EXHIBIT 10.1
EXECUTION COPY
CONTRACT MANUFACTURING AGREEMENT
Entered into on this 25th day of June 2003 (the "Effective Date")
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 Manufacturer provides contract manufacturing services for the
medical products industry including the manufacture of complicated and sensitive
medical products; and
WHEREAS, the Company has developed and owns all proprietary rights in the
Products (as defined in Section 1.11 below); and
WHEREAS, the Company wishes that the Manufacturer shall manufacture the Products
for and on behalf of the Company (on a non-exclusive basis); and
WHEREAS, the Parties desire to hereby define the terms and conditions according
to which the Manufacturer will manufacture Products for the Company; and
WHEREAS, in consideration of the mutual promises and covenants set forth below
it is mutually agreed as follows:
1.
DEFINITIONS
1.1.
TERMS DEFINED IN THIS ARTICLE 1 AND/OR
PARENTHETICALLY DEFINED ELSEWHERE IN THIS AGREEMENT SHALL THROUGHOUT THIS
AGREEMENT HAVE THE MEANING HERE OR THERE PROVIDED.
DEFINED TERMS MAY BE USED IN
THE SINGULAR OR THE PLURAL, AS CONTEXT SHALL REQUIRE.
1.2.
"COMPANY EQUIPMENT" - ANY OFF-THE-SHELF AND/OR
CUSTOM-MADE TOOLING FOR THE MANUFACTURE OF THE PRODUCTS WHICH SHALL BE PROVIDED
TO THE MANUFACTURER BY THE COMPANY. THE COMPANY EQUIPMENT ALREADY PROVIDED TO
THE MANUFACTURER BY THE COMPANY IS DETAILED IN APPENDIX "1.2" ATTACHED HERETO.
1.3.
"CONFORMING PRODUCTS" - ANY PRODUCT WHICH
CONFORMS TO AND DOES NOT DEVIATE FROM, IN ANY MANNER AFFECTING FORM, FIT OR
FUNCTION, THE CORRESPONDING SPECIFICATIONS CONTAINED IN THE SPECIFICATIONS.
1.4.
"DELIVERY DATE" - THE RELEVANT DELIVERY DATE
PURSUANT TO SECTIONS 8.3 AND/OR 8.4 BELOW.
1.5.
"IMPROVEMENTS" - ANY IMPROVEMENTS,
MODIFICATIONS OR ADOPTIONS PERTAINING TO THE PRODUCTS MADE, CREATED, INVENTED,
DISCOVERED OR ACQUIRED BY THE COMPANY AND/OR THE MANUFACTURER AND/OR ANY OF
ITS/THEIR EMPLOYEES OR AGENTS.
1.6.
"INTELLECTUAL PROPERTY RIGHTS" - MEANS PATENTS
AND ALL APPLICATIONS, CONTINUATIONS, CONTINUATIONS-IN-PART AND DIVISIONALS WITH
RESPECT THERETO; COPYRIGHTS, AND ALL OTHER RIGHTS IN WORKS OF AUTHORSHIP
RECOGNIZED IN ANY JURISDICTION; TRADE SECRETS; TRADEMARKS, SERVICE MARKS, LOGOS
AND PRODUCT NAMES; ALL APPLICATIONS, REGISTRATIONS AND RENEWALS WITH RESPECT TO
ANY OF THE FOREGOING; PROPRIETARY MANUFACTURING METHODS; MORAL RIGHTS; ALL OTHER
INTELLECTUAL PROPERTY RIGHTS AND RIGHTS IN TRADE SECRETS, WHETHER REGISTERED OR
NOT, THAT MAY BE RECOGNIZED IN ANY JURISDICTION; AND ALL RIGHTS TO SUE FOR AND
REMEDIES AGAINST PAST, PRESENT AND FUTURE INFRINGEMENTS OR MISAPPROPRIATIONS OF
THE FOREGOING.
1.7.
"MANUFACTURING EQUIPMENT - THE EQUIPMENT THAT
SHALL BE USED BY THE MANUFACTURER FOR THE MANUFACTURE OF THE PRODUCTS.
1.8.
"MANUFACTURE" - THE MANUFACTURE, ASSEMBLY,
QUALITY TESTING, PACKAGING, STERILIZING AND LABELING OF THE PRODUCTS.
1.9.
"MATERIALS" - THE MATERIALS REQUIRED FOR THE
MANUFACTURE, WHICH ARE DETAILED IN APPENDIX "1.9" ATTACHED HERETO, AND ANY
AMENDMENTS THERETO PROVIDED TO THE MANUFACTURER BY