Distribution Agreement between Alphatec Manufacturing, Inc. and Osteotech, Inc. for Private Label Spine Implants

Summary

Alphatec Manufacturing, Inc. and Osteotech, Inc. entered into an agreement granting Osteotech exclusive rights to distribute certain private label spine implant products in the United States and Canada. Osteotech must not sell to Alphatec’s existing customers or outside the designated area without approval. Alphatec will not offer these products to other distributors in the same markets and will notify Osteotech of new products, giving them a right of first refusal. Both parties have specific obligations regarding inventory, product changes, and repairs. The agreement includes terms for exclusivity, product supply, and mutual cooperation.

EX-10.40 5 d25296_ex10-40.txt DISTRIBUTION AGREEMENT 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. E-12 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. - - ---------- *** 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-13 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 E-14 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) E-15 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. - - ---------- *** 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-16 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. - - ---------- *** 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-17 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. E-19 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 E-20 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 E-21 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. E-22 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: 51 James Way Address: 42-160 State Street Eatontown, N.J. 07724 Palm Desert, CA 92211 Telephone: (732) 542-2800 Telephone: (760) 779-8250 WITNESS: WITNESS: /s/ Donna Haag /s/ Kurt Stephensen - - ------------------------------------- ------------------------------------- E-23 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 66603 TT LAMINAR HOOK, LG 66604 TT LAMINAR HOOK, SM 66605 TT NARROW LAMINAR HOOK, LG 66606 TT NARROW LAMINAR HOOK, SM 66607 TT ELEVATED LAMINAR HOOK, LG 66608 TT 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 E-24 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, RH 18 DEGREE 66662 LINK, MEDIUM, TI64ELI 66682 - L28LINK, MEDIUM. LH 28 DEGREE 66682 - R28LINK, MEDIUM, RH 28 DEGREE 66683 LINK, LG, LH 18 DEGREE 66683 - L28LINK, LARGE, LH 28 DEGREE 66683 - R28LINK, LARGE, RH 28 DEGREE 66684 HOOK LINK, SM 66684 HOOK LINK, MED 66684 HOOK LINK, LG 66691 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-ROD CUTTER 65445 ALPHA TI-ROD HOLDER E-25 65446 TI-ROD BENDER 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 ROD HOLDER FCPS 66401 TOP TIGHTENING HOOK HOLDER 66402 AWL 66403 LINK E-Z CLAMP 66404 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 65429 T WRENCH/SQUARE DRIVE 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 BENDER 66446 FRENCH ROD BENDER 66451 LINK SPREADER 66452 LINK REMOVER 66455 TT BONE SCREW TAP 5.5mm 66463 SCREW ADJUSTER 66465 TT DONE SCREW TAP 6.5mm 66466 TT HOOK INSERTER 66471 TT 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 E-26 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 VARIABLE ANGLE SCREW 69040 - 0124.0mm. x 12mm VARIABLE ANGLE SCREW 69040 - 0144.0mm. x 14mm VARIABLE ANGLE SCREW 65040 - 0164.0mm. x 16mm VARIABLE ANGLE SCREW 59041 - 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 VARIABLE ANGLE SCREW 69045 - 0124.5mm. x 12mm VARIABLE ANGLE SCREW 69045 - 0144.5mm. x 14mm VARIABLE ANGLE SCREW 69045 - 0164.5mm. x 16mm VARIABLE ANGLE SCREW 69046 - 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 LEVEL 1 PLATE 69001 - 01616mm LEVEL 1 PLATE 69001 - 01818mm LEVEL 1 PLATE 69001 - 02020mm LEVEL 1 PLATE 69001 - 02222mm LEVEL 1 PLATE 69001 - 02424mm LEVEL 1 PLATE 69001 - 02626mm LEVEL 1 PLATE 69002 - 02828mm LEVEL 2 PLATE 69002 - 03131mm LEVEL 2 PLATE 69002 - 03434mm LEVEL 2 PLATE 69002 - 03737mm LEVEL 2 PLATE 69002 - 04040mm LEVEL 2 PLATE 69002 - 04343mm LEVEL 2 PLATE 69002 - 04646mm LEVEL 2 PLATE 69003 - 04545mm LEVEL 3 PLATE 69003 - 04848mm LEVEL 3 PLATE 69003 - 05151mm LEVEL 3 PLATE 69003 - 05454mm LEVEL 3 PLATE 69003 - 05757mm LEVEL 3 PLATE 69003 - 06060mm LEVEL 3 PLATE 69003 - 06363mm LEVEL 3 PLATE 69003 - 06666mm LEVEL 3 PLATE 69003 - 06969mm LEVEL 3 PLATE E-27 69004 - 06060mm LEVEL 4 PLATE 69004 - 06464mm LEVEL 4 PLATE 69004 - 06868mm LEVEL 4 PLATE 69004 - 07272mm LEVEL 4 PLATE 69004 - 07676mm LEVEL 4 PLATE 69004 - 08080mm LEVEL 4 PLATE 69004 - 06484mm LEVEL 4 PLATE INSTRUMENTS 69100 PLATE 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 Dr. Paul Asdourian Baltimore, Maryland Dr. John Barry Baltimore, Maryland Dr. James York Baltimore, Maryland Dr. Joseph Jamaris Baltimore, Maryland Dr. Shane Pak Baltimore, Maryland Dr. Rick Delamarter Los Angeles, California Dr. Michael Tooke Los Angeles, California Dr. DeGrange Los Angeles, California Dr. Shahim Etebar Rancho Mirage, California Dr. Duncan McBride Los Angeles, California Dr. Wang Los Angeles, California Dr. Hannani Los Angeles, California Dr. Tahernia San Diego, California Dr. Akbarnia San Diego, California Dr. McGuire San Diego, California Dr. Richard Ozuna Boston, Massachusetts Dr. Ardnt Boston, Massachusetts Dr. Brick Boston, Massachusetts Dr. Puccio Boston, Massachusetts Dr. John Gorup Lafayette, Indiana Dr. Joseph Riina Indianapolis, Indiana Dr. Svavada Indianapolis, Indiana Dr. Jatana Denver, Colorado Dr. Michael Ramsey Midland/Odessa, Texas Dr. Scott Smith Midland, Texas Dr. Mcgavorn Midland, Texas Dr. Gordon Texas Dr. Duarte San Angelo, Texas Dr. LaGrande San Angelo, Texas Dr. Fisher San Angelo, Texas Dr. Alexander San Angelo, Texas Dr. Meeks Odessa, Texas Dr. Alex Echeverry Corpus Christi, Texas Dr. Willman Corpus Christi. Texas Dr. Karreh Corpus Christi, Texas Dr. Robert Arranabar San Antonio, Texas Dr. Rafael Parra San Antonio, Texas Dr. Skuerhut San Antonio, Texas Dr. Garzavail San Antonio, Texas Dr. Kuwamara San Antonio, Texas Dr. Meadows San Antonio, Texas Dr. Ward San Antonio, Texas Dr. Gurhwitts San Antonio. Texas Dr. Kingman San Antonio, Texas Dr. Gultierrez San Antonio, Texas Dr. Neely Austin, Texas Dr. Hanson Austin, Texas Dr. O'Grady Austin. Texas Dr. Patel Austin, Texas Dr. Betts Austin, Texas Dr. Todd Arlington, Texas Dr. Highcamp Arlington, Texas Dr. Acosta Arlington, Texas Dr. Rosentein Arlington., Texas Dr. Maxwell Abilene, Texas Dr. Torraz Abilene, Texas Dr. Chittwood Abilene, Texas E-31 Dr. Mcdonna Abilene, Texas Dr. Mark Cwikla Dallas, Texas Dr. Schwickla Dallas, Texas Dr. J. White Dallas, Texas Dr. Kutana Dallas, Texas Dr. Mitchell Ft. Worth, Texas Dr. Rosenstein Ft. Worth; Texas Dr. Weavor Ft. Worth, Texas Dr. Wheeler Ft. Worth, Texas Dr. Rahlston Ft. Worth, Texas Dr. Meyer Ft. Worth, Texas Dr. Cosmoski Ft. Worth, Texas Dr. Coffman Ft. Worth, Texas Dr. Danielson Tyler, Texas Dr. Piskin Amarillo, Texas Dr. Pollis Amarillo, Texas Dr. Cone Amarillo, Texas Dr. Berg Amarillo, Texas Dr. LaGrone Amarillo, Texas Dr. Franco Cerrabono New York, New York Dr. Arnold Swartz New York, New York Dr. Chris Hamil New York, New York Dr. Bursick Pittsburgh, Pennsylvania Dr. Kaufman Pittsburgh Pennsylvania Dr. Palmer Pittsburgh, Pennsylvania Dr. Alan Hilibrand Philadelphia, Pennsylvania Dr. Bennett Newport Richey, Florida Dr. Maser Florida Dr. Sweeney Sarasota, Florida Dr. Lonstein Sarasota, Florida Dr. Peterson Florida Dr. Piper St. Louis, Missouri Dr. Chibot St. Louis, Missouri Dr. Robert Peterson Salt Lake City, Utah Dr. Darrel Brodke Salt Lake City, Utah Dr. Eboh Ohio Dr. Lewis Jackson, Mississippi Dr. Wood Jackson, Mississippi Dr. Lee Mississippi Dr. Senter Jackson, Mississippi Dr. Barrett Jackson, Mississippi Dr. Molleston Mississippi Dr. Alexander Jackson, Mississippi Dr. Prevost Jackson, Mississippi Dr. Stringer Jackson, Mississippi Dr. Alexander Jackson, Mississippi Dr. Lewis Jackson, Mississippi Dr. Frenz Jackson, Mississippi Dr. Mollsten 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