1
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
EXHIBIT 10.7
TECAN
AMENDMENT TO THE OEM SUPPLY AGREEMENT
DATED JANUARY 13, 1995
This agreement, made and entered into this October 14, 1996.
between
TECAN AG
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▇▇▇▇▇▇▇▇▇▇▇
(hereinafter referred to as "TECAN")
and
AUTOCYTE INC.
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▇▇▇
formerly
ROCHE IMAGE ANALYSIS SYSTEMS
(a Division of Roche Biomedical Laboratories, Inc.)
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
(hereinafter referred to as "AUTOCYTE")
In view of the recent changes in Ownership and the name change of RIAS to
AutoCyte Inc. the following articles of the OEM Supply Agreement, dated January
13, 1995, will be amended as follows:
2
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
\2. DEVELOPMENT AND EXCLUSIVITY
In view of the delayed market introduction of CytoRich, TECAN agrees
to modify Article 2.2 as follows:
2.2 TECAN agrees not to offer directly on the basis of an OEM, PL-, or
Semi-PL- Agreement to any third party any device similar to the
Product and intended for the Application, provided that AUTOCYTE buys
from TECAN at least the following numbers of units of the Product:
PERIOD UNITS
mid 1996 - mid 1997 ***
mid 1997 - mid 1998 ***
mid 1998 - mid 1999 ***
mid 1999 - mid 2000 ***
mid 2000 - mid 2001 ***
mid 2001 - mid 2002 ***
mid 2002 - mid 2003 ***
*** units over life cycle (80% achievement of the modified forecast
of May 1996).
AUTOCYTE understands that TECAN might sell individual units to
end-users that may be used for purpose similar to the Application.
Tecan acknowledges that it has no authority to and will not sell
slide platters or any specific CytoRich components to any other
party. /s/ EQK
Of the 10 units for the first period (mid 96 - mid 97) five (5) will
have to be ordered in 1996 and shipped and invoiced before 31st
December 1996 together with five (5) Upgrade kits. The balance will
be ordered in 1997. Any increase in number of ordered instruments is
acceptable.
3. PURCHASE OF PRODUCT, QUANTITIES AND PRICING
NO CHANGE
4. DEVELOPMENT AND EXCLUSIVITY
4.1 - 4.2 NO CHANGE
4.3 The exchange rate for deliveries from October 1996 until December 31,
1997 is set to CHF 1.25/USD, (New Exchange rate)
Exchange rate fluctuations between the CHF and USD will be checked
twice annually and the exchange-risk is split 50:50 by AUTOCYTE and
TECAN. TECAN shall invoice/issue credit note to AUTOCYTE of 50% of
the exchange rate fluctuation influence on the ordered and paid
instruments in USD semi-annually. For the calculation basis we use
the average exchange rate of the previous 6 months.
4.4 Prices are quoted FOB Zurich airport.
3
4.5 Delivery times: ca. 8 - 10 weeks after receipt of AUTOCYTE's Shipping
Schedule.
4.6 TECAN will ship the Product FOB Zurich airport. Shipment is done via
common carriers solely selected by AUTOCYTE. All freight (and as
applicable world-wide duty) charges shall be paid by AUTOCYTE. Title
and risk of loss or damage of any items delivered hereunder shall
pass to AUTOCYTE upon delivery to the common carrier pursuant to the
respective Incoterms rules (1990).
4.7 STRICKEN.
8. INSTALLATION, TRAINING, WARRANTY AND SERVICE
8.1 AUTOCYTE will install the Product and train customers of AUTOCYTE
with regard to the Product.
8.2 For service calls within the warranty period which are not related to
the Product (e.g. application software, application in general, PC or
system) TECAN's representative will charge AUTOCYTE the incurred
expenses.
8.3 STRICKEN.
8.4 STRICKEN.
8.5 TECAN warrants each Product for a period of twelve (12) months from
the date of installation at AutoCyte, trade exhibition or the
customer confirmed by the returned installation report or date of
shipment if an installation report has not been received within 90
days of shipment, in the sense that such Product is free from defects
in workmanship and materials and is manufactured in complete
conformity with the specifications under this agreement. Disposable
parts or parts in contact with liquids of the Product, i.e. valves,
tips, fittings, tubings and syringes, are excluded from any warranty.
8.6 After the warranty period TECAN or its distributors, respectively,
offer AUTOCYTE or AUTOCYTE's distributors or customers, service
contracts, conditions of which have to be negotiated on a local
level.
8.7 NO CHANGE
8.8 NO CHANGE
8.9 For a period of seven (7) years from the date of delivery of the last
unit Product shipped hereunder, TECAN agrees to maintain the ability
to deliver spare parts. The supply of service and spare parts after
the warranty period will be done on a local level according to
negotiated conditions as described in Article 8.6 above.
8.10 NO CHANGE
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9 to 11: NO CHANGE
12. MISCELLANEOUS PROVISIONS
12.1 All written notices and demands required or permitted to be given or
made pursuant to this agreement shall be in English and shall
conclusively be presumed for all purposes of this agreement to be
given or made at the time the notice or demand is personally given or
made, or at the time it is sent by registered mail, or fax or courier
addressed as follows:
If to AUTOCYTE: If to TECAN:
AUTOCYTE, INC. TECAN AG
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Elon College, North Carolina 27244 8634 Hombrechtikon
USA SWITZERLAND
Or to such other address as to which either party may advise the
other in writing that notices should be sent.
12.2 This agreement shall be binding upon and relate to the benefit of the
parties hereto, their successors and assignees. This agreement shall
be assignable by either party only with the prior written consent of
the other, except that either party may assign this agreement without
the consent of the other to a wholly owned subsidiary or to the
purchaser of all its stock or assets of its business to which this
agreement relates.
This Agreement supersedes earlier contracts between TECAN's
Affiliates and ROCHE or AUTOCYTE INC. respectively regarding the
Product.
Hombrechtikon, October 14, 1996 Elon College, Nov 4, 1996
TECAN AG AUTOCYTE INC.
/s/ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------- ------------------------
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ President
S&M Manager F&A Manager
5
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
EXHIBIT B (AMENDED)
Price list of Products for 1996 - 1997
Product Price Bracket Price per Unit Price per Unit
CHF USD (@ 1.25)
<25 *******-- *******--
26 - 50 *******-- *******--
51 - 99 *******-- *******--
> 100 *******-- *******--
Prices are valid for purchase quantity within a 12 months period. The bracket
set for 1996 - 1997 is for less than 25 complete instruments.
The exchange rate for 1996 - 1997 is set to CHF 1.25/USD for deliveries to the
U.S.
Prices include no service and no support duties as specified in article 8.1
(amended)
EXHIBIT C: STRICKEN
EXHIBIT D: STRICKEN