EXHIBIT 10.80
[XXXXXX HEALTHCARE CORPORATION LOGO]
FIRST AMENDMENT TO
HEMOPHILIA PRODUCT VOLUME COMMITMENT AGREEMENT
BETWEEN XXXXXX HEALTHCARE CORPORATION
AND CORAM, INC., THROUGH ITS THERAPEUTIC SERVICES DIVISION
UNDER DATE OF DECEMBER 19, 2001
First Amendment to Hemophilia Product Volume Commitment Agreement ("First
Amendment") made this 13th day of December, 2002, by and between Xxxxxx
Healthcare Corporation, with offices at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 ("Baxter") and Xxxxx, Inc., ("Coram"), with offices at 0000 Xxxxxxxx, Xxx.
#000, Xxxxxx, XX 00000, is hereinafter collectively referred to as "Purchaser".
Baxter and Purchaser are collectively referred to hereinafter as the "Parties".
RECITALS
WHEREAS, Baxter and Purchaser entered into a Hemophilia Product Volume
Commitment Agreement ("Agreement") effective December 19, 2001; and
WHEREAS, the Parties desire to amend the Agreement for the purpose of:
1. revising the price of Recombinate rAHF, Hemofil M AHF, FEIBA VH,
Bebulin VH Factor IX Complex, and Proplex T Factor IX as reflected on
Schedule C-1 (attached), which will supersede Schedule C, and;
2. revising the volume commitment of Hemofil M AHF for the year 2003 as
reflected on Schedule C-1 (attached), which will supersede Schedule C
of the Agreement.
Now therefore, it is hereby agreed as follows:
1. Prices and volume commitments for the year 2003 are revised to be
as set forth in the new Schedule C-1 attached.
2. Schedule C is hereby deleted, and the Agreement is hereby amended so
that all references to such Schedules shall be to the new Schedule C-1
of the Agreement attached hereto.
3. This First Amendment will be effective until the expiration of the
term of the Agreement (unless further amended in accordance with the
terms of the Agreement).
Confidential
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4. In the event of any conflict between the Agreement and this First
Amendment, the provisions of this First Amendment shall be
controlling. Except as specifically modified herein, the terms and
conditions of the Agreement are hereby affirmed, confirmed and
ratified.
CORAM, INC. XXXXXX HEALTHCARE CORPORATION
By: /s/ XXXXX XXXXXX By: /s/ XXXXX X'XXXXXX
----------------------------------- -----------------------------
Signature Signature
Xxxxx Xxxxxx Xxxxx X'Xxxxxx
----------------------------------- ------------------------------
Print Print
Its: Senior Vice President, MM Its: President
----------------------------------- -----------------------------
Date: 12/27/02 Date: 1/13/03
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Confidential
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SCHEDULE A
Recombinant Hemophilia Product
Base Level Product Volumes
Year Base Level Volume (In Units)
---- ----------------------------
2001
2002
2003
2004
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SCHEDULE C-1
In Effect Beginning January 1, 2003 through December 31, 2003
Prices and Volume Commitments
--------------------------------------------------------------------------------------------------------
THERAPEUTIC PROTEIN LIST NUMBER PRICE/UNIT VOLUME
COMMITMENT
--------------------------------------------------------------------------------------------------------
Factor VIII Recombinate* rAHF 060-351: 060-352: IU Per Schedule A
060-353
--------------------------------------------------------------------------------------------------------
Factor VIII Hemofil* M AHF 060-792:060-793:060-795 IU units
--------------------------------------------------------------------------------------------------------
FEIBA** VH Anti-Inhibitor 922204 per unit N/A
Coagulation Concentrate
--------------------------------------------------------------------------------------------------------
Bebulin VH Factor IX Complex 924402 per unit N/A
--------------------------------------------------------------------------------------------------------
Proplex T Factor IX 060-739 per unit N/A
--------------------------------------------------------------------------------------------------------
* Hemofil, Proplex and Recombinate are trademarks of Xxxxxx International, Inc.
Hemofil and Proplex are registered with the US Patent and Trademark Office.
** FEIBA and Bebulin are trademarks of Xxxxxx XX and are registered with the US
Patent and Trademark Office.
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[XXXXXX HEALTHCARE CORPORATION LOGO]
Coram, Inc.
0000 Xxxxxxxx #000
Xxxxxx, XX 00000
Term of Agreement: 1/1/03 through 12/31/2003
Xxxxxx Healthcare Corporation, through its BioScience division ("Baxter") is
extending to Coram, Inc. ("Customer") the following pricing and purchase
requirements in Schedule A. This pricing is based on Customer's agreement to
purchase the quantities of therapeutics set forth on Schedule A in accordance to
the terms and conditions of this Agreement including those indicated on Schedule
B of this Agreement which are incorporated into and made a part of this
Agreement.
In addition, Baxter agrees to sell the therapeutics to Customer and Customer
agrees to purchase the therapeutics for resale, distribution or use within the
United States to patients for whom Customer holds an active prescription for the
therapeutics and/or to whom Customer provides home care services. Customer
agrees to maintain all licenses necessary for the purchase and dispensing of the
prescription therapeutics (e.g., state pharmacy license, physician's license,
etc.) and will forward a copy of such license to Baxter upon request. The
therapeutics purchased under this Agreement are not for resale, barter or trade
to other purchasers of such therapeutics or for export without the prior written
consent of Baxter.
Your acceptance is to be indicated by returning the signed duplicate originals
of this Agreement by December 31, 2002.
THIS AGREEMENT IS NOT VALID UNTIL SIGNED BY BAXTER AT ITS HOME OFFICE.
Coram, Inc. Xxxxxx Healthcare Corporation
0000 Xxxxxxxx #000 0000 Xxxx Xxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxx 00000
By: /s/ XXXXX XXXXXX By: /s/ XXXXXX XXXXXX
------------------------------- ----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxx
------------------------------- ----------------------------
Authorized Representative Authorized Representative
Title: Senior Vice President, MM Titles V.P. Sales
------------------------------- ----------------------------
Date: 12/27/02 Date: 1/8/2003
------------------------------- ----------------------------
[XXXXXX HEALTHCARE CORPORATION LOGO] Coram, Inc.
SCHEDULE A: THERAPEUTICS AND PRICING
IMMUNE GLOBULIN INTRAVENOUS (HUMAN), GAMMAGARD(R) S/D
SOLVENT DETERGENT TREATED
IMMUNE GLOBULIN INTRAVENOUS (HUMAN) [IGIV], IVEEGAM(R) EN
* Available in limited quantities only
-------------------------------------------------------------------------------------------------------
PRODUCT DESCRIPTION COST 2003 VOLUME
COMMITMENT
-------------------------------------------------------------------------------------------------------
Gammagard(R) S/D 060-384 0.5 gram in 10 xX Xxxx
NDC # 00000-0000-00 With Filter Set
Annual Grams
of any
Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram assortment of
NDC # 00000-0000-00 With Administration Set Vial Gammagard S/D
vial sizes
as agreed
Gammagard(R) S/D 060-386 5.0 gram in 100 mL Gram upon by both
NDC # 00000-0000-00 With Administration Set Vial parties
Gammagard(R) S/D 060-387 10.0 gram in 192 mL Gram
NDC # 00944-2620-04 With Administration Set Vial
*Iveegam EN(R) 923400 5.0 gram in 100 mL Gram
NDC # 64193-250-50 With Administration Set Vial
-------------------------------------------------------------------------------------------------------
PRODUCT DESCRIPTION COST 2003 VOLUME
COMMITMENT
-------------------------------------------------------------------------------------------------------
Gammagard(R) S/D 060-384 0.5 gram in 10 xX Xxxx
NDC # 00000-0000-00 With Filter Set
Annual Grams of
Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram any assortment of
NDC # 00000-0000-00 With Administration Set Vial Gammagard S/D
vial sizes
Gammagard(R) S/D 060-386 5.0 gram in 100 mL Gram as agreed upon
NDC # 00000-0000-00 With Administration Set Vial by both parties
Gammagard(R) S/D 060-387 10.0 gram in 192 mL Gram
NDC # 00944-2620-04 With Administration Set Vial
*Iveegam EN(R) 923400 5.0 gram in 100 mL Gram
NDC # 64193-250-50 With Administration Set Vial
-------------------------------------------------------------------------------------------------------
PRODUCT DESCRIPTION COST 2003 VOLUME
COMMITMENT
-------------------------------------------------------------------------------------------------------
Gammagard(R) S/D 060-384 0.5. gram in 10 xX Xxxx
NDC # 00000-0000-00 With Filter Set
Annual Grams of
Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram any assortment of
NDC # 00000-0000-00 With Administration Set Vial Gammagard S/D
agreed upon by
Gammagard(R) S/D 060-386 5.0 gram in 100 mL Gram both parties
NDC # 00000-0000-00 With Administration Set Vial
Gammagard(R) S/D 060-387 10.0 gram in 192 mL Gram
NDC # 00944-2620-04 With Administration Set Vial
*Iveegam EN(R) 923400 5.0 gram in 100 mL Gram
NDC #64193-250-50 With Administration Set Vial
-------------------------------------------------------------------------------------------------------
[XXXXXX HEALTHCARE CORPORATION LOGO] Coram, Inc.
SCHEDULE B
ATTACHMENT TO AGREEMENT
TERMS AND CONDITIONS
PAYMENT TERMS AND CONDITIONS
Payment terms are net 1% 30 net 31 days from date of invoice. Customer shall pay
Baxter a service charge of 1-1/2% per month, 18% per year, (or the highest
amount allowed by law, if lower) on all amounts past due. In the event Customer
is delinquent in payment of any amounts to Baxter, whether or not related to
this Agreement, Baxter may, at its option, declare all amounts owed to it under
all agreements as due and payable immediately and terminate this Agreement.
TAXES
Customer shall be responsible for payment of all applicable state/local sales,
use, and/or gross receipts tax receipts resulting from transactions with Baxter
regardless of placement of liability for the tax by law.
ORDERING PROCEDURE
Orders may be placed by calling Baxter BioScience Customer Service at
800.423.2090 or faxed to 800.756.4952. Shipment against any purchase order does
not constitute acceptance by Baxter of the terms and conditions or prices
stipulated on the purchase order. Shipment of any order, including standing
orders, will be made in accordance with terms, conditions and prices in effect,
as stated herein, and shall be governed solely by the terms of the Price
Agreement notwithstanding any conflicting or additional terms contained in any
purchase order, unless otherwise agreed to in writing by all parties concerned,
Baxter cannot guarantee maximum product expiration dating on any therapeutics
and related devices upon delivery. Specific dating needs may be discussed with
Customer Service at time of order placement.
SHIPPING INFORMATION
Freight terms are F.O.B. Destination, Customer's location, freight pre-paid.
Under normal conditions, shipment will be made within seven (7) days after
receipt of order. Additional charges for emergency or overnight deliveries will
be the responsibility of Customer and will be added to the invoice, Baxter shall
use commercially reasonable efforts to fill orders, but shall not be liable for
non-performance or delays caused by a shortage of supply of raw materials,
manufacturing problems, delivery or labor problems, intervention of any
governmental authority or acts of regulatory agencies, fire, earthquakes, acts
of God or causes beyond its control, and Customer agrees that in such events
Baxter, without liability to Customer, may allocate therapeutics and related
devices among all of its customers. Xxxxxx'x available supply will be made
available on a pro rata basis to customers with firm commitments. In the event
Baxter is notified of and is able to verify a decision which changes the
purchase and delivery of therapeutics and related devices for a patient or a
group of patients either to or from Customer, then to the extent it is able,
Baxter may have to make appropriate adjustment in the supply of therapeutics and
related devices provided to Customer.
DISPUTED INVOICES: An amount in dispute should be deducted from Customer's
remittance. PLEASE EXPLAIN THE DEDUCTION ON A LEGIBLE COPY OF THE INVOICE AND
ENCLOSE IT WITH THE PAYMENT. Xxxxxx'x Account Services Representative will work
with Customer to resolve the discrepancy.
DAMAGE OR SHORTAGE IN SHIPMENT: Baxter exercises extreme care in packing
shipments. To minimize the possibility of error, all orders should be counted
and inspected prior to acceptance of delivery from the carrier. ANY DAMAGE,
SHORTAGE OR OVERAGE SHOULD BE NOTED ON A COPY OF THE CARRIER'S FREIGHT XXXX AND
THE DRIVER SHOULD COUNTERSIGN THE DOCUMENT. If the damage is excessive do not
accept the shipment. Xxxx on the carrier's freight xxxx, "Shipment refused,
damaged. Return to shipping." Xxxxxx'x Customer Service Department should be
notified immediately at 0-000-000-0000. Customer's cooperation in providing this
information will enable Baxter to expedite the necessary adjustments.
PROOF OF DELIVERY: Proof of delivery will be provided, if a request is received
within 90 days of date of shipment. Due to the expenses involved in obtaining
proof of delivery, requests are subject to a $40.00 service fee. In the event
that proof of delivery cannot be provided, no service fee will be charged and
full credit will be issued to Customer's account.
RETURN GOODS POLICY
Baxter can accept for credit only those therapeutics and related devices which
do not perform satisfactorily under the specified condition, therapeutics and
related devices which may have been damaged during transportation, or which
Customer may have received in error. Due to the biological nature of the
therapeutics and related devices and the government regulations involved, return
of the therapeutics and related devices must be authorized before any returns
will be accepted. Customer shall contact Baxter Customer Service for
instructions on the return procedure to be followed.
WARRANTY
Xxxxxx Healthcare Corporation and its affiliates warrant that therapeutics and
related devices shipped or delivered to Customer will not, at the time of
shipment by Baxter or its affiliates, be adulterated or misbranded within the
meaning of the Federal Food, Drug and Cosmetic Act, as amended, nor will such
therapeutics and related devices be an article which may not, under provisions
of sections 404 and 505 of said act, be introduced into interstate commerce.
Baxter and its affiliates further represent and warrant that all therapeutics
and related devices delivered to Customer when stored and used in accordance
with the directions on the labeling, are fit for the purposes and indications
described in the labeling. Unless the therapeutics and related devices is used
in accordance with its instructions, these warranties are void and of no effect.
THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BAXTER AND ITS AFFILIATES'
SOLE OBLIGATION AND CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY SHALL
BE, AT XXXXXX'X OPTION, TO REPAIR OR REPLACE THE THERAPEUTICS AND RELATED
DEVICES. NEITHER BAXTER NOR ITS AFFILIATES SHALL BE LIABLE FOR PROXIMATE,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES. MORE WARRANTIES MAY ACCOMPANY
INDIVIDUAL THERAPEUTICS AND RELATED DEVICES.
TRACE SALES REPORTS
On all purchases from BAXTER BIOSCIENCE, customer agrees to maintain complete
and accurate records of the sales of all BioScience therapeutics and related
devices covered under this Agreement. Customer agrees to provide monthly trace
sales reports, to include the following information:
- City, state, and the zip code of the prescribing physician
- # of units, unit of measure, BioScience therapeutics and related device code
or NDC#, ship date
THE ABOVE INFORMATION MUST BE RECEIVED WITHIN TEN (10) DAYS FOLLOWING THE LAST
DAY OF EACH CALENDAR MONTH. The preferred method is to put your report in
Microsoft Excel Spreadsheet format along with a contact name and telephone
number. Remit spreadsheet to the following:
xxxxx@xxxxxx.xxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Ph# 847.948.5951
Fax# 000.000.0000
