Exhibit 10.37
ADDENDUM AND AMENDMENT NO. 4 TO
DISTRIBUTION AND SERVICES AGREEMENT
This Addendum and Amendment No. 4 to Distribution and Services
Agreement is entered into as of this 1st day of January, 1998, by and between
Biogen, Inc., through its offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Biogen") and Nova Factor, Inc., with principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Nova Factor").
WHEREAS, Biogen has appointed Nova Factor as a preferred distributor of
Biogen's AVONEX-registered trademark- (Interferon Beta-1a) product under the
terms of a Distribution and Services Agreement between the parties, dated as
of November 1, 1995, as amended by Amendment No. 1 to Distribution and
Services Agreement, dated as of May 17, 1996, and as amended and supplemented
by Addendum and Amendment No. 2 to Distribution and Services Agreement, dated
as of May 21, 1997, and Addendum and Amendment No. 3 to Distribution and
Services Agreement, dated as of July 1, 1997, (the "Distribution Agreement");
WHEREAS, as additional services under the Distribution Agreement,
Biogen desires Nova Factor (i) to provide a reimbursement hotline to which
Biogen may refer those persons who contact Biogen's customer support line
with reimbursement-related questions; (ii) to contact for follow-up those
patients who are referred to Nova Factor for reimbursement-related assistance
or who are referred to Nova Factor under the * Program or referred to Nova
Factor by a Biogen customer support specialist, as contemplated under Section
4.1 of the Distribution Agreement, but who decide not to use Nova Factor's
home delivery services for delivery of AVONEX-registered trademark-, and
(iii) to provide administrative services in connection with Biogen's variable
cap program, and Nova Factor is willing to provide all such additional
services on the terms and conditions set forth in this Addendum;
WHEREAS, Biogen and Nova Factor also desire to amend the Distribution
Agreement to adjust * for services provided by Nova Factor under the
Distribution Agreement;
WHEREAS, to reflect the additional services to be provided by Nova
Factor and *, the parties desire to supplement and amend the Distribution
Agreement as set forth in this Addendum;
NOW THEREFORE, in consideration of the premises and mutual convenants
contained in this Agreement, the parties hereby agree as follows:
1. DEFINITIONS.
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The capitalized terms used in this Addendum that are defined in the
Distribution Agreement shall have the meanings assigned to such terms in
the Distribution Agreement.
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
In addition, the following terms as used in this Addendum shall have
the meanings set forth below:
1.1 "Additional Services" shall mean the services to be provided by
Nova Factor under this Addendum.
1.2 "Enrollment Form" shall have the meaning set forth in Section 3.1
of this Addendum.
1.3 "Hotline Customer" shall mean an end-user who is referred to Nova
Factor via the Reimbursement Hotline.
1.4 "Outcome Call" shall have the meaning set forth in Section 3.1 of
this Addendum.
1.5 "Reimbursement Hotline" shall mean telephone access to
reimbursement specialists at Nova Factor who are trained to answer
or find answers to reimbursement questions and problems related to
Product which such access is available through a telephone line at
Nova Factor dedicated to calls transferred from Biogen, all as
more fully described in Section 2.
1.6 "Triaged Customer" shall mean an end-user (other than a Hotline
Customer) who is referred to Nova Factor under the *
Program or referred to Nova Factor by a Biogen customer support
specialist, as contemplated by Section 4.1 of the Distribution
Agreement, but who decides not to use Nova Factor's home delivery
services for delivery of Product.
2. REIMBURSEMENT HOTLINE.
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2.1 Hotline Services. As additional services under the Distribution
Agreement, Nova Factor shall operate a Reimbursement Hotline
through which end-users, physicians, nurses, pharmacies, payors,
providers and others referred to Nova Factor by Biogen's customer
support specialists will be able to obtain assistance in answering
reimbursement-related questions and resolving reimbursement-
related issues and problems. Nova Factor shall make the
Reimbursement Hotline accessible as one of the connection options
available through the Nova Factor telephone line dedicated to
calls transferred from Biogen's customer support
specialists. Services to be provided by Nova Factor as part of
the Reimbursement Hotline shall include, but shall not be limited
to, using reasonable efforts *
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
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* If an end-user or other person referred to Nova Factor on the
Reimbursement Hotline has any questions related to Medicare
coverage for Product, Nova Factor shall, unless otherwise
specified by Biogen, transfer the person to the third party
service provider designated by Biogen to provide further
assistance on Medicare issues.
2.2 Delivery Options. In presenting the delivery options available
to an end-user referred to Nova Factor via the Reimbursement
Hotline, Nova Factor shall follow a script which accurately
describes all potential methods of delivery available to the
end-user and which is in a form mutually agreeable to Nova Factor
and Biogen. If the end-user decides not to use Nova Factor's home
delivery services for delivery of Product, Nova Factor shall use
reasonable efforts to obtain the name, telephone number and fax
number of the desired dispensing pharmacy, and shall provide to
the dispensing pharmacy, by telephone or fax, all of the
information in Nova Factor's possession regarding the end-user.
2.3 Staffing. Nova Factor shall use qualified and properly trained
reimbursement specialists to answer calls on the Reimbursement
Hotline. The number of reimbursement specialists made available by
Nova Factor to answer calls on the Reimbursement Hotline shall be
determined by the volume of calls, and shall be that number which
is sufficient to ensure a high level of customer service and
satisfaction. If Biogen believes that the number of reimbursement
specialists made available by Nova Factor to answer calls on the
Reimbursement Hotline is not sufficient to ensure a high level of
customer service and satisfaction, Biogen shall notify Nova Factor
and the parties shall meet to determine what corrective actions
Nova Factor shall take.
2.4 Direct Delivery Customers. Nothing in this Addendum or in the
operation of the Reimbursement Hotline shall be deemed to limit in
any way the obligation of Nova Factor to provide reimbursement-
related services under the terms of Section 5 of the Distribution
Agreement to those end-users who order Product from Nova Factor.
Services provided by Nova Factor to end-users under Section 5 of
the Distribution Agreement will not be considered Reimbursement
Hotline services for purposes of Section 7 of this Addendum.
2.5 Customer Satisfaction Survey. At Biogen's request from time to
time, Nova Factor shall, at no additional cost to Biogen, send
customer satisfaction surveys to Hotline Customers in a form
mutually agreed upon by the parties. The completed surveys shall
be sent to Biogen.
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
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2.6 Reliance on Payor Information. Nova Factor shall have no
liability for relying upon information provided by third party
payors concerning coverage in the event that such information
shall subsequently prove to be incorrect, and Nova Factor may
include a disclaimer to that effect in any communication with
end-users or others regarding coverage by third party payors.
3. *
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
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4. *
5. DATA AND REPORTS.
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In addition to the other information to be maintained in the Database
under the Distribution Agreement, Nova Factor shall maintain in the
Database the information specified in Schedule B to this Addendum
regarding (i) calls to Hotline Customers and calls to Triaged Customers,
(ii) calls received on the Reimbursement Hotline, and (iii) end-users
transferred to the VCAP Administrator for assessment of eligibility under
the Variable Cap Program. In addition to other reports to be generated by
Nova Factor under the Distribution Agreement, Nova Factor shall generate
from the Database monthly and weekly reports related to the Additional
Services, as specified in Schedule B to this Addendum. The information
collected by Nova Factor and maintained in the Database under this
Section shall be treated by Nova Factor as the confidential and exclusive
property of Biogen.
6. SCHEDULE E ADJUSTMENT.
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To accurately reflect the value of services provided to Biogen by Nova
Factor under the Distribution Agreement, the parties have agreed to amend
the *
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
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*
7. PAYMENT.
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7.1. Fees. In consideration of the Additional Services rendered by
Nova Factor under this Addendum, Biogen shall pay to Nova Factor
the following fees: (i) $* for each * under Section 3 of this
Addendum, (ii) $* for each Hotline Customer to whom Nova Factor
provides assistance on the Reimbursement Hotline under Section 2
of this Addendum (which such payment shall include the costs of *
), and (iii) $* for each end-user as to
whom Nova Factor sends to the VCAP Administrator a completed
Enrollment Form. Nova Factor shall send an invoice to Biogen at
the end of each month with respect to Additional Services provided
by Nova Factor during such month. In its invoice, Nova Factor shall
specify separately the total number of Traiged Customers, Hotline
Customers and Variable Cap Program referrals with respect to whom
services are being billed. All amounts due from Biogen shall be
payable by check to Nova Factor in United States funds. Payment by
Biogen shall be due within * (*) days from the date of
invoice.
7.2. Other Services. Biogen acknowledges that it from time to time
requests Nova Factor to provide information, reports and services
which Nova Factor is not obligated to provide under the
Distribution Agreement, including but not limited to additional
data requests, additional operational requests and requests to
have Nova Factor personnel visit Biogen's facilities. In
consideration of Nova Factor's agreement to use reasonable efforts
to respond to Biogen's requests, Biogen shall pay to Nova Factor a
total of $* in 1998, payable in four quarterly installments
with each installment due on the fifteenth day of the quarter.
Nova Factor acknowledges that the first installment was paid by
Biogen prior to execution of this Addendum.
7.3 Other Costs. Except as otherwise set forth in this Agreement,
Nova Factor shall be responsible for all costs and expenses
associated with fulfilling its obligations under this Agreement.
8. TERMINATION.
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Biogen may terminate all or a portion of the Additional Services at any
time, upon forty-five (45) days' written notice to Nova Factor, without
terminating the entire Distribution
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities Exchange Commission.
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Agreement, provided that notwithstanding anything to the contrary
contained in this Agreement, Biogen may terminate further enrollment in
the VCAP Program at any time without prior notice to Nova Factor. After
receipt of the termination notice with respect to some or all of the
Additional Services and during the period thereafter ending three (3)
months after such termination, Nova Factor shall use reasonable efforts
to cooperate with Biogen in ensuring the smooth transition of the
terminated services to a distributor designated by Biogen.
9. DISTRIBUTION AGREEMENT.
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The Additional Services to be provided by Nova Factor under this
Addendum shall be deemed to be services provided and obligations assumed
by Nova Factor under the terms of the Distribution Agreement, and, except
as expressly set forth herein, the terms of the Distribution Agreement
shall apply with full force and effect to such obligations and the
performance of such services.
IN WITNESS WHEREOF, the parties have executed this Addendum on the date first
above written.
BIOGEN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Vice President - Sales, Marketing
and Business Development
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Director of National Accounts
NOVA FACTOR, INC.
By: /s/ ▇▇▇▇▇ Grow
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Title: President
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