FOURTH AMENDMENT TO EXCLUSIVE LICENSE AGREEMENT
Exhibit 10.38
FOURTH AMENDMENT TO
This Fourth Amendment to the License and Supply Agreement (this “Amendment”) is made as of December 7, 2009 by and among Alphatec Spine, Inc., a Delaware corporation with a principal place of business at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Licensee”), Progressive Spinal Technologies LLC, a limited liability company organized under the laws of the state of Delaware, with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Licensor”) and Alphatec Holdings, Inc., a Delaware corporation with a principal place of business at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Holdings”). Capitalized terms undefined herein shall have the meaning ascribed them in the Agreement.
RECITALS
Reference is made to that certain Exclusive License Agreement dated December 18, 2007, as amended, between the parties to this Amendment (the “Agreement”).
The Parties desire to amend the Agreement as set forth herein.
Now, therefore, in consideration of the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties hereto, the Parties hereto agree as follows:
1. AMENDMENTS
1.1 Amendment and Restatement of Section 4.1.2. Section 4.1.2 of the Agreement is hereby deleted and replaced in its entirety with the following language:
“4.1.2 Milestone Payments. Licensee shall pay milestone payments (or in the case of the Common Stock cause the issuance thereof by Holdings) to Licensor (each such payment or issuance a “Milestone Payment”) as specified below no more than [***] ([***]) days after the occurrence of the corresponding event designated below, unless this Agreement has been terminated prior to such due date. No Milestone Payments described in this Subsection 4.1.2 shall be credited against or otherwise reduce any other amounts payable hereunder.
Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary
of the Commission pursuant to the Registrant’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
| Event |
Milestone Payment | |
| [***] |
[***] [***] | |
| [***] |
[***] | |
| [***] |
[***] [***] | |
| [***] |
[***] | |
| [***] |
[***] | |
| [***] |
[***] |
1.2 Amendment and Restatement of Section 4.1.4. Section 4.1.4 of the Agreement is hereby deleted and replaced in its entirety with the following language:
“4.1.4 Minimum Royalties. Licensee shall pay Licensor the following minimum annual royalty amounts in each calendar year listed next to such amount. No minimum annual royalty described in this Subsection 4.1.4 shall be credited against or otherwise reduce any other amounts payable hereunder. For a particular calendar year, in the event that the sum of the earned royalties on Net Sales timely paid in accordance with Subsection 4.1.3 above with respect to the four calendar quarters of such calendar year are less than the minimum annual royalty for such year designated below, the obligation to pay the difference to Licensor shall accrue on the last day of such calendar year and be payable by Licensee no later than [***] ([***]) days following the end of such calendar year:
| Twelve (12) Months Ending |
Minimum Annual Royalty | |
| [***] |
[***] | |
| [***] |
[***] | |
| [***] |
[***] |
Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary
of the Commission pursuant to the Registrant’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
2. MISCELLANEOUS
In the event of any conflict between the provisions of this Amendment and the Agreement, the provisions of this Amendment shall prevail. Other than as set forth in this Amendment, the remainder of the Agreement shall remain in full force and effect.
[Signatures Follow]
Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary
of the Commission pursuant to the Registrant’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, the Parties and Holdings have caused this Amendment to be executed by their duly authorized representative.
| ALPHATEC SPINE, INC. | PROGRESSIVE SPINAL TECHNOLOGIES LLC | |||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ |
By: | /s/ E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | Name: | E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||||
| Title: | President and CEO | Title: | CEO | |||||
| ALPHATEC HOLDINGS, INC. | ||||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ |
|||||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||||||
| Title: | President and CEO | |||||||
Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary
of the Commission pursuant to the Registrant’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.