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Confidential Materials omitted and filed separately with the
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Securities and Exchange Commission. Asterisks denote omissions.
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Exhibit 10.1
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Moss,
Inc.
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IDEXX
Operations, Inc.
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P.O.
Box 189
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One
IDEXX Drive
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Pasadena,
MD 21123-0189
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Westbrook,
ME 04092
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(“Moss”)
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(“IDEXX”)
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PRODUCTS:
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The
chromogen substrates described and in conformity with the specifications
on Schedule
A (the “Products”). This
Agreement and Schedule A may
only be amended by the parties’ mutual agreement. The parties
acknowledge that the terms and conditions of this Agreement and the
quantities of the Products purchased by IDEXX hereunder shall be treated
as confidential information pursuant to the confidential disclosure
agreements previously entered into by the parties on March 1,
2001.
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PRICING:
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As
set forth on Schedule
B. Prices are fixed through 31 December
2008. Thereafter, Moss shall notify IDEXX in writing at least
120 days before each subsequent calendar year of any changes in the prices
of Products; provided,
however, that in no event shall Moss increase prices in any given
calendar year greater than [**]%.
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SHIPPING:
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Shipping
terms are F.O.B. Moss’ facility in Hanover, Maryland. Title to
and risk of loss for Products shall pass to IDEXX upon delivery to the
carrier (specified by IDEXX) at Moss’ facility in Hanover,
Maryland. Moss shall cooperate with IDEXX in the documentation
and proof of loss claims presented by IDEXX to the appropriate carrier
and/or insurer.
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AND
VALIDATION:
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As
set forth on Schedule A, as
may be amended from time to time by the parties’ mutual
agreement.
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Moss
shall not change the specifications attached hereto as Schedule A,
without Moss providing IDEXX at least 12 months’ prior written notice (any
such notice, a "Products Change
Notice"), unless a shorter time frame can be mutually agreed, in
order to permit IDEXX to evaluate such proposals and to verify that
regulatory, performance and quality criteria will be
satisfied. IDEXX shall have the right to approve or disapprove
all proposed changes before the incorporation of such changes into the
Products. In the course of IDEXX’s evaluation of such change,
IDEXX shall promptly notify Moss of any test result that indicates such
change will fail to meet any such criteria. Upon written
approval by IDEXX of changes in the specifications described in a Products
Change Notice, the approved changes shall be deemed to be incorporated in
Schedule
A.
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QUALITY:
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In
order to ensure quality and resolve any issues that may arise with the
Products, Moss shall permit IDEXX access to Moss’ facilities as described
in Schedule
C.
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ORDERS:
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IDEXX
shall order Products from Moss by written purchase orders ("Orders"),
stating the number of Products ordered , one or more scheduled delivery
dates (which shall be not less than 30 days after order date), and one or
more delivery destinations. Each Order shall be accompanied by
the then current version of the agreed specifications. Moss
shall accept and fill all Orders for Products placed under this Agreement
that specify delivery dates within the Term and that conform to the
preceding sentence and acknowledge such acceptance in writing within 5
days after receipt of the Order.
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FORECASTS:
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IDEXX
shall furnish to Moss not less than 30 days before the commencement of
each calendar quarter during the term of this Agreement a forecast of the
quantity of the Products for which IDEXX expects to submit Orders in such
calendar quarter and the three succeeding calendar
quarters. Each such forecast after the first shall update and
replace prior forecasts as to the calendar quarters covered by such prior
forecasts. It is understood that such forecasts are merely
estimates and are not to be considered
Orders.
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TERM:
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The
date of this Agreement through termination by either party by providing
written notice of termination not less than 24 months’ prior to the
effective date of such termination.
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ESCROW:
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Moss
hereby agrees to deposit copies of
Moss’ manufacturing information relating to the Products (as such
documentation currently exists) with Iron Mountain Intellectual Property
Management, Inc. (the “Escrow Agent”) for the Escrow Agent to keep in
confidence and to be released to IDEXX solely upon the occurrence of
certain triggering events as more particularly described
below. Moss further agrees to update its deposit of such
information from time to time as required so that the information on
deposit with the Escrow Agent is complete, current and
accurate. Upon Moss depositing its manufacturing information
with the Escrow Agent, or upon Moss’ updating of such manufacturing
information thereafter, IDEXX’s operations manufacturing manager,
technical support manager or quality support manager ([**]) shall have the
opportunity to review such manufacturing information to verify that such
information is in a form that would allow IDEXX to use such information to
manufacture the Products upon the occurrence of one of the triggering
events discussed below. Prior to its review of any
manufacturing information (either upon initial deposit or the updating of
such information), IDEXX shall provide Moss with the name of the person
who shall conduct such review. Representatives from Moss shall
have the right and opportunity to be present for the duration of such
review. Following such review, Moss’ manufacturing documents
shall be immediately placed in the possession of the Escrow Agent and
shall not be viewed again by anyone at IDEXX unless and until the
occurrence of one of the triggering events listed
below.
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WARRANTY:
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Moss
warrants to IDEXX that it shall produce the Products in conformity to the
specifications set forth on the attached Schedule
A. In the event that any Products delivered to IDEXX do
not, conform to such specifications, Moss agrees to replace such Products
at no cost to IDEXX.
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MISCELLANEOUS:
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This
Agreement shall be governed by the laws of the State of (Maryland) and
cannot be modified except in writing signed by authorized representatives
of both parties.
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MOSS, INC.
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IDEXX OPERATIONS, INC.
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/s/ Richard L. Guertin
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/s/ Jon Ayers
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Name:
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Richard L. Guertin
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Name:
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Jon Ayers
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Title:
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Chairman and CEO
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Title:
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Chairman, President and CEO
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23-08303-00
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one
part [**] substrate specifically
for [**]
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23-01788-00
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one
part [**] substrate specifically for
[**]
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02-07209-00
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[**]
one part substrate for use in [**]
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02-07701-00
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[**]
one part substrate for use in [**]
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02-07510-00
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[**]
substrate for alkaline phosphatase
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23-08303-00
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$[**]/Lt
with a minimum order of [**] liters
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23-01788-00
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$[**]/Lt
with a minimum order of [**] liters
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02-07209-00
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$[**]/[**]
ml bottle minimum order of [**]
bottles
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02-07701-00
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$[**]/[**]
ml bottle minimum order of [**]
bottles
|
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02-07510-00
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$[**]/[**]
ml fill minimum order of [**]
bottles
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23-08303-00
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$[**]/Lt
with a minimum order of [**] liters
|
|
23-01788-00
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$[**]/Lt
with a minimum order of [**] liters
|
|
02-07209-00
|
$[**]/[**]
ml bottle minimum order of [**]
bottles
|
|
02-07701-00
|
$[**]/[**]
ml bottle minimum order of [**]
bottles
|
|
02-07510-00
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$[**]/[**]
ml fill minimum order of [**]
bottles
|
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23-08303-00
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sample;
[**] Lt cubitainer, minimum [**] liter fill. Bulk; [**] Lt
cubitainer
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23-01788-00
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sample;
[**] Lt cubitainer, minimum [**] liter fill. Bulk; [**] Lt
cubitainer
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02-07209-00
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Brown,
polyethylene [**] ml bottle,
unlabeled
|
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02-07701-00
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Brown,
polyethylene [**] ml bottle,
unlabeled
|
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02-07510-00
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Brown,
polyethylene [**] ml bottle,
unlabeled
|
|
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a)
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The
date and time of such access shall be mutually agreed upon with at least 2
weeks prior notice and shall take place within Moss’ normal business
hours;
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b)
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IDEXX
shall present Moss with the name(s) of personnel visiting which shall be
limited to 3 or less individuals per
visit;
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c)
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IDEXX’s
access to Moss’ Facilities is for the purpose of, and limited to,
discussions and consultation regarding any root cause analysis or to
expedite any delivery or quality issues, and shall not be for the
purpose of in-process inspections by IDEXX;
and
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d)
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All
personnel visiting shall (i) be bound by the terms of this agreement, (ii)
be bound by the confidential disclosure agreements previously executed by
IDEXX and Moss, and (iii) comply with MOSS' safety and security
policies.
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