Alphatec Holdings, Inc. (Form: 8-K, Received: 02/28/2020 06:33:34)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): February 28, 2020

ALPHATEC HOLDINGS, INC.

(Exact Name of Registrant as Specified in its Charter)


Delaware	000-52024	20-2463898
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

5818 El Camino Real

Carlsbad, California 92008

(Address of Registrant’s Principal Executive Offices and Zip Code)

(760) 431-9286

(Registrant’s Telephone Number, Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common stock, par value $0.0001	ATEC	The NASDAQ Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

ITEM 1.01

Entry into a Material Definitive Agreement.

Tender Offer Agreement

On February 28, 2020, Alphatec Holdings, Inc. (“Alphatec”), entered into a Tender Offer Agreement (the “Tender Offer Agreement”) with EOS Imaging S.A., a société anonyme organized and existing under the laws of France (“EOS”), pursuant to which Alphatec or one of its affiliates will commence a public tender offer (the “Offer”) to purchase all of the issued and outstanding ordinary shares, nominal value €0.01 per share (collectively, the “Shares”), and outstanding convertible bonds (“OCEANEs”), of EOS. The Offer will consist of a cash tender offer price of €2.80 (or approximately $3.08) per Share and €7.01 (or approximately $7.71) per OCEANE, respectively (the “Cash Offer”), or at the option of EOS shareholders, 0.50 shares of common stock, par value $0.0001 per share, of Alphatec (“ATEC Common Stock”) per Share (the “Exchange Offer” and, together with the Cash Offer, the “Offer Consideration”), for a total purchase price of up to $121.5 million. The Offer will need to be filed with and cleared by the Autorité des marches financiers (the “AMF”), which filing is expected to occur in late April 2020, prior to the commencement of the Offer. EOS is a leader in outcome-improving orthopedic medical imaging and software solutions that inform the entire surgical process.

Certain shareholders of EOS, which currently control approximately 23% of the outstanding Shares, collectively, have entered into Tender Commitments with Alphatec pursuant to which they have agreed, among other things, to tender their respective Shares into the Exchange Offer for ATEC Common Stock, subject to certain conditions, and not to sell or otherwise transfer any shares of such ATEC Common Stock for a three-month period following the Closing (as defined below) of the Offer, and not to sell or otherwise transfer 75% of such ATEC Common Stock during the three-month period following the expiry of the initial three-month period. These Tender Commitments will terminate if (i) the Tender Offer Agreement is terminated, (ii) the Offer is withdrawn by Alphatec pursuant to applicable French laws and regulations, or (iii) the Offer is not declared successful by the AMF as a result of certain conditions failing to be met or waived.

The obligation of Alphatec or its affiliates to file the Offer are subject to: (a) a fairness opinion, stating that the financial terms and conditions of the Offer are fair, having been delivered to EOS’ board of directors; (b) EOS’ board of directors having issued a reasoned opinion and recommended that EOS’ securityholders tender the Shares and OCEANEs into the Offer; (c) no competing tender offer for the Shares or OCEANEs which is reasonably expected to be financed and filed with the AMF having been publicly announced; (d) the accuracy of the representations and warranties of EOS contained in the Tender Offer Agreement (subject to certain materiality standards); (e) the French Foreign Investment Condition (as defined in the Tender Offer Agreement) having been satisfied; (f) there not having been a material breach by EOS of its obligations under the Tender Offer Agreement; and (g) there not having been a material adverse effect on EOS following the execution of the Tender Offer Agreement which is continuing on the date of filing of the Offer.

Subject to clearance by the AMF, the Offer will be open for tender during an initial acceptance period of 25 Euronext Paris trading days. The obligation of Alphatec or its affiliates to purchase Shares and OCEANEs validly tendered and not properly withdrawn pursuant to the Offer is subject to the satisfaction or waiver of the condition that a number of Shares and OCEANE have been validly tendered that would allow Alphatec to acquire at least two-thirds of the share capital and voting rights of EOS on a fully diluted basis at the end of the acceptance period of the Offer. The settlement and delivery of the Shares and OCEANEs tendered into the Offer (the “Closing”) will occur shortly after the end of the initial acceptance period of the Offer.

If Alphatec and/or its affiliates own 90% or more of EOS’ share capital and voting rights following the Closing, Alphatec shall implement a mandatory squeeze out on any remaining non-tendered EOS Shares pursuant to applicable French laws and regulations (the “Squeeze-Out”). A squeeze-out of the OCEANEs may also be implemented if Alphatec and/or its affiliates own 90% or more of EOS’ shares on an as-converted basis.

The Tender Offer Agreement includes customary representations, warranties and covenants of Alphatec and EOS. Until the earlier of the termination of the Tender Offer Agreement and the date on which Alphatec can appoint a majority of the members of the EOS board, EOS has agreed to operate its and its subsidiaries’ businesses in the ordinary course consistent with past practice and has agreed to certain other operating covenants, each as set forth more fully in the Tender Offer Agreement.

Under the Tender Offer Agreement, EOS has agreed: (i) not to directly or indirectly solicit, initiate or encourage or take any actions to facilitate any Takeover Proposal (as defined in the Tender Offer Agreement) and accordingly to immediately cease and cause to be terminated all discussions or negotiations with any person or entity conducted heretofore with respect to any proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal; (ii) to notify Alphatec of the receipt by EOS of any Takeover Proposal; (iii) to provide information on a reasonable and regular basis in respect of the status of any such Takeover Proposal; and (iv) not to accept, approve, recommend or enter into any agreement in respect of any such Takeover Proposal.

The Tender Offer Agreement contains certain termination rights at the option of both Alphatec and EOS and certain automatic termination provisions, including, with respect to termination at the option of Alphatec,, if the applicable closing conditions have not been satisfied or waived by Alphatec by May 31, 2020, or at any time if Alphatec pays EOS a reverse break-up fee as described below, among other basses for termination. Under the terms and conditions set forth in the Tender Offer Agreement, EOS shall pay a break-up fee of €2.5 million (up to €3.5 million in certain circumstances) to Alphatec and Alphatec shall pay a reverse break-up to EOS of €2.5 million upon the occurrence of certain events, including, with respect to EOS’ break-up fee, if EOS’ board of directors fails to issue its reasoned opinion upon receipt of the fairness opinion or decides to amend its recommendation on the Offer.

Commitment Letter

In connection with entry into the Tender Offer Agreement, Alphatec entered into a commitment letter, dated February 28, 2020 (the “Commitment Letter”), with Perceptive Credit Holdings III, LP (together with its affiliates, “Perceptive”), pursuant to which, subject to the terms and conditions set forth therein, Perceptive has committed to provide $130 million in secured debt financing, up to $60 million of which (the “Refinancing Portion”) will be made available to retire Alphatec’s existing credit facilities with MidCap Funding IV, LLC and Squadron Medical Finance Solutions, LLC (the “Refinancing”). The remaining commitment by Perceptive to provide an additional $70 million (which may be increased to up to $100 million at the request of Alphatec if agreed by Perceptive in its sole discretion) in secured debt financing (the “Tender Offer Portion”) will be made available to fund the Cash Offer portion of the Offer Consideration, provided that Alphatec may elect not to incur all or a portion of such Tender Offer Portion to the extent it is unnecessary to fund such Cash Offer amount. In the event that Alphatec elects not to incur the Tender Offer Portion of Perceptive’s commitment, Perceptive will make available up to $15 million in secured debt financing (the “Supplemental Portion”), in addition to the Refinancing Portion, to be used for Alphatec’s and its subsidiaries’ general corporate and working capital needs. The funding of each of the debt facilities provided for in the Commitment Letter is subject to the satisfaction of customary conditions for facilities of such type that are set forth therein, including entry into definitive documentation reflecting the terms of the Commitment Letter and no material adverse effect with respect to EOS.

Under the terms of the Commitment Letter, Alphatec has agreed to issue certain warrants to Perceptive representing the right to acquire ATEC Common Stock in connection with the incurrence of the Refinancing Portion (the “Refinancing Warrants”), the incurrence and use of the Tender Offer Portion to consummate the Offer (the “Tender Offer Warrants”) and the incurrence of the Supplemental Portion (the “Supplemental Warrants” and, together with the Refinancing Warrants and Tender Offer Warrants, the “Warrants”), as applicable. The price per share for 50% of the Refinancing Warrants shall be the lower of (x) the 5-day volume weighted average price of the ATEC Common Stock (“5-day VWAP”) immediately prior to the date of the Commitment Letter and (y) the 5-day VWAP immediately prior to the closing date of the Refinancing Portion, subject to a floor of $4.60 per share (the “Base Refinancing Warrant Price”). The price per share for the remaining 50% of the Refinancing Warrants shall be equal to the Base Refinancing Warrant Price plus an additional 12.5% premium. The price per share for 50% of the Tender Offer Warrants shall be the lower of (x) the 5-day VWAP immediately prior to the date of the Commitment Letter or (y) the 5-day VWAP immediately prior to the date such Tender Offer Warrants are issued, subject to a floor of $4.60 per share (the “Base Tender Offer Warrant Price”). The price per share for the remaining 50% of the Tender Offer Warrants shall be equal to the Base Tender Offer Warrant Price plus an additional 12.5% premium. The price per share for 50% of the Supplemental Warrants shall be the lower of (x) the 5-day VWAP immediately prior to the date of the Commitment Letter or (y) the 5-day VWAP immediately prior to the date the Supplemental Portion is incurred, subject to a floor of $4.60 per share (the “Base Supplemental Warrant Price”). The price per share for the remaining 50% of the Supplemental Warrants shall be equal to the Base Supplemental Warrant Price plus an additional 12.5% premium. The Refinancing Warrants, Tender Offer Warrants and Supplemental Warrants will be exercisable into a number of shares of ATEC Common Stock representing 18.5% of the aggregate principal amount borrowed in respect of the Refinancing Portion, 9% of the aggregate principal amount borrowed in respect of the Tender Offer Portion and used to consummate the Tender Offer and 9% of the aggregate principal amount borrowed in respect of the Supplemental Portion, respectively, in each case calculated using the Base Refinancing Warrant Price, Base Tender Offer Warrant Price or Base Supplemental Warrant Price, as applicable.

The foregoing descriptions of the Tender Offer Agreement, Tender Commitments and Commitment Letter are only summaries of certain material provisions thereof, do not purport to be complete, and are qualified in their entirety by reference to the full text of the such agreements, which are attached hereto as Exhibit 2.1, 2.2 and 2.3, respectively, and are incorporated herein by reference.

The Tender Offer Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about Alphatec or EOS. The representations, warranties and covenants contained in the Tender Offer Agreement were made only for purposes of the Tender Offer Agreement as of the specific dates therein, are solely for the benefit of the parties to the Tender Offer Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Tender Offer Agreement instead of establishing these matters as facts, and may be subject to standards of

materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Tender Offer Agreement, which subsequent information may or may not be fully reflected in Alphatec’s or EOS’ public disclosures.

ITEM 3.02

Unregistered Sales of Equity Securities.

The ATEC Common Stock issued in connection with the Offer described in Item 1.01 will be issued in reliance on an exemption from registration set forth in Rule 802 under the Securities Act of 1933, as amended (the “Securities Act”).

The Warrants described in Item 1.01 and any shares of ATEC Common Stock issuable thereunder will be issued in reliance on an exemption from registration pursuant to Section 4(a)(2) of the Securities Act.

ITEM 7.01

Regulation FD Disclosure.

On February 28, 2020, Alphatec issued a press release announcing the execution of the Tender Offer Agreement and the transactions contemplated thereby. A copy of the press release is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

As discussed in the press release, Alphatec will host a conference call with accompanying slides to discuss the Offer on February 28, 2020. A copy of the slide presentation is filed as Exhibit 99.2 hereto and incorporated herein by reference.

The information furnished under this Item 7.01 of this Current Report on Form 8-K, including Exhibits 99.1 and 99.2, shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and it shall not be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or under the Exchange Act, whether made before or after the date hereof, except as expressly set forth by specific reference in such filing to this Item 7.01 of this Current Report on Form 8-K.

ITEM 9.01

Financial Statements and Exhibits.

(d) Exhibits

The following exhibits are filed as part of this report:


Exhibit No.		Description
2.1		Tender Offer Agreement, dated as of February 28, 2020, by and between Alphatec Holdings, Inc. and EOS Imaging S.A.

2.2		Forms of Tender Commitment, by and between Alphatec Holdings, Inc. and certain investors of EOS Imaging S.A.

2.3		Commitment Letter, dated as of February 28, 2020, by and between Alphatec Holdings, Inc. and Perceptive Credit Holdings III, LP

99.1		Press Release of Alphatec Holdings, Inc., dated February 28, 2020

99.2		Slide Presentation, dated February 28, 2020

Forward-Looking Statements

Alphatec cautions you that statements included in this Current Report on Form 8-K that are not a description of historical facts are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Forward looking statements include Alphatec’s plans to commence to commence the Offer, the timing and likelihood of the Closing occurring, the expected Offer Consideration to be paid in connection with the Offer, Alphatec’s plans to obtain financing pursuant to the Commitment Letter and the uses therefrom and entry into definitive documentation reflecting the terms of the Commitment Letter.

The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to: uncertainties as to the timing of the Offer and the Closing; uncertainties as to the percentage of EOS’ securityholders tendering their shares in the Offer; the possibility that competing offers will be made; risks related to the AMF’s review of the Offer; Alphatec’s and EOS’ ability to satisfy the conditions to Closing for the proposed transaction on the anticipated timeline or at all; the satisfaction of conditions, including applicable regulatory clearances, set forth in the EOS shareholder agreements to tender for ATEC Common Stock, which if not met, could increase the Cash Offer price; the occurrence of any event, change or other circumstances that could give rise to the termination of the Tender Offer Agreement; the effect of the announcement of the Offer and related transactions on the ability of the parties to retain and hire key personnel, maintain relationships with their customers and suppliers, and maintain their operating results and business generally; the inability to reach the required threshold to complete the Squeeze-Out resulting in EOS Shares continuing to be traded on Euronext and related regulatory requirements in connection therewith; risks related to potential litigation in connection with the Offer or the Closing that may result in significant costs of defense, indemnification and liability; the inability of Alphatec to secure the financing contemplated to be obtained pursuant to the Commitment Letter on the expected terms or timing, or at all, whether as a result of failure to meet certain conditions or otherwise; the risk that the businesses will not be integrated successfully; unexpected variations in market growth and demand for the combined company’s products and technologies; and the risk that benefits and synergies from the acquisition may not be fully realized or may take longer to realize than expected; and other risks detailed in Alphatec’s public periodic filings with the U.S. Securities and Exchange Commission. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof, and Alphatec undertakes no obligation to revise or update this report to reflect events or circumstances after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement.

Certain Legal Matters

This communication is not intended to, and does not, constitute, represent or form part of any offer, invitation or solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of, any securities whether pursuant to this Current Report on Form 8-K, the attached press release or otherwise.

The distribution of this communication in jurisdictions outside the United States or France may be restricted by law or regulation and therefore any person who comes into possession of this communication should inform themselves about, and comply with, such restrictions. Any failure to comply with such restrictions may constitute a violation of the securities laws or regulations of any such relevant jurisdiction.

EOS is incorporated in France and listed on Euronext and any offer for its securities will be subject to French disclosure and procedural requirements, which differ from those that are applicable to offers conducted solely in the United States, including with respect to withdrawal rights, offer timetable, settlement procedures and timing of payments. The transactions described above will be structured to comply with French and U.S. securities laws and regulations applicable to transactions of this type.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	ALPHATEC HOLDINGS, INC.

Date: February 28, 2020	By:	/s/ Jeffrey G. Black
		Name: Jeffrey G. Black Title: Chief Financial Officer

Exhibit 2.1

TENDER OFFER AGREEMENT

BY AND BETWEEN

ALPHATEC HOLDINGS, INC.

AND

EOS IMAGING S.A.

DATED AS OF FEBRUARY 28, 2020

This Tender Offer Agreement (this “Agreement”) is entered into as of February 28, 2020, by and between Alphatec Holdings, Inc., a corporation organized and existing under the laws of Delaware, represented by Mr. Patrick S. Miles, duly empowered for the purpose hereof (the “Purchaser”) and EOS Imaging S.A., a société anonyme organized and existing under the laws of France, with a share capital of €265.899,46 divided into 26,589,946 ordinary shares with a nominal value of €0.01 each, whose registered office is at 10, rue Mercoeur, 75011 Paris, France, and registered with Paris Trade and Companies Register under No. 349 694 893, represented by Mr. Michael Lobinsky, duly empowered for the purpose hereof (the “Company”). The Purchaser and the Company are each sometimes referred to individually as a “Party” and collectively as the “Parties”.

RECITALS

(A)

WHEREAS, the Purchaser is a Delaware corporation, a medical technology company focused on the design, development, and advancement of technology for better surgical treatment of spinal disorders. The Company is a global medical device company incorporated in France that develops and markets advanced imaging and imaged-based solutions for diagnosing, treating and monitoring the most common musculoskeletal pathologies.

(B)

WHEREAS, the ordinary shares of the Company are currently admitted to trading on Euronext Paris.

(C)

WHEREAS, the Purchaser is willing and has authorization to acquire, in consideration for cash and/or Purchaser Common Shares (pursuant to the terms and subject to the conditions set forth in this Agreement), through the filing by the Purchaser or any of its Affiliates of a public tender offer in France (offre publique), (i) all the Company Shares (including any Company Shares issuable upon conversion or exchange of the Company OCEANEs and Company Shares issuable upon the exercise of any Stock Options or Warrants) and (ii) the Company OCEANEs (and together with the Company Shares, the “Company Securities”), subject to and in accordance with certain terms and conditions which are set forth in this Agreement (together with any subsequent offer of the Purchaser or an Affiliate of the Purchaser filed with the AMF, the “Offer”).

(D)

WHEREAS, on the date hereof, the Company’s board of directors (the “Company Board”) (i) has unanimously welcomed (accueilli favorablement) the Offer (the “Initial Company Board Recommendation”) and approved this Agreement, , (ii) decided, in compliance with Article 261-1, I, 2° and 5° of the Règlement général de l’AMF (the “AMF General Regulation”), to appoint Accuracy as independent expert (the “Independent Expert”) to produce a report (the “Expert’s Report”) regarding the terms of the Offer, including an opinion that the Offer is fair to the Company’s shareholders from a financial point of view (a “Fairness Opinion”), (iii) decided that, upon receipt of the Fairness Opinion and subject to the findings and conclusions thereof, it would decide (α) to issue its reasoned opinion determining that the Offer is in the best interests of the Company, its employees and shareholders and (ß) make a recommendation to all holders of Company Securities to tender such Company Securities into the Offer ((α) and (ß)

being together referred to as the “Company Board Reasoned Opinion”), and (iv) decided to authorize its Chief Executive Officer (directeur général) to enter into this Agreement on behalf of the Company.

(E)

WHEREAS, on the date hereof, immediately preceding the execution of this Agreement, as an inducement and condition to the Purchaser’s willingness to enter into this Agreement, the Purchaser has received commitments from certain shareholders of the Company to tender their Company Securities into the Offer, which represent approximately 22.99 percent of the Company’s issued share capital (the “Tender Commitments”) which shall be tendered for Purchaser Common Shares.

(F)

WHEREAS, the Purchaser and the Company wish to make certain agreements in connection with the Offer and to set forth certain conditions to the Offer.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein, intending to be legally bound hereby, the Parties agree as follows:

1. DEFINITIONS

1.1

Certain Defined Terms

Unless otherwise expressly provided in this Agreement, capitalized terms used in this Agreement shall have the following meanings:

“Adverse Recommendation Change” shall have the meaning set forth in Article 4.1.6(ii)(b) hereof;

“Affiliate” shall mean, in relation to any Person, any other Person who/which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. The term “control” as used in this definition (including its correlative meanings “controlled by” and “under common control with”) shall have the meaning ascribed to it in Article L. 233-3 of the French Commercial Code;

“Agreement” shall have the meaning set forth in the first paragraph of this Agreement;

“AMF” shall mean the Autorité des marchés financiers;

“AMF General Regulation” shall have the meaning set forth in forth in Recital (D);

“Applicable Law” shall mean, with respect to any Person or any property or asset, all laws, statutes, ordinances, codes, rules, regulations or Orders applicable to or binding on such Person (or its properties or assets) or to such property or asset from time to time;

“Authority” shall mean any competent government, governmental, administrative, supervisory, regulatory, judicial, disciplinary, enforcement or tax raising body, authority, agency, commission, board, organization, court or tribunal of any jurisdiction, whether international (including any public international organization), supranational, European Union, national, federal, state or regional or local and any subdivision, department or branch of any of the foregoing.

“Audited Financial Statements” shall have the meaning set forth in Article 4.1.7(viii);

“Break-Up Fee” shall have the meaning set forth in Article 4.3 hereof;

“Company” shall have the meaning set forth in the first paragraph of this Agreement;

“Company Board” shall have the meaning set forth in Recital (D);

“Company Board Reasoned Opinion” shall mean have the meaning set forth in Recital (D);

“Company Offer Documents” shall have the meaning set forth in Article 4.2.2 hereof;

“Company’s Shares”, “Company Shares” or “Shares” shall mean all outstanding ordinary shares issued by the Company, including, for the avoidance of doubt, (i) the Treasury Shares existing at the date hereof, (ii) any additional Company ordinary shares issued before the close of the Offer (as reopened, as the case may be) upon conversion or exchange of any OCEANEs or following the exercise of Stock Options or Warrants, as well as (iii) any Free Shares to the extent vested (acquises) and not subject to transfer restrictions (période de conservation) before the close of the Offer (as reopened, as the case may be) pursuant to the terms thereof;

“Company’s OCEANEs”, “Company OCEANEs” or “ OCEANEs” shall mean the 4,344,651 bonds issued on May 31, 2018 and due on May 31, 2023, issued at a nominal value per bond of €6.80 for an aggregate principal amount of €29,543,626.80, bearing interest at an annual rate of 6%, which are convertible into new Company Shares or exchangeable for existing Company Shares;

“Company Securities” shall mean have the meaning set forth in Recital (C);

“Confidentiality Agreement” shall mean the confidentiality agreement dated September 16, 2019 between the Company and the Purchaser;

“Debt Commitment Letter” shall have the meaning set forth in Article 5 hereof;

“Debt Financing” shall have the meaning set forth in Article 5 hereof;

“Expert’s Report” shall have the meaning set forth in Recital (D);

“Fairness Opinion” shall have the meaning set forth in Recital (D);

“Favorable Report” shall have the meaning set forth in Article 4.2.1(i);

“Free Shares” shall mean all the outstanding free shares (actions gratuites) granted by the Company to the current or former employees, directors or other officers of the Group Companies as set forth in Annex 2;

“French Foreign Investment Condition” shall have the meaning set forth in Article 2.1 hereof;

“Group Companies” shall mean the Company and the entities that the Company controls directly or indirectly. The term “control” as used in this definition (including its correlative meanings “controlled by” and “under common control with”) shall have the meaning ascribed to it in Article L. 233-3 of the French Commercial Code;

“Independent Expert” shall have the meaning set forth in Recital (D);

“Initial Company Board Recommendation” shall mean have the meaning set forth in Recital (D);

“Locked Free Shares” shall mean any Free Shares which are still subject to a minimum holding period requirement (en période de conservation) on the date hereof.

“Material Adverse Effect” shall mean any fact, change, development, event, occurrence or effect that, individually or in the aggregate (considered together with all other effects, causes), causes or is reasonably likely to result in (i) a material adverse effect on the business, results, operations, assets, properties conditions (financial or otherwise), liabilities, of the Group Companies, taken as a whole, (ii) an expected decrease in excess of fifteen (15%) of the Company’s revenues for the financial year ending on December 31, 2020 compared to the financial year ended on December 31, 2019, or (iii) a material impairment on the ability of the Group Companies to continue operating the business of the Group Companies after the settlement of the Offer in substantially the same manner as it was operated immediately prior to the date of this Agreement; provided, however, that the following shall not be considered in determining whether a Material Adverse Effect has occurred:

(a)

any adverse change or development in general industry conditions, or any macro-economic disruptions (including resulting from acts of war or terrorism) or adverse change in general financial, banking, or securities markets, in Europe or the United-States (including any suspension of trading in, or limitation on prices for, securities on a securities exchange for a period in excess of three hours), unless such adverse change or development disproportionately affects the Group Companies;

(b)

the negotiation, execution, announcement or performance of this Agreement; or

(c)

the taking or consummation of any action contemplated by this Agreement and the other agreements contemplated hereby, or with the written consent of the Purchaser.

“Nasdaq” shall mean the Nasdaq Stock Market;

“Nasdaq Limit” shall mean a number of Purchaser Common Shares equal to (i) 12,583,566, minus (ii) the total number of Purchaser Common Shares or securities exercisable or convertible into Purchaser Common Shares that are aggregated, in

accordance with the rules and regulations of Nasdaq, with the Purchaser Common Shares to be issued to holders of Company Securities hereunder, provided that the Nasdaq Limit shall not be lower than 10,500,000;

“Offer” shall have the meaning set forth in Recital (C);

“Offer Consideration” shall have the meaning set forth in Article 3.2.1(ii);

“Order” shall mean any judgment, injunction, order, award, ruling, writ, decree or other restriction of any Authority having competent jurisdiction;

“Party(ies)” shall have the meaning set forth in the first paragraph of this Agreement;

“Person” shall mean an individual, corporation, partnership, joint venture, association, limited liability company, Authority, unincorporated organization or other entity;

“Purchaser” shall have the meaning set forth in the first paragraph of this Agreement;

“Purchaser Common Shares” shall mean the common stock, par value $0.0001 of the Purchaser.

“Purchaser Material Adverse Effect” shall have the meaning set forth in Article 3.2.3(iv);

“Purchaser Offer Documents” shall have the meaning set forth in Article 3.2.1 hereof;

“Purchaser SEC Documents” shall have the meaning set forth in Article 3.2.3(vi);

“Representatives” shall mean such Party’s Affiliates and the agents, directors, officers, advisors (including, without limitation, financial, legal and accounting advisors) and representatives of such Party and its Affiliates;

“Response Period” shall have the meaning set forth in Article 4.1.6(ii) hereof;

“Reverse Break-Up Fee” shall have the meaning set forth in Article 3.2.2 hereof;

“Reverse Break-Up Fee Trigger Event” shall have the meaning set forth in Article 3.2.2 hereof;

“Securities Act” shall have the meaning set forth in Article 4.1.7(xvi) hereof;

“Stock Options” shall mean all the existing options to purchase or to subscribe for Shares (options d’acquisition ou de soucription d’actions) granted by the Company to current or former employees, directors or other officers of the Group Companies as set forth in Annex 2;

“Superior Proposal” shall mean a Takeover Proposal that (i) is a tender offer (offre publique d’acquisition) to acquire 100% of the Company Shares, for a price per Company Share at least equal to (a) in the case of a cash tender offer, 102% of the Offer

Consideration (taking into account the cash branch for purposes of Article 4.1.6(ii)(a) and the highest of the cash branch and exchange branch of the Offer for purposes of Article 4.1.6(ii)(b) or (b) in the case of a tender offer involving exchange of securities, a price which represents an amélioration significative of the offer terms pursuant to Article 232-7 of the AMF General Regulation, and that (ii) the Company Board has determined in its good faith judgment is reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, and if consummated, would result in a transaction more favorable to the Company and its shareholders than the transaction contemplated by the Purchaser (after taking into account any revisions to the terms of the transaction contemplated by this Agreement in response to the proposal made by the Person making the proposal and the time likely to be required to consummate such proposal);

“Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (other than the Purchaser) relating to, or that could reasonably be expected to lead to any direct or indirect acquisition, in one transaction or a series of transactions, including, any merger, consolidation, tender offer, exchange offer, stock acquisition, asset acquisition, binding share exchange, business combination, recapitalization, liquidation, dissolution, joint venture or similar transaction, of (A) assets or businesses that constitute or represent 15% or more of the total revenue, operating income, EBITDA or assets of the Group Companies for the fiscal year ended December 31, 2019, or (B) 15% or more of the outstanding shares of any class of capital stock of, or other equity or voting interests in, the Company or any class of capital stock of, or other equity or voting interests in, any of the Group Companies directly or indirectly holding, individually or taken together, the assets or businesses referred to in (A) above, in each case other than the Offer;

“Tender Commitments” has the meaning set forth in Recital (E).

“Treasury Shares” shall mean Company Shares held, from time to time, by the Company or any member of the Company’s group;

“Unfavorable Report Notice” has the meaning set forth in Article 4.2.1(ii);

“Voluntary Minimum Acceptance Threshold” has the meaning set forth in Article 6.1; and

“Warrants” means:

(i)

the 40.000 share subscription warrants (bons de souscription d’action) subscribed on March 14, 2013 by Eric Beard, each allowing for the subscription of one Company Share at a unitary price of €4.24, expiring on December 31, 2023;

(ii)

the 60.000 share subscription warrants (bons de souscription d’action) subscribed on March 31, 2015 by IPF Partners, each allowing for the subscription of one Company Share at a unitary price of €4.71, expiring on May 31, 2021;

(iii)

(iv)

the 40.000 share subscription warrants (bons de souscription d’action) subscribed on February 3, 2016 by Paula Ness Speers, each allowing for the subscription of one Company Share at a unitary price of €3.42, expiring on January 25, 2026; and

(v)

the 150.000 share subscription warrants (bons de souscription d’action) subscribed on February 3, 2016 by Gérard Hascoët, each allowing for the subscription of one Company Share at a unitary price of €3.42, expiring on January 25, 2026.

1.2

Construction

For the purposes of this Agreement: (i) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa as the context requires; (ii) the terms “hereof”, “herein”, and “herewith” and words of similar import shall, unless otherwise expressly stated, be construed to refer to this Agreement as a whole (including any Annex hereto) and not to any particular provision of this Agreement, and Article, Section and Annex references are to the Articles, Sections and Annexes to this Agreement unless otherwise expressly specified; (iii) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation” unless otherwise expressly specified; (iv) the word “or” shall not be exclusive; and (v) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise expressly specified.

2. CONDITIONS PRECEDENT

2.1

Conditions to certain obligations of the Purchaser

The obligations of the Purchaser under Article 3.2 shall be subject to the satisfaction (or waiver by the Purchaser in writing) of the following conditions:

(i)

the Fairness Opinion, stating that the financial terms and conditions of the Offer are fair, shall have been delivered to the Company Board;

(ii)

the Company Board shall have, after reviewing such Fairness Opinion: (a) issued the Company Board Reasoned Opinion, (b) recommended the Company’s securities holders to tender their Company Securities into the Offer; and (c) if requested by the Purchaser, authorized the Chief Executive Officer (directeur général) of the Company to tender the Treasury Shares into the Offer in accordance with Article 4.2.3;

(iii)

no competing tender offer for the Company Securities which is reasonably expected to be financed and filed with the AMF shall have been publicly announced;

(iv)

the representation and warranties of the Company under Article 4.1.7 are accurate as of the date hereof and shall be accurate in all material respects as of the date of the filing of the Offer;

(v)

the French Minister of Economy either (x) shall have confirmed in writing, pursuant to article R. 153-7 of the French Monetary and Financial Code that the transaction contemplated by this Agreement is not subject to the prior authorization of the French Ministry of Economy pursuant to article L. 151-3 of the French Monetary and Financial Code or (y) shall have authorized, or be deemed to have authorized in accordance with Applicable Laws, the transaction contemplated by this Agreement in accordance with article L 151-3 of the French Monetary and Financial Code (the “French Foreign Investment Condition”);

(vi)

there shall not have been a material breach by the Company of its obligations under this Agreement; and

(vii)

there shall not have occurred a Material Adverse Effect which is continuing on the date of the filing of the Offer.

3. UNDERTAKINGS OF THE PURCHASER RELATING TO THE OFFER

3.1

Non-Conditional Purchaser Undertakings

3.1.1. Provision

of information

The Purchaser shall furnish to the Company all information concerning the Purchaser requested by the Company that is required by French laws or regulations to be included in the Company Offer Documents.

3.1.2. Preparation

of Purchaser Offer Documents

Provided that it receives the cooperation and assistance of the Company in accordance with Articles 4.1.3 and 5 (to the extent related thereto), the Purchaser shall prepare the Purchaser Offer Documents in compliance with Applicable Law (including the AMF General Regulation) and prior to the filing of any Purchaser Offer Documents with the AMF, or responding to any material comments of the AMF, the Purchaser shall provide the Company with a reasonable opportunity, in light of the relevant deadlines, to comment on the Purchaser Offer Documents or on the responses to the material comments of the AMF and the Purchaser shall consider any reasonable comments made by the Company.

3.1.3. French

Foreign Investment Condition

Provided that it receives the necessary cooperation and assistance of the Company, the Purchaser shall, at its own cost, make its best efforts to procure that the French Foreign Investment Condition is satisfied as soon as practicable.

3.2

Conditional Purchaser Undertakings

The obligations of the Purchaser under this Article 3.2 shall be subject to the satisfaction (or waiver by the Purchaser in writing) of the conditions set forth in Article 2.1.

3.2.1.

Filing of the Offer

The Purchaser shall, or shall cause an Affiliate of the Purchaser to, instruct a presenting bank (établissement présentateur) to file the Offer with the AMF at the latest 5 French trading days following the issuance of the Company Board Reasoned Opinion provided that, on such date the conditions precedent set forth in Article 2.1 shall have been satisfied (or waived by the Purchaser in writing), and that the Purchaser shall in no event be required to file the Offer earlier than 60 calendar days after the date hereof.

(i)

Offer Documents

In accordance with applicable provisions of the AMF General Regulation, the Purchaser will, or will cause an Affiliate of the Purchaser to, (i) file with the AMF (a) a draft offer document (projet de note d’information) relating to the Offer, and (b) a document presenting the Purchaser’s legal, financial and accounting characteristics (document “autres informations”), and (ii) disseminate draft standardized regulatory press releases (communiqués de presse normés) relating to them (such documents, together with any supplements or amendments thereto, being the “Purchaser Offer Documents”).

The Purchaser will have the right to amend the terms of the Purchaser Offer Documents after they are filed with the AMF to the extent required to reflect comments from the AMF or as it determines to be appropriate; provided that the Purchaser will consult with the Company with respect to any such amendments and will consider in good faith any reasonable comments of the Company thereon.

(ii)

Terms and conditions of the Offer

The consideration proposed in the Offer to the holders of Company Securities (the “Offer Consideration”) shall be as follows:

(a)

Consideration for the Company Shares

The holders of Company Shares may elect to tender their Company Shares pursuant to the Offer for EUR 2.80 per Company Share or 0.50 Purchaser Common Share for each Company Share.

(b)

Consideration for the Company OCEANEs

The holders of Company OCEANEs may elect to tender their Company Shares pursuant to the Offer for EUR 7.01 per Company OCEANE.

Notwithstanding the foregoing, if the holders of Company Shares tender to the exchange branch of the Offer a number of Company Shares resulting in the Purchaser being

expected to deliver, based on the exchange ratios set forth above, a number of Purchaser Common Shares greater than the Nasdaq Limit, then the Purchaser shall only issue a number of Purchaser Common Shares equal to the Nasdaq Limit, which will be allocated proportionately among such holders and the other Company Shares held by them will be purchased by the Purchaser at the cash price offered per Company Share.

The other key terms and conditions of the Offer are set forth in Annex 1 (any or all of which such conditions may be waived by the Purchaser, subject to Applicable Law).

3.2.2.

Reverse Break-Up Fee payable by the Purchaser

The Purchaser shall pay to the Company a break fee of EUR 2,500,000 (the “Reverse Break-Up Fee”) if:

•

it does not file the Offer with the AMF within 15 French trading days of the deadline prescribed by the first paragraph of Article 3.2.1 (provided for the avoidance of doubt that the conditions precedent set forth in Article 2.1 were satisfied and that the Company was in a position to file its draft response document simultaneously with the filing of the Offer in accordance with Article 4.2.2);

•

upon publication of the Offer results by the AMF, the Purchaser has not reached the Voluntary Minimum Acceptance Threshold but (x) the Purchaser has reached at least 60% of the outstanding share capital and voting rights of the Company, (y) to the extent the number of shares to be delivered to the Purchaser on the date of settlement and delivery of the Offer (i.e., excluding any Company Shares included in the Offer results through assimilation rules but not included in the settlement of the Offer) represents less than 50% of the outstanding share capital or voting rights of the Company, the AMF has confirmed that the Purchaser shall not trigger a mandatory tender offer requirement if it subsequently increases its stake by more than 1% of the share capital and voting rights and (z) the Purchaser does not waive the Voluntary Minimum Acceptance Threshold in accordance with Article 231-9, II of the AMF General Regulation thereby causing the Offer to fail;

(any of these two events, the “Reverse Break-Up Fee Trigger Event”).

The payment of the Reverse Break-Up Fee shall occur within five (5) calendar days of the date on which the Reverse Break-Up Trigger Event shall have occurred.

The Purchaser acknowledges that the agreement contained in this Article 3.2.2 is an integral part of the Offer and that, without these agreements, the Company would not have entered into this Agreement.

The payment of any amounts due pursuant to this Article 3.2.2 shall constitute the sole and exclusive remedy of the Company in case of a Reverse Break-Up Fee Trigger Event.

3.2.3.

Representations of the Purchaser

The Purchaser represents and warrants to the Company that, on the date hereof and on the date of the filing of the Offer:

(i)

the Purchaser is validly organized and existing under the laws of the State of Delaware;

(ii)

the Purchaser’s authorized signatory has the requisite capacity, power and authority to enter into this Agreement on behalf of the Purchaser, and this Agreement has been duly and properly approved by the relevant governance body of the Purchaser in accordance with the Purchaser’s certificate of incorporation or other organizational documents;

(iii)

neither the Purchaser nor its subsidiaries have taken any step nor legal proceedings for its or their winding-up, liquidation, bankruptcy, or dissolution under Applicable Law in any relevant jurisdiction;

(iv)

none of the execution, delivery or performance of this Agreement by the Purchaser, the consummation by the Purchaser of the transactions contemplated herein or compliance by the Purchaser with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the certificate of incorporation or other organizational documents of the Purchaser; (ii) violate any law applicable to the Purchaser or any of its properties or assets; or (iii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancellation, vesting, payment, acceleration, change of control right, suspension or revocation under any of the provisions of any material bond, security interest, indenture, contract or other instrument or obligation to which the Purchaser or any its subsidiaries is a party, or by which any of them may be bound, except in the case of clauses (ii) and (iii) for violations, breaches, defaults, terminations, cancellations, vestings, payments, accelerations, change of control rights, suspensions or revocations which would not, individually or in the aggregate, (x) have a material adverse effect on the Purchaser and/or its subsidiaries (taken as a whole), (y) impair the ability of the Purchaser to perform in any material respects its obligations under this Agreement, or (z) prevent or materially delay the consummation of the transactions contemplated hereby (clauses (x), (y) and (z), collectively, a “Purchaser Material Adverse Effect”);

(v)

no consent, approval or authorization of any Authority or other Person is required to be obtained or made in connection with the consummation of the transactions contemplated by this Agreement, except for applicable consents, approvals or authorizations that have been obtained by the Purchaser on or prior to the date hereof, as otherwise set forth in this Agreement, or where the failure to obtain any such consents, approvals or authorizations, in each case, would not, individually or in the aggregate, have a Purchaser Material Adverse Effect;

(vi)

as of the date hereof, there is no material litigation or investigation existing or pending against the Purchaser or its subsidiaries that has not been disclosed that is required to be disclosed in any registration statements, prospectuses, reports, schedules, forms, statements, and other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by it with the SEC since January 1, 2019 (collectively, the “Purchaser SEC Documents”) that would, individually or in the aggregate, reasonably be expected to result in a Purchaser Material Adverse Effect;

(vii)

as of their respective filing dates, the financial statements and related notes thereto included in the Purchaser SEC Documents (a) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (b) have been prepared in accordance with GAAP, applied on a consistent during the periods involved, and (c) fairly present in all material respects the consolidated financial position of the Purchaser and its consolidated subsidiaries as of the dates thereof and their respective consolidated results of operations and cash flows for the periods indicated therein, all in accordance with IFRS or GAAP, as applicable, and the rules and regulations promulgated by the SEC;

(viii)

the Purchaser has made public through the channels prescribed by Applicable Law and regulations all information that has to be made available to the market or holders of the Purchaser Common Shares under Applicable Law and such information complies in all material respects with such Applicable Law; and

(ix)

the Purchaser has the appropriate financing from its existing bank facilities and/or available cash for the purposes of the Offer.

4. UNDERTAKINGS OF THE COMPANY RELATING TO THE OFFER

4.1

Non-Conditional Company Undertakings

4.1.1.

Consultation of the Company’s social and economic committee

In compliance with article L. 2312-47 of the French Labor Code, no later than two French trading days after the announcement of the Offer, the Company shall initiate and conduct the consultation of its social and economic committee in respect of the Offer in accordance with Article L. 2312-42 et seq. of the French Labor Code. The Company shall use its best efforts to obtain the opinion of the social and economic committee as swiftly as possible after execution of this Agreement and in any event (unless otherwise agreed with the Purchaser) no later than the one month consultation period provided for by the French Labor Code, as applicable. The Company shall not make any commitments or statements to the social and economic committee regarding the Purchaser’s intents regarding the Group Companies without the Purchaser’s prior written consent.

The Purchaser shall provide all reasonable information, cooperation and assistance as requested by the Company in connection with the social and economic committee’s consultation process.

The Company shall keep the Purchaser informed regarding the social and economic committee process on a regular basis and at any time upon request and shall notify the Purchaser in writing no later two French trading days following the delivery of the opinion of the relevant social and economic committee or expiration of the one month consultation period provided for by the French Labor Code, as applicable.

4.1.2.

Cooperation with the Independent Expert and the Purchaser

The Company will, and will cause its Affiliates to, fully cooperate with the Independent Expert, in order to allow him to establish the Expert’s Report containing a Fairness Opinion. In the event the Company is informed by the Independent Expert that its report will not support the Offer, the Company will immediately inform the Purchaser thereof and comply with Article 4.2.1(ii) below.

In addition, the Company shall furnish as soon as reasonably practicable to the Purchaser all information concerning the Company, its Affiliates and their businesses requested by the Purchaser in connection with the preparation of the Purchaser Offer Documents or its correspondence with the Independent Expert and the AMF in respect of the Offer.

In connection with the Offer, the Purchaser and the Company shall cooperate with each other to fulfil all applicable requirements of the AMF or any other Authority and to respond to comments from the AMF or any other competent Authority.

Compliance by the Company with this Article 4.1.2 is a key term of this Agreement without which the Purchaser would not have entered into this Agreement. Any material failure by the Company to comply with this Article 4.1.2 may materially jeopardize the success of the Offer and the Purchaser shall incur no liability of any kind in the event it considers that it is not in a position to complete the transactions contemplated herein as a result of such failure by the Company.

4.1.3.

Management of Company until consummation of the Offer

The Company undertakes that, from the date hereof until the date of appointment to the Company Board of the Purchaser’s designees in accordance with Article 4.2.4, the Group Companies shall conduct their business in the ordinary course and in accordance with past practices (except to the extent contemplated by this Agreement)

In addition, and without limiting the generality of the foregoing, during the period from the date hereof until the date of appointment to the Company Board of the Purchaser’s designees in accordance with Article 4.2.4, the Company shall not, without the written prior consent of the Purchaser and except as set forth in Schedule 4.1.3 hereto:

(a)

declare, authorize, make, issue or pay any dividend (in cash or in kind) or other distribution of a similar nature in respect of any of its share capital or other equity or voting interests;

(b)

purchase, redeem or cancel any Company Securities or Warrants, save for the Company Securities or Warrants to be purchased, redeemed or cancelled in accordance with the terms of the OCEANEs, Free Shares, Stock Options or Warrants;

(c)

amend the Company’s by-laws dated December 10, 2019 or the by-laws of any other Group Company, save for any share capital increase resulting from the vesting, exercise or conversion of Free Shares, OCEANEs, Stock Options or Warrants, in accordance with their terms;

(d)

adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization with respect to the Group Companies;

(e)

issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any share capital or other equity or voting interests of a Group Company, securities convertible or exchangeable into or exercisable for any share capital or other equity or voting interests of a Group Company or any options, free shares, warrants or other rights of any kind to acquire any share capital or other equity or voting interests of a Group Company, save for the Company Securities to be subscribed or purchased upon exercise, conversion or exchange of the OCEANEs, Stock Options or Warrants as described in Annex 2;

(f)

split, combine or reclassify any of the share capital or other equity or voting interests of the Company;

(g)

acquire, sell or dispose of any asset, share, undertaking (fonds de commerce) to or from a third-party (excluding any Group Company) for a price greater than EUR 150,000;

(h)

enter into a material joint venture or material partnership or similar material third-party business enterprise;

(i)

enter into, amend or terminate any agreement that would be deemed a related-party transaction (convention réglementée) under Article L. 225-38 of the French Commercial Code or more generally any agreement with (i) a shareholder of the Company owning more than 5% of the Company Shares or any Affiliates of such shareholder, (ii) a director of the Company or (iii) an executive officer of the Company;

(j)

incur, assume, endorse, guarantee or otherwise become liable for or modify the terms of any indebtedness for borrowed money, other than in respect of previously budgeted borrowings to support asset financing and capital expenditures that had been previously disclosed to Purchaser;

(k)

make, commit to make or authorize any capital expenditure, other than capital expenditures and research and development expenditures in the amounts set forth in the Company’s existing capital budget that has been previously disclosed to Purchaser;

(l)

sell, lease, license, lease back or otherwise subject to any lien or otherwise dispose of or abandon any of its permits, licenses or intellectual property rights;

(m)

make any material changes with respect to accounting policies or procedures, except as required by changes in GAAP/IFRS or by the AMF;

(n)

release, assign, compromise, pay, discharge, waive, settle, agree to settle, or satisfy any litigation requiring payment by the Company in excess of EUR 100,000;

(o)

make, change or revoke any tax election, change any tax accounting method, settle or compromise any tax liability or proceeding or amend any tax return, except (A) as required by Applicable Law or by a change in accounting standards, (B) as do not result in an increase in tax or a decrease of after tax income and (C) if conducted in the ordinary course of business;

(p)

except as required by Applicable Law: (A) pay or agree to pay any bonus, severance or termination payments or payments or benefits to any director, officer or other employee of the Group Companies (other than pursuant to existing employment agreements and in the ordinary course of business consistent with past practice); (B) pay or agree to pay any transaction, exit or retention bonus in connection with the transactions contemplated herein, (C) materially increase or agree to increase the compensation (including wages, salaries, bonuses or benefits), make or agree to make any new equity awards, to any director, officer or other employee of the Group Companies or amend the plans governing the Stock Options or the Free Shares; or (D) hire or terminate the employment or office (other than for cause) of any officer or employee whose annual base salary exceeds EUR 100,000;

(q)

adopt any measure that modifies the substance (modifiant sa consistence) of the Group Companies;

(r)

adopt or amend any benefit plan or enter into, adopt, extend, renew or amend any collective bargaining agreement or other contract with any labor organization, social and economic committee, union or association, except as required by Applicable Law;

(s)

take any action that would require the approval of, notification to, or an opinion from the Company Board in accordance with Applicable Law or the internal rules thereof (règlement intérieur);

(t)

more generally, take or agree to take any action likely to delay or frustrate the Offer; or

(u)

agree, authorize or commit to do any of the foregoing, or authorize, recommend, propose or announce an intention to do any of the foregoing.

4.1.4.

Change of control; Treatment of Stock Options, Free Shares and Warrants

4.1.4.1 Change of control

As soon as reasonably practicable, and in any event from the date of the filing of the Offer, the Company shall use its commercially reasonable efforts to obtain consents by third parties under change of control clauses in the contracts entered into by Group Companies where it is necessary to avoid disruption or prejudice to the business of the Group Companies as a result of the change of control of the Group Companies in connection with the Offer.

The Group Companies shall not make any payments or contractual commitments to any third party whose consent is required under change of control clauses in the contracts entered into by them without the Purchaser’s prior consultation.

4.1.4.2 Treatment of Stock Options, Free Shares and Warrants

No later than on the day of opening of the initial Offer acceptance period, the Company Board shall make its best efforts to notify:

(i)

the holders of the Stock Options and Warrants in accordance with their respective terms that the Offer constitutes a liquidity event resulting in their Stock Options and Warrants (a) becoming immediately exercisable (to the extent not already exercisable) and (b) lapsing upon settlement and delivery of the Offer if not exercised prior to the end of the initial Offer acceptance period, it being noted that such provisions shall not apply to Warrants held by IPF Partners or affiliated funds.

(ii)

the holders of Locked Free Shares of the release of the holding period applicable to their Locked Free Shares in accordance with the terms and conditions of such Locked Free Shares so as to allow them to tender their Company Shares into the Offer.

The Company shall make its best efforts to obtain, before the filing of the Offer, commitments from E. Beard, P. Speers and G. Hascoët whereby they state that (i) they do not request that the Offer targets their Warrants, (ii) they will not tender their Warrants into the Offer (without prejudice to their right to exercise the Warrants and tender any Company Shares into the Offer) and (iii) they acknowledge that such Warrants will become void if the Offer is successful in accordance with the terms and conditions of the Warrants.

4.1.5.

Preparation of documents

The Company shall prepare the Company Offer Documents in compliance with Applicable Law and prior to the filing of any Company Offer Documents with the AMF, or responding to any material comments of the AMF, the Company shall provide the Purchaser with a reasonable opportunity, in light of the relevant deadlines, to comment on the Company Offer Documents or on the responses to the material comments of AMF and the Company shall take into account any reasonable comments made by the Purchaser.

4.1.6.

Non solicitation

(i)

Up until the settlement of the Offer, the Company shall work in good faith and expeditiously towards the successful completion of the Offer and, during the term of this Agreement it shall, and shall cause its Representatives:

(a)

not to, directly or indirectly, (a) solicit, initiate or encourage or take any actions to facilitate any Takeover Proposal or any inquiries reasonably likely to result in the making of any Takeover Proposal, or (b) enter into, continue or otherwise participate in any discussions or negotiations with a third party regarding, or furnish to any third party any information, or take any other action to facilitate any inquiries with respect to, or otherwise cooperate in any way with, any Takeover Proposal;

(b)

to immediately cease and cause to be terminated all discussions or negotiations with any Person conducted heretofore with respect to any proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal, and cause all materials and written information communicated by the Company or its advisors and agents to such Person to be returned to the Company or destroyed;

(c)

to notify the Purchaser of the receipt by it, from the date of execution hereof, of each and any Takeover Proposal or of any contact reasonably likely to lead to a Takeover Proposal including the full details thereof (and any subsequent amendment thereof) and the identity of the Persons involved, promptly and in any event within 24 hours of such receipt or contact;

(d)

to keep the Purchaser reasonably and regularly informed of the status of any such Takeover Proposal or contact, including the material details thereof; and

(e)

not to accept, approve, recommend or enter into any agreement, in respect of a Takeover Proposal (and shall not make any public communication about such Takeover Proposal without submitting it to the Purchaser for review with reasonable advance notice).

(ii)

Notwithstanding any of the above, if (x) a Takeover Proposal is made by any Person (other than the Purchaser and/or any of its Affiliates), including by way of a tender offer filed with the AMF, (y) such Takeover Proposal constitutes a Superior Proposal and (z) such Takeover Proposal was not solicited by or on behalf of the Company and did not otherwise result from a breach of its obligations under Article 4.1.6):

(a)

the Company and its Representatives shall have the right to negotiate with and provide information to the Person having made such Takeover Proposal (provided that all information which is provided to such Person shall simultaneously be provided to the Purchaser if not provided previously); and

(b)

the Company Board shall be entitled, after complying with its obligations set forth in the below, to (i) withdraw or modify the Initial Company Board Recommendation or the Company Board Reasoned Opinion (as applicable), (ii) and/or approve, recommend or remain neutral (by failing to recommend against the Takeover Proposal upon request of the Purchaser) with respect to such a Takeover Proposal (constituting a Superior Proposal) and/or (ii) terminate this Agreement pursuant to Article 6.1(ii) in order to enter into an agreement providing for the consummation of such Takeover Proposal (each of the actions set forth in (i) or (ii) of this paragraph (b), an “Adverse Recommendation Change”). Except as provided for in the first sentence of this paragraph (b), the Company shall not effect any Adverse Recommendation Change, it being further specified that, unless such Superior Proposal is in the form of a tender offer actually filed with the AMF, the Company shall send a written notice to the Purchaser prior to the Company Board making an Adverse Recommendation Change, and the Purchaser shall have the right, but not the obligation, during 10 French trading days from the date of receipt of the Company’s notice (the “Response Period”), to offer to amend the terms of the Offer and in such case the Company shall, and shall cause its advisors to, negotiate in good faith with the Purchaser to make such adjustments to the terms and conditions of the Offer as would enable the Company to proceed with the Offer as amended, rather than the Superior Proposal; if the Purchaser submits a proposal to amend the terms of its Offer, including an increase in, or modification of, the Offer Consideration, the Company Board shall review and determine whether the Takeover Proposal to which the Purchaser is responding would be a Superior Proposal when assessed against the Offer as it is proposed by the Purchaser to be amended; if the Company Board does not so determine, the Company Board will promptly reaffirm its Initial Company Board Recommendation or Company Board Reasoned Opinion (as applicable); but if the Company Board does so determine, or the Purchaser fails to submit a proposal to amend the terms of its Offer within the Response Period, the Company may make its Adverse Recommendation Change, in which case this Agreement shall terminate pursuant to Article 6.1(ii); provided that such termination shall only be effective if such Superior Proposal is cleared (déclarée conforme) by the AMF.

4.1.7.

Representations and warranties of the Company

The Company represents and warrants to the Purchaser that, on the date hereof and on the date of the filing of the Offer, except as set forth in Schedule 4.1.7 hereto:

(i)

the Company is validly organized and existing under the laws of France;

(ii)

the Company’s authorized signatory has the requisite capacity, power and authority to enter into this Agreement on behalf of the Company, and this Agreement has been duly and properly approved by the Company Board in accordance with the Company’s articles of association;

(iii)

no step has been taken or legal proceedings started against any Group Company for its winding-up, liquidation, bankruptcy, or dissolution under Applicable Law in any relevant jurisdiction, nor is any Group Company insolvent;

(iv)

none of the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated herein or compliance by the Company with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the articles of association or other organizational documents of the Company; (ii) violate any law applicable to the Company or any of its properties or assets; or (iii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancellation, vesting, payment, acceleration, change of control right, suspension or revocation under any of the provisions of any material bond, security interest, indenture, contract or other instrument or obligation to which a Group Company is a party, or by which any of them may be bound, except in the case of clauses (ii) and (iii) for violations, breaches, defaults, terminations, cancellations, vestings, payments, accelerations, change of control rights, suspensions or revocations which would not, individually or in the aggregate, (x) have a material adverse effect on the Group Companies (taken as a whole), (y) impair the ability of the Company to perform in any material respects its obligations under this Agreement, or (z) prevent or materially delay the consummation of the transactions contemplated hereby;

(v)

no consent, approval or authorization of any Authority or other Person is required to be obtained or made in connection with the consummation of the transactions contemplated by this Agreement, except for applicable consents, approvals or authorizations that have been obtained by the Company on or prior to the date hereof, as otherwise set forth in this Agreement or where the failure to obtain such consents, approvals or authorizations would be immaterial;

(vi)

the share capital of the Company is composed 26,589,946 Shares, of which 56,938 Shares are Treasury Shares and 207,500 Shares are Locked Free Shares. Except as set forth above and except with respect to (a) the Stock Options which give the right to acquire, or subscribe for, a maximum of 2,013,807 Company Shares, (b) the Warrants which give the right to subscribe for a maximum of 350,000 Company Shares, the details of which are set out in Annex 2, there are no (w) authorized, issued or outstanding shares of the Company; (x) securities of the Company convertible into, exercisable or exchangeable for shares of the Company or any other obligation of the Company; (y) warrants, calls, options, unvested free shares or other rights to acquire or subscribe shares of the Company; or (z) outstanding obligations of the Company repurchase, redeem or otherwise acquire any such securities or to issue, deliver or

sell, or cause to be issued, delivered or sold, any such securities. All the Company Securities have been validly issued and are fully paid; and all of the Stock Options, Free Shares and Warrants have been duly and validly granted or issued. The rights of the respective holders of the OCEANE, Stock Options, Free Shares and Warrants have been respected in all respects since their issuance and the contractual documents governing them have been complied with. The Stock Options and Warrants that are not exercised prior to the end of the initial Offer acceptance period will automatically lapse upon settlement and delivery of the Offer (except Warrants held by IPF Partners or affiliated funds);

(vii)

the Company is the sole legal owner of the whole issued and outstanding share capital of each of the Group Companies (other than the Company) and all such shares are validly issued, fully paid up and free from encumbrances. No right has been granted to any person to require any of the Group Companies (other than the Company) to issue, sell, transfer or convert any securities (whether debt or equity);

(viii)

the audited consolidated balance sheet of the Company and its subsidiaries for the fiscal years ended as of December 31, 2017 and December 31, 2018 and each related audited consolidated statements of income, retained earnings, stockholders’ equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (collectively, the “Audited Financial Statements”), as well as the summary consolidated financial statements of the Company and its subsidiaries for the first half of 2019 as contained in the half-year financial report published by the Company on September 23, 2019, (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly in all material respects the consolidated financial condition, results of operations, assets and liabilities and cash flows of the Company and each of its subsidiaries as of the dates thereof or for the periods covered thereby, and (iii) have been prepared in accordance with IFRS, for the Audited Financial Statements, and with the international financial reporting standard IAS 34 “Interim Financial Reporting”, for the FY2019 summary half-year financial statements, as these standards were respectively applied on a basis consistent with the past periods;

(ix)

the consolidated net debt of the Company as at January 31, 2020 is equal to EUR 22,154,538 and the Group Companies have sufficient cash to support their standard operations in the ordinary course of business (consistent with past practice) and pay their debts falling due up to September 30, 2020 excluding any fees and costs incurred in relation to the transactions contemplated herein, as well as any sums due for the redemption of the Company OCEANEs (as the case may be);

(x)

over the last three (3) years, no Group Company has received any written material complaint, allegation, assertion or claim regarding the accounting or auditing practices of any Group Company, or its internal controls, including any written material complaint, allegation, assertion or claim that a Group Company has engaged in questionable accounting or auditing practices, except as specifically disclosed in the minutes of the shareholders’ meeting of the Company that are publicly available on the Company’s website;

(xi)

except as specifically disclosed in the Document de Référence included in the Company’s most recent filing with the AMF, there are no agreements, arrangements or transactions to which the Company, on the one hand, and officer or director of the Company or any of its shareholders holding more than 5% of the Company’s share capital (or their Affiliates), on the other hand, is a party;

(xii)

except as specifically disclosed in the minutes of the shareholders’ meeting of the Company that are available on the Company’s website, that are no material fact or circumstance (including any suit, action or proceeding pending or, to the Company’s best knowledge, threatened against any Group Company) that, individually or in aggregate is adversely affecting (or reasonably likely to adversely affect) the affairs of the Company’s group as a whole which has not been disclosed publicly and which, if disclosed, might have a noticeable (sensible) influence on the traded market price of the Company Shares;

(xiii)

the Company has disclosed to the Purchaser, and provided the Purchaser with access to, any contract entered into by any Group Company that (i) represented a substantial portion of the Company’s revenue for any of the last two (2) years, (ii) relates to intellectual property licensed by the Company that the Company uses in any of its products, (iii) includes a change of control provision capable of being triggered by the transactions contemplated hereby or (iv) restricts the ability of any Group Company to carry on business in any part of the world;

(xiv)

each Group Company has at all times conducted its business in accordance with Applicable Law (including, for the avoidance of doubt, any anti-corruption laws, anti-money laundering laws, or global trade laws or regulations and all laws relating to competition and anti-trust) in all material respects.

(xv)

the Company has made public through the channels prescribed by Applicable Law and regulations all information that has to be made available to the market or holders of the Company Securities under Applicable Law and such information complies in all material respects with such Applicable Law.

(xvi)

on the date hereof, the Company is a foreign private issuer within the meaning of Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), and U.S. holders (as defined in Rule 800 of the Securities Act), of the Company hold no more than 10% of the Company Shares, as calculated in accordance with Rule 802 under the Securities Act.

4.2

Conditional Company Undertakings

4.2.1.

Independent Expert – Company Board Reasoned Opinion

(i)

As soon as possible and in any event within three (3) French trading days after having completed its social and economic committee consultation in accordance

with Article 4.1.1 and received the Expert’s Report that includes a Fairness Opinion (a “Favorable Report”), the Company Board shall issue the Company Board Reasoned Opinion.

(ii)

In the event that the Company is informed by the Independent Expert that it will issue an Expert’s Report which is not a Favorable Report, the Company shall immediately inform the Purchaser thereof (the “Unfavorable Report Notice”), and the Parties shall negotiate in good faith towards making such commercially reasonable amendments to the terms of the Offer as would permit a Favorable Report to be issued, subject to approval of the board of directors of the Purchaser and the Company Board and provided that the Purchaser shall in no case be obligated to increase the Offer Consideration/improve the economic terms of the Offer. If such negotiations are unsuccessful and the Company Board Reasoned Opinion is not issued within fifteen (15) French trading days as from the Unfavorable Report Notice (excluded), then the Purchaser shall have the right to terminate this Agreement.

4.2.2.

Filing of the Company Offer Documents

In accordance with applicable provisions of the AMF General Regulation, the Company will (i) file with the AMF, (a) simultaneously with the filing of the Offer, a draft response document relating to the Offer (projet de note en réponse), and (b) no later than the French trading day preceding the opening of the Offer, a document presenting the Company’s legal, financial and accounting characteristics (document “autres informations”), and (ii) disseminate draft standardized press releases (communiqués de presse normés) relating to them (such documents, together with any supplements or amendments thereto, being the “Company Offer Documents”). The Company Offer Documents shall include the Fairness Opinion and the Company Board Reasoned Opinion.

The Company undertakes to:

(i)

prepare the Company Offer Documents in compliance with Applicable Law;

(ii)

amend and complete the Company Offer Documents in accordance with such reasonable requests from the AMF as are consistent with usual practice; and

(iii)

prior to (x) filing any Company Offer Document or any amendment thereto with the AMF or (y) responding to any material comments of the AMF on a Company Offer Document, provide the Purchaser with a reasonable opportunity to comment on such Company Offer Document or any amendment thereto or such response to the comments of the AMF and consider in good faith any reasonable comments made by the Purchaser.

4.2.3.

Treasury Shares

The Company undertakes, if required by the Purchaser, to tender and to cause the relevant Group Company to tender into the Offer, all of the Treasury Shares it or such Group Company holds and will come to hold from the date hereof to the closing of the initial Offer acceptance period (or the closing of the re-opened acceptance period).

4.2.4.

Governance Upon Success of the Offer

Upon settlement of the Company Shares tendered into the initial Offer acceptance period, the Purchaser shall be entitled to designate a majority of the directors on the Company Board and the Company shall, at such time, procure the Purchaser’s designees to be so elected or appointed to the Company Board and shall take all actions requested by the Purchaser that are necessary to effect any such election or appointment. In connection with the foregoing, the Company shall (i) promptly obtain the one-by-one resignations of the incumbent directors designated by the Purchaser, and (ii) promptly upon each of such resignations, obtain the cooptation of the Purchaser’s designees.

4.3

Break-Up Fee payable by the Company

The Company shall pay to the Purchaser a break fee (the “Break-Up Fee”), in order to compensate the Purchaser for its costs and its management time, if:

(i)

the Company Board either does not make the Company Board Reasoned Opinion on or prior to April 30, 2020, or, if earlier, within five (5) French trading days of the delivery of a Favorable Report provided that the consultation process of the social and economic committee of the Company has been completed in accordance with Article 4.1.1, or withdraws or modifies the Company Board Reasoned Opinion;

(ii)

an Adverse Recommendation Change occurs;

(iii)

the Offer is withdrawn pursuant to Article 232-11 of the AMF General Regulation, except in the case of withdrawal of the Offer by the Purchaser following the filing of a competing offer provided that the Company Board had continued to support the Offer after the filing of such competing offer and where the Company is not in breach of its non-solicitation obligations under Article 4.1.6 of this Agreement.

The amount of the Break-Up Fee shall be EUR 2,500,000 provided that if the Break-Up Fee is triggered by an event set forth in paragraph (ii) and/or (iii) above, the Break-Up Fee shall be increased to the amount of fees, costs and expenses effectively incurred by the Purchaser in connection with the transactions contemplated by this Agreement up to a maximum of EUR 3,500,000.

The payment of such Break-Up Fee shall occur within five (5) calendar days of the date on which the event having triggered it shall have occurred (or, if earlier, upon termination of this Agreement).

The Company acknowledges that the agreements contained in this Article 4.3 are an integral part of the Offer and that, without these agreements, the Purchaser would not have entered into this Agreement.

Without limiting the generality of the foregoing, in the event of a breach (or deemed breach) by the Company of Article 4.1.6, the Purchaser may seek any and all other remedies available at law to which the Purchaser is entitled.

4.4

Information

During the period commencing on the date hereof and continuing until the earlier of the termination of this Agreement and the settlement of the Offer, the Company shall, subject to any restrictions imposed by Applicable Law, (i) afford the Purchaser and its accountants, counsel and other representatives, reasonable access to the Group Companies’ personnel, properties, books, contracts and records, and all other information concerning the business, properties and personnel of the Group Companies as the Purchaser may reasonably request; and (ii) to the extent permitted by Applicable Law, notify the Purchaser of any event or circumstance that has or may reasonably be expected to have a material adverse effect on the business, assets, properties, results of operations or financial condition of the Group Companies, or the ability of the Purchaser and its Affiliates to continue operating the business of the Group Companies after the settlement of the Offer in substantially the same manner as it was operated immediately prior to the date of this Agreement.

5. COOPERATION BETWEEN THE PARTIES

The Parties undertake to cooperate for the purpose of completing the Offer and the acquisition of the Company by the Purchaser or an Affiliate of the Purchaser described in this Agreement and have agreed, based on the circumstances existing at the date hereof. In particular, the Purchaser and the Company shall cooperate with each other to fulfill all applicable requirements of the AMF and Euronext Paris to respond to comments from any of the foregoing, to make such amendments and supplements to filings as may be required.

For the purposes of completing the Offer, the Parties also undertake to cooperate and promptly inform each other with respect to issuing all notifications, making any requests and obtaining all necessary approvals and authorizations under all laws and regulations of any relevant jurisdictions. Without limiting the foregoing, each of the Purchaser and the Company shall use its reasonable efforts to, (i) obtain, as soon as practicable after the date of this Agreement, all necessary no-action letters, approvals and authorizations from Authorities; and (ii) take all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Authority; provided that the Company shall take any such action pursuant to this Article 5 as may be reasonably requested by the Purchaser, but only so long as such action is not effective until, or is conditioned upon, the purchase of Company Securities in the Offer. In particular, the Company shall assist the Purchaser to obtain the French Foreign Investment Condition and shall to provide at the reasonable request of the Purchaser all information and information required for the preparation of the filings with the French Ministry of Economy and responses to questions raised by the French Ministry of Economy.

The Company agrees to provide such assistance (and to cause its subsidiaries and its and their respective personnel and advisors to provide such assistance) with the debt financing (the “Debt Financing”) incurred or intended to be incurred pursuant to that certain Commitment Letter, dated as of the date hereof, by and between the Purchaser and Perceptive Advisors LLC (the “Debt Commitment Letter”) as is reasonably requested by the Purchaser. Such assistance shall include, but not be limited to, (i) participation by senior management of the Company in the negotiation, execution and delivery of the agreements, documents and certificates contemplated

by the Debt Financing; (ii) taking such actions as are reasonably requested by Purchaser or its financing sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing; and (iii) using its commercially reasonable efforts to cause its independent auditors to cooperate with the Debt Financing. Notwithstanding anything to the contrary in this Agreement, the Confidentiality Agreement or in any other agreement between the Company and Purchaser (or its Affiliates), the Company agrees that the Purchaser and its Affiliates may share non-public or confidential information regarding the Company and its businesses with the financing sources identified in the Debt Commitment Letter.

Notwithstanding anything to the contrary in this Agreement, in the event of any termination of this Agreement or the failure of the Offer to occur for any other reason, the Company shall have no claim or cause of action against the providers of the Debt Financing or any of their respective former, current or future general or limited partners, equity holders, managers, members, directors, officers, affiliates, employees, representatives or agents as a result of any loss or damage resulting from such termination or failure, and the Company hereby irrevocably waives (for itself and its Affiliates) any such claim or cause of action; provided that the foregoing shall not (and is not intended to) limit any claim or cause of action that the Company may have against the Purchaser hereunder or pursuant to law, including pursuant to Article 3.2.2 hereof.

Each Party shall promptly notify the other Party (i) if and to the extent it becomes aware that any information supplied by it or included in filings with the AMF in respect of the Offer or shall have become false or misleading in any material respect and (ii) upon the receipt of any comments from the AMF or any request from the AMF for amendments or supplements to filings, in each case, in respect of the Offer.

To the extent permitted by Applicable Law, the Company shall give the Purchaser the opportunity to consult with the Company with respect to any litigation commenced prior to, on or after the signing of this Agreement, against the Company or any of its officers or directors by any holder of Company Securities, Stock Options or Warrants relating to this Agreement, the Offer or otherwise, and shall not settle or offer to settle any such litigation without the prior written consent of the Purchaser (which shall not be unreasonably withheld or delayed).

6. TERMINATION

6.1

Automatic Termination

This Agreement shall terminate automatically (de plein droit) on September 30, 2020 or upon the occurrence of any of the following:

(i)

the Offer lapses, is declared non-compliant (non-conforme) by the AMF or is not successful, as a consequence of the failure to satisfy one of the conditions thereto;

(ii)

in the event of an Adverse Recommendation Change as contemplated by Article 4.1.6(ii);

(iii)

the Purchaser does not reach the threshold of two thirds of the share capital and voting rights of the Company on a fully diluted basis upon publication of the results of the Offer in accordance to Article 231-9, II of the AMF General

Regulation (the “Voluntary Minimum Acceptance Threshold”), it being understood that such threshold shall be calculated by dividing (a) the sum of all (x) the Company Shares tendered during the initial Offer acceptance period, (y) the Company Shares issuable upon conversion or exchange of the OCEANEs tendered into the Offer, and (z) the Treasury Shares (numerator), by (b) the sum of the number of all Company Shares in issue upon the closing of the initial Offer acceptance period and the number of all Company Shares issuable upon conversion or exchange of the OCEANEs and Stock Options (denominator);

(iv)

an authority of competent jurisdiction enacts, issues, promulgates, enforces or enters any Applicable Law or Order which (i) has the effect of making the sale and purchase of Company Securities pursuant to the Offer, illegal or otherwise prohibiting, restraining or preventing consummation of the sale and purchase of the Company Securities pursuant to the Offer, and (ii) is final, binding and non-appealable; or

(v)

the Offer is withdrawn by the Purchaser pursuant to Article 232-11 of the AMF General Regulation.

6.2

Termination at option of Purchaser

This Agreement shall terminate, at the option of the Purchaser, if:

(i)

there is a Material Adverse Effect before the filing of the Offer;

(ii)

any of the conditions precedent set forth in Article 2.1 is not satisfied or waived in writing by the Purchaser on or prior to May 31, 2020 (unless the failure to satisfy such conditions precedent was caused by a failure by the Purchaser to perform any obligation hereunder);

(iii)

the Company has not complied with its obligations under Articles 4.1.5 or 4.1.6;

(iv)

a third party files a tender offer for the Company before the Purchaser has filed the Offer and it has been declared compliant by the AMF (irrespective of whether any challenge is or may be made to such compliance decision);

(v)

the Company Board fails to issue by the date provided therefor in Article 4.2.1 its Company Board Reasoned Opinion and/or in the event of an Adverse Recommendation Change;

(vi)

the Company has implemented measures to modify its substance, within the meaning of Article 232-11 of the AMF General Regulation;

(vii)

the representations and warranties under Article 4.1.7 are not accurate in all material respects as of the date hereof or the date of filing of the Offer; or

(viii)

the Purchaser pays the Reverse Break-Up Fee.

6.3

Termination at option of the Company

This Agreement shall terminate, at the option of the Company if:

•

the Purchaser fails, other than because of a failure of the Company to provide information requested in good faith by the Purchaser, to file the Offer within twenty (20) French trading days following the date of the satisfaction or the waiver by the Purchaser in writing of the conditions precedent set forth in Article 2.1 ; or

•

the representations and warranties under Article 3.2.3 are not accurate in all material respects as of the date hereof or the date of filing of the Offer, except for any breach of such representations and warranties which would not reasonably be expected to result in a Purchaser Material Adverse Effect.

6.4

Effect of Termination

Any termination of this Agreement (including any termination of this Agreement in accordance with either of Articles 6.1, 6.2 and 6.3) shall be without prejudice to the provisions of the Confidentiality Agreement and the provisions of Articles 3.2.2 or 4.3 (to the extent that a Reverse Break-Up Fee Trigger Event or an event triggering the payment of a Break-Up Fee has occurred on the same day as, or before, such termination), 6, 8 and 9 of the Agreement, which shall remain in force in accordance with their terms.

7. COMMUNICATION

7.1

Press Releases

The Parties hereby agree that, promptly following execution of this Agreement, they will publish separate press releases, substantially in the form attached hereto as Annex 3.

7.2

Joint Analysts and Media Presentation; Road Shows

At the request of the Purchaser or of the Company, executives from the Company or from the Purchaser will make reasonable efforts to participate in media presentations and road shows sponsored by the other Party to explain the Offer and its rationale.

7.3

Other Communications

Except as may otherwise be required by Applicable Law or expressly provided for in this Agreement, the Parties hereby agree that they will, to the extent reasonably possible, consult with each other before making, and give each other a reasonable opportunity to review and comment upon, any press release or other public statements with respect to this Agreement or the Offer.

8. NOTICES

All notices or communications made pursuant to this Agreement must be addressed by registered letter or overnight courier, return receipt requested, and shall be deemed effective upon receipt, unless they are preceded by email transmission, in which case they shall be deemed effective upon acknowledgment by the recipient of such email transmission. Said notices shall be sent to each Party address referred to above, and, as the case may be, to the following individuals and their corresponding email addresses, unless notified otherwise as indicated above:

•

To the Purchaser:

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, California 92008

United States of America

Phone: (760) 431-9286

Email: pmiles@atecspine.com

Attention: Patrick S. Miles

with a copy to (which shall not constitute notice to the Purchaser):

Latham & Watkins LLP

45 rue Saint-Dominique

75007 Paris, France

Phone: +33.1.40.62.20.79

Email: alexander.crosthwaite@lw.com

Attention: Alexander Crosthwaite

•

To the Company:

EOS Imaging S.A.

10 rue Mercoeur

75011 Paris, France

Phone: +1 651 271 6200 / +33.1.55.25.61.24

Email: mlobinsky@eos-imaging.com / vworrall@eos-imaging.com

Attention: Mike Lobinsky / Valérie Worrall

with a copy to (which shall not constitute notice to the Company):

Gide Loyrette Nouel

15 rue de Laborde

75008 Paris, France

Phone: 33.1.40.75.29.47 / +33.1.40.75.22.28

Email: anne.tolila@gide.com / charles.dereals@gide.com

Attention: Maître Anne Tolila / Maître Charles de Reals

9. MISCELLANEOUS

9.1

Variation

No variation of this Agreement shall be effective unless in writing and executed by or on behalf of each of the Parties.

9.2

Fees and Expenses

Without prejudice to the payment of the Break-Up Fee and the Reverse Break-Up Fee (if due), all costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated herein shall be paid by the Party incurring such expenses.

9.3

Entire Agreement; No Third Party Beneficiaries

This Agreement and the Annexes hereto (and any other agreements entered into on or subsequent to the date hereof) constitute the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof, except as regards the Confidentiality Agreement. This Agreement is not intended to, and does not confer upon any Person other than the Parties hereto any rights or remedies hereunder.

9.4

Binding Effect; Assignment

This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, heirs, permitted assigns and legal representatives. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Notwithstanding the foregoing, the Purchaser shall have the right to have one of its Affiliates succeed to and be substituted for all or part of its rights and obligations under this Agreement and become the Purchaser under this Agreement provided that the Purchaser guarantees and remains jointly liable for the substituted Affiliate’s performance of any and all obligations of the Purchaser under this Agreement.

9.5

Severability

If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions shall continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid or unenforceable provision with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.

9.6

Specific Performance

The Parties hereto agree that irreparable damages would occur in the event that any provision of this Agreement was not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance (exécution forcée) of the terms hereof in accordance with Articles 1221 and 1222 of the French Civil Code, without prejudice to the other remedies provided for in Article 1217 of the French Civil Code.

9.7

Further Assurances

Without affecting in any way the terms of this Agreement, the Purchaser and the Company shall promptly execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any other assurances or documents reasonably requested by the Purchaser and/or the Company, as the case may be, and necessary for the Purchaser and/or the Company, as the case may be, to give effect to this Agreement.

9.8

Governing Law and Jurisdiction

This Agreement shall be exclusively governed by and construed in accordance with the substantive laws of France, without regard to the principles of conflicts of laws thereof.

Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be submitted to the exclusive jurisdiction of the Tribunal de Commerce de Paris.


Alphatec Holdings, Inc.

By:		/s/ Patrick S. Miles
Name: Patrick S. Miles
Title: Chairman and Chief Executive Officer

EOS Imaging S.A.

By:		/s/ Mike Lobinsky
Name: Mike Lobinsky
Title: CEO

ANNEX 1

KEY TERMS AND CONDITIONS OF THE OFFER


Identity of Purchaser:		Alphatec Holdings, Inc. or any other entity directly or indirectly Alphatec Holdings, Inc.

Nature of the Offer:		A cash tender offer on a primary basis, completed on a subsidiary basis by an exchange tender offer

Offer Conditions:

• Minimum Tender Condition:		The Offer will not be consummated if the Voluntary Minimum Acceptance Threshold is not reached.

Competing Offer; Material Change to Company’s Substance:		In accordance with Article 232-11 of the AMF General Regulation, Purchaser may withdraw its Offer (i) within five trading days following the publication by the AMF of the offer timetable of a competing offer; or (ii) with prior authorization from the AMF, if the Offer becomes without purpose (devient sans objet) or if the Company adopts measures which result in a modification of its substance during the Offer or in the event of a positive outcome for the Offer.

Offer Consideration Adjustment:		If the Company completes any direct or indirect acquisition of treasury shares between the date of the filing of the Offer and the settlement date of the Offer, or decides to carry out a distribution of dividends or interim dividends, share premia or reserves, or reimbursement or amortization of all or part of its share capital, and such payment, reimbursement or amortization occurs before the settlement of the Offer or has a reference date that is prior to the date of the settlement of the Offer (a “Distribution”), the Offer Consideration shall be reduced by the net amount per share of the Distribution or Distributions.

Stock Options; Free Shares		As per Annex 2

Warrants (BSA)		Warrants will be excluded from the Offer.

Mandatory Squeeze Out:		The Purchaser has the intention to implement a mandatory squeeze-out for the Company Shares and/or the Company OCEANEs if the conditions set out in Articles 237-1 et seq. of the AMF General Regulation are met at closing of the Offer.

Exhibit 2.2

FORM FOR CERTAIN INVESTORS

TENDER COMMITMENT

BY AND BETWEEN

ALPHATEC HOLDINGS, INC.

AND

[ ● ]

DATED AS OF FEBRUARY 28, 2020

This TENDER COMMITMENT (this “Agreement”) is entered into as of February 28, 2020, by and between Alphatec Holdings, Inc., a corporation organized and existing under the laws of Delaware, represented by Patrick S. Miles, duly empowered for the purpose hereof (“Bidder”), and [ ● ], a [ ● ] (“Shareholder”). Bidder and Shareholder are each sometimes referred to individually as a “Party” and collectively as the “Parties”.

RECITALS

WHEREAS, Shareholder is a shareholder of EOS Imaging S.A., a société anonyme organized and existing under the laws of France, with a share capital of EUR 265,899.46 divided into 26,589,946 ordinary shares with a nominal value of EUR 0.01 each, whose registered office is at 10, rue Mercoeur, 75011 Paris, France, and registered with Paris Trade and Companies Register under No. 349 694 893 (the “Company”);

WHEREAS, the ordinary shares of the Company are currently admitted to trading on the regulated market Euronext Paris under the ISIN code FR0011191766 (the “Company Shares”);

WHEREAS, on the date hereof, Bidder and the Company intend to enter into a tender offer agreement (the “Tender Offer Agreement”) pursuant to which Bidder undertakes, subject to the satisfaction of the conditions and on the terms set forth therein, to file with the Autorité des marchés financiers (the “AMF”) a public tender offer (offre publique) (together with any subsequent offer by Bidder, the “Offer”) to acquire (i) all the Company Shares in consideration for cash (cash branch) and/or Bidder Common Shares (exchange branch) and (ii) all the Company OCEANE in consideration for cash;

WHEREAS, Shareholder currently holds [ ● ] Company Shares representing [ ● ]% of the share capital and voting rights of the Company [, and was awarded , on [ ● ], a total of [ ● ] stock options, which, once vested, would entitle Shareholder to subscribe for [ ● ] new Company Shares at a price of EUR 2.68 per Company Share (the “Stock Options”)];¹

WHEREAS, Shareholder does not currently hold any Company OCEANE;

WHEREAS, Shareholder is fully supportive of the Offer, believes that it will create value for the Company and serve the best interests of the Company and its stakeholders, and wishes to support the Offer and tender all of its Company Shares in the Offer, on the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Defined Terms. Unless otherwise expressly provided in this Agreement, capitalized terms used in this Agreement shall have the following meanings:

“Additional Tendered OCEANE” shall have the meaning set forth in Section 2.1(c).

¹	Note to Form: Applicable to certain Shareholders only.

“Additional Tendered Securities” shall mean the Additional Tendered Shares and the Additional Tendered OCEANE.

“Additional Tendered Shares” shall have the meaning set forth in Section 2.1(b)

“Affiliate” shall mean, with reference to a specified Person, a Person that, directly or indirectly, controls, is controlled by, or is under common control with, the specified Person. The term “control” as used in this definition (including its correlative meanings “controlled by” and “under common control with”) shall have the meaning ascribed thereto in Article L. 233-3 of the French Commercial Code;

“Agreement” shall have the meaning set forth in the first paragraph of this Agreement;

“AMF” shall have the meaning set forth in the Recitals of this Agreement;

“AMF General Regulation” shall mean the General Regulation (Réglement général) of the AMF;

“Bidder” shall have the meaning set forth in the first paragraph of this Agreement;

“Bidder Common Share” shall mean the common stock, par value USD 0.0001 of Bidder;

“Committed Shareholders” means [ ● ] and Shareholder and any other holders of Company Securities who enter into a tender commitment agreement with Bidder in respect of the Offer on the date hereof or at any time prior to the filing of the Offer.

“Company” shall have the meaning set forth in the Recitals to this Agreement;

“Company OCEANEs” shall mean the 4,344,651 bonds issued by the Company on May 31, 2018 at a nominal value per bond of EUR 6.80, for an aggregate principal amount of EUR 29,543,626.80, which (x) bear interest at an annual rate of 6%, (y) will be due on May 31, 2023 and (z) are convertible into new Company Shares or exchangeable for existing Company Shares;

“Company Securities” shall mean the Company Shares and the Company OCEANEs;

“Company Shares” shall have the meaning set forth in the Recitals to this Agreement;

“Encumbrances” shall mean any security interests, liens, pledges, claims, options, charges, proxies, voting trusts or agreements, understandings or arrangement, rights of first refusal, co-sale rights, or any other encumbrances of any kind or nature;

“Initial Lock-Up Period” shall have the meaning set forth in Section 5.1(a);

“Nasdaq” shall mean the Nasdaq Stock Market;

“Nasdaq Limit” shall mean a number of Bidder Common Shares equal to (i) 12,583,566, minus (ii) the total number of Bidder Common Shares or securities exercisable or convertible into Bidder Common Shares that are aggregated, in accordance with the rules and regulations of Nasdaq, with the Bidder Common Shares to be issued to holders of Company Securities hereunder, provided that the Nasdaq Limit shall not be lower than 10,500,000;

“Offer” shall have the meaning set forth in the Recitals to this Agreement;

“Offer Price” shall mean the price to be paid by Bidder to holders of Company Securities tendering into the Offer, which price shall be equal to:

(i)

EUR 2.80 for each Company Share tendered for cash;

(ii)

0.50 Bidder Common Share for each Company Share tendered for Bidder Common Shares;

(iii)

EUR 7.01 for each Company OCEANE tendered for cash;

provided, however, that if the holders of Company Shares tender for Bidder Common Shares (i.e., the exchange branch of the Offer) a number of Company Shares resulting in Bidder being expected to deliver, based on the exchange ratio set forth above, a number of Bidder Common Shares greater than the Nasdaq Limit, then Bidder shall only issue a number of Bidder Common Shares equal to the Nasdaq Limit, which will be allocated proportionately among such holders who tendered for Bidder Common Shares and the other Company Shares held by them will be tendered into the cash branch of the Offer and therefore purchased by Bidder at the cash price offered per Company Share.

“Order” shall mean any judgment, injunction, order, award, ruling, writ, decree or other restriction of any Authority having competent jurisdiction;

“Party” shall have the meaning set forth in the first paragraph of this Agreement;

“Person” shall mean an individual, a corporation, a partnership, a limited liability company or partnership, a trust, an unincorporated organization, a government or any department or agency thereof, or any other juridical entity;

“Shareholder” shall have the meaning set forth in the first paragraph of this Agreement;

[“Stock Options” shall have the meaning set forth in the Recitals to this Agreement;]²

“Subsequent Lock-Up Period” shall have the meaning set forth in Section 5.1(b);

“Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (other than Bidder) relating to, or that could reasonably be expected to lead to any direct or indirect acquisition, in one transaction or a series of transactions, including, any merger, consolidation, tender offer, exchange offer, stock acquisition, asset acquisition, binding share exchange, business combination, recapitalization, liquidation, dissolution, joint venture or similar transaction, of (A) assets or businesses that constitute or represent 15% or more of the total revenue, operating income, EBITDA or assets of the Company and its Affiliates, taken as a whole, for the fiscal year ended December 31, 2019, or (B) 15% or more of the outstanding shares of any class of capital stock of, or other equity or voting interests in, the Company or any class of capital stock of, or other equity or voting interests in, any of the Company’s Affiliates directly or indirectly holding, individually or taken together, the assets or businesses referred to in (A) above, in each case other than the Offer;

“Tender Offer Agreement” shall have the meaning set forth in the Recitals of this Agreement;

“Tendered Shares” shall mean (i) the [ ● ] Company Shares which Shareholder holds on the date hereof and (ii) any other Company Shares attributable to or derived from such Company Shares.

“Third Party” shall mean a Person who is not an Affiliate of Bidder;

“Third Party Offer” shall have the meaning set forth in Section 2.2; and

“Transfer” shall mean, with respect to any Company Securities, (i) when used as a verb, to sell, hypothecate, give, bequeath, transfer, exchange, assign, pledge or in any other way whatsoever encumber or dispose of such Company Securities or any participation or interest therein (including by way of securities lending, equity swap or other derivative transactions), whether directly or indirectly (including by way of the Transfer of such Company Securities to any subsidiary of any Person that is subsequently transferred in whole or in part to any other Person), or to enter into any contract, option, or other arrangement, commitment or understanding to do any of the foregoing actions, and (ii) when used as a noun, any indirect or direct sale, hypothecation, gift, bequest, transfer, exchange, assignment, pledge or any other encumbrance or disposal whatsoever of such Company Securities or any participation or interest therein or any contract, option, or other arrangement, commitment or understanding to effect any of the foregoing.

²	Note to Form: Applicable to certain Shareholders only.

to any particular provision of this Agreement, and Article, Section, and Annex references are to the Articles, Sections and Annexes of or to this Agreement unless otherwise expressly specified; (iii) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation” unless otherwise expressly specified; (iv) the word “or” shall not be exclusive; and (v) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise expressly specified.

ARTICLE II

COMMITMENT TO TENDER

2.1 Agreement to Tender. Subject to and in consideration of Bidder making the Offer at the Offer Price, Shareholder hereby undertakes, subject to the provisions of Section 2.2 below, that:

(a) being the beneficial and registered holder of the Tendered Shares and having all power and authority to, and, until the Tendered Shares are transferred to Bidder, continuing to have all relevant power and authority to, accept the Offer in respect of the Tendered Shares, it shall, within five (5) trading days of the opening of the Offer (ouverture de l’offre), tender all of the Tendered Shares into the Offer in consideration for Bidder Common Shares by giving irrevocable instructions to the institution holding its securities account to tender the Tendered Shares into the exchange branch of the Offer immediately, and shall complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder);

(b) to the extent it comes to hold Company Shares other than the Tendered Shares (“Additional Tendered Shares”) at any time between the date hereof and the closing date (date de clôture) of the Offer (including the closing date of the reopened Offer if applicable), [including (but not limited to) any Company Shares that Shareholder may come to hold over such period of time as a result of its exercising the Stock Options,]³ it shall, (i) within two (2) trading days of acquiring such Additional Tendered Shares, notify Bidder of such acquisition and (ii) within five (5) trading days of the opening of the Offer (if it holds such Company Shares prior to the opening of the Offer) or as soon as possible and in any event prior to the closing date of the Offer (if it comes to hold such Company Securities after the opening of the Offer), tender all of the Additional Tendered Shares into the Offer in consideration for Bidder Common Shares by giving irrevocable instructions to the institution holding its securities account to tender the Additional Tendered Shares into the exchange branch of the Offer, and shall complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Additional Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder);

(c) to the extent it comes to hold Company OCEANE (“Additional Tendered OCEANE”) at any time between the date hereof and the closing date (date de clôture) of the Offer (including the closing date of the reopened Offer if applicable), it shall, (i) within two (2) trading days of acquiring such Additional Tendered OCEANE, notify Bidder of such acquisition, and, (ii) within five (5) trading days of the later of (x) the opening of the Offer and (y) the acquisition of such Additional Tendered OCEANE, but in any event prior to the closing date of the Offer,

³	Note to Form: Applicable to certain Shareholders only.

tender all of the Additional Tendered OCEANE into the Offer for Company OCEANE in consideration for cash by giving irrevocable instructions to the institution holding its securities account to tender the Additional Tendered OCEANE into the Offer for the Company OCEANE immediately, and shall promptly complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Additional Tendered OCEANE to Bidder (which tender into the Offer for the Company OCEANE shall be promptly confirmed in writing to Bidder);

(d) it shall not, prior to the closing or lapsing of the Offer or the withdrawal of the Offer (whichever is the earlier), cause or permit any Transfer (save to Bidder or any of its Affiliates), or in any way whatsoever discuss, negotiate or make any offer regarding any Transfer of any of the Tendered Shares or Additional Tendered Securities, or accept any offer in respect of, all or any of the Tendered Shares or Additional Tendered Securities or enter into any agreement or arrangement with any other person, whether conditionally or unconditionally, to do all or any of the acts referred to in this paragraph;

(e) the Tendered Shares and, as the case may be, the Additional Tendered Securities shall be acquired pursuant to the Offer free from all Encumbrances and together with all rights attached thereto including all rights to dividends or other distributions hereafter declared, paid or made; and without limiting the foregoing Shareholder shall not deposit, or permit the deposit of, any Tendered Shares or Additional Tendered Securities in a voting trust, grant any proxy or power of attorney in respect of the Tendered Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Tendered Shares or Additional Tendered Securities;

(f) it shall not (in its capacity as a shareholder of the Company or otherwise), prior to the closing or lapsing of the Offer or the withdrawal of the Offer (whichever is the earlier), whether directly or indirectly, alone or in concert with any third party, (i) take any step to frustrate, impede, prevent or delay the Offer becoming successful, or (ii) solicit, encourage, enter into, continue, or otherwise participate in any way whatsoever in any discussions or negotiations regarding a Takeover Proposal; and it shall immediately inform Bidder of any approach by a third party which may reasonably lead to a Takeover Proposal.

2.2 Third Party Offer. The undertakings of Shareholder pursuant to Section 2.1 above shall be void in the event that, other than as a result of a breach of Section 2.1(f) above, a Third Party files a competing public offer at a price higher than the Offer (offre concurrente), and such competing offer (the “Third Party Offer”) is declared compliant (conforme) by the AMF; provided, however, that all of the undertakings of Shareholder under Section 2.1 above will immediately apply with full force, mutatis mutandis, in the event that Bidder or any Affiliate of Bidder makes an offer (surenchère) at a price higher by at least 2% or representing a significant improvement (amélioration significative) compared to the Third Party Offer and such offer of Bidder or any Affiliate of Bidder is declared compliant (conforme) by the AMF, in which case Shareholder shall comply with Section 2.1, and tender the Tendered Shares and any Additional Tendered Securities to such offer by Bidder or the applicable Affiliate of Bidder, as if the undertakings of Shareholder had never been void.

2.3 Cash Branch of the Offer. Shareholder expressly undertakes not to voluntarily tender any Company Shares into the cash branch of the Offer (including for the avoidance of doubt the cash branch of the reopened Offer if applicable). Shareholder however acknowledges that (i) it will be subject to the reduction mechanism applicable to all holders of Company Shares tendering into the exchange branch of the Offer, as described in the definition of “Offer Price”, to the effect that if the holders of Company Shares tender for Bidder Common Shares a number of Company Shares resulting in Bidder being expected to deliver a number of Bidder Common Shares greater than the Nasdaq Limit, then a portion of the Tendered Shares and, as applicable, the Additional Tendered Shares, will be automatically settled for cash in the cash branch of the Offer for Company Shares at the price of EUR 2.8 per Company Share and (ii) to the extent the application of the 0.50 exchange ratio of the exchange branch of the Offer does not result in Shareholder receiving a whole number of Bidder Common Shares in consideration for its Tendered Shares and, as applicable, its Additional Tendered Shares, then the Tendered Shares and, as applicable, the Additional Tendered Shares in excess of the number entitling Shareholder to a whole number of Bidder Common Shares in the exchange branch of the Offer will be automatically settled for cash in the cash branch of the Offer for Company Shares at the price of EUR 2.8 per Company Share.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder represents and warrants to Bidder as of the date hereof and as of the initial date of settlement of the Offer, as follows:

3.1 Organization. Shareholder is a [ ● ] duly organized and validly existing under the laws of its jurisdiction of [ ● ].

3.2 Authorization. Shareholder has all necessary power and authority to make and execute this Agreement and to perform its obligations under this Agreement. Shareholder has full authority to execute and deliver this Agreement and to consummate the transactions contemplated herein.

3.3 Binding Agreement. This Agreement has been duly executed and delivered by Shareholder and, assuming due and valid authorization, execution and delivery thereof by Bidder, this Agreement is a valid and binding obligation of Shareholder enforceable against Shareholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency and other similar laws of general application affecting enforcement of creditors’ rights generally.

3.4 Consents and Approvals; No Violations. None of the execution, delivery or performance of this Agreement by Shareholder, the consummation by Shareholder of the transactions contemplated herein or compliance by Shareholder with any of the provisions hereof will (i) require any filing with, or permit, authorization, consent or approval of any Authority or other Person; (ii) require any consent, approval or notice under, or result in a violation or breach of, or constitute (with or without due notice or the passage of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any agreement to which Shareholder is a party; (iii) violate any law or regulation applicable to Shareholder or the Company or any of their respective properties or assets; or (iv) create any Encumbrance upon any of the Tendered Shares.

3.5 Ownership of Tendered Shares. Shareholder is the sole record and beneficial owner of and has full title (pleine propriété) to the Tendered Shares, with

the full legal right, authority and power to sell and transfer any such Tendered Shares to Bidder in accordance with the terms of this Agreement. All of the Tendered Shares are duly and validly authorized, issued, fully paid for and non-assessable and were acquired by Shareholder in accordance with applicable laws and regulations. The Tendered Shares are, and at all times up to the settlement and delivery of the Offer, the Tendered Shares will be, owned by Shareholder, free and clear of any rights of Encumbrances. Shareholder has, and at all times up to the settlement and delivery of the Offer, will have, the full power to vote or direct the voting of the Tendered Shares. Shareholder does not own on the date hereof any Additional Tendered Securities or other securities or rights [(other than the Stock Options)]⁴ of any nature convertible into, or exchangeable or exercisable for, shares of capital stock of the Company. Shareholder is not a party to, and the Tendered Shares are not subject to or bound in any manner by, any contract or agreement of any nature relating to the Tendered Shares, including any voting agreement, option agreement, purchase agreement, shareholders’ agreement, partnership agreement, voting trust or power of attorney.

3.6 Litigation. There is no suit, action, proceeding or arbitration pending against or threatened against or affecting Shareholder or any of his Affiliates by any third Person nor is there any Order outstanding against Shareholder or any of his Affiliates that (i) relates in any way to Shareholder’s ownership of the Tendered Shares, (ii) seeks to restrain or enjoin the consummation of any of the transactions contemplated by this Agreement or (iii) could reasonably be expected to negatively impair the ability of Shareholder to consummate any of the transactions contemplated by this Agreement.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BIDDER

Bidder represents and warrants to Shareholder as of the date hereof and as of the initial date of settlement of the Offer, as follows:

4.1 Organization. Bidder is a corporation duly organized and validly existing under the laws of the State of Delaware.

4.2 Authorization. Bidder has all necessary corporate power and authority to make and execute this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated herein. Bidder’s authorized signatory has full authority to execute and deliver this Agreement.

4.3 Binding Agreement. This Agreement has been duly executed and delivered by Bidder and, assuming due and valid authorization, execution and delivery thereof by Shareholder, this Agreement is a valid and binding obligation of Bidder enforceable against Bidder in accordance with its terms, except as limited by applicable bankruptcy, insolvency and other similar laws of general application affecting enforcement of creditors’ rights generally.

⁴	Note to Form: Applicable to certain Shareholders only.

of the Securities Act) only to the same extent and proportion the securities that were tendered or exchanged in the Offer were restricted securities. The previous sentence shall not affect the obligation of Shareholder to comply with the lock-up provisions set forth in Section 5.1 hereof.

4.5 Critical Technologies; TID U.S. Business. The Bidder has conducted an assessment and determined that none of the Bidder and any of its subsidiaries and Affiliates (a) produces, designs, tests, manufactures, fabricates, or develops “critical technologies” as that term is defined in 31 C.F.R. § 800.215; (b) performs the functions as set forth in column 2 of Appendix A to 31 C.F.R. part 800 with respect to covered investment critical infrastructure; or (c) maintains or collects, directly or indirectly, “sensitive personal data” as that term is defined in 31 C.F.R. § 800.241; and that none of the Bidder and any of its subsidiaries and Affiliates is a “TID U.S. business” within the meaning of 31 C.F.R. § 80.248.

ARTICLE V

CERTAIN COVENANTS

5.1 Lock-Up.

(a) During the three-month period following the date of the initial settlement and delivery of the Offer (the “Initial Lock-Up Period”), Shareholder hereby undertakes not to Transfer any of the Bidder Common Shares received by it in consideration for the Tendered Shares or Additional Tendered Shares through the exchange branch of the Offer.

(b) During the three-month period following the expiry of the Initial Lock-Up Period (the “Subsequent Lock-Up Period”), Shareholder hereby undertakes not to Transfer more than 25% the Bidder Common Shares received by it in consideration for the Tendered Shares or Additional Tendered Shares through the exchange branch of the Offer.

5.2 Resignation of Shareholder from the Board of Directors of the Company.²

[Version #1: Promptly after the initial settlement and delivery of the Offer (but not earlier unless agreed by Bidder), and in any event immediately upon receipt of a notification from Bidder to this effect after the initial settlement and delivery of the Offer, Shareholder shall resign from his/her position as member of the Board of Directors of the Company and, if requested vote for the cooptation of the replacements indicated by Bidder.]

²	Note to Form: Section 5.2 will be tailored (or omitted) from this form depending on the particular Shareholder.

[Version #2: If requested by the Bidder after the initial settlement and delivery of the Offer, Shareholder shall resign from her position as member of the Board of Directors of the Company and, if requested vote for the cooptation of the replacements indicated by Bidder.]

5.3 Most Favored Committed Shareholder. In the event that the tender commitment agreement entered with a Committed Shareholder other than Shareholder provides for (i) a higher Offer Price, (ii) a right for such Committed Shareholder to tender all or part of its Company Shares into the cash branch of the Offer (other than as a result of the reduction mechanism described in the definition of “Offer Price”) and/or (iii) a shorter Initial Lock-Up Period and/or a shorter Subsequent Lock-Up Period and/or a lesser percentage of Bidder Common Shares subject to the Subsequent Lock-Up Period than provided for in Section 5.1, then Bidder shall promptly notify Shareholder and allow Shareholder to benefit from the same Offer Price and/or right(s).

5.4 Committed Shareholders. Promptly following the conclusion of a tender commitment agreement in respect of the Offer by a Committed Shareholder whose name is not explicitly listed in the definition of “Committed Shareholder”, Bidder shall communicate the identity of such Committed Shareholder to Shareholder.

ARTICLE VI

MISCELLANEOUS

6.1 Termination. Either Party shall be entitled to terminate this Agreement if (i) the Company and Bidder announce that they have terminated the Tender Offer Agreement, (ii) the Offer is withdrawn by Bidder pursuant to Article 232-11 of the AMF General Regulation or (iii) the Offer is not declared successful by the AMF as a result of the conditions thereto failing to be met or waived. Any termination of this Agreement shall be without prejudice to the provisions of Section 2.2 and this Article VI which shall remain in force in accordance with their terms.

6.2 Fees and Expenses; Taxes. All costs, expenses and taxes incurred in connection with this Agreement and the consummation of the transactions contemplated herein shall be paid by the Party incurring such costs, expenses or taxes.

6.3 Consent to References. Shareholder agrees that Bidder and the Company shall be entitled to include in filings under the AMF General Regulation and any other rules and regulations of any competent Authorities (including US securities laws), information to the effect that Shareholder has agreed to tender the Tendered Shares and, as the case may be, Additional Tendered Securities, to Bidder and this Agreement.

6.4 Notices. All notices or communications made pursuant to this Agreement must be addressed by registered letter or overnight courier, return receipt

requested, and shall be deemed effective upon receipt, unless they are preceded by email transmission, in which case they shall be deemed effective upon acknowledgment by the recipient of such email transmission. Said notices shall be sent to each Party address referred to above, and, as the case may be, to the following individuals and their corresponding email addresses, unless notified otherwise as indicated above:

(i)

if to Bidder, to:

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, California 92008

Phone: (760) 431-9286

Email: pmiles@atecspine.com

Attention: Patrick S. Miles

With a copy to (which shall not constitute notice to Bidder):

Latham & Watkins LLP

45 rue Saint-Dominique

75007 Paris, France

Phone: +33.1.40.62.20.79

Email: alexander.crosthwaite@lw.com

Attention: Alexander Crosthwaite

(ii)

if to Shareholder, to:

[ ● ]

[Address]

Phone: [ ● ]

Email: [ ● ]

Attention: [ ● ]

6.5 No Third Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the Parties hereto any rights or remedies hereunder.

6.6 Specific Performance. The Parties hereto agree that irreparable damages would occur in the event that any provision of this Agreement was not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance (exécution forcée) of the terms hereof in accordance with Articles 1221 and 1222 of the French Civil Code, without prejudice to the other remedies provided for in Article 1217 of the French Civil Code.

6.7 Binding Effect; Assignment. This Agreement is entered into intuitu personae; and accordingly neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Notwithstanding the foregoing, Bidder shall have the right to have one of its Affiliates succeed to and be substituted for all or part of its rights and obligations under this Agreement and become the “Bidder” under this Agreement, including any Affiliate that files a tender offer for the Company at a price at least equal to the Offer Price. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, heirs, permitted assigns and legal representatives.

6.8 Compliance. Each Party represents that, to its knowledge, it has conducted its business in all material respects in accordance with applicable anti-corruption and trade sanction laws and regulations.

6.9 Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the substantive laws of France, without regard to the principles of conflicts of laws thereof.

6.10 Jurisdiction. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be submitted to the exclusive jurisdiction of the Paris Commercial Court.

IN WITNESS WHEREOF this Agreement has been duly executed by each of the Parties hereto as of the date first written above.


[ ● ]

By:
Name:
Title:

Alphatec Holdings, Inc.

By:
Name:		Patrick S. Miles
Title:		Chairman and Chief Executive Officer

FORM FOR CERTAIN OTHER INVESTORS

TENDER COMMITMENT

BY AND BETWEEN

ALPHATEC HOLDINGS, INC.

AND

[ ● ]

DATED AS OF FEBRUARY 28, 2020

This TENDER COMMITMENT (this “Agreement”) is entered into as of February 27, 2020, by and between Alphatec Holdings, Inc., a corporation organized and existing under the laws of Delaware, represented by Patrick S. Miles, duly empowered for the purpose hereof (“Bidder”), and [ ● ], a [ ● ] (“Shareholder”). Bidder and Shareholder are each sometimes referred to individually as a “Party” and collectively as the “Parties”.

RECITALS

WHEREAS, the ordinary shares of the Company are currently admitted to trading on the regulated market Euronext Paris under the ISIN code FR0011191766 (the “Company Shares”);

WHEREAS, Shareholder currently holds [ ● ] Company Shares representing approximately [ ● ]% of the share capital of the Company;

WHEREAS, Shareholder does not currently hold any Company OCEANE;

NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Defined Terms. Unless otherwise expressly provided in this Agreement, capitalized terms used in this Agreement shall have the following meanings:

“Additional Tendered OCEANE” shall have the meaning set forth in Section 2.1;

“Additional Tendered Securities” shall mean the Additional Tendered Shares and the Additional Tendered OCEANE;

“Additional Tendered Shares” shall have the meaning set forth in Section 2.1;

“Agreement” shall have the meaning set forth in the first paragraph of this Agreement;

“AMF” shall have the meaning set forth in the Recitals of this Agreement;

“AMF General Regulation” shall mean the General Regulation (Réglement général) of the AMF;

“Bidder” shall have the meaning set forth in the first paragraph of this Agreement;

“Bidder Common Share” shall mean the common stock, par value USD 0.0001 of Bidder;

“Call Purchase” shall have the meaning set forth in Section 2.5(b);

“Called Shares” shall have the meaning set forth in Section 2.5(b);

“Chinese Regulatory Clearance” shall mean a decision (including a declaration of lack of authority), whether or not subject to any condition, by each relevant competent Regulatory Authority authorizing, confirming or otherwise not objecting to the tender by Shareholder of the Tendered Shares and any Additional Tendered Securities as contemplated under this Agreement, or the expiry of the applicable waiting period where such an expiry is deemed to be an authorization, confirmation or non-objection, as applicable;

“Company” shall have the meaning set forth in the Recitals to this Agreement;

“Company Securities” shall mean the Company Shares and the Company OCEANEs;

“Company Shares” shall have the meaning set forth in the Recitals to this Agreement;

“Initial Lock-Up Period” shall have the meaning set forth in Section 5.1(a);

“Nasdaq” shall mean the Nasdaq Stock Market;

“Offer” shall have the meaning set forth in the Recitals to this Agreement;

“Offer Price” shall mean the price to be paid by Bidder to holders of Company Securities tendering into the Offer, which price shall be equal to:

(i)

EUR 2.80 for each Company Share tendered for cash;

(ii)

0.50 Bidder Common Share for each Company Share tendered for Bidder Common Shares;

(iii)

EUR 7.01 for each Company OCEANE tendered for cash;

cash branch of the Offer and therefore purchased by Bidder at the cash price offered per Company Share;

“Order” shall mean any judgment, injunction, order, award, ruling, writ, decree or other restriction of any Authority having competent jurisdiction;

“Party” shall have the meaning set forth in the first paragraph of this Agreement;

“Private Exchange” shall have the meaning set forth in Section 2.5(a);

“Regulatory Authorities” means the Shanghai Municipal Development and Reform Commission and the Shanghai Municipal Commission of Commerce;

“Shareholder” shall have the meaning set forth in the first paragraph of this Agreement;

“Subsequent Lock-Up Period” shall have the meaning set forth in Section 5.1(b);

“Tender Offer Agreement” shall have the meaning set forth in the Recitals of this Agreement;

“Tendered Shares” shall mean (i) the [ ● ] Company Shares which Shareholder holds on the date hereof and (ii) any other Company Shares attributable to or derived from such Company Shares;

“Third Party” shall mean a Person who is not an Affiliate of Bidder;

“Third Party Offer” shall have the meaning set forth in Section 2.3; and

“Transfer” shall mean, with respect to any Company Securities, (i) when used as a verb, to sell, hypothecate, give, bequeath, transfer, exchange, assign,

pledge or in any other way whatsoever encumber or dispose of such Company Securities or any participation or interest therein (including by way of securities lending, equity swap or other derivative transactions), whether directly or indirectly (including by way of the Transfer of such Company Securities to any subsidiary of any Person that is subsequently transferred in whole or in part to any other Person), or to enter into any contract, option, or other arrangement, commitment or understanding to do any of the foregoing actions, and (ii) when used as a noun, any indirect or direct sale, hypothecation, gift, bequest, transfer, exchange, assignment, pledge or any other encumbrance or disposal whatsoever of such Company Securities or any participation or interest therein or any contract, option, or other arrangement, commitment or understanding to effect any of the foregoing.

1.2 Construction. For the purposes of this Agreement: (i) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa as the context requires; (ii) the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise expressly stated, be construed to refer to this Agreement as a whole (including any Annex hereto) and not to any particular provision of this Agreement, and Article, Section, and Annex references are to the Articles, Sections and Annexes of or to this Agreement unless otherwise expressly specified; (iii) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation” unless otherwise expressly specified; (iv) the word “or” shall not be exclusive; and (v) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise expressly specified.

ARTICLE II

COMMITMENTS TO TENDER, EXCHANGE OR SELL

2.1 Additional Tendered Shares. To the extent Shareholder comes to hold Company Shares other than the Tendered Shares (“Additional Tendered Shares”) or Company OCEANE (“Additional Tendered OCEANE”) at any time between the date hereof and the closing date (date de clôture) of the Offer (including the closing date of the reopened Offer if applicable), it shall within two (2) trading days of acquiring such Additional Tendered Securities, notify Bidder of such acquisition.

2.2 Agreement to Tender. Subject to and in consideration of Bidder making the Offer at the Offer Price, Shareholder hereby undertakes, subject to the provisions of Section 2.3 below, that:

(a) if Shareholder obtains the Chinese Regulatory Clearance prior to the date of opening of the Offer (date d’ouverture):

shall complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder); and

(ii) to the extent it comes to hold Additional Tendered Shares at any time between the date hereof and the closing date of the Offer (including the closing date of the reopened Offer if applicable), it shall, within five (5) trading days of the later of (x) the opening of the Offer and (y) the acquisition of such Additional Tendered Shares, and in any event prior to the closing of Offer, tender all of the Additional Tendered Shares into the Offer in consideration for Bidder Common Shares by giving irrevocable instructions to the institution holding its securities account to tender the Additional Tendered Shares into the exchange branch of the Offer, and shall complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Additional Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder);

(b) if Shareholder obtains the Chinese Regulatory Clearance between the date of opening of the Offer (included) and the date of closing of the Offer (included) or the closing date of the reopened Offer if applicable:

(i) being the beneficial and registered holder of the Tendered Shares and having all power and authority to, and, until the Tendered Shares are transferred to Bidder, continuing to have all relevant power and authority to, accept the Offer in respect of the Tendered Shares, it shall, within five (5) trading days of the receipt of the Chinese Regulatory Clearance and no later than on the Offer closing date, tender all of the Tendered Shares into the Offer in consideration for Bidder Common Shares by giving irrevocable instructions to the institution holding its securities account to tender the Tendered Shares into the exchange branch of the Offer immediately, and shall complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder); and

(ii) to the extent it comes to hold Additional Tendered Shares at any time between the date hereof and the closing date of the Offer (including the closing date of the reopened Offer if applicable), it shall, within five (5) trading days of the later of (x) the receipt of the Chinese Regulatory Clearance and (y) the acquisition of such Additional Tendered Shares, and in any event prior to the closing of Offer, tender all of the Additional Tendered Shares into the Offer in consideration for Bidder Common Shares by giving irrevocable instructions to the institution holding its securities account to tender the Additional Tendered Shares into the exchange branch of the Offer, and shall complete, execute and deliver all other documents and take any

other action which Bidder may reasonably require to complete the transfer of the Additional Tendered Shares to Bidder (which tender into the exchange branch of the Offer shall be promptly confirmed in writing to Bidder);

(c) to the extent it comes to hold Additional Tendered OCEANE at any time between the date hereof and the closing date of the Offer (including the closing date of the reopened Offer if applicable), it shall, within five (5) trading days of the later of (x) the opening of the Offer and (y) the acquisition of such Additional Tendered OCEANE, and in any event prior to the closing of Offer, tender all of the Additional Tendered OCEANE into the Offer for Company OCEANE in consideration for cash by giving irrevocable instructions to the institution holding its securities account to tender the Additional Tendered OCEANE into the Offer for the Company OCEANE immediately, and shall promptly complete, execute and deliver all other documents and take any other action which Bidder may reasonably require to complete the transfer of the Additional Tendered OCEANE to Bidder (which tender into the Offer for the Company OCEANE shall be promptly confirmed in writing to Bidder);

2.3 Third Party Offer. The undertakings of Shareholder pursuant to Section 2.2 above shall be void in the event that, other than as a result of a breach of Section 2.2(f) above, a Third Party files a competing public offer at a price higher than the Offer (offre concurrente), and such competing offer (the “Third Party Offer”) is

declared compliant (conforme) by the AMF; provided, however, that all of the undertakings of Shareholder under Section 2.2 above will immediately apply with full force, mutatis mutandis, in the event that Bidder or any Affiliate of Bidder makes an offer (surenchère) at a price higher by at least 2% or representing a significant improvement (amélioration significative) compared to the Third Party Offer and such offer of Bidder or any Affiliate of Bidder is declared compliant (conforme) by the AMF, in which case Shareholder shall comply with Section 2.2 and tender the Tendered Shares and any Additional Tendered Securities to such offer by Bidder or the applicable Affiliate of Bidder, as if the undertakings of Shareholder had never been void.

2.4 Cash Branch of the Offer. Shareholder expressly undertakes not to voluntarily tender any Company Shares into the cash branch of the Offer (including for the avoidance of doubt the cash branch of the reopened Offer if applicable). Shareholder however acknowledges that (i) it will be subject to the reduction mechanism applicable to all holders of Company Shares tendering into the exchange branch of the Offer, as described in the definition of “Offer Price”, to the effect that if the holders of Company Shares tender for Bidder Common Shares a number of Company Shares resulting in Bidder being expected to deliver a number of Bidder Common Shares greater than the Nasdaq Limit, then a portion of the Tendered Shares and, as applicable, the Additional Tendered Shares, will be automatically settled for cash in the cash branch of the Offer for Company Shares at the price of EUR 2.8 per Company Share and (ii) to the extent the application of the 0.50 exchange ratio of the exchange branch of the Offer does not result in Shareholder receiving a whole number of Bidder Common Shares in consideration for its Tendered Shares and, as applicable, its Additional Tendered Shares then the Tendered Shares and, as applicable, the Additional Tendered Shares in excess of the number entitling Shareholder to a whole number of Bidder Common Shares in the exchange branch of the Offer will be automatically settled for cash in the cash branch of the Offer for Company Shares at the price of EUR 2.8 per Company Share.

2.5 Post Offer Agreements. If the Chinese Regulatory Clearance is not received or rejected by competent Regulatory Authority prior to the closing of the Offer (or the closing of the reopened Offer if applicable) and provided that the Offer is declared successful by the AMF, the provisions of this Section 2.5 shall apply.

(a) If Shareholder obtains the Chinese Regulatory Clearance prior to the eighteen (18) month anniversary of the closing of the Offer (or the closing of the reopened Offer if applicable), then, as promptly as practicable and in any event no later than 15 (fifteen) days after the receipt of the Chinese Regulatory Clearance, Shareholder shall exchange the Tendered Shares and any Additional Tendered Shares for Bidder Common Shares using the same exchange ratio of 0.50 Bidder Common Share for each Tendered Share or Additional Tendered Share as was applied in the exchange branch of the Offer (the “Private Exchange”).

(b) If Shareholder does not obtain the Chinese Regulatory Clearance prior to the eighteen (18) month anniversary of the closing of the Offer (or the closing of the reopened Offer if applicable), then, on such eighteen (18) month anniversary, Bidder shall purchase and Shareholder shall sell, all of the Tendered Shares and Additional Tendered Shares (the “Called Shares”) for a price equal to EUR 2.60 per Called Share (the “Call Purchase”), and the Parties shall execute all instruments and documents and otherwise take all actions as necessary or required

under applicable laws to transfer the Called Shares from Shareholder to Bidder and pay the purchase price.

(c) Until the later of the date on which Shareholder ceases to hold any Company Shares and the date of the Call Purchase, if any, Shareholder shall abstain from Transferring any Company Shares to a person other than Bidder.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder represents and warrants to Bidder as of the date hereof and as of the initial date of settlement of the Offer, as follows:

3.1 Organization. Shareholder is a [ ● ] duly organized and validly existing under the laws of [ ● ].

3.4 Consents and Approvals; No Violations. None of the execution, delivery or performance of this Agreement by Shareholder, the consummation by Shareholder of the transactions contemplated herein or compliance by Shareholder with any of the provisions hereof will (i) require any filing with, or permit, authorization, consent or approval of any Authority or other Person (other than the Chinese Regulatory Clearance); (ii) require any consent, approval or notice under, or result in a violation or breach of, or constitute (with or without due notice or the passage of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any agreement to which Shareholder is a party; (iii) violate any law or regulation applicable to Shareholder or the Company or any of their respective properties or assets; or (iv) create any Encumbrance upon any of the Tendered Shares.

3.5 Ownership of Tendered Shares. Shareholder is the sole record and beneficial owner of and has full title (pleine propriété) to the Tendered Shares, with the full legal right, authority and power to sell and transfer any such Tendered Shares to Bidder in accordance with the terms of this Agreement. All of the Tendered Shares are duly and validly authorized, issued, fully paid for and non-assessable and were acquired by Shareholder in accordance with applicable laws and regulations. The Tendered Shares are, and at all times up to the settlement and delivery of the Offer (or,

as applicable, the Transfer of the Tendered Shares to Bidder in accordance with Section 2.5), the Tendered Shares will be, owned by Shareholder, free and clear of any rights of Encumbrances. Shareholder has, and at all times up to the settlement and delivery of the Offer, will have, the full power to vote or direct the voting of the Tendered Shares. Shareholder does not own on the date hereof any Additional Tendered Securities or other securities or rights of any nature convertible into, or exchangeable or exercisable for, shares of capital stock of the Company. Shareholder is not a party to, and the Tendered Shares are not subject to or bound in any manner by, any contract or agreement of any nature relating to the Tendered Shares, including any voting agreement, option agreement, purchase agreement, shareholders’ agreement, partnership agreement, voting trust or power of attorney.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BIDDER

Bidder represents and warrants to Shareholder as of the date hereof and as of the initial date of settlement of the Offer, as follows:

4.1 Organization. Bidder is a corporation duly organized and validly existing under the laws of the State of Delaware.

4.4 Bidder Common Shares. Assuming the accuracy of the representations made by the Company in the Tender Offer Agreement, the Bidder Common Shares to be received by Shareholder in the Offer will be issued in reliance on an exemption from registration set forth in Rule 802 under the Securities Act of 1933, as amended, (“Securities Act”), and will be restricted securities (as defined in Rule 144 of the Securities Act) only to the same extent and proportion the securities that were tendered or exchanged in the Offer were restricted securities. The previous sentence shall not affect the obligation of Shareholder to comply with the lock-up provisions set forth in Section 5.1 hereof.

4.5 Critical Technologies; TID U.S. Business 4.6. The Bidder has conducted an assessment and determined that none of the Bidder and any of its subsidiaries and Affiliates (a) produces, designs, tests, manufactures, fabricates, or develops “critical technologies” as that term is defined in 31 C.F.R. § 800.215; (b) performs the functions as set forth in column 2 of Appendix A to 31 C.F.R. part 800 with respect to covered investment critical infrastructure; or (c) maintains or collects, directly or indirectly, “sensitive personal data” as that term is defined in 31 C.F.R. § 800.241; and that none of the Bidder and any of its subsidiaries and Affiliates is a “TID U.S. business” within the meaning of 31 C.F.R. § 80.248.

ARTICLE V

CERTAIN COVENANTS

5.1 Lock-Up.

(a) During the three-month period following the date of the initial settlement and delivery of the Offer or, as applicable, the date of consummation of the Private Exchange (the “Initial Lock-Up Period”), Shareholder hereby undertakes not to Transfer any of the Bidder Common Shares received by it in consideration for the Tendered Shares or Additional Tendered Shares through the exchange branch of the Offer or, as applicable, the Private Exchange.

5.2 Resignation of Shareholder from the Board of Directors of the Company. Promptly after the initial settlement and delivery of the Offer (but not earlier, unless agreed by Bidder), and in any event immediately upon receipt of a notification from Bidder to this effect after the initial settlement and delivery of the Offer, Shareholder shall cause Antoine Vidal to resign from his position as member of the Board of Directors of the Company and, if requested, cause Antoine Vidal to vote for the cooptation of the replacements indicated by Bidder.

5.3 Most Favored Committed Shareholder 5.4. In the event that the tender commitment agreement entered with a Committed Shareholder other than Shareholder provides for (i) a higher Offer Price, (ii) a right for such Committed Shareholder to tender all or part of its Company Shares into the cash branch of the Offer (other than as a result of the reduction mechanism described in the definition of “Offer Price”) and/or (iii) a shorter Initial Lock-Up Period and/or a shorter Subsequent Lock-Up Period (provided that the commencement of the Initial Lock-Up Period and Subsequent Lock-Up Period on the date of consummation of the Private Exchange shall not constitute a shorter Initial Lock-Up Period or Subsequent Lock-Up Period) and/or a lesser percentage of Bidder Common Shares subject to the Subsequent Lock-Up Period than provided for in Section 5.1, then Bidder shall promptly notify Shareholder and allow Shareholder to benefit from the same Offer Price and/or right(s).

5.4 Committed Shareholders. Promptly following the conclusion of a tender commitment agreement in respect of the Offer by a Committed Shareholder

whose name is not explicitly listed in the definition of “Committed Shareholder”, Bidder shall communicate the identity of such Committed Shareholder to Shareholder.

5.5 Chinese Regulatory Clearance. Shareholder shall use its best efforts to obtain the Chinese Regulatory Clearance as soon as possible. In particular, Shareholder shall: (i) promptly and in any event no later than fifteen (15) business days after the date of public announcement of Bidder and the Company’s entry into the Tender Offer Agreement, at its own cost and expense, file applications to each of the relevant Regulatory Authorities (together with all supporting documents) to obtain the Chinese Regulatory Clearance; (ii) supply promptly to the relevant Regulatory Authority any additional information and documents that may be requested or required by the relevant Regulatory Authority; (iii) keep Bidder promptly informed of the status of these filings and any requests or questions raised by either Regulatory Authority and provide Bidder with a list of such application materials, (iv) promptly inform Bidder if it becomes aware of anything that could reasonably result in the Chinese Regulatory Clearance being delayed or denied and provide Bidder with the respective communication exchanged with the Regulatory Authorities (and in the case of non-written communications, details thereof); and (v) give notice to Bidder promptly, and in any event within two (2) business days of the date of the Chinese Regulatory Clearance being obtained (including, to the extent applicable, providing copies of any Chinese Regulatory Clearance promptly upon receipt from the relevant Regulatory Authority). The Bidder shall use its best efforts to cooperate with Shareholder in all respects and promptly supply the documents and information as reasonably required by the Shareholder in applying and obtaining Chinese Regulatory Clearance.

5.6 Pure Nominative Form. For so long as this Agreement is in force, Shareholder undertakes to hold the Tendered Shares and, applicable, Additional Tendered Shares, in pure nominative form (au nominatif pur) except for any inscription to indirect nominative (au nominatif administré) or bearer form (au porteur) that is required for purposes of tendering the Tendered Shares into the Offer in accordance with ARTICLE II.

5.7 Commitment of Bidder. To the extent that Section 2.5 is applicable, Bidder hereby covenants and agrees that it will use its commercially reasonable efforts to do all things necessary so that Shareholder may benefit from the provisions of Rule 144 under the Securities Act to resell the Bidder Common Shares it receives thereunder freely and without restriction on the date six (6) months following the receipt of such Bidder Common Shares and to facilitate such resale with Bidder’s transfer agent.

ARTICLE VI

MISCELLANEOUS

6.1 Termination. Either Party shall be entitled to terminate this Agreement if (i) the Company and Bidder announce that they have terminated the Tender Offer Agreement, (ii) the Offer is withdrawn by Bidder pursuant to Article 232-11 of the AMF General Regulation or (iii) the Offer is not declared successful by the AMF as a result of the conditions thereto failing to be met or waived. Any termination of this Agreement shall be without prejudice to the provisions of Section 2.3 and this Article VI which shall remain in force in accordance with their terms.

6.4 Notices. All notices or communications made pursuant to this Agreement must be addressed by registered letter or overnight courier, return receipt requested, and shall be deemed effective upon receipt, unless they are preceded by email transmission, in which case they shall be deemed effective upon acknowledgment by the recipient of such email transmission. Said notices shall be sent to each Party address referred to above, and, as the case may be, to the following individuals and their corresponding email addresses, unless notified otherwise as indicated above:

(i) if to Bidder, to:

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, California 92008

Phone: (760) 431-9286

Email: pmiles@atecspine.com

Attention: Patrick S. Miles

With a copy to (which shall not constitute notice to Bidder):

Latham & Watkins LLP

45 rue Saint-Dominique

75007 Paris, France

Phone: +33.1.40.62.20.79

Email: alexander.crosthwaite@lw.com

Attention: Alexander Crosthwaite

(ii) if to Shareholder, to:

[ ● ]

6.5 [Address]

Phone: [ ● ]Email: [ ● ]Attention: [ ● ]No Third Party Beneficiaries. This Agreement is not intended to, and does not, confer upon any Person other than the Parties hereto any rights or remedies hereunder.

6.6 Specific Performance. The Parties hereto agree that irreparable damages would occur in the event that any provision of this Agreement was not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance (exécution forcée) of the terms hereof in accordance with Articles

1221 and 1222 of the French Civil Code, without prejudice to the other remedies provided for in Article 1217 of the French Civil Code.

6.7 Binding Effect; Assignment. This Agreement is entered into intuitu personae; and accordingly neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Notwithstanding the foregoing, Bidder shall have the right to have one of its Affiliates succeed to and be substituted for all or part of its rights and obligations under this Agreement and become the “Bidder” under this Agreement, including any Affiliate that files a tender offer for the Company at a price at least equal to the Offer Price. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, heirs, permitted assigns and legal representatives.

6.9 Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the substantive laws of France, without regard to the principles of conflicts of laws thereof.

6.10 Jurisdiction (a). Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be submitted to the exclusive jurisdiction of the Paris Commercial Court.

IN WITNESS WHEREOF this Agreement has been duly executed by each of the Parties hereto as of the date first written above.


[ ● ]

By:
Name:
Title:

Alphatec Holdings, Inc.

By:
Name:		Patrick S. Miles
Title:		Chairman and Chief Executive Officer

Exhibit 2.3

Execution Version

PERCEPTIVE CREDIT HOLDINGS III, LP

51 Astor Place, 10^th Floor

New York, NY 10003

Commitment Letter

February 28, 2020

Alphatec Holdings, Inc.

5818 El Camino Real

Carlsbad, CA 92008

Attn: Pat Miles, Chairman and Chief Executive Officer

Ladies and Gentlemen:

Alphatec Holdings, Inc. (the “Borrower” or “you”) has advised Perceptive Credit Holdings III, LP (“Perceptive”) that the Borrower is seeking, among other things, to (i) refinance certain existing outstanding debt of the Borrower and certain of its subsidiaries (the “Refinancing”), (ii) acquire, directly or indirectly, through a tender offer on the French stock exchange with a presenting bank (banque présentatrice) acting on behalf of the Borrower (the “Presenting Bank”), at least 66 ²⁄₃% and up to all issued and outstanding equity interests and an equivalent percentage of related voting rights (including securities convertible or exchangeable into shares) (the “Tender Offer”) of EOS Imaging S.A. (the “Target”) and (iii) obtain a commitment for financing to enable the Borrower to consummate the Refinancing and the Tender Offer (the Refinancing, the Tender Offer, the financing and the other transactions related thereto, including the payment of the Tender Officer consideration and all fees, costs and the expenses related to the Refinancing, the Tender Offer, such financing and such other transactions related thereto being, collectively, the “Transactions”). Capitalized terms used but not otherwise defined in this letter have the meanings ascribed thereto in the Outline of Proposed Terms and Conditions attached hereto as Exhibit A (the “Term Sheet”; this letter, the Term Sheet and all annexes and exhibits attached hereto and thereto, collectively, this “Commitment Letter”).

In connection with the Transactions, you have requested that Perceptive and/or one or more of its managed funds (collectively, the “Lender” or “we”) agree to structure and commit to provide a senior secured credit facility in a minimum aggregate principal amount of $130,000,000, as such amount may be adjusted pursuant to any Facility Decrease or any Facility Upsizing (each as defined below) (the “Facility”). Subject to the provisions below, including, with respect to the Supplemental Borrowing, up to $70,000,000 of the Facility (as such amount may be adjusted pursuant to any Facility Decrease or any Facility Upsizing) may be used to finance all or a portion of the Tender Offer and fees, costs and expenses related to the Tender Offer, and up to $60,000,000 of the Facility will be available for purposes of the Refinancing and to pay fees, costs and expenses related to the Transactions and for other general corporate and working capital purposes of the Borrower and its subsidiaries.

Notwithstanding the foregoing, for all purposes of this Commitment Letter (unless otherwise expressly provided), (i) in the event that the Borrower obtains any Permitted Tender Offer Alternate Financing (as defined below), each of the Tender Offer Facility Amount and the Facility Amount will automatically be reduced by an amount equal to the proceeds of such Permitted Tender Offer Alternate Financing net of (x) any fees or reasonable and documented costs and expenses of incurred in connection therewith and (y) any portion of such proceeds used to finance any Permitted Tender Offer Price Increase (as defined in the Term Sheet), and (ii) in the event that any Permitted Tender Offer Price Decrease occurs, the Tender Offer Facility Amount will automatically be reduced by an amount equal to such Permitted Tender Offer Price Decrease (any such decrease described in the foregoing clauses (i) or (ii), a “Facility Decrease”).

In addition, at the request of the Borrower after the date hereof, we may (in our sole discretion) agree to increase the size of the Facility by $30,000,000 to an aggregate principal amount of $160,000,000 (such increase, the “Facility Upsizing”), it being acknowledged and agreed by you that (i) we are not committing hereunder to provide or otherwise arrange the Facility Upsizing, and the decision to provide the Facility Upsizing will be made in our sole discretion, (ii) unless we agree, at your request, in writing to provide the Facility Upsizing, the aggregate principal amount of the Facility will be $130,000,000 and the aggregate principal amount of the Tender Offer Facility Amount will be $70,000,000, (iii) if we agree, at your request, to provide the Facility Upsizing, for all purposes of this Commitment Letter (unless otherwise expressly provided), the aggregate principal amount of the Facility will be $160,000,000 and the aggregate principal amount of the Tender Offer Facility Amount will be $100,000,000, and (iv) the entire principal amount of the Facility Upsizing, if provided, will be available solely for purposes of financing all or a portion of the Tender Offer and to pay fees, costs and expenses related thereto, unless otherwise mutually agreed.

1. Commitments

In connection with the Transactions, the Lender is pleased to advise you of its commitment to provide the entire principal amount of the Facility (i) upon the terms and at the times set forth in this Commitment Letter and (ii) with respect to the Tender Offer Borrowing (and, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing), the funding of which is subject only to the Certain Funds Provision (as defined below).

2. Information

In connection with our commitment and agreements hereunder in respect of the Facility and the other Transactions, you will provide us with customary information concerning you, your subsidiaries, the Target, its subsidiaries and each of your and their respective assets, liabilities, businesses, operations and conditions (financial or otherwise) as we may reasonably request, subject to the limitations on your rights to request information concerning the Target and its subsidiaries, and their assets, liabilities, businesses, operations and conditions (financial or otherwise) set forth in the Tender Offer

Agreement (as defined in Annex 1 of the Term Sheet). For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate or waive any attorney-client or other privilege, constitute attorney work product, or violate or contravene any law, rule or regulation, or any obligation of confidentiality (not created in contemplation hereof) binding on you, the Target or your or its respective affiliates; provided that in the event you do not provide information in reliance on this sentence, you shall provide notice to us that such information is being withheld (but solely to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation, or without waiving such privilege) and you shall use commercially reasonable efforts to describe such information in a manner that is both feasible and permitted under applicable law, rule, regulation or confidentiality obligation, or without waiving such privilege.

You hereby represent and warrant (such representation and warranty with respect to Information (as defined below) regarding the Target and its subsidiaries being made to your knowledge) that (i) all written information concerning the Borrower and its subsidiaries, the Target and its subsidiaries and their respective assets, liabilities and businesses that has been or will be made available to the Lender by the Borrower or any of its representatives on the Borrower’s behalf in connection with the Transactions (other than Projections (as defined below) and/or information of a general economic or industry-specific nature, collectively, the “Information”), when taken as a whole, does not and will not, as and when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto) and (ii) the financial projections and other forward-looking information (collectively, the “Projections”) that have been or are hereafter made available to us by you or any of your representatives on your behalf in connection with the Facility or any of the other Transactions, as and when furnished, have been or will be prepared in good faith based upon assumptions believed by you to be reasonable (it being recognized by the Lender that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ from projected results and that such differences may be material). You further agree that, at any time prior to the date on which our commitment to provide the Facility hereunder terminates in full, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information or the Projections were being furnished and such representations and warranties were being made at such time, you will (or, prior to the date on which the Tender Offer Borrowing occurs (the “Tender Offer Borrowing Date”; the Tender Offer Borrowing Date, the date of the borrowing of the Refinancing Facility (if different) and the date of the borrowing of the Supplemental Facility (if made) are herein referred to, collectively, as the “Borrowing Dates” and individually as a “Borrowing Date”) with respect to Information and Projections concerning the Target and its subsidiaries, you will, subject to any applicable limitations on your rights set forth in the Tender Offer Agreement, use commercially reasonable efforts to) promptly supplement the Information or the Projections, as

applicable, so that (to your knowledge, as it relates to the Target and its subsidiaries prior to the Tender Offer Borrowing Date) the representations and warranties in the preceding sentence remain true in all material respects. You understand we are and will be using and relying on the Information and Projections delivered on or prior to the date of your acceptance of this letter in issuing our commitment hereunder, and will be using and relying on all Information and Projections in providing the Facility, in each case, without independent verification thereof.

3. Commitment Fee

In consideration for the commitment and agreements of the Lender hereunder, and in addition to any other fees described in the Term Sheet or the Definitive Documentation (as defined below) and on the terms and conditions set forth in the Term Sheet or the Definitive Documentation, as applicable, upon the date of your execution and delivery to us of this Commitment Letter, you agree to pay or cause to be paid to us (or our designee) a non-refundable fee in the amount of $1,300,000; provided that in the event the Facility Upsizing occurs, the Borrower shall be required, as a condition precedent to the effectiveness thereof, to pay the Lender (or its designee) an additional non-refundable amount equal to $300,000 (such fee, as it may be increased as a result of the Facility Upsizing, being the “Upfront Commitment Fee”).

4. Conditions

The commitments of the Lender hereunder are subject to the conditions set forth in this Section 4 and in the Term Sheet under the section titled “Conditions Precedent to Funding of Refinancing Borrowing (occurring other than on Tender Offer Borrowing Date) and Supplemental Borrowing”, subject, however, in all respects, to the proviso set forth in such section.

Notwithstanding anything in this Commitment Letter, the definitive loan, guaranty, security or other agreements and documentation relating to the Facility (the “Definitive Documentation”) or any other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations relating to the Borrower, the Target and their respective subsidiaries and businesses, the accuracy of which shall be a condition to the availability of the Tender Offer Borrowing (and, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing) on the Tender Offer Borrowing Date shall be (x) the representations and warranties made by you with respect to Information and Projections in Section 2 above, (y) such of the representations made by or on behalf of the Target, its subsidiaries or their respective businesses in the Tender Offer Agreement as are material to the interests of the Lender in its capacity as such, but only to the extent that you or your applicable affiliate have the right to terminate, at your sole option and without incurring a break-up fee your (or its) obligations under the Tender Offer Agreement or to decline to instruct the Presenting Bank to file the Tender Offer with the AMF as a result of a breach of such representations in the Tender Offer Agreement (the “Tender Offer Agreement Representations”) and (z) the Specified Representations (as defined below), (ii) the terms of the Definitive Documentation shall not impair the availability of the Tender

Offer Borrowing (or, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing) on the Tender Offer Borrowing Date if the conditions set forth in this Section 4 and in Annex 1 of the Term Sheet are satisfied or waived by the Lender (it being understood that to the extent any Collateral under the Definitive Documentation (including the creation or perfection of any security interest therein) is not, or cannot be, provided and/or perfected on the Tender Offer Borrowing Date (other than, to the extent required under the Definitive Documentation, the creation and perfection of a lien on Collateral that is of the type where a lien on such Collateral may be perfected (w) by means of filing a Uniform Commercial Code financing statement, (x) by means of filing an intellectual property security agreement with the United States Patent and Trademark Office or the United States Copyright Office, (y) by delivery of certificated securities of the Borrower and domestic subsidiaries of the Borrower that is part of the Collateral (together with a stock power or similar instrument endorsed in blank for the relevant certificate)) or (z) by delivery of (A) a French law securities account pledge agreement providing a first priority, perfected lien on the securities account (“nantissement de compte titres financiers”) in which the Borrower shall register and hold all securities it acquires in the Target further to the Tender Offer (the “Target Securities Pledge Agreement”) (and which securities account shall, on the Tender Offer Borrowing Date (which shall be the date of the granting of such lien), hold at least one (1) share of a French company whose shares are listed on the regulated market of Euronext Paris) and (B) the French law Escrow Account Repayment Rights Pledge (as defined below), in each case, after your use of commercially reasonable efforts to do so, then the provision and/or perfection of such Collateral shall not constitute a condition precedent to the availability of the Tender Offer Borrowing (and, if applicable, the Refinancing Borrowing) on the Tender Offer Borrowing Date but may instead be provided within sixty (60) days after such Borrowing Date (or such longer period as the Lender may agree) pursuant to arrangements to be mutually agreed upon by you and us), and (iii) the only conditions (express or implied) to the availability of the Tender Offer Borrowing (and, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing) on the Tender Offer Borrowing Date are those expressly set forth in Annex 1 of the Term Sheet.

For purposes hereof, “Specified Representations” means the representations and warranties of the Borrower and its subsidiaries set forth in the Definitive Documentation relating to: organizational existence of the Obligors (as defined in the Term Sheet); organizational power and authority (as they relate to due authorization, execution, delivery and performance of the Definitive Documentation) of the Obligors to enter into the Definitive Documentation; due authorization, execution and delivery of such Definitive Documentation, and enforceability of the relevant Definitive Documentation against the Obligors; Federal Reserve margin regulations; no conflicts of the Definitive Documentation with organizational documents, material applicable law, material agreements to the extent any violation thereof would result in a material adverse effect, applicable to the Obligors; the Investment Company Act of 1940; use of proceeds not in violation of Office of Foreign Asset Control (OFAC), the Foreign Corrupt Practices Act (FCPA), the USA PATRIOT Act and other applicable anti-money laundering laws;

solvency of the Borrower and its subsidiaries on a consolidated basis after giving effect to the Tender Offer and related transactions (including all related Borrowings under the Facility); the creation, validity and perfection of security interests in the Collateral securing the Facility (subject to the limitations set forth in clause (ii) above); and status under the Facility as senior debt.

This Section 4 and the provisions contained herein shall be referred to as the “Certain Funds Provision”.

5. Indemnification; Expenses

You agree to (i) indemnify and hold harmless the Lender, each of its affiliates and each of the Lender’s and each such affiliate’s respective partners, members, directors, agents, employees, officers, advisors, trustees, other representatives or controlling persons (collectively, “Indemnified Persons”) from and against, any and all losses, claims, damages, liabilities and other reasonable costs and expenses of any kind (including reasonable legal fees, charges, disbursements, costs and expenses) to which such Indemnified Person may become subject or that may be incurred or asserted or awarded against such Indemnified Person, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation, claim or proceeding) the Transactions (including in respect of the Facility, the Refinancing or the Tender Offer), the Definitive Documentation and the use of proceeds of the Facility (whether or not such investigation, litigation, claim or proceeding is brought by you, the Target or any of your or the Target’s equity holders, subsidiaries, affiliates or creditors, and whether or not any Indemnified Person is otherwise a party thereto and whether or not any of the Transactions are consummated) and (ii) reimburse each Indemnified Person for all reasonable and documented out-of-pocket expenses (including all reasonable fees, time charges, disbursement, costs and expenses of legal counsel), in each case, within three (3) business days following written demand of such Indemnified Person; provided that you will not have to indemnify any Indemnified Person to the extent that any such loss, claim, damage, liability or related cost or expense arise from (x) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any person acting on its behalf, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction, (y) such Indemnified Person’s or any person’s acting on its behalf material breach of this Commitment Letter and/or the Definitive Documentation, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction, or (z) any dispute arising out of or in connection with any claim, litigation, loss, investigation or proceeding that is brought by an Indemnified Person against another Indemnified Person not arising from any action or omission by you, the Target or any of your or their respective subsidiaries or affiliates. You shall not be liable for any settlement of any investigation, litigation, claim or proceeding effected by any Indemnified Person without your consent (which consent shall not be unreasonably withheld, conditioned or delayed) or any other loss, claim, damage, liability, cost and/or expense incurred in connection with such settlement, but if any such investigation, litigation, claim or proceeding is settled with your written consent, or if there is a final non-appealable judgment of a court of competent jurisdiction

in any such investigation, litigation, claim or proceeding, you agree to indemnify and hold harmless such Indemnified Person in the manner set forth in this Section 5. You shall not, without the prior written consent of an Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Party unless such settlement (a) includes an unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such proceedings and (b) does not include any statement as to, or any admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Party or any injunctive relief or other non-monetary remedy binding on any Indemnified Party.

You also agree that no Indemnified Person will have any liability to you (whether direct or indirect, in contract, equity, tort or otherwise) or any other person or entity asserting claims on behalf of or in right of you in connection with or as a result of the Commitment Letter or any of the Transactions except, in the case of any such liability to you, to the extent that (and only for so long as) any losses, claims, damages, liabilities or expenses incurred by you have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnified Person or any person acting on its behalf (or any of its controlling persons or subsidiaries of controlling persons) in performing its obligations hereunder or a material breach in bad faith of its material agreements set forth in this Commitment Letter; provided that in no event will any Indemnified Person, you or any of your or their respective subsidiaries or affiliates or the respective directors, officers, employees, agents, advisors or other representatives of any of the foregoing have any liability for any indirect, special, consequential or punitive damages (as opposed to direct or actual damages), including, without limitation, any loss of profits, business or anticipated savings in connection with or as a result of this Commitment Letter or any of the Transactions.

6. Sharing of Information, Absence of Fiduciary Relationship, Affiliate Activities

You acknowledge that the Lender and its affiliates are engaged in securities trading and investment activities and may from time to time hold positions in loans or securities, options on loans or securities, or other financial instruments of you, the Target, your or the Target’s respective subsidiaries and affiliates, and of other persons or entities with which you or the Target or their respective subsidiaries or affiliates may have commercial or other relationships. With respect to any such loans, securities, options and/or financial instruments so held by the Lender (or an affiliate), all rights in respect thereof, including any voting rights, will be exercised by the holder of the rights in its sole discretion. However, neither the Lender nor any of its affiliates will use any confidential information obtained from you or your affiliates or from the Target and its affiliates or on your or their behalf by virtue of the Transactions in connection with any commercial activities of the Lender (or any such affiliate) with respect to other persons or entities and neither the Lender nor any of its affiliates will furnish any such information to any other person or entity with which it is engaged in commercial activities. You also acknowledge that

neither the Lender nor any of its affiliates have any obligation to use in connection with the Transactions, or to furnish to you, confidential information obtained from other persons or entities.

You further acknowledge and agree that (i) no fiduciary, advisory or agency relationship between you and the Lender is intended to be or has been created in respect of any of the Transactions (or any other transactions contemplated in connection herewith or therewith), irrespective of whether the Lender has advised or is advising you on other matters, (ii) the Lender, on the one hand, and you, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty to you or any of your affiliates on the part of the Lender, (iii) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions associated with this Commitment Letter and the Transactions, (iv) you have been advised that the Lender is engaged in a broad range of commercial activities that may involve interests that differ from your interests and that the Lender has no obligation to disclose such interests or commercial activities to you, (v) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, (vi) the Lender has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for you or any of your affiliates, (vii) the Lender has no obligation to you or any of your affiliates with respect to the Transactions (or any other transactions contemplated in connection herewith or therewith), except those obligations expressly set forth herein or in any other express writing executed and delivered by the Lender to you or any such affiliate and (viii) you waive, to the fullest extent permitted by law, any claims you may have against the Lender and its affiliates for breach of fiduciary or alleged breach of fiduciary duty arising solely by virtue of its obligations under this Commitment Letter with respect to the Transactions and agree that neither the Lender nor any of its affiliates, in such capacity, have any liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person or entity asserting any such fiduciary duty claim on your behalf, including any of your equity holders, officers, directors, employees or creditors. Additionally, you acknowledge that the Lender may employ the services of its affiliates in providing certain services hereunder and may exchange with such affiliates the Information and Projections (provided that such persons agree to hold the same in confidence, to the extent we are required to hold the same in confidence hereunder) and such affiliates will be entitled to the benefits afforded to, and subject to the obligations, of the Lender hereunder; provided that (x) the Lender shall not be relieved of any of its obligations hereunder, including in the event any affiliate through which it performs its obligations fails to perform the same in accordance with the terms hereof and (y) the Lender shall be responsible for any breach by any of its affiliates of the obligations hereunder.

7. Confidentiality

This Commitment Letter is delivered to you on the understanding that neither it, nor any of its terms, content or substance, or any written communications provided by, or oral discussions in connection with the Transactions, shall be disclosed

by you, directly or indirectly, or circulated or referred to publicly to any other person or entity except: (i) to your subsidiaries, and to your and their officers, directors, employees, affiliates, members, partners, equity holders, attorneys, accountants, agents and advisors and, on a confidential basis, those of the Target and its subsidiaries; provided that you may not make any disclosure regarding or with respect to any fees set forth herein or in the Term Sheet (including the Upfront Commitment Fee), other than inclusion of the aggregate fee amounts in the Projections, pro forma information or a generic disclosure of aggregate sources and uses related to the Transactions to the extent required in any public or regulatory filing relating to the Transactions, and, except as provided above, all information with respect to any such fees shall be redacted in a manner reasonably satisfactory to the Lender unless the Lender otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) in any legal, judicial or administrative proceeding or other compulsory process or as otherwise required by law, rule or regulation or as requested by a government authority (in which case you agree, to the extent permitted by law, to inform us promptly in advance thereof), (iii) in connection with the exercise of remedies relating to this Commitment Letter or the enforcement of rights hereunder, (iv) the existence of the commitments under this Commitment Letter and the existence and contents of the Term Sheet (but not the fees, other than the existence thereof and the aggregate amount of the fees payable thereunder in the Projections, pro forma information and a generic disclosure of aggregate sources and uses in disclosures) may be disclosed in any proxy or similar public filing requirement, (v) to the extent this Commitment Letter or the contents hereof become publicly available other than by reason of disclosure by you in breach of this Commitment Letter, (vi) the Term Sheet may be disclosed to potential transferees or assignees, from time to time, to the extent permitted pursuant to the Definitive Documentation, and (vii) if the Lender consents to such proposed disclosure. The confidentiality provisions set forth in this paragraph (other than as they relate to the fees set forth herein or in the Term Sheet, subject to the terms of this Commitment Letter with respect to disclosure of such fees) shall cease to apply on the first anniversary of the date hereof.

The Lender shall use all confidential information received by it in connection with the Transactions and any related transactions (including any information obtained by the Lender based on a review of any books and records relating to the Borrower, the Target or any of their respective subsidiaries or affiliates) solely for purposes of fulfilling its commitment and agreements contemplated pursuant to this Commitment Letter and shall treat as confidential all such information and the terms and contents of this Commitment Letter and the Definitive Documentation and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent the Lender from disclosing any such information (i) to any prospective transferees or assigns as may be permitted pursuant to the Definitive Documentation, (ii) in connection with any legal, judicial, administrative proceeding or other compulsory process or as required by applicable law or regulations (in which case we shall promptly notify you, in advance, to the extent permitted by law), (iii) upon the request or demand of any regulatory authority having jurisdiction over us or any of our affiliates (in which case we shall promptly notify you, in advance, to the extent permitted by law), (iv) to our employees, legal counsel, auditors, professionals and other experts, advisors or agents (collectively

“Representatives”) who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this kind confidential, (v) to any of our affiliates (provided that any such affiliate is advised of its obligation to retain such information as confidential) solely in connection with the Transactions, (vi) to the extent any such information becomes publicly available other than by reason of disclosure by us or any of our affiliates or Representatives in breach of this Commitment Letter, (vii) in connection with the exercise of remedies relating to this Commitment Letter or the enforcement of rights hereunder, (viii) to any other party hereto, (ix) with your consent, and (x) to the extent that such information is or was received by us from a third party that is not, to our knowledge, subject to confidentiality obligations from you and did not acquire such information as a result of a breach of this paragraph. Without limitation of the foregoing, the Lender acknowledges that the Target is listed on the regulated market of Euronext Paris and that the proposed Tender Offer as well as the information referred to above which may be disclosed by it, orally or in writing, in connection with the Transactions may constitute material non-public information which may be regulated or prohibited by applicable legislation and securities laws relating to insider dealing and market abuse, including the EU Market Abuse Regulation (2014/596/EU) (known as MAR), and the Lender undertakes not to use any such information for any unlawful purpose.

8. Exclusivity.

From the date of this Commitment Letter until August 26, 2020 (such period, the “Exclusivity Period”), you will not (and you will not permit any of your subsidiaries or controlled affiliates or any of your or their officers, directors, employees, counsel, accountants or auditors or other professionals, experts, advisors or agents), directly or indirectly: (i) to solicit, initiate, encourage or participate in the submission of any proposal or offer from any person or entity relating to, or enter into or consummate any transaction relating to, any debt or other financing for the purpose of effecting or consummating any of the Transactions (in each case, other than (a) the Facility, (b) working capital and other similar indebtedness incurred in the ordinary course of business, (c) indebtedness of the Target and its subsidiaries in the nature of working capital financing permitted to be issued under the Tender Offer Agreement, (d) any publicly traded equity or convertible notes (including for the avoidance of doubt any “private investment in public company” transaction or Rule 144A compliant transaction), including without limitation any convertible notes financing, which is intended to replace the Tender Offer Borrowing (any financing described in this clause (d), a “Permitted Tender Offer Alternate Financing”), and (e) any other indebtedness approved by the Lender in writing (such approval not to be unreasonably withheld, delayed or conditioned)) (an “Alternate Financing”), or (ii) participate in any discussions or negotiations regarding, furnish any information with respect to, encourage, assist or participate in, or facilitate in any other manner, any effort or attempt by any person or entity to provide or arrange, or seek to provide or arrange, any Alternate Financing.

9. Miscellaneous.

This Commitment Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter by facsimile or electric transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.

This Commitment Letter (including the Term Sheet and any other attachments hereto or thereto) embodies the entire agreement and understanding among us and you and your controlled affiliates with respect to the Facility and supersedes all prior agreements and understandings relating to the specific matters contemplated herein. This Commitment Letter may not be amended or waived except by an instrument in writing signed by you and us. You may not assign your rights or obligations under this Commitment Letter or the Facility without the prior written consent of the Lender (and any purported assignment without such consent shall be null and void); provided that you may assign your rights and obligations hereunder to any of your affiliates that is “shell” company, wholly owned by you (except for directors’ qualifying shares or equivalent if so required), directly or indirectly (a “Transferee”) (i) in order to effect the consummation of the Tender Offer prior to or substantially concurrently with the closing of the Tender Offer or (ii) in connection with any other assignment that occurs as a matter of law pursuant to, or otherwise substantially concurrently with the closing of the Tender Offer in accordance with the Tender Offer Agreement; provided further that, in each case, (a) the Borrower will remain obligated hereunder, and the Borrower and each of its subsidiaries that are organized under the laws of the United States will remain obligated in their capacities as guarantors and grantors of liens and security interests in their assets, in each case, to the same extent they would have been had there been no such transfer to the Transferee, (b) after giving effect to any such transfer, the terms of the guaranty and collateral package and related remedies will be at least as favorable to the Lender as the guaranty and collateral package contemplated by this Commitment Letter as of the date hereof, (c) any additional costs, expenses or tax consequences incurred by or affecting the Lender as a result of such transfer will be covered and indemnified by the Borrower, (d) such transfer will not trigger any additional material regulatory or legal risk or burden under any applicable law on the Lender, and (e) if the Transferee is organized under the laws of France, the Facility will be adapted to take the form of one or more issuances of notes, and the terms of this Commitment Letter as of the date hereof will be adapted to give effect to any consequential changes, in order to comply with French banking monopoly rules.

This Commitment Letter (including the Term Sheet and any other attachments hereto or thereto) and any claim, controversy or dispute (whether arising in contract, equity, tort or otherwise) arising under or related to this Commitment Letter shall be governed by, and construed and interpreted in accordance with the laws of the State of New York, without regard to conflict of law principles that would result in the application of any law other than the law of the state of New York; provided that (i) the interpretation of the definition of “Material Adverse Effect” and whether or not a Material Adverse Effect has occurred, (ii) the determination of the accuracy of any Tender Offer Agreement Representation and whether as a result of any inaccuracy thereof either the Borrower or its applicable affiliate

has the right to terminate its or its applicable affiliate’s obligations under the Tender Offer Agreement or to decline to consummate the transactions contemplated thereby, and (iii) the determination of whether the “Offer” (as such term is defined in the Tender Offer Agreement) has been consummated in accordance with the terms of the Tender Offer Agreement and, in any case, claims or disputes arising out of any such interpretation or determination of any aspect thereof shall, in each case, be governed by and construed in accordance with the laws governing the Tender Offer Agreement as applied to the Tender Offer Agreement, without giving effect to any choice of law or conflict of law provision or rule of any jurisdiction that would cause the application of the law of any other jurisdiction.

You and we hereby irrevocably and unconditionally (a) submit to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan in the City of New York (or any appellate court therefrom) over any suit, action or proceeding arising out of or relating to this Commitment Letter, (b) agree that all claims in respect of any action or proceeding shall be heard and determined in New York state or, to the extent permitted by law, federal court, and (c) agree that a final, non-appealable judgment in any such action may be enforced in other jurisdictions in any manner provided by law. You and we agree that services of any process, summons, notice or document by registered mail addressed to you or us shall be effective service of process for any suit, action or proceeding brought in any such court. You and we hereby irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that such suit, action or proceeding has been brought in any inconvenient forum or otherwise based on lack of personal jurisdiction or improper venue. YOU AND WE HEREBY IRREVOCABLY AGREE TO WAIVE TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THE TRANSACTIONS, THIS COMMITMENT LETTER (INCLUDING THE TERM SHEET OR ANY OTHER ATTACHMENTS HERETO OR THERETO) OR THE PERFORMANCE OUR OBLIGATIONS HEREUNDER.

The Lender hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “USA PATRIOT Act”), it is required to obtain, verify and record information that identifies each Obligor, which information includes names, addresses, tax identification numbers and other information that will allow the Lender to identify each Obligor in accordance with the USA PATRIOT Act and other applicable “know your customer” and anti-money laundering rules and regulations. This notice is given in accordance with the requirements of the USA PATRIOT Act.

The compensation, reimbursement, indemnification, jurisdiction, governing law, waiver of jury trial, sharing of information, no fiduciary duties, affiliate activities, confidentiality and exclusivity provisions contained herein shall remain in full force and effect regardless of whether Definitive Documentation shall be executed and delivered and notwithstanding termination of this Commitment Letter or our commitment hereunder; provided that in the event we terminate this Commitment Letter and our commitment

hereunder pursuant to Section 2 above, the exclusivity provisions contained herein shall also terminate. Subject to the preceding sentence, you may terminate this Commitment Letter upon written notice to the Lender at any time.

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter by returning to us executed counterparts of this Commitment Letter no later than 11:59 p.m., New York City time, on February 28, 2020, together with payment in full by wire transfer of immediately available funds of the Upfront Commitment Fee to Perceptive at the bank account designated by it in writing to you. This offer will automatically expire at such time if we have not received such executed counterparts and payment of such fee in accordance with the preceding sentence. In the event that the initial Borrowing Date does not occur on or before 11:59 p.m., New York City time, on September 25, 2020, then this Commitment Letter shall automatically expire or terminate at such time.

We are pleased to have been given the opportunity to work with you in connection with this important financing.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

PERCEPTIVE CREDIT HOLDINGS III, LP

By: Perceptive Credit Opportunities GP, LLC, its general partner


By:		/s/ Sam Chawla
Name:		Sam Chawla
Title:		Portfolio Manager

By:		/s/ Sandeep Dixit
Name:		Sandeep Dixit
Title:		Chief Credit Officer

Accepted and agreed to as of the date first written above:


ALPHATEC HOLDINGS, INC.

By:		/s/ Jeff Black
Name:		Jeff Black
Title:		Executive Vice President and Chief Financial Officer

EXHIBIT A

OUTLINE OF PROPOSED TERMS AND CONDITIONS

This Outline of Proposed Terms and Conditions (this “Term Sheet”) outlines certain (but not all) principal terms of the Facility referred to in the commitment letter, dated February 28, 2020 to which this Term Sheet is attached (together with Exhibit A and each other annex, exhibit or other attachment hereto or thereto, the “Commitment Letter”). Capitalized terms used herein and not otherwise defined have the meanings set forth in the Commitment Letter.

Borrower:

Alphatec Holdings, Inc. (the “Borrower” or the “Company”).

Guarantors:

Subject to the Agreed Security Principles, all of the Borrower’s subsidiaries now existing or created or acquired in the future (the “Guarantors” and, together with the Borrower, the “Obligors”); provided that the following types of subsidiaries will not be required to become Guarantors: (a) any subsidiary that is prohibited or restricted from being a Guarantor by (x) any law, regulation or the Agreed Security Principles (as defined below) or (y) any contractual obligation that exists on the initial Borrowing Date or at the time such subsidiary becomes a subsidiary and was not incurred in contemplation of its acquisition or (b) upon the written request of the Borrower (prepared in reasonable detail), any other subsidiary to the extent that the burden or cost of becoming a Guarantor outweighs, or would be excessive in light of, the practical benefit afforded thereby, as determined by the Lender in its reasonable discretion.

Agreed Security Principles:

The principles customarily applicable to Perceptive transactions and those set forth on Annex 3 attached hereto.

Lender:

Perceptive Credit Holdings III, LP or any other investment funds managed and controlled by Perceptive Advisors LLC (collectively, the “Lender”).

Facility:

A senior secured multi-draw term loan facility (the “Facility”) in an aggregate principal amount of $130,000,000 (as such amount may be increased pursuant to the Facility Upsizing or decreased pursuant to any Facility Decrease (if applicable), the “Facility Amount”).

Purpose:

The Facility shall be used (i) for the Refinancing, (ii) to finance, in whole or in part, the Tender Offer, and (iii) to pay fees, costs and expenses (including legal fees, costs and expenses) related to the foregoing, the Facility and the other Transactions.

Borrowing Dates:

The “Refinancing Borrowing Date” shall be the date on which the Refinancing Borrowing occurs; provided that if the Refinancing Borrowing occurs simultaneously with the Tender Offer Borrowing, the Refinancing Borrowing Date shall be the Tender Offer Borrowing Date. The Refinancing Borrowing Date may occur, at the election of the Borrower, on either (i) the Tender Offer Borrowing Date, simultaneously with the Borrowing of the Tender Offer Borrowing, or (ii) on a business day prior to the Tender Offer Borrowing Date.

Any term or provision of the Commitment Letter (including this Term Sheet) to the contrary notwithstanding, the Tender Offer Borrowing Date shall be deemed to be the date on which the Lender either funds the Presenting Bank Escrow Account (defined below) or causes the Presenting Bank L/C (defined below) to be issued, in either case, as provided below in the section titled “Financing Availability,” which date shall be a business day (to be mutually agreed upon by the Borrower, the Lender and the Presenting Bank) occurring (x) on or prior to the date on which the Presenting Bank, acting on behalf of the Borrower, files the Tender Offer with the Autorité des marchés financiers (French Stock Exchange authority or “AMF”) and (y) no later than September 25, 2020 (the “Tender Offer Drop Dead Date”).

The “Supplemental Borrowing Date” shall be the date on which the Supplemental Borrowing occurs, if such Borrowing is available to be made.

Financing Availability:

At the Borrower’s option, loans under the Facility will be made available in either a single Borrowing on the initial Borrowing Date or, in two Borrowings. In each case, the Facility will be made available in U.S. Dollars, but Lender agrees, at the expense of Borrower, to take commercially reasonable efforts to assist in the Borrower’s efforts to convert such amounts into a currency required to consummate the Tender Offer.

On the Tender Offer Borrowing Date, up to (but not in excess of) $70,000,000 (as such amount may be adjusted pursuant to any Facility Upsizing or decreased pursuant to any Facility Decrease) of the Facility Amount will be made available to finance, in whole or in part, the Tender Offer, together with

fees, costs and expenses related to the Tender Offer (the “Tender Offer Facility Amount”). The Tender Offer Facility Amount (net of fees, costs and expenses related to the Tender Offer) shall be made available (in either case, the “Tender Offer Borrowing”) by (i) the Lender paying such amount into an escrow account opened with the Presenting Bank in France (the “Presenting Bank Escrow Account”), or (ii) the Lender arranging for the issuance of a standby letter of credit to be issued by a bank selected by the Lender (the “L/C Issuer”) and naming the Presenting Bank as the beneficiary, in an amount equal to the Tender Offer Facility Amount (net of fees, costs and expenses related to the Tender Offer) (the “Presenting Bank L/C”). The form of the Tender Offer Borrowing shall be chosen by the Lender in its reasonable discretion; provided that in the event that, after good faith negotiation among the Borrower, the Presenting Bank and the Lender (but in any event no later than three (3) business days prior to the Tender Offer Borrowing Date), the Lender or the L/C Issuer is not able to provide a Presenting Bank L/C that is acceptable to the Presenting Bank pursuant to the terms of the Mandate Letter, the Lender will make the Tender Offer Borrowing available by paying such amount into the Presenting Bank Escrow Account. The Presenting Bank shall be irrevocably authorized and instructed by the Borrower to withdraw amounts from time to time from the Presenting Bank Escrow Account or draw on the Presenting Bank L/C as may be required to settle the payment of the acquisition of each equity interest tendered as part of the Tender Offer in an amount per equity interest, not exceeding 100% of the price for such equity interest in the Tender Offer.

The Mandate Letter (defined in Annex 1 hereto) will provide that the Presenting Bank will (i) promptly release any part of the amounts standing to the credit of the Presenting Bank Escrow Account or reduce the amount available to be drawn under the Presenting Bank L/C if it determines that such amounts shall no longer be required to secure the payment of amounts that may, from time to time, become due pursuant to the Tender Offer, and (ii) immediately release the entire contents of the Presenting Bank Escrow Account or return the Presenting Bank L/C if the AMF notifies the market of the preliminary results of the Tender Offer and such results indicate that the Tender Offer was unsuccessful (no “suite positive”) or if the Tender Offer is rejected by the AMF or the Tender Offer Agreement is terminated before the launch of the Tender Offer so that the Borrower and the Presenting Bank

have no obligations with respect to the Tender Offer (the “Escrow Account Repayment Rights”). Such released amounts shall promptly be applied in prepayment of the Tender Offer Borrowing or the reduction of the amount available to be drawn under the Presenting Bank L/C, as applicable. Further, the receivable against the Presenting Bank constituted by the Escrow Account Repayment Rights shall be pledged by the Borrower in favor of the Lender under French law (the “Escrow Account Repayment Rights Pledge”), which pledge shall be expressly notified to the Presenting Bank, with a request that it be acknowledged by the Presenting Bank.

Up to $60,000,000 of the Facility Amount will be available to finance the Refinancing on the Refinancing Borrowing Date, together with fees, costs and expenses related thereto, as well as fees, costs and expenses related to the Refinancing and the negotiation, execution, delivery and implementation of the Definitive Documentation, and for other general corporate and working capital purposes of the Borrower and its subsidiaries (the “Refinancing Facility Amount”; the borrowing of such Refinancing Facility Amount, the “Refinancing Borrowing”).

In the event that (i) the Tender Offer Borrowing does not occur on or prior to the Tender Offer Drop Dead Date or (ii) at the mutual agreement of the parties, up to $15,000,000 of the Facility previously allocated to the Tender Offer Amount may be borrowed by the Borrower, with the proceeds thereof being available to be used for general corporate and working capital purposes of the Borrower and its subsidiaries (such borrowing being the “Supplemental Borrowing”; the Supplemental Borrowing together with the Tender Offer Borrowing and the Refinancing Borrowing, being collectively referred to as the “Borrowings” and are each individually referred to as a “Borrowing”); provided that (i) the Supplemental Borrowing must occur on or before the first anniversary of the Refinancing Borrowing Date, (ii) upon the Tender Offer Drop Dead Date, the Facility Amount will automatically be reduced to $15,000,000, and (iii) upon the occurrence of the first anniversary of the Refinancing Borrowing Date, and after giving effect to the Supplemental Borrowing (if made), the commitments under the Facility will automatically be reduced to $0.

Once repaid in whole or in part, amounts drawn under the Facility may not be re-borrowed.

Maturity Date:

Amounts outstanding under the Facility will mature on the fifth (5^th) anniversary of the Tender Offer Borrowing Date (the “Maturity Date”); provided that if the Tender Offer Borrowing does not occur, the Maturity Date shall be the fifth (5^th) anniversary of the initial Borrowing Date.

Interest:

With respect to any Borrowing, outstanding principal amounts borrowed will accrue interest at an annual rate equal to nine and four tenths percent (9.40%) (the “Applicable Margin”) plus the greater of (i) one-month LIBOR and (ii) two percent (2.00%) per annum (such annual rate, the “Base Rate”); provided that with respect to the issuance of the Presenting Bank L/C or with respect to the amounts in the Presenting Bank Escrow Account, in lieu of interest, the Borrower shall pay to the Lender a prorated fee (the “Presenting Bank Fee”) equal to (i) for the first ninety (90) days after such issuance (and no fewer than ninety (90) days), the face amount of the Presenting Bank L/C or the amount in the Presenting Bank Escrow Account, as applicable, multiplied by an annual rate equal to (x) two percent (2.00%) plus (y) the Prime Rate (or equivalent) as published from time to time in the Wall Street Journal and (ii) thereafter, the face amount of the Presenting Bank L/C or the amount in the Presenting Bank Escrow Account, as applicable, multiplied by the Base Rate, in each case, calculated until termination of the Presenting Bank L/C or the return of the amount in the Presenting Bank Escrow Account, as applicable, pursuant to the terms of this Commitment Letter.

Interest or, in the case of the Presenting Bank L/C or the amount held in escrow in the Presenting Bank Escrow Account, as applicable, the Presenting Bank Fee, will be payable monthly in arrears in cash and will be calculated on the basis of the actual number of days elapsed based on a 360-day year.

Upon the occurrence and during the continuance of a payment or bankruptcy Event of Default (to be defined in the Definitive Documentation), the Applicable Margin and, if applicable, the Presenting Bank Fee will automatically increase by three hundred (300) basis points per annum.

Upon the occurrence and during the continuance of any other Event of Default, the Applicable Margin and, if applicable, the Presenting Bank Fee will increase, at the Lender’s election and after written notice thereof by the Lender to the Borrower, by three hundred (300) basis points per annum.

Amortization:

The Facility will be interest only until the fourth (4^th) anniversary of the Tender Offer Borrowing Date; provided that if the Tender Offer Borrowing does not occur, the Facility will be interest only until the fourth (4^th) anniversary of the initial Borrowing Date. Commencing on the last business day of the forty-ninth month following such applicable anniversary date, the Borrower shall pay monthly amortization payments in an amount equal to 2.25% of the aggregate original principal amount of all Borrowings made under the Facility. On the Maturity Date, the entire remaining unpaid and outstanding balance of the Facility will be payable in full and in cash.

Draw Fee:

On each Borrowing Date, the Borrower will pay to the Lender a draw fee equal to 1.25% of the aggregate principal amount borrowed on such date (a “Draw Fee”). Each Draw Fee will be funded out of proceeds of the applicable Borrowing and will be nonrefundable once paid.

Warrants:

On the Refinancing Borrowing Date, the Borrower will issue to the Lender warrants (the “Refinancing Warrants”) exercisable into a certain number of shares of the Borrower’s common stock, determined as set forth below. The per share exercise price for 50% of such Refinancing Warrants shall be equal to the lower of (i) the 5-day volume weighted average price (“VWAP”) per share for the Company’s common stock determined as of the last trading day for the period of 5 consecutive trading days ended immediately prior to the date of the Commitment Letter and (ii) the 5-day VWAP for the period of 5 consecutive trading days ended immediately prior to the Refinancing Borrowing Date (such amount, the “Refinancing Warrant Price”); provided that the Warrant Price shall not be less than $4.60 (except as a result of Customary Adjustments (defined below)). The per share exercise price for the balance of such Refinancing Warrants shall be equal to the Warrant Price, plus twelve and one half percent (12.5%) of such Warrant Price. The number of shares issuable upon exercise of the Refinancing Warrants (subject to adjustment pursuant to the applicable Definitive Documentation) will be equal to (i) the product of the aggregate principal amount of the Refinancing Borrowing on the Refinancing Borrowing Date, multiplied by eighteen and one half percent (18.5%), divided by (ii) the Warrant Price.

The Lender will also be entitled to warrants in connection with the Tender Offer Borrowing (the “Tender Offer Warrants”) exercisable into a certain number of shares of the Borrower’s common stock, determined as set forth below. The per share exercise price for 50% of such Tender Offer Warrants shall be equal to the lower of (i) the 5-day VWAP per share for the Company’s common stock determined as of the last trading day for the period of 5 consecutive trading days ended immediately prior to the date of the Commitment Letter and (ii) the 5-day VWAP per share for the Company’s common stock determined as of the last trading day for the period of 5 consecutive trading days ended immediately prior to the date such Tender Offer Warrants are issued (such amount, the “Tender Offer Warrant Price”); provided that the Tender Offer Warrant Price shall not be less than $4.60 (except as a result of Customary Adjustments). The per share exercise price for the balance of such Tender Offer Warrants shall be equal to the Tender Offer Warrant Price, plus twelve and one half percent (12.5%) of such Tender Offer Warrant Price. The number of shares issuable upon exercise of the Tender Offer Warrants (subject to adjustment pursuant to the applicable Definitive Documentation) will be equal to (i) the product of the aggregate principal amount of the Tender Offer Borrowing multiplied by nine percent (9.0%), divided by (ii) the Tender Offer Warrant Price.

The Tender Offer Warrants will only be issued upon closing of the Tender Offer and only in the event such Tender Offer Borrowing amounts are used in connection therewith, such that if the Tender Offer Borrowing funds are deposited into the Presenting Bank Escrow Account or used to secure a letter of credit, and are thereafter returned to the Lender at the closing of the Tender Offer, no Tender Offer Warrants will be issuable by the Company; provided that upon the closing of the Tender Offer, any such funds not returned to Lender shall be considered drawn and the applicable prorated percentage of Tender Offer Warrants shall be issued thereon.

In addition, on the Supplemental Borrowing Date, the Borrower will issue to the Lender additional warrants (the “Supplemental Warrants” and, together with the Refinancing Warrants and the Tender Offer Warrants, the

“Warrants”) exercisable into a certain number of shares of the Borrower’s common stock, determined as set forth below. The per share exercise price for 50% of such Supplemental Warrants shall be equal to the lower of (i) the 5-day VWAP per share for the Company’s common stock determined as of the last trading day for the period of 5 consecutive trading days ended immediately prior to the date of the Commitment Letter and (ii) the 5-day VWAP per share for the Company’s common stock determined as of the last trading day for the period of 5 consecutive trading days ended immediately prior to the Supplemental Borrowing Date (such amount, the “Supplemental Warrant Price”); provided that the Supplemental Warrant Price shall not be less than $4.60 (except as a result of Customary Adjustments). The per share exercise price for the balance of such Supplemental Warrants shall be equal to the Supplemental Warrant Price, plus twelve and one half percent (12.5%) of such Supplemental Warrant Price. The number of shares issuable upon exercise of the Supplemental Warrants (subject to adjustment pursuant to the applicable Definitive Documentation) will be equal to (i) the product of the aggregate principal amount of the Tender Offer Borrowing or the Supplemental Borrowing, as the case may be, multiplied by nine percent (9.0%), divided by (ii) the Supplemental Warrant Price.

The Warrants will be exercisable until the 10thanniversary of the initial Borrowing Date and will be subject to customary warrant holder rights and protections, including customary adjustments for stock dividends, splits, reclassifications and the like (for purposes of clarity, no such adjustments will be made for additional equity issuances below the exercise price); provided that the terms set forth above are subject to compliance with Nasdaq listing rules.

Prepayment Fee:

Subject to the payment of the Early Prepayment Fee (defined below), the Borrower is permitted to prepay, at any time and in whole or in part, any Borrowings under the Facility, subject to the payment of a prepayment fee (an “Early Prepayment Fee”) on the amount of such prepayment as follows; provided that prepayments resulting from the release of proceeds deposited into the Presenting Bank Escrow Account or the reduction (without the use) of the amount available to be drawn under the Presenting Bank L/C shall not be subject to assessment of the Early Prepayment Fee.

With respect to the principal amount outstanding in respect of the Refinancing Borrowing only:


If prepaid during months 1 – 12:	140	%
If prepaid during months 13 – 24:	110	%
If prepaid during months 25 – 36:	107	%
If prepaid during months 37 – 48:	105	%
If prepaid during months 49 – 60 (but prior to the Maturity Date):	102	%

With respect to the principal amount outstanding in respect of any other Borrowing:


If prepaid during months 1 – 12:	105	%
If prepaid during months 13 – 24:	104	%
If prepaid during months 25 – 36:	103	%
If prepaid during months 37 – 48:	102	%
If prepaid during months 49 – 60 (but prior to the Maturity Date):	101	%

For purposes of the foregoing, until an aggregate principal amount of loans equal to the original principal amount of the Refinancing Borrowing has been prepaid, all prepayments shall be deemed to be prepayments made in respect of the outstanding principal amount of the Refinancing Borrowing.

Notwithstanding the foregoing, in the event of any prepayment, in whole or in part, of the principal amount of any Borrowing that results from a Sale (to be defined in the Definitive Documentation) of the Borrower that occurs on or before the third anniversary of the initial Borrowing Date, the Early Prepayment Fee payable in respect of such prepaid principal amount shall be equal to an amount necessary so that the Lender’s Multiple on Invested Capital (to be defined in the Definitive Documentation) with respect to such prepaid principal amount is at least 1.40x.

For purposes of calculating the Multiple on Invested Capital, such calculation shall include all amounts allocable to the applicable prepaid principal amount, whether in respect of principal, interest, Early Prepayment Fees (if applicable) or the Draw Fee (but excluding default interest and any return on or in respect of the Warrants).

Documentation Principles:

The definitive documentation for the Facility (the “Definitive Documentation”) will be consistent with the terms and conditions set forth in this Commitment Letter and will contain such other terms as the Borrower and the Lender may agree; it being understood and agreed that the Definitive Documentation will (i) not contain any conditions to the availability and funding of the Tender Offer Borrowing (and, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing) that are inconsistent with the Certain Funds Provision, (ii) be consistent with the Lender’s customary documentation for secured financing transactions in the United States of the type contemplated, (iii) give due regard to the Agreed Security Principles, and (iv) give due regard to the requirements of French law and the requirements of the Tender Offer and the Tender Offer Agreement.

Collateral:

Subject to the Certain Funds Provision and the Agreed Security Principles, the Facility will be secured by a first priority lien on all existing and after-acquired tangible and intangible assets of the Obligors and their respective subsidiaries (collectively, “Collateral”), including, but not limited to, all issued and outstanding stock of the Borrower’s and the Guarantors’ subsidiaries, cash, bank accounts, accounts receivable, inventory, intellectual property, general intangibles, PP&E, other equity interests owned by such Obligor, licenses and rights to royalties. Without limitation of the foregoing, the Borrower shall deliver to the Lender, no later than on the Tender Offer Borrowing Date, (i) the Target Securities Pledge Agreement and (ii) the Escrow Account Repayment Rights Pledge. For the avoidance of doubt, the Lender shall not benefit from any security over or with respect to the Escrow Account (as defined below) except for the Escrow Account Repayment Rights Pledge; provided that the Lender shall receive a certified, conformed copy of the Escrow Agreement (as defined below), which shall be attached for identification purposes to the Escrow Account Repayment Rights Pledge.

Covenants:

Subject to the Certain Funds Provision, the Definitive Documentation will contain, among other things, affirmative and negative covenants customary for financing transactions of the type contemplated and others reasonably appropriate for the contemplated transactions, including, but not limited to, the following: (i) limitations on the incurrence of additional indebtedness (hedging for non-speculative purposes will be permitted), (ii) limitations on liens, (iii) limitations on asset sales, (iv) limitations on acquisitions, (v) limitations on investments, dividends and other similar distributions, (vi) limitations on related-party transactions, and (vii) customary information and notice delivery requirements.

In addition to the covenants listed above, the Definitive Documentation will include only the following financial covenants: (i) a requirement to maintain at all times (in one or more controlled U.S. deposit accounts) a minimum cash balance of $7,500,000 (the “Minimum Liquidity Covenant”) and (ii) a requirement (tested quarterly) to achieve trailing twelve-month revenues at minimum levels to be mutually agreed upon, but in general to be set at a twenty-five percent (25%) discount to the Borrower’s consolidated revenue forecast provided by the Borrower to the Lender on February 28, 2020.

Representations, Warranties and Events of Default:

Customary for financing transactions of the type contemplated, subject to the Certain Funds Provision.

Conditions

Precedent to Funding of Refinancing Borrowing (occurring other than on Tender Offer Borrowing Date) and Supplemental Borrowing:

Customary for financing transactions of the type contemplated and others reasonably appropriate for the contemplated transactions, including, but not limited to, the following; provided that, with respect to the Tender Offer Borrowing (and, if made simultaneously with the Tender Offer Borrowing on the Tender Offer Borrowing Date, the Refinancing Borrowing) only the conditions set forth on Annex 1 hereto will apply (and not any of the following):

(a)

The negotiation, preparation, execution and delivery of the Definitive Documentation in all respects reasonably satisfactory to the Company and the Lender.

(b)

The Lender shall have completed (and shall be satisfied with the scope and results of) a due diligence review covering such financial, legal, insurance, accounting, technical, operational, clinical, regulatory, intellectual property and other matters involving or regarding the Borrower, its subsidiaries and their respective assets, liabilities, businesses, operations and prospects, in each case as the Lender may reasonably request (including, without limitation, with respect to securities, healthcare, labor, tax, litigation, environmental and other material legal matters).

(c)

The refinancing or repayment (including through use of the Refinancing Borrowing) of existing indebtedness currently outstanding.

(d)

The Lender shall have reviewed and shall be satisfied with the receipt and sufficiency of all governmental and third party permits, licenses, approvals and consents, in each case necessary or required to be held by or obtained by the Company or its subsidiaries and affiliates in connection with their respective assets and operations or the transactions contemplated hereby.

(e)

The Lender shall be satisfied in its sole discretion with the terms and conditions of all material contracts and agreements to which the Company and its subsidiaries are parties, including all documentation directly and indirectly associated with the payment or receipt of royalties, license fees or equivalent by the Company and its subsidiaries.

(f)

The Lender shall have received opinions of independent legal counsel to the Borrower and the Guarantors in form and substance reasonably acceptable to the Lender and its counsel, and such corporate resolutions, certificates and other documents as the Lender shall reasonably request.

(g)

All guarantees and all collateral security arrangements with respect to the Collateral shall be put in place and in full force and effect, including account control agreements for deposit and/or securities accounts (if applicable) of the Borrower and its subsidiaries, together with the perfection and recording of liens.

(h)

The Warrants to be issued on the date of such Borrowing shall have been issued to the Lender.

(i)

The Borrower shall have and maintain customary insurance of types and having coverage amounts reasonably satisfactory to the Lender, and the Borrower shall obtain insurance certificates naming the Lender as additional insured and loss payee.

(j)

No material adverse change in the business, assets, financial performance, operations, condition (financial or otherwise) or prospects of the Borrower and its subsidiaries shall have occurred since December 31, 2018.

(k)

All closing costs and fees and all unpaid reasonable expenses of the Lender incurred in connection with the proposed transactions (including the Lender’s legal fees and expenses), less the amount of the Expense Deposit (defined below), shall have been paid in full.

(l)

The Refinancing Borrowing Date shall occur (i) on or prior to the Tender Offer Borrowing Date and (ii) prior to the Tender Offer Drop Dead Date.

Expenses:

In connection with the Borrower’s request for the Facility, the Borrower understands that it will be necessary for the Lender to incur certain expenses for, among other things, financial and legal services and collateral due diligence. As such, the Borrower agrees to deposit with the Lender $50,000 to be applied by the Lender from time to time in its sole and reasonable discretion against its reasonable and documented out-of-pocket costs and expenses; provided that in the case of legal fees, costs and expenses, such fees, costs and expenses shall be limited to the fees, costs and expenses of Morrison & Foerster LLP and Stephenson Harwood AARPI, unless the Lender reasonably determines it requires advice from legal counsel in a jurisdiction in which neither Morrison & Foerster LLP nor Stephenson Harwood AARPI is qualified or possess the requisite expertise (the “Expense Deposit”). So long as the Borrower has not breached its obligations set forth in the section of the Commitment Letter titled “Exclusivity”, the Expense Deposit, together with any other deposits received by the Lender from the Borrower (if any) will be returned to the Borrower if the initial Borrowing Date has not occurred by the end of the Exclusivity Period, less all reasonable and documented costs and expenses incurred by or on behalf of the Lender as of such time.

It is further acknowledged that regardless of whether any Borrowing Date occurs, the Company agrees promptly, upon delivery by the Lender of an invoice, to pay all of the Lender’s reasonable and documented out-of-pocket legal, due diligence and other costs, including any and all such costs and expenses in excess of the Expense Deposit.

Governing Law:

New York

Annex 1

Conditions Precedent

Conditions Precedent for Borrowings on the Tender Offer Borrowing Date

Any Borrowings made on the Tender Offer Borrowing Date shall be subject solely to the satisfaction (or waiver by the Lender) of the conditions precedent set forth in Section 4 of the Commitment Letter and the following conditions precedent (subject to the Certain Funds Provision in all respects):

The Lender shall have received a copy of that certain Tender Offer Agreement, entered into as of February 28, 2020, by and between the Borrower and the Target (including the exhibits, schedules, annexes, disclosure letters and all material related documents) (the “Tender Offer Agreement”) and no provision of the Tender Offer Agreement shall have been waived, consented, amended, supplemented or otherwise modified in a manner material and adverse to the Lender without the consent of the Lender (not to be unreasonably withheld, delayed, denied or conditioned); provided that (i) any change in the form of the consideration for the Tender Offer shall require the Lender’s consent (not to be unreasonably withheld, delayed, denied or conditioned), (ii) any increase to the purchase price for the Company Securities (as defined in the Tender Offer Agreement) (the “Company Securities”) shall be deemed to not be materially adverse to the Lender so long as such increase is funded by cash on the Company’s balance sheet or pursuant to the proceeds of the convertible debt offering or is no greater than a 15% increase from the purchase price applicable in the Tender Offer Agreement on the date of the Commitment Letter (a “Permitted Tender Offer Price Increase”) and (iii) any decrease in the purchase price for the Company Securities shall be deemed to not be materially adverse to the Lender so long as such decrease is allocated to reduce the Tender Offer Facility Amount and the Borrower’s other funding sources for the purchase price on a pro rata basis (such decrease to the Tender Offer Facility Amount, a “Permitted Tender Offer Price Decrease”).

The Lender shall have received (in a form reasonably satisfactory to the Lender) a copy of the mandate letter to be entered into by and between the Borrower and Oddo, as Presenting Bank (including any exhibits, schedules, annexes and all material related documents) (the “Mandate Letter”); provided that the Mandate Letter shall provide for the Escrow Account Repayment Rights, comply in all material respects with the description of the Tender Offer set out in the Tender Offer Agreement, and no provision of the Escrow Account Repayment Rights shall have been waived, consented, amended, supplemented or otherwise modified in a manner materially adverse to the Lender without the consent of the Lender (not to be unreasonably withheld, delayed, denied or conditioned); provided, further that the Lender agrees

that any terms of the Mandate Letter shall be acceptable to the extent such terms are not materially adverse to the Lender and are either (i) substantially consistent with the Tender Offer Agreement or (ii) ministerial in nature and consistent with general market practices.

The Lender shall have received a copy of that certain Tender Commitment Agreement by and between the Borrower and certain of the shareholders of the Target (including any exhibits, schedules, annexes and all material related documents) (the “Tender Commitment Letter”)and no provision of the Tender Commitment Letter shall have been waived, consented, amended, supplemented or otherwise modified in a manner materially adverse to the Lender without the consent of the Lender (not to be unreasonably withheld, delayed, denied or conditioned).

The Lender shall have received (for information purposes only) (i) an execution version of the filing letter (being the letter to be submitted, pursuant to the Mandate Letter, by the Presenting Bank to the AMF on the date of filing of the Tender Offer), together with all attachments thereto, including, without limitation, the draft offer document and filing letter (projet de note d’information et lettre de dépôt) relating to the Tender Offer, a document presenting the Borrower’s legal, financial and account characteristics (document “autres informations”), the financial appraisal by the Presenting Bank of the consideration offered for the Company’s Shares and the Company’s OCEANE (each as defined in the Tender Offer Agreement) (the “Target Securities”), and a draft of the press release announcement related to the Tender Offer, (ii) the Tender Draft Offer Prospectus and as soon as the filing has been made with the AMF, the final tender offer document (note d’information) publicly disclosed by the Borrower and approved by the AMF; (iii) the fairness opinion; (iv) the Initial Company Board Recommendation and the Company Board Reasoned Opinion (each as defined in the Tender Offer Agreement) (the board minutes of the Target duly executed confirming the execution and delivery of the Tender Offer Agreement and according to which the acquisition of the Target by the Borrower through the Tender Offer is in the best interests of the Target, its employees, and subject to consideration of a fairness opinion, its shareholders and other holders of the Target Securities); (v) evidence of compliance with the French Foreign Investment Condition (as defined in the Tender Offer Agreement); and (vi) the legal and tax structure memo describing legal and tax implications of the offer (if any).

If the Tender Offer Borrowing is made by Lender depositing funds into an escrow with or for the benefit of the Presenting Bank, the Lender shall have received (in a form reasonably satisfactory to the Lender) an Escrow Agreement, duly executed and delivered by each of the escrow agent, the Borrower and the Presenting Bank, (including any exhibits, schedules, annexes and all material related documents) (the “Escrow Agreement”); provided that the Escrow Agreement shall provide for (i) the Escrow Account Repayment Rights and (ii) an undertaking of the Presenting Bank to

acknowledge the terms of the Escrow Account Repayment Rights Pledge and that as a result, the Lender is entitled to receive the proceeds of any release under the Escrow Account Repayment Rights, or other similar acknowledgement acceptable to the Presenting Bank and reasonably acceptable to the Lender) and no provision of the Escrow Account Repayment Rights set out in the Escrow Agreement shall have been waived, consented, amended, supplemented or otherwise modified in a manner material and adverse to the Lender without the consent of the Lender (not to be unreasonably withheld, delayed, denied or conditioned).

The Tender Offer Agreement Representations shall be true and correct as of the date such representations were made in the Tender Offer Agreement, the Specified Representations (as defined in the Commitment Letter) shall be true and correct in all material respects (except in the case of any Specified Representation which expressly relates to a given date or period, which Specified Representation will be true and correct in all material respects as of the respective date or for the respective period, as the case may be) at the time of, and after giving effect to, the Borrowings on the Tender Offer Borrowing Date; provided that to the extent that any Specified Representation is qualified by or subject to a “material adverse effect,” (a) the definition thereof with respect to any Specified Representations of the Target will be the definition of “Material Adverse Effect” (as defined in the Tender Offer Agreement) for purposes of the making or deemed making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto) and (b) “material adverse change” or similar term or qualification, the same will be true and correct in all respects.

No Material Adverse Effect (as defined in the Tender Offer Agreement) shall have occurred after the date of the Tender Offer Agreement that is continuing.

The execution and delivery by the Obligors of the Definitive Documentation consistent with the terms set forth or referred to in the Commitment Letter and the Term Sheet to which they are a party, subject to the Certain Funds Provision.

Subject to the Certain Funds Provision, the Lender shall have received evidence that all actions necessary to establish that the Lender will have a first priority, perfected lien (subject to liens permitted under the Definitive Documentation) in the Collateral have been taken.

10.

Prior to or substantially concurrently with the Tender Offer Borrowing Date, all Refinancing Warrants shall have been issued and delivered to the Lender, as provided in the Definitive Documentation.

11.

If the Refinancing Borrowing occurs on the Tender Offer Borrowing Date, the refinancing or repayment (including through use of the Refinancing Borrowing) of all

existing third party debt for borrowed money under that certain (i) Credit, Security and Guaranty Agreement, dated as of November 6, 2018 (as amended, supplemented or otherwise modified from time to time), by and among the Borrower, Alphatec Spine, Inc., Safeop Surgical, Inc., the other credit parties listed on the signature pages thereof, and Squadron Medical Finance Solutions LLC and (ii) Amended and Restated Credit, Security and Guaranty Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time), by and among the Borrower, Alphatec Spine, Inc., Alphatec International LLC, Alphatec Pacific, Inc., the other credit parties listed on the signature pages thereof, MidCap Funding IV, LLC, and the financial institutions or other entities party thereto.

12.

The Lender shall have received customary legal opinions of counsel to the Borrower (and customary French validity legal opinion of counsel to the Lender relating to the Target Securities Pledge Agreement and the Escrow Account Repayment Rights Pledge, as indicated above), corporate organizational documents of the Loan Parties or a certification of no change to such corporate organizational documents since the prior delivery to the Lender, a good standing certificate of each of the Loan Parties from their respective jurisdictions of organization, resolutions and a customary closing certificate of each Loan Party, and a customary borrowing notice, in each case, as are customary for transactions of this type.

13.

The Lender shall have received evidence that the Borrower has obtained all necessary or required consents or approvals of any Governmental Authority (other than the approval of the AMF), anti-trust authority, or other person in connection with the completion of the Tender Offer.

14.

The Borrower shall be in compliance with the Minimum Liquidity Covenant.

15.

The Lender shall have received a solvency certificate from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower in substantially the form of Annex 2 certifying that the Borrower and its subsidiaries, after giving effect to the Borrowings on the Tender Offer Borrowing Date, are solvent.

16.

The Lender shall have received all fees and, to the extent invoiced at least three (3) business days prior to the Tender Offer Borrowing Date, expenses expressly required to be paid on or prior to the Tender Offer Borrowing Date pursuant to the Definitive Documentation.

17.

The Lender shall have received, at least three (3) business days prior notice of the Tender Offer Borrowing Date (to the extent requested in writing at least three (3) business days prior to the Tender Offer Borrowing Date), all documentation and other information with respect to the Borrower that the Lender reasonably determines is

required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and, to the extent applicable, 31 C.F.R. § 1010.230.

18.

The Tender Offer Borrowing Date shall occur prior to the Tender Offer Drop Dead Date.

Annex 2

Form of Solvency Certificate

SOLVENCY CERTIFICATE

[DATE]

This Solvency Certificate (this “Certificate”) is delivered pursuant to Section [ ] of that certain Credit Agreement and Guaranty, dated as of [ ], 2020 (as amended or otherwise modified from time to time, the “Credit Agreement”), among [ ]. Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.

The undersigned hereby certifies on behalf of the Borrower as of the date hereof as follows:

1. I am the chief financial officer of the Borrower and am duly authorized to execute and deliver this Certificate on behalf of the Borrower. I have been employed in positions involving responsibility for the management of the financial affairs of the Borrower. I have, together with other officers of the Borrower, acted on behalf of the Borrower in connection with the transactions contemplated by the Credit Agreement and the other Loan Documents.

2. I have carefully reviewed the contents of this Certificate and have conferred with legal counsel for the Borrower for the purpose of discussing the meaning of its contents.

The undersigned has concluded, in good faith and to the best of his or her knowledge and belief, that as of the date hereof and after giving effect to all the transactions contemplated by the Credit Agreement and the other Loan Documents, including any Borrowings thereunder, and the incurrence of any other Indebtedness contemplated thereunder, and after giving effect to all rights of indemnity, obligation and contribution, as follows:

(i) The fair value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise.

(ii) The present fair saleable value of the property of the Borrower and its Subsidiaries, on a consolidated basis, will be greater than the amount that will be required to pay the probable liabilities on their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured.

(iii) The Borrower and its Subsidiaries, on a consolidated basis, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured.

(iv) The Borrower and its Subsidiaries have not, and do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature.

(v) The Borrower and its Subsidiaries, on a consolidated basis, will not have an unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and expected to be conducted following the date hereof.

(vi) No transfer of property is being made by the Borrower or any of its Subsidiaries and no obligation is being incurred by the Borrower or any of its Subsidiaries in connection with the transactions contemplated by the Credit Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of the Borrower or any of its Subsidiaries.

The undersigned understands that the Administrative Agent and the Lenders are relying on the truth and accuracy of this Certificate and that the delivery of this Certificate is a material inducement for the Administrative Agent and the Lenders to enter into the Credit Agreement and consummate the transactions contemplated thereby, and the undersigned hereby consents to such reliance.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has executed this certificate on the date first written above.


ALPHATEC HOLDINGS, INC.

By
		Name: [ ]
		Title: Chief Financial Officer

Annex 3

Agreed Security Principles

with Respect to Subsidiaries of the Borrower Organized in France

The parties hereto recognize that there may be legal and practical difficulties in obtaining guarantees and/or security from subsidiaries organized under the laws of France and accordingly:

(a)

general statutory limitations on “earnings stripping”, “controlled foreign corporations” (within the meaning of the Internal Revenue Code), Foreign Subsidiary Holding Companies, financial assistance, capital maintenance, corporate benefit, fraudulent preference, “thin capitalisation” rules, retention of title claims and similar principles or approval requirements may limit the ability of a subsidiary to provide a guarantee or grant security or may require that its guarantee or security be limited in amount or scope;

(b)

subsidiaries will not be required to give guarantees or enter into the Definitive Documentation if (in spite of appropriate limitations having been identified and included in the corresponding security or guarantee document in accordance with (a) above) it would conflict with the fiduciary duties of their directors or contravene any legal prohibition or result in a material risk of personal or criminal liability on the part of any officer provided that the relevant subsidiary must use reasonable endeavours to overcome any such obstacle;

(c)	without prejudice to the provisions of clause (b) above:

(i)

neither the Target nor any of its subsidiaries incorporated in France shall be required to guarantee or give security in respect of the Tender Offer Borrowing or any other indebtedness of the Borrower or its subsidiaries (other than Target and its subsidiaries) unless and until the Target has been fully acquired by the Borrower and is no longer listed on the French Stock Exchange; and

(ii)

any guarantee given by any subsidiary shall be subject to limitations set out in any document pursuant to which it accedes to the Definitive Documentation, if required by any officer of such entity in order to protect that officer or the relevant subsidiary from any of the matters set out in the preceding clauses.

Exhibit 99.1

ATEC Announces Agreement to Acquire EOS imaging

•

Accelerates revenue by creating significant pull-through and cross-selling opportunities via an expanded sales network and combined customer base, including 350+ installed imaging systems

•

Advances ATEC’s intraoperative AlphaInformatiX platform and enhances the development of predictive analytics and AI-empowered surgical planning

•

Provides international infrastructure foundational to ATEC’s future global re-expansion

•

Adds substantial imaging “know-how” to an organization steeped in spine expertise

CARLSBAD, Calif., February 28, 2020 – Alphatec Holdings, Inc. (“ATEC” or the “Company”) (Nasdaq: ATEC), a medical device company dedicated to revolutionizing the approach to spine surgery, announced today that it has entered into an agreement to acquire EOS imaging, SA, for a purchase price of up to $88 million, plus debt retirement of $33.9 million, in a combination of cash and equity.

EOS imaging is a leader in outcome-improving orthopedic medical imaging and software solutions, and is globally recognized for its rapid, low dose, biplanar full-body imaging and 3D modeling capabilities. The EOS technology informs the entire surgical process by capturing a calibrated, full-body image in a standing (weight-bearing) position, enabling precise measurement of anatomical angles and dimensions. The resulting imaging drives a more accurate understanding of patient alignment during diagnosis, elevates the likelihood of surgical goal fulfillment by integrating a fully informed plan into surgery, and enables a post-operative assessment against the original surgical plan.

“This is a monumental transaction for ATEC,” said Pat Miles, Chairman and Chief Executive Officer. “While spine’s large players are investing in enabling technologies, we are thinking differently. We created a conduit to deliver information into the operating room with AlphaInformatiX. This transaction will integrate spine imaging and anatomical modeling onto the platform to actually inform the operative experience. By pairing ATEC’s approach-based solutions with imaging founded on Nobel Prize-winning technology, we expect to significantly increase demand for ATEC hardware and EOS systems and create a formidable competitive advantage.”

“EOS is a fabulous, game-changing technology that has unquestionably improved the treatment of children, adolescents and adults with spinal deformity,” said Dr. Christopher Shaffrey, MD, Chief of Spinal Surgery and Spine Care at Duke University Medical Center.

Once closed, the transaction is expected to immediately expand ATEC’s revenue base through the addition of EOS’s revenue run rate, and create significant pull-through and cross-selling opportunities via an expanded sales network and combined customer base. The addition of EOS imaging will advance ATEC’s AlphaInformatiX platform providing capabilities in surgical planning, patient-specific implants, intraoperative alignment reconciliation, and other intraoperative functionalities resulting in a platform distinctively equipped to address the requirements of spine surgery.

The Company expects the acquisition to be accretive to revenue, revenue growth, adjusted EBITDA and free cash flow in the first full year of operations following the transaction close.

With more than 500 scientific articles published in leading journals, EOS’s technology has achieved widespread support and endorsement from the academic community and thought leaders worldwide. EOS’s installed base of over 350 imaging systems encompasses 9 of the top 10 U.S. hospitals, and 20

of the top 25¹. Additionally, EOS’s well-established international footprint will expedite ATEC’s future ability to enter and penetrate key markets outside of the United States.

“We are very enthusiastic about the opportunity to join the complementary strengths and know-how of EOS imaging and ATEC,” said Mike Lobinsky, Chief Executive Officer of EOS imaging. “I have no doubt that our organizations will be able to quickly create a highly differentiated end-to-end offering that will accelerate growth in the U.S. in the short term, while we continue to expand internationally, paving the way for the future global growth of the combined entity.”

The Boards of Directors of both ATEC and EOS have approved the execution of a tender offer agreement (the “Tender Offer Agreement”), through which ATEC will launch a tender offer for all of the issued and outstanding shares and convertible notes of EOS imaging for a total purchase price of up to $121.5 million (the “Offer”). The Offer will consist of a cash tender offer for a price of EUR 2.80 per EOS share (the “Cash Offer”), or at the option of each EOS shareholder, an exchange tender offer whereby each EOS shareholder will receive 0.50 ATEC common shares per EOS share (the “Exchange Offer”).

About EOS imaging

Based in Paris, EOS imaging develops and commercializes imaging systems (EOS and EOSedge systems) that provide a full-body evaluation of the patient in a standing position, resulting in a comprehensive understanding of how the patient is compensating in the hips, knees and ankles to maintain an upright posture. The measurements factor into a holistic approach to the development of customized surgical plans, which can then be integrated seamlessly into the operating room.

Utilizing advanced predictive analytics, EOS technology is uniquely capable of correlating preoperative and postoperative imaging to assure, from the operating room, the achievement of alignment, the most prognostic factor of long-term successful surgical outcomes. Compared to the conventional spine-imaging modalities, X-Ray and CT, the EOS systems significantly reduce radiation doses and exam times, producing unstitched, full-body, biplanar, high-quality images at lower cost.

Key Features of the EOS imaging Portfolio

•

Standing full-body assessment. Head to toe biplanar exams in the weight-bearing position for accurate assessment of factors causing pain and disability to better guide treatment and surgical decisions. Surgical planning from a standing position enables alignment parameters that more closely match functional posture.

•

Reduced radiation exposure. Driven by the ALARA* principle, the EOS or EOSedge exam delivers a minimal dose of radiation to reduce the long term impact of repeated imaging.

•

Precise 3D measurements. Patient-specific measurements, dimensions and angles to make informed clinical decisions at all stages of care.

•

EOSapps and EOSlink for surgical planning and OR integration. Pre-operative planning software to anticipate surgical results and select components for spine surgery; pairs with surgical technologies for precise execution with EOSlink

¹	US News & World Report Best Orthopedic Hospitals list (2019-2020)

EOS has imaging systems installed in more than 30 countries generating more than 1 million patient exams annually. Listed on the Euronext Paris Exchange, EOS has corporate locations in the U.S., France, Canada, Germany and Singapore, and engages more than 175 employees. For additional information, please visit www.EOS-imaging.com.

Key Terms of the Transaction

Under the terms of the Offer, EOS’s shareholders would receive either EUR €2.80 (or approximately USD $3.08) per EOS share under the Cash Offer or 0.50 ATEC common shares per EOS share under the Exchange Offer.

The Cash Offer price represents a premium of 64% based on the closing price of EOS shares on February 27, 2020 and of 43%, 26%, and 58% over the volume-weighted average share price of EOS over the last one, three and six month(s), respectively, preceding this date.

The Exchange Offer ratio reflects a premium of 67% on EOS’ closing share price on February 27th, 2020 calculated using ATEC’s share price and the EUR to USD exchange rate as of market close on February 27th, 2020.

The Exchange Offer reflects a premium of 53%, 41%, and 64% calculated using the volume-weighted average share prices of EOS and ATEC over the last one, three and six month(s), respectively and the EUR to USD exchange rate as of market close on February 27th, 2020.

Each EOS shareholder will be entitled to elect between the Cash Offer and the Exchange Offer, subject to adjustments that will ensure that, in the aggregate, the number of common shares issued by ATEC shall not exceed 20% of ATEC’s current outstanding shares of common stock (or approximately 12.5 million shares based upon the current number of shares of common stock outstanding).

Holders of approximately 23% of EOS’s outstanding common shares have entered into agreements to tender for ATEC shares under the Exchange Offer, representing approximately EUR €17.4 million (or approximately USD $19.1 million) of the total purchase price, subject to certain conditions.

The Offer will also target all outstanding EOS convertible notes (“EOS OCEANE”, or the “Notes”). The holders of the Notes would receive either EUR €7.01 (or approximately USD $7.71) per EOS OCEANE as part of the Cash Offer.

It is expected that the Offer will be filed with the French Financial Markets Authority (Autorité des marchés financiers) (“AMF”) in late April 2020. The transaction is expected to close in the third quarter of 2020, subject to customary closing conditions, including obtaining regulatory clearance from the AMF, French foreign investment clearances and a favorable opinion of the EOS board of directors based on the fairness opinion issued by the independent expert appointed by EOS.

Financing Commitment

ATEC has entered into a commitment letter with Perceptive Advisors (“Perceptive”) which provides debt financing of up to $160 million from affiliates of Perceptive. The financing consists of: 1) a committed facility of up to $60 million to retire certain existing debt facilities of ATEC; and 2) a facility of up to $100 million ($70 million of which is fully committed) to fully fund the Cash Offer.

“We are pleased to be partnering with ATEC on this transformative transaction,” said Sam Chawla, Portfolio Manager, Perceptive Advisors. “We have witnessed a tremendous repositioning of ATEC over the past two years, and are happy to support the company’s continued evolution. We believe that the combination will drive true clinical distinction and enhance ATEC’s already growing market position.”

ATEC paid Perceptive a fee of $1.3 million in connection with Perceptive’s commitments.

Borrowings under the Perceptive facility are subject to customary conditions for committed facilities, including, among others, the consummation of the EOS acquisition without material changes, payment of fees and expenses, issuance of applicable fees upon draws, entry into definitive documentation reflecting the terms of the Perceptive commitment letter, and no material adverse effect with respect to EOS.

Additional details regarding the Tender Offer Agreement and Perceptive commitment can be found in ATEC’s Current Report on Form 8-K to be filed with the SEC.

Advisors

Cowen is acting as financial advisor to ATEC, and Latham & Watkins LLP is serving as legal counsel. Piper Sandler is acting as financial advisor to EOS imaging, and Gide Loyrette Nouel is serving as legal counsel.

Conference Call

The Company will host conference call on Friday, February 28 at 6:00 a.m. PT / 9:00 a.m. ET to discuss this transaction. The conference call will be available domestically at (877) 556-5251 and internationally at (720) 545-0036. The conference ID number is 6599245. Presentation materials for the conference call are available here https://alphatecholdingsinc.gcs-web.com/news-events/events-presentations.

About Alphatec Holdings, Inc.

Alphatec Holdings, Inc. (ATEC), through its wholly-owned subsidiaries, Alphatec Spine, Inc. and SafeOp Surgical, Inc., is a medical device company dedicated to revolutionizing the approach to spine surgery through clinical distinction. ATEC architects and commercializes approach-based technology that integrates seamlessly with the SafeOp Neural InformatiX System to provide real-time, objective nerve information that can enhance the safety and reproducibility of spine surgery. Additional information can be found at www.atecspine.com.

About Perceptive Advisors

Founded in 1999 and based in New York, NY, Perceptive Advisors is an investment management firm with over $5 billion in assets whose activities are focused on supporting the progress of the life sciences industry by identifying opportunities and directing financial resources to the most promising technologies in healthcare. For more information about Perceptive, visit www.perceptivelife.com.

Forward Looking Statements

This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. The Company cautions investors that there can be no assurance that actual results will not differ materially from those projected or suggested in such forward-looking statements as a result of various factors. Forward-looking statements include, but are not limited to, statements about the timing of the anticipated acquisition, when and whether the anticipated acquisition ultimately will close, the expectation that certain existing EOS shareholders will tender in the Exchange Offer, the potential benefits and synergies of the anticipated acquisition, including the expected impact on future financial and operating results, post-acquisition plans and intentions, and plans to obtain financing pursuant to the Perceptive commitment and the uses therefrom. The forward-looking statements contained herein are based on the current expectations and assumptions of the Company and not on historical facts. The following important factors, among others, could cause actual results to differ materially from those set forth in the forward-looking statements: uncertainties as to the timing of the Offer and the closing of the acquisition; uncertainties as to the percentage of EOS’s securityholders tendering their shares in the Offer; the possibility that competing offers will be made; risks related to the AMF‘S review of the Offer; the satisfaction of conditions to closing the Offer and completing the acquisition; the satisfaction of conditions,

including applicable regulatory clearances, set forth in the EOS shareholder agreements to tender for ATEC shares, which if not met, could increase the Cash Offer price; the occurrence of any event, change or other circumstance that could give rise to the termination of the Tender Offer Agreement; the effect of the announcement of the Offer and related transactions on the ability of the parties to retain and hire key personnel, maintain relationships with their customers and suppliers, and maintain their operating results and business generally; the inability to reach a 90% threshold in the Offer which would result in EOS continuing to be traded on Euronext and related regulatory requirements in connection therewith; the inability of the Company to secure the financing contemplated to be obtained pursuant to the Perceptive commitment on the expected terms or timing, or at all, whether as a result of failure to meet certain conditions or otherwise; risks related to potential litigation in connection with the Offer or the closing that may result in significant costs of defense, indemnification and liability; the risk that the businesses will not be integrated successfully; unexpected variations in market growth and demand for the combined company’s products and technologies; and the risk that benefits and synergies from the acquisition may not be fully realized or may take longer to realize than expected. The words “believe,” “will,” “should,” “expect,” “intend,” “estimate,” “look forward” and “anticipate,” variations of such words and similar expressions identify forward-looking statements, but their absence does not mean that a statement is not a forward-looking statement. A further list and description of these and other factors, risks and uncertainties can be found in the Company’s most recent annual report, and any subsequent quarterly and current reports, filed with the Securities and Exchange Commission. ATEC disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law.

Certain Legal Matters

Investor/Media Contact:

Josh Berg

Investor Relations

(760) 494-6790

ir@atecspine.com

Company Contact:

Jeff Black

Chief Financial Officer

Alphatec Holdings, Inc.

ir@atecspine.com

INFORMING BETTER SURGERY WITH ADVANCED SPINE IMAGING TRANSFORMING OUR PORTFOLIO WITH THE ACQUISITION OF EOS IMAGING Pat Miles, Chairman & CEO | February 28, 2020 Exhibit 99.2

This presentation contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainty. Such statements are based on management's current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Alphatec Holdings, Inc. (the “Company” or “ATEC”) cautions investors that there can be no assurance that actual results or business conditions will not differ materially from those projected or suggested in such forward-looking statements. Forward-looking statements include statements about the timing of the anticipated acquisition, when and whether the anticipated acquisition ultimately will close, the expectation that certain existing EOS imaging S.A. (“EOS”) shareholders will tender in the exchange portion of the tender offer (the “Offer”), the potential benefits and synergies of the anticipated acquisition, including the expected impact on future financial and operating results, post-acquisition plans and intentions, and plans to obtain financing pursuant to the Perceptive Advisors (“Perceptive”) financing commitment and the uses therefrom. The forward-looking statements contained herein are based on the current expectations and assumptions of the Company and not on historical facts. The important factors that could cause actual operating results to differ significantly from those expressed or implied by such forward-looking statements include, but are not limited to: uncertainties as to the timing of the Offer and the closing of the acquisition; uncertainties as to the percentage of EOS security holders tendering their shares in the Offer; the possibility that competing offers will be made; risks related to French regulatory review of the Offer; the satisfaction of conditions to closing the Offer and completing the acquisition; the satisfaction of conditions, including applicable regulatory clearances, set forth in the EOS shareholder agreements to tender for ATEC shares, which if not met, could increase the cash paid by the Company in the Offer; the occurrence of any event, change or other circumstance that could give rise to the termination of the Tender Offer Agreement; the effect of the announcement of the Offer and related transactions on the ability of the parties to retain and hire key personnel, maintain relationships with their customers and suppliers, and maintain their operating results and business generally; the inability to reach a 90% threshold in the Offer which would result in EOS continuing to be traded on Euronext and related regulatory requirements in connection therewith; the inability of the Company to secure the financing contemplated to be obtained pursuant to the Perceptive commitment on the expected terms or timing, or at all, whether as a result of failure to meet certain conditions or otherwise; risks related to potential litigation in connection with the Offer or the closing that may result in significant costs of defense, indemnification and liability; the risk that the businesses will not be integrated successfully; unexpected variations in market growth and demand for the combined company’s products and technologies; and the risk that benefits and synergies from the acquisition may not be fully realized or may take longer to realize than expected. The words “believe,” “will,” “should,” “expect,” “intend,” “estimate,” “look forward” and “anticipate,” variations of such words and similar expressions identify forward-looking statements, but their absence does not mean that a statement is not a forward-looking statement. A further list and description of these and other factors, risks and uncertainties can be found in the Company's most recent annual report, and any subsequent quarterly and current reports, filed with the Securities and Exchange Commission. ATEC disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law. Certain Legal Matters This presentation is not intended to, and does not, constitute, represent or form part of any offer, invitation or solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of, any securities whether pursuant to this presentation or otherwise. The distribution of this presentation in jurisdictions outside the United States or France may be restricted by law or regulation and therefore any person who comes into possession of this presentation should inform themselves about, and comply with, such restrictions. Any failure to comply with such restrictions may constitute a violation of the securities laws or regulations of any such relevant jurisdiction. EOS is incorporated in France and listed on Euronext and any offer for its securities will be subject to French disclosure and procedural requirements, which differ from those that are applicable to offers conducted solely in the United States, including with respect to withdrawal rights, offer timetable, settlement procedures and timing of payments. The transactions described in this presentation will be structured to comply with French and U.S. securities laws and regulations applicable to transactions of this type. FORWARD LOOKING STATEMENTS

INTRODUCING EOS IMAGING RAPID, CALIBRATED, FULL-BODY SCAN BIPLANAR SPINE IMAGING & ANATOMICAL MODELING Academic influence Units installed globally 350 Customized care Technological foundation +

SPINE’S TOP 5 HAVE INVESTED IN ENABLING IMAGING TECHOLOGIES We think about it differently. We intend to use imaging to holistically inform spine surgery. 75% share

We have created a conduit to deliver information into the operating room WITH EOS, WE WILL BETTER INFORM THE OPERATIVE EXPERIENCE L R

EOS TECHNOLOGY “INTERNATIONAL CONSENSUS” ON HOW TO INFORM SPINE SURGERY* * Source: Sigurd H. Berven, Steven J. Kamper, Niccole M. Germscheid, Benny Dahl, Christopher I. Shaffrey, Lawrence G. Lenke, Stephen J. Lewis, Kenneth M. Cheung, Ahmet Alanay, Mannabu Ito, David W. Polly, Yong Qui, Minus de Kleuver, AOSpine Knowledge Forum Deformity, 2018, An international consensus on the appropriate evaluation and treatment for adults with spinal deformity, Eur Spine 27(3):585-596. doi: 10.1007/s00586-017-5241-1. Epub 2017 Aug 5.

BETTER INFORMED AT ALL STAGES OF CARE PRE-OP PLANNING SURGERY POST-OP ASSESSMENT FOLLOW-UP FULL-BODY BIPLANAR IMAGES DIAGNOSIS More accurate understanding of patient alignment Elevates likelihood of surgical goal fulfillment by integrating fully informed plans into surgery Correlates post-operative image against the original surgical plan Rapid, calibrated, low-dose image capture of patient in standing (weight-bearing) position Reconciles pre-operative plan to intraoperative achievement Consistent, calibrated images allow application of predictive analytics

EOS’ TOP U.S. HOSPITAL PENETRATION Significant academic footprint 90% of the top 10* 80% of the top 25* * US News & World Report Best Orthopedic Hospitals list (2019-2020)

PRESTIGIOUS INTERNATIONAL FOOTPRINT 40% of installed base N America 45% 15% A foundation to support future global expansion of installed base EMEA of installed base AsiaPac

CLINICAL PROWESS STRATEGIC RATIONALE Combines world-class “advanced imaging” know-how with ATEC spine expertise Advanced, 3D surgical planning Anterior column - # levels, size, angle Posterior column - fixation planning, # levels, screw sizes, rod contouring, release Patient-specific biomechanical models simulate plan and optimize alignment considerations Application of outcomes-based predictive analytics informs future spine care

Customized surgical configurations optimize inventory planning and cost to serve Complementary sales channels Elevates the ATEC brand with Nobel-prize winning radiation detection technology* that has strong academic influence and >500 peer-reviewed publications Creates access to EOS’ global account base and accelerates future OUS penetration OPERATIONAL & ORGANIZATIONAL ADVANTAGES STRATEGIC RATIONALE * Radiation technology used to create EOS imaging was awarded the Nobel Prize in Physics

FINANCIAL IMPACT Jeff Black, VP & CFO | February 28, 2020

P&L IMPACT Expands revenue base and accelerates growth, adding ~$40M* to annual revenue Equipment installed base 5-Year CAGR >25% ~75% of revenue mix** Recurring maintenance 5-Year CAGR >35% ~25% of revenue mix** Expected to be accretive to adjusted EBITDA and free cash flow in the first full year of operations FURTHER DETAIL WHEN TRANSACTION CLOSES EXPECTED IN ~Q3 2020 * Based on EOS Imaging 2019 operating results: ~$26M booked imaging systems orders and ~$13M maintenance revenue ** Based on trailing 3 years 2017-2019

ECONOMICS DEAL SUMMARY Purchase Price: up to $88M, plus ~$33.9M retirement of debt €2.80 (~$3.08) cash per share cash or 0.50 ATEC common shares per EOS share ~€7.01 (~$7.71) per convertible bond, or ~$33.9M STRUCTURE Tender Offer Agreement: ATEC will file a public tender offer for EOS shares Filing and clearance by French regulatory authority (AMF) required prior to launching offer Expected filing of tender: late April Expected close: Q3 2020 TENDER COMMITMENTS Secured commitments: ~23% of outstanding EOS shares tender for ATEC shares 100% lock-up for initial 3 months; 75% lock-up the following 3 months

FINANCING SUMMARY: PERCEPTIVE ADVISORS UP TO $160M NEW CAPITAL* $60M Refinancing Tranche to retire existing term debt and revolver Up to $100M Tender Offer Tranche to fund cash required to complete purchase of EOS * For additional information, please refer to the press release issued 2.27.20 at www.alphatecspine.com, and Form 8-K.

INFORMING BETTER SURGERY WITH ADVANCED SPINE IMAGING TRANSFORMING OUR PORTFOLIO WITH THE ACQUISITION OF EOS IMAGING