EX-10.3 5 d357533dex103.htm AMENDED AND RESTATED EXCLUSIVE WHOLESALE PRODUCT PURCHASE AGREEMENT AMENDED AND RESTATED EXCLUSIVE WHOLESALE PRODUCT PURCHASE AGREEMENT
Exhibit 10.3
AMENDED AND RESTATED EXCLUSIVE WHOLESALE PRODUCT PURCHASE AGREEMENT
THIS AMENDED AND RESTATED EXCLUSIVE WHOLESALE PRODUCT PURCHASE AGREEMENT (the “Agreement”) is made this 8th day of August, 2012, effective as of the 1st day of March, 2012, (the “Effective Date”) by and between Priority Healthcare Distribution, Inc., doing business as CuraScript SD Specialty Distribution, a Florida corporation having offices at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxx, 00000 (“Distributor”), and Corcept Therapeutics Incorporated, a Delaware corporation having offices at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000 (“Company”). The Parties hereto agree as follows:
3. | ORDERS: Distributor will supply purchase orders to Company on a mutually acceptable form, electronic data interface (EDI), via fax, email or phone. |
4. | PRODUCT PRICING: |
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Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) | Resale Price: Distributor shall not sell Product for an amount [***] |
(c) | Shelf Stock Adjustments: Company agrees to provide Distributor with a shelf stock adjustment for all Product inventories held by Distributor upon any decrease in price. The shelf stock adjustment shall be calculated by determining [***] Company shall pay Distributor any Shelf Stock Adjustment payable hereunder within [***] calendar days of the effective price decrease. |
(d) | Price Increases: [***] |
7. | RISK OF LOSS: |
(a) | Risk of Loss: Purchase orders for the Product should be submitted as designated on Exhibit A. All deliveries of Products will be Free On Board, Distributor’s Designated Facility. For purposes of this paragraph, the term “Free On Board, Distributor’s Designated Facility” means that Company shall: (i) bear all costs associated with shipping Products to Distributor’s designated facility; (ii) bear the risk of loss until a Distributor’s designated facility takes possession of the Product, which Product must be in new and acceptable condition upon receipt by Distributor; and (iii) be responsible for insuring Products while in transit. Distributor shall be entitled to designate more than one of its facilities for receipt of the Product. |
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[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(b) | Inspection of Product: Distributor shall examine the Product upon delivery at Distributor’s facility and shall notify Company of any non-delivery of a portion of the shipment or any defect in any of the Product that is reasonably discoverable upon visual inspection of the Product. Within ten (10) business days after Distributor’s receipt of the Product, Distributor shall furnish to Company a description of the nature of any reasonably discoverable defect or shortage. Upon receipt of notice of any defect or shortage, Company shall promptly replace any defective or shorted Product or issue Distributor a full credit for such defective or shorted Product, as appropriate under the circumstances. In the absence of a written notice from Distributor to Company in accordance with the terms of this Section, a shipment of the Product shall be deemed to have been delivered and accepted by Distributor as complete and in satisfactory condition as to defects reasonably discoverable upon visual inspection. Distributor shall, at Company’s expense, follow Company’s instructions to permit Company’s inspection of the defective Product or to facilitate the return to Company (or Company’s third-party disposal company) any of the defective Product delivered to Distributor. |
9. | SUSPENSION OF DISTRIBUTION AND RECALL: |
(a) | If requested by Company for good reason, and upon written notification by Company to suspend distribution of Product, Distributor shall use commercially reasonable efforts to suspend its distribution of Product. If the suspension continues for more than [***], Company will repurchase the Product held in inventory by Distributor at the price paid for such Product by Distributor, and Distributor shall have the right to terminate this Agreement for material breach under the “Termination” Section of this Agreement, excluding the sixty (60) day notice period. All repurchased Product shall be returned to Company at Company’s expense. |
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[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(b) | Company shall promptly notify Distributor of any recalls initiated by Company or required by the United States Food and Drug Administration. Upon receipt of notice of a recall from Company, Company shall provide Distributor a third-party (e.g., UPS or FedEx) billing number for shipping of recalled products to Company (or company’s designated agent) at Company’s expense. Distributor shall provide to Company the names and addresses of customers that may have received recalled products. Company shall be responsible for any reasonable mailing, shipping and administrative expenses incurred by Distributor in connection with the recall, plus a reasonable service fee of [***] per customer name and address, up to a maximum of [***] per recall as mutually agreed upon in advance by the parties, as well as the cost of replacement Product for Distributor’s customers provided that the reason for the recall does not arise from (i) the negligence or intentional misconduct of Distributor or any of its agents or employees; or (ii) failure of the Distributor to comply with the terms of this Agreement. In addition, Company shall pay the cost of replacement Product for Distributor’s customers. |
(c) | Distributor shall maintain for [***] after termination or expiration of this Agreement such information as reasonably required in the event of a Product recall after termination or expiration of this Agreement, and shall make such information available to Company, at Company’s expense, in the event of such a recall. |
(d) | Distributor shall use its commercially reasonable efforts to cooperate with Company in investigating any Product failure that resulted in the need for a recall and any reasonable costs involved with such investigation will be incurred by the Company. |
11. | PRODUCT PROMOTION: Distributor will not promote Company’s Products, but Distributor will promote its own distribution services to its customers in accordance with Distributor’s standard business practices, which typically include (but are not limited to) informing Distributor’s customers of pricing available for products distributed by Distributor. Accordingly, Distributor shall not distribute or generate any promotional material containing claims relating to the Product. Distributor may, however, provide its customers with educational information concerning the Product. Company represents and warrants that any materials relating to the Product that it provides to Distributor: (i) are limited to communications that are intended to describe the Product or provide important Product-related information; (ii) if required under applicable law, have received the appropriate regulatory approval(s) prior to use (e.g., FDA approval); and (iii) do not involve the counseling or promotion of any off-label use. |
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[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
13. | DIVERSION: Distributor shall promptly notify Company upon learning of any activity that appears to illegally divert any Products. |
(a) | By either Party with sixty (60) days written notice for any reason or for material breach by either Party. |
(b) | Immediately upon notification or at any time thereafter, either Party may terminate this Agreement in the event that: |
(i) | the other Party shall file any petition under any bankruptcy, reorganization, insolvency or moratorium laws, or any other law or laws for the relief of or in relation to the relief of debtors; |
(ii) | there shall be filed against the other Party any involuntary petition under any bankruptcy statute or a receiver or trustee shall be appointed to take possession of all or a substantial part of the assets of the party which has not been dismissed or terminated within sixty (60) days of the date of such filing or appointment; |
(iii) | the other Party shall make a general assignment for the benefit of creditors or shall become unable or admit in writing its inability to meet its obligations as they mature; |
(iv) | the other party shall institute any proceedings for liquidation or the winding up of its business other than for purposes of reorganization, consolidation or merger; or |
(v) | [***] |
(c) | Immediately upon notification or at any time thereafter, by either Party if the terms of this Agreement are determined by either Party in good faith to be inconsistent with any applicable law. |
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[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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(b) | Pedigree Laws Compliance. By executing this Agreement, Company hereby designates Distributor, and Distributor accepts such designation, as an authorized distributor of record for purposes of the parties’ compliance with the Prescription Drug Marketing Act of 1987, as amended by the Prescription Drug Amendments of 1992, and as may be further amended from time to time, and any and all applicable state pedigree laws having the same or similar designation as an authorized distributor of record. |
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20. | MUTUAL INDEMNIFICATION: |
(a) | Distributor will indemnify and hold Company harmless from and against any loss, cost, damage, expense, or other liability, including, without limitation, reasonable costs and attorney fees (“Costs”) incurred in connection with any and all third Party claims, suits, investigations or enforcement actions (“Claims”) as a result of Distributor’s negligent acts, negligent omissions, or willful misconduct, or Distributor’s breach of this Agreement. |
(b) | Company will indemnify and hold Distributor harmless from and against any Costs for Claims incurred by Distributor as a result of Company’s manufacturing of the Products, negligent acts, negligent omissions, willful misconduct, or Company’s breach of this Agreement. In addition, Company shall indemnify Distributor for the Costs for Claims incurred by Distributor in connection with: (i) any commercial products liability action; and (ii) any recall, quarantine, warning, or withdrawal of any Company product, |
(c) | As a condition of indemnification, the Party seeking indemnification shall notify, to the extent possible under applicable law, the indemnifying Party in writing promptly upon learning of any Claim for which indemnification may be sought hereunder. The indemnifying Party shall have a right to participate in the defense of such Claim, and the Parties will cooperate in such defense. No Party shall have an obligation to indemnify the other Party as described herein with respect to any claim settled without the mutual written consent of both Parties, which consent shall not be unreasonably withheld. |
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22. | INSURANCE: Distributor and Company shall maintain such policies of general liability, professional liability, and other insurance of the types and in amounts customarily carried by their respective businesses. Notwithstanding the foregoing, Company shall, at a minimum, maintain throughout the term of this Agreement commercial products liability coverage, either through commercial insurance or a self insured retention pool, in an amount no less than [***]. Each Party shall provide the other with reasonable proof of insurance upon written request. |
If to Company:
Corcept Therapeutics Incorporated
ATTN: Commercial Operations
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
If to Distributor:
Express Scripts, Inc.
Xxx Xxxxxxx Xxx
Xx. Xxxxx, XX 00000
Attn: Legal Department
With a copy to:
Priority Healthcare Distribution, Inc.
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxx Xxxx, XX 00000
All such communications shall be deemed to have been received by the intended recipient: (i) five (5) business days following deposit in the United States Mail if sent by certified mail; (ii) on the day actually received if delivered personally; (iii) upon confirmation of receipt of a facsimile transmission if sent by facsimile; or (iv) on the next business day if sent by overnight carrier.
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[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
27. | COUNTERPARTS: This Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. |
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33. | CHOICE OF LAW: This Agreement and performance of the obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State Delaware, without regard to the conflicts of laws provision therein. |
36. | THIRD PARTY BENEFICIARIES: This Agreement is not a third Party beneficiary contract, and, therefore, there are no third Party beneficiaries to this Agreement. |
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PRIORITY HEALTHCARE DISTRIBUTION, INC. | CORCEPT THERAPEUTICS INCORPORATED | |||||||
By: | /s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxxx | |||||
Print: | Xxxxx Xxxxxxxx | Print: | Xxxxxx X. Xxxxxxxx | |||||
Name: | Xxxxx Xxxxxxxx | Name: | Xxxxxx X. Xxxxxxxx | |||||
Title: | President | Title: | CEO |
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EXHIBIT A
PRODUCT PRICING
PRODUCT | NDC | STRENGTH | SIZE | PRODUCT PRICE | DISCOUNTED PRODUCT PRICE* | |||||||||||||
Korlym™ (mifepristone) 300 mg Tablets | 00000-000-00 | 300 mg | Bottle of 28 | [ | ***] | [ | ***] | |||||||||||
Korlym™ (mifepristone) 300 mg Tablets | 00000-000-00 | 300 mg | Bottle of 280 | [ | ***] | [ | ***] |
[***]
All purchase orders should be submitted to:
Corcept/ICS Customer Contact Number. (000) 000-0000
Toll free fax number for Corcept. (000) 000-0000
Customer Service e-mail: Xxxxxxx@xxxxxxxxxx.xxx
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT B
RETUNED GOODS POLICY
Corcept Therapeutics Incorporated
RETURNED GOODS POLICY
Before returning any product to Corcept Therapeutics Incorporated (“Corcept”), customers must first call Corcept Customer Service 000-000-0000 and obtain a Return Authorization (“RA”) number.
All products returned to Corcept without an RA number will be refused
Products Eligible for Return
1. | Received by customer as damaged – Products received damaged may be returned for full credit, including freight, when reported within [***] days of receipt. If product is received damaged, please have the transportation company note “damaged” or “broken” on the freight xxxx. Claims with UPS or Registered Postal Service should remain in the original carton for inspection. |
2. | Received by customer in error or shortages – Product shipped in error by Corcept may be returned within [***] days of invoice date. |
3. | Ordered by the customer in error – Products ordered in error may be returned when reported within [***] days of receipt. |
4. | Expired product – Expired product must be received within twelve (12) months after expiration for credit to be issued. Expired product approved by Corcept for return must be shipped freight prepaid within [***] days of authorization date. |
5. | Corcept will issue authorization for the return of eligible, unopened product only (no partial containers except in GA, MS, and NC and where mandated by state statute). |
6. | Product must be in its original container bearing its original label. |
Products Not Eligible for Return
1. | Product involved in fire, sacrifice or bankruptcy sale; or items that have been damaged due to conditions beyond the control of the manufacturer, such as improper storage, heat, cold, water, smoke, fire, or negligence. |
2. | Product not properly stored as outlined by the Prescription Drug Marketing Act. |
3. | Product that has been discontinued by Corcept for more than 12 months. |
4. | Product that has been opened or partial containers (except where mandated by state statute). |
5. | Product that has been obtained via free goods. |
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
6. | Product returned by other than the purchaser (except by 3rd Party Processor agent). |
7. | Product purchased directly from a drug wholesaler should be returned to the wholesaler for credit. |
8. | Product sold with the specific understanding that it is non-returnable. |
9. | Product originally sold through other than normal domestic channels of distribution or purchased from a source other than an approved distribution center of Corcept. |
10. | Product that has been repackaged or is in other than Corcept containers/packages. |
11. | Product more than 12 months past the expiration date. |
12. | Product that is obtained in violation of state or federal regulations. |
13. | A Certificate of Destruction does not qualify as an acceptable format for product return. |
14. | Product in which the lot number and/or expiration date is missing, illegible, covered, and/or unreadable on the original container. |
15. | Product that Corcept determines, in its sole discretion, is otherwise adulterated, misbranded, or counterfeit. |
To obtain authorization to return product for credit, please call
Corcept Customer Service (000) 000-0000 with the following information:
• Product Name | • Billing Address | |
• Quantity for each Product | • Shipping Address | |
• Lot Numbers (if available) | • Reason for Return (e.g., concealed damage) | |
• Unit Price | • Contact Person | |
• Debit Memo Number |
Customer Service will provide an RA number for those items approved for credit. All returns must have the RA number clearly marked on the outside of the parcel. Include shipping and debit memo documentation with any returned goods. Corcept recommends that all customers insure return goods shipments. No product will be accepted for return without an RA number.
Terms of Return Policy
1. | Credit for returned goods is issued at the highest price for the lot number, or at applicable contract price less third party handling charge, whichever is lower. |
2. | Transportation charges are to be prepaid by customer. No credit will be issued for administration, shipping or handling, including third party processing fees. |
3. | Exclusive of ordering/shipping errors, merchandise returned within 120 days of purchase is subject to a restocking fee of up to 10%, excluding during the announced time period of new product launches. |
4. | Deductions from payables may not be taken until a credit memo is issued. |
5. | Unauthorized deductions for returns may result in held orders. |
6. | For items purchased from a wholesaler, credit will be issued through the wholesaler. |
7. | Returns should be channeled through the original source of purchase. The original source of purchase is defined as the entity that was directly invoiced by Corcept and the distributor of origin. |
8. | Returns are subject to final count and acceptance by Corcept. Reimbursement for partial bottles of tablets, for those states where mandated, will be based on individual tablet count. Corcept reserves the right to accept or reject any merchandise for credit. |
9. | Corcept reserves the right to destroy, without recourse, all returned packages. |
10. | Unauthorized returns may be destroyed and not reimbursed. |
11. | Corcept reserves the right to inspect all authorized returns prior to issuing credit and to destroy products deemed unfit for sale whether or not they are eligible for credit. |
Corcept’s returned goods policy is subject to change at any time and without prior notice to other parties.
Exhibit B (Return Goods Policy) may be modified with a written notification from Company to Distributor. Upon the effective date of the Return Goods Policy change, the Exhibit will be deemed amended to reflect such change.