Exhibit 10.23
SECOND AMENDMENT
TO
EXCLUSIVE LICENSE
AGREEMENT
This Second Amendment to the License
and Supply Agreement (this “Amendment”) is made as of
January 12, 2009 by and among Alphatec Spine, Inc., a Delaware
corporation with a principal place of business at 5818 El Camino
Real, Carlsbad, California 92008 (“Licensee”),
Progressive Spinal Technologies LLC, a limited liability company
organized under the laws of the state of Delaware, with an address
at 410 East Walnut Street, Suite #8, Perkasie, Pennsylvania 18944
(“Licensor”) and Alphatec Holdings, Inc., a Delaware
corporation with a principal place of business at 5818 El Camino
Real, Carlsbad, California 92008 (“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:
1.1 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 thirty
(30) days after the occurrence of the corresponding event
designated below, unless this Agreement has been terminated prior
to such due date; provided that Licensor hereby assigns to its
affiliate [***] and (ii) the right to enforce this Agreement
to the extent necessary [***], and Licensee and Holdings hereby
consents to both such assignments. No Milestone Payments described
in this Subsection 4.1.2 shall be credited against or otherwise
reduce any other amounts payable hereunder.
CONFIDENTIAL TREATMENT
REQUESTED
