EXHIBIT 10.1
PURCHASE AGREEMENT
RECITALS:
▇▇▇▇▇▇ Healthcare Corporation, a Delaware corporation, through its
BioScience business unit, with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇") is extending to Coram, Inc., a Delaware corporation,
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer") the following
pricing for the therapeutics ("Therapeutics ") set forth in Exhibit A. This
pricing is being offered to Customer in accordance with the terms and conditions
of this Therapeutics Purchase Agreement as well as the Terms and Conditions set
forth in Exhibit B (collectively, the Therapeutics Purchase Agreement, Exhibit A
and Exhibit B are referred to herein as the "Agreement"). Baxter and Customer
are collectively referred to herein as the "Parties".
Baxter agrees to sell the Therapeutics to Customer and Customer agrees
to purchase the Therapeutics from Baxter for resale, distribution or use within
the United States, excluding commonwealths and possessions, to patients for whom
Customer holds an active prescription for the Therapeutics and/or to whom
Customer provides homecare 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 and devices or for export without the prior written consent of
Baxter.
Now Therefore, It Is Hereby Agreed As Follows:
A. TERM OF AGREEMENT
Unless otherwise terminated as herein provided, the term of this
Agreement shall be June 1, 2003 through December 31, 2003 ("Term of
Agreement").
B. DELIVERY
Freight terms are F.O.B. Customer's destination, Malvern, PA, freight
pre-paid. Under normal conditions, shipment will be made within ten
(10) business days of (i) June 2, 2003, and (ii) the date of Customer's
request, both as more fully set forth in Section C. Customer agrees
that all delivery dates specified in this Agreement are intended as
target dates that Baxter will attempt in good faith to meet. Baxter
may, however, attempt delivery either before or after the stated date
as long as the date of delivery is not unreasonably disproportionate to
the stated date. Seller shall invoice Customer for each lot as it is
shipped.
C. QUANTITY COMMITMENT
The quantity commitment of Therapeutics that Customer has agreed to
purchase is [ * ]. For the Term of Agreement, Customer
agrees to purchase and Baxter agrees to sell said quantity commitment
of Therapeutics, to be delivered as follows: (i) [ * ] on
or about June 2, 2003, and (ii) [ * ] as requested by Customer
(subject to availability) but in no event later than December 30, 2003.
D. FAILURE TO DELIVER
In the event Baxter fails to make delivery for any reason, other than
Customer's termination of this Agreement without cause or a force
majeure event (as described in Exhibit B), or Customer rightfully
rejects or justifiably revokes acceptance, then with respect to the
Therapeutic(s) involved, at Customer's option, Baxter shall either
deliver or redeliver such Therapeutic(s) or Baxter shall pay Customer
an amount equal to [ *
] as liquidated damages, which
figure shall include both incidental and consequential damages.
E. FAILURE TO SATISFY QUANTITY COMMITMENT
In the event Customer breaches this Agreement by failing to satisfy its
Therapeutics quantity commitment set forth in Section C, for any reason
other than ▇▇▇▇▇▇'▇ termination of this Agreement without cause or a
force majeure event (as described in Exhibit B) then Customer shall pay
to Baxter an amount equal to [ *
] as liquidated damages, which figure shall
include both incidental and consequential damages.
F. PRICING AND PAYMENT TERMS
(1) The pricing set forth in Exhibit A shall remain firm during the
term of this Agreement
(2) Payment terms are [ * ] 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
pursuant to this Agreement. In the event Customer is delinquent in
payment of any amounts due 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 in accordance with the provisions of Section H(1) below.
G. ADDITIONAL SUPPLY
If Customer's forecasted demand or subsequent request exceeds the
quantity commitment set forth in Section C, subject to the terms of
Section J and the paragraph entitled Force Majeure Event in Exhibit B,
Baxter will use reasonable efforts to provide available Therapeutics to
Customer to meet this excess forecasted demand or subsequent request in
a fair and reasonable manner. Baxter will inform Customer as to whether
it can fill the request for additional supply within seven (7) business
days after ▇▇▇▇▇▇'▇ receipt of a written request from Customer for
additional supply.
H. TERMINATION
(1) TERMINATION WITHOUT CAUSE. Either Party shall have the right to
terminate this Agreement upon thirty (30) 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
which ▇▇▇▇▇▇ ▇▇▇▇▇ prejudicial or injurious to the reputation of Baxter
and/or the Therapeutics, which breach or action remains uncured after
fifteen (15) days written notice by Baxter to Customer thereof, Baxter
shall have the right to terminate this Agreement upon five (5) days
prior written notice to Customer.
(2) ORDERS PLACED PRIOR TO TERMINATION. In the event Baxter terminates
this Agreement, at any time, with or without cause, under any
circumstances whatsoever, Baxter, at its option, may cancel all
unfilled orders of Customer for the Therapeutics outstanding as of the
date on which the termination notice is given or this Agreement is
automatically terminated.
(3) 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:
(A) Customer sells all or substantially all of its
business and/or assets to any entity; and/or
(B) Any entity 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 (i) the issued and outstanding shares of
voting securities or capital stock of Customer or
(ii) the equity interest of any other person or
entity which holds or controls any material part of
Customer's business and/or assets.
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(C) Notwithstanding the foregoing, for the purposes of
this Agreement, a "Change of Control" shall not
include any merger or other change of ownership of
Customer as a result of a Plan of Reorganization in
the Chapter 11 case of Customer and Coram Healthcare
Corporation currently pending in the United States
Bankruptcy Court for the District of Delaware (Case
No. 00-3299).
I. CONFIDENTIALITY
Neither Customer nor Baxter shall disclose the terms of this Agreement
to any other person or entity outside its organization and affiliates,
except to its business and legal advisors, 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.
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.
J. FORECAST
Within thirty (30) days prior to each succeeding calendar quarter,
Customer will provide Baxter with a written forecast of its anticipated
purchases of the Therapeutic for the next calendar quarter of this
Agreement. Baxter will use such forecast submitted by Customer in
planning, provided, however, that in no event will any such forecast
hereunder constitute an order, create any right or expectation in
Customer or be binding in any respect upon Baxter or Customer.
K. TRACE SALES REPORTS
On all purchases from Baxter, Customer agrees to maintain complete and
accurate records of the sales of all Baxter Therapeutics covered under
this Agreement. Customer agrees to provide monthly trace sales reports,
to include the following information:
o Aggregate, de-identified patient information
o City, state and zip code of the prescribing physician
o Number of units, unit of measure, Baxter item code or NDC number
and ship date
THE ABOVE INFORMATION MUST BE RECEIVED WITHIN THREE (3) 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:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Director of
▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ Operations
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: Coram Hemophilia Services
Ph# 847.948.6602 ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
Fax# ▇▇▇.▇▇▇.▇▇▇▇ 19355
Ph #
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
L. INSURANCE
Baxter shall secure and maintain insurance or self-insurance in any
combination at ▇▇▇▇▇▇'▇ sole discretion in the amounts and types listed
in this Section throughout the Term of Agreement at no expense to
Customer. All insurance required in this Section shall list Customer as
an additional insured. Underwriters shall endeavor to provide at least
thirty (30) days notice of cancellation or non-renewal; however,
failure to do so shall impose no penalty or obligation. Baxter shall
maintain, with any combination of primary and umbrella insurance,
commercial general liability insurance including Products/Completed
Operations, Blanket Contractual Liability, and Personal/Advertising not
less than [ * ].
Baxter shall maintain workers' compensation coverage and employer's
liability insurance covering Baxter and all of ▇▇▇▇▇▇'▇ employees who
enter Customer's premises for purposes of carrying out the transactions
contemplated under this Agreement, in amounts not less than [
* ]
3
[
*
]. Workers' compensation
coverage shall be in the form of a workers' compensation policy, and a
health benefits policy shall not be deemed to comply with the
requirements of this Section.
Baxter and Customer each agree to waive all right of subrogation
against the other, each other's agents, officers, employees, insurers
and representatives.
M. COMPLETE AGREEMENT
This Agreement contains the full and complete expression of the rights
and obligations of the Parties, and it shall supersede all other
written or oral communications heretofore made by the Parties related
to the subject matter hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives:
Coram, Inc. ▇▇▇▇▇▇ Healthcare Corporation
through its BioScience Division
Sales and Marketing North America
Region
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
---------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------
Authorized Representative Authorized Representative
Title: Senior Vice President, MM Title: President
------------------------------- --------------------------
Date: May 29, 2003 Date: May 29, 2003
-------------------------------- --------------------------
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EXHIBIT A
TO
PURCHASE AGREEMENT
THERAPEUTIC DESCRIPTION, PRICING AND QUANTITY COMMITMENT
FOR THE PERIOD JUNE 2, 2003 THROUGH DECEMBER 31, 2003
BALANCE OF
JUNE 2, 2003 2003
ALPHA(1) - PROTEINASE QUANTITY QUANTITY
INHIBITOR (HUMAN) ITEM DESCRIPTION PRICE/UNIT COMMITMENT COMMITMENT
--------------------- ---------------- ---------- ------------ ----------
Aralast 580100 25mL/0.5g vial [ * ]
NDC# - ▇▇▇▇▇-▇▇▇▇-▇ [ * ] [ * ]
Aralast 580200 50mL/1.0g vial [ * ] [ * ] [ * ]
NDC# - ▇▇▇▇▇-▇▇▇▇-▇
Aralast is a trademark of Alpha Therapeutic Corporation
5
EXHIBIT B
TO
PURCHASE AGREEMENT
TERMS AND CONDITIONS
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.
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 the Agreement notwithstanding any
conflicting or additional terms contained in any purchase order, unless
otherwise agreed to in writing by the Parties. Baxter cannot guarantee maximum
Therapeutic expiration dating on any Therapeutics upon delivery. Specific dating
needs may be discussed with Customer Service at time of order placement.
SHIPPING INFORMATION
Additional charges for emergency or overnight deliveries will be the
responsibility of Customer and will be added to the invoice. 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. ▇▇▇▇▇▇'▇ 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 ▇▇▇▇ AND THE DRIVER SHOULD COUNTERSIGN THE DOCUMENT. If the
damage is excessive do not accept the shipment. ▇▇▇▇ on the carrier's freight
▇▇▇▇, "Shipment refused, damaged. Return to shipper." ▇▇▇▇▇▇'▇ Customer Service
Department should be notified immediately at ▇-▇▇▇-▇▇▇-▇▇▇▇. 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 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.
FORCE MAJEURE EVENT
Each Party shall use commercially reasonable efforts to perform its obligations
under this Agreement, but shall not be liable for non-performance or delays
caused by a shortage of supply of raw materials, failure of supply,
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. The non-performing Party will be excused
from performance for the duration of such events, will promptly notify the other
Party of the reasons for nonperformance and will diligently and continuously
attempt to resume its performance. Customer agrees that in such events Baxter,
without liability may allocate Therapeutics amongst its Customers in a fair and
reasonable manner. ▇▇▇▇▇▇'▇ 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 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
adjustments in the supply of Therapeutics provided to Customer.
RETURN GOODS POLICY
Baxter can accept for credit only those Therapeutics that do not perform
satisfactorily under the specified condition, Therapeutics which may have been
damaged during transportation, or Therapeutics which Customer may have received
in error. Due to the biological nature of the Therapeutics and the government
regulations involved, return of the Therapeutics 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
▇▇▇▇▇▇ Healthcare Corporation and its affiliates warrant that the Therapeutics
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. Baxter and its affiliates further
represent and warrant that all Therapeutics delivered to Customer have been
manufactured, processed, packed, filled and finished in substantial conformance
with cGMPs as set forth in 21 C.F.R. Parts 210 and 211 and are fit for the
purpose and indications described on 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 ▇▇▇▇▇▇'▇ OPTION, TO REPAIR OR REPLACE THE THERAPEUTIC.
NEITHER BAXTER NOR ITS AFFILIATES SHALL BE LIABLE FOR PROXIMATE, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES.
OTHER DISCOUNTS
Customer acknowledges the dollar value of any Therapeutic 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 the Therapeutic covered in
this price list.
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