false 0001760173 0001760173 2023-02-28 2023-02-28

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 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, 2023

 

 

SURGALIGN HOLDINGS, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware   001-38832   83-2540607

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

520 Lake Cook Road, Suite 315, Deerfield, Illinois   60015
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (877) 343-6832

(Former Name or Former Address, if Changed Since Last Report)

 

 

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, $0.001 par value    SRGA    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.

On February 28, 2023, Surgalign SPV, Inc., a Delaware corporation (“Surgalign SPV”) an indirect subsidiary of Surgalign Holdings, Inc., a Delaware corporation (the “Company”), Surgalign Spine Technologies, Inc, a Delaware corporation and sole stockholder of Surgalign SPV (“Seller”), the Company and Xtant Medical Holdings, Inc., a Delaware corporation (“Xtant” or “Buyer”) entered into an Equity Purchase Agreement (the “Coflex Purchase Agreement”), pursuant to which, among other things and concurrently with execution thereof, Xtant acquired 100% of the issued and outstanding equity of Surgalign SPV, from Seller (the “Coflex Transaction”). No material relationship exists between the parties, other than with respect to the material definitive agreements.

The aggregate consideration paid in the Coflex Transaction for 100% of Surgalign SPV’s equity securities was $17.0 million in cash. The Coflex Purchase Agreement contains customary representations and warranties by the Company, Seller and Xtant. As a result of the Coflex Transaction, Xtant acquired the Company’s Coflex and Cofix product lines in the United Stated and worldwide intellectual property rights therein. Seller, Surgalign SPV and Xtant also entered into a Transition Services Agreement, dated as of February 28, 2023 (the “Transition Services Agreement”), in connection with the Coflex Transaction pursuant to which Seller has agreed to provide certain transition services to Xtant immediately after the closing for an agreed upon transition period. The Company’s board of directors has approved the Coflex Transaction. Buyer’s board of directors has similarly approved the Coflex Transaction.

The foregoing description does not purport to be complete and is qualified in its entirety by reference to (a) the other items of this Current Report on Form 8-K and (b) the Coflex Purchase Agreement and the Transition Services Agreement, which are filed herewith as Exhibits 2.1 and 10.1, respectively, and are incorporated by reference herein.

The representations, warranties, and covenants contained in the Coflex Purchase Agreement have been made solely for the purposes of the Coflex Purchase Agreement and as of specific dates; were solely for the benefit of the parties to the Coflex Purchase Agreement; are not intended as statements of fact to be relied upon by the parties’ stockholders or other security holders, but rather as a way of allocating the risk between the parties in the event the statements therein prove to be inaccurate; have been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Coflex Purchase Agreement, which disclosures are not reflected in the Coflex Purchase Agreement itself; may no longer be true as of a given date; and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders or other security holders. Except as specifically set forth in the Coflex Purchase Agreement, security holders are not third-party beneficiaries under the Coflex Purchase Agreement and should not rely on the representations, warranties, and covenants or any descriptions thereof as characterizations of any actual state of facts or of the condition of the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Coflex Purchase Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Company acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements of this Current Report on Form 8-K not misleading.

 

Item 2.01

Completion of Acquisition or Disposition of Assets

The information contained above in Item 1.01 related to the Coflex Transaction is hereby incorporated by reference into this Item 2.01.

The consummation of the Coflex Transaction constituted a significant disposition for purposes of Item 2.01 of Form 8-K. Accordingly, the pro forma financial information required by Item 9.01 is included below.


Item 9.01.

Financial Statements and Exhibits

(b)

SURGALIGN HOLDINGS, INC. AND SUBSIDIARIES

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Sale of U.S. Coflex and Cofix products

The information set forth above in Items 1.01 and 2.01 regarding the sale of the Coflex and Cofix product lines is hereby incorporated by reference in Section 9.01

Unaudited Pro Forma Condensed Consolidated Financial Statements

The sale of Coflex and Cofix constitutes a significant disposition of a business for purposes of Item 2.01 of Form 8-K. As a result, the following unaudited pro forma consolidated statements of operations for the nine months ended September 30, 2022 and the year ended December 31, 2021 are presented as if the disposition had occurred on January 1, 2021. The following unaudited pro forma consolidated balance sheet as of September 30, 2022 is presented as if the disposition had occurred on September 30, 2022. The Company determined the disposition does not represent a strategic shift, and accordingly, the Company has not accounted for the disposition as a discontinued operation in accordance with ASC 205, Discontinued Operations.

The unaudited pro forma consolidated financial statements have been derived from historical financial statements prepared in accordance with U.S. generally accepted accounting principles (“US GAAP”) and are presented based on assumptions, adjustments, and currently available information described in the accompanying notes. They are intended for informational purposes only and are not intended to represent the Company’s financial position or results of operations had the disposition occurred on the dates indicated, or to project the Company’s financial performance for any future period. Pro forma adjustments have been made for events that are directly attributable to the disposition and factually supportable.

Article 11 of Regulation S-X requires that pro forma financial information include the following pro forma adjustments to the historical financial statements of the registrant as follows:

 

   

Transaction Accounting Adjustments – Adjustments that reflect only the application of required accounting to the acquisition, disposition, or other transaction.

 

   

Autonomous Entity Adjustments – Adjustments that are necessary to reflect the operations and financial position of the registrant as an autonomous entity when the registrant was previously part of another entity.

In addition, Regulation S-X permits registrants to reflect adjustments that depict synergies and dis-synergies of the acquisitions and dispositions for which pro forma effect is being given in our disclosures as management adjustments.


The transaction accounting adjustments to reflect the business in the unaudited pro forma condensed consolidated financial statements include:

 

   

The sale of the assets and liabilities of the business pursuant to the Agreement;

 

   

Estimated impact of the cash proceeds received in connection with the transaction, net of transaction costs and income taxes paid.

There are no autonomous entity adjustments included in the pro forma financial information. Additionally, the unaudited pro forma condensed consolidated financial statements do not include management adjustments to reflect any potential synergies that may be achievable, or dis-synergy costs that may occur, in connection with the divestiture of the business.

The unaudited pro forma consolidated financial statements have been prepared in accordance with Article 11 of Regulation S-X and should be read in conjunction with the following:(i) the accompanying notes to the unaudited pro forma consolidated financial statements; (ii) the Company’s audited consolidated financial statements for the year ended December 31, 2021 and related notes thereto, and Management’s Discussion and Analysis of Financial Condition and Results of Operations included in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission (the “SEC”) on March 15, 2022; and (iii) the Company’s unaudited consolidated financial statements as of and for the nine month period ended September 30, 2022 and related notes thereto, and Management’s Discussion and Analysis of Financial Condition and Results of Operations included in the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022.


SURGALIGN HOLDINGS, INC. AND SUBSIDIARIES

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET

As of September 30, 2022

(In thousands, except share data)

 

     As Reported     Pro Forma
Adjustments
    Notes     Pro Forma  

Assets

        

Current Assets:

        

Cash and cash equivalents

   $ 13,845     $ 17,000       (a)     $ 30,845  

Accounts receivable - net

     18,938           18,938  

Inventories - current

     22,737       (375     (b)       22,362  

Prepaid and other current assets

     11,129           11,129  
  

 

 

   

 

 

     

 

 

 

Total current assets

     66,649       16,625         83,274  

Non-current inventories

     15,582       (540     (b)       15,042  

Property and equipment – net

     1,782       (28     (b)       1,754  

Other assets – net

     4,030           4,030  
  

 

 

   

 

 

     

 

 

 

Total assets

   $ 88,043     $ 16,057       $ 104,100  
  

 

 

   

 

 

     

 

 

 

Liabilities, Mezzanine Equity and Stockholders’ Equity

        

Current Liabilities:

        

Accounts payable

   $ 13,062     $         $ 13,062  

Current portion of acquisition contingency – Holo

     9,189           9,189  

Accrued expenses

     11,835       2,550       (d)       14,385  

Accrued income taxes

     604           604  
  

 

 

   

 

 

     

 

 

 

Total current liabilities

     34,690       2,550         37,240  

Acquisition contingencies – Holo

     15,555           15,555  

Warrant liability

     1,504           1,504  

Notes payable – related party

     10,139           10,139  

Other long-term liabilities

     3,769           3,769  
  

 

 

   

 

 

     

 

 

 

Total liabilities

     65,657       2,550         68,207  

Commitments and contingencies

        

Mezzanine equity

     10,006           10,006  

Stockholders’ equity:

        

Common stock, $.001 par value: 300,000,000 shares authorized; 6,750,337 shares issued and outstanding, as of September 30, 2022

     7           7  

Additional paid-in capital

     605,457           605,457  

Accumulated other comprehensive loss

     (2,062         (2,062

Accumulated deficit

     (585,107     13,507       (f)       (571,600

Less treasury stock, 63,571, as of September 30, 2022 at cost

     (5,915         (5,915

Total stockholders’ equity

     12,380       13,507         25,887  
  

 

 

   

 

 

     

 

 

 

Total liabilities, mezzanine equity and stockholders’ equity

   $ 88,043     $ 16,057       $ 104,100  
  

 

 

   

 

 

     

 

 

 

See notes to unaudited condensed consolidated financial statements.


SURGALIGN HOLDINGS, INC. AND SUBSIDIARIES

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS

For the Nine Months Ended September 30, 2022

(In thousands, except per share data)

 

     As Reported     Pro Forma
Adjustments
    Notes   Pro Forma  

Revenues

   $ 61,406     $ (10,931   (c)   $ 50,475  

Costs of goods sold

     18,310       (703   (c)     17,607  
  

 

 

   

 

 

     

 

 

 

Gross profit

     43,096       10,227         32,869  
  

 

 

   

 

 

     

 

 

 

Operating Expenses:

        

General and administrative

     73,461       (6,334   (e)     67,127  

Research and development

     12,402       (68   (e)     12,334  

Loss (gain) on acquisition contingency

     (17,184         (17,184

Asset impairment and abandonments

     4,270           4,270  

Transaction and integration expenses

     1,352           1,352  
  

 

 

   

 

 

     

 

 

 

Total operating expenses

     74,301       (6,402       67,899  
  

 

 

   

 

 

     

 

 

 

Other operating income, net

     (898         (898
  

 

 

   

 

 

     

 

 

 

Operating loss

     (30,307     (3,825       (34,132
  

 

 

   

 

 

     

 

 

 

Other expense (income) - net

        

Other (income) expense - net

     379           379  

Interest Expense

     756           756  

Foreign exchange loss (gain)

     2,677           2,677  

Change in fair value of warrant liability

     (18,917         (18,917
  

 

 

   

 

 

     

 

 

 

Total other (income) expense - net

     (15,105         (15,105
  

 

 

   

 

 

     

 

 

 

Loss before income tax (benefit) provision

     (15,202     (3,825       (19,027

Income tax provision (benefit)

     292       —       (g)     292  
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations

     (15,494     (3,825       (19,319
  

 

 

   

 

 

     

 

 

 

Net loss applicable to noncontrolling interests

     —             —    

Net (loss) applicable to Surgalign Holdings, Inc.

     (15,494     (3,825       (19,319
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations per share applicable to Surgalign
Holdings, Inc. - basic

   $ (2.44   $         $ (3.04
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations per share applicable to Surgalign
Holdings, Inc. - diluted

   $ (2.44   $         $ (3.04
  

 

 

   

 

 

     

 

 

 

Weighted average shares outstanding - basic

     6,356,655           6,356,655  
  

 

 

   

 

 

     

 

 

 

Weighted average shares outstanding - diluted

     6,356,655           6,356,655  
  

 

 

   

 

 

     

 

 

 

See notes to unaudited condensed consolidated financial statements.


SURGALIGN HOLDINGS, INC. AND SUBSIDIARIES

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS

For the Fiscal Year Ended December 31, 2021

(In thousands, except share and per share data)

 

     As Reported     Pro Forma
Adjustments
    Notes   Pro Forma  

Revenues

   $ 90,500     $ (17,821   (c)   $ 72,679  

Costs of goods sold

     29,775       (612   (c)     29,163  
  

 

 

   

 

 

     

 

 

 

Gross profit

     60,725       17,209         43,516  
  

 

 

   

 

 

     

 

 

 

Operating Expenses:

        

General and administrative

     104,668       (9,173   (e)     95,495  

Research and development

     13,888       (85   (e)     13,803  

Loss (gain) on acquisition contingency

     (4,587         (4,587

Asset acquisition expenses

     72,087           72,087  

Asset impairment and abandonments

     12,195           12,195  

Transaction and integration expenses

     3,689       2,550     (d)     6,239  
  

 

 

   

 

 

     

 

 

 

Total operating expenses

     201,940       (6,708       195,105  
  

 

 

   

 

 

     

 

 

 

Other operating income, net

     (3,932         (3,932
  

 

 

   

 

 

     

 

 

 

Operating loss

     (137,283     (10,501       (147,784
  

 

 

   

 

 

     

 

 

 

Other (income) expense - net

        

Other (income) expense - net

     (202     (13,507   (f)     (13,709

Foreign exchange loss (gain)

     1,447           1,447  

Change in fair value of warrant liability

     (14,736         (14,736
  

 

 

   

 

 

     

 

 

 

Total other (income) expense - net

     (13,491     (13,507       (26,998
  

 

 

   

 

 

     

 

 

 

Loss before income tax (benefit) provision

     (123,792     3,006         (120,786

Income tax (benefit) provision

     (886     —       (g)     (886
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations

     (122,906     3,006         (119,900
  

 

 

   

 

 

     

 

 

 

Net loss applicable to noncontrolling interests

     41,897           41,897  
  

 

 

   

 

 

     

 

 

 

Net (loss) applicable to Surgalign Holdings, Inc.

     (84,651     3,006         (78,003
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations per share applicable to Surgalign
Holdings, Inc. - basic

   $ (1.00   $         $ (0.64
  

 

 

   

 

 

     

 

 

 

Net loss from continuing operations per share applicable to Surgalign
Holdings, Inc. - diluted

   $ (1.00   $         $ (0.64
  

 

 

   

 

 

     

 

 

 

Weighted average shares outstanding - basic

     122,592,569           122,592,569  
  

 

 

   

 

 

     

 

 

 

Weighted average shares outstanding - diluted

     122,592,569           122,592,569  
  

 

 

   

 

 

     

 

 

 

See notes to unaudited condensed consolidated financial statements.


SURGALIGN HOLDINGS, INC.

NOTES TO UNAUDITED CONDENSED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS

The following adjustments have been reflected in the unaudited pro forma condensed consolidated financial statements:

(a) Reflects the cash proceeds received from Xtant in connection with the disposition.

(b) Adjustment reflects the removal of Coflex and Cofix related assets transferred to Xtant as a part of the disposition. This includes both inventory and instruments.

(c) Adjustment reflects the removal of revenues and costs of goods sold related to Coflex and Cofix.

(d) Adjustment reflects the incremental non-recurring transaction costs expected to be incurred by the Company that have not been recognized in the historical financial statements. These costs consist of financial advisors and legal costs. The adjustment is recorded in the earliest period presented and the related accrued expense is also reflected in the unaudited pro forma condensed consolidated balance sheet.

(e) Adjustment reflects operating expenses which are specific to Coflex and Cofix.

(f) Adjustment reflects the estimated gain on disposal. The actual net gain on the disposition will be recorded in the Company’s financial statements for the first quarter of 2023 and may differ from the current estimate.

(g) No income tax adjustment has been made to the unaudited pro forma condensed consolidated statement of operations as the tax benefit for the expected tax loss on disposition would not be realized based on the Company’s existing U.S. valuation allowance position. The estimated tax impact is subject to change and the actual impact could differ from the results reflected herein.


(d) Exhibits.

Exhibit Index

 

Exhibit
No.

  

Description

  2.1    Equity Purchase Agreement between Surgalign Spine Technologies, Surgalign SPV Inc., and Xtant Medical Holdings Inc. dated February 28, 2023.
10.1†    Transition Services Agreement between Surgalign Spine Technologies Inc., Surgalign SPV Inc. and Xtant Medical Holdings Inc. dated February 28. 2023
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

Pursuant to Item 601(b)(10) of Regulation S-K, certain confidential portions of this exhibit were omitted by means of marking such portions with an asterisk because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.


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.

 

    SURGALIGN HOLDINGS, INC.
Date: March 6, 2023     By:  

/s/ Paolo G. Amoruso

    Name:   Paolo G. Amoruso
    Title:   General Counsel and Corporate Secretary

Exhibit 2.01

EQUITY PURCHASE AGREEMENT

This EQUITY PURCHASE AGREEMENT (this “Agreement”) is entered into as of February 28, 2023, by and among XTANT MEDICAL HOLDINGS, INC., a Delaware corporation (“Buyer”), SURGALIGN SPV, INC. (the “Company”), a Delaware corporation and wholly owned subsidiary of SURGALIGN SPINE TECHNOLOGIES, INC., a Delaware corporation (“Seller”), Seller and SURGALIGN HOLDINGS, INC., a Delaware corporation (“Parent”). Capitalized terms used and not otherwise defined in this Agreement have the meanings set forth in Exhibit A.

RECITALS

WHEREAS, Seller owns 100% of the issued and outstanding shares of Common Stock of the Company, which shares (“Shares”) constitute all of the outstanding equity of the Company;

WHEREAS, prior to the date hereof, Seller and its Affiliates transferred and assigned to the Company, certain assets and rights related to the Coflex Business (the “Pre-Closing Transfers”); and

WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, all of the Shares, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises, representations and warranties and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I.

PURCHASE AND SALE

1.01 Purchase and Sale of the Shares. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, and covenants contained in this Agreement, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all Liens, all right, title and interest in and to all of the Shares owned by Seller.

1.02 Purchase Price.

(a) The aggregate purchase price for the Shares (the “Purchase Price”) is equal to Seventeen Million Dollars $17,000,000.

(b) The Purchase Price shall be paid by Buyer to Seller at the Closing in accordance with Section 2.02(a).

(c) Unless otherwise stated herein, all monetary values within this Agreement are in the currency of the United States.

1.03 Withholding Tax. Each of Buyer and the Company shall be entitled to deduct and withhold from any amounts payable under this Agreement all Taxes that Buyer or the Company may be required to deduct and withhold under any provision of applicable Law. All such withheld amounts shall be treated as delivered hereunder.


ARTICLE II.

CLOSING

2.01 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place electronically via e-mail and PDF exchange of signatures on the date hereof. The date on which the Closing shall occur is referred to herein as the “Closing Date.” The effective time of the Closing shall be 11:59 p.m. Eastern Time on the Closing Date.

2.02 Buyer Closing Deliveries. At the Closing, Buyer shall deliver (or cause to be executed and delivered) the following:

(a) Closing Payment. Buyer shall deliver the Purchase Price to Seller by wire transfer of immediately available funds;

(b) Buyer Consents. Buyer shall deliver all consents and approvals required for the execution, delivery and performance of this Agreement by Buyer, other than those expressly waived in writing by Seller at or prior to Closing; and

(c) Transition Services Agreement. The Transition Services Agreement (the “Transition Services Agreement”), duly executed by Buyer.

2.03 Seller Closing Deliveries. At the Closing, Seller shall deliver (or cause to be executed and delivered) the following:

(a) Seller Consents. Seller shall deliver all consents and approvals required for the execution, delivery and performance of this Agreement by the Company or Seller, other than those expressly waived in writing by Buyer at or prior to Closing;

(b) Resignation Letters. Duly executed letters of resignation from each officer and director of the Company in form and substance reasonably satisfactory to the Buyer, effective as of Closing;

(c) Good Standing Certificate. A certificate of the Secretary of State of the State of Delaware as to the good standing of the Company as of a date not earlier than ten (10) days prior to the Closing Date;

(d) Form W-9. A duly executed IRS Form W-9 from Seller;

(e) Officer’s Certificate. A certificate, dated as of the Closing Date, duly executed by an authorized officer of the Company, certifying that (i) attached thereto are true, correct, and complete copies of the Company’s organizational documents; (ii) attached thereto are true, correct, and complete copies of the resolutions duly adopted by the directors of the Company approving this Agreement and the transactions contemplated hereby, and such resolutions remain in full force and effect and have not been amended, rescinded or modified; and (iii) the Company’s officers who executed or are executing this Agreement and the other documents to be executed and delivered by the Company hereby are incumbent officers, and the signatures of such officers on this Agreement and such other documents are their genuine signatures; and

(f) Transition Services Agreement. The Transition Services Agreement, duly executed by the Company and Seller.

 

2


ARTICLE III.

REPRESENTATIONS AND WARRANTIES OF SELLER

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, Seller hereby makes the representations and warranties set forth in this Article III as of the Closing Date.

3.01 Authority. Seller possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. To the extent applicable, Seller’s execution, delivery and performance of this Agreement and all other agreements and instruments contemplated hereby to which Seller is a party has been duly authorized. This Agreement and all other agreements or instruments contemplated hereby to which Seller is a party or by which Seller is bound, when executed and delivered by Seller in accordance with the terms hereof (assuming the due authorization, execution and delivery by the other party or parties thereto), shall each constitute a valid and binding obligation of Seller, enforceable in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to creditors rights generally and (b) general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity).

3.02 Absence of Conflicts. Except as set forth in Schedule 3.02 of the Disclosure Schedules, the execution, delivery or performance of this Agreement, or any other document contemplated hereunder by Seller, and the consummation by Seller of the transactions contemplated hereby or thereby (including the Pre-Closing Transfers): (a) does not and will not (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, or (v) result in the creation of any Lien upon any assets of Seller (including, without limitation, upon or with respect to the Shares), in each case under the provisions of any indenture, license, mortgage, loan agreement or other agreement, instrument or Contract or any Law by which Seller or any of Seller’s assets are affected, or (b) without limiting clause (a) above, does not require any consent, approval, or authorization of any Governmental Entity or any other Person.

3.03 Ownership of Shares. As of the Closing Date, all of the Shares are owned beneficially by Seller, free and clear of all Liens. Seller is the beneficial and record owners of all right, title and interest in and to the Shares. Seller is not a party to any option, warrant, purchase right, or other Contract or commitment that could require Seller to sell, transfer, or otherwise dispose of any equity interests of the Company. At the Closing, Seller shall transfer to Buyer good title to all of the equity interests of the Company, free and clear of any Liens or other restrictions on transfer or options, rights of first refusal or similar rights granted in favor of any third party.

3.04 Litigation. There are no Actions, suits or Proceedings pending or, to the Knowledge of Seller, threatened against Seller, at Law or in equity, or before or by any Governmental Entity, which if determined adversely to Seller would adversely affect Seller’s performance under this Agreement or the consummation by Seller of the transactions contemplated hereby.

3.05 Broker. None of the Company, Seller nor any representatives or Affiliates of Seller, has incurred any obligation or Liability, contingent or otherwise, for any brokerage or finder’s fee or agent’s commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder. Any fees and expenses and other obligations payable to any such broker, finder or agent in connection with or as a result of this Agreement or the transactions contemplated hereby will be borne equally between Seller, on the one hand, and Buyer on the other.

 

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ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF SELLER REGARDING THE COMPANY AND

THE COFLEX BUSINESS

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated under this Agreement, each of Parent and Seller hereby makes the representations and warranties set forth in this Article IV as of the Closing Date.

4.01 Organization and Power. The Company is a corporation, validly existing and in good standing (or having comparable active status) under the Laws of the State of Delaware and is qualified to do the Coflex Business in every jurisdiction in which the nature of the Coflex Business or the ownership of its property requires it to be qualified, except where the failure to do so would not have a material adverse effect on the Coflex Business. The Company was newly formed solely for purposes of the transaction contemplated hereby and prior to formation had not previously conducted any operations. The Company has the full power necessary to own and operate its properties and carry on the Coflex Business as now conducted.

4.02 Authorization. The Company has full power and authority to execute and deliver this Agreement and all other documents contemplated hereunder to which it is a party and to perform its obligations hereunder and thereunder, and each such agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Company has duly approved this Agreement and all other documents contemplated hereunder to which it is a party and has duly authorized its execution, delivery and performance of this Agreement and such other documents contemplated hereunder and the performance of its obligations hereunder and thereunder. No other Proceeding or Action on the part of the Company is necessary to approve and authorize the Company’s execution and delivery of this Agreement or any other documents contemplated hereunder to which the Company is a party or the performance of its obligations hereunder or thereunder.

4.03 Capitalization; Subsidiaries. All of the issued and outstanding equity securities of the Company have been duly authorized, validly issued, and are fully paid and non-assessable and are owned by Seller. The Company does not own any stock, partnership interest, joint venture interest or other equity ownership interest in any Person. There are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities or Contracts or obligations of any kind (contingent or otherwise) to which the Company is a party or by which it is bound obligating the Company, directly or indirectly, to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of equity securities of the Company or obligating the Company to issue, grant, extend or enter obligations of the Company (contingent or otherwise) to repurchase, redeem or otherwise acquire, directly or indirectly, any equity securities (or options or warrants to acquire any such equity securities) of the Company, and there are no outstanding rights to cause the Company to register its securities or which otherwise relate to the registration of any equity securities of the Company.

4.04 Absence of Conflicts. Except as disclosed on Schedule 4.04 of the Disclosure Schedules, the execution, delivery and performance of this Agreement or any other document contemplated hereunder by the Seller and the Company, and the consummation by the Seller and the Company of the transactions contemplated hereby or thereby (including the Pre-Closing Transfers) does not or will not: (a) conflict with or result in any breach of any of the provisions of, (b) constitute a default under, (c) result in a violation of, (d) give any third party the right to terminate or to accelerate any obligation under, (e) result in the creation of any Lien upon any assets of the Company, or (f) require any authorization, consent, approval, exemption or other action by or notice to or filing with any Governmental Entity or any other Person, in each case under the provisions of the certificate of incorporation, bylaws or resolutions of the Company or any indenture, license, mortgage, loan agreement or other agreement, instrument, Contract or any Law by which the Company or any of its assets is affected, or to which the Company or any of its respective assets is subject.

 

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4.05 Financial Statements.

(a) The Company has provided, or caused to be provided, true and complete copies of the following (collectively, the “Financial Statements”): (i) statement of Revenues, Cost of Goods Sold and gross profit of the Coflex Business for the period of December 31, 2022 (the “Financial Statements” and each, a “Financial Statement”). Each Financial Statement is accurate and complete in all material respects, is consistent with the books and records of the Seller an its Affiliates (which, in turn, are accurate and complete in all material respects), and fairly and accurately presents the Revenues, Cost of Goods Sold and gross profit of the Coflex Business for such period.

(b) All inventory of the Company consists of a quality and quantity adequate for the conduct of the Coflex Business of the Company as currently being conducted and sold in the ordinary course of business. The total book value, as of December 31, 2022, of inventory (including both implants and instrumentation related to the Coflex Business) that has been transferred to the Company is disclosed on Schedule 4.05(b) of the Disclosure Schedules.

4.06 Real Property. The Company does not own or lease, and has never owned or leased any real property.

4.07 Contracts and Commitments.

(a) Schedule 4.07(a) of the Disclosure Schedules lists each of the Contracts that have been assigned in full or partial to the Company (with an indication of which such Contracts were partially assigned) (collectively, the “Material Contracts”).

(b) Each of the Material Contracts is valid, binding and enforceable by the Company in accordance with its terms, and shall be in full force and effect without penalty in accordance with its terms upon consummation of the transactions contemplated hereby. The Company and its Predecessors (i) have performed or is continuing to perform all material obligations required to be performed by any of them under each Material Contract and neither the Company nor its Predecessors is in breach or default thereunder, (ii) except as set forth on Schedule 4.07(b)(ii), no Material Contract is currently subject to, or, to the Knowledge of Seller, is expected to be subject to, cancellation or any other material modification by the other party thereto or is subject to any penalty, right of set off or other charge by the other party thereto for late performance or delivery, and (iii) except as set forth on Schedule 4.07(b)(iii), Seller does not have Knowledge of any breach or anticipated breach by the other parties to any Material Contract.

(c) Except for the Material Contracts and except as listed on Schedule 4.07(c) of the Disclosure Schedules, the Company is not party to, or bound by, any Contract.

4.08 Intellectual Property Rights. Except as to matters that individually or in the aggregate would not have a Material Adverse Effect:

(a) To the Knowledge of the Seller, the Company owns, or is licensed or otherwise has the right to use all Intellectual Property Rights material to the conduct of the Coflex Business as currently conducted, and all Intellectual Property Rights material to the manufacture and sale of the Coflex and Cofix products outside of the United States as currently conducted by the Parent, Seller or any of its Affiliates.

 

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(b) Schedule 4.08 of the Disclosure Schedule sets forth a true and complete list of all issued patents, registered trademarks, registered trade names, registered service marks, registered copyrights and in each case applications therefor, and domain names and applications therefor, if any, owned by or licensed to the Company as of the date of this Agreement (“Scheduled Intellectual Property”). Except as disclosed in Schedule 4.08 of the Disclosure Schedule, and to the Knowledge of the Seller, all Scheduled Intellectual Property is subsisting, valid and enforceable, and all Scheduled Intellectual Property that are applications to registered are pending and in good standing.

(c) To the Knowledge of the Seller, neither the Company, nor its Predecessors nor any of their products or services relating to the Coflex Business has infringed upon or otherwise violated, or is infringing upon or otherwise violating, the Intellectual Property Rights of any Person. To the Knowledge of the Seller, there is no suit, claim, action, investigation or proceeding pending or threatened with respect thereto, and neither the Company nor any of its Predecessors has been notified in writing of any possible infringement or other violation by any of them or any of their products or services related to the Coflex Business of the Intellectual Property Rights of any Person and to the Knowledge of the Seller, there is no valid basis for any such claim.

(d) To the Knowledge of the Seller, no Person or any product or service of any Person is infringing upon or otherwise violating any Intellectual Property rights of the Company or any of its Predecessors.

4.09 Governmental Licenses and Permits. Except as set forth on Schedule 4.09 of the Disclosure Schedules, the Company has obtained and holds all licenses, permits, approvals, franchises, certificates, and other authorizations issued by any Governmental Entity to or held by (or, if noted, required to be issued to or held by) the Company, (including all applications therefor and all renewals, extensions, or modifications thereof and additions thereto) (collectively, the “Permits”) that are material to the operation of the Coflex Business as conducted by Seller.

4.10 Employees.

(a) Schedule 4.10(a) of the Disclosure Schedules sets forth a true and complete list of all Identified Employees (as defined below), showing for each employee the following: (i) name; (ii) employing or contracting entity, (iii) location, (iv) status (i.e., full-time, part-time, temporary); (v) title or position; (vi) hire date; (vii) current annual base salary or hourly rate, as applicable; or (viii) commission, bonus or other incentive-based compensation. As of the date hereof, all compensation, including wages, and commissions payable to the Identified Employees for services performed on or prior to the date hereof have been paid in full or accrued and there are no outstanding agreements, understandings or commitments of the Company or Seller with respect to any compensation, commissions or bonuses, except as set forth on Schedule 4.10(a) of the Disclosure Schedules. Except as set forth in Schedule 4.10(a) of the Disclosure Schedules, the employment of each Identified Employee is “at will.”

(b) Other than the independent contractors engaged under the agreements set forth on Schedule 4.10(b) of the Disclosure Schedules, there are no independent contractors currently engaged in providing services related to the Coflex Business as of the date hereof.

(c) The Company is not party to or bound by any collective bargaining agreement or relationship with any labor organization and no labor organization has filed or made demand for recognition related to the Identified Employees.

 

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4.11 Environmental Matters. To the Knowledge of Seller, (a) there are no Proceedings pending and served or threatened in writing against the Company or the Coflex Business alleging any violation of or Liability under any applicable Environmental Law; and (b) the Coflex Business does not include products or other items containing any Hazardous Materials, in each case so as to give rise to any material liabilities under applicable Environmental Laws.

4.12 Customers and Suppliers. Schedule 4.12 of the Disclosure Schedules sets forth the names of the fifteen (15) largest customers and fifteen (15) largest suppliers of the Coflex Business, each as measured by dollar value for the year ended December 31, 2022. None of the customers or suppliers listed on Schedule 4.12 of the Disclosure Schedules has notified the Company or any of its Predecessors that it is (a) canceling or terminating its relationship with the Company or the Coflex Business or (b) to the Knowledge of Seller, considering or intends, anticipates or otherwise expects to stop, decrease its normal volume of, or change, adjust, alter or otherwise modify any of the material terms (whether related to payment, price or otherwise) with respect to purchasing or providing materials, products or services from or to the Company or the Coflex Business, as applicable. In addition to the foregoing, neither the Company nor any of its Predecessors has received any indication, and Seller does not have any Knowledge, that any suppliers listed on Schedule 4.12 of the Disclosure Schedules (i) plan or have threatened to stop or materially decrease the amount of business conducted with, or increased the prices to, the Company or the Coflex Business or (ii) have requested or received any material increases, or that there is any intention or plan to provide any material increases, in the prices charged to the Company or the Coflex Business that are or would be inconsistent with the terms of existing supply contracts with the Company or the Coflex Business.

4.13 Distributors. Schedule 4.13 of the Disclosure Schedules sets forth the names of the 50 largest distributors for the Coflex Business, each as measured by dollar value for the year ended December 31, 2022, the annual dollar amount for each such distributor. Neither the Company nor any of its Predecessors has received any indication, and Seller does not have any Knowledge, that any distributors listed on Schedule 4.13 of the Disclosure Schedules (i) plan or have threatened to stop or materially decrease the amount of business conducted with, or seek to decrease the prices paid to, the Company or the Coflex Business or (ii) have requested or received any material decrease, or that there is any intention or plan to provide any material decreases, in the prices paid to the Company or the Coflex Business that are or would be inconsistent with the terms of existing distributor contracts with the Company or the Coflex Business

4.14 Bank Accounts. The Company does not have any nor does it maintain any safe deposit boxes, lock boxes or checking, savings, custodial or other accounts at any banks, trust companies, savings and loan associations and other financial institutions.

4.15 Litigation. There is no private or governmental Proceeding pending or to the Knowledge of Seller, threatened by or against the Company, the Coflex Business any of its properties or any of its officers or directors (in his or her capacity as such).

4.16 Books and Records. The books of account and other records of the Company, all of which have been made available to Buyer, are complete and correct in all material respects, represent actual, bona fide transactions related to the Coflex Business, and have been maintained in accordance with sound business practices.

4.17 Absence of Liabilities. The Company does not have any Indebtedness or other Liabilities, whether known or unknown, absolute, accrued, contingent or otherwise and whether due or to become due, asserted or unasserted, except the executory obligations under contracts to which the Company is a party that arise in the ordinary course of conduct (excluding liabilities for breach, indemnification obligations that have been triggered, non-performance, default, tort or infringement or violation of law).

 

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4.18 Sufficiency of Assets. Except as disclosed on Schedule 4.18 of the Disclosure Schedules, the Company’s assets and rights include (a) all of the material assets (whether tangible or intangible) and rights of Seller or any of its Affiliates that were primarily used in the conduct of the Coflex Business and (b) all of the material assets (whether tangible or intangible) and rights necessary for continued conduct of the Coflex Business as currently conducted, and all of such asset of the Company are free and clear of Liens (other than any Permitted Liens), right of first refusal, option, limitation on transfer or use or assignment or licensing, restrictive easement, charge or any other restriction of any kind.

4.19 Compliance with Applicable Laws. The Company is and, since inception, has been in compliance in all material respects with all Applicable Laws and Privacy Policies.

4.20 Product Liability. Except as disclosed on Schedule 4.20 of the Disclosure Schedules, there are no Proceedings pending, or, to the Knowledge of the Company, threatened, against or relating to the Company, any of its Predecessors or the Coflex Business (a) arising from complaints, allegations or Proceedings relating to any injury to person or property or as a result of ownership, possession, provision or use of any of the products that were manufactured, distributed, labeled, packaged, marketed or sold in the conduct of the Coflex Business or (b) relating to any alleged hazard or alleged defect in design, manufacture, materials or workmanship, including any failure to warn or alleged breach of express or implied warranty or representation, relating to such products, nor have there been any such Proceedings since January 1, 2020.

4.21 Pre-Closing Transfers. Seller did not transfer any assets to the Company for the purpose of defrauding any creditor of Seller or any of its Affiliates, nor to the Knowledge of Seller, did the Pre-Closing Transfers constitute a fraudulent conveyance under any Law or give rise to any bona fide claim in any material respect against Seller or any of its Affiliates. Seller has provided Buyer with correct and complete copy of the Contribution Agreement, including each of the schedules to such agreement, related to the Pre-Closing Transfers.

4.22 Brokers’ and Finders’ Fees. Except as set forth on Schedule 4.22 of the Disclosure Schedules, no broker, finder or investment banker is entitled to brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or any similar charges from the Company in connection with this Agreement or any transaction contemplated hereby.

4.23 Disclosure. To the Knowledge of Seller, neither this Agreement nor any other agreement or document delivered by Seller hereunder (including the representations and warranties contained herein and therein), nor any of the schedules, exhibits or certificates to be delivered in connection herewith or therewith, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained herein or therein not misleading.

ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF BUYER

As a material inducement to the Company and Seller to enter into this Agreement and to consummate the transactions contemplated hereunder, Buyer makes the representations and warranties set forth in this Article V as of the Closing Date.

5.01 Organization and Power. Buyer is duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation and is qualified to do business in every jurisdiction in which the execution, delivery and performance of its obligations under this Agreement requires it to be so qualified. Buyer has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and the other documents contemplated hereunder to which Buyer is a party.

 

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5.02 Authorization. No other proceedings or actions on the part of Buyer are necessary to approve and authorize Buyer’s execution and delivery of this Agreement or any other document contemplated hereunder to which Buyer is a party or the performance of Buyer’s obligations hereunder or thereunder. This Agreement constitutes, and each of the other documents contemplated hereunder to which Buyer is a party will when executed constitute, a valid and binding obligation of Buyer, enforceable in accordance with their terms, except as enforceability hereof may be limited by bankruptcy, insolvency or other Laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

5.03 Absence of Conflicts. Neither the execution, delivery or performance of this Agreement or any other document contemplated hereunder by Buyer, nor the consummation by Buyer of the transactions contemplated hereby or thereby does or will: (a) conflict with or result in a breach of any of the provisions of, (b) constitute a default under, (c) result in the violation of, (d) give any third party the right to terminate or to accelerate any obligation under, or (e) require any consent, order, approval, authorization or other action of, or any filing with or notice to, any Governmental Entity or other Person, in each case under the provisions of any indenture, mortgage, lease, loan agreement or other agreement or instrument to which Buyer is bound or by which it or any of its assets are affected, or any Law to which Buyer is subject.

5.04 Litigation: Observance of Orders. There is no Action, suit or Proceeding pending or, to the Knowledge of Buyer, threatened against or affecting Buyer in any court, before an arbitrator or before or by any Governmental Entity, which involves the possibility of materially and adversely affecting the transactions contemplated by this Agreement or which would question or impair the validity or enforceability of, or the ability of Buyer to perform its obligations under, this Agreement or any other agreement or instrument contemplated hereby. No order of any Governmental Entity or arbitrator has been issued against or binds Buyer which could impair Buyer’s ability to perform its obligations hereunder.

5.05 Brokers’ and Finders’ Fees. No broker, finder or investment banker is entitled to brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or any similar charges from Buyer in connection with this Agreement or any transaction contemplated hereby.

5.06 Securities Act. Buyer is acquiring the Shares solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act of 1933. Buyer acknowledges that the Shares are not registered under the Securities Act of 1933 or any applicable state or foreign securities Law, and that such Shares may not be transferred or sold except pursuant to the registration provisions of such Securities Act or pursuant to an applicable exemption therefrom and pursuant to state or foreign securities Laws and regulations as applicable.

ARTICLE VI.

COVENANTS

6.01 Non-Competition.

(a) Non-Competition. In consideration of the transactions contemplated hereby, Seller agrees that during the period beginning on the Closing Date and ending on the fourth (4th) anniversary of the date hereof (the “Restricted Period”), Seller shall not and shall cause its Affiliates not to, within or with respect to the geographical area of the United States of America (the “Restricted

 

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Area”), during the Restricted Period, directly or indirectly own, operate, lease, manage, control, participate in, consult with, advise, permit Seller’s name to be used by, provide services for, or in any manner engage in the Coflex Business, as such business is conducted as of the Closing Date. For the avoidance of doubt, Buyer agrees and acknowledges that (i) the business conducted by Parent and its Affiliates of selling and distributing the Coflex and Cofix products outside the United States as such business is currently conducted and (ii) the manufacture, sale, marketing and distribution of the products currently being sold by Parent and its Affiliates as such products are currently designed and sold, in each case does not compete with the Coflex Business. Seller additionally agrees that during the Restricted Period, Seller shall not and shall cause its Affiliates not to solicit any Identified Employees, as defined in Section 6.03.

(b) Remedy for Seller Breach. Seller acknowledges and agrees that in the event of a breach by Seller of any of the provisions of this Section 6.01, monetary damages may be inadequate and Buyer may have no adequate remedy at Law. Accordingly, in the event of any such breach, Buyer and its successors or assigns may seek, in addition to any other rights and remedies existing in their favor, to enforce their rights and Seller’s obligations hereunder by an action or actions for specific performance, injunctive and/or other relief.

6.02 Release.

(a) Seller on behalf of itself, and including its Affiliates, executors, personal representatives, successors and assigns (collectively, the “Seller Releasing Parties”), releases Buyer, the Company and its Predecessors and their respective Affiliates, officers, directors, members, stockholders, members and employees (collectively, the “Buyer Released Parties”) from any and all Actions, causes of action, cross-claims, counter-claims, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or Liabilities of any nature whatsoever in Law and in equity, both past and present (for all points in time through the date of this Agreement) and whether known or unknown, suspected, or claimed against any of its, his or her Buyer Released Parties which such Seller Releasing Party, or any officer, director, manager, trustee, successor or assign of such Seller Releasing Party, has or may have, which arise out of or are connected with the Company, Buyer, any Affiliate of the Company or Buyer, or any predecessor thereto, whether arising under any federal, state or local civil or human rights Law, or under any other local, state, or federal Law, regulation or ordinance, or under any public policy, contract or tort, or under common Law; or any claim for breach of contract, infliction of emotional distress, defamation, or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as such Seller Releasing Party’s “Seller Released Claims”), provided that the foregoing shall not release any claim arising out of this Agreement or pursuant to any document executed or delivered pursuant hereto, nor shall it constitute a release of any claim arising out of any future act or omission of any Buyer Released Party.

(b) Buyer on behalf of itself, and including its Affiliates, executors, personal representatives, successors and assigns (collectively, the “Buyer Releasing Parties”), releases Seller and its Predecessors and their respective Affiliates, officers, directors, members, stockholders, members and employees (collectively, the “Seller Released Parties”) from any and all Actions, causes of action, cross-claims, counter-claims, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or Liabilities of any nature whatsoever in Law and in equity, both past and present (for all points in time through the date of this Agreement) and whether known or unknown, suspected, or claimed against any of its, his or her Seller Released Parties which such Buyer Releasing Party, or any officer, director, manager, trustee, successor or assign of such Buyer Releasing Party, has or may have, which arise out of or are connected with the Seller, any Affiliate of the Seller, or any predecessor thereto, whether arising under any federal, state or local civil or human

 

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rights Law, or under any other local, state, or federal Law, regulation or ordinance, or under any public policy, contract or tort, or under common Law; or any claim for breach of contract, infliction of emotional distress, defamation, or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as such Buyer Releasing Party’s “Buyer Released Claims”), provided that the foregoing shall not release any claim arising out of this Agreement or pursuant to any document executed or delivered pursuant hereto, nor shall it constitute a release of any claim arising out of any future act or omission of any Seller Released Party.

(c) Each Buyer Releasing Party or Seller Releasing Party (collectively, a “Releasing Party”), as applicable, represents that he, she or it has made no assignment or transfer of any Released Claim. Each such Releasing Party acknowledges and intends that his, her or its execution and delivery of this release shall be effective as a bar to each and every one of the Released Claims, and expressly consents and agrees that this release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Released Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Released Claims), if any, as well as those relating to any other Released Claims hereinabove mentioned or implied.

(d) Each Releasing Party agrees that if he, she or it violates any provision of this Section 6.02, such Releasing Party will pay all costs and expenses of defending against any related or resulting suit or other Proceeding incurred by his, her or its Released Parties, including reasonable attorneys’ fees.

6.03 Employees. Buyer agrees to make an offer of employment as soon as practicable after the Closing to the employees as identified on Schedule 6.03 hereto (the “Identified Employees”). Seller will (i) cooperate with Buyer in all respects with respect to and not discourage any employee from accepting Buyer’s offer of employment to the Identified Employees; (ii) not solicit or make any counter offer to retain any of the Identified Employees; (iii) assign to Buyer and refrain from enforcing any confidentiality, non-competition or similar restrictive agreements against any Identified Employees related to the Coflex Business that it may have in place with Identified Employees who accept Buyer’s offer of employment; and (iv) pay to each Identified Employee who accepts Buyer’s offer of employment (A) all accrued but unused vacation time (where applicable) and all other wages or compensation through the Closing Date as required by applicable Law and (B) a pro rata amount through the Closing Date of any short term incentive bonus or commission for all periods prior to and up to the Closing Date to which such Identified Employees would otherwise have become entitled to receive, in accordance with Seller’s existing policies and programs, but for the fact that they were not Employees of Seller or its Affiliates as of the end of any such period. Except for successor COBRA obligations, Buyer will have no liability or obligation of any nature under this Agreement or in connection with the transactions contemplated hereby with respect to any liabilities owed to Identified Employees prior to the Closing Date nor to any current or former employees of Seller or its Affiliates who are not Identified Employees or any Identified Employees who do not accept Buyer’s offer of employment. Seller will have no liability or obligation of any nature under this Agreement or in connection with the transactions contemplated hereby with respect to any liabilities that become owing to Identified Employee on or after the Closing Date, unless otherwise agreed and specified in the Transition Services Agreement.

 

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ARTICLE VII.

TAX MATTERS

7.01 Tax Matters. The following provisions will govern the allocation of responsibility as between Buyer and Seller for certain Tax matters following the Closing Date:

(a) Seller shall be responsible for: (i) any Tax imposed on or relating to the Company with respect to any Pre-Closing Tax Period; (ii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or non-U.S. Law or regulation, (iii) any and all Taxes of any Person imposed on the Company as a transferee or successor, by contract, pursuant to any Law, rule, or regulation which Taxes relate to an event or transaction occurring before the Closing; (iv) the costs of preparing, amending, and/or defending any Tax Return of the Company for a Pre-Closing Tax Period; or (v) any and all employment Taxes imposed on the Company with respect to payments made under this Agreement. To the extent that the Company has, prior to Closing, paid or prepaid any Tax, and the Company or Buyer receives a cash Tax refund (or claims a credit in lieu of a cash Tax refund) as a result of such pre-Closing payment by the Company, the amount of the Tax refund or credit that is attributable to any Tax paid or prepaid by the Company for any Pre-Closing Tax Period shall be reimbursed by Buyer to Seller, within ten (10) days after the Tax Return reflecting the amount of such refund or credit is filed by the Company or Buyer, net of (1) Taxes payable by the Buyer, the Company, or their Affiliates in obtaining such refund or credit, (2) any reasonable out-of-pocket costs associated in obtaining such refund or credit, and (3) amounts required to be withheld on such payment to Seller. If there is a subsequent reduction by the applicable taxing authority of any amounts with respect to which a payment has been made to Seller pursuant to this Section 7.01(a), then Seller will pay Buyer an amount equal to such reduction plus any interest or penalties imposed by the taxing authority with respect to such reduction.

(b) Payments; Survival; Limitations. Seller shall pay in full any amount due under Section 7.01(a) and/or Section 7.01(d) to Buyer in immediately available funds at least five (5) business days before the due date of the Taxes to which such payment relates (or if such Taxes are past-due, then within ten (10) business days of Buyer’s demand for such payment).

(c) Straddle Period. For purposes of this Agreement, in the case of any Taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any Taxes based on or measured by income, sales, withholding, payroll, or receipts of the Company for the Straddle Period which relates to the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the Company for a Straddle Period which relate to the Pre-Closing Tax Period will be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period that occur on or before the Closing Date and the denominator of which is the total number of days in such Straddle Period.

(d) Responsibility for Filing Tax Returns. Seller shall (i) prepare and timely file, or cause to be prepared and timely filed, when due all IRS Forms (and any comparable state or local Tax Return) for the Company for taxable periods ending on or before the Closing Date (the “Seller Returns”) and (ii) pay all Taxes shown as due thereon no later the due date of such Tax Returns as finally determined under this Agreement. All such Seller Returns shall be prepared consistent with past practice to the extent permitted by applicable Law. Seller shall provide to Buyer a draft of each such Seller Return prior to the due date of such Seller Return so as to provide a reasonable time for Buyer to review and comment on each such Seller Return. Buyer will prepare or cause to be prepared and file or cause to be filed all other Tax Returns for the Company that are filed after the Closing Date. Prior to filing any such income Tax Return that includes a Straddle Period or that includes a refund or credit for Taxes that were paid or prepaid by the Company prior to Closing, (the “Buyer Returns”), Buyer will permit Seller a reasonable time to review and comment on each such Buyer Return. Seller shall pay to Buyer the amount of any Taxes due with or in respect of any such Buyer Return, as computed pursuant to Section 7.01(c), in accordance with Section 7.01(b) as finally determined under this Agreement.

 

12


(e) Cooperation on Tax Matters. Each party hereto shall, and shall cause its Subsidiaries and Affiliates to, provide to each of the other parties hereto such cooperation and information as any of them reasonably may request in filing any Tax Return, determining a Liability for Taxes or in conducting any audit or other Proceeding in respect of Taxes. Such cooperation and information shall include providing copies of all relevant portions of relevant Tax Returns, together with relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning the ownership and Tax basis of property, which any such party may possess. Seller shall turn over to Buyer copies of all Tax Returns of the Company for the last six (6) years, and the related schedules and work papers, and all material records and other material documents in its possession, relating to Taxes of the Company. Seller may retain copies of the Tax Returns and records that are provided to Buyer.

(f) Tax Sharing Agreements. All Tax sharing agreements or similar agreements and powers of attorney with respect to or involving the Company shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any Liability thereunder.

(g) Certain Taxes and Fees. All transfer, documentary, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid by Seller when due, and Seller shall, at their own expense, file all necessary Tax Returns and other documentation with respect to the Taxes, fees and charges described in this paragraph. If as a result of Buyer’s treating the transactions hereunder as the purchase of assets for Tax purposes any sales or use Taxes are payable on the transaction, Buyer shall timely pay all such sales and use Taxes.

ARTICLE VIII.

MISCELLANEOUS

8.01 Amendment and Waiver. This Agreement may be amended, or any provision of this Agreement may be waived; provided, that any such amendment or waiver shall be binding upon Buyer, Seller and the Company only if set forth in a writing executed by said parties and referring specifically to the provision alleged to have been amended or waived, and any such amendment or waiver shall be binding upon the parties only if set forth in a writing executed by the parties and referring specifically to the provision alleged to have been amended or waived.

8.02 Notices All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted via email to the email address set out below, (c) the day following the day (except if not a business day then the next business day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) business day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications, in each case to the respective parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing:

 

   Notices to Seller:    Notices to Buyer:
  

Surgalign Spine Technologies, Inc.

520 Lake Cook Road, Suite 315

Deerfield, Illinois 60015

Attention: Paolo G. Amoruso

Email: pamoruso@surgalign.com

  

Xtant Medical Holdings, Inc.

664 Cruiser Lane

Belgrade, Montana

Attention: Sean Browne

Email: sbrowne@extantmedical.com

 

13


  

with a copy to:

(which shall not constitute notice):

 

DLA Piper LLP (US)

4365 Executive Drive, Suite 1100

San Diego, CA 92121

Attention: Larry Nishnick

Email: Larry.Nishnick@us.dlapiper.com

  

with a copy to:

(which shall not constitute notice):

 

Fox Rothschild LLP

33 South 6th Street, Suite 3600

Minneapolis, MN 55402

Attention: Thomas Letscher

Email: tletscher@foxrothschild.com

8.03 Expenses. The parties will bear their own respective fees and expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement and the consummation and performance of the transactions contemplated hereunder. Any additional expenses will be addressed in the Transition Services Agreement.

8.04 Assignment and Successors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by Seller or the Company without the prior written consent of Buyer and no obligation of Buyer may be assigned or delegated without the prior written consent of Seller, and no such assignment shall relieve the Buyer from any of its obligations hereunder, except that Buyer may assign its rights and obligations pursuant to this Agreement, in whole or in part, in connection with any disposition or transfer of all or any portion of the Company or its business in any form of transaction without the consent of Seller, and Buyer may assign any or all of its rights pursuant to this Agreement to any of its respective lenders as collateral security without the consent of Seller.

8.05 Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall have no effect on the other provisions of this Agreement, which shall remain valid, operative and enforceable. Upon any such determination that any term or other provision is illegal, invalid or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.

8.06 Further Assurances. The parties will (a) execute and deliver to each other such other documents and (b) do such other acts and things as a party may request for the purpose of carrying out the intent of this Agreement, the transactions contemplated hereunder, and the documents to be delivered pursuant to this Agreement.

8.07 Entire Agreement. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.

8.08 Counterparts; Electronic Signatures. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same Agreement. This Agreement and any other documents to be executed in connection herewith, and any amendments hereto or thereto, to the extent signed and delivered by means of electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or PDF email, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto

 

14


shall re execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine, electronic mail or PDF email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine, electronic mail or PDF email as a defense to the formation of a contract and each such party forever waives any such defense.

8.09 Governing Law; Waiver of Jury Trial; Venue. The Laws of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. Each party to this Agreement hereby waives all rights to trial by jury in any proceeding brought to resolve any dispute between or among any of the parties (whether arising in contract, tort or otherwise) arising out of, connected with, or related or incidental to this Agreement and the contemplated transactions. Each of the parties hereto agrees that any Proceeding arising out of or relating to this Agreement shall be heard and determined exclusively in the applicable federal or state court located in Wilmington, Delaware. Each party hereto also agrees not to bring any Proceeding arising out of or relating to this Agreement in any other court. Nothing in this Section 8.09, however, shall affect the right of any party to serve legal process in any other manner permitted by applicable Law. Each party hereto agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by applicable Law.

8.10 No Third Party Beneficiaries. Other than the parties and their permitted assigns, no Person will have any legal or equitable right, remedy, or claim under or with respect to this Agreement. This Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person who is not a party to the Agreement.

8.11 Disclosure Schedules. The schedules referenced herein the (“Disclosure Schedules”) have been arranged, for purposes of convenience only, as separate parts corresponding to the sections of ARTICLE III and ARTICLE IV of this Agreement. Any information set forth in any part of the Disclosure Schedules will be deemed to be disclosed and incorporated by reference in each of the other parts of each such Schedule to the extent its applicability to such other Schedule is reasonably apparent on its face (whether or not specific cross-references are made), and will be deemed to qualify and limit all representations and warranties of the Seller and Parent set forth in this Agreement. No reference to or disclosure to any item or other matter in the Disclosure Schedules will be construed as an admission or indication that such item or other matter is material (nor will it establish a standard of materiality for any purpose whatsoever) or that such item or other matter is required to be referred to or disclosed in the Disclosure Schedules. The information set forth in the Disclosure Schedules is disclosed solely for the purposes of this Agreement, and no information set forth therein will be deemed to be an admission by any part to this Agreement to any third party of any matter whatsoever, including of any violation of law or breach of any agreement. The Disclosure Schedules and the information and disclosures contained therein are intended only to qualify and limit the representations, warranties and covenants of the Seller and Parent contained in this Agreement and will not (and will not be construed to) expand or increase any of the representations, warranties, or covenants of Seller and Parent. Nothing in the Disclosure Schedules is intended to broaden the scope of any representation or warranty contained in this Agreement or create any covenant. Matters reflected in the Disclosure Schedule are not necessarily limited to matters required by the Agreement to be reflected in the Disclosure Schedules. Such additional matters are set forth for informational purposes and do not necessarily include other matters of similar nature.

[Signature page follows.]

 

15


IN WITNESS WHEREOF, the parties have caused this Equity Purchase Agreement to be executed as of the date first written above.

 

BUYER:
XTANT MEDICAL HOLDINGS, INC.
By:   /s/ Sean Browne
Name:   Sean Browne
Title:   CEO

[Signature Page to Equity Purchase Agreement]


SELLER:
SURGALIGN SPINE TECHNOLOGIES, INC.
By:   /s/ Terry Rich
Name:   Terry Rich
Title:   CEO
COMPANY:
SURGALIGN SPV, INC.
By:   /s/ Terry Rich
Name:   Terry Rich
Title:   CEO
PARENT:
SURGALIGN HOLDINGS, INC.
By:   /s/ Terry Rich
Name:   Terry Rich
Title:   CEO

[Signature Page to Equity Purchase Agreement]


EXHIBIT A

DEFINITIONS

For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:

Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at Law or in equity.

Adjustment Time” means 11:59 p.m. (New York, New York time) on the date immediately prior to the Closing Date.

Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such first Person.

Agreement” has the meaning set forth in the preamble.

Buyer” has the meaning set forth in the preamble.

Buyer Released Claims” has the meaning set forth in Section 6.02(a).    

Buyer Released Parties” has the meaning set forth in Section 6.02(a).

Buyer Returns” has the meaning set forth in Section 7.01(d).

CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act, as amended, and any reference to any particular Code Section shall be interpreted to include any revision of or successor to that Section regardless of how numbered or classified.

Closing” has the meaning set forth in Section 2.01.

Closing Date” has the meaning set forth in Section 2.01.

Code” means the Internal Revenue Code of 1986, as amended, and any reference to any particular Code Section shall be interpreted to include any revision of or successor to that Section regardless of how numbered or classified.

Coflex Business” means the business related to the design, manufacture, sale and distribution of the Coflex and Cofix products in the United States, as conducted by Seller and its Affiliates as of the Closing Date.

Company” has the meaning set forth in the preamble.

Confidential Information” means any information that has value to the Company and is not generally known to its competitors, including client lists and information, design details, technical information and specifications, marketing techniques, plans and procedures, instruction manuals, know-how, trade secrets, information concerning market conditions, marketing and business information generally, scientific information, financial information, price policies and other material of whatever description regarding the products, services, affairs, businesses or method of carrying on business of the


Company; provided, however, that Confidential Information shall not include information that (i) is generally available to and known by the public through no fault of Seller, any of their Affiliates or respective representatives; (ii) is lawfully acquired by Seller, any of their Affiliates or respective representatives from and after the Closing from sources who are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation; or (iii) is required to be disclosed by applicable Laws or in connection with the filing or returns or reports to a Governmental Entity.

Contract” means any written, oral or other agreement, contract, subcontract, lease, binding understanding, arrangement, obligation, promise, instrument, indenture, mortgage, note, option, warranty, purchase order, license, sublicense, commitment or undertaking of any nature, which, in each case, is legally binding upon a party or on any of its affiliates or by which its or their assets or properties are subject.

Contribution Agreement” means the Contribution Agreement dated as of February 28, 2023 (this by and between the Company, Seller Paradigm Spine and Paradigm Spine Gmbh.

Disclosure Schedules” has the meaning set forth in Section 8.11.

Environmental Law” means any statute, rule, regulation, ordinance, order, decree or determination of a Governmental Entity (or any similar provisions having the force and effect of Law), and all common law in any way relating to pollution, protection of the environment, public or worker health or safety, or natural resources.

Financial Statements” has the meaning set forth in Section 4.05.

Governmental Entity” means any government, agency, governmental department, commission, board, bureau, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing (whether now or hereafter constituted and/or existing) and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Hazardous Material” shall mean any substance, waste or material that is listed or defined under, regulated by or may reasonably give rise to standards of conduct or Liability pursuant to any applicable Environmental Laws, including petroleum or petroleum by-products, asbestos, polychlorinated biphenyls, noise, odor, mold or radiation.

Identified Employee” has the meaning set forth in Section 6.03.

Indebtedness” of any Person, means, without duplication, the sum of (i) all obligations of such Person for borrowed money and any accrued interest, prepayment premiums, or other obligations related thereto, (ii) all obligations of such Person evidenced by bonds, debentures, notes, or similar instruments, (iii) all obligations of such Person under conditional sale or title retention agreements relating to any property or assets purchased by such Person, (iv) all obligations of such Person issued or assumed as the deferred purchase price for property or services (other than trade accounts payable), including, without limitation, any earn-out or similar payment obligations, (v) all obligations of such Person as lessee under any capital leases, (vi) all obligations of such Person under any interest rate swap agreements or interest rate hedge agreements, (vii) obligations, whether contingent or liquidated, in respect of letters of credit (including standby and commercial), bankers’ and similar instruments, (viii) all deferred capital expenditures, (ix) all liabilities and other amounts owed by the Company to any Seller or any of Seller’s Affiliates (other than pursuant to the terms of this Agreement), (x) subject to clause (v) above, all

 

19


obligations secured by a Lien on any assets of the Company other than Permitted Liens, (xi) all negative cash or overdraft balances, (xii) (A) all Taxes of such Person for all Pre-Closing Tax Periods (whether or not such amounts are due on or prior to the Closing Date), which amount shall not (1) be less than zero in any jurisdiction or for any particular Tax, (2) include any deferred Tax assets or liabilities, and (3) include Tax refunds and (B) all Taxes of the Company for Pre-Closing Tax Periods that are deferred pursuant to Section 2302 of the CARES Act, (xiii) all liabilities or obligations for, or with respect to, any performance or accrued bonuses or commissions (including the employer’s portion of any employment Taxes associated therewith), not paid/satisfied prior to the Closing Date, payable to any employee of the Company (and the employer’s share of payroll Taxes attributable thereto), (xiv) all customer deposits and deferred revenue; (xv) all accounts payable past due by ninety (90) days or more; (xvi) any off-balance sheet liabilities or capital leases; (xvii) all liabilities arising from accrued and unpaid interest, fees and prepayment premiums or penalties, and debt breakage costs payable with respect to any indebtedness of a type described in the foregoing clauses; and (xviii) any obligation of such Person, contingent or otherwise, guaranteeing or having the economic effect of guaranteeing any of the foregoing.

Intellectual Property Rights” means all of the following in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures; (ii) trademarks, service marks, trade dress, trade names, corporate names, logos and slogans (and all translations, adaptations, derivations and combinations of the foregoing) social media accounts and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations and applications for any of the foregoing; (v) trade secrets and confidential information (including inventions, ideas, formulae, compositions, combinations, recipes, ingredient combinations, delivery methods, know how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing plans, and customer and supplier lists and related information); (vi) computer software and software systems (including data, source code and object code, databases and related documentation); and (vii) all other intellectual property and proprietary rights.

Knowledge of the Seller”, “Seller’s Knowledge” or similar terms means the actual knowledge of a particular fact or other matter by any of Terry Rich, David Lyle, Paolo Amoruso, Jennifer Russell, Chris Thunander, Albert Lee or Jeremy Markovich.

Law” means all federal, state, local and foreign laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Entity, including common law.

Liability” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes or Indebtedness.

Lien” means any charge, claim, community or other marital property interest, condition, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right of way, easement, encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

Material Contract” has the meaning set forth in Section 4.07(a).

Neutral Accountant” has the meaning set forth in Section 7.01(i).

Parent” has the meaning set forth in the preamble.

 

20


Permits” has the meaning set forth in Section 4.10.

Permitted Lien” means (a) liens for Taxes not yet delinquent as of the Closing Date, (b) liens for Taxes that are being contested in good faith through appropriate proceedings and for which appropriate reserves have been accrued by the Company on its Financial Statements, (c) Liens in favor of mechanics, materialmen, carriers, repairers and other similar Liens arising or incurred in the Ordinary Course of Business or that are not yet due and payable or that are being contested in good faith and for which appropriate reserves have been accrued by the Company on its Financial, (d) zoning, entitlement, building and other land use regulations imposed by Governmental Entities having competent jurisdiction over the Leased Real Property that are not violated by the Company’s current use and operation of the Leased Real Property, (e) covenants, conditions, restrictions, easements and other similar matters of record affecting title to the Leased Real Property that do not materially impair the occupancy or use of the Leased Real Property for the purposes for which it is currently used by the Company in connection with the Coflex Business and (f) non-exclusive licenses to Intellectual Property granted in the ordinary course of business consistent with past practice.

Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any Governmental Entity or any similar entity.

Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion through the end of the Closing Date for any Straddle Period.

Pre-Closing Transfers” has the meaning set forth in the Recitals.

Predecessors” shall mean Parent, Seller and any of its Affiliates to the extent related to the Coflex Business.

Privacy Policies” means all policies relating to personal, personally-identifiable, sensitive or regulated information or the operation or security of any information technology assets.

Proceeding” means any Action, suit, claim, demand, summons, citations or subpoena, audit, hearing, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at Law or in equity, whether or not such matter is before a Governmental Entity or any other Person.

Purchase Price” has the meaning set forth in Section 1.02(a).

Releasing Parties” has the meaning set forth in Section 6.02(c).

Restricted Area” has the meaning set forth in Section 6.01(a).

Restricted Period” has the meaning set forth in Section 6.01(a).

Revenue” means, for any measurement period, the gross revenue earned and actually recognized by the Company during such period.

Scheduled Intellectual Property” has the meaning set forth in Section 4.08(b).

Seller” has the meaning set forth in the preamble.

 

21


Seller Released Claims” has the meaning set forth in Section 6.02(a).

Seller Released Parties” has the meaning set forth in Section 6.02(a).

Seller Returns” has the meaning set forth in Section 7.01(d).

Shares” has the meaning set forth in the Recitals.

Straddle Period” has the meaning set forth in Section 7.01(c).

Subsidiaries” means with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of that Person or a combination thereof.

Tax” (and, with correlative meaning, “Taxes,” “Taxable” and “Taxing”) means (i) any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, escheat, unclaimed property, stamp, occupation, premium, windfall profits, environmental (including under Section 59A of the Code), customs, duty, real property, real property gains, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding or other tax assessment, fees, levy or other charge of any kind whatever imposed by any Governmental Entity, whether disputed or not, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing; (ii) any Liability for or in respect of the payment of any amount of a type described in clause (i) of this definition arising as a result of being or having been a member of a relevant group and (iii) any Liability for or in respect of the payment of any amount of a type described in clause (i) or (ii) of this definition as a transferee or successor, by Contract or otherwise.

Tax Contest” has the meaning set forth in Section 7.01(h).

Tax Return” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes or the administration of any Law relating to any Taxes.

Taxing Authority” means any Governmental Entity having or purporting to exercise jurisdiction with respect to any Tax.

 

22

Exhibit 10.1

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[***]”.

TRANSITION SERVICES AGREEMENT

AMONG

SURGALIGN SPV, INC.,

SURGALIGN SPINE TECHNOLOGIES, INC.,

AND

XTANT MEDICAL HOLDINGS, INC.

DATED FEBRUARY 28, 2023

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


TABLE OF CONTENTS

 

1.

  Definitions      4  

2.

  Services      7  

2.1

 

Transition Services

     7  

2.2

 

Transition Services Period

     7  

2.3

 

Additional Services

     7  

2.4

 

Use of Transition Services

     8  

2.5

 

Standard of Transition Services

     8  

2.6

 

Shortfall in Services

     8  

2.7

 

Consents

     8  

2.8

 

Subcontractors

     9  

2.9

 

Modifications to Services

     9  

3.

  Transition Service Management      9  

4.

  Access and Information      9  

4.1

 

Access to Facilities

     9  

4.2

 

Access to Systems

     9  

4.3

 

Access to Information

     10  

5.

  Co-location and Facilities Matters      10  

6.

  Payment for Transition Services      10  

6.1

 

Service Charges

     10  

6.2

 

Other Expenses

     10  

6.3

 

Interest

     10  

6.4

 

Taxes

     11  

6.5

 

No Right to Set-Off

     11  

7.

  Confidential Information      11  

7.1

 

Obligations of Confidentiality

     11  

7.2

 

Exceptions

     12  

7.3

 

Compelled Disclosure

     12  

7.4

 

Return of Materials

     12  

8.

  Disclaimer, Liability      13  

8.1

 

Disclaimer of Warranties

     13  

8.2

 

Disclaimer of Damages

     13  

8.3

 

Limitation of Liability  

     13  

 

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


9.

  Indemnification      13  

9.1

 

Indemnification by Provider

     13  

9.2

 

Indemnification Procedures

     13  

10.

  Force Majeure      13  

11.

  Dispute Resolution      14  

12.

  Term; Termination      14  

12.1

 

Term

     14  

12.2

 

Extension

     15  

12.3

 

Early Termination

     15  

12.4

 

Return of Books, Records and Materials

     15  

12.5

 

Effect of Termination

     15  

13.

  General      16  

13.1

 

Governing Law

     16  

13.2

 

Notices

     16  

13.3

 

Audit Rights

     17  

13.4

 

Successors and Assigns

     17  

13.5

 

Entire Agreement; Amendments

     17  

13.6

 

Waivers

     18  

13.7

 

Partial Invalidity

     18  

13.8

 

Execution in Counterparts

     18  

13.9

 

Waiver of Jury Trial

     18  

13.10

 

Interpretation

     18  

13.11

 

Independent Contractors; Lack of Authority

     19  

13.12

 

Jurisdiction; Enforcement

     19  

 

 

3

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


Execution Version

CONFIDENTIAL

TRANSITION SERVICES AGREEMENT

TRANSITION SERVICES AGREEMENT, (this “Agreement”) dated as of February 28, 2023 (the “Effective Date”), by and among Surgalign SPV, Inc. (the “Company”), a Delaware corporation and wholly owned subsidiary of Surgalign Spine Technologies, Inc., a Delaware corporation (“Seller”), Seller and Xtant Medical Holdings, Inc., a Delaware corporation (“Buyer”).

WHEREAS, pursuant to that certain Equity Purchase Agreement (as amended, modified or supplemented from time to time in accordance with its terms, the “Purchase Agreement”), dated as of February 28, 2023, by and among Buyer, the Company, Seller and Surgalign Holdings, Inc., a Delaware corporation, Buyer has agreed to purchase from the Seller, all of the Shares; and

WHEREAS, (a) Seller has agreed to provide, or cause to be provided, to Buyer and its Affiliates on and after the Effective Date after giving effect to the Closing, as defined below, certain transitional services on the terms and subject to the conditions set forth in this Agreement and (b) Buyer has agreed to provide, or cause to be provided, to Seller and its Affiliates on and after the Effective Date after giving effect to the Closing, certain transitional services on the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, it is hereby agreed by and among Seller and Buyer as follows:

1. Definitions. In this Agreement, the following terms have the meanings specified or referred to in this Section 1. Capitalized terms not otherwise defined herein have the meaning set forth in the Purchase Agreement.

1.1 “Additional Services” has the meaning set forth in Section 2.3.

1.2 “Affiliate” means, with respect to any Person, any other Person which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Person. As used herein, “control” means the power to direct the management or affairs of a Person through the ownership of more than 50% of the voting equity securities of such Person.

1.3 “Agreement” has the meaning set forth in the preamble.

1.4 “Buyer” means has the meaning set forth in the preamble.

1.5 “Buyer Services” has the meaning set forth in Section 2.1.

1.6 “Buyer Services Manager” has the meaning set forth in Section 3.

1.7 “Closing” means the closing of the transactions contemplated by the Purchase Agreement.

 

 

4

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


1.8 “Closing Date” means the date on which the Closing shall occur.

1.9 “Coflex Business” means the business related to the design, manufacture, sale and operation of the Coflex and Cofix products in the United States, as conducted by Seller and its Affiliates as of the Closing Date.

1.10 “Confidential Information” means any non-public, commercially proprietary or sensitive information (or materials) belonging to, concerning or in the possession or control of a party to this Agreement or its Affiliates (the “Disclosing Party”) that is furnished, disclosed or otherwise made available to the other party to this Agreement (or entities or persons acting on the other party’s behalf) (the “Receiving Party”) in connection with this Agreement and which is either marked or identified in writing as confidential, proprietary, secret or with another designation sufficient to give notice of its sensitive nature, or is of a type that a reasonable person would recognize it to be commercially sensitive.]

1.11 “Disclosing Party” has the meaning set forth in the term “Confidential Information”

1.12 “Dispute” has the meaning set forth in Section 10(a).

1.13 “Effective Date” has the meaning set forth in the preamble.

1.14 “Extension Period” has the meaning set forth in Section 11.2.

1.15 “Force Majeure” has the meaning set forth in Section 9.

1.16 “Governmental Body” means any foreign, federal, state, local or other governmental authority or regulatory body.

1.17 “Guest User” has the meaning set forth in Section 4.1.

1.18 “Host” has the meaning set forth in Section 4.1.

1.19 “Inspecting Party” has the meaning set forth in Section 12.3(a).

1.20 “Law” means any law, statute, regulation, rule, code or ordinance enacted, adopted, issued or promulgated by any Governmental Body.

1.21 “Legal Proceeding” means any action, suit, claim, demand, summons, citations or subpoena, audit, hearing, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at Law or in equity, whether or not such matter is before a Governmental Body or any other Person.

1.22 “Legal Requirement” has the meaning set forth in Section 6.3.

1.23 “Losses” has the meaning set forth in Section 8.1.

 

5

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


1.24 “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or Governmental Body.

1.25 “Provider” means the party providing, or causing to be provided a Transition Service.

1.26 “Purchase Agreement” has the meaning set forth in the first paragraph.

1.27 “Receiving Party” has the meaning set forth in the term “Confidential Information.”

1.28 “Recipient” means the party to whom a Transition Service is being provided.

1.29 “Recipient Indemnified Parties” has the meaning set forth in Section 9.1.

1.30 “Recipient Materials” has the meaning set forth in Section 6.4.

1.31 “Regulatory Authorities” has the meaning set forth in Section 12.3(b).

1.32 “Seller” has the meaning set forth in the preamble.

1.33 “Seller Services” has the meaning set forth in Section 2.1.

1.34 “Seller Services Manager” has the meaning set forth in Section 3.

1.35 “Service Charge” has the meaning set forth in Section 5.1.

1.36 “Service Charges” has the meaning set forth in Section 5.1.

1.37 “Services Managers” has the meaning set forth in Section 3.

1.38 “Significant Service Shortfall” has the meaning set forth in Section 2.6.

1.39 “Software” means computer software and software systems (including data, source code and object code, databases and related documentation).

1.40 “Systems” has the meaning set forth in Section 4.1.

1.41 “Term” has the meaning set forth in Section 11.1.

1.42 “Termination Charges” has the meaning set forth in Section 11.3.

1.43 “Termination Date” has the meaning set forth in Section 11.3.

1.44 “Transition Period” has the meaning set forth in Section 2.2.

1.45 “Transition Services” has the meaning set forth in Section 2.1.

 

6

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


2. Services.

2.1 Transition Services. Upon the terms and subject to all of the conditions contained herein, Seller shall provide (or cause to be provided) to Buyer the services listed in Annex A attached hereto (the “Seller Services”), and Buyer shall provide (or cause to be provided) to Seller the services listed in Annex B attached hereto (the “Buyer Services”, and collectively with the Seller Services and any Additional Services, the “Transition Services”).

2.2 Transition Services Period. The Transition Services set forth on Annex A and Annex B shall commence on the date hereof and shall continue for the applicable period identified on Annex A and Annex B, (the “Transition Period”). The parties acknowledge the transitional nature of the Transition Services. Accordingly, each Recipient shall use its commercially reasonable efforts to replace, and cease the use of, the Transition Services to be provided hereunder as soon as reasonably practicable after the date hereof so that the Transition Services are terminated by the end of their designated Transition Period.

2.3 Additional Services. If, after the date hereof, Seller or Buyer identifies to the other in writing a service, system, Software or facility that (a) Seller or its Affiliates have provided to (or procured the provision of for) the Business prior to the Closing Date that the Buyer reasonably determines that it needs in order for the Business to continue to operate in substantially the same manner in which the Business operated prior to the Closing Date and such service, system, Software or facility was not included in Annex A (other than because the parties specifically agreed in writing that such service, system, Software or facility shall not be provided), or (b) the Business transferred to Buyer provided to (or procured the provision of for) Seller or its Affiliates (other than with respect to the Business transferred to the Buyer) prior to the Closing Date that Seller reasonably determines that it needs in order for Seller or its Affiliates to continue to operate in substantially the same manner in which Seller or its Affiliates (other than the Business transferred to Buyer) operated prior to the Closing Date, and such service, system, Software or facility was not included in Annex B (other than because the parties specifically agreed in writing such service, system, Software or facility shall not be provided), then, in each case, Buyer and Seller shall use all reasonable endeavors, acting reasonably and in good faith, to provide (or procure the provision of) such services or access to such systems, Software or facilities in such scope, service level and duration (as applicable) as may be reasonably requested by party requesting such services (such additional services, systems, Software or facilities, the “Additional Services”) in accordance with the provisions of this Agreement. The parties shall mutually agree in good faith to the terms related to such Additional Services and the parties shall amend Annex A or Annex B, as applicable, in writing to include such Additional Services (including the incremental fees and termination dates with respect to such Additional Services) and such Additional Services shall be deemed Transition Services hereunder, and accordingly, Provider shall provide such Additional Services, or cause such Additional Services to be provided, in accordance with the terms and conditions of this Agreement; provided, however, that (i) except with respect to changes to the duration of Transition Services or Additional Services, a Recipient shall have no more than six (6) months after the date hereof to request Additional Services and (ii) in no event shall a Provider be required to provide, or cause to be provided, such Additional Service for more than eighteen (18) months after the Closing Date.

 

7

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


2.4 Use of Transition Services. A Recipient shall not resell or make available the Transition Services to third parties and shall only use the Transition Services for substantially the same purposes and in substantially the same manner as the Transition Services had been used by Seller with respect to the Business immediately prior to the Closing Date.

2.5 Standard of Transition Services. Each Provider shall provide each Transition Service under this Agreement with same skill, quality, level of service, scope and volumes that the Transition Services were provided to the Business in the ordinary course of business and consistent with past practices immediately prior to the Closing Date. Each Recipient understands and agrees that Provider is not in the business of providing transition services to third parties, and under no circumstances shall a Provider be held accountable to a higher standard of care or one that is appropriate for a party in the business of furnishing transition or similar services to third parties. Notwithstanding any other provision of this Agreement, no Provider shall be required to perform or make available, nor shall any Provider be liable under this Agreement for any failure to perform or make available, any Transition Services or for the nature, volume, quality or standard of care at which Transition Services are provided, in each case, to the extent the provision or availability of such Transition Services would, in the opinion of a Provider’s counsel, violate, breach or conflict with its obligations under any Legal Requirement or any license, contract or other agreement applicable to such Transition Services or by which such Provider or any of its Affiliates is bound. If there is any restriction on any Provider under any Legal Requirement or any existing license, contract or other agreement with a third party that would restrict the nature, volume, quality or standard of care applicable to delivery of the Transition Services to be provided by a Provider to Recipient, such Provider shall use commercially reasonable efforts in good faith to provide such Transition Services in a manner as closely as possible to the standards described in this Section 2.5 without violating such restriction.

2.6 Shortfall in Services. If Recipient provides Provider with written notice of the occurrence of any Significant Service Shortfall (as defined below) in the Transition Services, as reasonably determined by Recipient in good faith, Provider shall use commercially reasonable efforts to rectify such Significant Service Shortfall as soon as reasonably possible. For purposes of this Section 2.6, a “Significant Service Shortfall” shall be deemed to have occurred if the timing or quality of performance of one or more Transition Services provided by Provider hereunder falls below the standard required by Section 2.5 hereof; provided Provider’s obligations under this Agreement shall be relieved to the extent, and for the duration of, any Force Majeure event as set forth in Section 9.

2.7 Consents. Notwithstanding any provision of this Agreement to the contrary, if the provision of any Transition Service as contemplated by this Agreement requires the consent, license or approval not previously obtained of any third party that is a service vendor as of Closing, each party shall, and shall cause its respective Affiliates to, use commercially reasonable efforts to obtain as promptly as possible after the date of this Agreement such consent, license, or approval. Each party shall be responsible for fifty percent (50%) of all out-of-pocket costs associated with obtaining such third party consents, licenses or approvals, including any payments that are required to such third party vendor (it being understood that the cost of obtaining third party consents required for the expansion of Transition Services beyond pre-Closing levels shall be the sole responsibility of Recipient).

 

8

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


2.8 Subcontractors. Except as otherwise specified on Annex A or Annex B, a Provider may upon written notice to Recipient use subcontractors to provide, or assist Provider and its Affiliates in the provision of, the Transition Services; provided, however, that no such subcontracting shall relieve such Provider from any of its obligations or liabilities hereunder, and Provider shall remain responsible for all obligations or liabilities of such subcontractor with respect to the providing of such service or services as if provided by Provider.

2.9 Modifications to Services. Each Recipient acknowledges that a Provider may be providing similar services, or services that involve the same resources as those used to provide the Transition Services, to its internal organizations, other Affiliates or third parties. Each Provider reserves the right to modify the Transition Services in connection with changes to its internal organization in the ordinary course of business. No Provider will be required to increase staffing, acquire equipment, make any capital expenditure or alter or modify its operations, procedures, method of doing business, reporting mechanisms or information technology systems in order to perform any Transition Service.

3. Transition Service Management. Seller hereby designates Ryan Larson to act as its initial services manager (the “Seller Services Manager”), who will be directly responsible for coordinating and managing the delivery of the Seller Services and have authority to act on Seller’s behalf with respect to matters relating to this Agreement. Buyer hereby designates Scott Neils to act as its initial services manager (the “Buyer Services Manager”, and together with the Seller Services Manager, the “Services Managers”), who will be directly responsible for coordinating and managing the delivery of Buyer Services and have authority to act on Buyer’s behalf with respect to matters relating to this Agreement. In addition to performing the obligations of the parties as described in this Section 3, the Services Managers shall regularly communicate and discuss, by telephone and such other means, and at such times, as the Services Managers may agree, (i) the Transition Services and the status and progress of the other activities contemplated by this Agreement and (ii) any issues which could reasonably be expected to affect the provision or receipt of the Transition Services and the costs, expenses, resources, personnel, licenses, rights, services or other factors required to provide such Transition Services. Notwithstanding the requirements of Section 11.1, all communications pursuant to this Agreement regarding routine matters involving delivery of the Transition Services set forth in Annex A and Annex B shall be made through the Services Managers (or such other individuals specified by the Services Manager in writing and delivered to the parties by email transmission with receipt confirmed). A party may designate a replacement Services Manager by notifying the other party in writing in accordance with Section 11.1.

4. Access and Information.

4.1 Access to Systems. If a Provider and/or Recipient (or any of their respective representatives) are at any time given access (each in such capacity, a “Guest User”) to the other’s computer system(s) or software (collectively, “Systems”) in connection with the performance of this Agreement, such Guest User shall comply with the other party’s (each in such capacity, a “Host”) Systems security policies, procedures and requirements (including physical security, network access, internet security, confidentiality and personal data security guidelines) which the Host makes known to the Guest User from time to time. Guest User shall ensure that such access shall be used by such personnel only for the purposes contemplated by, and subject to the terms of, this Agreement.

 

9

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


4.2 Access to Information. Each Recipient shall make available on a timely basis to a Provider all instructions, access, information, cooperation, data and materials reasonably requested by such Provider to enable it to provide the Transition Services hereunder. Each Recipient shall be responsible for any additional costs and expenses, and any reduction in the standards of the Transition Services, resulting from any delay by such Recipient in providing such instructions, access, information, cooperation, data and materials. Notwithstanding the foregoing, if a Recipient fails to provide such instructions, access, information, cooperation, data and materials, or fails to perform a prerequisite act, within ten (10) days after written notice thereof, no Provider shall have liability for failing to perform such Transition Service.

5. Payment for Transition Services.

5.1 Service Charges. Each Provider shall provide the Transition Services at the cost specified on Annex A (each, a “Service Charge” and collectively, the “Service Charges”). Each Provider shall issue any invoices every two weeks in respect of any Transition Services and payment for such Transition Services shall be due thirty (30) days following receipt of each invoice by a Recipient; provided, that costs related to payroll and employee benefits shall be invoiced immediately upon processing of payroll and payment for such amounts shall be due upon receipt. Transition Services charged on a bi-weekly basis that are provided for partial periods shall be charged for pro rata, based on a 30-day period. If at any time a Provider believes that the Service Charges are insufficient to compensate it for the cost of providing the Transition Services it is obligated to provide hereunder, such Provider shall notify Recipient and the parties shall commence good faith negotiations toward an agreement as to the appropriate course of action with respect to pricing of such Transition Services for future periods. This Section 5.1 shall survive any termination of this Agreement with respect to Transition Services performed pursuant to this Agreement for which a Provider has not yet been paid.

5.2 Other Expenses. In addition to the Service Charges payable pursuant to Section 5.1, each Provider may charge Recipient for any of such Provider’s reasonable and documented out-of-pocket costs or expenses incurred by such Provider in connection with performing any of the Transition Services. Each Provider may invoice Recipient for any such out-of-pocket costs or expenses incurred by such Provider in connection with performing any of the Transition Services, which shall set forth in reasonable detail, with such supporting documentation as Recipient may reasonably request in writing with respect to such out-of-pocket costs or expenses, and Recipient shall pay any such invoices within thirty (30) days after its receipt of such invoices.

5.3 Interest. All payments required to be made pursuant to this Agreement shall bear interest from and including the date after such payment is due to but excluding the date of payment at an annual rate equal to 30-day SOFR in effect from time to time during the period, as reported in The Wall Street Journal. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated on the basis of the number of days (excluding the payment date) by which the payment date follows the date such payment is due.

 

10

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


5.4 Taxes.

(a) Sales Tax or Other Transfer Taxes. Each Recipient shall bear any and all sales, use, transaction and transfer taxes and other similar charges (and any related interest and penalties) imposed on, or payable with respect to, any Service Charges payable by Recipient pursuant to this Agreement.

(b) Withholding Tax or Other Similar Taxes. If any withholding or deduction from any payment under this Agreement by Recipient in relation to any Transition Service is required in respect of any taxes pursuant to any Legal Requirements, Recipient will: (i) gross up the amount payable such that the applicable Provider receives an amount equal to the amount of the Service Charges in respect of that Transition Service, net of the withholding or deduction, (ii) deduct such tax from the amount payable to such Provider, (iii) pay the deducted amount referred to in clause (ii) to the relevant Governmental Body; and (iv) promptly forward to such Provider a withholding tax certificate evidencing that payment.

(c) Cooperation. Each Recipient and Provider will take reasonable steps to cooperate to minimize the imposition of, and the amount of, taxes described in this Section 5.4.

5.5 No Right to Set-Off. Recipient shall pay the full amount of Service Charges and shall not set-off, counterclaim or otherwise withhold any amount owed to a Provider under this Agreement on account of any obligation owed by a Provider to Recipient that has not been finally adjudicated, settled or otherwise agreed upon by the parties in writing; provided, however, that Recipient shall be permitted to assert a set-off right with respect to any obligation that has been so finally adjudicated, settled or otherwise agreed upon by the parties in writing against amounts owed by Recipient to a Provider under this Agreement.

6. Confidential Information.

6.1 Obligations of Confidentiality. Each Receiving Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the Disclosing Party in connection with this Agreement. A Disclosing Party’s Confidential Information shall remain the property of such Disclosing Party, unless otherwise expressly by the other provisions of this Agreement. As necessary to accomplish the purposes of this Agreement, each Receiving Party may disclose Confidential Information of the Disclosing Party to any employee, officer, director, contractor, service provider, agent or representative of such Receiving Party who has a legitimate need to know the information in question for the purposes of this Agreement and who is bound to such Receiving Party to protect the confidentiality of the information and materials in a manner substantially equivalent to that required of such Receiving Party. A Receiving Party may also disclose Confidential Information of the Disclosing Party to such Receiving Party’s regulatory agencies, legal counsel, and auditors provided they are made aware of such Receiving Party’s obligations of confidentiality with respect to the Disclosing Party’s Confidential Information. Each Receiving Party shall be liable for the conduct of any of any person or entity to whom it provides or permits to access the Disclosing Party’s Confidential Information. Each Receiving Party shall keep the Confidential Information of the Disclosing Party confidential and secure and shall protect it from unauthorized use or disclosure.

 

11

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


6.2 Exceptions. The foregoing obligations of confidentiality and non-use do not apply to any particular information of the Disclosing Party that a Receiving Party can demonstrate: (a) is in the public domain at the time of disclosure; (b) is independently developed by Receiving Party without use of, reference to or reliance on the Disclosing Party’s Confidential Information; or (c) becomes known by Receiving Party from a source other than the Disclosing Party without breach of this Agreement and is not subject to an obligation of confidentiality.

6.3 Compelled Disclosure. If a Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation, regulatory request or other similar requirement (a “Legal Requirement”), such Receiving Party shall, to the extent not precluded by Law, provide prompt notice of such Legal Requirement to the Disclosing Party so the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is, in the reasonable opinion of its counsel, legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, such Receiving Party may disclose, without liability hereunder, such Confidential Information in accordance with, but solely to the extent necessary, in the reasonable opinion of its counsel, to comply with the Legal Requirement.

6.4 Return of Materials. Promptly following the termination of this Agreement or the earlier termination of a Transition Service for which a Provider has possession of any tangible books, records or other data (to the extent such books, records or other data are the property of a Recipient), whether in hard copy or current or archived copies of computer files (collectively, the “Recipient Materials”), such Provider shall, and shall cause its Affiliates and subcontractors to, at Recipient’s option, promptly return at such Provider’s cost and expense (other than shipping and delivery charges, which shall be borne solely by Recipient) or promptly destroy and certify the destruction of, all of such Recipient Materials (including all copies thereof), except (a) as otherwise required by any Legal Requirement, (b) to the extent that Recipient Materials are retained on e-mail platforms, in archival back-up tapes or similar storage media or are otherwise retained in accordance with the internal policies of a Provider, in which case Recipient Materials are not to be used for any purpose by a Provider other than for archival purposes, or (c) to the extent that Recipient Materials are required by a Provider to provide or receive Transition Services that have not yet terminated or to satisfy obligations under the Purchase Agreement or any of the ancillary agreements contemplated by the Purchase Agreement.

 

12

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


7. Disclaimer, Liability.

7.1 Disclaimer of Warranties. EXCEPT AS OTHERSWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE TRANSITION SERVICES ARE PROVIDED AS-IS, THAT EACH RECIPIENT ASSUMES ALL RISKS AND LIABILITY ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE TRANSITION SERVICES PROVIDED TO IT AND THAT NO PROVIDER MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT THERETO. EACH PROVIDER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE TRANSITION SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OR WARRANTY IN REGARD TO QUALITY, PERFORMANCE, NONINFRINGEMENT, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS OF THE TRANSITION SERVICES FOR A PARTICULAR PURPOSE AND RECIPIENT HEREBY ACKNOWLEDGES SUCH DISCLAIMER.

7.2 Disclaimer of Damages. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF REVENUES, LOSS OF PROFITS OR DIMINUTION OF VALUE OR ANY DAMAGES BASED ON ANY TYPE OF MULTIPLE, WHETHER ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL OF WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY PARTY TO THIS AGREEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The exclusions on damages set forth in this Section 7.2 shall not apply to Losses based on (i) gross negligence or willful misconduct and/or (ii) a breach of a party’s obligations set forth in Section 6.

7.3 Limitation of Liability. NO PROVIDER OR ANY OF ITS AFFILIATES (AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND OTHER REPRESENTATIVES) SHALL BE LIABLE TO A RECIPIENT AND ITS AFFILIATES (AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES AND OTHER REPRESENTATIVES) IN AN AMOUNT GREATER THAN TO THE SERVICE CHARGES PAID OR PAYABLE FOR THE TRANSITION SERVICES BY RECIPIENT TO PROVIDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. The limitations on liability set forth in this Section 7.3 shall not apply to Losses based on gross negligence or willful misconduct.

8. Indemnification. Each Provider shall indemnify and hold harmless each relevant Recipient and each of its Affiliates (collectively, the “Recipient Indemnified Parties”) from and against all losses, damages, liabilities or costs, including attorney’s fees and costs (“Losses”) of Recipient Indemnified Parties based upon or arising in connection with any third-party claim or action with respect to (i) the gross negligence or willful misconduct of a Provider, any of its Affiliates, any of its or their subcontractors or any of its or their respective employees, officers or directors in connection with the provision of Transition Services under this Agreement; and/or (ii) a Provider’s breach of its obligations set forth in Section 6.

9. Force Majeure. If a party, its Affiliates or its or their respective subcontractors is prevented from or delayed in complying, either totally or in part, with any of the terms or provisions of this Agreement (other than a payment obligation) or providing any Transition Services by reason of any severe or adverse weather conditions, strike, walkout, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel, power,

 

13

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


raw materials or components, any Legal Requirements, malfunctions of equipment or software programs under maintenance agreements, riot, civil commotion, war, rebellion, acts of terrorism, nuclear accident or other causes beyond the reasonable control of any such Person or other acts of God, or acts, omissions or delays in acting by any Governmental Body (a “Force Majeure”), then upon notice to the other party the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and such party shall have no liability to the other party, its Affiliates or any other Person in connection therewith. Upon the cessation of the Force Majeure event, Provider shall use commercially reasonable efforts to resume, or to cause the relevant Affiliate or subcontractor, to resume, its performance with the least practicable delay.

10. Dispute Resolution.

(a) Upon receiving written notice of any dispute, controversy or claim arising out of or relating to the transactions contemplated by this Agreement, or the validity, interpretation, breach, violation or termination of any provision of this Agreement, or calculation or allocation of the costs of any Transition Service, including claims seeking redress or asserting rights under any Legal Requirements (each, a “Dispute”), the parties agree that the Seller Services Manager and the Buyer Services Manager (or such other people as the parties may designate) shall negotiate in good faith in an attempt to resolve such Dispute amicably. If such Dispute has not been resolved to the mutual satisfaction of each party within twenty (20) days after the initial notice of the Dispute (or such longer period as mutually agreed upon by the parties in writing), then, each party shall give notice to the other party identifying an executive officer of the notifying party who has authority to resolve the Dispute with the other party’s designated executive officer who is similarly authorized, each of whom shall negotiate in good faith in an attempt to resolve such Dispute amicably for an additional fifteen (15) days (or such longer period as mutually agreed upon by the parties in writing). If at the end of such time such persons are unable to resolve such Dispute amicably, then each party may bring an action regarding such Dispute as set forth in Section 12.1. Until completion of such procedures, no party may take any action to force a resolution of a Dispute by any judicial or similar process, except to the limited extent necessary to (i) avoid expiration of a claim that might eventually be permitted by this Agreement or (ii) obtain interim relief, including injunctive relief, to preserve the status quo or prevent irreparable harm.

(b) All offers of compromise or settlement among the parties or their representatives in connection with the attempted resolution of any Dispute shall be deemed to have been delivered in furtherance of a Dispute settlement and shall be exempt from discovery and production and shall not be admissible in evidence (whether as an admission or otherwise) in any proceeding for the resolution of the Dispute.

11. Term; Termination.

11.1 Term. The term (the “Term”) of this Agreement shall commence as of the date hereof and, subject as to any Transition Service continuing only to the earlier expiration of the Transition Period with respect thereto, shall continue until the earliest of: (a) the date on which the last of the Transition Service under this Agreement is terminated; or (b) the date on which this Agreement is terminated by mutual agreement of the parties.

 

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11.2 Extension. If, after the date hereof, a Recipient identifies that it is not able by the end of the Transition Period to complete its migration of one or more Transition Services, then upon written notice provided to the applicable Provider at least thirty (30) days prior to the end of the applicable Transition Period, such Recipient shall have the right to request and cause such Provider to provide such Transition Services for up to ninety (90) additional days or such longer period set forth in Annex A or Annex B, as applicable, (an, “Extension Period”); provided that Recipient shall pay all applicable Service Charges for such Transition Services, unless otherwise set forth in Annex A or Annex B, as applicable.

11.3 Early Termination. If a Recipient wishes to terminate a Transition Service in whole (by service line item basis on Annex A or Annex B, as applicable) on a date that is earlier than the end of the Transition Period, Recipient shall notify Provider in writing of the proposed date on which such Transition Service (by service line item basis on Annex A or Annex B, as applicable) shall terminate (the “Termination Date”), at least thirty (30) days prior to the Termination Date. Effective on the Termination Date, such Transition Service shall be discontinued and thereafter, this Agreement shall be of no further force and effect with respect to such Transition Service, except as to obligations accrued prior to the Termination Date. In connection with such early termination, each Recipient shall pay Provider all third party costs and expenses (excluding severance and other amounts payable to such Provider’s own employees) payable as a result of any early termination or reduction of a Transition Service, which costs and expenses may include breakage fees, early termination fees, and minimum volume charges with respect to terminated Transition Services (all such costs and expenses, “Termination Charges”).

11.4 Return of Books, Records and Materials. Subject in all cases to the parties’ respective rights and responsibilities regarding books, records and files set forth in the Purchase Agreement, upon the expiration or termination of a Transition Service with respect to which either party holds books, records or files, including current copies of computer files, owned by the other party, the party holding such books, records or files shall return them as soon as reasonably practicable to the other party upon the written request of the other party, except that one (1) copy of all such books, records or files may be retained by the returning party for the sole purpose of enforcing such party’s rights under this Agreement or defending against claims of breach and the returning party shall not be required to return archived copies of computer files created pursuant to such party’s standard electronic backup and internal archival procedures, subject in each case to the requirements of Section 3 hereunder.

11.5 Effect of Termination. Upon termination of this Agreement in accordance herewith, all obligations of the parties under this Agreement shall terminate and there shall be no liability of any party to the other party, except that such termination shall not relieve any party of any payment obligation arising prior to the date of such termination and except that the provisions of Sections 5, 6, 7, 8, 9, 10, 11.4, this Section 11.5, and Sections 12.1, 12.2 12.3(b), 12.4, 12.5, 12.6, 12.7, 12.8, 12.9, 12.10, 12.11, and 12.12 shall survive any termination hereof.

 

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12. General.

12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of the State of Delaware.

12.2 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be delivered personally, by facsimile, by email, or sent by private overnight courier or by registered or certified mail, and shall be deemed given when delivered personally, by facsimile, by email or by courier or otherwise, as follows:

If to Buyer, addressed to:

Xtant Medical Holdings, Inc.

664 Cruiser Lane

Belgrade, Montana 59714

______________________________

Attention: _____________________

Facsimile:

Email:

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

Fox Rothschild LLP

33 South 6th Street, Suite 3600

Minneapolis, MN 55402

______________________________

Attention: Thomas Letscher

Facsimile: (612) 607-7100

Email: tletscher@foxrothschild.com

If to Seller, addressed to:

Surgalign Spine Technologies, Inc.

520 Lake Cook Road, Suite 315

Deerfield, Illinois 60015

Attention: Paolo G. Amoruso

Email: pamoruso@surgalign.com

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

DLA Piper LLP (US)

4365 Executive Drive, Suite 1100

San Diego, California 92121-2133

Attention: Larry W. Nishnick, Esq, larry.nishnick@us.dlapiper.com

or to such other address as such party may indicate by a notice delivered to the other party hereto.

 

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12.3 Audit Rights.

(a) Notwithstanding the other rights of access of the parties under this Agreement, each party shall afford the other party and its designated representatives (the “Inspecting Party”), upon reasonable advance written notice and during normal business hours, reasonable access to review and audit such party’s records relating to the performance or receipt, as applicable, of the Transition Services, at the Inspecting Party’s sole cost and expense; provided, however, such review or audit (i) shall be conducted in a manner reasonably designed to protect the confidentiality of information of the non-Inspecting Party, (ii) shall not be required to be granted more than once in any period of 365 consecutive days and (iii) shall not interfere with any of the business or operations of the non-Inspecting Party or its Affiliates.

(b) Recipient’s business operations are audited regularly by various government agencies having supervisory and regulatory authority with jurisdiction over Recipient (collectively, the “Regulatory Authorities”), which may have authority to examine Provider in relation to its performance hereunder for purposes of evaluating safety and soundness related risks, financial and operational viability, and Recipient’s compliance with Legal Requirements. Accordingly, upon at least forty-eight (48) hours advance notice (or less if required by Legal Requirements), any such Regulatory Authority with such authority may require reports from and perform onsite inspections of Provider and Provider shall cooperate with and provide such reports and provide onsite access to such Regulatory Authority at all reasonable times to enable Regulatory Authorities to confirm that Provider is meeting all applicable regulatory and other legal requirements which Provider is required to comply with in connection with performance of its obligations to Recipient under this Agreement.

12.4 Successors and Assigns. Neither party may assign this Agreement or any of its rights hereunder to any third Person without the written consent of the other party, except that either party may assign its rights hereunder to an Affiliate. Any assignment hereunder shall not relieve the assigning party of its obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. Except as set forth in Section 9 with respect to Recipient Indemnified Parties, nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the parties and successors and assigns permitted by this Section 12.4 any right, remedy or claim under or by reason of this Agreement.

12.5 Entire Agreement; Amendments. This Agreement, the Annexes referred to herein, the Purchase Agreement and the other documents executed in connection with the Purchase Agreement constitute the entire agreement contain the entire understanding of the parties hereto with regard to the subject matter contained herein or therein, and supersede all other prior representations, warranties, agreements, understandings or letters of intent between or among any of the parties hereto. This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of the parties hereto.

 

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12.6 Waivers. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the party or parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party, it is authorized in writing by an authorized representative of such party. For this purpose, an email, even if it includes a signature block of the sender, shall not be considered a “writing”, although an electronic copy of a document duly executed on behalf of a party hereto shall be considered a “writing” even if transmitted by email or other electronic means. The failure of any party hereto to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

12.7 Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.

12.8 Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by each of the parties hereto and delivered to Provider and Recipient.

12.9 Waiver of Jury Trial. Each party hereto waives the right to a trial by jury in any litigation, proceeding or other legal action in connection with or relating to this Agreement.

12.10 Interpretation. In this Agreement (including in any Annex):

(a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders;

(b) “including” means “including without limitation”;

(c) “business day” means any day other than a Saturday, Sunday, or a day that is a statutory holiday under the laws of the United States or the State of New York;

(d) the use of headings is for convenience of reference only and shall not affect the meaning or interpretation of this Agreement (including any Annexes);

(e) when calculating the period of time within which or following which any act is to be done or step taken, the date that is the reference day in calculating such period shall be excluded and, if the last day of such period is not a business day, the period shall end on the next day that is a business day;

 

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(f) all dollar amounts are expressed in United States funds, and all amounts payable hereunder shall be paid in United States funds;

(g) money shall be tendered by wire transfer of immediately available federal funds to the account designated in writing by the party that is to receive such money;

(h) the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not only to a particular Section in which such words appear;

(i) references herein to articles, sections, exhibits and schedules mean the articles and sections of, and the exhibits and schedules attached to, this Agreement;

(j) Annexes referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein;

(k) the word “or” shall not be exclusive; and

(l) unless the context otherwise requires, references herein: (i) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (ii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any rules and regulations promulgated thereunder.

12.11 Independent Contractors; Lack of Authority. The parties acknowledge and agree that the relationship between Provider and Recipient established by this Agreement is for all purposes that of independent contractors, and that nothing contained in this Agreement shall be deemed or construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. Neither party shall have the authority to commit the other party to any binding obligation or to execute, on behalf of the other party, any agreement, lease or other document creating legal obligations on the part of the other party, and neither party shall represent to any third party that it has such authority.

12.12 Jurisdiction; Enforcement. Any action, suit or other Legal Proceeding relating to this Agreement or the enforcement of any provision of this Agreement (including an action, suit or other Legal Proceeding based upon fraud) shall be brought or otherwise commenced exclusively in the Delaware Court of Chancery, and to the extent the Delaware Court of Chancery rejects jurisdiction, in any state or federal court located in the County of New Castle, State of Delaware. Each party to this Agreement: (i) expressly and irrevocably consents and submits to the exclusive jurisdiction in the Delaware Court of Chancery, and to the extent the Delaware Court of Chancery rejects jurisdiction, each state and federal court located in the County of New Castle, State of Delaware (and each appellate court located in the County of New Castle, State of Delaware) in connection with any such action, suit or Legal Proceeding; (ii) agrees that the Delaware Court of Chancery and each state and federal court located in the County of New Castle, State of Delaware shall be deemed to be a convenient forum; and (iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such action, suit or Legal Proceeding commenced in the Delaware Court of Chancery or any state or federal court

 

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located in the County of New Castle, State of Delaware, any claim that such party is not subject personally to the jurisdiction of such court, that such action, suit or Legal Proceeding has been brought in an inconvenient forum, that the venue of such action, suit or other Legal Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.

Signature page follows.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.

 

SURGALIGN SPINE TECHNOLOGIES, INC.
By:  

/s/ Terry Rich

Name:   Terry Rich
Title:   President and Chief Executive Officer
XTANT MEDICAL HOLDINGS, INC.
By:  

/s/ Sean E. Browne

Name:   Sean E. Browne
Title:   President and Chief Executive Officer

 

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ANNEX A

TRANSITION SERVICES

[***]

 

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.


ANNEX B

TRANSITION SERVICES

None.

 

[***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.