Exhibit 10.1
Termination and Settlement Agreement
Entered into on this 2 nd day of October 2005 (the
“Effective Date”)
(the “Agreement”)
By and Between:
Vision-Sciences, Inc., a Delaware (U.S.A.)
corporation, having its principal place of business at 9 Strathmore
Road, Natick, Massachusetts 01760, U.S.A., Fax
No. +1-508-650-9976 (the “Company”);
And
Three BY Ltd., a company duly organized under
the laws of Israel and having its principal place of business at
Migdal Tefen, Israel, Fax No. + 972-4-987-2340 (the
“Manufacturer”);
WHEREAS, the Parties have entered into a
Contract Manufacturing Agreement dated June 25 th
2003, as in effect on the date hereof, together with all related or
ancillary agreements or instruments (the “Main
Agreement”);
WHEREAS, the Parties have mutually agreed to
terminate the Main Agreement and settle finally any issues or
disputes between them relating to the termination of the Main
Agreement or the parties relationship prior to the date of this
Agreement in accordance with the terms and conditions of this
Agreement as hereinafter stipulated;
1.
Capitalized terms
used herein and not otherwise defined herein shall have the meaning
ascribed thereto in the Main Agreement.
2.
Without
derogating from the provisions of this Agreement, the parties agree
that the Main Agreement shall be, and hereby is, mutually
terminated (in accordance with the provisions of Section 17.2
of the Main Agreement) effective on the date that is six months
from the date of this Agreement (the “Effective Termination
Date”). The termination of the Main Agreement shall be
without derogation of the provisions of Section 18 of the Main
Agreement. For the sake of clarity, it is agreed and understood
that except as expressly provided in this Agreement, neither party
will be entitled to any remuneration or compensation as a result of
or by reason of the termination of the Main Agreement, except as
described in this Agreement, and that upon the Effective
Termination Date, the parties shall, and hereby agree to, release
and discharge the other from any and all claims under the Main
Agreement, except for or without limitation of the obligations of
the parties under this Agreement, which shall survive the Effective
Termination Date, together with any provisions of the Main
Agreement that by their terms are designed or intended to survive
the termination of the Main Agreement.
3.
The Company
hereby agrees to issue, within 3 business days following the
Effective Date, its binding purchase order to the Manufacturer (the
“Purchase Order”) for the Manufacture of 180,000 ENT
sheaths (the “Sheaths”) at a price of US $1.204 per
unit, Ex Works (Incoterms 2000) Manufacturer’s facility,
totaling US $216,720. The Manufacturer shall provide the Company
with the complete list of the raw materials and their costs
purchased for the manufacture of the Sheaths, prior to the first
monthly shipment. Based on any documented cost increase of raw
materials purchased by the Manufacturer for the manufacture of the
Sheaths, compared to the last purchase of such raw material, the
unit price of the Sheaths will be adjusted in good faith by the
Parties.
Notwithstanding
the aforesaid, the Company shall have the right to revise the
quantity of each Sheath’s catalog number in a given monthly
shipment, by giving a written notice to the Manufacturer, as long
as the followings are met: (i) the total monthly quantity
remains 30,000; and (ii) the notice of the revision is given
at least 60 days prior to the scheduled shipment date.
4.
It is recorded
that the Company has shipped 675 pounds of polyurethane to the
Manufacturer for which the Manufacturer hereby confirms that it
agrees to issue its binding purchase order at a price of US $5.58
per pound, plus freight costs to Manufacturer, payable
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