EXHIBIT 10.1
Portions of this Exhibit were
omitted and filed separately with the Secretary of the Commission
pursuant to an application for confidential treatment filed with
the Commission pursuant to Rule 406 under the Securities Act of
1933. Such omissions are designated as ***.
AMENDMENT NO. 1 TO DISTRIBUTION
AGREEMENT
This Amendment No. 1 to
Distribution Agreement (this “Amendment”), dated as of
January 1, 2007, is between OraSure Technologies, Inc., a
corporation organized under the laws of the State of Delaware,
U.S.A., with principal offices at 220 East First Street, Bethlehem,
Pennsylvania 18015-1360 (“OSUR”), and SSL International
plc, a limited liability company organized under the laws of
England, with principal offices Venus, 1 Old Park Lane, Manchester,
England M41 7HA (“Distributor”).
BACKGROUND
OSUR and Distributor previously
entered into that certain Distribution Agreement, dated as of
June 1, 2005 (the “Original Agreement”), pursuant
to which OSUR agreed to manufacture and supply the Product for
distribution by Distributor in the OTC Market in the Territory.
Capitalized terms not otherwise defined in this Amendment shall
have the meanings set forth in the Original Agreement. The parties
desire to amend the Original Agreement to modify its terms for the
2007 Contract Year, as more specifically set forth in this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing, and the other mutual promises and covenants
contained in this Amendment, OSUR and Distributor, intending to be
legally bound, hereby agree as follows:
1.
Product Price—2007 Contract Year
. Subject to OSUR’s reimbursement
obligation pursuant to Section 5, below, the Price for all
Product purchased by Distributor for shipment and delivery in the
Contract Year beginning January 1, 2007 and ending
December 31, 2007 (the “2007 Contract Year”),
shall be *** per Unit. Except as specifically provided in this
Section 1, nothing in this Amendment shall modify or otherwise
affect the Price payable for Product purchased by Distributor in
any other Contract Year.
2.
Purchase Quantities—2007 Contract Year
. Distributor agrees to purchase during the
2007 Contract Year at least *** Units of Product, which amount
shall be the Total Territory Minimum Quantity for the 2007 Contract
Year. Distributor’s obligation to meet such Total Territory
Minimum Quantity for the 2007 Contract Year hereby supersedes and
replaces Distributor’s obligation to purchase the Territory A
Minimum Quantity for any Territory A Country, the Total Territory B
Minimum Quantity and the Total Territory Minimum Quantity for the
2007 Contract Year originally set forth in the Original Agreement.
To the extent Distributor purchases more than the new Total
Territory Minimum Quantity for the 2007 Contract Year, as set forth
above, such excess shall not be counted toward meeting the Total
Territory Minimum Quantity for any subsequent or prior Contract
Year. Except as provided in this Section 2 with
respect to the 2007 Contract Year, nothing in
this Amendment shall modify or otherwise affect Distributor’s
minimum purchase commitments under the Agreement for any other
period or Contract Year.
3. 20 07
Purchase Orders .
3.1
Initial Orders . To the extent not
previously delivered, concurrently with the execution of this
Amendment, Distributor shall deliver to OSUR one or more firm,
binding Purchase Orders for the purchase and delivery of at least
the *** Unit Total Territory Minimum Quantity for the 2007 Contract
Year described in Section 2, above. The foregoing Purchase
Orders may omit the specific country designation or SKU for the
Units to be purchased, provided that Distributor shall exercise
commercially reasonable efforts to provide that information to OSUR
not less than ninety (90) days prior to the scheduled delivery
date for the affected Units of Product. To the extent OSUR supplies
Product after being provided with the country-specific designation
or SKU less than sixty (60) days in advance of the scheduled
delivery date (the “Late Designation”), OSUR shall be
entitled to receive, and Distributor agrees to pay, to OSUR up to
*** per Unit of Product supplied by OSUR, as reimbursement for
costs incurred by OSUR as a result of the Late Designation. OSUR
shall separately invoice Distributor and provide supporting
documentation reasonably satisfactory to Distributor, in order to
obtain reimbursement of the costs incurred as a result of a Late
Designation. The Purchase Orders required under this Section 3
shall constitute firm financial commitments on the part of
Distributor.
3.2 Prior
Orders . To the extent that Distributor
has delivered one or more Purchase Orders during 2007 prior to the
execution of this Amendment and such Purchase Orders do not reflect
the Product Price and other terms of this Amendment, the parties
agree that such Purchase Orders shall be deemed to be modified to
the extent necessary to be consistent with the terms
hereof.
4. 2007
Advertising Expenditures . Subject to
Section 5, below, Distributor agrees that it will incur and
pay for *** of Advertising and Promotional Expenditures (as defined
below) for the advertising and promotion of the Products in the OTC
Market in the Territory during the 2007 Contract Year. For purposes
hereof, the term “Advertising and Promotional
Expenditures” shall mean the external costs actually incurred
by Distributor only for television, radio and print media
advertising, public relations and promotion (including trade
promotion) for the Product in the OTC Market in the Territory.
Distributor shall make available to OSUR as requested written
evidence documenting Distributor’s compliance with this
Section 4.
5. OSUR
Reimbursement—2007 Contract Year .
5.1
Reimbursement of Eligible Expenditures . OSUR shall
reimburse Distributor for Advertising and Promotional Expenditures
actually incurred by Distributor during the 2007 Contract Year
(“Eligible Expenditures”) in accordance with this
Section 5.1. OSUR shall reimburse Distributor for Eligible
Expenditures at the rate of *** per Unit of Product purchased by
and shipped to Distributor during the 2007 Contract Year up to a
maximum of *** of Eligible
-2-
Expenses. To the extent Distributor purchases
more than *** Units of Product during the 2007 Contract Year, OSUR
shall provide Distributor with additional reimbursement of Eligible
Expenditures in excess of *** at the rate of *** per Unit of
Product for each Unit actually sold by Distributor and shipped to
its OTC Market customers in excess of *** Units during the 2007
Contract Year. For example, if during the 2007 Contract Year
Distributor purchases *** Units from OSUR and sells and ships ***
Units to its OTC Market customers, Distributor would receive up to
*** in reimbursed Eligible Expenditures actually incurred during
the 2007 Contract Year (i.e. ***). If during the 2007 Contract Year
Distributor purchases *** Units from OSUR and sells and ships ***
Units to its OTC Market customers, Distributor would receive up to
*** in reimbursed Eligible Expenditures actually incurred during
the 2007 Contract Year (i.e. ***). Distributor shall be entitled to
receive reimbursement for incurred Eligible Expenditures at the
applicable per Unit rate only for the actual number of Units of
Product purchased or sold by Distributor during the 2007 Contract
Year as provided above.
5.2
Reimbursement Procedures . In order
to receive reimbursement for Eligible Expenditures hereunder,
Distributor shall provide to OSUR on a monthly basis a summary
spreadsheet detailing Eligible Expenditures/Advertising and
Promotional Expenditures incurred during the immediately preceding
month during the 2007 Contract Year as well as copies of invoices
or other written evidence reasonably satisfactory to OSUR
documenting the incurrence of such Eligible Expenditures for each
month during the 2007 Contract Year and for which Distributor is
seeking reimbursement hereunder. Upon receipt of each such monthly
spreadsheet and invoices or other documentation from Distributor of
Eligible Expenditures, OSUR shall as soon as practicable, but no
later than thirty (30) days after invoice receipt, reimburse
Distributor for such Eligible Expenditures in an amount
calcu
