First Amendment to Hemophilia Product Volume Commitment Agreement between Baxter Healthcare Corporation and Coram, Inc.

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Summary

This amendment updates the original agreement between Baxter Healthcare Corporation and Coram, Inc. regarding the purchase and supply of hemophilia products. The amendment revises the prices and volume commitments for specific therapeutic products for the year 2003, as detailed in the new attached schedule. Coram agrees to purchase specified quantities, maintain necessary licenses, and use the products only for approved purposes. The amendment remains effective through the end of 2003 unless further modified, and its terms take precedence over any conflicting terms in the original agreement.

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EX-10.80 3 d04489exv10w80.txt 1ST AMEND. TO HEMOPHILIA PRODUCT VOLUME COMMITMENT EXHIBIT 10.80 [BAXTER HEALTHCARE CORPORATION LOGO] FIRST AMENDMENT TO HEMOPHILIA PRODUCT VOLUME COMMITMENT AGREEMENT BETWEEN BAXTER 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 Baxter Healthcare Corporation, with offices at One Baxter Parkway, Deerfield, Illinois 60015 ("Baxter") and Coram, Inc., ("Coram"), with offices at 1675 Broadway, Ste. #900, Denver, CO 80202, 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 Page 1 [BAXTER HEALTHCARE CORPORATION LOGO] 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. BAXTER HEALTHCARE CORPORATION By: /s/ FRANK GEIGER By: /s/ PETER O'MALLEY ----------------------------------- ----------------------------- Signature Signature Frank Geiger Peter O'Malley ----------------------------------- ------------------------------ Print Print Its: Senior Vice President, MM Its: President ----------------------------------- ----------------------------- Date: 12/27/02 Date: 1/13/03 ----------------------------------- ----------------------------- Confidential Page 2 [BAXTER HEALTHCARE CORPORATION LOGO] SCHEDULE A Recombinant Hemophilia Product Base Level Product Volumes
Year Base Level Volume (In Units) - ---- ---------------------------- 2001 2002 2003 2004
Confidential Page 3 [BAXTER HEALTHCARE CORPORATION LOGO] 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 Baxter International, Inc. Hemofil and Proplex are registered with the US Patent and Trademark Office. ** FEIBA and Bebulin are trademarks of Baxter AG and are registered with the US Patent and Trademark Office. Confidential Page 4 [BAXTER HEALTHCARE CORPORATION LOGO] Coram, Inc. 1675 Broadway #900 Denver, CO 80202 Term of Agreement: 1/1/03 through 12/31/2003 Baxter 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. Baxter Healthcare Corporation 1675 Broadway #900 1627 Lake Cook Road Denver, CO 80202 Deerfield, Illinois 60015 By: /s/ FRANK GEIGER By: /s/ EDWARD LANGAN ------------------------------- ---------------------------- Name: Frank Geiger Name: Edward Langan ------------------------------- ---------------------------- Authorized Representative Authorized Representative Title: Senior Vice President, MM Titles V.P. Sales ------------------------------- ---------------------------- Date: 12/27/02 Date: 1/8/2003 ------------------------------- ---------------------------- [BAXTER 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 mL Vial NDC # 00944-2620-01 With Filter Set Annual Grams of any Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram assortment of NDC # 00944-2620-01 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 # 00944-2620-03 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 mL Vial NDC # 00944-2620-01 With Filter Set Annual Grams of Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram any assortment of NDC # 00944-2620-01 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 # 00944-2620-03 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 mL Vial NDC # 00944-2620-01 With Filter Set Annual Grams of Gammagard(R) S/D 060-385 2.5 gram in 50 mL Gram any assortment of NDC # 00944-2620-01 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 # 00944-2620-03 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 - -------------------------------------------------------------------------------------------------------
[BAXTER 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 ###-###-#### or faxed to ###-###-####. 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. Baxter's 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. Baxter's 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 BILL AND THE DRIVER SHOULD COUNTERSIGN THE DOCUMENT. If the damage is excessive do not accept the shipment. Mark on the carrier's freight bill, "Shipment refused, damaged. Return to shipping." Baxter's 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 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 Baxter 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 BAXTER'S 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: ***@*** 1627 Lake Cook Road Deerfleld, IL 60015 Ph# 847 ###-###-#### Fax# 847 ###-###-####