EXHIBIT 10.2
CONFIDENTIAL TREATMENT REQUESTED: CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND, WHERE APPLICABLE,
HAS BEEN MARKED WITH AN ASTERISK TO DENOTE WHERE OMISSIONS HAVE BEEN MADE. THE
CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT
This First Amendment to the Second Amended and Restated Outsourcing and
Operating Agreement ("Agreement") is entered into effective as of July 1, 2001
(the "Effective Date"), by and among Neoforma, Inc., fdba Xxxxxxxx.xxx, Inc., a
Delaware corporation with offices at 0000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000
("Neoforma"), Novation, LLC, a Delaware limited liability company with offices
at 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 ("Novation"), Healthcare
Purchasing Partners International, LLC, a Delaware limited liability company
with offices at 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 ("HPPI"),
VHA Inc., a Delaware corporation with offices at 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxx 00000-0000 ("VHA"), and University HealthSystem Consortium, an
Illinois corporation with offices at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxx 00000 ("UHC").
RECITALS
WHEREAS, the parties wish to accelerate the value offered by the Exchange to
Members by expanding the scope of transactions covered by the Exchange to
include * .
WHEREAS, the parties wish to amend the Agreement as set forth below to enable
this expansion to occur.
NOW, THEREFORE, in consideration of the mutual promises made herein and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the Agreement as follows:
SECTION 1. A new definition of the term "EDI STANDARDS" shall be added which
states:
"EDI STANDARDS" means, the standard format for Electronic Data Interchange (EDI)
generally accepted and used in North America, as may change from time to time.
SECTION 2. A new definition of the term "EXCHANGE INFORMATION" shall be added
which states:
"EXCHANGE INFORMATION" means the delivery of information for use by Members and
Suppliers, including but not limited to *, regarding the purchase of a Product
by a Member participating in the Exchange made through * . A Member
participating in the Exchange is a Member who has signed a Member participation
agreement with Neoforma.
* Confidential treatment requested
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SECTION 3. A new definition of the term "EXCHANGE INFORMATION TRANSACTION
VALUE(s)" shall be added which states:
"EXCHANGE INFORMATION TRANSACTION VALUE(s)" means, with regard to the provision
of Exchange Information, the * relating to the Product purchased, rented or
leased.
SECTION 4. A new definition of the term "*" will be added which states
*
SECTION 5. The definition of "NOVATION EXCHANGE TRANSACTION FEE(s)" shall be
replaced in its entirety with the following:
"NOVATION EXCHANGE TRANSACTION FEE(s)" means fees to be paid by Suppliers in
respect of (i) transactions occurring on the Novation Exchange or (ii) receiving
Exchange Information, excluding fees associated with Neoforma Auction and
Neoforma Plan.
SECTION 6. The definition of "SUPPLIER(s)" shall be replaced in its entirety
with the following:
"SUPPLIER(s)" means suppliers, manufacturers or distributors that provide
Products and Materials for display, sale, rental or lease, including, without
limitation, High-Volume Suppliers pursuant to an agreement allowing
participation on the Exchange.
SECTION 7. The definition of "TRANSACTION FEE(s)" shall be replaced in its
entirety with the following:
"TRANSACTION FEE(s)" means fees to be paid by Suppliers with whom Novation has
contracted on Neoforma's behalf in respect of (i) transactions occurring on the
Exchange or (ii) receiving Exchange Information, but excluding fees associated
with the Novation Exchange, Neoforma Auction and Neoforma Plan.
SECTION 8. Section 8.1.1 shall be replaced in its entirety with the following:
Neoforma shall use its reasonable best efforts to collect all Transaction Fees
and Novation Exchange Transaction Fees required to be paid by Suppliers pursuant
to this Agreement with respect to sales, rentals and leases of Products on the
Exchange and the receipt of Exchange Information.
SECTION 9. Section 8.1.2 shall be replaced in its entirety with the following:
8.1.2 Novation * to Neoforma (the "*") on all purchases made through the
Novation Exchange and for Exchange Information. The * shall be calculated as a
percentage (the "* PERCENTAGE") of the * (i) the * (ii) the * basis as set forth
on *. Subject to Section 3.8 and Subsections 8.1.3, 8.1.5 and 8.2.4, *
calculated in accordance
* Confidential treatment requested
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with this Section 8.1.2 and * in accordance with GAAP for * . (Exhibit I,
Example 1, sets forth a hypothetical calculation of * under Subsections 8.1.1
and 8.1.2.).
SECTION 10. A new Subsection 8.1.5 shall be added which states:
8.1.5 Notwithstanding anything in this Agreement to the contrary, any amount *
and, if applicable, either Subsection 8.1.3 or Subsection 8.2.4, that is
attributable to Transaction Fees in respect of Exchange Information will * ,
whichever is applicable, * (i) the * and (ii) 1.05. By way of example, if (A)
the amount * and (B) * , then (C) the * .
SECTION 11. Section 8.4 shall be replaced in its entirety with the following:
Reporting and Payment of Novation Exchange Transaction Fees and Revenue Sharing.
Within 15 days of the end of each * (in aggregated reporting for the * ),
Neoforma will provide each of Novation, VHA and UHC, with a written report
consisting of (i) aggregate Adjusted Gross Transaction Values and Exchange
Information Transaction Values for all purchases, rentals and leases of Products
through the Novation Exchange, (ii) the calculation of any Transaction Fees,
(iii) the calculation of any Novation Exchange Transaction Fees, (iv) the
calculation pursuant to the Supplier Target Percentage of the * , (v) the * , if
any, pursuant to Subsection 8.1.2, (vi) the calculation of revenue sharing
amounts under Sections 8.2, 8.9, and 8.10, (vii) the calculation of * , and
(viii) the calculation of any other fees to be paid by Neoforma hereunder.
Novation shall pay any * within 30 days after receipt of Neoforma's report. Any
report submitted by Neoforma to Novation, VHA and UHC shall include the
information set forth in Exhibit E and such other information as Novation may
reasonably request.
SECTION 12. Section 8.6 shall be replaced in its entirety with the following:
8.6 Taxes. Neoforma and Novation shall cooperate to minimize any local, state,
national and foreign taxes (including, without limitation, sales, use and VAT
taxes which may apply), licenses, export/import fees and any other fees or
similar obligations relating to any sale, rental or lease of a Contract Product
through the Exchange or relating to the Exchange Information. If in the future
any such taxes or similar obligations are required to be paid by Neoforma or
Novation in respect of Contract Products, such fees shall be shared by Neoforma
and Novation proportionately based on revenues each derives from the Exchange.
In no event shall Novation be required to share any taxes under this Section 8.6
for Products other than Products for which Novation receives Novation Exchange
Transaction Fees.
SECTION 13. Section 10.2 shall be replaced in its entirety with the following:
10.2 Transaction Database. Neoforma will create and maintain the Transaction
Database relating to all activity occurring on the Exchange and relating to
Exchange Information in accordance with the Functionality Specifications to be
mutually agreed upon. Novation and Neoforma shall only use Information in
accordance with the
* Confidential treatment requested
3
provisions of this Section 10. Neoforma shall at all times make all Information
available to Novation in any manner that it is, or can reasonably be, made
available.
SECTION 14. Exhibit G shall be replaced in its entirety with the following:
The * shall be determined by multiplying the * set forth below:
In determining the foregoing calculation, the *. By way of example, if in a *
for a total of $*.
SECTION 15. Exhibit I shall be replaced in its entirety with the following:
Example 1
*
Example 2
*
SECTION 16. All Other Terms Unchanged. Except as expressly modified by this
Amendment, all terms of the Agreement shall remain in full force and effect.
* Confidential treatment requested
4
SECTION 17. Governing Law. This Amendment shall be governed by and construed
under the internal laws of the State of New York and shall be binding upon the
parties hereto in the United States and worldwide. The federal and state courts
of New York shall have exclusive jurisdiction to adjudicate any dispute arising
out of this Amendment.
SECTION 18. Counterparts. This Second Amendment may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
written below.
NEOFORMA, INC. NOVATION, LLC
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx XxXxxxx
------------------------ -------------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx XxXxxxx
------------------------ -------------------------------------
Title: Chief Executive Officer Title: President
Date: September 28, 2001 Date: September 28, 2001
------------------------ -------------------------------------
VHA, INC. UNIVERSITY HEALTHSYSTEM CONSORTIUM
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------ -------------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
------------------------ -------------------------------------
Title: Chief Financial Officer Title: President and Chief Executive Officer
------------------------ -------------------------------------
Date: September 28, 2001 Date: September 28, 2001
------------------------ -------------------------------------
HEALTHCARE PURCHASING PARTNERS
INTERNATIONAL, LLC
By: /s/ Xxxx XxXxxxx
--------------------------
Name: Xxxx XxXxxxx
--------------------------
Title: Chief Executive Officer
--------------------------
Date: September 28, 2001
--------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
OUTSOURCING AND OPERATING AGREEMENT]
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