|
E XHIBIT
10.67
ADDENDUM No. 5
TO
AMENDED AND RESTATED
MASTER SERVICES AGREEMENT
THIS ADDENDUM No. 5 (the “
Addendum ”) to the AMENDED AND RESTATED MASTER
SERVICES AGREEMENT dated as of May 31, 2005, as amended
(collectively, the “Agreement”), by and between
EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.
(“ ESSDS ”) and ORPHAN MEDICAL, INC .
(“ Orphan Medical ”) and assigned to JAZZ
PHARMACEUTICALS, INC. (“ Jazz Pharmaceuticals
”), is entered into as of September 24, 2007 by and between
ESSDS and Jazz Pharmaceuticals. Capitalized terms not otherwise
defined herein shall have the same meanings as in the
Agreement.
RECITALS
WHEREAS , Jazz
Pharmaceuticals desires ESSDS to administer a Jazz co-payment
assistance pilot program for Xyrem ® (the “Copayment
Program”); and
WHEREAS , the parties
desire to amend the Agreement to add the Copayment Program services
as part of the Agreement.
NOW, THEREFORE , in
consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein and in the
Agreement, the parties hereto agree as follows:
AGREEMENT
1. Copayment Program
Services . ESSDS shall perform the CoPayment Program
services set forth in Exhibit A for Jazz Pharmaceuticals
(the “Copayment Program Services”).
2. Term and
Termination . The term of the Copayment Program shall
commence on [ * ] and shall continue through [ * ]. Jazz
Pharmaceuticals may terminate this Addendum at any time upon thirty
(30) days’ prior written notice to ESSDS. In addition,
if the Agreement is terminated pursuant to its termination
provisions stated therein, then this Addendum shall also be
terminated at such time. The Copayment Program Services will end
upon the dispensing of the last Xyrem prescription for which Jazz
Pharmaceuticals is providing copayment assistance, as described in
Exhibit A (the period following termination/expiration of
the Copayment Program and the aforementioned last date of dispense
shall be referred to herein as the “Copayment Program Run-Out
Period”).
3. Fees . Jazz
Pharmaceuticals shall pay ESSDS a non-refundable start-up fee of $[
* ] (“Start-Up Fee”). The Start-Up Fee is due and
payable to ESSDS by Jazz Pharmaceuticals no later than
December 7, 2007. In addition, Jazz Pharmaceuticals shall pay
ESSDS a Copayment Program management fee for each month (including
the months during the Copayment Program Run-Out Period) ESSDS
performs Copayment Program Services (each a “Monthly
Management Fee”), as follows: (i) $[ * ] for
the
[ * ] = Certain confidential
information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24B-2 of the Securities Exchange Act of
1934, as amended.
1
period of [ * ] through [ * ];
(ii) [ * ] for the period of [ * ] through [ * ]; and
(iii) $[ * ] for the period of [ * ], through [ * ]. Should
the parties determine that [ * ] of Copayment Program [ * ] is [ *
] the Copayment Program, Jazz Pharmaceuticals shall pay ESSDS a $[
* ] Monthly Management Fee for that [ * ]. Each Monthly Management
Fee shall be paid by Jazz Pharmaceuticals within thirty
(30) days following receipt of ESSDS’ invoice pertaining
thereto. Late payments will be subject to interest at the rate
specified in the Agreement. The Start-Up Fee and the Monthly
Management Fee constitute full and complete payment for performance
of the Copayment Program Services under this Addendum, other than
the actual Jazz Copayment Amounts to be paid pursuant to
Section 4 hereof. If Jazz Pharmaceuticals remains materially
delinquent on any undisputed fees owed hereunder, including, but
not limited to, payment of the Copayment Amounts, for a period of [
* ] following receipt of written notice of same, then ESSDS shall
have the right to suspend services until full payment of such fees
is made. Jazz Pharmaceuticals agrees that: (1) the Start-Up
Fee and the Monthly Management Fee for the Copayment Program
Services constitutes compensation for bona fide services;
(2) the Copayment Program is not intended to diminish the
objectivity or professional judgment of ESSDS; (3) the
Copayment Program does not involve the counseling or promotion of
any off-label use of Jazz Pharmaceutical products; (4) the
Start-Up Fee and the Monthly Management Fee are not intended in any
way as remuneration for referrals or for other business generated;
and (5) the Start-Up Fee and the Monthly Management Fee
represent fair market value for the Copayment Program Services
based on arms-length negotiations. The parties acknowledge that the
Start-Up Fee and the Monthly Management Fee are not intended in any
way as a payment related to drug formulary or drug formulary
activities and have not been negotiated or discussed between the
parties in connection with any such drug formulary or formulary
activities.
4. Copayment
Amounts . In accordance with Exhibit A attached
hereto, Jazz Pharmaceuticals shall be responsible for portions of
the copayment or coinsurance obligations of patients properly
enrolled in the Copayment Program (the “Jazz Copayment
Amounts”). Jazz Pharmaceuticals shall pay ESSDS the Jazz
Copayment Amounts due within thirty (30) days of Jazz
Pharmaceuticals’ receipt of ESSDS’s invoice pertaining
thereto. Delinquent payments shall be subject to interest at the
rate specified in the Agreement.
5. Data .
Subject to the limitations set forth in this Section 5, ESSDS
shall provide monthly data reports to Jazz Pharmaceuticals relating
to the Copayment Program in accordance with Exhibit B
attached hereto. Such reports shall be delivered in accordance with
a mutually agreed upon timeframe and format. The parties intend
that all reports and other data provided by ESSDS to Jazz
Pharmaceuticals pursuant to this Addendum will be in accordance
with HIPAA and all other applicable federal or state laws
pertaining to patient confidentiality (collectively, the
“Privacy Laws”). Accordingly, notwithstanding anything
to the contrary herein, except as otherwise permitted by applicable
law or pursuant to a valid HIPAA authorization on file at ESSDS,
ESSDS will not disclose or report any data fields that are
prohibited under the HIPAA de-identification safe harbor as
described in 45 C.F.R. 164.514(b)(2), and Jazz Pharmaceuticals
agrees not to use, either directly or indirectly, any such
information to
[ * ] = Certain confidential
information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24B-2 of the Securities Exchange Act of
1934, as amended.
2
attempt to identify any patient who may
be the subject of such information, unless such information was
disclosed by ESSDS pursuant to a valid HIPAA authorization. To the
extent ESSDS is providing dates in the data reports provided to
Jazz Pharmaceuticals, Jazz Pharmaceuticals represents and warrants
that such dates are necessary for payment purposes to ESSDS.
ESSDS’s failure to provide any of the requested data because
of restrictions under the Privacy Laws, or any laws applicable to
physician privacy, shall not be deemed a breach of this Addendum by
ESSDS; however, should the data provided by ESSDS be insufficient
to confirm Jazz Pharmaceuticals’ payment obligations, these
payment obligations will be excused without penalty until otherwise
confirmed to Jazz Pharmaceuticals’ reasonable
satisfaction.
6. Audit Rights
. Jazz Pharmaceuticals shall have the right to inspect ESSDS
records related to the Copayment Program Services at reasonable
times. Such records will be made available for copying during such
inspection. Jazz Pharmaceuticals will provide reasonable notice to
ESSDS of the date and time of any such inspection and ESSDS will
reasonably cooperate with such inspection. ESSDS will not permit
disclosure of Patient Identifiable Information to Jazz
Pharmaceuticals’ auditors.
7.
Miscellaneous .
| |
a. |
Jazz Pharmaceuticals is responsible for the structure and
design of the Copayment Program, as set forth in Exhibit A ,
including any supplemental materials that may be prepared or
approved by Jazz Pharmaceuticals for use in connection with the
Copayment Program, and Jazz Pharmaceuticals represents and warrants
that such structure and design complies with all applicable
law. |
| |
b. |
ESSDS agrees to perform the Copayment Program Services with due
care in accordance with the standards and practices which are
generally accepted in the industry and exercised by other persons
engaged in performing similar services in the local area and in
accordance with all applicable federal and state laws and
regulations. |
| |
c. |
To the extent there is a conflict between the terms and
conditions of this Addendum and the terms and conditions of the
Agreement, this Addendum shall control. |
| |
d. |
This Addendum may be executed in one or more counterpart
copies, each of which shall be deemed an original, and all of which
shall together be deemed to constitute one agreement. Facsimile
execution and delivery of this Addendum is legal, valid and binding
execution and delivery for all purposes. |
| |
e. |
Sections 1 (until expiration of the Copayment Program Run-Out
Period), 3, 4, 6 and 7 shall survive termination of this
Addendum. |
[ * ] = Certain confidential
information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24B-2 of the Securities Exchange Act of
1934, as amended.
3
IN WITNESS WHEREOF, the parties have
executed or caused this Addendum to be executed effective as of the
Addendum Effective Date.
<</tr>
|
|
|
|
|
|
|
|
|
| EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES,
INC. |
|
|
|
JAZZ PHARMACEUTICALS, INC. |
|
|
|
|