Unassociated Document



 

EXHIBIT
10.1

 


	
      **
	
      CERTAIN
      INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY
      WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL
      TREATMENT REQUEST UNDER 17 C.F.R. SECTIONS 24b-2, 200.80(B)(4) AND
      230.406.




 

AMENDMENT
TO THE DEVELOPMENT,

MANUFACTURING
AND SUPPLY AGREEMENT

 

This
Amendment to Development, Manufacturing and Supply Agreement (the “Amendment”),
dated as of February 28, 2005 between Kensey Nash Corporation, a Delaware
corporation, having its principal place of business at 55 East Uwchlan Avenue,
Exton, PA 19341 (hereinafter referred to as “KNC”) and Orthovita, Inc., a
Pennsylvania corporation, having its principal place of business at 45 Great
Valley Parkway, Malvern, PA 19355 (hereinafter referred to as
“Orthovita”).

 

WHEREAS,
KNC and Orthovita are parties to a certain DEVELOPMENT, MANUFACTURING, AND
SUPPLY AGREEMENT, dated March 25, 2003 (the “Agreement”);

 

WHEREAS,
KNC and Orthovita have benefited and continue to benefit from products developed
jointly by the parties;

 

WHEREAS,
KNC and Orthovita wish to extend the term of the Agreement and make certain
other modifications to same regarding the development, manufacturing, marketing
and sale of medical devices for orthopedic applications; and

 

WHEREAS,
KNC and Orthovita wish to rely on this Amendment for business planning and other
related reasons.

 

NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements provided herein, the parties hereto, intending to be legally
bound hereby, agree as follows:

 

 1.
The Parties hereto agree that the enumerated sections of the Agreement shall be
amended and restated as follows:







 “2.1
This Agreement shall commence on the Effective Date and, unless earlier
terminated as provided herein, continue for ten (10) years from the date of the
First Commercial Sale (the “Initial Term”). The Initial Term shall be
automatically extended for one additional three (3) year term (the “Successive
Term”), unless written notice is provided by either party at least six months
prior to the expiration of the Initial Term (the Initial Term and the Successive
Term are collectively referred to as the “Term”).”; and




“12.1
Neither party may assign or transfer this Agreement, in whole or in part, to a
third party without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided, however, either party to this
Agreement may, upon prior written notice to the other party, assign or otherwise
transfer this Agreement, without the other party’s consent, to a third party
(the “Acquiring Party”) with whom such party to this Agreement consolidates or
merges or to whom such party to this Agreement sells all or substantially all of
its stock or assets (the “Transaction”). Furthermore, any party hereto
undergoing a Transaction shall inform any such third party of this Agreement,
and any amendments hereto.”




2.
**























 

3. It is
agreed that the following new section 15.5 shall be added by this
Amendment:




“15.5
Notwithstanding anything herein to the contrary, following any Transaction, (a)
the provisions of Section 15.1 or 15.2, as appropriate, shall extend and be
deemed to apply to Losses suffered or incurred by either party hereto, and (b)
the limitations contained in Section 15.4 shall not apply to any claim of either
party against the other party, but only to the extent that the Loss arises out
of a failure to supply by KNC, or a failure to purchase by Orthovita, under the
Agreement.”



4.
**

 

4.
Amendment and Waiver. This
Amendment may be amended, and any provision of this Amendment may be waived,
provided that any such amendment or waiver will be binding on each party only if
same is set forth in a writing executed by such parties. Waiver of a breach of
the Amendment shall not constitute a waiver of any other subsequent breach of
the Amendment. The waiver of any provision of this Amendment shall not
constitute a continuing waiver of that provision or a waiver of any other
provision of this Amendment.

 

5.
Notices. All
notices, demands and other communications to be given or delivered under or by
reason of the provisions of this Amendment shall be done so in accordance with
the provisions of the Agreement.

 

6.
Severability. Whenever
possible, each provision of this Amendment will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Amendment is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.

 

7.
Counterparts. This
Amendment may be executed in one or more counterparts all of which taken
together will constitute one and the same instrument.

 

8.
Governing Law. The law
of the Commonwealth of Pennsylvania will govern, without regard to the conflicts
of law provisions thereof, all questions concerning the construction, validity
and interpretation of this Amendment and the performance of the obligations
imposed by this Amendment.

 

9.
Headings. Section
headings used in this Amendment are for convenience only and form no part or in
any way modify or define the text of meaning or any provision of this
Amendment.

 

IN
WITNESS WHEREOF, the parties have executed this Amendment through their duly
authorized representatives as of the date first written above.

 


	
       
	
       
	
       
	
       
	
       
	
       
	
       
	
       
	
       

	
      ORTHOVITA,
      INC
	
       
	
       
	
       
	
      KENSEY
      NASH CORPORATION

	
       
	
       
	
       
	
       
	
       

	
      By:
	
      /s/
	
       Antony
      Koblish
	
       
	
       
	
       
	
      By:
	
      /s/
      
	
       Joseph
      W. Kaufman

	
       
	
       
	
      Antony
      Koblish
	
       
	
       
	
       
	
       
	
       
	
      Joseph
      W. Kaufmann