SETTLEMENT AND RELEASE AGREEMENT
Exhibit 10.3
SETTLEMENT AND RELEASE AGREEMENT
This settlement and release agreement (“Agreement”) is made as of July 28, 2014 by and among the Alphatec Parties defined below (hereafter, “Alphatec”), the Healthpoint Parties defined below (hereafter, “Healthpoint”), and the OrthoTec Parties as defined below (hereafter, “OrthoTec”). Alphatec, Healthpoint and OrthoTec will be referred to collectively as the “Parties.”
This Agreement supersedes the Binding Term Sheet executed by the Parties at the mediation with Xxxxx Xxxxxx on March 15, 2014.
1. | RECITALS |
1.1. | The Alphatec Action. OrthoTec filed a lawsuit against various parties in California on or about May 8, 2008, entitled OrthoTec, LLC. v. Surgiview, S.A.S., Scient’x, S.A., Xxxxxxx Xxxxx, Alain Tornier, Guy Viart, Healthpoint Capital, LLC, Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxxx III, Case No. BC390346, in the Los Angeles Superior Court and added Alphatec Holdings as a party to that case on or about January 20, 2012 (hereafter, the “Alphatec Action”). |
1.2. | The Healthpoint Action. OrthoTec filed a lawsuit against various parties in New York on or about May 7, 2008, entitled OrthoTec, LLC, v. Healthpoint Capital, LLC, Xxxx Xxxxxx and Xxxxxxxx Xxxxxxxxx, III, Case No. 08601377, in the Supreme Court of New York and filed an amended complaint on or about May 13, 2009, naming as additional parties Healthpoint Capital Partners, LP, HealthpointCapital Partners II, LP and Scient’x, S.A. (hereafter, the “Healthpoint Action”). |
1.3. | The Carli Action: OrthoTec filed a lawsuit against Xxxxxxx Xxxxx in California on or about January 22, 2014, entitled OrthoTec, LLC x. Xxxxxxx Carli, Case No. BC533849, in the Los Angeles Superior Court (hereafter, the “Carli Action.”). |
1.4. | The Xxxxxxxxx Action: OrthoTec filed a lawsuit against Xxxxxxx Xxxxxxxxx in California on or about June 25, 2013, entitled Xxxxxxx Xxxxxxxxx v. Xxxxxxx Xxxxxxxxx and SELARL Xxxxxxxxx, Case No. BC513436, in the Los Angeles Superior Court (hereafter, the “Xxxxxxxxx Action”). |
1.5. | Claims asserted: The complaints in the Alphatec, Healthpoint and Carli Actions purport to assert various claims, including allegations of fraudulent conveyance, interference with contract, and negligence, resulting in damage to OrthoTec’s business and a decrease in its value, and seek monetary damages as well as declaratory and injunctive relief relating to the production of plans for certain products. The complaint in the Xxxxxxxxx Action purports to assert claims for malicious prosecution in connection with certain proceedings in France. As further provided below, this Agreement resolves all such claims and any other claims that could have been asserted against the Released Parties (defined below) based on facts or circumstances, known or unknown, occurring up to and including the |
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Exhibit 10.3
date of this Agreement. Collectively, the Alphatec Action, Healthpoint Action, Carli Action, and Xxxxxxxxx Action shall be referred to as the “Actions.”
2. | PARTIES |
2.1. | The parties to this Agreement are Alphatec, Healthpoint and OrthoTec. |
(a) | Alphatec Parties: The Alphatec Parties shall include Alphatec Holdings, Inc., acting for itself and for the benefit of all of its direct and indirect subsidiaries and affiliates, including Alphatec Spine, Inc. and its direct and indirect subsidiaries and affiliates; and Alphatec Holdings International C.V., and its direct and indirect subsidiaries and affiliates, including Scient’x S.A.S. and Surgiview S.A.S. |
(b) | Healthpoint Parties: The Healthpoint Parties shall include HealthpointCapital, LLC, Xxxx X. Xxxxxx and Xxxxxxxx Xxxxxxxxx III, acting on their own behalf and for the express benefit of Healthpoint Capital Partners, L.P. and HealthpointCapital Partners II, L.P. |
(c) | OrthoTec Parties. The OrthoTec Parties shall include OrthoTec, LLC and Xxxxxxx Xxxxxxxxx. |
3. | SETTLEMENT PAYMENT |
3.1. | Alphatec Holdings, Inc. and Healthpoint Capital, LLC will cause the amounts specified in this Settlement and Release Agreement, as specifically set forth in Attachment A hereto, to be paid to OrthoTec, LLC. |
4. | STIPULATED JUDGMENTS |
4.1. | The payments set forth in Attachment A will be guaranteed by Stipulated Judgments against (i) Alphatec Holdings, Inc., (ii) HealthpointCapital Partners, L.P., HealthpointCapital Partners II, L.P., (iii) HealthpointCapital, LLC, and (iv) Xxxx X. Xxxxxx and Xxxxxxxx Xxxxxxxxx, III. The Stipulated Judgments will reflect the total amounts set forth in Attachment A and be in the form attached as Attachment B. The Stipulated Judgments will be held and entered only in the event of a default and will be entered and enforced against the judgment debtors in the order specified above. In the event of a default in the payment terms, OrthoTec’s sole remedy for such default will be to enter and pursue collection on the Stipulated Judgments for the principal and interest as set forth in Attachment A, less the amounts already paid, plus all reasonable attorneys’ fees and costs incurred in pursuing collection. |
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Exhibit 10.3
5. | DISMISSALS |
5.1. | Upon payment of the lump-sum payment pursuant to Attachment A ($15.75 million), the parties will execute and file dismissals with prejudice of the Alphatec Action, the Healthpoint Action, the Carli Action, and the Xxxxxxxxx Action. |
5.2. | Such notices of dismissal shall be delivered to counsel for Alphatec and Healthpoint upon execution. |
The Parties agree not to oppose and, to the extent required by the courts, to cooperate reasonably in taking such actions and executing such documents as are necessary to dismiss the foregoing Actions with prejudice, including any and all pending proceedings at any trial or appellate court related to such Actions.
6. | RELEASED PARTIES |
6.1. | Defendant Released Parties: The Defendant Released Parties shall mean: |
(a) | Alphatec Released Parties: The Alphatec Released Parties shall include: |
(i) | Alphatec Holdings, Inc., and all of its direct and indirect subsidiaries throughout the world, including, without limitation, Alphatec Spine, Inc., Alphatec Pacific Inc., Alphatec Spine GmbH, Millerton Ltd., Japan Ortho Medical; Alphatec Holdings International CV, Cooperatie Alphatec Holdings Europa U.A., Alphatec International, LLC., Scient’x S.A.S., Cibramed Productos Medicos Ltda., Scient’x UK Ltd., Scient’x Australia, Scient’s USA, Inc., Scientx Asia Pacific, Scient’x Italia, Surgiview S.A.S., and each of their direct and indirect subsidiaries and affiliates. |
(ii) | All current or former successors, partners, associates, officers, directors, employees, insurers, agents, advisors, attorneys (including, without limitation, Alphatec’s General Counsel Xxxx Xxxxxx; Xxxxxx Xxxxxx & Xxxxx, LLP; Xxxx Xxxxx; Xxxx Xxxxx; Xxxxx Xxxx; Xxxxxx Xxxxxxx; Xxxxxx Xxxxxx; DLA Xxxxx; Xxxx Xxxxxxxxx; and Xxxxx Xxxxxx) and representatives of or for any of the Alphatec Entities. It is understood that such terms may vary from country to country, and this Agreement releases all claims against entities and individuals whose liability would be predicated on any action or inaction on their part that was in any manner connected to the individual or entity’s affiliation with one or more of the Alphatec Entities, or whose action or inaction could give rise to any liability (direct or indirect, whether by way of respondeat superior, indemnity, contribution, or any other basis) on the part of the Alphatec Released Parties. |
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Exhibit 10.3
(b) | Healthpoint Released Parties: The Healthpoint Released Parties shall include |
(i) | HealthpointCapital, LLC; HealthpointCapital Partners, L.P.; HealthpointCapital Partners II, L.P.; Healthpoint Partners II-A, L.P.; HCM, LLC; HGP, LLC; HGPII, LLC; Xxxx X. Xxxxxx and Xxxxxxxx Xxxxxxxxx, III. |
(ii) | All current or former successors, affiliates, members, subsidiaries, partners, associates, officers, directors, employees, insurers, agents, advisors, attorneys (including, without limitation, Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx; and Xxxxxxx X. Xxxxxx) and representatives (and each of their respective predecessors, successors, assigns, and, as applicable, heirs) throughout the world of or for any of the Healthpoint Parties. It is understood that such terms may vary from country to country, and this Agreement releases all claims against individuals or entities whose liability would be predicated on any action or inaction on their part that was in any manner connected to the individual or entity’s affiliation with one or more of the Healthpoint Parties, or whose action or inaction could give rise to any liability (direct or indirect, whether by way of respondeat superior, indemnity, contribution, or any other basis) of the Healthpoint Released Parties. |
(c) | The Carli Released Parties: The Carli Released Parties shall include Xxxxxxx Xxxxx, members of his family, heirs, advisors, attorneys (including, without limitation, Berenthal & Associates; Xxxxx Xxxxxxxxx; Xxxxxxx Xxxxx & Xxxxxxx LLP; Xxxx Xxxxxxx; and Xxxx Xxxxxxx Xxxxxxxxx) and representatives of Xx. Xxxxx or his family, and any person or entity with which Xx. Xxxxx has or has had or may in the future have an affiliation of any sort, including without limitation ownership (direct or indirect) or serving as an officer, director, advisor, or employee of any sort. |
(d) | The Xxxxxxxxx Released Parties. The Xxxxxxxxx Released Parties shall include Xxxxxxx Xxxxxxxxx and SELARL Xxxxxxxxx and their partners, associates, officers, directors, employees, successors, affiliates, heirs, advisors, attorneys (including, without limitation, Daar & Xxxxxx) and representatives, and any other person or entity allegedly involved in any matter with the French proceedings at issue in the Xxxxxxxxx Action or the Xxxxxxxxx Action. |
(e) | The OrthoTec Released Parties: The OrthoTec Released Parties shall include OrthoTec, LLC, Xxxxxxx Xxxxxxxxx, and all current or former members, successors, partners, associates, officers, directors, employees, insurers, agents, advisors, attorneys (including without limitation Xxxxxx Xxxxxx Xxxx LLP, Xxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx, and the Law Offices of Xxxxxxx Xxxxx) and all representatives of or for OrthoTec. It is understood that such terms may vary from country to country, and this Agreement releases all claims against individuals or entities whose liability would be predicated on any |
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Exhibit 10.3
action or inaction on their part that was in any manner connected to the individual or entity’s affiliation with OrthoTec, or whose action or inaction could give rise to any liability (direct or indirect, whether by way of respondeat superior, indemnity, contribution, or any other basis) of OrthoTec.
7. | RELEASES |
7.1. | Release by Alphatec and Healthpoint of OrthoTec Released Parties. |
(a) | Except as expressly set forth in this Agreement, Alphatec and Healthpoint hereby release, effective as of the date of this Agreement, the OrthoTec Released Parties, and each of them, from any and all claims, demands, and causes of action, whether known or unknown, in contract or tort, arising out of or incurred in connection with any facts or circumstances existing prior to the date of this Agreement. |
(b) | By way of limitation, it is agreed that as to Alphatec’s and Healthpoint’s release of unnamed current or former associates, outside insurers, agents, advisors, attorneys, and representatives, Alphatec’s and Healthpoint’s release shall be of claims, demands, or causes of action that related in any way to the claims or allegations in the Alphatec Action, the Healthpoint Action, the Carli Action, and the Xxxxxxxxx Action. For clarity, releases of such unnamed persons or entities shall not include unknown claims. For the purpose of this Section 7.1(b), “unknown” shall be defined as not known as per the knowledge of the Alphatec Parties or Healthpoint Parties, including their officers and employees; provided that if a reasonable person in the position of the Alphatec Parties or the Healthpoint Parties should know such information, such information shall not be deemed to be unknown. |
7.2. | Release by OrthoTec of the Alphatec Released Parties, the Healthpoint Released Parties, the Carli Released Parties and the Xxxxxxxxx Released Parties. |
(a) | Except as expressly set forth in this Agreement, OrthoTec hereby releases, effective as of the time of this Agreement, the Alphatec Released Parties, the Healthpoint Released Parties, the Carli Released Parties and the Xxxxxxxxx Released Parties and each of them, from any and all claims, demands, and causes of action, whether known or unknown, in contract or in tort, arising out of or incurred in connection with any action, conduct, or omission or other facts or circumstance existing or occurring from the beginning of time up to the date of this Agreement, including, without limitation, the allegations made or that could have been made in the Alphatec Action, the Healthpoint Action, the Carli Action, and the Xxxxxxxxx action. |
(b) | By way of limitation, it is agreed that as to OrthoTec’s release of unnamed affiliates, associates, outside insurers, agents, advisors, attorneys, and representatives, OrthoTec’s release shall be of claims, demands, or causes of |
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Exhibit 10.3
action that related in any way to the claims or allegations in the Alphatec Action, the Healthpoint Action, the Carli Action, and the Xxxxxxxxx Action. For clarity, releases of such unnamed persons or entities shall not include unknown claims. For the purpose of this Section 7.2(b), “unknown” shall be defined as not known as per the knowledge of the OrthoTec Parties, including their officers and employees, provided that if a reasonable person in the position of the OrthoTec parties should know such information, such information shall not be deemed to be unknown.
7.3. | Waiver of Civil Code Section 1542. |
(a) | Alphatec, Healthpoint and OrthoTec, and each of them, expressly understand that there may be unknown or unanticipated damages, injuries, or losses resulting from conduct, acts, omissions or other circumstances occurring prior to the date of this Agreement, including matters alleged in (or related to) the Alphatec Action, the Healthpoint Action, the Carli Action, and the Xxxxxxxxx action, and that such damages, injuries, and losses may not be discovered until after execution of this Agreement or after the time of this Agreement. Except as expressly set forth in this Agreement, Alphatec, Healthpoint and OrthoTec, and each of them, hereby expressly agree that the releases contained herein nevertheless shall apply to all such unknown or unanticipated damages, injuries or losses. Alphatec, Healthpoint and OrthoTec, and each of them, further expressly understand that a damage, injury or loss of which they are now aware may be more serious than now known or understood, or may have future consequences that are not now anticipated or suspected. Except as expressly set forth in this Agreement, Alphatec, Healthpoint and OrthoTec, hereby expressly agree that the releases contained herein nevertheless shall apply to such unknown or unanticipated consequences. |
(b) | Alphatec, Healthpoint and OrthoTec, and each of them, have read California Civil Code section 1542, which provides as follows: |
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the Release, which if known by him or her must have materially affected his or her settlement with the debtor.
(c) | Except as expressly limited in this Agreement, Alphatec, Healthpoint and OrthoTec, and each of them, acknowledge that they understand this statute, and expressly waive any and all rights and benefits of California Civil Code section 1542, as well as all rights and benefits of any similar law of any other jurisdiction for unknown or unanticipated damages, injuries, or losses arising out of conduct, acts, omissions or other circumstances occurring prior to the date of this Agreement, including matters alleged in or related to the Alphatec Action, the Healthpoint Action, the Carli Action and/or the Xxxxxxxxx Action. |
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Exhibit 10.3
8. | NO ADMISSION OF LIABILITY |
8.1. | Alphatec Holdings, Healthpoint Capital, Healthpoint Capital Partners, LP, Healthpoint Capital Partners II, LP, Xxxx X. Xxxxxx, and Xxxxxxxx Xxxxxxxxx, III deny any and all allegations made by OrthoTec in the above-referenced actions. This Agreement contains no admission of liability. |
9. | CONTINUING JURISDICTION OVER SETTLEMENT |
9.1. | The Superior Court of Los Angeles and the Supreme Court of New York retain such jurisdiction as they have previously determined they have over the respective parties to California and New York Courts, in order to enforce the settlement in this Agreement, pursuant to California Code of Civil Procedure Section 664.6 and any New York laws of similar effect. |
10. | ENTIRE AGREEMENT AND MODIFICATION |
10.1. | This Agreement, together with the provisions in Attachments A and B hereto, constitutes the full and complete agreement between the Parties regarding the matters set forth herein. Except for the “Agreement Regarding the Production of Certain Plans,” dated March 15, 2014, which shall remain in full force and effect, this Agreement supersedes all prior or contemporaneous oral or written agreements and understandings, including the Binding Term Sheet. There are no representations, warranties, agreements or undertakings, oral or written, between the Parties relating to the subject matter of this Agreement, which are not fully expressed herein. This Agreement may only be amended in writing, signed by all Parties. |
10.2. | Any waiver of any part of this Agreement must be in writing and duly executed by the Party against whom such waiver is asserted. |
10.3. | Neither OrthoTec, Alphatec, nor Healthpoint are entering into this Agreement in reliance, in whole or in part, based on any representation, warranty, statement or promise of any kind outside the express terms of this Agreement. |
11. | NO ASSIGNMENT OR TRANSFER OF CLAIMS |
11.1. | Each Party hereby represents and warrants to each other Party that it is the sole and lawful owner of all right, title, and interest in and to every claim which is being released by such Party in this Agreement, and each further represents and warrants that it has not assigned or transferred, or purported to assign or transfer, and will not assign or transfer to any person or entity, any claim which is being released by such Party in this Agreement. OrthoTec represents and warrants that neither it, nor any OrthoTec Released Party, has asserted claims relating to the subject matter of the Alphatec Action, the Healthpoint Action, the Carli Action or the Xxxxxxxxx Action. |
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Exhibit 10.3
12. | AUTHORITY TO ENTER AGREEMENT |
12.1. | Each of the signatories to this Agreement warrants and represents that he or she is authorized to execute and deliver this Agreement on behalf of the party for whom he or she purports to sign. |
13. | JOINT PARTICIPATION IN PREPARATION OF AGREEMENT |
13.1. | This Agreement is the product of arms-length negotiations between and among the Parties, and no Party shall be deemed to be the drafter of this Agreement, nor shall any part of this Agreement be construed against any Party on the basis of that Party’s identity as a drafter of any portion of this Agreement. |
14. | SECTION HEADINGS |
14.1. | Section headings in this Agreement are included for convenience of reference only and shall not be a part of this Agreement or its interpretation for any other purpose. |
15. | GOVERNING LAW |
15.1. | This Agreement is entered into in the State of California and will be governed and interpreted under the laws of California. Any action to enforce this Agreement will be brought in the Los Angeles County Superior Court (if the dispute is between OrthoTec, on the one hand, and Alphatec Holdings, on the other) or in the Supreme Court of New York (if the dispute is between OrthoTec, on the one hand, and Healthpoint Capital LLC, Xxxx X. Xxxxxx, and/or Xxxxxxxx Xxxxxxxxx III on the other). |
16. | SEVERABILITY |
16.1. | If any provision or term of this Agreement is declared or determined by a court of competent jurisdiction to be invalid or unenforceable, then in all other respects this Agreement shall nonetheless remain binding and in effect. |
17. | COUNTERPARTS |
17.1. | This Agreement may be executed in counterparts, and so executed, shall constitute a single agreement binding on all Parties, notwithstanding that the signatures of all Parties’ designated representatives do not necessarily appear on the same page. |
In witness whereof, the Parties hereto have executed this Agreement as of the date first written above.
/s/ Xxxx Xxxxxxxx
By: Xxxx Xxxxxxxx, for the Alphatec Special Committee
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Exhibit 10.3
HEALTHPOINTCAPITAL, LLC.
/s/ Xxxxxxxx Xxxxxxxxx III
By:
Name: Xxxxxxxx Xxxxxxxxx III
Title: President and Managing Director
HEALTHPOINTCAPITAL PARTNERS, LP
By: HGP, LLC, its general partner
/s/ Xxxxxxxx Xxxxxxxxx III
By:
Name: Xxxxxxxx Xxxxxxxxx III
Title: Managing Partner
HEALTHPOINTCAPITAL PARTNERS II, LP
By: HGPII, LLC, its general partner
/s/ Xxxxxxxx Xxxxxxxxx III
By:
Name: Xxxxxxxx Xxxxxxxxx III
Title: Managing Partner
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxxxx III
Xxxxxxxx Xxxxxxxxx, III
ORTHOTEC, LLC
/s/ Xxxxxxx Xxxxxxxxx
By: Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
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Exhibit 10.3
Approved as to form:
Dated: _________________________ | XXXXXX, XXXXXX & XXXXX LLP, Counsel for Alphatec /s/ Xxxxx Nash By: Xxxxx Xxxx |
Approved as to form:
Dated: _________________________ | XXXXX XXXXX XXXX XXXXXX XXXXXXX AND XXXXX PC, Counsel for Healthpoint /s/ Xxxxxxx Xxxxxx By: Xxxxxxx Xxxxxx |
Approved as to form:
Dated: _________________________ | XXXXXX XXXXXX XXXX LLP Counsel for OrthoTec /s/ Xxxxx Ross By: Xxxxx X. Xxxx |
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Exhibit 10.3
ATTACHMENT A
AUGUST 13, 2014
1. | ATTACHMENT PART OF BINDING TERM SHEET |
1.1. | Reference is herein made to that certain Binding Term Sheet (the “Agreement”) by and among the Alphatec Holdings, Inc., the Healthpoint Parties, and the OrthoTec Parties (each as defined in the Agreement). |
2. | PAYMENT TERMS |
2.1. | Alphatec shall pay to OrthoTec the following sums: |
2.2. | Lump sum payment: By March 24, 2014, Alphatec shall make a payment of $1 million ($1,000,000.00) and by March 31 will pay an additional $750,000.00. Within 25 days of Alphatec closing a suitable credit facility, but in no event later than June 15, 2014, Alphatec shall pay $15.75 million ($15,750,000.00). |
2.3. | Quarterly payments: $31.5 million ($31,500,000.00) payable in 29 quarterly installments of $1.1 million and then one additional quarterly payment of $600,000.00. Each such quarterly payment shall be due on the first day of the quarter, commencing October 1, 2014. |
2.4. | Interest: Simple Interest of 7% will accrue beginning May 15, 2014, on the unpaid balance of the $31.5 million ($31,500,000.00) until such amount has been paid in full. Following the full payment of the $31.5 million ($31,500.000.00), the accrued interest will be paid in quarterly installments of $1.1 million ($1,100,000.00) until the accrued interest amount is paid (for clarity, it is understood that the final quarterly payment of interest may be less than $1.1 million ($1,100,00.00), but shall be sufficient to pay the accrued interest in full). No interest shall accrue on the accrued interest. In the event that $31.5 million ($31,500,000.00) is prepaid, interest shall not accrue on such prepaid amount. |
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