Exhibit 10.4
FIRST AMENDMENT TO THE EXCLUSIVE
LICENSE AGREEMENT
This First Amendment to the
Exclusive License Agreement (this “Amendment”) is made
effective as of March 31, 2009 (the “Effective
Date”) between Alphatec Spine, Inc., a Delaware corporation
with a principal place of business at 5818 El Camino Real,
Carlsbad, California 92008 (“Licensee”) and Stout
Medical Group LP, a limited partnership company organized under the
laws of the state of Delaware, and having a place of business at
410 East Walnut Street, Suite #8, Perkasie, Pennsylvania 18944
(“Licensor”). Licensee and Licensor are each hereafter
referred to individually as a “Party” and together as
the “Parties”.
WHEREAS, Reference is made to that
certain Exclusive License Agreement dated September 11, 2007,
between the Parties (the “Agreement”).
WHEREAS, 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:
1.1 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 with respect to Licensed Products in each
twelve (12)-month period 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. 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 any twelve (12)-month period determined in
accordance with the table below is less than the minimum annual
royalty for such twelve (12)-month period as also determined in
accordance with the table below, the obligation to pay the
difference to Licensor shall accrue on the last day of such twelve
(12)-month period and shall be payable by Licensee no later than
[***] days following the end of such twelve (12)-month
period:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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1
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.
(a) It is the agreement of the Parties that
Licensee will make interim minimum royalty payments with respect to
the first twelve (12)-month period following the Minimum Trigger
Date as follows: with respect to each of the first three (3)-month
periods during the twelve (12)-month period commencing on the
Minimum Trigger Date (e.g. if the Minimum Trigger Date is
January 1, 2010, the first such three (3)-month period would
commence on January 1, 2010 and end March 31, 2010, the
second would commence April 1, 2010 and end June 30,
2010, etc.), if the royalty amounts paid to Licensor pursuant to
Section 4.1.3 for such three (3)-month period are less than
[***], then within thirty (30) days of the end of such a three
(3)-month period Licensee shall pay to Licensor the difference (it
being anticipated that the payments under this paragraph and under
Section 4.1.3 shall be coordinated and made at the same
time).
(b) Licensor shall make the royalty
payment contemplated by Section 4.1.3 following the last three
(3)-month period during the twelve (12)-month period commencing on
the Minimum Trigger Date. After making such payment:
(i) if all amounts then previously
paid pursuant to paragraph (a) of this Section plus such
Section 4.1.3 payment with respect to the last three (3)-month
period during the twelve (12)-month period commencing on the
Minimum Trigger Date (the aggregate amount of such payments the
“Prior Payments”) are less than [***] th
