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[*] CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
EXHIBIT 10.110
THERAPEUTICS AND DEVICES
PURCHASE AGREEMENT
RECITALS:
Baxter Healthcare Corporation, a Delaware
corporation, through its BioScience
business unit, with offices at One Baxter
Parkway, Deerfield, Illinois 60015
("Baxter") is extending to Coram, Inc.,
with offices at 1675 Broadway, #900,
Denver, CO 80202 ("Customer") the following
pricing for the therapeutics and
devices ("Therapeutics and Devices") set
forth in Exhibit A. This pricing is
being offered to Customer in accordance
with the terms and conditions of this
Therapeutics and Devices Purchase Agreement
as well as Exhibits A and B, which
exhibit will be incorporated herein and
made a part hereof (collectively, the
"Agreement"). Baxter and Customer are
collectively referred to herein as the
"Parties."
Now Therefore, It Is Hereby Agreed As
Follows:
1. CONDITIONS OF SALE. Baxter
agrees to sell the Therapeutics and Devices to
Customer and Customer agrees to purchase
the Therapeutics and Devices from
Baxter for resale, distribution or use
within the United States to patients for
whom Customer holds an active prescription
for the Therapeutics and Devices
and/or to whom Customer provides homecare
services.
2. LICENSES. Customer agrees to
maintain all licenses necessary for the
purchase and dispensing of the prescription
Therapeutics and Devices (e.g.,
state pharmacy license, physician's
license) and will forward a copy of such
license to Baxter upon request.
3. RESALE OF THERAPEUTICS AND
DEVICES. The Therapeutics and Devices 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. Notwithstanding this restriction,
Baxter hereby consents to Customer
reselling the Therapeutics and Devices
purchased under this Agreement to
physician practice wholesale accounts of
Customer, for patients whom said
physician practice wholesale accounts hold
an active prescription for the
Therapeutics and Devices. Purchaser will
obtain the written consent of Baxter
prior to reselling the Therapeutics and
Devices to any other wholesale accounts
of Customer. Sales or transfers of the
Therapeutics and Devices between Customer
and its affiliates providing homecare
services are permitted provided they
comply with the restrictions of this
Paragraph 3. "Affiliate" shall mean any
entity or person that controls, is
controlled by or is under common control with
a Party. For purposes of this definition,
"control" shall mean (a) in the case
of corporate or limited liability company
entities, the direct or indirect
ownership of at least thirty percent (30%)
of the stock, participating shares or
member interest entitled to vote, (b) in
the case of a partnership, the power
customarily held by a general partner
owning at least a 50% interest in the
Partnership, and (c) in the case of a
management contract the power to direct
the management of the other entity.
4. TERM. Unless otherwise
terminated as herein provided, the term of this
Agreement shall begin the date this
Agreement is countersigned by Baxter
("Effective Date") and end December 31,
2005, subject to the termination
provisions set forth below.
5. VOLUME COMMITMENT. The
minimum quantity of Therapeutics and Devices that
Customer agrees to purchase during the term
of this Agreement is set forth in
Exhibit B attached hereto. Customer and
Baxter agree that Baxter shall deliver
the Therapeutics and Devices in lots
subject to availability pursuant to
Customer's request and Baxter's acceptance.
Customer agrees to take delivery of
all lots not later than December 15, 2004
for the 2004 volume commitment and
December 15, 2005 for the 2005 volume
commitment.
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6. FAILURE TO DELIVER. In the
event Baxter fails to make delivery for any
reason other than a Force Majeure Event, as
described in Paragraph 12, or
Customer rightfully rejects or justifiably
revokes acceptance, then with respect
to the Therapeutics and Devices involved,
at Customer's option, Baxter shall
either (i) offer substitute Therapeutics
and Devices, or (ii) pay Customer an
amount equal to [*] of the then applicable
invoice price for the Therapeutics
and Devices involved as liquidated damages,
which figure shall include both
incidental and consequential damages.
7. PRICING AND PAYMENT
TERMS.
(a) The prices specified in Exhibit A
will be in effect as stated in
Exhibit A. Effective January 1, 2005, Baxter may increase the
prices
specified in Schedule A by up to [*] over the price for the
previous
year.
(b) Baxter will invoice Customer for
payment after the delivery of each
lot of Therapeutics and Devices. Invoices will be paid in full
not
later than [*] days after the invoice date. If unpaid after [*]
days
of the invoice date, the invoice will be considered past due and
will
bear a service charge of 1-1/2 percent per month, 18 percent per
year
(or the highest amount allowed by law, if lower). In the event
Customer is delinquent in payment of any amounts to Baxter, whether
or
not related to this Agreement, and such delinquency in payments
is
uncured for a period of [*] days following written notice by Baxter
to
Customer, Baxter may, at its option, declare all amounts owed to
it
under all agreements as due and payable immediately and terminate
this
Agreement.
8. AUDIT. In the event Baxter
has a reasonable basis to question Customer's
compliance with Paragraphs 3 and/or 16, of
this Agreement or the accuracy of any
representation, report or information
provided by Customer pursuant to this
Agreement, then Baxter may propose in
writing to Customer that an independent
accountant, reasonably acceptable to
Customer, perform an audit to determine
compliance with Paragraphs 3 and/or 16 or
the accuracy of the representation,
report or information. The accountant will
provide Customer with appropriate
assurances that all information it reviews
and receives pursuant to the audit
will be maintained in complete confidence
and not disclosed to Baxter or any
other person or entity without the express
written permission of Customer. Upon
receipt of such assurances, Customer will
permit the accountant to conduct an
audit of the pertinent records to assess,
as applicable, compliance with
Paragraphs 3 and/or 16 and/or the accuracy
of the representation, report or
information. At the conclusion of the
audit, the accountant will advise the
Parties whether Paragraphs 3 and/or 16 are
being complied with or the
representation, report or information was
accurate, and if not, what, in its
judgment, constitutes noncompliance or what
the representation, report or
information should have been. In the event
the accountant determines that
Customer is compliant with Paragraphs 3
and/or 16 and/or the original
representation, report or information was
accurate, then the entire cost of the
audit will be borne by Baxter. In the event
the accountant determines that
Customer is noncompliant with the Agreement
and/or the representation, report or
information was inaccurate, and such
inaccuracy was material to the performance
of the Agreement, then Customer will be
solely responsible for the cost of the
audit. The representation, report or
information that was the subject of the
audit will be revised and adjusted to
reflect the results of the audit as
necessary and the Parties will promptly
take action to reconcile their
performance under the Agreement with the
results of the audit. Anything to the
contrary in this section notwithstanding,
Baxter may invoke the audit protection
provided by this section no more than once
each year during the term of this
Agreement.
9. 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.
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10. 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 this 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 Therapeutics and
Devices expiration dating on any
Therapeutic
