Exhibit 10.40
DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") is made as of this ___ day of
February, 2001, by and between ALPHATEC MANUFACTURING, INC., a California
corporation (hereinafter called the "Company"), and OSTEOTECH, INC., a Delaware
corporation (hereinafter called "Distributor").
The products covered by this Agreement include the private label version of the
Mirage(TM) top tightening spine implants and instrument system depicted in
Schedule A and the private label version of the Deltaloc(TM) anterior cervical
implants and instrument system depicted in Schedule B (collectively referred to
as the "PLP"). Other product lines may be added from time to time and designated
by the Company to be covered hereunder, as set forth herein.
The Company and Distributor hereby agree as follows:
1. PURCHASES BY DISTRIBUTOR
1.1 The Company hereby grants Distributor the right to purchase the
PLP upon the terms hereinafter provided.
1.2 Commencing with the fiscal quarter after the Company completes
fulfillment of Distributor's initial order, and for each
subsequent fiscal quarter during the initial term of this
Agreement and one renewal term of this Agreement, as specified
in Section 8.1;***
(a) ***
(b) backorders are defined as failure to deliver any portion of
a purchase order in accordance with the timeframe specified
on such purchase order or, in the absence of such a
timeframe, in accordance with the timeframes specified in
Schedule D.
(c) ***
(d) Distributor's initial purchase order pursuant to this
Agreement will be submitted by Distributor to the Company
no later than five (5) days after this Agreement is signed
on behalf of both the Company and Distributor.
--------
*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
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2. SALES BY DISTRIBUTOR
2.1 The Company grants Distributor the exclusive right to sell the
PLP within the United States and Canada (hereinafter the
"Area"), provided Distributor:
(a) does not market the PLP to existing customers of the
Company within the Area for as long as such customers are
being actively supplied and serviced by the Company. A list
of such existing Company customers is set forth in Schedule
F;
(b) does not sell or otherwise distribute any PLP for use or
resale outside of the Area without the prior written
approval of the Company.
(c) uses its best efforts to promote and sell the PLP within
the Area.
2.2 The Company may not offer to any other distributor(s) products
of the Company that are considered to be line extensions of the
PLP. Line extensions are defined as products governed by patents
that define the Deltaloc(TM)and Mirage(TM)systems.
2.3 ***
2.4 Distributor will have no distributorship or other rights
regarding products not depicted in Schedules A and B and the
Company may offer for distribution to other distributors any
product which is not depicted in Schedule A or B; provided,
however, that any line extension or improvement made by the
Company to products which are depicted in Schedule A or B will
be available to Distributor pursuant to this Agreement for the
PLP.
2.5 The Company agrees not to enter into a private label arrangement
for the PLP in the same markets with any other company during
the initial term of this Agreement or any renewal term thereof.
The Company agrees not to distribute the Mirage(TM)or
Deltaloc(TM)branded product line in any of the markets covered
by this Agreement through any agents which maintain a national
distribution organization.
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*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
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2.6 The Company will retain the exclusive right to market,
distribute and sell the Mirage(TM)and Deltaloc(TM)systems and
tradenames to markets both inside and outside of the Area.
2.7 The Company will notify Distributor of any new product system it
develops, and Distributor will have a right of first refusal to
enter into a distribution agreement with the Company with
respect to such new product system. Distributor and the Company
shall negotiate in good faith regarding any such distribution
agreement. If such a distribution agreement is not entered into
between the Company and Distributor within ninety (90) days of
Distributor's receipt of the Company's notice of such new
product system, then Distributor's right of first refusal with
respect to such new product system shall expire, and the Company
shall be entitled to enter into a distribution agreement
concerning such new product system with any other party.
3. PRODUCTS, INVENTORY AND PRODUCT CHANGES
3.1 Distributor agrees to stock and distribute the full line of the
PLP, as set forth in Schedules A and B. Additional PLP or
product lines designated by the Company at the Company's option
from time to time may, upon mutual agreement of Distributor and
the Company, be distributed pursuant to this Agreement, in which
case this Agreement will be amended accordingly.
3.2 All changes to the PLP, other than for custom instruments, must
be mutually agreed to by both parties. The Company will make no
changes to the PLP without prior notification and approval of
Distributor. The Company will determine if any such changes
require updated FDA filings.
3.3 Any improvements made to the PLP shall be covered by this
Agreement. Furthermore, Distributor will have the ability to
develop custom instruments, specific to individual surgeon
requests, to support sales of the PLP.
3.4 Except as specified in 1.2(b), if the Company has used
commercially reasonable efforts to fill a properly authorized
purchase order for the PLP the Company shall have no liability
for any failure to supply the PLP ordered by Distributor. The
Company shall make all reasonable efforts to provide Distributor
advance notice regarding potential for failure to complete any
order in accordance with the terms of this Agreement and the
applicable purchase order. Notwithstanding anything herein, the
Company agrees to keep a quantity of the full line of the PLP
available for shipment to help meet increases in demand.
Quantity
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shall be defined as a thirty (30) day supply, as calculated from
the 12 month rolling forecast.
3.5 The Company represents and warrants to Distributor that all the
PLP is designed and manufactured in accordance with all federal,
state and local laws, rules and regulations.
3.6 The Company agrees to provide necessary instrument repairs to
the PLP purchased by Distributor pursuant to this Agreement for
a period of two (2) years from Distributor's receipt of such
PLP, at no charge to Distributor, and to complete such repairs
within twenty (20) working days of receipt of the PLP item to be
repaired. If the Company is not able to meet such repair
requirement with respect to any PLP item, the Company authorizes
Distributor to obtain repair of such item using its own
resources. The Company will not repair drill bits, taps or other
cutting instruments that may become dull after repeated use.
Distributor and the Company will each be responsible for
shipping costs they incur in shipping the PLP purchased by
Distributor pursuant to this Agreement between themselves in
connection with repairs pursuant to this Section 3.6.
4. SELLING RESPONSIBILITIES AND REQUIREMENTS
4.1 Distributor agrees to provide to its customers (physicians,
nurses and related hospital staff) all relevant product and
instrument indications, instructions for use, operative
technique guides (both video and written) and package inserts
provided by the Company, to ensure the correct use of the
Company's products. Distributor additionally agrees to advise
its customers of any and all contraindications which relate to
the PLP and as detailed in the insert contained within the
packaging of each PLP or as detailed in the written operative
technique guide.
4.2 The Company agrees to provide Distributor with accurate and
complete FDA filings specific to the distributed PLP. These
documents include, but are not limited to, the Mirage(TM) and
Deltaloc(TM) 510(K) filings, Medical Device Reports (MDR's),
recalls, market withdrawals, Establishment Registration and
Service listings, Establishment Inspection reports including
inspectional observations responses, FDA Form 483, and package
inserts.
4.3 Distributor and the Company agree to abide by all FDA
regulations related to manufacturing, marketing and distribution
requirements, including applicable QSR regulations. Distributor
agrees to report to the Company material adverse events within
forty-eight (48) hours of learning of them and MDR's within
seventy-two (72)
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hours of their filing. Distributor will forward all complaints
received related to the manufacture or labeling of the PLP to
the Company. The Company will investigate all such complaints in
accordance with applicable federal regulations, and the Company
will submit MDR reports to the FDA as necessary. The Company
will prepare and submit any reports required by applicable
federal regulations.
4.4 The Company will provide necessary information to support
Distributor's registration of the PLP in the United States and
Canada.
4.5 Distributor shall not incur any liability on behalf of the
Company or obligate the Company in any manner.
4.6 The Company will assist Distributor in the development of
marketing materials by providing existing artwork, photographs,
test data, training materials, labeling, etc.
4.7 The Company will provide Distributor with historical sales data
on product mix, at the product code level, to aid Distributor in
developing an appropriate initial inventory order.
4.8 The Company will provide assistance with initial product
training. Distributor will be responsible for all expenses
associated with training with the exception of travel, meals,
and lodging for the Company's employees.
5. PRICE AND PRODUCT CHANGES
5.1 Distributor shall purchase from the Company each PLP in
accordance with the prices specified on Schedule H.***
6. SALES FORECAST
6.1 Pursuant to Schedule D, Distributor agrees to provide the
Company with a twelve (12) month rolling forecast for the PLP.
Such forecasts will be provided monthly, and will provide
updates to months after the current and two successive months.
Such forecasts are for production planning purposes only, and
are not purchase orders. Shipments of product will be made to
Distributor only on receipt of approved purchase orders from
Distributor.
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*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
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7. DELIVERY, SHIPMENT, PAYMENT AND RETURNS
7.1 Delivery shall be ex works factory/shipping point. All orders
will be shipped via surface carrier, usually Federal Express,
unless otherwise specified by Distributor and agreed by the
Company. All liability for damage or lost shipments shall be the
responsibility of the carrier and the Company shall have no
liability therefor. With the exception of the initial order, all
shortages or shipment discrepancies must be reported to the
Company by Distributor within ten (10) working days of shipment
receipt. Shortages or discrepancies found in the initial order
must be reported within twenty (20) working days of shipment
receipt.
7.2 Distributor's net prices and shipping charges, insurance costs
and terms of payment shall be set forth on invoices from the
Company, and all amounts invoiced shall be due net thirty (30)
days from date of the receipt of the PLP by Distributor. If
Distributor fails to pay invoices when due, the Company, in
addition to any other action it may take under this Agreement,
may suspend credit and ship the PLP to Distributor only upon
receipt of payment in advance or by C.O.D.
7.3 ***
7.4 The PLP may not be returned without prior written consent of the
Company. The Company will only accept returns due to defective
product. The Company and Distributor will agree on testing
methods and specifications which will be used to determine if
the PLP shipped to Distributor is within applicable
specifications.
8. TERMS
8.1 The initial term of this Agreement shall commence once the
Company has delivered the completed initial purchase order to
Distributor and shall continue for a period of two (2) years
thereafter. This Agreement will automatically renew for
subsequent terms of two (2) years each unless, no later than six
(6) months prior to the expiration of the initial term or any
renewal term of this Agreement, either party gives notice to the
other party of its desire not to renew this Agreement, in which
event this Agreement shall expire, and be of no further force or
effect, upon the expiration of the term of this Agreement then
in effect.
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*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
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8.2 This Agreement can be modified only by mutual written agreement
of both parties.
8.3 The first order from Distributor will be the PLP version of the
Mirage(TM)and Deltaloc(TM)systems, consisting of 30
Mirage(TM)systems and 50 Deltaloc(TM)systems and an additional
quantity of implants and instruments to establish stocking
inventory.
8.4 ***
9. INDEMNIFICATION
9.1 Indemnification by Company. The Company hereby agrees to
indemnify, defend and hold Distributor harmless from any damages
awarded against Distributor (including, without limitation,
reasonable costs and legal fees incurred by Distributor) arising
out of (i) any claims, liabilities, losses or expenses caused by
the Company's breach of any of its obligations, representations
or warranties made in this Agreement or (ii) any claims,
liability, losses or expenses arising from product liability
claims, or (iii) any suit, claim or other legal action ("Legal
Action") brought by a third party that alleges (a) that the PLP
infringes any patent, or trade secrets of a third party located
in the Area or (b) that the Mirage(TM)or Deltaloc(TM)systems
infringe any copyright, trademark, servicemark, patent or trade
secrets of a third party in the Area or (c) personal injury or
death resulting from the use of the PLP. If the PLP is found to
infringe any such third party intellectual property right in
such a Legal Action, the Company, at its sole discretion and
expense, may (a) obtain a license from such third party for the
benefit of Distributor; (b) replace or modify the PLP so that it
is no longer infringing; or (c) if neither of the foregoing is
commercially feasible, terminate this Agreement with no further
liability to Distributor.
9.2 Indemnification by Distributor. Distributor hereby agrees to
indemnify, defend and hold the Company harmless from any
damages, costs or liabilities (including, without limitation,
any reasonable costs or legal fees incurred by Company) arising
out of any claims, liabilities, losses or expenses caused by
Distributor's (i) breach of any of its obligations,
representations or warranties made in this Agreement; or (ii)
false and misleading representation made by any employee or
authorized agent of Distributor regarding the PLP.
----------
*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
E-18
9.3 Indemnification Procedure. A party seeking indemnification (an
"indemnified party") shall give the other party (an
"indemnifying party") written notice of any Legal Action within
ten (10) days of the first knowledge thereof. The indemnifying
party shall have sole and exclusive control of the defense of
any Legal Action, including the choice and direction of legal
counsel. The indemnified party shall have the right to engage
its own counsel, at its own expense. The indemnified party may
not settle or compromise any Legal Action without the written
consent of the indemnifying party.
9.4 The Company will use its best efforts to obtain an adequate
amount of insurance for the purpose of indemnification.
9.5 Paragraphs 9.1 through and including 9.3 shall survive the
termination of this Agreement.
10. TERMINATION
10.1 The Company may terminate or modify this Agreement immediately
and without notice if Distributor fails to pay for the PLP as
provided herein beyond a cure period of thirty (30) days.
10.2 The Company may terminate this Agreement upon ninety (90) days
written notice if Distributor fails to materially comply with
any other term or provision of this Agreement.
10.3 This Agreement may be terminated by either party if a party is
insolvent, or enters into bankruptcy. Either party may terminate
this Agreement if that party is insolvent or enters into
bankruptcy proceedings which are not resolved after a period of
sixty (60) days.
10.4 This Agreement shall automatically terminate upon dissolution or
liquidation of either party.
10.5 Upon termination of this Agreement for any reason, all orders
accepted by the Company prior to termination will terminate and
the Company will have no obligations thereunder. Any partial
payments or advances made against such orders shall be returned
to Distributor upon termination.
10.6 Should either party terminate this Agreement, Distributor will
have the right to sell its existing inventory, and in such
event, the Company will not accept any inventory for returns
unless such inventory is defective.
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11. STATUS OF THE PARTIES
11.1 Distributor shall not have the power to assign this Agreement or
any right or obligation hereunder unless prior written consent
is received by Distributor from the Company. Not withstanding
anything herein, the Distributor and the Company shall have the
right to assign this Agreement to any subsidiary or affiliate
without the prior written consent of the other party, as long as
such subsidiary or affiliate acknowledges and agrees to be bound
by the terms of this Agreement.
11.2 This Agreement will remain in force should a third party acquire
the Company. Any acquisition by a third party of the
Mirage(TM)and Deltaloc(TM)product lines during the term of this
Agreement will be subject to this Agreement.
12. DISPUTES
12.1 In the event of a dispute between the Company and Distributor,
the parties agree to attempt to resolve the dispute through good
faith efforts.
13. MISCELLANEOUS
13.1 This Agreement, including the Schedules attached hereto, as
amended from time to time, embodies the entire understanding of
the parties. All prior arrangements between the Company and
Distributor are canceled or superseded by this Agreement. In the
event of any conflict between this Agreement and purchase orders
or other forms utilized by the parties, the terms of this
Agreement shall prevail.
13.2 No failure or delay on the part of either party hereto in
exercising any right, power, or privilege under this Agreement
shall operate as a waiver thereof nor shall any single or
partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise
of any right, power or privilege. The rights and remedies
expressly specified in this Agreement are cumulative and are not
exclusive of any rights or remedies which either party would
otherwise have.
13.3 The Company acknowledges that this Agreement is a confidential
document, and acknowledges that Distributor is a public company.
Therefore, the Company agrees that Distributor will have the
right to issue public and press announcement regarding the terms
of this Agreement and the resulting relationship between the
Company and Distributor. Nonetheless, Distributor shall provide
a courtesy copy of any such announcement to the Company for its
review and
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information in advance of its release. The Company acknowledges
that any such advance copy must remain confidential and might be
deemed under Securities and Exchange Commission rules and
regulations to be inside information. Additionally, the Company
acknowledges that Distributor may need to file a copy of this
Agreement and any amendments thereto with the Securities and
Exchange Commission.
13.4 Notices under this Agreement may be given to:
(i) the Company by being handed to the President of the
Company.
(ii) Distributor or the Company by being sent to the address
provided below adjacent to the signature of the party in
question, by facsimile, telex or registered, return receipt
requested first-class mail and by express mail, where
appropriate.
13.5 During the term of this Agreement and for one year after
expiration of the last term of this Agreement, the Company and
Distributor agree not to recruit each other's employees or
independent sales agents. Notwithstanding anything herein, the
Company and Distributor acknowledge the existing overlap
regarding the Company's independent sales agent, Rock Surgical.
This agent will be allowed to represent both the Company's
products and Distributor's PLP.
13.6 In the event any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable, the other
provisions of this Agreement shall remain in effect and be
enforceable in accordance with their terms.
13.7 This Agreement will be interpreted under the laws of the State
of California
14. WARRANTY AND LIMITATION OF REMEDIES
14.1 ALL PLP SOLD TO DISTRIBUTOR UNDER THIS AGREEMENT ARE WARRANTED
BY THE COMPANY ONLY IN ACCORDANCE WITH THE WARRANTIES EXPRESSLY
SET FORTH ON THE PACKAGING OR IN THE LABELING OR INSTRUCTIONS
FOR USE OF SUCH PLP. SUCH WARRANTIES MAY BE MODIFIED FROM TIME
TO TIME BY THE COMPANY DURING THE TERM OF THIS AGREEMENT. SUCH
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY THE
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COMPANY. DISTRIBUTOR ACKNOWLEDGES THAT THE COMPANY IS NOT THE
MANUFACTURER OF SOME OR ALL OF THE PLP THAT THE COMPANY PROVIDES
NO WARRANTIES, EXPRESS OR IMPLIED, BEYOND THE WARRANTIES
PROVIDED BY THE MANUFACTURER OF ANY OF THE PLP. THE COMPANY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF
TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14.2 The Company shall not be liable for any loss or damage caused by
delay in furnishing the PLP or services or any other performance
under or pursuant to this Agreement when such delay is due to
acts of God, labor disputes or other such causes beyond its
control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written:
OSTEOTECH, INC. ALPHATEC MANUFACTURING, INC.
"Distributor" "The Company"
By: /s/ By: /s/
--------------------------------- ---------------------------------
Title President Title: President
Address: 00 Xxxxx Xxx Address: 00-000 Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000 Xxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
WITNESS: WITNESS:
/s/ Xxxxx Xxxx /s/ Xxxx Xxxxxxxxxx
------------------------------------- -------------------------------------
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Schedule A - Mirage(TM) Top Tightening Spine System
For purposes of this agreement, Mirage(TM) is defined as
PART MIRAGE SPINAL SYSTEM
NUM. Alphatec DESCRIPTION
IMPLANTS
65301 - 04 Ti - ROD / .2500, (4cm) TI6--4E
65301 - 05 Ti - ROD / .2500, (5cm) T16--4E
65301 - 07 Ti - ROD / .2500, (7cm) T16--4E
65301 - 09 Ti - ROD / .2500, (9cm) TI6--4E
65301 - 11 Ti - ROD / .2500, (11cm) T16--4E
65301 - 13 Ti - ROD / .2500, (13cm) T16--4E
65301 - 15 Ti - ROD / .2500, (15cm) T16--4E
65301 - 17 Ti - ROD / .2500, (17cm) T16--4E
65301 - 45 Ti - ROD / .2500, (45cm) TI6--4E
65301 - 50 Ti - ROD / .2500, (50cm) T16--4E
00000 XX XXXXXXX XXXX, XX
00000 XX LAMINAR HOOK, SM
00000 XX XXXXXX XXXXXXX XXXX, XX
00000 XX XXXXXX XXXXXXX XXXX, XX
00000 XX XXXXXXXX XXXXXXX XXXX, XX
00000 XX ELEVATED LAMINAR HOOK, SM
66609 TT THORACIC LAMINAR HOOK, LG
66610 TT THORACIC LAMINAR HOOK, SM
66611 TT PEDICLE HOOK, SM
66612 TT TRANSVERSE PROCESS HOOK
66613 TT CRANIAL ANGLED HOOK
66614 TT CAUDAL ANGLED HOOK
66615 TT PEDICLE HOOK, SM
66625 - 45 TT BRIDGE ASSY 4.5cm - TI64ELI
66625 - 65 TT BRIDGE ASSY 6.5cm - TI64ELI
66625 - 85 TT BRIDGE ASSY 8.5cm - TI64ELI
66655 - 25 5.5mm BONE SCREW - 25mm LENGTH
66655 - 30 5.5mm BONE SCREW - 30mm LENGTH
66655 - 35 5.5mm BONE SCREW - 35mm LENGTH
66655 - 40 5.5mm BONE SCREW - 40mm LENGTH
66655 - 45 5.5mm BONE SCREW - 45mm LENGTH
66655 - 50 5.5mm BONE SCREW - 50mm LENGTH
66655 - 55 5.5mm BONE SCREW - 55mm LENGTH
66665 - 25 6.5mm BONE SCREW - 25mm LENGTH
66665 - 30 6.5mm BONE SCREW - 30mmLENGTH
66666 - 35 6.5mm BONE SCREW - 35mm LENGTH
66665 - 40 6.5mm BONE SCREW - 40mm LENGTH
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66665 - 45 6.5mm BONE SCREW - 45mm LENGTH
66665 - 50 6.5mm BONE SCREW - 50mm LENGTH
66665 - 55 6.5mm BONE SCREW - 55mm LENGTH
66675 - 25 7.5mm BONE SCREW - 25mm LENGTH
66675 - 30 7.5mm BONE SCREW - 30mm LENGTH
66675 - 35 7.5mm BONE SCREW - 35mm LENGTH
66675 - 40 7.5mm BONE SCREW - 40mm LENGTH
66675 - 45 7.5mm BONE SCREW - 45mm LENGTH
66675 - 50 7.5mm BONE SCREW - 50mm LENGTH
66675 - 55 7.5mm BONE SCREW - 55mm LENGTH
66685 - 25 8.5mm BONE SCREW - 25mm LENGTH
66685 - 30 8.5mm BONE SCREW - 30mm LENGTH
66685 - 35 8.5mm BONE SCREW - 35mm LENGTH
66685 - 40 8.5mm BONE SCREW - 40mm LENGTH
66685 - 45 8.5mm BONE SCREW - 45mm LENGTH
66685 - 50 8.5mm BONE SCREW - 50mm LENGTH
66685 - 55 8.5mm BONE SCREW - 55mm LENGTH
66681 LINK, SM, TI64ELI
66681 - L18LINK, SM, LH 18 DEGREE
66681 - R18LINK, SM, XX 00 XXXXXX
00000 LINK, MEDIUM, TI64ELI
66682 - L28LINK, MEDIUM. LH 28 DEGREE
66682 - X00XXXX, XXXXXX, XX 00 DEGREE
66683 LINK, LG, LH 18 DEGREE
66683 - L28LINK, LARGE, LH 28 DEGREE
66683 - R28LINK, LARGE, XX 00 XXXXXX
00000 HOOK LINK, SM
66684 HOOK LINK, MED
00000 XXXX XXXX, XX
00000 NUT
66696 WASHER TI64ELI
Implant Total
INSTRUMENTS
65302 ROD TEMPLATE 45cm
65404 MODULAR RATCHET HANDLE
65408 DEFLECTION BEAM TORQUE WRENCH
65426 T-HANDLE RATCHET
65435 TI-ROD ROTATION WRENCH
65443 TI-ROD PUSHER
65444 TI-XXX XXXXXX
65445 ALPHA TI-XXX XXXXXX
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65446 TI-XXX XXXXXX
65452 HOOK SPREADER
65453 HOOK COMPRESSOR
65454 HOOK SPREADER, LG
65455 PROBE, CRVD
65456 PROBE, FLAT
65457 PROBE, ROUND
65458 PROBE, STRAIGHT
65461 K-WIRE INSERTER/DEPTH GAUGE
65462 T-BAR/CLEANING WIRE
65550 - 250 XXX XXXXXX FCPS
66401 TOP TIGHTENING HOOK HOLDER
66402 AWL
66403 LINK X-X XXXXX
00000 SCREW DRIVER/LIMITER
66405 SCREW INSERTER, W/PLASTIC SLEEVE
66405 - 02 SCREW INSERTER PLASTIC SLEEVE
66406 HEX DRIVER FOR TT BRIDGE
66407 NUT & WASHER INSERTER
66408 3/8" TORQUE WRENCH EXTENSION
66409 HOOK NUT INSERTER
66410 SCREW DRIVER/INSERTER
66420 HOOK IMPACTOR
66426 TT BRIDGE/CLAMP HOLDER
00000 X XXXXXX/XXXXXX XXXXX ADAPTOR
66430 TT TI-ROD LOCATOR
66431 ANTI-TORQUE ROD STABILIZER
66439-01 TORQUE WRENCH NUT TIGHTENER
66439-02 REVERSE TORQUE WRENCH SCREW DRIVER
66439-03 TORQUE WRENCH, T-HANDLE NUT TIGHTENER
66441 IN SITU ROD/BRIDGE XXXXXX
66446 FRENCH XXX XXXXXX
66451 LINK SPREADER
66452 LINK REMOVER
66455 TT BONE SCREW TAP 5.5mm
66463 SCREW ADJUSTER
66465 TT DONE SCREW TAP 6.5mm
00000 XX XXXX XXXXXXXX
00000 XX SCREW TEMPLATE
66475 TT BONE SCREW TAP 7.5mm
66485 TT BONE SCREW TAP 8.5mm
66501 SPINAL IMPLANT CASE
66501-04 SCOLIOSIS IMPLANT TRAY
66504 SPINAL INSTRUMENT CASE
66677 NUT & WASHER BLOCK
65460 K-WIRE
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Schedule B- Deltaloc(TM) Anterior Cervical System
For purposes of this agreement, Deltaloc(TM) is defined as
-------------------------------------------------------------------------------
PART Alphatec DESCRIPTION
NUM. DELTALOC - ANTERIOR CERVICAL PLATE
-------------------------------------------------------------------------------
69040 - 0104.0mm. x 10mm XXXXXXXX XXXXX XXXXX
00000 - 0124.0mm. x 12mm XXXXXXXX XXXXX XXXXX
00000 - 0144.0mm. x 14mm XXXXXXXX XXXXX XXXXX
00000 - 0164.0mm. x 16mm XXXXXXXX XXXXX XXXXX
00000 - 0104.0mm. x 10mm FIXED ANGLE SCREW
69041 - 0124.0mm. x 12mm FIXED ANGLE SCREW
69041 - 0144.0mm. x 14mm FIXED ANGLE SCREW
69041 - 0164.0mm. x 16mm FIXED ANGLE SCREW
69045 - 0104.5mm. x 10mm XXXXXXXX XXXXX XXXXX
00000 - 0124.5mm. x 12mm XXXXXXXX XXXXX XXXXX
00000 - 0144.5mm. x 14mm XXXXXXXX XXXXX XXXXX
00000 - 0164.5mm. x 16mm XXXXXXXX XXXXX XXXXX
00000 - 0104.5mm. x 10mm FIXED ANGLE SCREW
69046 - 0124.5mm. x 12mm FIXED ANGLE SCREW
69046 - 0144.5mm. x 14mm FIXED ANGLE SCREW
69046 - 0164.5mm. x 16mm FIXED ANGLE SCREW
69001 - 01414mm XXXXX 0 XXXXX
00000 - 01616mm XXXXX 0 XXXXX
00000 - 01818mm XXXXX 0 XXXXX
00000 - 02020mm XXXXX 0 XXXXX
00000 - 02222mm XXXXX 0 XXXXX
00000 - 02424mm XXXXX 0 XXXXX
00000 - 02626mm XXXXX 0 XXXXX
00000 - 02828mm XXXXX 0 XXXXX
00000 - 03131mm XXXXX 0 XXXXX
00000 - 03434mm XXXXX 0 XXXXX
00000 - 03737mm XXXXX 0 XXXXX
00000 - 04040mm XXXXX 0 XXXXX
00000 - 04343mm XXXXX 0 XXXXX
00000 - 04646mm XXXXX 0 XXXXX
00000 - 04545mm XXXXX 0 XXXXX
00000 - 04848mm XXXXX 0 XXXXX
00000 - 05151mm XXXXX 0 XXXXX
00000 - 05454mm XXXXX 0 XXXXX
00000 - 05757mm XXXXX 0 XXXXX
00000 - 06060mm XXXXX 0 XXXXX
00000 - 06363mm XXXXX 0 XXXXX
00000 - 06666mm XXXXX 0 XXXXX
00000 - 06969mm XXXXX 0 XXXXX
X-00
00000 - 06060mm XXXXX 0 XXXXX
00000 - 06464mm XXXXX 0 XXXXX
00000 - 06868mm XXXXX 0 XXXXX
00000 - 07272mm XXXXX 0 XXXXX
00000 - 07676mm XXXXX 0 XXXXX
00000 - 08080mm XXXXX 0 XXXXX
00000 - 06484mm XXXXX 0 XXXXX
XXXXXXXXXXX
00000 XXXXX HOLDER
69110 FIXED ANGLE DRILL GUIDE
69115 VARIABLE ANGLE DRILL GUIDE
69116 LIMITED ANGLE DRILL GUIDE
69120 BENDING PLIERS
69130 QUICK CONNECT HANDLE
69150 TAP
69160 HEX DRIVER
69170 LOCKING TOOL
69171 UNLOCKING TOOL
69180 DISTRACTOR / COMPRESSOR
69181 DISTRACTOR / COMPRESSOR POST
69182 POST DRIVER
69190 CERVICAL PLATE STERILIZATION CASE
69140 - 01010mm DRILL BIT
69140 - 01212mm DRILL BIT
69140 - 01414mm DRILL BIT
69140 - 01616mm DRILL BIT
E-28
Schedule C -- Purchase Schedule of Products
***
--------------
*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
E-29
Schedule D - Purchase Commitment Adjustments Due to Backorders,
Purchase Lead Times and Distributor Forecasts
***
--------------
*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
E-30
Schedule F - Company's Existing Customers
For purposes of this Agreement, a customer is defined to mean a surgeon within a
particular hospital.
This list includes surgeons who have done a Mirage or Deltaloc case within the
last 6 months or who have committed to do a surgery within the next 30 days. If
they do not do a case within 30 days of when this agreement is signed, they will
be removed from the list.
ALPHATEC SPINE SURGEONS
Xx. Xxxx Xxxxxxxxx Baltimore, Maryland
Dr. Xxxx Xxxxx Baltimore, Maryland
Dr. Xxxxx Xxxx Baltimore, Maryland
Xx. Xxxxxx Xxxxxxx Baltimore, Maryland
Xx. Xxxxx Xxx Baltimore, Maryland
Xx. Xxxx Xxxxxxxxxx Los Angeles, California
Xx. Xxxxxxx Xxxxx Los Angeles, California
Xx. XxXxxxxx Los Angeles, California
Xx. Xxxxxx Xxxxxx Rancho Mirage, California
Xx. Xxxxxx XxXxxxx Los Angeles, California
Xx. Xxxx Los Angeles, California
Xx. Xxxxxxx Los Angeles, California
Xx. Xxxxxxxx San Diego, California
Xx. Xxxxxxxx San Diego, California
Xx. XxXxxxx San Diego, California
Xx. Xxxxxxx Xxxxx Boston, Massachusetts
Xx. Xxxxx Boston, Massachusetts
Dr. Brick Boston, Massachusetts
Xx. Xxxxxx Boston, Massachusetts
Xx. Xxxx Xxxxx Lafayette, Indiana
Xx. Xxxxxx Xxxxx Indianapolis, Indiana
Dr. Svavada Indianapolis, Indiana
Xx. Xxxxxx Denver, Colorado
Dr. Xxxxxxx Xxxxxx Midland/Odessa, Texas
Dr. Xxxxx Xxxxx Midland, Texas
Dr. Mcgavorn Midland, Texas
Xx. Xxxxxx Texas
Xx. Xxxxxx San Angelo, Texas
Xx. XxXxxxxx San Angelo, Texas
Xx. Xxxxxx San Angelo, Texas
Xx. Xxxxxxxxx San Angelo, Texas
Xx. Xxxxx Odessa, Texas
Xx. Xxxx Xxxxxxxxx Corpus Christi, Texas
Xx. Xxxxxxx Corpus Christi. Texas
Dr. Karreh Corpus Christi, Texas
Dr. Xxxxxx Arranabar San Antonio, Texas
Xx. Xxxxxx Xxxxx San Antonio, Texas
Dr. Skuerhut San Antonio, Texas
Dr. Garzavail San Antonio, Texas
Dr. Kuwamara San Antonio, Texas
Xx. Xxxxxxx San Antonio, Texas
Xx. Xxxx San Antonio, Texas
Dr. Gurhwitts San Antonio. Texas
Xx. Xxxxxxx San Antonio, Texas
Dr. Gultierrez San Antonio, Texas
Xx. Xxxxx Austin, Texas
Xx. Xxxxxx Austin, Texas
Xx. X'Xxxxx Austin. Texas
Xx. Xxxxx Austin, Texas
Xx. Xxxxx Austin, Texas
Xx. Xxxx Arlington, Texas
Xx. Xxxxxxxx Arlington, Texas
Xx. Xxxxxx Arlington, Texas
Xx. Xxxxxxxxx Arlington., Texas
Xx. Xxxxxxx Abilene, Texas
Dr. Torraz Abilene, Texas
Xx. Xxxxxxxxx Abilene, Texas
E-31
Dr. Mcdonna Abilene, Texas
Xx. Xxxx Xxxxxx Dallas, Texas
Dr. Schwickla Dallas, Texas
Xx. X. Xxxxx Dallas, Texas
Dr. Kutana Dallas, Texas
Xx. Xxxxxxxx Ft. Worth, Texas
Xx. Xxxxxxxxxx Ft. Worth; Texas
Dr. Weavor Ft. Worth, Texas
Xx. Xxxxxxx Ft. Worth, Texas
Dr. Rahlston Ft. Worth, Texas
Xx. Xxxxx Ft. Worth, Texas
Dr. Cosmoski Ft. Worth, Texas
Xx. Xxxxxxx Ft. Worth, Texas
Xx. Xxxxxxxxx Tyler, Texas
Xx. Xxxxxx Amarillo, Texas
Xx. Xxxxxx Amarillo, Texas
Xx. Xxxx Amarillo, Texas
Xx. Xxxx Amarillo, Texas
Xx. XxXxxxx Amarillo, Texas
Xx. Xxxxxx Cerrabono New York, New York
Xx. Xxxxxx Xxxxxx New York, New York
Xx. Xxxxx Xxxxx New York, New York
Xx. Xxxxxxx Pittsburgh, Pennsylvania
Xx. Xxxxxxx Pittsburgh Pennsylvania
Xx. Xxxxxx Pittsburgh, Pennsylvania
Xx. Xxxx Xxxxxxxxx Philadelphia, Pennsylvania
Xx. Xxxxxxx Newport Xxxxxx, Florida
Xx. Xxxxx Florida
Xx. Xxxxxxx Sarasota, Florida
Xx. Xxxxxxxx Sarasota, Florida
Xx. Xxxxxxxx Florida
Xx. Xxxxx St. Louis, Missouri
Dr. Chibot St. Louis, Missouri
Dr. Xxxxxx Xxxxxxxx Salt Lake City, Utah
Xx. Xxxxxx Xxxxxx Salt Lake City, Utah
Xx. Xxxx Ohio
Dr. Xxxxx Xxxxxxx, Mississippi
Xx. Xxxx Jackson, Mississippi
Xx. Xxx Mississippi
Xx. Xxxxxx Jackson, Mississippi
Xx. Xxxxxxx Jackson, Mississippi
Xx. Xxxxxxxxx Mississippi
Xx. Xxxxxxxxx Jackson, Mississippi
Xx. Xxxxxxx Jackson, Mississippi
Xx. Xxxxxxxx Jackson, Mississippi
Xx. Xxxxxxxxx Jackson, Mississippi
Dr. Xxxxx Xxxxxxx, Mississippi
Xx. Xxxxx Jackson, Mississippi
Xx. Xxxxxxxx Hattiesburg, Mississippi
E-32
Schedule H: - Price List
***
----------
*** Indicates the omission of confidential material pursuant to the request for
confidential treatment made in accordance with Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. The confidential material is
being filed separately with the Securities and Exchange Commission.
E-33
