Exhibit 10.44
Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933.
The omitted portions have been filed separately with the Securities and
Exchange Commission.
HEMOPHILIA THERAPY PHARMACY MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into this th day of , 19 , by and between
TEXAS HEALTH PHARMACEUTICAL RESOURCES, a Tennessee partnership (hereinafter
referred to as "THPR") and CHILDREN'S MEDICAL CENTER OF DALLAS (hereinafter
referred to as "Company");
W I T N E S S E T H:
WHEREAS, Company is an eligible Covered Entity as defined herein, is
licensed to provide health care services under the laws of the State of Texas
and is engaged in the business of providing certain clotting factors,
therapies and services, commonly referred to as hemophilia therapy, to
hemophilia Patients of the Company, as defined herein (hereinafter referred
to as the "Hemophilia Therapy Business"); and
WHEREAS, Company has access to Public Health Service pricing,
and
WHEREAS, the Company desires to obtain from THPR certain services
necessary or desirable in the conduct of the Company's Hemophilia Therapy
Business, including but not limited to,
1
dispensing of hemophilia factor, billing and collection services, direct
patient consultations and patient monitoring, all upon the terms and subject
to the conditions hereinafter set forth;
WHEREAS, THPR has the capacity to dispense hemophilia factor to
Patients of the Company to provide homecare services and to provide
additional administrative assistance including, but not limited to, billing
and collection services.
NOW, THEREFORE, for and in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
I. Definitions. Defined terms used throughout this Agreement
shall have the meanings set out in Appendix A.
II. Services to be Provided by THPR. During the term of this
Agreement, THPR agrees to provide, or arrange for the provision of, the
following services to the Company:
A. Patient Instruction and Clinical Services. THPR agrees to
provide, or arrange for the provision of, clinical consultations
required by patients of the Company's Hemophilia Therapy Business,
said clinical consultations to include prescription consultation,
and the provision of
2
routine and emergency consultation to such patients.
B. Billing, Reimbursement, Collection and Financial Counseling
Services.
1. Services. In the name of and as directed by Company,
THPR shall provide billing, reimbursement, collection and
financial counseling services on behalf of the Company in
conducting its Hemophilia Therapy Business, including the
preparation, transmitting and monitoring of all bills to
patients of the Company's Hemophilia Therapy Business, or
third party payors; preparing requests or otherwise
assisting patients of the Company's Hemophilia Therapy
Business in seeking reimbursement from all third party
payors for the services provided to such patients by the
Company; assisting in collecting amounts due the Company
from patients or third parties; and counseling patients
regarding the options available to them in paying for the
clotting factor and related drugs ("Hemophilia Therapy
Goods"), and related services, provided to them by the
Company. Company shall establish patient charges for such
Hemophilia Therapy Goods and related services. Company
shall provide THPR with a fee schedule reflecting such
charges.
2. Clearance of Patients. Company understands and
3
agrees that it is Company's exclusive responsibility to
determine whether an individual is an Approved Patient of
the Company as defined herein. Prior to dispensing any
outpatient drugs, Company shall inform THPR whether the
individual is an Approved Patient of the Company. If an
individual is no longer an Approved Patient of the Company,
Company shall inform THPR, in writing, within 2 days of the
change in status. Company understands that THPR shall rely
upon Company's determination as to whether an individual is
an Approved Patient of the Company who is entitled to
receive outpatient drugs at Section 340B pricing under the
Public Health Services Act. The Company shall promptly
notify THPR as to any potential patient and shall obtain
such patient data as shall be specified by THPR. THPR
agrees to promptly investigate a potential patient's
insurance coverage and financial ability to pay and to
notify the Company as to whether said patient is approved
to purchase Hemophilia Therapy Goods, or related services,
from the Company. Company shall thereafter assist THPR in
obtaining all documentation necessary to file claims with
third party payors and forward same to THPR. THPR 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
4
incorrect.
3. Authorization. THPR shall xxxx for all Hemophilia
Therapy Goods as billing agent for Company. All sales of
Hemophilia Therapy Goods dispensed by THPR for Company
shall be invoiced by THPR in Company's name. Following each
sale and delivery of Hemophilia Therapy Goods by Company,
THPR shall cause a xxxx to be prepared and transmitted to
the patient, third party payor or other applicable entity
which has been identified by Company. Company hereby
engages THPR to serve as "Billing Agent" to xxxx, collect
and disburse fees resulting from claims for Hemophilia
Therapy Goods sold by Company hereunder and THPR accepts
such engagement. For this purpose, Company hereby
constitutes and appoints THPR as Company's agent and
attorney in fact with full power of sub-stitution or
revocation, and hereby grants to THPR the rights and powers
enumerated herein, for the purpose of taking any action or
executing any instrument which THPR may deem necessary or
advisable to accomplish the purposes set forth herein.
To the extent allowed by third party payors,
Company hereby authorizes THPR to use a stamp
replicating Company's signature, or the signature of an
5
individual authorized to act on behalf of Company, and
Company's provider number, for the limited purposes of
billing Company's patients, filing claims with the
applicable third party payors to effectuate payment for
Hemophilia Therapy Goods, and collecting and depositing
accounts receivable. Bills shall be on the appropriate
standardized form (i.e., 1500 claim form) or through
electronic filing if available.
4. Collection and Disbursement. THPR shall monitor and
coordinate collection of all monies due to the Company from
patients and/or third party payors for Hemophilia Therapy
Goods and related services. THPR shall deposit all Company
funds received by it into the bank account designated by
the Company. THPR shall not have authority to disburse
funds from said bank account. Collections of all accounts
are performed by THPR on behalf of the Company and THPR
shall not be responsible for any failure to collect such
accounts. THPR shall use reasonable efforts to collect said
accounts (but not greater than those efforts used in the
collection of its own accounts) but THPR shall not be
required to institute suit for collection or incur any
extraordinary expenses in attempting to collect these
receivables unless such action is approved by the Company
and the costs are paid by the Company.
6
5. THPR shall comply with the rules, regulations and
requirements of third party payors in seeking reimbursement
of behalf of the Company.
C. Accounting and Financial Reporting. THPR shall provide the
following accounting and financial reporting services required by
the Company in the conduct of its Hemophilia Therapy Business: (a)
monthly and annual financial statements consisting of income
statements, balance sheets, and Status Report of Collections, (b)
schedules of accounts receivable (after applying cash received to
appropriate invoices, applying credits to patient accounts and
applying write-offs and adjustments approved by the Company).
D. Audits. THPR and Company understand that they are subject to
audits (by the United States Department of Health and Human Services
("Department") and participating manufacturers) of records that
directly pertain to Company's compliance with the drug resale or
transfer prohibition and the prohibition against duplicate Medicaid
rebates and 340B discounts. THPR will assure that all pertinent
reimbursement accounts and dispensing records, maintained by THPR,
will be separate from THPR's own operations and will be accessible
to Company, the Department, and the manufacturer in the case of a
manufacturer audit.
7
However, THPR shall not make provision for any annual audit of the
Company, and such audit if desired by the Company shall be the
responsibility of the Company and shall be conducted by such
independent accounting firm as the Company may select. THPR agrees
to cooperate with the accounting firm in the conduct of the audit of
the Company or any other accounting procedure for which the
accounting firm may be engaged by the Company. Company shall make
available to THPR such information and documentation as may be
needed to enable THPR to prepare the financial reports specified
herein and meet the audit requirements established by the Office of
Drug Pricing.
E. Management Services and Marketing.
1. Responsibilities. Company hereby appoints THPR to manage
and supervise the operation of the Company's day-to-day
operations of its Hemophilia Therapy Business, and for this
purpose, Company delegates to THPR the authority to make,
subject to the terms hereof, such management decisions as
are necessary for the day-to-day operations of the
Company's Hemophilia Therapy Business. THPR accepts this
engagement and agrees to faithfully perform the duties and
responsibilities set out herein.
8
2. Personnel. THPR shall designate certain THPR personnel
to perform the management functions set out hereunder and
such THPR personnel shall supervise the operation of the
Company's Hemophilia Therapy Business.
All such employees shall remain employees of THPR and THPR
shall retain control and supervision of such employees.
F. Pharmacy Services.
1. Agency. THPR will act as the pharmacy agent of
Company for dispensing Hemophilia Therapy Goods sold by
Company to Approved Patients of the Company pursuant to a
prescription.
2. Purchasing and Shipment. Company will purchase
Hemophilia Therapy Goods and assume responsibility for
establishing its price, pursuant to any applicable consumer
protection laws and pursuant to the terms of the Public
Health Services grant. Company agrees to adhere to all
rules and regulations established by the PHS in connection
with its grant of federal funds giving rise to Company's
Covered Entity status. Company will order outpatient drugs
for Approved Patients of the Company from a participating
drug
9
manufacturer during the term of this Agreement and direct
that the Outpatient Drugs be billed in the name of Company
and delivered to THPR for storage and dispensing to
Approved Patients of the Company.
Notwithstanding any Contracted Pharmacy Service provided by
THPR, including inventory management, Company understands
and agrees that it is Company's responsibility to order a
sufficient quantity of Outpatient Drugs from a
participating manufacturer necessary to meet the
prescription needs of the Approved Patients of the Company.
Company understands and agrees that THPR is acting as a
warehouse for Outpatient Drugs ordered by Company until
such time as THPR receives a request from Company to
dispense outpatient drugs to an Approved Patient of the
Company and that Company retains legal title to such
outpatient drugs until the outpatient drugs have been
dispensed. Company will make timely payments for the
Hemophilia Therapy Goods delivered to THPR pursuant to
Company's order.
THPR will also monitor the receipt of Hemophilia
Therapy Goods, and report the quantities of Hemophilia
Therapy Goods received. THPR will compare all shipments
received to the orders and inform Company of
10
any discrepancy within five (5) business days of receipt.
3. Services. THPR will provide all Contract Pharmacy
Services for the Company. THPR will secure the
prescription, dispense the Hemophilia Therapy Goods,
maintain a summary of receiving and dispensing records,
provide drug utilization review, provide formulary
maintenance, provide patient profiles, and provide follow
up documentation as required by the Office of Drug
Pricing's Contract Pharmacy Services Guidelines.
4. Patient Choice. Company will inform its patients of his
or her freedom to choose a pharmacy provider on a form
substantially similar to Exhibit A of this Agreement. If
the patient does not elect to use the contracted services
of THPR, the patient may obtain the prescription from the
Company and then obtain the Hemophilia Therapy Goods from
the pharmacy of his or her choice. When a patient obtains
Hemophilia Therapy Goods from a retail pharmacy other than
THPR, the manufacturer is not required to offer Hemophilia
Therapy Goods at 340B pricing.
5. Pharmacy Records. THPR shall maintain such
pharmacy records as required by state and local
governmental entities. Such records shall be the
11
property of THPR; however, copies will be made available to
Company to the extent allowed by law.
G. Prohibition of Drug Diversion. THPR and Company agree that they
will not resell or transfer Hemophilia Therapy Goods purchased at
section 340B pricing to an individual who is not a Approved Patient
of Company. Company understands that it can be removed from the list
of covered entities because of its participation in drug diversion,
a 340B(a)(5) prohibition, and no longer be eligible for 340B
pricing. Company understands that Agreement is contingent upon it
maintaining its Covered Entity status and agrees to inform THPR (no
later than one (1) business day after becoming aware of same) of the
loss of its status as a Covered Entity.
1. Dispensing of Hemophilia Therapy Goods. THPR will
dispense Hemophilia Therapy Goods only in the
following circumstances:
a. Upon presentation of a prescription bearing
Company's name, the eligible patient's name, a
designation that the patient is an eligible
patient, and the signature of a legally qualified
health care provider affiliated with Company; or
b. Receipt of a prescription ordered by
12
telephone on behalf of an eligible patient by a
legally qualified health care provider affiliated
with Company who states that the prescription is
for an eligible patient. Company will furnish a
list to THPR of all such qualified health care
providers and will update the list of providers to
reflect any changes. If THPR is found to have
violated the drug diversion prohibition, THPR will
pay Company the amount of the discount in question
so that Company can reimburse the manufacturer.
2. Patient Eligibility.
a. Company and THPR will develop a system to
verify patient eligibility. As used in the context
of this Agreement, an individual is a "patient" of
Company (with the exception of State-operated or
funded AIDS drug purchasing assistance programs)
only if:
1. Company has established a
relationship with the individual, such
that Company maintains records of the
individual's health care; and
2. the individual receives health
care services from a health care
professional who is either employed by
Company or provides
13
health care under contractual or other
arrangements (e.g. referral for
consultation) such that responsibility
for the care provided remains with
Company; and
3. the individual receives a health care
service or range of services from Company
which is consistent with the service or
range of services for which grant funding
or Federally-qualified health center
look-alike status has been provided to
Company.
b. An individual is not a "patient" of Company for
purposes of 340B if the only health care service
received by the individual from Company is the
dispensing of a drug or drugs for subsequent
self-administration or administration in the home
setting.
c. An individual registered in a State-operated or
funded AIDS drug purchasing assistance program
receiving financial assistance under title XXVI of
the Public Health Services Act will be considered a
"patient" of Company for purposes of this
definition if so registered as eligible by the
State program.
14
H. Tracking Service. THPR, with the assistance of Company, will
establish and maintain a tracking system suitable to prevent diversion
of section 340B discounted drugs to individuals who are not Approved
Patients of the Company. For example, such a tracking system might
include quarterly sample comparisons of eligible patient prescriptions
to the dispensing records and a six (6) month comparison of 340B drug
purchasing and dispensing records as is routinely done in other
reconciliation procedures. Customary business records may be used for
this purpose.
Company will verify, using THPR's (readily retrievable)
customary business records, that a tracking system exists which will
ensure that any Hemophilia Therapy Goods purchased under the Veteran's
Health Care Act of 1992 are not diverted to individuals who are not
Approved Patients of Company. Such records may include: prescription
files, velocity reports, and records of ordering and receipt. These
records will be maintained for the period of time required by State law
and regulations.
Prior to THPR providing pharmacy services pursuant to this
Agreement, Company will have the opportunity, upon reasonable notice
and during business hours, to examine the tracking system. Company will
establish a process for a periodic random (sample) comparison of its
prescribing
15
records with THPR's dispensing records to detect potential
irregularities. THPR will permit Company or its duly authorized
representatives to have reasonable access to THPR's facilities and
records during the term of this Agreement in order to make periodic
checks regarding the efficacy of such tracking systems. THPR agrees to
make any and all adjustments to the tracking system which Company
advises are reasonably necessary to prevent diversion of the Hemophilia
Therapy Goods to individuals who are not Approved Patients of the
Company.
I. Handling and Labeling. THPR agrees that all Hemophilia Therapy Goods
provided by Company shall be labeled in accordance with applicable
Federal, State and local law and that said Hemophilia Therapy Goods
shall be stored, shipped and handled by THPR in accordance with
recognized professional standards for handling and storage of such
products and in accordance with Company's policies and procedures to
the extent that same do not contradict the requirements of Federal,
State and local law. As part of preparing Hemophilia Therapy Goods for
shipment, THPR shall pack the goods in cartons or other suitable
packaging with such cooling packs, insulation, or other packing
materials as necessary. All Hemophilia Therapy Goods shall be
delivered to Company's patients on behalf of Company, by Federal
Express or other acceptable courier, with the cost of said
16
delivery to be paid by THPR.
J. Other Services. Regardless of the fact that THPR has agreed in this
Agreement to provide services other than Contract Pharmacy Services to
Company, access to 340B pricing will always be restricted to only
Approved Patients of the Company.
III. Compensation. In exchange for the services provided by THPR under
Sections IIA through IIJ of this Agreement, the Company agrees to pay THPR a
monthly fee as set out on Exhibit B. Said fee shall be determined on a monthly
basis by THPR and THPR shall at the end of each calendar month during the term
of this Agreement submit invoices to the Company setting out the amounts due
THPR for said month. The invoices for THPR's services shall be due and payable
* (*) days from the receipt of same by the Company, except that the first
months invoice will be due in * (*) days. Both parties acknowledge and
agree that the fees established for the Contracted Pharmacy Services have been
set in advance, are consistent with fair market value derived in an arms-length
transaction, and have not been determined in a manner that takes into account
the volume or value of any referrals or business otherwise generated between the
parties.
IV. Company Costs. It is agreed and understood that during the term of
this Agreement, THPR shall be responsible for the
17
costs incurred in providing the services which it is obligated to provide
hereunder, and that THPR shall pay such costs out of its compensation received
under Section III. Notwithstanding the preceding provision, the Company shall be
responsible for the costs of salaries and fringe benefits for the Company's
employees, if any; cost of goods; outside auditor fees; interest expense; state
taxes; principal on Company loans; depreciation; and payroll taxes for its
employees, if any, and the cost of preparing the Company's Federal and State
Income tax returns. All such expenses shall be contracted for and in the name of
the Company, based solely upon the Company's credit, and THPR shall not be
liable to third party providers for the costs of such goods and services.
V. Subcontracting. The parties to this Agreement recognize that THPR
may provide to the Company certain of the goods and services which it is
obligated to provide under this Agreement by means of subcontracts with third
parties, provided however that the use of subcontractors shall not relieve THPR
of its obligations hereunder.
VI. Indemnity and Insurance. THPR and Company hereby agree that:
A. THPR shall assume responsibility for and shall indemnify and hold
Company harmless and defend Company from all losses (including claims
for injuries to employees of THPR or of Company), expenses, attorneys'
fees, damages,
18
claims and judgments awarded to third parties resulting solely from
the negligent acts or omissions or wrongful acts of THPR, its agents
or employees;
B. Company shall assume responsibility for and shall indemnify and hold
THPR harmless and defend THPR from all losses (including claims for
injuries to employees of THPR or of Company), expenses, attorneys'
fees, damages, claims and judgments awarded to third parties resulting
solely from the negligent acts or omissions or wrongful acts of
Company, its agents or employees.
The indemnities and assumptions of liabilities and obligations herein
provided for shall continue in full force and effect notwithstanding the
termination of this Agreement whether by expiration of time, by operation of law
or otherwise. Each party hereto agrees to reimburse the other party for its
attorneys fees incurred in enforcing the provisions of this Agreement. This
obligation shall only apply when the party seeking to recover attorneys fees has
obtained a final non-appealable judgment from a court of competent jurisdiction
holding that a breach of this Agreement has occurred and awarding dollar damages
as a result of said breach. THPR, during the term of this Agreement, will
provide through a related entity at its sole cost and expense, general public
liability, products liability and property damage insurance in limits of not
less than $1,000,000.00 per incident;
19
and $3,000,000.00 per annum aggregate. All policies insuring against liability
for bodily injury or death or damage to property shall include coverage for
malpractice if such exposure exists and shall insure THPR against the matters
covered by THPR's contractual duty to indemnify the Company set out hereinabove.
THPR will provide Company with certificates evidencing the insurance
required hereunder, and all such policies shall provide that notice of
cancellation or termination thereof shall be provided in advance to Company. In
the event of cancellation or termination of the coverage described herein, THPR
shall immediately obtain substitute or replacement coverage.
VII. Term. This Agreement shall be for a term beginning on the date of
the execution hereof and expiring on March 31, 1999, unless otherwise terminated
in accordance with this section. This Agreement shall automatically terminate
upon (a) THPR or the Company ceasing to exist or upon either party ceasing to be
licensed to sell Hemophilia Therapy Goods or upon either party permanently
ceasing to engage in the Hemophilia Therapy Business, (b) the mutual agreement
of the parties, (c) upon notice by either party hereto given twelve months prior
to the effective date of termination, (d) upon the insolvency or bankruptcy of
either party, the making by either party of an assignment for the benefit of
creditors, the consent by either party to the appointment of a trustee or
receiver, or the appointment without its consent, of a
20
trustee or receiver, for it or for a substantial part of its property, or (e)
the institution by or against either party of bankruptcy, reorganization,
arrangement or insolvency proceedings.
In addition, if either party hereto shall breach the terms of this Agreement,
the nonbreaching party may give written notice of the breach to the breaching
party, and if said breach is not cured within fourteen (14) business days
following the giving of said notice, this Agreement shall at the option of the
nonbreaching party be terminated. Notwithstanding the above, this Agreement
shall be terminated immediately in the event that Company loses its status as a
Covered Entity as defined herein, or if any federal or state law is enacted
which could make this Agreement impractical including, but not limited to, a law
which limits the Company's ability to xxxx third party payors in excess of the
Company's acquisition cost plus a dispensing fee for outpatient drugs purchased
under Section 340B of the Public Health Services Act.
VIII. Applicable Patients. This Agreement only applies to individuals
who are patients of the Company and who are covered under the Chronically Ill
and Disabled Children's Services Program or Medicare or who pay with private
insurance or personal funds. This Agreement does not apply to patients who are
covered under the state Medicaid program.
IX. Force Majeure. The obligations of THPR hereunder shall
21
be excused during any period of delay caused by matters such as strikes, acts of
God, shortages of raw materials or power, governmental action or compliance with
governmental requirements, whether voluntary or pursuant to order, or any other
matter which is beyond the reasonable efforts of THPR to control.
X. Independent Contractor. It is agreed that THPR shall be an
independent contractor, and not an employee of the Company.
THPR shall have sole control and discretion in the manner of performing its
obligations under this Agreement and the Company shall not be responsible for
the acts of THPR while THPR is performing services under this Agreement. THPR is
solely responsible for its employees' salaries, federal and state income
withholding, social security tax withholding, workmen's compensation benefits
and fringe benefits.
XI. Severability. If any one or more of the provisions of this
Agreement shall for any reason be held illegal or invalid, such illegality or
invalidity shall not affect any other provision of this Agreement and this
Agreement shall be enforced as if such illegal or invalid provision had not been
contained herein.
XII. Confidentiality. Each party has developed or may during the term
hereof develop certain products, methods of doing business, customer lists and
other proprietary information which that party deems to be confidential and a
trade secret. In the
22
course of fulfilling their respective obligations hereunder, some of these
products, methods and other proprietary information will become known to the
other party hereto. Each party agrees that it will not duplicate, make use of,
or disclose, in any manner whatsoever, any information which is deemed to be
confidential by the other party, either during or after the term of this
Agreement, without the express prior written consent of the other party hereto.
In the event that any information deemed to be confidential by a party
is provided to the other party or its employees or agents in writing, the party
providing same shall xxxx the writing as "confidential." In the event that such
information is provided in non-written form such as orally, by audiotape,
videotape or computer software or disc, the party claiming such information to
be confidential shall furnish to the other party a written list containing a
brief description of such item and designating such item as confidential. Upon
termination of this Agreement, all copies of any information hereunder deemed,
or designated by a party as, confidential shall be returned to the party who
supplied the information, or who designated same as confidential.
Notwithstanding the preceding provision, the following types of information
provided by a party shall always be deemed confidential, whether or not so
designated: patient records; prescription files; lists of patient names,
addresses or phone
23
numbers; lists of referring practitioner names, addresses or phone numbers;
costs of goods and supplies; and financial records of the party.
It is recognized and acknowledged that damages caused by a party's
breach of this Section would be difficult to ascertain and would not adequately
compensate the other party for its losses. Therefore, both parties agree that
the party claiming a breach of this Section shall be entitled to injunctive
relief to restrain the commission or continued commission of said breach by
seeking such relief from a court of competent jurisdiction.
Notwithstanding the preceding paragraphs, this restriction shall not
apply (a) to any information which is not deemed confidential hereunder, or
which has not been designated as confidential in the manner specified herein,
(b) to any information which was known to a party prior to its disclosure by the
other party, (c) to any information which is or becomes public knowledge through
no failure of a party bound by this Agreement, (d) any information which is
independently developed by a party hereto, or (e) to the extent that such
restrictions conflict with the terms of the Company Agreement evidencing the
Company.
XIII. Service to Other Businesses. Company acknowledges that THPR
offers its services to other businesses and Company agrees that no provision
contained herein shall restrict or prohibit THPR from providing services to
others in addition to the Company as
24
long as the performance of said services does not interfere with the performance
of THPR's obligations hereunder.
XIV. Records. To the extent required by Section 1861(b)(1)(1) of the
Social Security Act, THPR shall, upon proper request, allow the United States
Department of Health and Human Services, the Comptroller General of the United
States and their duly authorized representatives, access to this Agreement and
to all books, documents and records necessary to verify the nature and extent of
the costs of the services provided by THPR under this Agreement at any time
during the term of this Agreement and for an additional period of four (4) years
following the last date services are furnished under this Agreement. Upon
request, a copy of this Agreement will be provided to a participating
manufacturer which sells covered outpatient drugs to Company. All confidential
proprietary information shall be deleted from the Agreement prior to disclosure
to a manufacturer.
XV. Nonassignability. The rights, duties and responsibilities of the
parties hereto are personal in nature and, except as stated herein, shall not be
assigned without the express written consent of the other party.
XVI. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of Tennessee and the laws of the State of Tennessee
shall govern the rights, duties,
25
liabilities and responsibilities created hereunder.
XVII. Compliance With The Law. THPR and Company will adhere to all
Federal, State, and local laws and requirements. Both THPR and the Company are
aware of the potential for civil or criminal penalties if Company and/or THPR
violate Federal or State law.
XVIII. Headings. All headings under herein are for each of reference
only and shall in no way be construed as interpreting, decreasing or enlarging
the provisions of this Agreement.
XIX. Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their successors,
administrators, trustees and assigns.
XX. Modification. This Agreement may be changed or modified only with
the written consent of both parties.
XXI. Notices. All notices, demands, requests, consents, reports,
approvals, or other communications which may be or are required to be given,
served, or sent pursuant to this Agreement shall be in writing and shall be
mailed by first class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram, addressed as set out below. Each
party may designate by notice in writing a new address to which any notice,
demand, request, consent, report, approval or
26
communication may thereafter be so given, served or sent. Each notice, demand,
request, consent, report, approval or communication which shall be mailed in the
manner described above, or which shall be delivered to a telegraph company,
shall be deemed sufficiently given, served, sent or received for all purposes at
such time as it is delivered to the addressee (with the return receipt or the
delivery receipt being deemed conclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
XXII. Licenses. THPR is a licensed pharmacy under the laws
of Texas. THPR agrees to maintain all licenses and permits
necessary to fulfill its obligations hereunder.
XXIII. Waivers. A waiver of the breach of any provision of
this Agreement shall not be deemed a waiver of any other breach of
the same or any other provision hereof.
XXIV. Provider. Company represents that it does not have access to
appropriate "in-house" pharmacy services as that term is used by the PHS in its
Contracted Pharmacy Service guidelines. Company understands and agrees that THPR
is the provider of Contracted Pharmacy Services to Approved Patients of the
Covered Entity during the term of this Agreement.
27
IN WITNESS WHEREOF, the undersigned parties hereto have caused this
Agreement to be executed as of the day and year first above written.
CHILDREN'S MEDICAL CENTER OF DALLAS
By: /s/ Xxxxxx Xxxx
--------------------------------
Title: President and CEO
--------------------------------
Address: Children's Memorial Center
--------------------------------
0000 Xxxxx Xxxxxx, Xxxxxx 00000
--------------------------------
TEXAS HEALTH PHARMACEUTICAL RESOURCES,
a general partnership
By: NOVA FACTOR, INC.,
a general partner
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: Chief Executive Officer
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Address: 0000 Xxxxxxx Xxxxxxx #000
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Xxxxxxx, XX 00000
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APPENDIX A
DEFINITIONS
The following terms as used in the Hemophilia Therapy Pharmacy
Management Agreement shall have the meanings set forth in this Appendix A:
1. "Covered Entity" shall mean a comprehensive hemophilia
diagnostic treatment center receiving a grant under Section
501(a)(2) of the Social Security Act.
2. "Contract Pharmacy Services" shall mean those dispensing, home
care and administrative support services described in the
guidelines issued by PHS.
3. "CIDC" shall mean the Texas Chronically Ill and
Disabled Children's Services Program.
4. "Patients of the Company" shall mean those persons who are
receiving care from the Company other than those persons who
receive healthcare benefits from the state Medicaid program.
5. "Approved Patient of the Company" shall mean Patient of the
Company for whom the Company has elected to access the Section
340B pricing under the Public Health Services Act.
