismissing the entire California action based on lack of personal jurisdiction. The Court of Appeal affirmed the trial court’s ruling that Orthotec failed to establish personal jurisdiction over all parties except Surgiview, finding that the trial court could exercise jurisdiction over that entity. In January 2012, OrthoTec amended its complaint and added the Company as a defendant to the California matter. Alphatec filed a motion for summary judgment in November 2012 that is fully briefed and the parties are awaiting a decision. The case is currently scheduled for trial in March 2013. In addition, also in May 2008, a similar action was filed in New York against HealthpointCapital, Scient’x and two former directors of Scient’x (who also serve on the Company’s board), in which Orthotec sought, among other things, to have the defendant’s bear responsibility for the $39 million in judgments that had been assessed against Eurosurgical. In July 2009, Orthotec voluntarily dismissed Scient’x from the action. In November 2009, the court dismissed Orthotec’s claims based on collateral estoppel, and Orthotec appealed this ruling. In March 2011, the state appeals court reversed the lower court’s decision to dismiss Orthotec’s claims. The New York matter then proceeded with discovery, and the defendants filed a motion for summary judgment in December 2012, which is currently being briefed by the parties. Additionally, the defendants filed a motion to dismiss one of the plaintiff’s claims based upon Orthotec’s spoliation of evidence, which motion was denied, and that denial is currently on appeal. Since March 2010 the Company has been indemnifying HealthpointCapital and the two former directors of Scient’x in connection with the New York matter. While the Company intends to vigorously defend against these actions, and believes that the plaintiff’s allegations are without merit, the outcome of the litigations cannot be predicted at this time and any outcome in favor of Orthotec, regardless of who the defendant is, could have a significant adverse effect on the Company’s financial condition and results of operations. On August 25, 2010, an alleged shareholder of the Company’s filed a derivative lawsuit in the Superior Court of California, San Diego County, purporting to assert claims on behalf of the Company against all of its directors and certain of its officers and HealthpointCapital. Following the filing of this complaint, similar complaints were filed in the same court and in the U.S. District Court for the Southern District of California F-32 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) against the same defendants containing similar allegations. The complaint filed in federal court was dismissed by the plaintiff without prejudice in July 2011. The state court complaints have been consolidated into a single action. The Company has been named as a nominal defendant in the consolidated action. Each complaint alleges that the Company’s directors and certain of its officers breached their fiduciary duties to the Company related to the Scient’x transaction, and by making allegedly false statements that led to unjust enrichment of HealthpointCapital and certain of the Company’s directors. The complaints seek unspecified monetary damages and an order directing the Company to adopt certain measures purportedly designed to improve its corporate governance and internal procedures. This consolidated lawsuit has been stayed by order of the court until May 10, 2013. The Company believes the claims are without merit and intends to vigorously defend itself against these complaints; however no assurances can be given as to the timing or outcome of this lawsuit. At December 31, 2012, the probable outcome of any of the aforementioned litigation matters cannot be determined nor can the Company estimate a range of potential loss. Accordingly, in accordance with the authoritative guidance on the evaluation of contingencies, the Company has not recorded an accrual related to these litigation matters. The Company is and may become involved in various other legal proceedings arising from its business activities. While management does not believe the ultimate disposition of these matters will have a material adverse impact on the Company’s consolidated results of operations, cash flows or financial position, litigation is inherently unpredictable, and depending on the nature and timing of these proceedings, an unfavorable resolution could materially affect the Company’s future consolidated results of operations, cash flows or financial position in a particular period. Royalties The Company has entered into various intellectual property agreements requiring the payment of royalties based on the sale of products that utilize such intellectual property. These royalties primarily relate to products sold by Alphatec Spine and are calculated either as a percentage of net sales or in one instance on a per-unit sold basis. Royalties are included on the accompanying consolidated statement of operations as a component of cost of revenues. 8. Redeemable Preferred Stock and Stockholders’ Equity Redeemable Preferred Stock The Company issued shares of redeemable preferred stock in connection with its initial public offering in June 2006. As of December 31, 2012, the redeemable preferred stock carrying value was $23.6 million and there were 20 million shares of redeemable preferred stock authorized. The redeemable preferred stock is not convertible into common stock but is redeemable at $9.00 per share, (i) upon the Company’s liquidation, dissolution or winding up, or the occurrence of certain mergers, consolidations or sales of all or substantially all of the Company’s assets, before any payment to the holders of the Company’s common stock, or (ii) at the Company’s option at any time. Holders of redeemable preferred stock are generally not entitled to vote on matters submitted to the stockholders, except with respect to certain matters that will affect them adversely as class, and are not entitled to receive dividends. The carrying value of the redeemable preferred stock was $7.11 per share at December 31, 2012 and 2011. The redeemable preferred stock is required to be shown in the Company’s financial statements separate from stockholders’ equity and any adjustments to its carrying value to its redemption value up to its redemption value of $9.00 per share will be reported as a dividend. F-33 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) Public Offering of Common Stock In April 2010, the Company completed a public offering of an aggregate of 18,400,000 shares of its common stock in an underwritten public offering (the “Offering”). The shares were sold at an offering price per share of $5.00, less underwriting commissions and discounts. Of the shares of common stock sold in the Offering, 9,200,000 shares were sold by the Company and 9,200,000 were sold by HealthpointCapital Partners, L.P (the “Selling Stockholder”). The net proceeds to the Company were approximately $43.1 million after deducting underwriting discounts and commissions and expenses payable by the Company. The Company did not receive any proceeds from the sale of shares of common stock by the Selling Stockholder. Subscription Agreements for Sale of Common Stock On February 9, 2010, the Company entered into subscription agreements with a group of purchasers for the sale of an aggregate of 1,592,011 shares of the Company’s common stock at a purchase price of $4.1457 per share, for gross proceeds of approximately $6.6 million (the “Subscription Agreements Offering”). The net proceeds to the Company from the Subscription Agreements Offering, after deducting expenses, were approximately $6.5 million. Eclipse Advisors, LLC On May 8, 2012, the Company entered into an equity line of credit arrangement with Eclipse Advisors, LLC (“Eclipse”), which provides that, upon the terms and subject to the conditions set forth therein, the Company is entitled to sell and Eclipse is committed to purchase up to $25 million of shares of the Company’s common stock over a 24-month term (the “Investment Agreement). From time to time, and at the Company’s sole discretion, the Company may present Eclipse with put notices, to purchase the Company’s common stock in two tranches over a 31-day period (a “put period”) with each put period subject to being reduced by the Company based on a minimum threshold price of the Company’s common stock during the put period. The Company may not present Eclipse with a new put notice at any time there is an outstanding put notice. Once presented with a put notice, Eclipse is required to purchase: (i) 50% of the dollar amount of the shares specified in the put notice on the 16th day after the date of the put notice; and (ii) 50% of the dollar amount of the shares specified in the put notice on the 31st day after the date of the put notice. The price per share for the sale of such common stock for each of the two closings in a put period shall be 90% of the volume weighted average price for the Company’s common stock over the trading days that exist during the 15 days prior to such closing date. If the daily volume weighted average price of the Company’s common stock falls below a threshold price established by the Company on any trading day during a put period, the Company has the right to send a cancellation notice to Eclipse, which will reduce the Company’s obligation to sell the shares to Eclipse to no greater than 50% of the dollar amount set forth in the put notice. Upon execution of the Investment Agreement and as provided for therein, the Company issued Eclipse 231,045 shares of common stock representing a $500,000 commitment fee, determined by dividing $500,000 by the volume weighted average price for the Company’s common stock for the five trading days preceding the effective date of the Investment Agreement. The Company has not sold any shares to Eclipse under the Investment Agreement. F-34 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) 9. Stock Benefit Plans and Stock-Based Compensation In 2005, the Company adopted its 2005 Employee, Director, and Consultant Stock Plan (the “2005 Plan”). The 2005 Plan allows for the grant of options and restricted stock awards to employees, directors, and consultants of the Company. The 2005 Plan has 8,400,000 shares of common stock reserved for issuance. The Board of Directors determines the terms of the restricted stock and the term of each option, option price, number of shares for which each option is granted, whether restrictions will be imposed on the shares subject to options, and the rate at which each option is exercisable. Options granted under the 2005 Plan expire no later than 10 years from the date of grant (five years for incentive stock options granted to holders of more than 10% of the Company’s voting stock). Options generally vest over a four or five year period and may be immediately exercisable upon a change of control of the Company. The exercise price of incentive stock options may not be less than 100% of the fair value of the Company’s common stock on the date of grant. The exercise price of any option granted to a 10% stockholder may be no less than 110% of the fair value of the Company’s common stock on the date of grant. At December 31, 2012, approximately 530,000 shares of common stock remained available for issuance under the 2005 Plan. Stock Options A summary of the Company’s stock option activity under the 2005 Plan and related information is as follows (in thousands, except as indicated and per share data): Outstanding at December 31, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exercised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forfeited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Shares 4,717 2,574 (62) (2,309) Outstanding at December 31, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,920 Weighted average exercise price $3.31 $1.94 $1.23 $3.51 $2.51 Options vested and exercisable at December 31, 2012 . . . . . . . . . . . . . 1,702 $3.32 Options vested and expected to vest at December 31, 2012 . . . . . . . . . 4,484 $2.55 Weighted average remaining contractual term (in years) Aggregate intrinsic value 7.71 — — — 8.03 5.59 7.88 $107 — — — $ 64 $ 51 $ 63 The weighted-average grant-date fair value of stock options granted during the years ended December 31, 2012, 2011 and 2010 was $1.10, $1.48 and $1.95, respectively. The aggregate intrinsic value of options at December 31, 2012 is based on the Company’s closing stock price on that date of $1.65 per share. As of December 31, 2012, there was $3.2 million of unrecognized compensation expense for stock options and awards which is expected to be recognized on a straight-line basis over a weighted average period of approximately 2.6 years. The total intrinsic value of options exercised for the year ended December 31, 2011 and 2010 was $0.1 million and $0.1 million, respectively. The total intrinsic value of options exercised was immaterial for the year ended December 31, 2012. In connection with the acquisition of Scient’x, the holders of both vested and unvested options to purchase shares of Scient’x common stock who were employed by either Scient’x or Alphatec on the closing date were entitled to receive replacement options to purchase shares of Alphatec common stock upon closing of the acquisition, and such optionees were given credit for the vesting of their Scient’x options up to the closing date. F-35 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The Company calculated the fair value of the Scient’x options attributable to pre-combination service using the Black-Scholes-Merton option pricing model with market assumptions. The fair value of the replacement options that was associated with pre-combination service was included in consideration transferred in the acquisition. The difference between the fair value of the replacement options and the amount included in consideration transferred is being recognized as compensation cost in the Company’s post-combination financial statements over the requisite service period. The Company granted 754,838 options, with an exercise price of $6.39, to purchase shares of Alphatec common stock to Scient’x optionees. On November 19, 2012, the Company commenced a stock option exchange offer for its U.S. employees. The options eligible for exchange had an exercise price equal to or greater than $2.85. The exercise price of the exchanged options was the higher of 115% of the closing price of the Company’s common stock on the exchange date and $2.00. The exchange offer occurred on December 19, 2012 and the exercise price for the exchanged options was $2.05. A total of 1,109,604 options to purchase shares of the Company’s common stock were exchanged. Many of the outstanding options were either partially or fully vested. The exchanged options will be unvested upon issuance and will vest over three years, with one-third of each option vesting on the first anniversary date and the remaining portion of each option vesting in equal quarterly installments over the eight quarters following the first anniversary date. In November 2010, the Company exchanged 330,549 options that were issued to Scient’x optionees for a reduced number of options at the then current Alphatec common stock price. The ratio of options exchanged was calculated so that the fair value of the new options was equal to the fair value of the previously issued options resulting in no incremental stock compensation expense. The Company granted 193,144 options with an exercise price of $2.31. Restricted Stock Awards The following table summarizes information about the restricted stock awards activity (in thousands, except as indicated and per share data): Unvested at December 31, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Awarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forfeited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Shares 361 702 (77) (109) Unvested at December 31, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877 Weighted average grant date fair value $2.61 $1.57 $2.95 $2.10 $1.81 Weighted average remaining recognition period (in years) 3.22 1.49 The weighted average fair value per share of awards granted during the years ended December 31, 2012, 2011 and 2010 was $1.57, $2.61 and $2.60, respectively. Warrants In March 2012, the Company entered into a consulting agreement with a third-party entity and pursuant to such consulting agreement, the Company issued a warrant to the consultant to purchase an aggregate of 500,000 shares of the Company’s common stock at an exercise price of $2.50 per share. The warrant expires on March 1, 2015 and vested 25% on the last day of September 2012, December 2012 and will vest 25% on each of the day of March 2013 and June 2013. F-36 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) In December 2011, in connection with the third amendment to the SVB Credit Facility, finance charges totaling $0.2 million were waived in exchange for the issuance of 93,750 warrants to SVB to purchase shares of the Company’s common stock. The warrants are immediately exercisable, can be exercised through a cashless exercise, have an exercise price of $1.60 per share and have a ten year term. The Company recorded the value of the warrants of $0.1 million as a debt discount. The value of the warrants was determined on the date of grant using the Black-Scholes-Merton valuation method with the following assumptions: risk free interest rate of 1.23%, volatility of 57.4%, a ten year term and no dividend yield. In December 2008, the Company issued warrants to the lenders of the Lenders Credit Facility to purchase an aggregate of 476,190 shares of the Company’s common stock with an exercise price of $1.89 per share. The warrants were immediately exercisable, could be exercised through a cashless exercise and had a ten-year term. The Company recorded the value of the warrants of $0.9 million as a debt discount. The value of the warrants was determined on the grant date using the Black-Scholes-Merton valuation method with the following assumptions: risk free interest rates of 2.67%, volatility of 60.9%, a ten year term and no dividends yield. In September 2009, one of the lenders to the Lender Credit Facility exercised all of its warrants pursuant to the cashless exercise provision of its warrant agreement resulting in the Company issuing 113,388 shares of its common stock to the lender. The net value of the shares issued was $530,000. Following this exercise, warrants to purchase 285,714 shares of common stock were outstanding as of December 31, 2009. In March 2010, one of the lenders to the Lender Credit Facility exercised all of its warrants pursuant to the cashless exercise provision of its warrant agreement resulting in the Company issuing 196,161 shares of its common stock to the lender. The net value of the shares issued was $1.2 million. Media Advertising Agreement In 2012, the Company entered into consulting agreements with a third-party entity for marketing and advertising services. In connection with these agreements the Company paid the consultant $0.2 million, issued 500,000 registered shares of the Company’s common stock and issued 352,000 unregistered shares of the Company’s common stock. The Company recorded total stock compensation of $1.1 million in the year ended December 31, 2012 related to these agreements. Phygen Success Fee In 2012, in connection with the Phygen acquisition the Company entered into a consulting agreement with a third-party entity for financial services. In connection with this agreement the Company issued 86,705 shares of the Company’s common stock valued at $0.2 million to the third party entity. Treasury Stock On August 31, 2009, pursuant to a settlement agreement with the claimants in a lawsuit filed against the Company, the Company issued 114,766 shares of its common stock, valued at a price per share of $4.35, to the claimants. The resale of such shares was not covered by a registration statement. As required by the settlement agreement, nine months after the issuance, the value of such stock ($0.5 million) was measured against the then- current value of the Company’s common stock on such date. The Company performed the measurement F-37 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) calculation on February 28, 2010 using a per share price of the Company’s common stock of $5.20, which resulted in the forfeiture of 18,612 shares by the claimants. The Company recorded the fair value of the forfeited shares of $0.1 million as treasury stock. As per the agreement, through the third quarter of 2010, the Company reviewed the fair value of the $0.5 million equity issuance on a quarterly basis to determine if additional accounting was warranted based on a fluctuation in the Company’s stock price. Based on this review, the Company recorded a fair value adjustment totaling $0.3 million to decrease litigation expense. Common Stock Reserved for Future Issuance Common stock reserved for future issuance consists of the following (in thousands): Stock options outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Awards outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Warrants outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authorized for future grant under 2005 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . December 31, 2012 4,920 877 594 531 6,922 10. Income Taxes The components of the pretax loss from operations for the years ended December 31, 2012, 2011 and 2010 are as follows (in thousands): U.S. Domestic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (3,310) (13,308) $(14,400) (12,288) $ (8,428) (8,059) Pretax loss from operations . . . . . . . . . . . . . . . . . . . . . . . . $(16,618) $(26,688) $(16,487) The components of the (benefit) provision for income taxes are presented in the following table (in Year Ended December 31, 2012 2011 2010 thousands): Current: Year Ended December 31, 2012 2011 2010 Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total current (benefit) provision . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 107 24 2,083 2,214 $ 4 222 (388) (162) $ 4 158 (271) (109) Deferred: Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total deferred benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 29 (3,539) (3,373) 163 8 (4,516) (4,345) 162 (30) (2,077) (1,945) Total benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $(1,159) $(4,507) $(2,054) F-38 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The (benefit) provision for income taxes differs from the amount of income tax determined by applying the applicable U.S. statutory federal income tax rate to pretax income as a result of the following differences: Federal statutory rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjustments for tax effects of: State taxes, net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stock-based compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deemed foreign dividend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transaction costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permanent adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax rate adjustment Uncertain tax positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Valuation allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . December 31, 2012 2011 2010 (35.0)% (35.0)% (35.0)% (0.0)% (0.7)% (0.8)% (0.5)% 1.8% 4.4% (0.1)% 3.6% 3.1% (0.7)% (1.2)% (3.4)% 0.2% 10.3% — — 8.0% — 5.0% 0.8% 3.4% 0.7% (0.5)% 4.4% 14.9% (1.5)% 0.8% 3.3% (3.1)% (1.0)% 5.2% 8.7% 3.6% (7.0)% (16.8)% (12.5)% The 2012 benefit for income taxes primarily consists of benefits associated with the Company’s French operations and the reversal of the valuation allowance against the Japanese deferred tax assets partially offset by an increase in uncertain tax positions associated with the European operations and an increase in the goodwill deferred tax liability. Significant components of the Company’s deferred tax assets and liabilities as of December 31, 2012 and 2011 are as follows (in thousands): December 31, 2012 2011 Deferred tax assets: Allowances and reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accrued expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inventory reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net operating loss carryforwards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stock-based compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income tax credit carryforwards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,088 $ 648 7,839 28,786 1,866 4,156 1,276 978 532 6,648 26,989 669 6,670 1,277 Valuation allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,659 (36,031) 43,763 (35,211) Total deferred tax assets, net of valuation allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,628 8,552 Deferred tax liabilities: Property and equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total deferred tax liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926 6,910 1,011 8,847 494 9,790 845 11,129 Net deferred tax assets (liabilities) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 781 $ (2,577) F-39 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The realization of deferred tax assets may be dependent on the Company’s ability to generate sufficient income in future years in the associated jurisdiction to which the deferred tax assets relate. As of December 31, 2012, a valuation allowance of $36.1 million has been established against the net deferred tax assets as realization is uncertain. The net deferred tax assets primarily consist of Japanese deferred tax assets partially offset by a deferred tax liability associated with goodwill. Deferred tax liabilities associated with tax deductible goodwill cannot be considered a source of income to support the realization of deferred tax assets because the reversal of these deferred tax liabilities is considered indefinite. At December 31, 2012, such amounts represent $1.0 million. At December 31, 2011, the Company considered all available positive and negative evidence, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies, and recent financial performance. Based on the review of all positive and negative evidence, including a three year cumulative pre-tax loss, it was concluded that a full valuation allowance should be recorded against all U.S. and foreign net deferred tax assets. At December 31, 2012, the Company continued to believe that a full valuation allowance should be recorded against all U.S. and European net deferred tax assets. However, during 2012, it was determined that the Company was more-likely-than-not to realize its Japanese net deferred tax assets. The Company removed the valuation allowance on the Japanese net deferred tax assets and recognized a tax benefit of $1.4 million. In the event that the Company were to determine that it would not be able to realize all or part of its Japanese net deferred tax assets in the future, it would increase the valuation allowance and recognize a corresponding tax provision in the period in which it made such a determination. Likewise, if the Company later determines that it is more-likely-than-not to realize all or a portion of the U.S. or European net deferred tax assets, it would reverse the previously provided valuation allowance. Although realization is not assured, the Company believes that it is more-likely-than-not that the balance of the deferred tax assets, net of the valuation allowance, as of December 31, 2012 will be realized. At December 31, 2012, the Company has unrecognized tax benefits of $5.9 million of which $5.4 million will affect the effective tax rate if recognized when the Company no longer has a valuation allowance offsetting its deferred tax assets. The following table summarizes the changes to unrecognized tax benefits for the years ended December 31, 2012, 2011 and 2010 (in thousands): Balance at December 31, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additions based on tax positions related to the prior year . . . . . . . . . . . . . . . . . Additions based on tax positions related to the current year . . . . . . . . . . . . . . . Additions based on tax positions related to the acquisition of Scient’x . . . . . . Reductions as a result of lapse of applicable statute of limitations . . . . . . . . . . Reductions as a result of foreign exchange rates and other . . . . . . . . . . . . . . . . Balance at December 31, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additions based on tax positions related to the prior year . . . . . . . . . . . . . . . . . Additions based on tax positions related to the current year . . . . . . . . . . . . . . . Reductions as a result of positions taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reductions as a result of lapse of applicable statute of limitations . . . . . . . . . . Additions as a result of foreign exchange rates and other . . . . . . . . . . . . . . . . . Balance at December 31, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additions based on tax positions related to the prior year . . . . . . . . . . . . . . . . . Additions based on tax positions related to the current year . . . . . . . . . . . . . . . Reductions as a result of lapse of applicable statute of limitations . . . . . . . . . . Additions as a result of foreign exchange rates and other . . . . . . . . . . . . . . . . . $2,116 39 1,480 1,097 (256) (55) 4,421 73 399 (59) (649) 12 $4,197 987 743 (58) 28 Balance at December 31, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,897 F-40 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) The Company believes it is reasonably possible it will not reduce its unrecognized tax benefits within the next 12 months. The Company and its subsidiaries are subject to federal income tax as well as income tax of multiple state and foreign jurisdictions. With few exceptions, the Company is no longer subject to income tax examination by tax authorities in major jurisdictions for years prior to 2007. However, to the extent allowed by law, the taxing authorities may have the right to examine prior periods where NOLs and tax credits were generated and carried forward, and make adjustments up to the amount of the carryforwards. The Company is not currently under examination by the IRS, Foreign or state and local tax authorities. During 2012, the French tax authorities completed an exam of the 2008, 2009 and 2010 tax years. The Company agreed to an assessment of $0.6 million to settle the exam. The Company had recognized uncertain tax positions of $0.3 million at December 31, 2011. The additional $0.3 million was recognized as an additional tax provision during 2012. The Company recognizes interest and penalties related to uncertain tax positions as a component of the income tax provision. As of December 31, 2012, accrued interest and penalties were $0.4 million and this amount primarily relates to the uncertain tax positions of the Scient’x operations and state positions. During 2012, there were increases in the accrued interest and penalties related to the uncertain tax positions of the Scient’x operations. At December 31, 2012, the Company had federal and state net operating loss carryforwards of $46.4 million and $42.9 million, respectively, expiring at various dates through 2032. At December 31, 2012, the Company had federal and state research and development tax credits of $1.9 million and $2.0 million, respectively. The federal research and development tax credits expire at various dates through 2031, while the state credits do not expire. The Company had foreign net operating loss carryforwards of $41.1 million beginning to expire in 2018. Utilization of the net operating loss and tax credit carryforwards may become subject to annual limitations due to ownership change limitations that could occur in the future as provided by Section 382 of the Internal Revenue Code of 1986, as amended, as well as similar state and foreign provisions. These ownership changes may limit the amount of the net operating loss and tax credit carryforwards that can be utilized annually to offset future taxable income. An ownership change occurred during June 2006 in connection with the initial public offering. The annual limitation as a result of that ownership change did not result in the loss or substantial limitation of net operating loss or tax credit carryforwards. There have been no subsequent ownership changes through December 31, 2012. The Company does not record U.S. income taxes on the undistributed earnings of its foreign subsidiaries based upon the Company’s intention to permanently reinvest undistributed earnings to ensure sufficient working capital and further expansion of existing operations outside the United States. The undistributed earnings of the foreign subsidiaries as of December 31, 2012 are immaterial. In the event the Company is required to repatriate funds from outside of the United States, such repatriation would be subject to local laws, customs, and tax consequences. The American Taxpayer Relief Act of 2012, which reinstated the United States federal research and development tax credit retroactively from January 1, 2012 through December 31, 2013, was not enacted into law until the first quarter of 2013. Therefore, the deferred tax asset resulting from such reinstatement for 2012 will not be reflected until 2013. 11. Segment and Geographical Information Operating segments are defined as components of an enterprise for which separate financial information is available and evaluated regularly by the chief operating decision maker, or decision-making group, in deciding how to allocate resources and in assessing performance. The Company operates in one reportable business segment. F-41 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) During the years ended December 31, 2012, 2011 and 2010, the Company operated in two geographic regions, the U.S. and International which consists of locations outside of the U.S. In the International geographic segment, sales in Japan for the years ended December 30, 2012, 2011 and 2010 totaled $28.6 million, $23.9 million and $13.7 million, respectively, which represented greater than 10 percent of the Company’s consolidated revenues for the years than ended December. For the years ended December 31, 2012, 2011 and 2010, sales in other individual countries included in International did not exceed 10 percent of consolidated revenues. Revenues attributed to the geographic location of the customer were as follows (in thousands): United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $130,476 65,802 $133,824 63,887 $119,880 51,730 Total consolidated revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $196,278 $197,711 $171,610 Year Ended December 31, 2012 2011 2010 Total assets by region were as follows (in thousands): United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International $213,912 168,215 $198,578 168,114 Total consolidated assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $382,127 $366,692 December 31, 2012 2011 12. Related Party Transactions For the years ended December 31, 2012, 2011 and 2010, the Company incurred costs of $0.2 million, $0.1 million and $0.3 million, respectively, to Foster Management Company and HealthpointCapital, LLC for travel and administrative expenses, including the use of Foster Management Company’s airplane. Foster Management Company is an entity owned by John H. Foster, a member of the Company’s board of directors. John H. Foster is a significant equity holder of HealthpointCapital, LLC, an affiliate of HealthpointCapital Partners, L.P. and HealthpointCapital Partners II, L.P., which are the Company’s principal stockholders. In connection with the acquisition of Scient’x and pursuant to the terms of the share purchase agreement, the consideration paid for 100% of the shares of Scient’x was fixed at 24,000,000 shares of the Company’s common stock, reduced by a certain number of shares calculated at the closing in exchange for the payment of certain fees and expenses incurred by HealthpointCapital. The aggregate purchase price paid to acquire 100% of the shares of Scient’x was 23,730,644 shares of the Company’s common stock. The Company paid fees and expenses incurred by HealthpointCapital of $1.6 million. HealthpointCapital and its affiliates held approximately 94.8% of the issued and outstanding shares of Scient’x prior to the acquisition. HealthpointCapital received shares of the Company’s common stock in connection with the acquisition proportional to its ownership interest in Scient’x. Indemnification Agreements The Company has entered into indemnification agreements with certain of its directors. The indemnification agreements require the Company to indemnify these individuals to the fullest extent permitted by Delaware law and to advance expenses incurred by them in connection with any proceeding against them with respect to which F-42 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) they may be entitled to indemnification by us. In addition, each of Scient’x and Surgiview has agreed to indemnify its officers and directors in connection with activities undertaken by such individuals on behalf of their respective companies. For the years ended December 31, 2012 and 2011, the Company paid approximately $2.6 million and $0.5 million, respectively, in connection with the indemnification obligations of Scient’x and Surgiview, all of which was related to the Orthotec matter. (See Note 7) 13. Retirement Plan The Company maintains an employee savings plan that qualifies as a deferred salary arrangement under Section 401(k) of the Internal Revenue Code. Under the savings plan, participating employees may contribute a portion of their pre-tax earnings, up to the Internal Revenue Service annual contribution limit. Additionally, the Company may elect to make matching contributions into the savings plan at its sole discretion of up to 4% of each individual’s compensation. Match amounts are vested after one year of service. The Company’s total contributions to the 401(k) plan were $0.5 million, $0.5 million and $0.4 million for the years ended December 31, 2012, 2011 and 2010, respectively. 14. Discontinued Operations and Restructuring Activities Discontinued Operations In connection with the Company’s strategy to focus on the sale of spinal implants in Japan, Alphatec Pacific entered into an agreement to sell one of its wholly owned subsidiaries, IMC Co., to a third party in April 2010. The Company determined that IMC Co. was a non-strategic asset given that it is a distribution company that primarily sells general orthopedic trauma products in a limited geographic market. In exchange for all of the shares of IMC Co., the purchaser agreed to pay the Company a total purchase price of $0.5 million, of which $0.3 million was paid in 2010, $0.1 million was paid in 2011 and the remaining $0.1 million will be paid thereafter in two annual installments. A gain of $0.2 million was recorded on the sale of IMC Co. by the Company during the second quarter of 2010. The amount of IMC Co. revenue and pretax income reported in discontinued operations for the years ended December 31, 2010 is as follows (in thousands): Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income from continuing operations before income taxes . . . . . . . . . Income tax provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Income from discontinued operations, net of tax . . . . . . . . . . . . . . . Year Ended December 31, 2010 $3,109 $ 120 42 $ 78 Restructuring Activities As a result of the acquisition of Scient’x, the Company elected to consolidate Scient’x’s operations in the United States, close its United States facility and move its operations to the Company’s corporate location in Carlsbad, California. This consolidation was completed by April 30, 2010. Restructuring expenses also consist of severance and other personnel costs related to the reorganization of the Company’s management. For the years ended December 31, 2012, 2011 and 2010, the Company incurred total restructuring expenses of $0, $1.1 million and $2.4 million, respectively. The balance in the restructuring liability as of December 31, 2012, 2011 and 2010 was $0, $0.1 million and $0.2 million, respectively. F-43 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) 15. Cross Medical On February 12, 2010, a complaint was filed in the U.S. District Court for the Central District of California, by Cross Medical Products, LLC, or Cross, (a subsidiary of Biomet), Cross Medical Products, LLC v. Alphatec Spine, Inc., Case No. 8:10-cv-00176-MRP -MLG, alleging that we breached a patent license agreement with Cross by failing to make certain royalty payments allegedly due under the agreement. Cross was seeking payment of prior royalties allegedly due from the Company’s sales of polyaxial screws and an order from the court regarding payment of future royalties by us. In its complaint, Cross alleged a material amount of damages were due to it as a result of our alleged breach of the patent license agreement. In January 2011, we filed a complaint in the U.S. District Court for the Southern District of California against Biomet, Inc., or Biomet, alleging that Biomet’s TPS-TL products infringe one of our patents. On December 30, 2011, we reached a global settlement agreement of the pending lawsuits with Biomet and Cross. Under the terms of the settlement, all parties obtained a release of all claims that were the subject of the disputes. No party has admitted liability in connection with the settlement. The settlement also includes an amendment to the April 23, 2003 License Agreement. As part of the settlement, we agreed to pay Cross an initial payment of $5 million, which payment was made in January 2012. In addition to the initial payment, we will make thirteen quarterly payments of $1 million beginning on August 1, 2012, with each subsequent payment due three months thereafter until the final payment is made in August 2015. The cash obligations totaling $18 million will be paid as follows: $7 million in 2012, which was paid, $4 million in 2013, $4 million in 2014 and $3 million in 2015. In addition, pursuant to the settlement, the parties have exchanged covenants not to sue for patent infringement with respect to products that each respective company had on the market as of December 30, 2011. 16. Quarterly Financial Data (Unaudited) The following financial information reflects all normal recurring adjustments, which are, in the opinion of management, necessary for a fair statement of the results of the interim periods. Summarized quarterly data for fiscal 2012 and 2011 are as follows (in thousands, except per share data): Selected quarterly financial data: Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gross profit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total operating expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic and diluted net loss per common share (1) Year ended December 31, 2012 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter $48,461 31,819 31,944 (1,261) (0.01) $48,235 30,196 33,947 (6,374) (0.07) $46,839 29,633 31,606 (2,469) (0.03) $ 52,743 32,120 36,108 (5,355) (0.06) Year ended December 31, 2011 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter Selected quarterly financial data: Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gross profit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total operating expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic and diluted net loss per common share (1) $49,720 31,951 34,313 (1,867) (0.02) $50,862 29,861 33,165 (3,044) (0.03) $47,619 30,207 32,569 (1,304) (0.01) $ 49,510 24,911 41,399 (15,966) (0.18) (1) Basic and diluted net loss per share is computed independently for each of the quarters presented. Therefore, the sum of the quarterly per share amounts will not necessarily equal the total for the year. F-44 ALPHATEC HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued) SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS Allowance for Doubtful Accounts (1) Reserve for Excess and Obsolete Inventories (2) (In thousands) Balance at December 31, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Write-offs and recoveries, net Balance at December 31, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Write-offs and recoveries, net Balance at December 31, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Write-offs and recoveries, net 318 945 (109) 1,154 1,094 (1,193) 1,055 859 (840) 8,645 2,781 (396) 11,030 4,564 (2,420) 13,174 6,658 (2,610) Balance at December 31, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,074 $17,222 (1) The provision is included in selling expenses. (2) The provision is included in cost of revenues. F-45 [THIS PAGE INTENTIONALLY LEFT BLANK] Stock Performance The following graph compares the cumulative total stockholder return data (through December 31, 2012) for our common stock since December 31, 2007 to the cumulative return over such period of (i) The NASDAQ Stock Market Composite Index and (ii) The NASDAQ Medical Equipment Index. The graph assumes that $100 was invested on December 31, 2007, in the common stock and in each of the comparative indices. The stock performance on the following graph is not necessarily indicative of future stock performance. $120 $100 $80 $60 $40 $20 $0 12/07 12/08 12/09 12/10 12/11 12/12 Alphatec Holdings, Inc NASDAQ Composite NASDAQ Medical Equipment *$100 invested on 12/31/07 in stock or in index, including reinvestment of dividends. [THIS PAGE INTENTIONALLY LEFT BLANK] Corporate Information Corporate Information Executive Officers Executive Officers Corporate Headquarters Corporate Headquarters Securities Counsel Securities Counsel Cover: Wais Azami is an active Cover: Wais Azami is an active individual. He is currently a law student individual. He is currently a law student who loves ocean sports, motorcycle who loves ocean sports, motorcycle riding and weight training. riding and weight training. “After one of my workouts, I felt a “After one of my workouts, I felt a sudden and strange sensation in my sudden and strange sensation in my neck area, as though a twisted rope neck area, as though a twisted rope was being unraveled, followed by a was being unraveled, followed by a sharp pain. I couldn’t even remove a sharp pain. I couldn’t even remove a shirt without screaming in pain.” shirt without screaming in pain.” Wais ruptured the disc between Wais ruptured the disc between vertebrae C6 and C7. vertebrae C6 and C7. Avalon® Avalon® Occipital-Cervico- Occipital-Cervico- Thoracic Fixation System Thoracic Fixation System Solanas® Solanas® Posterior Cervico-Thoracic Posterior Cervico-Thoracic Fixation System Fixation System Pegasus™ ACI Pegasus™ ACI Anchored Cervical Interbody Anchored Cervical Interbody Trestle Luxe® Trestle Luxe® Anterior Cervical Anterior Cervical Plating System Plating System Discocerv®1 Discocerv®1 Cervical Disc Cervical Disc Prosthesis Prosthesis Novel® Novel® Family of Interbody Fusion Family of Interbody Fusion and VBR Systems and VBR Systems Epicage® Epicage® Lumbar Interbody System Lumbar Interbody System OsseoFix®1 OsseoFix®1 Spinal Fracture Spinal Fracture Reduction System Reduction System AmnioShield® AmnioShield® Amniotic Tissue Barrier Amniotic Tissue Barrier Aspida® Aspida® Anterior Lumber Plating System Anterior Lumber Plating System “Surgery meant getting off of mind- “Surgery meant getting off of mind- numbing pain killers, which allowed me numbing pain killers, which allowed me to study for and pass the California First to study for and pass the California First Year Law School Exam. This picture was Year Law School Exam. This picture was taken just before the exam and I knew I taken just before the exam and I knew I was ready. I nailed it!” was ready. I nailed it!” “I credit Dr. Abshire and Alphatec Spine “I credit Dr. Abshire and Alphatec Spine for giving me back my active lifestyle.” for giving me back my active lifestyle.” Zodiac® Zodiac® Degenerative & Deformity Degenerative & Deformity Spinal Fixation System Spinal Fixation System Alphatec NEXoss® Alphatec NEXoss® Nanostructure BA Matrix Nanostructure BA Matrix OsseoScrew®1 OsseoScrew®1 Spinal Fixation System Spinal Fixation System 3D Profuse™ 3D Profuse™ Bioscaffold Bioscaffold Osteoconductive Bioscaffold Osteoconductive Bioscaffold HeliFix®1 HeliFix®1 Interspinous Spacer System Interspinous Spacer System ILLICO® SE ILLICO® SE MIS Posterior Fixation System MIS Posterior Fixation System Wais Azami received a single-level Wais Azami received a single-level anterior cervical discectomy fusion to anterior cervical discectomy fusion to repair his neck injury. Dr. Bret Abshire repair his neck injury. Dr. Bret Abshire from the Temecula Valley Spine & from the Temecula Valley Spine & Neurosurgery Center performed the Neurosurgery Center performed the procedure at the Inland Valley Medical procedure at the Inland Valley Medical center on January 31, 2012. Dr. center on January 31, 2012. Dr. Abshire used Alphatec Spine’s Trestle- Abshire used Alphatec Spine’s Trestle- Luxe anterior cervical plate and Novel® Luxe anterior cervical plate and Novel® CIS interbody spacer to fuse the CIS interbody spacer to fuse the vertebrae at C6 - C7. vertebrae at C6 - C7. BridgePoint® BridgePoint® Spinous Process Fixation System Spinous Process Fixation System Alphatec Solus® Alphatec Solus® Anterior Lumber Interbody Fusion Anterior Lumber Interbody Fusion 1 Not available for sale in the U.S. 1 Not available for sale in the U.S. Les Cross Chairman and Chief Executive Officer Les Cross Chairman and Chief Executive Officer Michael O’Neill Michael O’Neill Chief Financial Officer, Chief Financial Officer, Vice President and Treasurer Vice President and Treasurer W. Patrick Ryan Chief Operating Officer and President, International W. Patrick Ryan Chief Operating Officer and President, International Thomas J. McLeer Senior Vice President, U.S. Commercial Operations Thomas J. McLeer Senior Vice President, U.S. Commercial Operations Mitsuo Asai President, Alphatec Pacific, Inc. Mitsuo Asai President, Alphatec Pacific, Inc. Ebun S. Garner, Esq. General Counsel, Senior Vice President and Secretary Ebun S. Garner, Esq. General Counsel, Senior Vice President and Secretary PureGen® PureGen® Cell Allograft Cell Allograft Board of Directors Board of Directors Les Cross Chairman and Chief Executive Officer, Alphatec Spine, Inc. Les Cross Chairman and Chief Executive Officer, Alphatec Spine, Inc. Mortimer Berkowitz III Mortimer Berkowitz III President and Managing Director, President and Managing Director, HealthpointCapital, LLC HealthpointCapital, LLC John H. Foster John H. Foster Chairman and Managing Director, Chairman and Managing Director, HealthpointCapital, LLC HealthpointCapital, LLC Stephen E. O’Neil Founder and Principal, The O’Neil Group Stephen E. O’Neil Founder and Principal, The O’Neil Group R. Ian Molson Former Deputy Chairman of the Board, Molson, Inc. R. Ian Molson Former Deputy Chairman of the Board, Molson, Inc. James R. Glynn Former President, CFO and Director, Invitrogen Corp. James R. Glynn Former President, CFO and Director, Invitrogen Corp. Rohit M. Desai Rohit M. Desai Founder, Chairman and President, Founder, Chairman and President, Desai Capital Management Incorporated Desai Capital Management Incorporated Siri S. Marshall Siri S. Marshall Former General Counsel, Former General Counsel, General Mills, Inc. General Mills, Inc. Luke T. Faulstick Co-Owner, President and Chief Executive Offic Power Partners Inc. er, Luke T. Faulstick Co-Owner, President and Chief Executive Offic er, Power Partners Inc. Alphatec Spine, Inc. Alphatec Spine, Inc. 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Telephone: 760.431.9286 Telephone: 760.431.9286 Fax: 760.431.9132 Fax: 760.431.9132 www.alphatecspine.com www.alphatecspine.com Stockholder Information Stockholder Information Investor Relations Investor Relations Alphatec Spine, Inc. Alphatec Spine, Inc. 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Telephone: 760.494.6610 Telephone: 760.494.6610 Fax: 760.930.2513 Fax: 760.930.2513 Email: Email: investorrelations@alphatecspine.com investorrelations@alphatecspine.com Stock Transfer Agent Stock Transfer Agent Computershare, Inc. Computershare, Inc. 480 Washington Blvd. 480 Washington Blvd. Jersey City, NJ 07310 Jersey City, NJ 07310 Shareholder Communication Center: Shareholder Communication Center: 800.356.2017 800.356.2017 www.computershare.com www.computershare.com Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, MA 02111 www.mintz.com Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, MA 02111 www.mintz.com Independent Registered Public Accounting Firm Independent Registered Public Accounting Firm Ernst & Young LLP Ernst & Young LLP 4370 La Jolla Village Drive 4370 La Jolla Village Drive Suite 500 Suite 500 San Diego, CA 92122 San Diego, CA 92122 www.ey.com www.ey.com Notice of Annual Meeting Notice of Annual Meeting Thursday, June 21, 2012 Thursday, June 21, 2012 2:00 pm PT 2:00 pm PT Alphatec Spine, Inc. Alphatec Spine, Inc. Corporate Headquarters Corporate Headquarters 5818 El Camino Real 5818 El Camino Real Carlsbad, CA 92008 Carlsbad, CA 92008 Stock Symbol Stock Symbol The common stock of Alphatec Holdings, The common stock of Alphatec Holdings, Inc. is traded on the NASDAQ Global Select Inc. is traded on the NASDAQ Global Select Market under the ticker symbol “ATEC”. Market under the ticker symbol “ATEC”. Annual Report on Form 10-K A copy of Alphatec Spine’s annual report to the U.S. Securities and Exchange Commission on Form 10-K is available without charge online at www.alphatecspine.com or upon written request to the Investor Relations Department (listed above). Annual Report on Form 10-K A copy of Alphatec Spine’s annual report to the U.S. Securities and Exchange Commission on Form 10-K is available without charge online at www.alphatecspine.com or upon written request to the Investor Relations Department (listed above). - - - - Forward Looking Statements We caution you that statements included in this annual report that are not a description of historical facts are forward-looking statements that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause our results to differ materially from historical results or those expressed or implied by such forward-looking statements. Forward looking statements include references to Alphatec Spine’s 2013 business prospects; new product development cycle and market success of those new products; improvements to the Company’s operations and reductions in the Company’s manufacturing costs and operating expenses; and geographic expansion. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to; the uncertainty of success in developing new products or products currently in Alphatec Spine’s pipeline; the successful integration of acquisitions such as Phygen; the successful global launch of the Company’s new products and the products in its development pipeline including Alphatec Solus, Alphatec NEXoss, BridgePoint, Illico FS, Pegasus, Illico MIS products, Trestle Luxe and Epicage; failure to achieve acceptance of Alphatec Spine’s products by the surgeon community including products discussed in this annual report; timing of U.S. FDA or other foreign and domestic governmental agency decisions that impact commercialization and distribution of the Company’s products; the uncertain regulatory status of the Company’s Puregen product Alphatec Spine’s ability to develop and expand its U.S. and/or global revenues; continuation of favorable third party payor reimbursement for procedures performed using Alphatec Spine’s products; pricing impacts on the spine market; unanticipated expenses or liabilities or other adverse events affecting cash flow or Alphatec Spine’s ability to successfully control its costs or achieve profitability; uncertainty of additional funding; Alphatec Spine’s ability to compete with other competing products and with emerging new technologies; product liability exposure; patent infringement claims and claims related to Alphatec Spine’s intellectual property. Please refer to the risks detailed in Alphatec Spine’s SEC reports, including the attached Annual Report on Form 10-K and in our periodic filings including quarterly reports on Form 10-Q and reports on Form 8-K with the Securities and Exchange Commission. Our public filings with the Securities and Exchange Commission are available at www.sec.gov and on our website at www.alphatecspine.com. We do not intend to update any forward-looking statement to reflect events or circumstances arising after the date on which it was made. Forward Looking Statements We caution you that statements included in this annual report that are not a description of historical facts are forward-looking statements that involve risks, uncertainties, assumptions and other factors which, if they do not materialize or prove correct, could cause our results to differ materially from historical results or those expressed or implied by such forward-looking statements. Forward looking statements include references to Alphatec Spine’s 2013 business prospects; new product development cycle and market success of those new products; improvements to the Company’s operations and reductions in the Company’s manufacturing costs and operating expenses; and geographic expansion. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to; the uncertainty of success in developing new products or products currently in Alphatec Spine’s pipeline; the successful integration of acquisitions such as Phygen; the successful global launch of the Company’s new products and the products in its development pipeline including Alphatec Solus, Alphatec NEXoss, BridgePoint, Illico FS, Pegasus, Illico MIS products, Trestle Luxe and Epicage; failure to achieve acceptance of Alphatec Spine’s products by the surgeon community including products discussed in this annual report; timing of U.S. FDA or other foreign and domestic governmental agency decisions that impact commercialization and distribution of the Company’s products; the uncertain regulatory status of the Company’s Puregen product Alphatec Spine’s ability to develop and expand its U.S. and/or global revenues; continuation of favorable third party payor reimbursement for procedures performed using Alphatec Spine’s products; pricing impacts on the spine market; unanticipated expenses or liabilities or other adverse events affecting cash flow or Alphatec Spine’s ability to successfully control its costs or achieve profitability; uncertainty of additional funding; Alphatec Spine’s ability to compete with other competing products and with emerging new technologies; product liability exposure; patent infringement claims and claims related to Alphatec Spine’s intellectual property. Please refer to the risks detailed in Alphatec Spine’s SEC reports, including the attached Annual Report on Form 10-K and in our periodic filings including quarterly reports on Form 10-Q and reports on Form 8-K with the Securities and Exchange Commission. Our public filings with the Securities and Exchange Commission are available at www.sec.gov and on our website at www.alphatecspine.com. We do not intend to update any forward-looking statement to reflect events or circumstances arising after the date on which it was made. ; ; Alphatec, Alphatec Spine, Alphatec Solus, Trestle Luxe, AmnioShield, Alphatec NEXoss, 3D Profuse, Novel, OsseoFix, OsseoScrew, Epicage, HeliFix, Discocerv, Novel, PureGen, PCB Evolution, Pegasus, Samarys, SCS, TTL-IN, Xenon and Zodiac are trademarks or registered trademarks of Alphatec Spine, Inc., or its affiliates. ELA is a trademark of Parcell Laboratories. © 2013 Alphatec Spine, Inc. All rights reserved. The Alphatec Solus product is not sponsored, endorsed by, or in any way affiliated with SOLAS® or The Society of Lateral Access Surgery. Alphatec, Alphatec Spine, Alphatec Solus, Trestle Luxe, AmnioShield, Alphatec NEXoss, 3D Profuse, Novel, OsseoFix, OsseoScrew, Epicage, HeliFix, Discocerv, Novel, PureGen, PCB Evolution, Pegasus, Samarys, SCS, TTL-IN, Xenon and Zodiac are trademarks or registered trademarks of Alphatec Spine, Inc., or its affiliates. ELA is a trademark of Parcell Laboratories. © 2013 Alphatec Spine, Inc. All rights reserved. The Alphatec Solus product is not sponsored, endorsed by, or in any way affiliated with SOLAS® or The Society of Lateral Access Surgery. , Aspida, Avalon, Illico, Illico SE, Illico FS, Illico Multi-Level, Trestle, Solanas, OsseoFix+, , Aspida, Avalon, Illico, Illico SE, Illico FS, Illico Multi-Level, Trestle, Solanas, OsseoFix+, www.alphatecspine.com www.alphatecspine.com Integrity Act ethically and professionally Communicate openly and honestly Customers Listen to our customers, understand their needs, and seek to exceed their expectations Deliver innovative, high-quality, easy-to-use products and solutions Teamwork Help each other by developing effective partnerships within and outside the company Share information and knowledge and treat each other respectfully Accountability Own your actions and fulfill the commitments you make Establish realistic goals, meet them, and strive to exceed them Results Take action that delivers value to our stakeholders Execute to plan without sacrificing quality Community Contribute to improving quality of life of our colleagues, our patients and where we live Use our resources wisely and minimize waste CORPORATE HEADQUARTERS 5818 El Camino Real Carlsbad, California 92008 CUSTOMER SERVICE Toll Free: 800.922.1356 Local: 760.431.9286 Fax: 800.431.1624 Alphatec Spine and the Alphatec Spine logo are registered trademarks of Alphatec Spine, Inc. ©2013 Alphatec Spine, Inc. All rights reserved. www.AlphatecSpine.com l A p h a t e c S p n e , i I n c . 2 0 1 2 | A n n u a l R e p o r t 2012 | Annual Report Providing physician-inspired solutions for patients with spinal disorders i i i i P r o v d n g p h y s c a n - n s p i r e d s o u t i o n s l i f o r p a t i e n t s w i t h s p n a i l i d s o r d e r s OUR VALUES 

Continue reading text version or see original annual report in PDF format above