Medication Delivery Division Purchase Agreement

EX-10.118 12 d13234exv10w118.txt MEDICATION DELIVERY DIVISION PURCHASE AGREEMENT [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. EXHIBIT 10.118 [BAXTER LOGO] Medication Delivery Division Purchase Agreement Coram, Inc. October 15, 2003 Coram, Inc. Baxter Healthcare Corporation 1675 Broadway, Suite 900 William Graham Building 1-3S Denver, CO 80202 Route 120 and Wilson Road Account #: 34251865 Round Lake, IL 60073 Attention: Frank Geiger Attention: Ann Esser and Curaflex Health Services, Inc. 1675 Broadway, Suite 900 Denver, CO 80202 Hereinafter together referred to as "Coram" Hereinafter referred to as "Baxter" INTRODUCTION Coram and Baxter are entering into this Contract in good faith, expecting to be bound by it for the term stated below. Baxter agrees to supply Coram's Homecare Facilities ("Owned Facilities") with the Baxter products listed in Schedule A ("Products") and Baxter agrees to update Schedule A periodically as new Products are made available. Coram agrees to buy such quantities of these Products as determined by Coram in its sole discretion for its and its subsidiaries own use from Baxter subject to the following: 1. TERM OF PURCHASE AGREEMENT This Contract is for a term commencing fifteen (15) calendar days from the date on which Baxter signs this Contract ("Commencement Date") and ending on November 30, 2008. The "Anniversary Date" of this Contract shall be December 1. Should Owned Facilities choose to purchase Products through an authorized distributor, Owned Facilities acknowledge that distributors may require up to forty-five (45) additional calendar days to adjust the pricing in their billing system and to notify Owned Facilities of adjusted pricing. Owned Facilities understand that the prices a distributor bills Owned Facilities for Products are at the distributor's discretion. Purchases by Coram reported by authorized distributors will count, at the prices set forth in this Agreement, toward Coram's Requirements (as defined below). 2. SALE OF PRODUCTS TO FACILITIES Baxter shall make the products listed on the attached Schedule A (the "Products") available to Owned Facilities as indicated on the attached Exhibit B. Additional Owned Facilities in the United States may be added to Exhibit B upon written notice by Coram and with Baxter's consent, which consent shall not be unreasonably withheld. The effective date of pricing for new Facilities will be [*] days after Baxter consents to adding such Facility. 3. REQUIREMENTS Coram, on its behalf and on behalf of all its present and additional Owned Facilities listed and to be listed on Exhibit B, commits to purchase from Baxter during each Year of this Contract, the types of products listed on Schedule A with aggregate purchases in the following amounts (the "Minimum Committed Volume"): (a) [*] purchases of frozen products (b) [*] of Multi-Vitamin Requirements (measured by dollar amount of purchases) (c) [*] of Needleless Requirements (measured by dollar amount of purchases), and (d) [*] in Nutrition products. Confidential On each Anniversary Date Coram shall provide to Baxter a written summary of all purchases of products similar to the types of Products described in the Schedules purchased from other vendors during the year just ended in order for Baxter to determine compliance with the Minimum Committed Volume. Baxter shall keep such information confidential and shall use the information solely for the purpose of evaluating compliance under this Contract. For purposes of this Contract, "purchases" shall mean the net invoice price for each Product ordered and invoiced less any returns or credits. Should a shortfall in purchases occur due to a material reduction in the patient population at Coram's Owned Facilities other than as a result of a sale, divestiture or other transfer of Coram's business, or if a shortfall occurs due to a change in therapy, and (in either case) Coram demonstrates that competitive product was not purchased, Baxter shall reduce the volume commitment without penalty. Coram will provide information, reasonably satisfactory to Baxter, which clarifies the reduction in Coram's patient population. If the shortfall is caused by Baxter's inability to deliver, Baxter shall reduce the required number of units. 4. PRICING The prices which the Owned Facilities shall pay to Baxter for Products are those specified on the Net Price List attached as Schedule A ("Base Prices"). Prices on Schedule A shall become effective on the Commencement Date and shall expire November 30, 2004. If Coram does not purchase from Baxter (a) [*] of its Multi-Vitamin Requirements; (b) [*] of its Needleless Requirements; (c) at least [*] in Nutrition products (excluding Multi-Vitamins), then the price increase for the following twelve months shall be [*] for the product category not met. [*] The CPI-U percent used shall be the unadjusted percentage change for the previous twelve-month period (ending four months prior to the Anniversary Date) published in the Consumer Price Index for all Urban Consumers, by the U.S. Department of Labor, Bureau of Labor Statistics. 5. PRICING TIERS Baxter is pleased to offer the following Pricing Tiers to Coram for Vancocin and Rocephin. Baxter shall review Coram's purchases of Frozen Drug products every December 1 and June 1 of each year. Based upon Coram's purchases during the preceding six-month period, Coram's pricing shall be adjusted to the applicable tier for purchases during the next period to become effective on January 1 and July 1. VANCOCIN PRICING TIER

Initial pricing for Vancocin shall be at the Tier 2 level. ROCEPHIN PRICING TIER

Initial pricing for Rocephin shall be at the Tier 0 level. Confidential MULTI-VITAMIN PRICING TIER Baxter shall provide Infuvite Multi-Vitamin (2A9018) at [*] as long as Coram meets its Minimum Committed Volume as referenced in Paragraph 3. If Coram fails to comply with this portion of the Contract, the Infuvite Multi-Vitamin (2A9018) shall be adjusted to Base Price at [*] plus any applicable price increases under Paragraph 4 after the first twelve months of this Contract. 6. EQUIPMENT Baxter shall continue to provide to Owned Facilities the use of Freezers currently in place for the Owned Facilities use during the term of this Contract. Coram shall be required to execute and return the attached Schedule D to Baxter for any additional Freezers requested, and Baxter agrees to provide such Freezers. 7. PAYMENT TERMS Payment terms are [*] from invoice date for payments made by check, cash, or wire transfer. A service charge of 1-1/2% per month (or the highest amount allowed by law, if lower) shall be added to all amounts past due. 8. TERMS AND CONDITIONS The terms and conditions listed in the Baxter Terms and Conditions of Sale in the Baxter Medication Delivery Product Catalog in effect on the date of shipment apply to all purchases, except in the event of a conflict with the terms hereof, in which case the terms hereof shall govern and control. Baxter may discontinue any Product at anytime without further liability to Coram or its Owned Facilities. In the event of such discontinuation, the Minimum Committed Volume will be permanently reduced by the dollar amount of purchases of the discontinued product made by Coram in the twelve months prior to the discontinuation. 9. DISCLOSURES Any products and services not paid for by Coram and received by Coram from Baxter under this Contract, including the Equipment, are discounts. All discounts, rebates or other reductions in price received by Coram from Baxter under this Contract are "discounts or other reductions in price" to Coram under Section 1128b(b) (3) (A) of the Social Security Act [42 U.S.C. 1320a-7b (b) (3) (A)]. Coram and its Owned Facilities shall appropriately reflect such discounts, rebates or other reductions in price as required by that provision or regulations promulgated thereunder. 10. WAIVER A waiver of any of the provisions of this Contract shall not constitute a waiver of any other provision nor shall it constitute a continuing waiver. 11. ENTIRE AGREEMENT If Baxter and Coram are parties to any other agreements covering the same Products covered by this Contract, then, with regard to such Products, this Contract shall supersede such other agreements, except where Coram has an agreement which provides for the purchase of disposable products covered by this Contract in connection with Coram's use of non-disposable equipment supplied by Baxter or an affiliate thereof ("Equipment Agreement"). This exception applies only while such Equipment Agreement is in effect. 12. PROMOTIONS In the event that Baxter offers a product promotion that Coram may be eligible for, Coram gives Baxter permission to notify it of the promotion via facsimile, telephone, electronic mail, regular mail, or any other commercially reasonable method of providing such notifications. 13. CONFIDENTIALITY Baxter respects the confidentiality of contractual relationships. Except as provided in Paragraph 10, Coram agrees to respect this relationship by not disclosing any information regarding this Agreement to any other party without Baxter's prior written consent. If either Party is required by law to publicly disclose Confidential this Agreement, the Parties shall mutually agree upon a redacted version of the agreement that may be so disclosed. 14. ASSIGNMENT This Agreement is assignable only with the written consent of both parties, which shall not be unreasonably withheld. 15. MISCELLANEOUS Baxter agrees to indemnify and hold harmless Coram, its subsidiaries, affiliates, successors and permitted assigns and their directors, officers, employees and agents (the "Coram Indemnified Parties") from and against any and all liabilities, damages and claims (including, without limitation, expenses of litigation, investigations and attorneys' fees, settlements and damages) asserted by persons other than the Coram Indemnified Parties arising from or related to defects in materials and/or workmanship of, or failure to meet the specifications applicable to, the Products or Pumps, except to the extent such damages or injuries are caused by the negligent or wrongful acts or omissions of Coram. Coram agrees to indemnify and hold harmless Baxter, its subsidiaries, affiliates, successors and permitted assigns and their directors, officers, employees and agents (the "Baxter Indemnified Parties") from and against any and all liabilities, damages and claims (including, without limitation, expenses of litigation, investigations and attorneys' fees, settlements and damages) asserted by persons other than the Baxter Indemnified Parties arising from or related to Coram's selection, possession, operation and use of the Products or Pumps, except to the extent such damages or injuries are caused by the negligent or wrongful acts or omissions of Baxter. This Contract is not valid until signed by Baxter at its home office. No changes in this Contract, including any conflicting or additional terms contained in any purchase order or other document submitted by Coram, shall be valid unless approved in writing by Baxter at its home office. IN WITNESS WHEREOF, the undersigned duly authorized representatives of the parties have executed this Contract on the date below. CORAM, INC. BAXTER HEALTHCARE CORPORATION BY: /s/ Frank Geiger By: /s/ Heather Marcelain ------------------------- ------------------------------- NAME: Frank Geiger NAME: Heather Marcelain TITLE: Senior Vice President, MM TITLE: Sales Contract Administrator DATE: 12/23/2003 DATE: 01-05-04 CURAFLEX HEALTH SERVICES, INC. BY: /s/ Frank Geiger ------------------------- NAME: Frank Geiger TITLE: Senior Vice President, MM DATE: 12/23/2003 Confidential EXHIBIT B BAXTER HEALTHCARE CORPORATION CONTRACT FACILITY LIST AND STATEMENT FACILITIES OWNED OR CONTROLLED BY PURCHASER * SEE ATTACHED MEMBER ROSTER STATEMENT Coram agrees that the Products purchased under the Contract between Coram and Baxter Healthcare Corporation are for the exclusive use of the above facilities and their patients only. Neither Coram, itself, nor through any affiliate or agent, shall export or otherwise transfer outside the United States Products acquired under this Agreement. Coram represents that it, and each of the above Facilities, have all required local, state and federal licensed applicable to the sale and use of the Products. CORAM, INC. Signature: /s/ Frank Geiger ---------------------- Printed Name: Frank Geiger TITLE: Senior Vice President, MM DATE: 12/23/2003 Confidential

EXHIBIT C NON-BAXTER BILLED DRUGS

Confidential CORAM, INC. BAXTER HEALTHCARE OCTOBER 1, 2003 DENVER, CO MEDICATION DELIVERY DIVISION 34251865 PURCHASE AGREEMENT

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U = Limited inventory available Page 23 of 23 Confidential [BAXTER LOGO] Schedule D Coram, Inc. Homecare Facility Freezer Agreement HEADQUARTERS: Coram, Inc. FACILITY SHIP TO: ADDRESS: 1675 Broadway Avenue, Suite 900 ADDRESS: Denver, CO 80202 ACCOUNT #: 34251865 ACCOUNT #: ATTENTION: Frank Geiger ATTENTION: Baxter and Coram, Inc. ("Coram") entered into a Purchase Agreement dated October 15, 2003 ("Purchase Agreement"), under which Coram on behalf of its Owned Facilities ("Facility") agreed to purchase products ("Products") from Baxter. This Freezer Agreement ("Schedule D") dated__, is between Baxter Healthcare Corporation, a Delaware Corporation, on behalf of itself and its affiliates, ("Baxter") and Coram on behalf of the Facility. Subject to the provisions of this Schedule D, Baxter shall provide to Facility the Freezer equipment listed ("Freezer" or "Freezers"). 1. DATES The Effective Date of this Agreement shall be fifteen (15) calendar days from the date that Baxter countersigns this Agreement ("Commencement Date"), and ending on September 30, 2006. The "Anniversary Date" of this Agreement shall be October 1. 2. REQUIREMENTS Baxter and Facility acknowledge that Facility must store the Product below certain temperature levels in order to maintain the Product's integrity, as required by the Food and Drug Administration ("FDA"). Based upon Coram's purchasing commitments in the Purchase Agreement, Baxter will provide Facility with the Freezer(s) listed in this Schedule D with the understanding that each Freezer will be used solely to store and maintain the Product in accordance with FDA requirements. Facility acknowledges the value of each Freezer as stated. Facility further acknowledges that this dollar value is a "discount or other reduction in price" on the Product under Section 1128B(b)(3)(A) of the Social Security Act (42 U.S.C. 1320-a-7b(b)(3)(A)). Facility shall appropriately reflect the discount or other reduction in price as required by that provision or regulations promulgated thereunder.

3. OWNERSHIP OF FREEZER Baxter is the owner of the Freezer and Facility will sign informational UCC filings if Baxter wishes to file such to give notice of Baxter's ownership. Upon expiration of this Agreement, title to the Freezer will transfer to Facility, and the UCC filings shall be terminated by Baxter and, if it fails to do so, Coram is authorized to do so. 4. TAXES AND OTHER CHARGES Facility agrees to pay all federal, state, and local taxes, license and registration fees, freight and transportation charges and all similar costs based on Facility's use of the Freezer, unless Facility is exempt from paying any or all taxes that apply to this Freezer, in which case Facility must provide Baxter with the proper exemption certificates prior to the Effective Date of this Agreement. Baxter will pay all property taxes based on the Freezer to the appropriate taxing authority and Facility will reimburse Baxter for all such payments promptly on request. 5. DISCLAIMER OF WARRANTIES Baxter warrants that the Freezer will conform to its published specifications and be in good working order when delivered. BAXTER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. BAXTER SHALL HAVE NO LIABILITY TO FACILITY FOR CONSEQUENTIAL Confidential PAGE 1 OF 2 INCIDENTAL OR SPECIAL DAMAGES IN CONNECTION WITH FACILITY'S USE OF THE FREEZER. Products distributed by Baxter are warranted by their manufacturer. 6. LOCATION AND USE OF FREEZER From the date of receipt of the Freezer, Facility agrees to use the Freezer only for the purposes and according to the instructions indicated on the labeling or otherwise included with the Freezer, and only for storage of Product. Facility shall not modify the Freezer without Baxter's prior written consent, and the Freezer shall remain personal property at all times, regardless of how it is attached or installed. Facility shall be responsible for all consequences of transfer or possession of the Freezer to any other party and for the continued performance of all its obligations under this Agreement after any such transfer. 7. LOSS OF FREEZER From the date of receipt of Freezer until title transfers to Facility pursuant to the terms of this Agreement, in the event of loss, theft, or destruction of the Freezer, Facility will be charged a replacement cost. 8. INSURANCE Facility agrees, at Facilities own cost and expense, to keep the Freezer fully insured against loss from the date of receipt of the Freezer until title transfers to Facility pursuant to the terms of this Agreement and to have Baxter named as loss payee on all such policies. 9. ASSIGNMENT Facility has no right to sell, transfer, assign or sublease the Freezer or this Agreement without Baxter's prior written consent, which shall not be unreasonably withheld. Baxter may sell, assign, encumber, or transfer this Agreement to another party without consent from Facility. 10. RESPONSIBILITY Facility acknowledges that the selection, possession, operation and use of the Freezer are solely the Facility's responsibility. Therefore, Facility shall be responsible for all liabilities, costs and expenses, including, but not limited to, loss of Product, lawsuits and claims for personal injury and property damage to the extent of, and arising out of, Facilities selection, possession, operation or use of the Freezer. Facility agrees to hold Baxter harmless against any and all damages or injury associated with the selection, possession, operation and use of the Freezer. 11. MISCELLANEOUS. This Agreement is the entire agreement between Baxter and Facility relating to the Freezer and, in the event of conflict, supersedes all prior agreements, all purchase orders, acknowledgment forms or other written documents submitted by Facility, and all invoices of Baxter related to the Freezer. It shall not be changed or amended except by written agreement executed by both parties and this Agreement shall not be valid or binding unless approved and accepted by Baxter at its home office. This Agreement shall be governed by and interpreted in accordance with Illinois law. IN WITNESS WHEREOF, the undersigned duly authorized representatives of the parties have executed this Agreement on the date below. CORAM, INC. BAXTER HEALTHCARE CORPORATION By: /s/ Frank Geiger By: /s/ Heather Marcelain ------------------------------ ------------------------------- Print Name: Frank Geiger Print Name: Heather Marcelain Title: Senior Vice President, MM Title: Sales Contract Administrator Date: 12/23/2003 Date: 01-05-04 PAGE 2 OF 2