Exhibit 10.28
FIRST AMENDMENT TO
DISTRIBUTION AGREEMENT
August 2, 2005
THIS FIRST AMENDMENT TO DISTRIBUTION
AGREEMENT (“ Amendment ”) is made and entered
into as of the date first written above (the “ Effective
Date ”) by and between Priority Healthcare Corporation,
an Indiana corporation with its principal offices located at 250
Technology Park, Lake Mary, FL 32746 (“ Distributor
”), and CoTherix, Inc. a Delaware corporation with its
principal offices located at 5000 Shoreline Court, Suite 101, South
San Francisco, California 94080 (“ CTI ”) (each
a “ Party ” and collectively the “
Parties ”).
R E C I T A L
S:
A. The Parties entered into that
certain Distribution Agreement dated as of February 17, 2005
whereby CTI appointed Distributor as one of a limited number of
retail distributors of the Product, and Distributor accepted such
appointment (the “ Distribution Agreement
”).
B. In addition to appointing
Distributor as a retail distributor of the Product, CTI now desires
to appoint Distributor as a wholesale distributor of the Product
and Distributor is willing to accept such appointment.
C. As a result of the appointment by
CTI of Distributor as a wholesale distributor, and
Distributor’s acceptance of such appointment, the Parties
desire to amend various provisions of the Distribution
Agreement.
D. Capitalized terms used herein
without definition having the meanings ascribed to such terms in
the Distribution Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing
and the mutual warranties, representations, covenants and
agreements contained in this Amendment, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. Section 2.6 (Product Delivery
Device) is hereby amended by adding the following new Section
2.6.6:
2.6.6 Distributor will sell Delivery
Devices to Wholesale Customers (as defined herein) if such Delivery
Devices are ordered by Wholesale Customers; provided, however, that
Distributor is not obligated to sell Delivery Devices to any
Wholesale Customer unless such Wholesale Customer agrees to
reimburse Distributor for the price of the Delivery Devices charged
by Distributor.
2. Section 2.7 (Wholesale Inquiries)
shall be deleted in its entirety and be reserved for future
use.
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3. Section 3.1 (Delivery and
Distribution-Related Services) shall be amended by adding the
following as new Section 3.1.5 and current Sections 3.1.5 (Coverage
Support) and 3.1.6 (Billing and Collection) will be renumbered as
Sections 3.1.6 and 3.1.7, respectively:
3.1.5 Wholesale Distribution
Services .
(a) For purposes of this Agreement,
“Wholesale Customers” are those health care facilities
that purchase Product directly for purposes of administering the
Product to a patient during an inpatient or outpatient admission
(e.g., a hospital).
(b) With respect to the appointment
by CTI of Distributor as a wholesale distributor of the Product,
Distributor agrees to the following terms and
conditions:
(i) Upon receipt of orders from
Wholesale Customers, Distributor shall be responsible for
distribution of Product directly to Wholesale Customers. Except as
otherwise set forth in Section 3.2, Distributor will not be
required to
