EXHIBIT 10.2
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 **.
Execution
Copy
AMENDMENT NO. 3 TO PRODUCTION
AGREEMENT
This Amendment No. 3 to Production
Agreement (this “Amendment”) is made and entered into
this 9th day of March, 2005 by and between OraSure Technologies,
Inc., a Delaware corporation, with its registered offices at
Bethlehem, Pennsylvania 18015 U.S.A. (the “Purchaser”),
and Koninklijke Utermöhlen N.V., a limited liability company
organized under the laws of The Netherlands, with its registered
offices at Wolvega, the Netherlands (the “Seller”).
Seller and Purchaser are each referred to herein as a
“Party” and collectively as the
“Parties.”
BACKGROUND
Seller and Purchaser are parties to
a Production Agreement, dated June 8, 1998, as amended by Amendment
No. 1 to Production Agreement (“Amendment No. 1”),
dated as of December 11, 2001, and Amendment No. 2 to Production
Agreement, dated as of April 28, 2003 (collectively, the
“Original Agreement”), pursuant to which Seller agreed
to produce certain products related to the Histofreezer Business
for the Purchaser. The Parties desire to amend further the Original
Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing, and of the mutual promises and covenants contained
in this Amendment, Seller and Purchaser, intending to be legally
bound, hereby agree as follows:
1. Definitions . Capitalized
terms not otherwise defined in this Amendment shall have the
meanings set forth in the Original Agreement.
2. Professional Products .
The Products, other than the OTC Product, that are supplied
hereunder are listed in Exhibit 1 to this Amendment and are to be
marketed, sold and distributed by Purchaser to physicians and other
medical professionals (the “Professional
Products”).
3. Duration and Termination .
The first sentence of Section 13.1 of the Original Agreement is
hereby amended and restated in its entirety, as follows:
“This Agreement shall be in
force on June 1, 1998 and shall terminate (i) with respect to the
Professional Products, on December 31, 2008 and (ii) with respect
to the OTC Product, on December 31, 2006.”
4. Minimum Purchases
.
4.1 Professional Products .
During the period January 1, 2005 through December 31, 2008,
Purchaser shall purchase an aggregate of at least ** units
of the Professional Products. For purposes of this Section 4.1, a
unit of a Professional Product shall consist of one canister of any
size containing the applicable number of applicators, in each case
as indicated in Exhibit 1 attached to this Amendment, which is
manufactured, assembled and packaged in accordance with the
Specifications and the Original Agreement. Notwithstanding the
foregoing, to the extent Purchaser purchases the H-105 unit of
Product (with 5 applicators), the purchase of such units shall not
count towards the foregoing minimum aggregate purchase
commitment.
4.2 OTC Product . During the
period January 1, 2005 through December 31, 2006, Purchaser shall
purchase an aggregate of at least ** units of the OTC
Product. For purposes of this Section 4.2 and Section 5, the number
of units shall be determined by the number of canisters purchased
and a unit of the OTC Product shall be defined as a 110 ml.
canister filled with 80 ml. of refrigerant and a 12-count set of 5
mm. foam tip applicators (which number may vary from time to time
based on customer needs), manufactured, assembled and packaged in
accordance with the OTC Product Specifications and the Original
Agreement for distribution by Purchaser in the United States and
Canada.
4.3 Adjustments to Minimums .
The parties acknowledge that factors beyond the Purchaser’s
control may affect its ability to sell and distribute the
Professional Products and the OTC Product. Accordingly, in the
event that either (i) Purchaser loses, or otherwise suffers an
adverse result in, the patent infringement litigation against
Schering-Plough Healthcare Corporation pending as of the date of
this Amendment in the United States, or (ii) there is a change in
the professional market in the United States or internationally or
in the over-the-counter market in the U
