[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
EXHIBIT 10.110
THERAPEUTICS AND DEVICES
PURCHASE AGREEMENT
RECITALS:
Xxxxxx Healthcare Corporation, a Delaware corporation, through its BioScience
business unit, with offices at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Baxter") is extending to Coram, Inc., with offices at 0000 Xxxxxxxx, #000,
Xxxxxx, XX 00000 ("Customer") the following pricing for the therapeutics and
devices ("Therapeutics and Devices") set forth in Exhibit A. This pricing is
being offered to Customer in accordance with the terms and conditions of this
Therapeutics and Devices Purchase Agreement as well as Exhibits A and B, which
exhibit will be incorporated herein and made a part hereof (collectively, the
"Agreement"). Baxter and Customer are collectively referred to herein as the
"Parties."
Now Therefore, It Is Hereby Agreed As Follows:
1. CONDITIONS OF SALE. Baxter agrees to sell the Therapeutics and Devices to
Customer and Customer agrees to purchase the Therapeutics and Devices from
Baxter for resale, distribution or use within the United States to patients for
whom Customer holds an active prescription for the Therapeutics and Devices
and/or to whom Customer provides homecare services.
2. LICENSES. Customer agrees to maintain all licenses necessary for the
purchase and dispensing of the prescription Therapeutics and Devices (e.g.,
state pharmacy license, physician's license) and will forward a copy of such
license to Baxter upon request.
3. RESALE OF THERAPEUTICS AND DEVICES. The Therapeutics and Devices purchased
under this Agreement are not for resale, barter or trade to other purchasers of
such therapeutics and devices or for export without the prior written consent of
Baxter. Notwithstanding this restriction, Baxter hereby consents to Customer
reselling the Therapeutics and Devices purchased under this Agreement to
physician practice wholesale accounts of Customer, for patients whom said
physician practice wholesale accounts hold an active prescription for the
Therapeutics and Devices. Purchaser will obtain the written consent of Baxter
prior to reselling the Therapeutics and Devices to any other wholesale accounts
of Customer. Sales or transfers of the Therapeutics and Devices between Customer
and its affiliates providing homecare services are permitted provided they
comply with the restrictions of this Paragraph 3. "Affiliate" shall mean any
entity or person that controls, is controlled by or is under common control with
a Party. For purposes of this definition, "control" shall mean (a) in the case
of corporate or limited liability company entities, the direct or indirect
ownership of at least thirty percent (30%) of the stock, participating shares or
member interest entitled to vote, (b) in the case of a partnership, the power
customarily held by a general partner owning at least a 50% interest in the
Partnership, and (c) in the case of a management contract the power to direct
the management of the other entity.
4. TERM. Unless otherwise terminated as herein provided, the term of this
Agreement shall begin the date this Agreement is countersigned by Baxter
("Effective Date") and end December 31, 2005, subject to the termination
provisions set forth below.
5. VOLUME COMMITMENT. The minimum quantity of Therapeutics and Devices that
Customer agrees to purchase during the term of this Agreement is set forth in
Exhibit B attached hereto. Customer and Baxter agree that Baxter shall deliver
the Therapeutics and Devices in lots subject to availability pursuant to
Customer's request and Xxxxxx'x acceptance. Customer agrees to take delivery of
all lots not later than December 15, 2004 for the 2004 volume commitment and
December 15, 2005 for the 2005 volume commitment.
6. FAILURE TO DELIVER. In the event Baxter fails to make delivery for any
reason other than a Force Majeure Event, as described in Paragraph 12, or
Customer rightfully rejects or justifiably revokes acceptance, then with respect
to the Therapeutics and Devices involved, at Customer's option, Baxter shall
either (i) offer substitute Therapeutics and Devices, or (ii) pay Customer an
amount equal to [*] of the then applicable invoice price for the Therapeutics
and Devices involved as liquidated damages, which figure shall include both
incidental and consequential damages.
7. PRICING AND PAYMENT TERMS.
(a) The prices specified in Exhibit A will be in effect as stated in
Exhibit A. Effective January 1, 2005, Baxter may increase the prices
specified in Schedule A by up to [*] over the price for the previous
year.
(b) Baxter will invoice Customer for payment after the delivery of each
lot of Therapeutics and Devices. Invoices will be paid in full not
later than [*] days after the invoice date. If unpaid after [*] days
of the invoice date, the invoice will be considered past due and will
bear a service charge of 1-1/2 percent per month, 18 percent per year
(or the highest amount allowed by law, if lower). In the event
Customer is delinquent in payment of any amounts to Baxter, whether or
not related to this Agreement, and such delinquency in payments is
uncured for a period of [*] days following written notice by Baxter to
Customer, Baxter may, at its option, declare all amounts owed to it
under all agreements as due and payable immediately and terminate this
Agreement.
8. AUDIT. In the event Baxter has a reasonable basis to question Customer's
compliance with Paragraphs 3 and/or 16, of this Agreement or the accuracy of any
representation, report or information provided by Customer pursuant to this
Agreement, then Baxter may propose in writing to Customer that an independent
accountant, reasonably acceptable to Customer, perform an audit to determine
compliance with Paragraphs 3 and/or 16 or the accuracy of the representation,
report or information. The accountant will provide Customer with appropriate
assurances that all information it reviews and receives pursuant to the audit
will be maintained in complete confidence and not disclosed to Baxter or any
other person or entity without the express written permission of Customer. Upon
receipt of such assurances, Customer will permit the accountant to conduct an
audit of the pertinent records to assess, as applicable, compliance with
Paragraphs 3 and/or 16 and/or the accuracy of the representation, report or
information. At the conclusion of the audit, the accountant will advise the
Parties whether Paragraphs 3 and/or 16 are being complied with or the
representation, report or information was accurate, and if not, what, in its
judgment, constitutes noncompliance or what the representation, report or
information should have been. In the event the accountant determines that
Customer is compliant with Paragraphs 3 and/or 16 and/or the original
representation, report or information was accurate, then the entire cost of the
audit will be borne by Baxter. In the event the accountant determines that
Customer is noncompliant with the Agreement and/or the representation, report or
information was inaccurate, and such inaccuracy was material to the performance
of the Agreement, then Customer will be solely responsible for the cost of the
audit. The representation, report or information that was the subject of the
audit will be revised and adjusted to reflect the results of the audit as
necessary and the Parties will promptly take action to reconcile their
performance under the Agreement with the results of the audit. Anything to the
contrary in this section notwithstanding, Baxter may invoke the audit protection
provided by this section no more than once each year during the term of this
Agreement.
9. TAXES. Customer shall be responsible for payment of all applicable state
and/or local sales, use, and/or gross receipts tax receipts resulting from
transactions with Baxter regardless of placement of liability for the tax by
law.
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10. ORDERING PROCEDURE. Orders may be placed by calling Baxter 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 this 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 Therapeutics and Devices expiration dating on any
Therapeutics and Devices upon delivery. Specific dating needs may be discussed
with Customer Service at time of order placement.
11. SHIPPING INFORMATION. Freight terms are F.O.B., Customer's location. Under
normal conditions, delivery will be made within seven (7) days of Xxxxxx'x
acceptance of each order. Additional charges for emergency or overnight
deliveries will be the responsibility of Customer and will be added to the
invoice.
(a) 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.
(b) 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
shipper." Xxxxxx'x Customer Service Department should be notified
immediately at 800.423.2090. Customer's cooperation in providing this
information will enable Baxter to expedite the necessary adjustments.
(c) PROOF OF DELIVERY. Proof of delivery will be provided if a request is
received within ninety (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.
12. FORCE MAJEURE EVENT. 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, fires, earthquakes, acts of God or causes beyond its control
(collectively, a "Force Majeure Event"), and Customer agrees that in such events
Baxter, without liability to Customer, may allocate Therapeutics and 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 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 Devices provided to
Customer. Similarly, Customer shall not be liable for non-performance or delays
in the performance of its obligations under this Agreement caused by a Force
Majeure Event.
13. RETURN GOODS POLICY. Baxter can accept for credit only those Therapeutics
and Devices that do not perform satisfactorily under the specified condition,
Therapeutics and Devices that may have been damaged during transportation, or
Therapeutics and Devices that Customer may have received in error. Due to the
biological nature of the Therapeutics and Devices and the government regulations
involved, return of the Therapeutics and 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.
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14. WARRANTY. Baxter and its affiliates warrant that Therapeutics and 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 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 Devices shipped and delivered to
Customer have been manufactured, processed, packed, filled and finished in
substantial conformance with the cGMPs as set forth in 21 C.F.R. Parts 210 and
211. Baxter and its affiliates further represent and warrant that all
Therapeutics and 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 Therapeutic 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 DEVICES.
NEITHER BAXTER NOR ITS AFFILIATES SHALL BE LIABLE FOR PROXIMATE, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES. More warranties may accompany individual
Therapeutics and Devices.
15. OTHER DISCOUNTS. Customer acknowledges the dollar value of any Therapeutics
and Devices which Customer receives but does not pay for shall be a "discount or
other reduction in price" and may be subject to the disclosure requirements of
Section 1128(b)(3)(A) of the Social Security Act. Customer shall disclose this
discount or reduction in price under any state or federal program that provides
cost or charge-based reimbursement to the participating institution for
Therapeutics and Devices or services covered in this price list.
16. TRACE SALES REPORTS. On all purchases from Baxter, Customer agrees to
maintain complete and accurate records of the sales of all Therapeutics and
Devices covered under this Agreement. Customer agrees to provide monthly trace
sales reports, to include the following information:
(a) City, state, and zip code of the prescribing physician; and
(b) Number of units, unit of measure, Baxter product code number or NDC
number and ship date.
THE ABOVE INFORMATION MUST BE RECEIVED WITHIN TEN (10) BUSINESS DAYS FOLLOWING
THE LAST DAY OF EACH CALENDAR MONTH. The preferred format is Microsoft Excel
spreadsheet sent electronically to the Baxter contact listed below.
Baxter spreadsheet information contact: Customer contact information:
Xxxxx Xxxx Name: _______________________________
xxxxx@xxxxxx.xxx Email: ______________________________
0000 Xxxx Xxxx Xxxx Address: ____________________________
Xxxxxxxxx, XX 00000 ____________________________
Ph# 847.940.5951 Ph # ________________________________
Fax# 000.000.0000 Fax #________________________________
17. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. Either Party shall have the right at any
time to terminate this Agreement upon one hundred eighty (180) days
prior written notice to the other Party. However, in the event of any
material breach of this Agreement by Customer, or in the case of any
other action by Customer that Baxter, in its reasonable judgment,
deems prejudicial or injurious to the
4
reputation of Baxter or the Therapeutics and Devices, which action
remains uncured by Customer after fifteen (15) days written notice by
Baxter to Customer, Baxter shall have the right to terminate this
Agreement upon five (5) days prior written notice to Customer.
(b) ORDERS PLACED PRIOR TO TERMINATION. In the event of termination of
this Agreement at any time by either Party, with or without cause,
under any circumstances whatsoever, Baxter, at its option, may cancel
all unfilled orders of Customer for the Therapeutics and Devices
outstanding as of the date on which the termination notice is given or
this Agreement is automatically terminated.
(c) CHANGE IN CONTROL. If Customer or any of its affiliates undergoes a
Change in Control (as below defined), Customer will so notify Baxter
in writing no more than five (5) business days after the date of
occurrence of such event, and Baxter will have the right to terminate
this Agreement effective with the Change in Control. "Change in
Control" means the occurrence at any time of either of the following
events:
(i) Customer sells all or substantially all of its business and/or
assets to any Baxter competitor; or
(ii) Any Baxter competitor has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
and the rules and regulations promulgated thereunder or any
successor rule or regulation promulgated under the Exchange Act)
of 20% or more of (a) the issued and outstanding shares of voting
securities or capital stock of Customer, or (b) the equity
interest of any other person or entity which holds or controls
any material part of Customer's business and/or assets.
18. CONFIDENTIALITY. Neither Customer nor Baxter shall disclose the terms of
this Agreement to any other person or entity outside its organization and
affiliates other than as required by law. For purposes of this provision, an
affiliate is an entity in which Customer or Baxter, as appropriate, maintains an
ownership position in or a contractual relationship with, and the disclosure is
required so that the disclosing Party may fulfill its obligations hereunder.
Except as required by law, neither Party shall make any public announcement
concerning the existence of this Agreement or its terms unless such Party
receives the prior written approval of the other Party.
19. GROUP PURCHASING ORGANIZATIONS. As to the Therapeutics and Devices set
forth in Exhibit A only, Customer represents that (a) it is not a member either
directly or indirectly of, or if it is a member has elected not to purchase
under, any group purchasing organization that has a group purchasing agreement
with Baxter, and (b) during the course of this Agreement, should Customer decide
to become a member of a group purchasing organization as it pertains to the
Therapeutics and Devices set forth in Exhibit A, then it will give Baxter ninety
(90) days prior written notice of becoming same and Baxter, at its sole
discretion, can terminate this Agreement upon five (5) days prior written notice
to Customer pursuant to the termination provisions set forth in 16(a) above, and
(c) upon the request of Baxter, Customer will provide confirmation, in writing,
of (a) and/or (b) above.
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20. COMPLETE AGREEMENT. This Agreement contains the full and complete
expression of the rights and obligations of the Parties, and it shall cancel and
supersede all other written or oral communications heretofore made by the
Parties related to the subject matter hereof, including but not limited to that
certain Purchase Agreement effective June 1, 2003 through December 31, 2003, as
amended (the "Purchase Agreement"). The Parties agree that in consideration of
this Agreement, each Party expressly waives any claim for monetary damages,
liquidated or otherwise, arising out of the other Party's breach of the Purchase
Agreement.
THIS AGREEMENT IS NOT VALID UNTIL SIGNED BY BAXTER AT ITS HOME OFFICE.
Coram, Inc. Xxxxxx Healthcare Corporation
Through its BioScience Business Unit
Sales and Marketing North America Region
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------------- ----------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxx
Authorized Representative Authorized Representative
Title: SRVP Materials Management Title: VP Sales
Date: 3/9/2004 Date: 3/12/2004
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EXHIBIT A TO
THERAPEUTICS AND DEVICES PURCHASE AGREEMENT
PRICING
EFFECTIVE MARCH 1, 2004 THROUGH DECEMBER 31, 2004
ALPHA(1) - PROTEINASE INHIBITOR (HUMAN) ITEM DESCRIPTION PRICE/UNIT
---------------------------------------------------------------------------
Aralast 580100 25mL/0.5g vial [*]
NDC# - 00000-0000-0
---------------------------------------------------------------------------
Aralast 580200 50mL/1.0g vial [*]
NDC# - 00000-0000-0
---------------------------------------------------------------------------
EFFECTIVE JANUARY 1, 2005 THROUGH DECEMBER 31, 2005
ALPHA(1) - PROTEINASE INHIBITOR (HUMAN) ITEM DESCRIPTION PRICE/UNIT
-------------------------------------------------------------------------
Aralast 580100 25mL/0.5g vial Pursuant to
NDC# - 00000-0000-0 Paragraph 7
-------------------------------------------------------------------------
Aralast 580200 50mL/1.0g vial Pursuant to
NDC# - 00000-0000-0 Paragraph 7
-------------------------------------------------------------------------
Aralast is a trademark of Alpha Therapeutic Corporation
7
EXHIBIT B TO
THERAPEUTICS AND DEVICES PURCHASE AGREEMENT
ALPHA(1) - PROTEINASE INHIBITOR (HUMAN)
YEAR VOLUME COMMITMENT (IN MILLIGRAMS)
-------------------------------------------------
2004 [*]
-------------------------------------------------
2005 [*]
-------------------------------------------------
8
