<PAGE>
[*] CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
EXHIBIT 10.111
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, B, and C,
which exhibits 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.
(a) In the event Baxter fails to make
delivery, for any reason other than
a Force Majeure Event, as described in Paragraph 16, 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.
(b) In the event Baxter fails to make
delivery, or Customer rightfully
rejects or justifiably revokes acceptance and Customer must
purchase
substitute Therapeutics and Devices from third-party sources, then
the
volume of Therapeutics and Devices purchased from said
third-party
sources shall be credited towards the annual volume commitment
set
forth on Exhibit B.
7. FAILURE TO SATISFY VOLUME
COMMITMENT. In the event Customer breaches this
Agreement by failing to satisfy the volume
commitment set forth on Exhibit B,
then Customer shall pay to Baxter an amount
equal to [*] of the invoice amount
of the remaining Therapeutics and Devices
as liquidated damages, which figure
shall include incidental damages as well as
any other applicable damages.
8. SUBSTANTIAL MARKET CHANGE.
Customer and Baxter agree that in the event of
any industry-wide price change
("Substantial Market Change"), the Parties will
meet to discuss adjusting the price of the
Therapeutics and Devices affected by
said Substantial Market Change within
thirty (30) days following written notice
by either Party
9. COMPETITIVE PRICING. In the
event Customer in good faith determines at any
time during the term of this Agreement that
the prices, terms and conditions in
the aggregate offered by Baxter through
this Agreement are not competitive, upon
receiving written notice of such
determination from Customer, Baxter shall meet
and confer in good faith with Customer to
discuss competitiveness issues.
10. PRICING AND PAYMENT TERMS.
(a) Pricing shall be effective as
stated in Exhibit A. The minimum volume
commitments and respective effective dates are stated in Exhibit
B.
Effective July 1, 2005, Baxter may increase the prices specified
in
Exhibit B by up to [*] for the remaining term of the Agreement.
(b) Baxter will invoice Customer for
payment after the delivery of each
lot of Therapeutics and Devices. Payment of an invoice in full
within
[*] days of the invoice date will entitle Customer to a [*]
discount
off the invoice price. 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 thirty (30) 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.
11. PRICE INCENTIVE. A price incentive
of [*] in the form of a quarterly rebate
("Incentive") will be paid to Customer
should Customer request delivery of and
be invoiced for the minimum amounts of
Therapeutics and Devices set forth in
Schedule C. In the event Baxter is unable
to fulfill a lot delivery request of
Customer, and said inability impairs
Customer's ability to otherwise achieve a
minimum quarterly amount of Therapeutics
and Devices for any calendar quarter
this Agreement is in effect, Customer shall
be paid the Incentive for said
calendar quarter, except in the event of a
Force Majeure Event as described in
Paragraph 16.
2
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Each Incentive will be paid to Customer
based upon purchases of the Therapeutics
and Devices made by Customer directly from
Baxter or through its agent FFF
Enterprises, Inc., as set forth in Section
24 below. The Incentive shall be
calculated by the 15th business day of the
second month following the close of
the preceding quarter commencing on the
Effective Date of this Agreement. Each
earned Incentive shall be paid in the form
of a check payable to Customer, which
check shall be issued within [*] days of
the end of the calendar quarter. If at
the end of any calendar quarter Customer
has purchased less than the Incentive
amount set forth in Exhibit C for said
calendar quarter as evidenced by Baxter's
direct sales reports as well as the trace
sales reports, then Customer will not
be eligible for an Incentive for that
calendar quarter.
12. AUDIT. In the event Baxter has a
reasonable basis to question Customer's
compliance with Paragraphs 3, 7 and/or 20,
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, 7 and/or 20
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, 7 and/or 20 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, 7 and/or 20
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, 7
and/or 20 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 b
