Exhibit 10.3
THIRD AMENDMENT TO
EXCLUSIVE LICENSE
AGREEMENT
This Third Amendment to the License
and Supply Agreement (this “Amendment”) is made as of
June 30, 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. AMENDMENTS
1.1 Amendment and Restatement
of the First Paragraph of Section 4.1.2 .
The first paragraph of
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 makes the following
assignments, and the Licensee and Holdings approves and
acknowledges such assignments: (i) Licensor assigns to
[***] the right to receive [***] of the shares of
Common Stock to which Licensor is entitled in the event that
[***] as described below; (ii) Licensor assigns to
[***] the right to receive [***] of the shares of
Common Stock to which Licensor is entitled in the event that
[***] as described below; and (iii) Licensor assigns to
[***], which also does business as [***] the right to
receive [***] of the shares of Common Stock to which
Licensor is entitled in the event that [***] as described
below. In addition, Licensor assigns to each of [***] and
[***] Licensor’s right to enforce this Agreement to
the extent nece
