Patent License Agreement

Exhibit 10.21

CONFIDENTIAL TREATMENT REQUESTED

LICENSE AGREEMENT This License Agreement is entered into and made effective as of this 23 rd day of January, 2007 (the " Effective Date" ), by and between SCIENT' X S.A., a company incorporated under the laws of France, company number : Versailles B 348 366 733, having its head office located in Be2timent Calypso- Parc Ariane 3-5 rue Alfred Kastler, 78284 Guyancourt cedex, FRANCE, represented by Mr Olivier Carli, Chairman, and hereafter called ' SCIENT' X' , and ALPHATEC SPINE INC., a California corporation (Employer Identification Number 33-0412288) with head offices located at 2051 Palomar Airport Road, Suite 100, Carlsbad, California, U.S.A., represented by Mr. John Foster and hereafter called " Licensee" .

RECITALS

A. SCIENT' X is engaged in the development and production of orthopaedic implants, and especially spinal implants, has a knowledge and know-how in this area, and is producing and marketing products based on the three patents set forth in the Exhibit A hereto, all of these patents being authorised in the Territory, and hereinafter all together called the ' Patents.'

B. Licensee, is engaged in the business of the development, manufacturing, sale and marketing of spinal products and medical devices, and has experience and skills to promote the sale of the products in the Territory. Licensee wishes to acquire from SCIENT' X the right to carry on such business.

C. SCIENT' X is willing to broaden the market for its products by granting to Licensee the right for the Licensee to exploit the Patents to produce, sell, market and distribute Licensed Products in the Territory (as set forth on Exhibit B attached hereto), and Licensee wishes to acquire, such non exclusive license in the Territory.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, SCIENT' X and Licensee hereby agree as follows:

1. Definitions. Capitalized terms shall have the meaning set forth below.

1.1 Affiliate. The term " Affiliate" shall mean any entity which directly or indirectly controls, is controlled by or is under common control with Licensee. The term " control" as used herein means the possession of the power to direct or cause the direction of the management and the policies of an entity, whether through the ownership of a majority of the outstanding voting securities or by contract or otherwise.

1.2 Medical Devices. The term " Medical Devices," individually, or collectively, shall mean any one or more product, device, method, procedure, material, or element utilized by the surgeons, in order to repair, cure or reinforce the patient' s spine.

1.3 Confidential Information. The term " Confidential Information" shall mean any and all proprietary or confidential information of SCIENT' X or Licensee which may be


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exchanged between the parties at any time and from time to time during the term of this Agreement, including without limitation, the terms of this Agreement. Information shall not be considered confidential to the extent that it:

a. is publicly disclosed through no fault of any party hereto, either before or after it becomes known to the receiving party; or

b. was known to the receiving party prior to the date of this Agreement, which knowledge was acquired independently and not from another party hereto (or such party' s employees); or

c. is subsequently disclosed to the receiving party in good faith by a third party who has a right to make such disclosure; or

d. has been published by a third party as a matter of right.

1.4 Field. The term " Field" shall mean disorders of the human spine.

1.5 Licensed Product. The term " Licensed Product" shall mean any product which cannot be developed, manufactured, offered to sale, used or sold without (i) infringing one or more claims under SCIENT' X Patent Rights; or (ii) utilizing any part of SCIENT' X Technology not otherwise includable within SCIENT' X Patent Rights. 1.6 Net Sales. The term " Net Sales" shall mean the end user gross amount received by Licensee upon payment of invoice, or its Affiliates and sublicensees, or any of them, on all sales of Licensed Products, less (i) discounts actually allowed; (ii) credits for claims, allowances, retroactive price reductions or returned goods; (iii) prepaid freight; (iv) sales taxes or other governmental charges actually paid in connection with sales of Licensed Products (but excluding what are commonly known as income taxes and value-added taxes); and (v) refunds or rebates actually paid. For purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice therefore shall be generated and payment received by Licensee, or its Affiliates and sublicensees or any of them. Sales of Licensed Products by Licensee, or an Affiliate or sublicensee of Licensee to any Affiliate or sublicensee which is a reseller thereof shall be excluded, and only the subsequent sale of such Licensed Products by Affiliates or sublicensees of Licensee to unrelated parties shall be deemed Net Sales hereunder.

1.7 SCIENT' X Patent Rights. The term " SCIENT' X' Patent Rights" shall mean rights arising out of or resulting from any and all U.S. and foreign patent applications and patents, here above called, the Patents; including all provisionals, substitutions, continuations, continuations-in-part, divisionals, supplementary protection certificates, renewals, all letters patent granted thereon, and all reissues, reexaminations, extensions, confirmations, revalidations, registrations, patents of addition thereof, PCTs and foreign counterparts, so long as said patents have not been held invalid and/or unenforceable by a court of competent jurisdiction from which there is no appeal or, if appealable, from which no appeal has been taken.

1.8 SCIENT' X Technology. The term " SCIENT' X Technology" shall mean so much of the technology specifically related to the products listed on Exhibit A attached hereto as is proprietary to SCIENT' X together with materials, information and know-how related thereto whether or not the same is eligible for protection under the patent laws of the United States or elsewhere, and whether or not any such processes and technology, or information related thereto, would be enforceable as a trade secret or the copying of which would be enjoined or restrained by a court as constituting unfair competition.


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1.9 Control or Controlled. The term " Control" of " Controlled" shall mean with respect to any intellectual property right, the possession by a party of the ability to grant a license or sublicense of such intellectual property as provided for herein without violating the terms of any arrangement or agreements between such party and any third party.

2. License Terms and Conditions.

2.1 Grant of License. SCIENT' X hereby grants to Licensee a non exclusive license in the Territory, including the right to sublicense, under SCIENT' X Patent Rights as specified in Exhibit A and the SCIENT' X Technology, to make, to have made, to import, to use, to offer for sale (including offers for sale made by Licensee' s third-party agents), and to sell (including sales made by Licensee' s third-party agents) Licensed Products in the Field, subject to the terms of this Agreement. The parties agree that this grant of license shall not affect the rights of SCIENT' X to develop, manufacture, market and sell its products either by itself or through its distribution agents. 2.2 Initial License Fee. In partial consideration for the non exclusive license granted pursuant to Section 2.1 hereof, Licensee shall pay to SCIENT' X a non-refundable license fee upon execution of this Agreement in the amount of two million euros ( ?2,000,000) (the " Initial License Fee" ). The Initial License Fee described in this Section is consideration for the grant and continuation of the license hereunder, and SCIENT' X shall have no obligation to return any portion of such the Initial License Fee, notwithstanding any failure by Licensee to develop any Licensed Product or market any Licensed Product commercially, and notwithstanding the volume of sales of any such Licensed Product.

2.3 [***] SCIENT' X agrees that during the time period beginning on the Effective Date and ending [***] years thereafter, that it shall not enter any into a licensing or similar transaction related to the SCIENT' X Patents on better financial terms than those set forth in this Agreement, provided that such restriction shall not be of any force and effect in connection with or following the transfer or sale of all or substantially all of SCIENT' X' s assets or business related to this Agreement, or in the event of SCIENT' X' s merger, consolidation, change in control or similar transaction.

2.4 Royalties 2.4.1 Percentage Royalty. In addition to the payment described in Section 2.2 above, Licensee agrees to pay Licensor during the term of this Agreement a royalty for each Licensed Product sold by Licensee or its sublicensees (but not more than one royalty for each Licensed Product) of [***]%) of the Net Sales of Licensed Product in the Territory. Licensee' s obligation to pay royalties hereunder shall cease upon the earlier of (i) the expiration of the Patents or (ii) the termination of this Agreement (the " Royalty Term" ). The Patents shall be deemed to have expired upon the non-payment of the maintenance fee, upon the judgment of invalidity or unpatentability by a court or administrative agency of competent jurisdiction from which no appeal is taken or can be taken or upon expiration of the term of the Patents

At the time Licensee delivers the accounting statement required by Section 2.9 below, Licensee shall simultaneously pay to Licensor a sum equal to the aggregate payment due based on the information contained in such accounting statement and consistent with this Agreement.

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2.4.2 Minimum Royalty. Licensee shall pay to SCIENT' X, as a minimum annual royalty for the twelve (12) month period beginning with the commencing date of this Agreement, [***] ?[***][***] euros, and the amount of the minimum annual royalty payable for each of the [***] subsequent twelve (12) month periods during the term hereof shall be [***] ?[***] euros. Any percentage royalties earned and paid to SCIENT' X pursuant to Section 2.4.1 hereof for any twelve (12) month period shall be credited against the minimum royalty payable for such period, and the payment of any shortfall between actual royalties paid and the minimum annual royalty applicable to such twelve (12) month period shall be payable to SCIENT' X within sixty (60) days after the last day of such twelve (12) month period.

2.4.3 One Royalty. Only one royalty, calculated at the highest applicable royalty rate under this Section 2, shall be payable to SCIENT' X hereunder for each sale of a Licensed Product.

2.5 Quarterly Payments. 2.5.1 Sales by Licensee. With regard to Net Sales made by Licensee or its Affiliates, royalties shall be payable by Licensee quarterly, within sixty (60) days after the end of each calendar quarter, based upon the Net Sales of Licensed Products in the Territory during such preceding calendar quarter, commencing with the calendar quarter in which the first commercial sale of any Licensed Product is made.

2.5.2 Sales by Sublicensees. With regard to Net Sales made by sublicensees- only when such sublicense are expressly agreed by SCIENT' X of Licensee or its Affiliates, royalties shall be payable by Licensee quarterly, within ninety (90) days after the end of each calendar quarter, based upon the Net Sales of Licensed Products by such sublicensee during such preceding calendar quarter, commencing with the calendar quarter in which the first commercial sale of any Licensed Product is made by such sublicensee.

2.6 Term of License. Unless terminated sooner in accordance with the provisions of this Agreement, the term of this license is [***] years and shall expire when the last of the royalty obligations set forth has expired.

2.7 Sublicense. Licensee shall no grant sublicense without SCIENT' X' s prior written agreement, provided that Licensee shall be entitled to allow its third party distribution agents to market and sell the Licensed Products without obtaining the approval of SCIENT' X.

2.8 Duration of Royalty Obligations. The royalty obligations of Licensee as to each Licensed Product shall terminate with the expiration of each SCIENT' X Patent Rights utilized by or in such Licensed Product, with respect to Licensed Products not utilizing any SCIENT' X Patent Rights, [***] years after the date of first commercial sale of such Licensed Product in such country. 2.9 Reports. Licensee shall furnish to SCIENT' X at the same time as each royalty payment is made by Licensee, a detailed written report of Net Sales of the Licensed Products and the royalty due and payable thereon, including a description of any offsets or credits deducted therefrom, on a product-by-product basis, for the calendar quarter upon which the royalty payment is based.

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2.10 Records. Licensee shall keep, and cause its Affiliates and sublicensees to keep, full, complete and proper records and accounts of all sales of Licensed Products in sufficient detail to enable the royalties payable on Net Sales of each Licensed Product to be determined. SCIENT' X shall have the right to appoint an independent certified public accounting firm approved by Licensee, which approval shall not be unreasonably withheld, to audit the records of Licensee, its Affiliates and sublicensees as necessary to verify the royalties payable pursuant to this Agreement. Any auditing firm appointed by SCIENT' X shall execute a confidentiality agreement with Licensee prior to performing such audit. Licensee, its Affiliates and sublicensees shall pay to SCIENT' X an amount equal to any additional royalties to which SCIENT' X is entitled as disclosed by the audit, plus interest thereon at the rate of one-and-one-half percent (1.5%) per month. Such audit shall be at SCIENT' X' expense; provided, however, that if the audit discloses that SCIENT' X was underpaid royalties with respect to any Licensed Product by at least five percent (5%) for any calendar quarter, then Licensee, its Affiliates or sublicensee, as the case may be shall reimburse SCIENT' X for any such audit costs. SCIENT' X may exercise its right of audit as to each of Licensee, its Affiliates or sublicensees no more frequently than once in any calendar year. The accounting firm shall disclose to SCIENT' X only information relating to the accuracy of the royalty payments. Licensee, its Affiliates and sublicensees shall preserve and maintain all such records required for audit for a period of three (3) years after the calendar quarter to which the record applies. 2.11 Foreign Sales. Licensee shall not do sales out of the Territory, unless prior written agreement with SCIENT' X. 3. Patent Matters.

3.1 Patent Prosecution and Maintenance. From and after the date of this Agreement, the provisions of this Section 3 shall control the prosecution and maintenance of any patent included within SCIENT' X Patent Rights. Subject to the requirements, limitations and conditions set forth in this Agreement, SCIENT' X shall direct and control (i) the preparation, filing and prosecution of the United States and foreign patent applications within SCIENT' X Patent Rights (including any interferences and foreign oppositions); and (ii) maintain the patents issuing therefrom. SCIENT' X shall select the patent attorney, subject to Licensee' s written approval, which approval shall not be unreasonably withheld. Licensee shall have full rights of consultation with the patent attorney so selected on all matters relating to SCIENT' X Patent Rights. SCIENT' X shall use its best efforts to implement all reasonable requests made by Licensee with regard to the preparation, filing, prosecution and/or maintenance of the patent applications and/or patents within SCIENT' X Patent Rights. In the ...