Exhibit 10.1
PRODUCT SUPPLY AGREEMENT
THIS PRODUCT SUPPLY AGREEMENT (this "Agreement") is between GE OSMONICS, INC., a
Minnesota corporation ("Seller"), and MAR COR PURIFICATION, INC., a Pennsylvania
corporation ("Buyer"), with an effective date of March 30, 2007 (the "Effective
Date").
Seller and Buyer are sometimes referred to herein as a "Party" or
collectively as the "Parties."
BACKGROUND
A.
Prior to the Effective Date, Seller sold Buyer certain cartridge filters,
membrane elements, membrane housings and pumps (the "Current Mar Cor/Biolab
Products");
B.
On the Effective Date,
Seller is selling substantially all of the assets
relating to its product line of reverse osmosis systems, consumables and related
products for medical dialysis applications (the "Product Line") to Buyer
pursuant to an Asset Purchase Agreement of even date herewith (the "Asset
Purchase Agreement");
C.
On and after the Effective Date, Seller will continue to sell Buyer the
Current Mar Cor/Biolab Products and will begin to sell Buyer certain cartridge
filters, membrane elements, membrane housings and pumps relating to the Product
Line (the "Acquired Dialysis Business Products"); and
D.
The Current Mar Cor/Biolab Products and the Acquired Dialysis Business
Products are sometimes referred to herein collectively as the "Products."
NOW THEREFORE, in consideration of the above recitals and the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.
SALE AND PURCHASE OF PRODUCTS.
A.
SELLER AGREES TO SELL, AND BUYER AGREES TO PURCHASE, THE PRODUCTS,
PURSUANT TO THE TERMS AND CONDITIONS SET FORTH IN EXHIBIT A ATTACHED HERETO (THE
"TERMS AND CONDITIONS").
BUYER INTENDS TO USE ITS REASONABLE COMMERCIAL
EFFORTS, SUBJECT TO PRICE, QUALITY, AVAILABILITY, SERVICE AND OTHER FACTORS, TO
PURCHASE ALL OF THE PRODUCTS WHICH CONSTITUTE THE PRODUCTS FROM SELLER, BUT IN
NO EVENT IS BUYER OBLIGATED TO PURCHASE ANY OF THE PRODUCTS FROM SELLER UNLESS A
PURCHASE ORDER HAS BEEN ISSUED BY BUYER AND ACCEPTED BY SELLER.
DURING THE TERM
OF THIS AGREEMENT, SELLER SHALL BE OBLIGATED TO FILL ALL OF BUYER'S PURCHASE
ORDERS THAT ARE ORDERED IN THE ORDINARY COURSE OF BUYER'S BUSINESS FOR THE
ACQUIRED DIALYSIS BUSINESS PRODUCTS OR ANY SUBSEQUENT EQUIVALENT PRODUCTS, IT
BEING UNDERSTOOD AND AGREED THAT SELLER'S AGREEMENT TO MEET BUYER'S REQUIREMENTS
IN THE ORDINARY COURSE FOR SUCH PRODUCTS WAS A MATERIAL INDUCEMENT TO BUYER TO
ENTER INTO THE ASSET PURCHASE AGREEMENT.
IN THE EVENT THAT SELLER DISCONTINUES
SELLING A PARTICULAR PRODUCT, SELLER SHALL PROVIDE BUYER WITH AT LEAST 6 MONTHS'
PRIOR NOTICE OF SUCH DISCONTINUATION AND WITH SUFFICIENT SPECIFICATIONS AND
DOCUMENTATION THAT WOULD ENABLE BUYER OR A THIRD PARTY TO MANUFACTURE SUCH
DISCONTINUED PRODUCT.
B.
UNLESS OTHERWISE AGREED IN WRITING BY SELLER, THE PURCHASE AND SALE OF ALL
PRODUCTS TO BUYER SHALL BE SUBJECT TO THE TERMS AND CONDITIONS AND THE
PROVISIONS OF SECTION 2
BELOW.
ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER, WHETHER IN ITS
PURCHASE ORDER, ORDER ACKNOWLEDGMENT, ACCEPTANCE OR ANY OTHER MANNER IN THE
PURCHASE AND SALE OF THE PRODUCTS SHALL BE DEEMED NULL AND