[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
EXHIBIT 10.7
FOURTH AMENDMENT TO
HEMOPHILIA PRODUCT
VOLUME COMMITMENT AGREEMENT
Fourth Amendment to Hemophilia Product Volume Commitment Agreement ("Fourth
Amendment") effective as of the 1st day of July, 2004 ("Effective Date"), by and
between Xxxxxx Healthcare Corporation, a Delaware corporation, through its
BioScience business unit, with offices at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Baxter"), and Coram, Inc., with
offices at 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("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 effective December 19, 2001 ("VCC Agreement") and amended
from time to time (collectively, the VCC Agreement and all of its amendments are
referred to herein as the "Agreement");
WHEREAS, the Parties desire to amend the Agreement for the purpose of:
1. revising Section 1;
2. revising Section 5;
3. revising Schedule A-1; and
4. revising Schedule C-2.
Now therefore, it is hereby agreed as follows:
1. Section 1. Definitions is hereby amended to add Paragraph 1.16, as
follows:
"1.16 'Additional Recombinant Base Level Product Volume' shall
mean Recombinant Hemophilia Product and rAHF-PFM as set forth
in Schedule A-2 before Purchaser specifies its Base Level
Product Volumes for Recombinant Hemophilia Product and
rAHF-PFM." Except as set forth in Section 5.1.1(c) below, such
Additional Recombinant Base Level Product Volume shall consist
of such IUs of Recombinant Hemophilia Product or rAHF-PFM as
Purchaser shall determine, in its sole discretion.
2. Section 5 Minimum Supply/Purchase Commitments is hereby amended to
(a) delete and restate Paragraphs 5.1 Recombinant Hemophilia Product
Minimum Supply/Purchase Commitments and 5.7 Purchase Commitment, as
follows and (b) to add new paragraph 5.9 as follows:
"5.1 Recombinant Hemophilia Product and rAHF-PFM Minimum
Supply/Purchase Commitments.For each year this Agreement
remains in effect, Baxter will supply Purchaser, and Purchaser
will purchase from Baxter, the annual Base Level Product
Volumes of Recombinant Hemophilia Product and rAHF-PFM set
forth in Schedule A-2. At the end of any year that this
Agreement is in effect, if Purchaser' purchases have not met
such minimum purchase thresholds, Baxter shall provide
Purchaser with written notice of the unit amount of the
shortfall. At Purchaser's request, Baxter shall provide
Purchaser with reasonable documentation showing any such
shortfall. Purchaser shall have [*] days from receipt
of such notice to make such purchases of Recombinant
Hemophilia Product and/or rAHF-PFM necessary to meet the
minimum unit purchase
Page 1 of 7
requirements. In the event Purchaser breaches this Agreement
by failing to satisfy their unit purchase commitments for
Recombinant Hemophilia Product and/or rAHF-PFM, as set forth
under this Section 5.1, unless such failure is due to Xxxxxx'x
failure to supply product or such failure is due to a force
majeure event, then Purchaser shall pay to Baxter an amount
equal to [*] of the then applicable invoice price for the
Therapeutic Products involved as liquidated damages, which
figure shall include both incidental and consequential
damages. In the event Baxter fails to make delivery or
repudiates or Purchaser rightfully reject or justifiably
revoke acceptance, then with respect to the Therapeutic
Products involved, Baxter shall either (i) promptly offer
substitute therapeutics (recombinant derived product for
Recombinant Hemophilia Product or rAHF-PFM, plasma derived
product for Plasma Based Hemophilia Products), as an
accommodation, or (ii) Baxter shall pay to Purchaser an amount
equal to [*] of the then applicable invoice price for the
Therapeutic Products involved as liquidated damages, which
figure shall include both incidental and consequential
damages. Baxter shall in each quarter tender delivery and
Purchaser will purchase at least [*] of the then applicable
Quarterly Base Level Product Volume of Recombinant Hemophilia
Product and rAHF-PFM for such quarter and shall tender
delivery of the full amount by the end of the calendar year.
"5.1.1 Additional Recombinant Base Level Product Volumes Minimum
Supply/Purchase Commitment.
"a. In addition to the annual Base Level Product Volumes of
rAHF-PFM described in Paragraph 5.1, in calendar year
2004, Baxter will supply to Purchaser and Purchaser will
purchase from Baxter [*] of the Additional Recombinant
Base Level Product Volume. Purchaser will designate a
quantity up to [*] of the Additional Recombinant Base
Level Product Volumes as rAHF-PFM. The balance of said
[*], if any, shall be Recombinant Hemophilia Product.
Designation of the number of IUs of the Additional
Recombinant Base Level Product Volume that shall be
Recombinant Hemophilia Product and the number of IUs of
the Additional Recombinant Base Level Product Volume
that shall be rAHF-PFM for the period of July 1, 2004
through September 30, 2004 will be made on or before
[*]. Designation of the number of IUs of the Additional
Recombinant Base Level Product Volume that shall be
Recombinant Hemophilia Product and the number of IUs of
the Additional Recombinant Base Level Product Volume
that shall be rAHF-PFM for the period of October 1, 2004
through December 31, 2004 will be made on or before [*].
"b. In calendar year 2005, Baxter will supply to Purchaser
and Purchaser will purchase from Baxter the Additional
Recombinant Base Level Product Volume set forth in
Schedule A-2. No later than [*], Baxter will supply to
Purchaser and Purchaser will purchase from Baxter [*] of
the Additional Recombinant Base Level Product Volume.
Purchaser will designate a quantity up to [*] of the
Additional Recombinant Base Level Product Volume as
rAHF-PFM. The balance of said [*], if any, shall be
Recombinant Hemophilia Product. Designation of the
number of IUs of the Additional Recombinant Base Level
Product Volume that shall be Recombinant Hemophilia
Product and the number of IUs that shall be rAHF-PFM for
the period of January 1, 2005 through March 31, 2005
will be made on or before [*]. Designation of the number
of IUs of the Additional Recombinant Base Level Product
Volume that shall be Recombinant Hemophilia Product and
the number of IUs that shall be rAHF-PFM for the period
of April 1, 2005 through June 30, 2005 will be made on
or before [*].
Page 2 of 7
"As to the remaining [*] of Additional Recombinant Base
Level Product Volume, no later than [*], Baxter will
supply to Purchaser and Purchaser will purchase from
Baxter [*] of the Additional Recombinant Base Level
Product Volume. Purchaser will designate a quantity up
to [*] of the Additional Recombinant Base Level Product
Volumes as rAHF-PFM. The balance of said [*], if any,
shall be Recombinant Hemophilia Product. Designation of
the number of IUs of the Additional Recombinant Base
Level Product Volume that shall be Recombinant
Hemophilia Product and the number of IUs that shall be
rAHF-PFM for the period of July 1, 2005 through
September 30, 2005 will be made on or before [*].
Designation of the number of IUs of the Additional
Recombinant Base Level Product Volume that shall be
Recombinant Hemophilia Product and the number of IUs
that shall be rAHF-PFM for the period of October 1, 2005
through December 31, 2005 will be made on or before [*].
"c. If Purchaser fails to specify the Base Level Product
Volumes for Recombinant Hemophilia Product and rAHF-PFM
by the dates specified above, then Baxter will deliver
to Purchaser and Purchaser will purchase from Baxter the
Additional Recombinant Base Level Product Volume as
follows:
RECOMBINANT
HEMOPHILIA RAHF-PFM
DATE PRODUCT (IN IUS) (IN IUS)
---- ------------------ -----------
July 1, 2004 through September
30, 2004 [*] [*]
October 1, 2004 through
December 31, 2004 [*] [*]
January 1, 2005 through March
31, 2005 [*] [*]
April 1, 2005 through June 30,
2005 [*] [*]
July 1, 2005 through September
30, 2005 [*] [*]
October 1, 2005 through
December 31, 2005 [*] [*]
"Specification of respective quantities of Recombinant Hemophilia Product and
rAHF-PFM will be negotiated as set forth above. Pricing will be established at
the then current price as of [*] of each subsequent year for each therapy for
the quantity of that therapy for which Purchaser commit to purchase in each
year.
"5.7 Purchase Commitment.
Page 3 of 7
"a. As to Hemofil M AHF only, the Base Level Product Volume
is set forth in Schedule C-3. No later than [*] of each
subsequent year this Agreement is in effect, the Parties
will commence good-faith discussions between their
designees toward setting the Base Level Product Volume
for Hemofil M AHF.
"Should the Parties fail to reach an agreement as to the
Base Level Product Volume for Hemofil M AHF for any
period of time that this Agreement is in effect prior to
[*] of said year, the Parties agree that the Base Level
Product Volume for the previous year, as set forth in
Schedule C-2 (as then amended), shall be effective for
said year.
"b. As to Recombinant Hemophilia Product and/or rAHF-PFM
only, the Base Level Product Volumes are set forth in
Schedule A-2. Thereafter, no later than [*] of each
subsequent year this Agreement is in effect, the Base
Level Product Volume for Recombinant Hemophilia Product
and/or rAHF-PFM will be set pursuant to Paragraph 5.1.
"The Additional Recombinant Base Level Product Volume
for calendar year 2005 shall be designated as set forth
in Paragraph 5.1.1. Notwithstanding the foregoing,
should the Parties fail to reach an agreement as to the
Base Level Product Volume(s) for Recombinant Hemophilia
Product and/or rAHF-PFM for any additional period of
time that this Agreement remains in effect prior to [*]
of said year, the Parties agree that the Base Level
Product Volume(s) for the previous year, as set forth in
Schedule A-2 (as then amended), shall be effective for
said year.
5.9 Recombinant Hemophilia Product Pricing and Commitment.
Should Purchaser purchase recombinant from any Baxter
authorized distributor at a price lower than the price for
Recombinant Hemophilia Product set forth on Schedule C-3, then
Purchaser shall certify to Baxter in writing (i) the quantity
recombinant purchased, (ii) the price at which recombinant was
purchased, (iii) the date recombinant was delivered to
Purchaser, and (iv) the Baxter authorized distributor from
which recombinant was purchased. Upon receipt of such
certification, Baxter will credit the quantity of said
purchase to Purchaser's current year Base Level Product
Volume. If, at any time during the term of this Agreement,
Baxter discontinues its distribution of Recombinant Hemophilia
Product, Purchaser's purchase commitments for both Recombinant
Hemophilia Product and Additional Base Level Product Volume
under the Agreement [*].
3. Schedule A-1 is hereby deleted, and the Agreement is hereby amended
so that all references to such Schedule shall be to the new Schedule
A-2 of the Agreement attached hereto.
4. Schedule C-2 is hereby deleted, and the Agreement is hereby amended
so that all references to such Schedule shall be to the new Schedule
C-3 of the Agreement attached hereto.
5. The Parties agree that in consideration of this Fourth Amendment,
each Party expressly waives any claim of antecedent breach or claims
for monetary damages, liquidated or otherwise, arising out of the
other Party's breach of the Agreement.
6. This Fourth Amendment will be effective until the expiration of the
term of the Agreement (unless further amended in accordance with the
terms of the Agreement).
Page 4 of 7
7. In the event of any conflict between the Agreement and its
associated schedules and this Fourth Amendment and its associated
schedules, the provisions of this Fourth Amendment and its
associated schedules shall be controlling. Except as specifically
modified herein, the terms and conditions of the Agreement are
hereby affirmed, confirmed and ratified.
IN WITNESS WHEREOF, the Parties have caused this Fourth Amendment to be executed
by their duly authorized representatives:
PURCHASER: BAXTER:
Coram, Inc. Xxxxxx Healthcare Corporation
Through its BioScience business unit
Sales and Marketing North America region
By: /s/ XXXXX XXXXXX By: /s/ XXXXX X'XXXXXX
------------------------------ --------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X'Xxxxxx
Title: SRVP, Materials Management Title: VP/GM
Date: June 28, 2004 Date: 7/2/04
Page 5 of 7
SCHEDULE A-2
RECOMBINANT HEMOPHILIA PRODUCT
RECOMBINATE RAHF
BASE LEVEL PRODUCT VOLUMES
Year Base Level Volumes (In Units)
---- -----------------------------
2004 [*]
2005 [*]
ADVATE RAHF-PFM
BASE LEVEL PRODUCT VOLUMES
Year Base Level Volumes (In Units)
---- -----------------------------
2004 [*]
2005 [*]
ADDITIONAL RECOMBINANT
BASE LEVEL PRODUCT VOLUMES
Year Base Level Volumes (In Units)
---- -----------------------------
2004 [*]
2005 [*]
Page 6 of 7
SCHEDULE C-3
PRICES AND VOLUME COMMITMENTS
JANUARY 1, 2004 THROUGH DECEMBER 31, 2004
THERAPEUTIC PROTEIN LIST NUMBER PRICE/UNIT VOLUME COMMITMENT
------------------- ----------- ---------- -----------------
Factor VIII Hemofil** M AHF 060-792: 060-793: 060-795:
060-796 [*] [*]
JULY 1, 2004 THROUGH DECEMBER 31, 2004
NEW STOCKING VOLUME
THERAPEUTIC PROTEIN LIST NUMBER PRICE/UNIT ORDER COMMITMENT
------------------- ----------- ---------- ----- ----------
Factor VIII Recombinate** rAHF 060-351: 060-352: 060-353 [*] N/A [*]
Factor VIII ADVATE*** (rAHF-PFM). 060-110:060-111
060-112:060-113 [*] N/A [*]
FEIBA*** VH Anti-Inhibitor 922204 [*] N/A [*]
Coagulation Concentrate
Bebulin VH Factor IX Complex 924402 [*] N/A [*]
Proplex T Factor IX 060-739 [*] N/A [*]
EFFECTIVE JANUARY 1, 2005 THROUGH DECEMBER 31, 2005
NEW STOCKING VOLUME
THERAPEUTIC PROTEIN LIST NUMBER PRICE/UNIT ORDER COMMITMENT
------------------- ----------- ---------- ----- ----------
Factor VIII Recombinate** rAHF 060-351: 060-352: 060-353 [*] N/A [*]
060-110:060-111
Factor VIII ADVATE*** (rAHF-PFM). 060-112:060-113 [*] N/A [*]
Factor VIII Hemofil** M AHF 060-792:060-793:
060-795:060-796 [*] N/A [*]
FEIBA*** VH Anti-Inhibitor
Coagulation Concentrate 922204 [*] N/A [*]
Bebulin VH Factor IX Complex 924402 [*] N/A [*]
Proplex T Factor IX 060-739 [*] N/A [*]
**Hemofil, Proplex, Recombinate and ADVATE 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.
Page 7 of 7
