SECOND AMENDED AND RESTATED JOINT VENTURE AGREEMENT
BY AND AMONG
UNITY HEALTH PLANS INSURANCE CORPORATION
BLUE CROSS & BLUE SHIELD UNITED OF WISCONSIN
UNITED WISCONSIN SERVICES, INC.
UNIVERSITY HEALTH CARE, INC.
UNIVERSITY COMMUNITY CLINICS, INC.
(F/K/A HEALTH PROFESSIONALS, INC.)
AND
HEALTH PROFESSIONALS OF WISCONSIN, INC.
SECOND AMENDED AND RESTATED JOINT VENTURE AGREEMENT
This SECOND AMENDED AND RESTATED JOINT VENTURE AGREEMENT ("Agreement") is
made and entered into as of September 30, 1999, to become effective on the
Effective Date (as defined in Section ARTICLE 9.2), by and among Unity Health
Plans Insurance Corporation, a stock insurance corporation organized under
Chapter 611 of the Wisconsin Statutes ("Unity"), Blue Cross & Blue Shield United
of Wisconsin, a Wisconsin insurance corporation ("Blue Cross"), United Wisconsin
Services, Inc., a Wisconsin business corporation ("UWS"), University Health
Care, Inc., a corporation organized under Chapter 181 of the Wisconsin Statutes
("UHC"), University Community Clinics, Inc. (f/k/a Health Professionals, Inc.),
a corporation organized under Chapter 181 of the Wisconsin Statutes ("UCC"), and
Health Professionals of Wisconsin, Inc., a Wisconsin business corporation
("HPW") (collectively, "Parties").
RECITALS
1. Blue Cross, UWS, UHC, UCC (then known as Health Professionals, Inc.),
U-CARE HMO, Inc., a Wisconsin health maintenance organization which has
subsequently dissolved, and HPW are parties to the Amended and Restated Joint
Venture Agreement dated as of October 31, 1994 ("Previous Agreement");
2. Simultaneous with Closing under the Previous Agreement, the transactions
contemplated in the Agreement of Merger and Joint Venture by and among UWS, UWS
Acquisition Corporation, Blue Cross, HMO-W Incorporated, a Wisconsin business
corporation, and HMO of Wisconsin Insurance Corporation, a Wisconsin health
maintenance organization ("HMOW") dated October 11, 1994 ("HMOW Joint Venture
Agreement"), also closed.
3. Pursuant to the Previous Agreement and the HMOW Joint Venture Agreement,
a single joint venture (the "Unity Joint Venture") was created between the
relevant parties to the Previous Agreement and the HMOW Joint Venture Agreement.
4. In 1995, HMOW changed its name to Unity Health Plans Insurance
Corporation, which is the operating vehicle of the Unity Joint Venture.
5. UHC has as its purpose to further the teaching, research and service
functions of the University of Wisconsin-Madison Medical School (the "Medical
School"), University of Wisconsin Hospital and Clinics Authority ("UWHCA"), the
University of Wisconsin Medical Foundation, Inc. ("UWMF") and the Center for
Health Sciences at the University of Wisconsin-Madison, and is fulfilling that
purpose by providing opportunities for teaching, research and service by
entering this Agreement.
6. Blue Cross and UWS desire to maintain their managed care operation in
Southern Wisconsin, utilizing the provider relationships Unity and UHC have
established in the region.
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7. UHC, its affiliates and sponsors, intend to continue to expand and
operate its regional provider network.
8. The Parties wish to continue to coordinate the design and marketing of
Point of Service ("POS"), Health Maintenance Organization ("HMO"), and Third
Party Administration ("TPA") products and programs and such other products and
programs as the Parties may from time to time agree.
9. The Parties desire, effective upon the Effective Date, to amend and
restate the terms and conditions of the Joint Venture formed under the Previous
Agreement, upon the terms and conditions set forth in this Agreement and in the
documents to be executed and performed pursuant to this Agreement, a list of
which is attached hereto as Schedule 1 (collectively, "New Joint Venture
Documents").
10. The Parties believe that the continuation of the Joint Venture with
Community Health Systems, LLC, a Wisconsin limited liability company ("LLC"), is
in their best interests.
11. The Parties believe that entering into this Agreement and the New Joint
Venture Documents will better enable the Parties to satisfy their respective
objectives outlined above.
In consideration of the premises and the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
ARTICLE 1--CONTINUATION OF JOINT VENTURE
.1. JOINT VENTURE. The Parties are entering into a series of related
contracts with one another and with certain third parties in order to produce,
market, and administer managed care products which utilize a provider network.
The joint venture continued pursuant to this Agreement (the "Joint Venture")
will coordinate the design and marketing of one or more POS and HMO products and
programs, all of which may be fully insured or self-funded, a TPA program, and
such other products and programs as the parties may from time to time agree. The
Joint Venture became operational on November 1, 1994, when Closing occurred
under the Previous Agreement.
.2. AGENCY RELATIONSHIP. This Agreement shall not create any agency
relationship between the Parties other than those specifically enumerated herein
and in the other New Joint Venture Documents. The relationships between the
Parties are that of independent contractors in a cooperative arrangement. It is
not the intent of the Parties to create, nor should this Agreement be construed
to create, a partnership or an employment relationship between the Parties. This
Agreement creates no fiduciary relationship between the Parties.
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.3. RELATIONSHIP TO HMO OF WISCONSIN JOINT VENTURE. The transactions
contemplated in the HMOW Joint Venture Agreement closed ("HMOW Closing") on
November 1, 1994, thereby creating the joint venture, as defined therein ("HMOW
Joint Venture"). Accordingly, pursuant to the Previous Agreement and the HMOW
Joint Venture Agreement, the business of the Joint Venture and the business of
the HMOW Joint Venture were combined to create a single joint venture, which is
referred to as the "Unity Joint Venture"
ARTICLE 2--GOVERNANCE
.1. GOVERNING BOARD.
The Unity Joint Venture shall be managed by a governing board ("Governing
Board") which shall consist of the members appointed as follows:
A. Unless and until either the HMOW Joint Venture terminates pursuant to
[SECTION OF THE HMOW JOINT VENTURE AGREEMENT OR THE SERVICE AGREEMENT
BETWEEN UWS AND LLC DATED NOVEMBER 1, 1994 (THE "HMOW SERVICE AGREEMENT"),]
terminates:
UWS four members
LLC four members
UHC four members
B. On and after the termination of either the HMOW Joint Venture
pursuant to [SECTION OF THE HMOW JOINT VENTURE AGREEMENT OR THE HMOW
SERVICE AGREEMENT]:
UWS five members
UHC five members
C. The Parties shall cause the Governing Board to meet at least once in
each fiscal quarter at the Unity Joint Venture's home office facility or
such other place as the Governing Board may from time to time agree. Any
individual member of the Governing Board shall have the power and authority,
upon three days written notice, to call a meeting of the Governing Board to
discuss and administer the business of the Unity Joint Venture. Members of
the Governing Board may participate in meetings either telephonically or in
person. The Unity Joint Venture shall not pay members of the Governing
Board.
D. A chair shall preside over each meeting of the Governing Board. The
chair shall be a member of the Governing Board and the entities entitled to
appoint members shall each have the power to appoint the chair for a one
year term on a rotating basis; provided, however, that the chair of the
Governing Board shall not be the then active chief executive officer of
Unity. In addition to the members appointed to the Governing Board as set
forth above, each entity that is entitled to appoint members of the
Governing Board shall have the right to invite up to two people (who may
differ from meeting to meeting) as non-participating
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invitees to attend any meeting of the Governing Board and its committees
("Non-Participating Invitees"). The Non-Participating Invitees shall have
the right to attend meetings of the Governing Board and of its committees,
but shall have no right or authority to participate in any meeting,
including, without limitation, the right to discuss or vote on any matter
brought before the Governing Board or any committee.
E. Meetings of the Governing Board and its committees shall be attended
only by (i) people who are actually appointed as members of the Governing
Board or the relevant committee (ii) the Non-Participating Invitees; and
(iii) any other person invited by the Governing Board or its committees in
accordance with the voting requirement set forth in Section ARTICLE 2.2. Any
person invited by the Governing Board or its committees to attend their
meetings shall attend only the portion of the meeting for which they were
invited, and shall be excused once the purpose of their attendance has been
satisfied; provided, however, that this sentence shall not apply to any
Non-Participating Invitee.
F. Each Non-Participating Invitee shall be deemed to owe to Unity the
same fiduciary duty of loyalty that is owed by the members of the Governing
Board. At the request of any entity that is entitled to appoint members to
the Governing Board, each Non-Participating Invitee shall execute and
deliver to Unity and the entity making the request an agreement confirming
that the Non-Participating Invitee owes such duty in a form attached as
Exhibit ARTICLE 2.1.F.
.2. VOTING REQUIREMENT. Except as set forth herein, the Governing Board
may not take any action without the approval of at least eight of its members
(five if the HMOW Joint Venture terminates), which shall include at least one
member elected by each entity appointing members to the Governing Board. Without
limiting its generality, the previous sentence shall apply to the appointment of
the CEO of Unity. Notwithstanding the first sentence of this Section, any eight
members of the Governing Board may remove the CEO of Unity, even if there is not
at least one member elected by each entity appointing members to the Governing
Board voting for such removal.
.3. DUTIES OF THE GOVERNING BOARD.
A. The Governing Board shall be responsible for the general management
of the Joint Venture. Notwithstanding the foregoing, the Underwriters (as
defined in Section ARTICLE 5.1) shall have the sole authority, without the
approval of the Governing Board, to establish rates and arrange reinsurance
for the Joint Venture business, consistent with the budget and business plan
approved by the Governing Board.
B. The Governing Board shall establish such books, records and accounts
for the Joint Venture as it deems reasonably necessary and allow each of the
Parties, upon request, to review such books, records and accounts. The
Governing Board shall maintain records of all of its meetings and actions
taken in a manner substantially similar to that which a Board of Directors
of a corporation organized under Chapter 180 of the Wisconsin Statutes
would maintain.
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.4. COMMITTEES. The Governing Board may establish such committees as it
may deem necessary or appropriate; provided, however, that any committee so
created must contain at least one member from each of the entities entitled to
appoint members to the Governing Board.
.5. BYLAWS. The Governing Board shall continue to be governed by its
bylaws as in existence on the date hereof, including any subsequent changes to
such bylaws that may be made in accordance with their terms.
ARTICLE 3--REPRESENTATIONS AND WARRANTIES
.1. THE UNIVERSITY AFFILIATED ENTITIES.
UHC, UCC, and HPW (collectively, "University Affiliated Entities") each
hereby represents and warrants to the UWS Entities as follows:
A. UHC is a corporation organized under Chapter 181 of the Wisconsin
Statutes and is duly organized, validly existing and in good standing.
U-Care was dissolved and wound up its affairs effective December 31, 1995.
UCC is a corporation organized under Chapter 181 of the Wisconsin Statutes
and is duly organized, validly existing and in good standing. HPW is a
corporation duly organized, validly existing, and in good standing under the
laws of Wisconsin.
B. Each of the University Affiliated Entities (a) is duly qualified as
a foreign corporation and in good standing under the laws of each
jurisdiction where the failure to qualify would have a material adverse
effect upon it; (b) has the requisite corporate power and authority and the
legal right to own, pledge and operate its properties, to lease the property
it operates under lease and to conduct its business as now conducted;
(c) has all necessary licenses, permits, consents or approvals from or by,
and has made all necessary filings with, and has given all necessary notices
to, all governmental authorities having jurisdiction, to the extent required
for such ownership, operation and conduct except where the failure to obtain
such licenses, permits, consents or approvals or to make such filings will
not have a material adverse effect upon it; (d) is in compliance with its
certificate or articles of incorporation and by-laws and all material
agreements to which it is a party or by which it is bound except where the
failure to comply will not have a material adverse effect upon it; (e) is in
compliance in all respects with all applicable provisions of law except
where the failure to comply will not have a material adverse effect upon it.
Other than UCC's ownership of HPW, the University Affiliated Entities have
no subsidiaries.
C. The execution, delivery and performance of this Agreement and all
documents to be executed and delivered by any of the University Affiliated
Entities hereunder, (a) are within their respective corporate power;
(b) have been duly authorized by all necessary or proper corporate and other
action, including the consent of shareholders, members, board of directors,
or Board of Regents where required; (c) are not in contravention of any
provision of their respective certificate or articles of incorporation or
by-laws; (d) do not violate any law or regulation, or any order or decree of
any court or governmental instrumentality applicable to
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it; and (e) do not conflict with or result in the breach of, or constitute
a default under, any indenture, mortgage, deed of trust, lease, agreement
or other instrument to which it is a party or by which it or any of its
property is bound, and the same do not require the consent or approval of
any governmental body, agency, authority or other entity other than those
that have been obtained. This Agreement has been duly executed and
delivered by each of the University Affiliated Entities and constitutes the
legal, valid and binding obligation of it, enforceable against it in
accordance with its terms except as such enforceability may be limited by
bankruptcy or similar laws affecting the enforceability of creditor's
rights generally and by general principles of equity.
D. Excluding any litigation threatened by any UWS Entity, none of the
University Affiliated Entities is a party to any litigation or
administrative proceeding, nor so far as is known by them is any litigation
or adverse administrative proceeding or hearing threatened against any
entity which in either case relates to the execution, delivery or
performance of this Agreement or the Joint Venture.
E. Between November 1, 1994 and the date hereof, UHC has invested
$19,738,298 in UCC and HPW for the sole purpose of enabling UCC and HPW to
expand and operate the regional provider network operated by UCC (the
$19,738,298 amount excludes (i) the proceeds of loans made under either the
Revolving Credit Agreement among Blue Cross, HPW, and UCC dated June 20,
1997 ("Revolving Credit Agreement") or the Term Loan Agreement between Blue
Cross and UHC dated June 20, 1997 ("Term Loan"), and (ii) any investment UHC
has made related to the transaction between Physicians Plus Medical Group
and UWMF).
F. UWHCA, UWMF (acting on behalf of the Medical School faculty), UCC,
and certain additional UHC subcontractors (collectively, the "University
Providers") are the only entities that are part of the University of
Wisconsin system that serve as providers or arrange for medical services on
behalf of Unity or in connection with Unity's business.
G. No information, exhibit or report, whether written or oral, furnished
by the University Affiliated Entities to the UWS Entities in connection with
the negotiation or execution of this Agreement contained any misstatement of
a material fact or omitted to state a material fact necessary to make the
statements contained therein not misleading as of the date when made.
.2. THE UWS ENTITIES.
Blue Cross and UWS (together, the "UWS Entities") hereby represent and
warrant to the University Affiliated Entities as follows:
A. Blue Cross is a corporation duly organized, validly existing and in
good standing under the laws of Wisconsin. UWS is a corporation duly
organized, validly existing and in good standing under the laws of
Wisconsin.
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B. The execution, delivery and performance of this Agreement and all
documents to be executed and delivered by any of the UWS Entities hereunder
(a) is within its corporate power; (b) has been duly authorized by all
necessary or proper corporate action, including the consent of shareholders
where required; (c) does not contravene any provision of its certificate or
articles of incorporation or by-laws; (d) does not violate any law or
regulation, or any order or decree of any court or governmental
instrumentality applicable to it; and (e) does not conflict with or result
in the breach of, or constitute a default under, any indenture, mortgage,
deed of trust, lease, agreement or other instrument to which it is a party
or by which it or any of its property is bound, and the same do not require
the consent or approval of any governmental body, agency, authority or other
entity other than those that have been obtained. This Agreement has been
duly executed and delivered by each of the UWS Entities and constitutes the
legal, valid and binding obligation of each of the UWS Entities, enforceable
against it in accordance with its terms except as such enforceability may be
limited by bankruptcy or similar laws affecting the enforceability of
creditors rights generally.
C. Each of the UWS Entities (a) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
the failure to qualify would have a material adverse effect upon it;
(b) has the requisite corporate power and authority and the legal right to
own, pledge and operate its properties, to lease the property it operates
under lease and to conduct its business as now conducted; (c) has all
necessary licenses, permits, consents or approvals from or by, and has made
all necessary filings with, and has given all necessary notices to, all
governmental authorities having jurisdiction, to the extent required for
such ownership, operation and conduct except where the failure to obtain
such licenses, permits, consents or approvals or to make such filings will
not have a material adverse effect upon it; (d) is in compliance with its
certificate or articles of incorporation and by-laws and all material
agreements to which it is a party or by which it is bound except where the
failure to comply will not have a material adverse effect upon it; and (e)
is in compliance in all respects with all applicable provisions of law
except where the failure to comply will not have a material adverse effect
upon it.
D. None of the UWS Entities is a party to any litigation or
administrative proceeding, nor so far as is known by them is any litigation
or adverse administrative proceeding or hearing threatened against any
entity which in either case relates to the execution, delivery or
performance of this Agreement or the Joint Venture.
E. No information, exhibit or report, whether written or oral,
furnished by the UWS Entities to the University Affiliated Entities in
connection with the negotiation or execution of this Agreement contained any
misstatement of a material fact or omitted to state a material fact
necessary to make the statements contained therein not misleading as of the
date when made.
ARTICLE 4--COVENANTS
.1. UNIVERSITY AFFILIATED ENTITIES.
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A. AMENDMENT TO HPW'S ARTICLES OF INCORPORATION. On or before the
Effective Date, HPW shall amend its Articles of Incorporation as provided in
the Amendment attached hereto as Exhibit ARTICLE 4.1.A. [THIS DOCUMENT WILL
INCLUDE ONLY THE NECESSARY CONFORMING CHANGES CAUSED BY THIS AGREEMENT].
B. UNIVERSITY PROVIDERS. UHC shall cause each of the University
Providers to remain part of the Unity provider structure and not to reduce
the services that they provide to or in connection with the Unity Joint
Venture, in each case without the prior written approval of the UWS
Entities. UHC shall, upon request, provide to each UWS Entity a copy of each
University Provider Agreement, as defined in Section ARTICLE 10.1, as then
in effect and any other provider agreement between UHC or any of its
affiliates and any provider covering services provided to the Joint Venture.
C. CORPORATE STRUCTURE. None of the University Affiliated Entities
shall (i) change their corporate structure or organization as presently in
effect, or merge with or into or consolidate with or into any other
corporation or entity, unless such University Affiliated Entity notifies UWS
at least 15 days in advance of the closing of any such transaction or
restructuring and such successor corporation or entity agrees in writing
reasonably satisfactory to UWS to be bound by, and assume and discharge all
responsibilities and obligations of such University Affiliated Entity under,
this Agreement, the New Joint Venture Documents and all documents and
agreements referred to herein and therein; (ii) voluntarily liquidate or
dissolve (except for the voluntary liquidation of Physicians Plus Medical
Group); or (iii) sell, lease, transfer or otherwise dispose of all or a
substantial portion of its property, assets or business.
.2. UWS ENTITIES.
A. VOTING THE STOCK OF UNITY. UWS shall vote the stock of Unity in
such a way as to ensure that the Governing Board constitutes all of the
members of the Board of Directors of Unity and that the bylaws of Unity and
the committee structure of the Board of Directors of Unity are substantially
similar to that established and maintained for the Governing Board.
B. NOTICE. [IN THE EVENT THAT LLC HAS GIVEN NOTICE TO UWS OF ITS
OPTION TO REACQUIRE THE STOCK OF HMOW AS SET FORTH IN SECTION 4 OF THE
SERVICE AGREEMENT, UWS SHALL PROMPTLY PROVIDE SUCH NOTICE TO UHC.]
.3. MUTUAL COVENANTS.
A. PREPAYMENT OF TERM LOAN. On the Effective Date, UCC and HPW, as
Borrowers under the Revolving Credit Agreement, shall request Blue Cross to
make a loan to them pursuant to the Revolving Credit Agreement in an amount
equal to the aggregate amount that UHC owes to Blue Cross under the Term
Loan Agreement on the Effective Date ("Term Loan Payoff Amount"), including
all unpaid principal and accrued but unpaid interest. Blue Cross shall
satisfy such loan request so long as Blue Cross is obligated to extend such
loan under the Revolving Credit Agreement; provided, however, that as to
such loan request only, Section 1.2 and Section 2.13 of the Revolving Credit
Agreement shall not apply. The proceeds of such loan shall be used
immediately to pay the Term Loan Payoff Amount. Blue Cross
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shall not be obligated to transfer such loan proceeds directly to either
HPW or UCC, but shall instead retain and apply such funds directly to UHC's
obligations under the Term Loan Agreement.
B. AMENDMENT TO REVOLVING CREDIT AGREEMENT. UCC, HPW, and Blue Cross
shall, on the Effective Date, execute and deliver Amendment No. 1 to
Revolving Credit Agreement attached hereto as Exhibit ARTICLE 4.3.B. [THIS
AMENDMENT WILL INCLUDE ONLY THE NECESSARY CONFORMING CHANGES CAUSED BY THIS
AGREEMENT]. UHC hereby consents to the execution, delivery and performance
by each of UCC and HPW of such amendment.
C. AUDIT AND RELEASE AGREEMENT. On or before the Effective Date, each
of the Parties shall execute and deliver the Audit and Release Agreement in
the form attached hereto as Exhibit ARTICLE 4.3.C.
D. AMENDMENTS NECESSITATED BY ANY CHANGES TO THE HMOW DOCUMENTS. The
Parties shall, on or before the Effective Date, enter into any amendment to
this Agreement that may be necessary to conform it with any amendment or
modification to the HMOW Documents, as contemplated in Section
ARTICLE 10.1. Such amendment shall include, without limitation, any
necessary changes to the bracketed language in this Agreement.
E. REASONABLE EFFORTS; CONSUMMATION. Each of the Parties shall use all
reasonable efforts and act in good faith to take, or cause to be taken, all
action, and to do or cause to be done, and to assist and cooperate with the
other Parties in doing, all things necessary, proper or advisable to
consummate and make effective as promptly as possible the transactions
contemplated by this Agreement, including, without limitation, using all
reasonable efforts to fulfill or cause the fulfillment of the conditions set
forth in ARTICLE 10. The Parties acknowledge and agree that the prior
sentence does not require any party to enter into the UHC Provider Agreement
on any terms and conditions to which it reasonably objects other than any
terms to which the parties have agreed in Section ARTICLE 5.5.A or as
reflected in the Risk Model Term Sheet attached hereto as Exhibit
ARTICLE 4.3.E.
ARTICLE 5--OPERATIONS OF THE JOINT VENTURE
.1. UNDERWRITING. Unity shall be the underwriter of the HMO and HMO
portion of the POS plans (the indemnity portion to be underwritten by Blue Cross
or an affiliate) offered by the Joint Venture (in such capacity, Blue Cross and
its affiliates, and Unity, shall be referred to as "Underwriters").
.2. BENEFIT ADMINISTRATION. On self-funded programs, Unity shall
administer benefits under the HMO and POS plans (in such capacity, Unity shall
be referred to as the "Administrator").
.3. ADMINISTRATIVE SERVICES. On or before the Effective Date, the Parties
shall cause their members of the Governing Board, and the board of directors of
Unity, to approve and adopt the Statement of Policy on Administrative Services
attached hereto as Exhibit .3 ("Administrative Services Policy").
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.4. MEDICAL MANAGEMENT AND REVIEW. Notwithstanding that the center of
operations for the Joint Venture may be in Sauk City, Wisconsin, all medical
management and review services which relate directly to Joint Venture business
with the University Providers shall be located in Madison, Wisconsin. It is
understood and agreed that, without limiting the generality of the risk model to
be reflected in the UHC Provider Agreement (as defined in Section .5.A, the
University Affiliated Entities (i) shall bear the risk related to, and not be
compensated for, medical management, and (ii) will pay, perform and discharge,
and be solely responsible for, any of their respective real property leases,
including without limitation the lease of real property located at 000 Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxx.
.5. PROVIDER AGREEMENTS.
A. AGREEMENTS. On or before the Effective Date, (i) UHC shall enter
into an agreement with each University Provider to amend each of the
University Provider Agreements on terms and conditions that shall be subject
to the prior approval of the UWS Entities, which shall include a term that
is at least as long as provided in this Agreement and reflect the Best Price
Guarantee (as defined in this Section .5); (ii) UHC and Unity shall
negotiate in good faith to enter into a provider agreement ("UHC Provider
Agreement"), to which Community Physicians Network, Inc. ("CPN") will also
be party and which will replace the Services Agreement between CPN, UHC, and
Unity dated January 1, 1995, that shall (A) reflect the Risk Model Term
Sheet, (B) establish the services that the University Providers will provide
in connection with the UHC Risk Pool, the Shared Risk Pool and the Non-Dane
Risk Pool, the consideration to be paid to UHC for such services, and the
standards for such services; (C) obligate UHC to give to Unity access to any
new providers or services that may become part of UHC's network and
reasonable access to UHC's books and records relating to services under such
agreements with due regard for patient confidentiality, and (D) include such
other terms and conditions that are customary for an agreement of its type
or as agreed by the parties; and (iii) UHC shall cause each University
Provider to execute and deliver to the UWS Entities an Agreement to be Bound
substantially in the form of Exhibit .5.A.
B. BEST PRICE GUARANTEE. UHC and each University Provider shall
provide to the Joint Venture and to Unity, the best price that UHC or such
University Provider offers or provides under any other contract for Like
Products with Like Risk from time to time, without regard to volume (the
"Best Price Guarantee"). "Like Products" means HMO, PPO, POS and EPO, in
each case whether fully insured or self-funded. "Like Risk" reflects similar
reimbursement methodology (I.E., capitation, fee schedules, discount from
charges, per diems, etc.) and similar scope of services. For capitated
agreements, compliance with the Best Price Guarantee shall be determined by
comparing the relative return on UHC or University Provider, as the case may
be, charges (collection rate) with that of the other capitated programs;
provided, however, that UHC and each University Provider shall employ
substantially similar billing rates and methodology for all capitated
programs. In calculating this return on charges, outliers (cases having
$100,000 or more of gross charges) and niche products (including
transplants, burn cases, and others as agreed to by the Parties), will be
excluded from the calculation and the calculation period shall be the
calendar year.
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C. UWS AFFILIATES. UHC and each University Provider also promises
that, at all times during the term of this Agreement, upon request, they
shall enter into contracts to provide to the UWS Entities and each of
their respective affiliates (which shall include, without limitation, as
to Blue Cross any other Blue Cross or Blue Shield licensee) the benefit
of the Best Price Guarantee on any products or services that UHC or the
applicable University Provider may offer or provide to any other party.
Any such contract shall initially include a price that is at least as
favorable to the UWS Entities as the then prevailing Best Price assuming
that the other terms and conditions are substantially similar, as far as
reasonably possible, to those set forth in the contract which includes
the Best Price, except as the parties may otherwise agree. Volume
limitations or targets in such contracts are applied as follows. For PPO
Products and tertiary care contracts for HMOs, the UWS Entities will
receive the Best Price regardless of the UWS Entities' volume. Best
Price on a PPO Product shall be the Best Price actually realized by
another party under a contract with UHC for the prior year or the
current year. To the extent that the price for other Products
established under any contract is specifically linked to a certain
volume of business, then the UWS Entities shall be required to meet such
volume requirement. For purposes of determining whether the UWS Entity
meets the volume requirement, the volume used shall be the potential
volume of business available from the UWS Entities (excluding Unity) and
their affiliates without regard to Products. Further, for transplants
and any other niche products agreed upon by the parties, the Best Price
shall apply only to like volumes of business.
D. BEST PRICE AUDIT. UHC and each University Provider hereby agrees
that its compliance with the Best Price Guarantee is subject to
confirmation. UWS may request, no more frequently than annually, an
independent third party to audit compliance ("Auditor") for the previous
calendar year. The Auditor will be retained by Unity and engaged on behalf
of Unity, UWS and UHC or the University Provider, all of whom shall be
signatories to the engagement agreement. The Auditor may, during normal
business hours and subject to entering into any confidentiality agreement
that the relevant party may reasonably request, inspect the files, books,
and records of UHC or any University Provider. UHC and each University
Provider shall make any of their officers, employees, agents and
representatives available to meet with the Auditor in each case to confirm
that UHC and each University Provider have complied with the Best Price
Guarantee as to each contract. All information gathered by the Auditor will
remain confidential and the Auditor's conclusions and reports shall address
only whether or not the Best Price Guarantee was honored as to each contract
during the year being reviewed. The fees and expenses of the Auditor shall
be paid (i) by UHC in the event that the difference of (a) the aggregate
amount actually paid by Unity under all contracts minus (b) the amount Unity
should have paid under on all contracts had UHC and the University Providers
complied with the Best Price Guarantee, as determined by the Auditor (the
"Realized Savings"), exceeds such fees and expenses; or (ii) by UWS in the
event such fees and expenses exceed the Realized Savings. The Auditor's
decision shall not preclude any party from arbitrating the issue of
compliance with the Best Price Guarantee in accordance with
Section ARTICLE 8.2.
E. COMPLIANCE CERTIFICATION. Notwithstanding the limitation on the
number of audits set forth in Section .5.D, any UWS Entity may, when it
reasonably believes that the
-11-
Best Price Guarantee is not being satisfied, from time to time request
in writing (the "Compliance Notice") that UHC or any University Provider
certify that such entity is complying with the Best Price Guarantee. The
Compliance Notice shall identify in reasonable detail the reasons why
the UWS Entity believes that the Best Price Guarantee is not being
satisfied, subject to reasonable confidentiality requirements. On or
before the 15th day after UHC or any University Provider receives a
Compliance Notice, such entity shall either (i) certify to the
applicable UWS Entity in writing that it is complying with the Best
Price Guarantee and identify in reasonable detail why this is the case
("Compliance Certification"), or (ii) revise its calculation of the
relevant rates to the UWS Entities and their affiliates to correct any
noncompliance on a prospective basis from the date of the Compliance
Notice.
F. REMEDIES. Should the Auditor's report indicate that UHC or any
University Provider has not complied with Best Price Guarantee as to any
contract, then UHC or the University Provider shall revise its
calculation of the relevant rates to the UWS Entities and their
affiliates to correct such noncompliance on a prospective basis from the
date of such Auditor's report. In no event shall UHC or the University
Providers be retrospectively liable for any Best Price discrepancy that
predates the Auditor's report of such discrepancy; provided, however,
that UHC and the University Providers shall be obligated to compensate
the UWS Entities and their affiliates, upon demand, for the Realized
Savings arising out of or related to (i) the falsehood of any Compliance
Certification and the failure to comply with the Best Price Guarantee
that was the subject of the applicable Compliance Notice; (ii) the
failure to remedy any noncompliance with the Best Price Guarantee
identified by the Auditor; or (iii) the failure to comply with the Best
Price Guarantee as to any Like Risk other than a capitation methodology.
ARTICLE 6--OPTION TO REACQUIRE
.1. OPTION: EXPIRATION OF AGREEMENT. UHC shall have the option to acquire,
on the expiration of any term of this Agreement (each, an "Expiration Date"),
the membership of the Joint Venture or the Unity Joint Venture for which UHC is
then at risk ("UHC Business") subject to the terms and conditions in Sections
ARTICLE 6.1, ARTICLE 6.3, ARTICLE 6.4, and ARTICLE 6.5. UHC shall give written
notice to the UWS Entities of its intention to exercise this option on or before
the 180th day prior to the applicable Expiration Date, but not earlier than
the 190th day prior to the applicable Expiration Date. [AND, IF THE HMOW JOINT
VENTURE AGREEMENT HAS NOT BEEN TERMINATED, THE LLC; PROVIDED THAT IF THE LLC HAS
GIVEN NOTICE OF ITS OPTION TO REACQUIRE THE STOCK OF THE HMOW AS SET FORTH IN
SECTION 4 OF THE SERVICE AGREEMENT, THEN UHC MUST GIVE SUCH WRITTEN NOTICE IN
ACCORDANCE WITH SECTION ARTICLE 7.2.A.]
.2. OPTION: CHANGE IN CONTROL. UHC shall have the option to acquire,
upon a Change in Control (as defined in this paragraph below), the UHC
Business as of the Scheduled Closing Date (also as defined in this paragraph
below), subject to the terms and conditions in Sections ARTICLE 6.2, ARTICLE
6.3, ARTICLE 6.4, and ARTICLE 6.5. UWS shall give written notice to UHC of
any proposed Change in Control ("Change in Control Notice") on or before the
sixtieth day prior to the closing of such Change in Control. The Change in
Control Notice
-12-
shall describe in reasonable detail the parties to, and the essential terms
and conditions of, the Change in Control, including the proposed closing date
(the "Scheduled Closing Date"), but excluding the price and any other
confidential terms. UHC shall give written notice to the UWS Entities of its
intention to exercise its option on or before the tenth day after the Change
in Control Notice, in which case UHC's acquisition of the UHC Business shall
close on the Scheduled Closing Date. In the event that UHC fails to so notify
the UWS Entities in accordance with the previous sentence, then its option
set forth in this Section ARTICLE 6.2 shall expire, and the proposed Change
in Control may proceed and close on whatever terms and conditions to which
the buyer and seller may agree; provided, however, that the identity of the
buyer shall be as disclosed in the Change in Control Notice, or one of its
affiliates. The term "Change in Control" shall mean a sale by UWS of 50
percent or more of the voting common stock of Unity to an entity that is not,
on the date of this Agreement or at anytime thereafter, an affiliate of any
UWS Entity; provided, however, that any such sale shall not constitute a
"Change in Control" if either (i) it occurs as a part of, or in connection
with, a sale by any UWS Entity of any other Significant Affiliate or the
business operated by, or substantially all the assets of, any other
Significant Affiliate (as defined in the next sentence) or (ii) (A) it occurs
as part of, or in connection with, the sale of any affiliate of Unity or the
business or substantially all the assets of any such affiliate and (B) either
(1) the GAAP net worth of Unity equals 50 percent or less of the GAAP net
worth of the business being sold, including Unity, in each case as of the end
of the most recent quarter or (2) the gross revenue of Unity equals 50
percent or less of the gross revenue of the business being sold, including
Unity, in each case as of the end of the most recent year. "Significant
Affiliate" shall mean any affiliate of Unity which has a GAAP net worth as of
the most recent quarter greater than or equal to $12 million or a Health
Maintenance Organization affiliate of Unity which has a GAAP net worth as of
the most recent quarter greater than or equal to $5 million.
.3. UHC's exercise of its right to acquire the UHC Business pursuant to
Sections ARTICLE 6.1 or ARTICLE 6.2 shall terminate the Joint Venture on the
applicable Expiration Date or the closing of the exercise of UHC's option
under Section ARTICLE 6.2, as the case may be, unless the Parties agree
otherwise. The termination of the Joint Venture shall have no effect on the
provider agreements entered into by the Parties or pursuant to the Best Price
Guarantee (together, the "Existing Provider Agreements"), which shall
continue until their scheduled termination date. The reimbursement
arrangement and other terms contained in the Existing Provider Agreements
then in effect shall continue following termination of the Joint Venture;
provided, however, that the Best Price Guarantee set forth in Section ARTICLE
5.5 shall not continue following such termination.
.4. EXERCISE PRICE. The price at which UHC may acquire the UHC Business
shall be (i) $500,000 plus (ii) the proportionate share of the net worth of
Unity attributable to the UHC Business minus (iii) $650,000 minus the
aggregate amount of Annual Performance Bonuses paid pursuant to Section C of
the Risk Model Term Sheet, or its successor provision in the UHC Provider
Agreement. Net worth shall be determined by applying the same accounting
principles as were applied in Section 5.3 of the Previous Agreement to
determine the price at which UWS purchased the U-Care Business (as defined in
the Previous Agreement), and shall not include any amount attributable to
good will.
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.5. FORM OF REACQUISITION. The reacquisition of the UHC Business shall
take the form of assumption reinsurance with a UHC designee to be effective
upon the (i) applicable Expiration Date in the case of an option exercised
pursuant to Section ARTICLE 6.1 and (ii) the Scheduled Closing Date in the
case of an option exercised pursuant to Section ARTICLE 6.2. The provider
agreements then in effect relating to the UHC Business will not be assigned
to the University Affiliated Entities, but it is expressly acknowledged that
the University Affiliated Entities or UHC's designee shall be free to enter
into provider agreements with providers of their choosing. The assets to be
transferred to cover the liabilities assumed shall be cash, cash equivalent
admitted assets, investment grade stocks or bonds, or government securities,
or any combination thereof, at the discretion of UWS.
ARTICLE 7--TERM AND TERMINATION
.1. TERM. The initial term of the Joint Venture shall expire on
December 31, 2004, unless earlier terminated in accordance with this ARTICLE
7. Thereafter, the Joint Venture shall automatically renew for additional
five (5) year terms unless terminated in accordance with this ARTICLE 7.
.2. TERMINATION. The Joint Venture may be terminated only as follows.
A. The Joint Venture may be terminated at the end of the initial or any
subsequent term by (i) the University Affiliated Entities, provided that
they shall give written notice to the UWS Entities on or before the 180th
day prior to the scheduled Expiration Date, but not earlier than the
190th day prior to such scheduled Expiration Date and (ii) the UWS
Entities, provided that they shall give written notice to the University
Affiliated Entities on or before the 270th day prior to the scheduled
Expiration Date, but not earlier than the 280th day prior to the scheduled
Expiration Date[; PROVIDED, HOWEVER, THAT IF THE LLC HAS GIVEN WRITTEN
NOTICE OF TERMINATION OF THE HMOW JOINT VENTURE PURSUANT TO SECTION 5(a) OF
THE LLC SERVICE AGREEMENT, THEN UHC MAY WITHIN THIRTY DAYS GIVE NOTICE OF
TERMINATION EFFECTIVE 180 DAYS THEREAFTER OR ON A TIMETABLE AS OTHERWISE
AGREED BY THE PARTIES.]
B. The Joint Venture will automatically terminate (i) on the applicable
Expiration Date if UHC exercises its right to reacquire the UHC Business in
accordance with Section ARTICLE 6.1, and (ii) on the Scheduled Closing Date
if UHC exercises its right to reacquire the UHC Business in accordance with
Section ARTICLE 6.2, in each case unless the Parties agree otherwise.
C. The Joint Venture shall terminate 90 days after any Party shall
notify the other Parties that (i) a Party to which such notifying party is
not affiliated ("Breaching Party") has breached any of its obligations under
this Agreement or (ii) a representation or warranty of the Breaching Party
has proven to have been materially false when made, unless under either
(i) or (ii) the Breaching Party shall have cured such breach or the
condition which renders such representation or warranty to be false, or the
Party giving notice shall have waived such breach or falsehood in writing to
the Other Parties on or before the expiration of such 90 day period;
provided, however, that if such breach or condition is incurable, the Joint
Venture shall not terminate unless such breach or condition impairs or could
reasonably be expected to impair in
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any material respect the operation of the Joint Venture or the interest of
the Party providing the notice under this Section ARTICLE 7.2.C or any of
its affiliates. [IN THE EVENT THAT THE HMOW CLOSING OCCURS AND THE HMOW
JOINT VENTURE AGREEMENT HAS NOT BEEN TERMINATED, THEN THE PARTY NOTIFYING
THE OTHER PARTIES AS PROVIDED IN THE PREVIOUS SENTENCE SHALL PROMPTLY SEND
A COPY OF SUCH NOTICE TO THE LLC.]
D. The Joint Venture shall terminate at the election of UWS in the event
that any of the University Affiliated Entities become insolvent or the
subject of any bankruptcy, insolvency or similar proceedings.
E. The Joint Venture shall terminate at the election of UHC in the
event that Blue Cross or UWS become insolvent or the subject of any
bankruptcy, insolvency or similar proceedings.
.3. EFFECT OF TERMINATION OF JOINT VENTURE. The termination of the Joint
Venture shall have no effect on the Existing Provider Agreements, which shall
continue until their scheduled termination date. The reimbursement arrangement
and other terms and conditions contained in the Existing Provider Agreements
then in effect shall continue following termination of the Joint Venture;
provided, however, that the Best Price Guarantee set forth in Section
ARTICLE 5.5 shall not continue following such termination.
.4. EFFECT OF TERMINATION OF HMOW JOINT VENTURE. In the event that the
HMOW Joint Venture Agreement is subsequently terminated and this Agreement has
not terminated on or before the date that the HMOW Joint Venture Agreement
terminates, then the Joint Venture created pursuant to this Agreement shall
continue in accordance with its terms without the business and other attributes
of the HMOW Joint Venture, as if the HMOW Closing did not occur. In such event,
the UHC Business shall be transferred to, and assumed by, a health maintenance
organization owned or affiliated with, and chosen by, UWS in its reasonable
discretion.
.5. UHC BUSINESS AND TERMINATION FOR CAUSE.
A. In the event that a University Affiliated Entity terminates the Joint
Venture in accordance with Section ARTICLE 7.2.C or Section .2.E, then UHC
shall have the option to acquire, on the 60th day after the Joint Venture
terminates (the "For-Cause Option Exercise Date"), the UHC Business as it
existed on the date that the Joint Venture terminated. UHC shall give
written notice to the UWS Entities of its intention to exercise this option
on or before the 10th day after the Joint Venture terminates, but no
earlier than the day on which the Joint Venture terminates. Sections
ARTICLE 6.4 and ARTICLE 6.5 shall apply to such acquisition; provided that
the reacquisition of the UHC Business shall become effective on the
For-Cause Option Exercise Date.
B. In the event that a UWS Entity terminates the Joint Venture in
accordance with Section ARTICLE 7.2.C or Section ARTICLE 7.2.D, then
UWS shall determine, by giving written notice to the University
Affiliated Entities on or before the tenth day after the Joint Venture
terminates, whether it or UHC shall be the "Price Selector." On or
before the
-15-
tenth day after the Price Selector is chosen, the Price Selector shall
notify the other party, i.e. either UWS or UHC ("Option Selector"), in
writing of a purchase price ("Price") for the UHC Business as it
existed on the date that the Joint Venture terminated. On or before
the tenth day after the Price notification is made, the Option
Selector shall elect, by giving written notice to the Price Selector,
whether it or the Price Selector shall purchase such UHC Business at
the Price, and therefore become the "Purchaser." If the Purchaser is
UWS, then UWS may elect to have Unity, or any other health maintenance
organization that UWS chooses, retain the UHC Business and pay to UHC,
on the 60th day after the Purchaser is chosen, an amount equal to
(i) the Price minus (ii) the purchase price paid pursuant to Section
5.3 of the Previous Agreement. In the event that UHC is the Purchaser,
then UHC shall acquire such UHC Business by paying the Price on the
60th day after the Purchaser is chosen, and such acquisition shall
be subject to Section ARTICLE 6.5.
ARTICLE 8--ARBITRATION
.1. NEGOTIATION. In the event of any dispute between any of the UWS
Entities on the one hand and the University Affiliated Entities on the other
hand arising out of or relating to the formation, interpretation, performance
or breach of this Agreement or any of the New Joint Venture Documents
(including, without limitation, any dispute concerning Unity's compliance
with the Administrative Services Policy or the decision to terminate or not
terminate any Administrative Services Agreement entered into pursuant to the
Administrative Services Policy), the UWS Entities and the University
Affiliated Entities shall use their best efforts to resolve such dispute. If
they are unable to do so, such dispute shall be submitted to the Governing
Board for resolution. The Governing Board shall have the authority to consult
legal, financial or other advisors for the purpose of resolving such dispute,
and the fees and expenses of any such advisors shall be shared equally by the
disputing parties. If the Governing Board is unable to resolve such dispute
by the vote required by ARTICLE 2 within 30 days, such dispute may be
submitted to arbitration in accordance with Section ARTICLE 8.2.
.2. ARBITRATION.
A. Each side shall each appoint an individual as arbitrator and the two
so appointed shall then appoint a third arbitrator. If either side refuses
or neglects to appoint an arbitrator within thirty (30) days of receipt of a
written notice of demand for arbitration, the other side may appoint the
second arbitrator. If the two arbitrators do not agree on a third arbitrator
within thirty (30) days of their appointment, each of the arbitrators shall
nominate three individuals. Each arbitrator shall then decline two of the
nominations presented by each of the other arbitrators. The third arbitrator
shall be chosen from the remaining two nominations by drawing lots. The
arbitrators shall be active or former officer of an insurance or reinsurance
company, managed care organization, or Lloyd's of London underwriters. None
of the arbitrators shall have a personal or financial interest in the result
of the arbitration.
B. The arbitration hearings shall be held in Madison, Wisconsin, or
such other place as may be mutually agreed. Each side shall submit its case
to the arbitrators within thirty
-16-
(30) days of the selection of the third arbitrator or within such longer
period as may be agreed by the arbitrators. The arbitrators shall not be
obliged to follow judicial formalities or the rules of evidence except to
the extent required by governing law, that is, the state law of the situs
of the arbitration as herein agreed; they shall make their decisions
according to the practice of the insurance business. The decision rendered
by a majority of the arbitrators shall be final and binding on both sides
and on Unity as appropriate. Such decision shall be a condition precedent
to any right of legal action arising out of the arbitrated dispute which
any side may have against the others. Judgment upon the award rendered may
be entered in any court having jurisdiction thereof.
C. Each side shall pay (i) the fee and expenses of its own arbitrator,
(ii) one-half of the fee and expenses of the third arbitrator and
(iii) one-half of the other expenses that the Parties jointly incur directly
related to the arbitration proceeding. Other than as set forth above, each
Party shall bear its own costs in connection with any such arbitration
including, without limitation, (i) all legal, accounting, and other
professional fees and expenses and (ii) all other costs and expenses each
Party incurs to prepare for such arbitration.
D. Except as provided above, arbitration shall be based, insofar as
applicable, upon the Commercial Arbitration Rules of the American
Arbitration Association.
ARTICLE 9--EFFECT OF AGREEMENT
.1. PRIOR AGREEMENT AND JOINT VENTURE DOCUMENTS. This Agreement amends and
restates the Prior Agreement in its entirety as of the Effective Date. This
Agreement, and the New Joint Venture Documents, supersede all prior discussions
and agreements between, and contain the sole and entire agreement between, the
Parties with respect to the subject matter hereof and thereof, on and after the
Effective Date.
Notwithstanding the previous paragraph, the Prior Agreement and the Joint
Venture Documents (as defined therein) shall continue to govern the
transactions, covenants, obligations, agreements, and representations and
warranties of the Parties as provided therein prior to the Effective Date;
provided, however, that notwithstanding anything in the Prior Agreement to the
contrary, the Prior Agreement shall remain in full force and effect until the
Effective Date. It is understood and agreed that, except as provided in the
Audit and Release Agreement referred to in Section ARTICLE 4.3.C, the Parties do
not release each other from any claims, causes of action, obligations or
liabilities arising under the Prior Agreement or the Joint Venture Documents
prior to the Effective Date. In addition, the Joint Venture Documents that are
also identified on Schedule 1 as New Joint Venture Documents shall remain in
full force and effect in accordance with their terms on and after the Effective
Date, except as amended pursuant to this Agreement.
.2. EFFECTIVE DATE. The "Effective Date," as used in this Agreement, shall
mean January 1, 2000.
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ARTICLE 10--CONDITIONS
.1. CONDITION TO OBLIGATIONS
The obligations of the Parties under this Agreement are subject to the
fulfillment or waiver by the Parties (on or before October 30, 1999 in the
case of subsections (i), (ii), (iii) and (iv), and the Effective Date in the
case of subsection (v)) of the following conditions precedent: (i) the
execution and delivery by the parties to the HMOW Joint Venture Agreement and
all related documents (collectively, the "HMOW Documents") of an amendment to
the HMOW Documents which shall make the HMOW Documents consistent with this
Agreement and the New Joint Venture Documents, as reasonably determined by
the UWS Entities and the University Affiliated Entities; (ii) the agreement
of the Parties to the text of the UHC Provider Agreement (as defined in
Section ARTICLE 5.5.A (ii)); (iii) the execution of provider agreements for
each University Provider that relates to the Joint Venture business
("University Provider Agreements"); (iv) the execution of an amended
delegated services agreement by and between Unity and UHC for the provision
of medical management and other related services for the Joint Venture; and
(v) the receipt of all necessary approvals and consents of insurance
regulatory authorities pursuant to all applicable insurance laws and the
receipt of all necessary approvals and consents by any other governmental or
regulatory authority whose approval is required by law.
.2. Effect of the Failure of a Condition
In the event that any condition described in Section ARTICLE 10.1 fails and
is not waived, and the Parties have complied with their obligation set forth in
Section ARTICLE 4.3.E, then this Agreement shall become void and shall have no
further force or effect. In addition, in such event, the Parties agree that,
notwithstanding the provisions of the Previous Agreement to the contrary,
(i) the Previous Agreement shall not terminate prior to February 1, 2000 and UHC
may give notice under Articles 8 or 11 of the Previous Agreement no earlier than
November 5th, 1999, nor later than November 15, 1999. The University Affiliated
Entities shall not give notice under Articles 8 or 11 of the Previous Agreement,
except in accordance with the previous sentence.
ARTICLE 11--GENERAL PROVISIONS
.1. AMENDMENTS. This Agreement may only be amended by the consent of the
Parties expressed in a written addendum; and such addendum, when executed by all
Parties, shall be deemed to be an integral part of this Agreement and binding on
the Parties.
.2. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and bind each of the Parties and their successors and assigns. Except as may be
permitted pursuant to Section ARTICLE 4.1.C(i), neither this Agreement nor any
right hereunder nor any part hereof may be assigned by any Party without the
prior written consent of the other Parties and all necessary regulatory
authorities.
-18-
.3. CONFIDENTIAL INFORMATION. The Parties acknowledge that all information
of a given Party which has or will come into the possession of another Party in
connection with this Agreement is non-public, confidential or proprietary in
nature. Each Party agrees to hold such information in the strictest confidence,
not to make use thereof other than for the performance of this Agreement, and
not to release or disclose it to any third Party other than for the performance
of this Agreement or as required by law. In the event that any Party
("Disclosing Party") is requested pursuant to, or required by, applicable law or
regulation or by legal process to disclose any such information of another
Party, the Disclosing Party shall provide such other Party with prompt notice of
such request to enable such other Party to seek an appropriate protective order.
The Disclosing Party shall cooperate with such other Party in connection with
such matter.
.4. INTERPRETATION. This Agreement shall be interpreted to preserve the
purposes of the Joint Venture and to maintain its integrity. It is the intent of
the Parties that minor, technical and immaterial violations of this Agreement
and related documents and minor inconsistencies and ambiguities should be
resolved in favor of continuation of the Joint Venture.
.5. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Wisconsin (without giving effect to
principles of conflicts of laws) applicable to a contract executed and to be
performed in such state.
.6. HEADINGS, ETC. The headings used in this Agreement have been inserted
for convenience and do not constitute matter to be construed or interpreted in
connection with this Agreement. Unless the context of this Agreement otherwise
requires, (a) words of any gender will be deemed to include each other gender,
(b) words using the singular or plural number will also include the plural or
singular number, respectively, (c) the terms hereof, herein, hereby, and
derivative or similar words will refer to this entire Agreement, and (d) the
conjunction "or" will denote any one or more, or any combination or all, of the
specified items or matters involved in the respective list.
.7. NON-WAIVER. The failure of any Party at any time to enforce any
provision of this Agreement shall not be construed as a waiver of that provision
and shall not affect the right of any Party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
.8. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if the
rights or obligations of any Party will not be materially adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof, (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance herefrom, and
(d) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as part of this Agreement, a legal, valid, and enforceable
provision similar in terms to such illegal, invalid, or unenforceable provision
as may be possible.
-19-
.9. NOTICES. Any notice or communication given pursuant to this Agreement
must be in writing and will be deemed to have been duly given if mailed (by
registered or certified mail, postage prepaid, return receipt requested), or if
transmitted by facsimile, or if delivered by courier, as follows:
To Unity
Unity Health Plans Insurance Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxx 00000-0000
Facsimile: 0-000-000-0000
Attention: Xxxx Xxxxxxx
To Blue Cross
Blue Cross & Blue Shield United of Wisconsin
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 0-000-000-0000
Attention: Xxxxx Xxxxxxx
To UWS
United Wisconsin Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 0-000-000-0000
Attention: Xxxxx Xxxxxxx
To UHC
University Health Care, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, President and Chief Executive Officer
To UCC
University Community Clinics, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, President and Chief Executive Officer
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To HPW
Health Professionals of Wisconsin, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, President and Chief Executive Officer
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this paragraph will, whether sent
by mail, facsimile, or courier, be deemed given upon the first business day
after actual delivery to the party to whom such notice or other communication
is sent (as evidenced by the return receipt or shipping invoice signed by a
representative of such party or by the facsimile confirmation). Any party
from time to time may change its address for the purpose of notices to that
Party by giving a similar notice specifying a new address, but no such notice
will be deemed to have been given until it is actually received by the party
sought to be charged with the contents thereof.
.10. Counterparts This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original, but all of
which will constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth above.
UNITY HEALTH PLANS INSURANCE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: ----------------------------------------
CEO
----------------------------------------
BLUE CROSS & BLUE SHIELD UNITED OF WISCONSIN
By: /s/ Xxxxx X. Xxxxxxx
Title: ----------------------------------------
Vice President
----------------------------------------
UNITED WISCONSIN SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Title: ----------------------------------------
Vice President
----------------------------------------
UNIVERSITY HEALTH CARE, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President & CEO
----------------------------------------
UNIVERSITY COMMUNITY CLINICS, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President
----------------------------------------
HEALTH PROFESSIONALS OF WISCONSIN, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President
----------------------------------------
-22-
SCHEDULE 1
NAME OF DOCUMENT SECTION OF JOINT VENTURE AGREEMENT
---------------- ----------------------------------
Non-Participating Invitee Agreement......................... 2.1.F
Revolving Credit Agreement as amended by Amendment No. 1.... 4.3.B
Audit and Release Agreement................................. 4.3.C
Risk Model Term Sheet....................................... 4.3.E
Statement of Policy on Administrative Services.............. 5.3
Agreement to be Bound....................................... 5.5.A
-23-
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED JOINT
VENTURE AGREEMENT
This First Amendment To Second Amended And Restated Joint Venture Agreement
("Amendment") is made and entered into as of October 29, 1999, by and among
Unity Health Plans Insurance Corporation, a stock insurance corporation
organized under Chapter 611 of the Wisconsin Statutes ("Unity"), Blue Cross &
Blue Shield United of Wisconsin, a Wisconsin insurance corporation ("Blue
Cross"), United Wisconsin Services, Inc., a Wisconsin business corporation
("UWS"), University Health Care, Inc., a corporation organized under Chapter 181
of the Wisconsin Statutes ("UHC"), University Community Clinics, Inc. (f/k/a
Health Professionals, Inc.), a corporation organized under Chapter 181 of the
Wisconsin Statutes ("UCC"), and Health Professionals of Wisconsin, Inc., a
Wisconsin business corporation ("HPW") (collectively, "Parties").
RECITALS
WHEREAS, the Parties entered into the Second Amended and Restated Joint
Venture Agreement on September 30, 1999 ("Agreement");
WHEREAS, Section 4.3(D) of the Agreement obligates the Parties to enter into
an amendment to conform the Agreement with any amendment or modification to the
HMOW Documents; and
WHEREAS, the Parties wish to satisfy this covenant, and to amend the
Agreement, on the terms and conditions set forth in this Amendment.
AMENDMENT
NOW, THEREFORE, the Parties hereby agree as follows:
I. AMENDMENT TO SECTION 1.3
Section 1.3 is amended to add a new last sentence which reads in its
entirety as follows:
"On October 28, 1999, the UWS Entities, LLC, and Unity entered into an
Amended and Restated Joint Venture Agreement ("Amended and Restated LLC Joint
Venture Agreement") which, upon its effectiveness, will govern the terms and
conditions of the HMOW Joint Venture."
II. AMENDMENT TO SECTION 2.1(A)
The introductory clause of Section 2.1(A) is amended to read in its entirety
as follows:
"Unless and until the HMOW Joint Venture terminates pursuant to Article 7 of
the Amended and Restated LLC Joint Venture Agreement;"
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III. AMENDMENT TO SECTION 2.1(B)
The introductory clause of Section 2.1(B) is amended to read in its entirety
as follows:
"On or after the termination of the Amended and Restated LLC Joint Venture
Agreement:"
IV. AMENDMENT TO SECTION 2.1(D)
The last sentence of Section 2.1(D) is amended to read in its entirety as
follows:
"The Non-Participating Invitees shall have the right to attend meetings of
the Governing Board and of its committees, but shall have no right or authority
to participate in any meeting, including, without limitation, the right to
discuss or vote on any matter brought before the Governing Board or any
committee, unless the Non-Participating Invitee is a member of such committee."
V. AMENDMENT TO SECTION 4.1(A)
The bracketed sentence in Section 4.1(A) is deleted.
VI. AMENDMENT TO SECTION 4.2(B)
Section 4.2(B) is amended to read in its entirety as follows:
"In the event that LLC has given written notice to UWS of its option to
reacquire the stock of Unity as set forth in Section 6.1 of the Amended and
Restated LLC Joint Venture Agreement, UWS shall promptly provide such notice to
UHC.
VII. AMENDMENT TO SECTION 4.3(B)
The bracketed sentence in Section 4.3(B) is deleted.
VIII. AMENDMENT TO SECTION 6.1
The last two sentences of Section 6.1 are amended to read in their entirety
as follows:
"UHC shall give written notice to the UWS Entities of its intention to
exercise this option on or before the 180th day prior to the applicable
Expiration Date, but not earlier than the 210th day prior to the applicable
Expiration Date and, if the Amended and Restated LLC Joint Venture Agreement has
not been terminated, then to the LLC; provided, however, that if the LLC has
given notice of its option to reacquire the stock of Unity as set forth in
Section 6.1 of the Amended and Restated LLC Joint Venture Agreement, then UHC
may within 30 days after it receives such notice give notice to
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exercise its option effective 180 days thereafter or on a timetable as
otherwise agreed by the Parties.
IX. AMENDMENT TO SECTION 7.2(A)
Section 7.2(A) is amended to read in its entirety as follows:
"The Joint Venture may be terminated at the end of the initial or any
subsequent term by (i) the University Affiliated Entities, provided that they
shall give written notice to the UWS Entities on or before the 180th day prior
to the scheduled Expiration Date, but not earlier than the 210th day prior to
such scheduled Expiration Date and (ii) the UWS Entities, provided that they
shall give written notice to the University Affiliated Entities on or before the
270th day prior to the scheduled Expiration Date, but not earlier than the
280th day prior to the scheduled Expiration Date; provided, however, that if
the LLC has given written notice of termination of the HMOW Joint Venture
pursuant to Section 7.2(A) of the Amended and Restated LLC Joint Venture
Agreement, then UHC may within thirty days give notice of termination effective
180 days thereafter or on a timetable as otherwise agreed by the parties."
X. AMENDMENT TO SECTION 7.2(C)
The bracketed last sentence of Section 7.2(C) is amended to read in its
entirety as follows:
"In the event that the Amended and Restated LLC Joint Venture Agreement has
not been terminated, then the Party notifying the other Parties as provided in
the previous sentence shall promptly send a copy of such notice to the LLC."
XI. ADDITION OF NEW SECTION 7.6
The Agreement is amended to include a new Section 7.6, which reads in its
entirety as follows:
"7.6 RIGHTS TO UNITY NAME.
In the event that LLC exercises its option to acquire the stock of Unity in
accordance with Article 6 of the Amended and Restated LLC Joint Venture
Agreement, the Parties acknowledge and agree that LLC, as the stockholder of
Unity, shall have the sole right to use the name "Unity Health Plans Insurance
Corporation" and all derivations thereof, or any of the trademarks and marks
used at any time by Unity or the Joint Venture."
XII. AMENDMENT TO ARTICLE 9
Article 9 is hereby amended to read in its entirety as follows:
"9.1 PRIOR AGREEMENT AND JOINT VENTURE DOCUMENTS.
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This Agreement amends and restates the Previous Agreement in its entirety as
of the Effective Date. This Agreement, and the New Joint Venture Documents,
supersede all prior discussions and agreements between, and contain the sole and
entire agreement between, the Parties with respect to the subject matter hereof
and thereof, on and after the Effective Date.
Notwithstanding the previous paragraph, the Previous Agreement and the Joint
Venture Documents (as defined therein, including the License Agreement and HPI
Service Agreement, as defined therein) shall continue to govern the
transactions, covenants, obligations, agreements, and representations and
warranties of the Parties as provided therein prior to the Effective Date;
provided, however, that notwithstanding anything in the Previous Agreement and
Joint Venture Documents to the contrary, the Previous Agreement and Joint
Venture Documents shall remain in full force and effect until the Effective
Date. It is understood and agreed that, except as provided in the Audit and
Release Agreement referred to in Section 4.3.C, the Parties do not release each
other from any claims, causes of action, obligations or liabilities arising
under the Previous Agreement or the Joint Venture Documents prior to the
Effective Date. Any disputes arising under or related to the Previous Agreement
or the Joint Venture Documents that are not released pursuant to the Audit and
Release Agreement referred to in Section 4.3.C shall be resolved in accordance
with the arbitration provisions set forth in Article 12 of the Previous
Agreement; provided, however, that any disputes arising under the License
Agreement or HPI Service Agreement shall be resolved in accordance with
Article 4 thereof. In addition, the Joint Venture Documents that are also
identified on Schedule 1 as New Joint Venture Documents shall remain in full
force and effect in accordance with their terms on and after the Effective Date,
except as amended pursuant to this Agreement.
9.2 EFFECTIVE DATE. The "Effective Date," as used in this Agreement, shall
mean January 1, 2000.
9.2 FINAL ACCOUNTING.
The Parties acknowledge and agree that a final accounting ("Accounting")
shall be conducted pursuant to Section 3 of the License Agreement and HPI
Service Agreement within one year from the Effective Date. The Accounting shall
be deemed a final determination of the Parties' obligations under Section 3 of
the License Agreement and HPI Service Agreement, and any distribution made
thereunder shall be deemed payment in full of the Aggregate Royalties and Total
Service Payment, as defined therein; provided, however, that in the event the
Accounting is completed prior to January 1, 2001, the Parties shall remain
responsible for any development that occurs on or before January 1, 2001, and an
appropriate true-up payment shall be made to the appropriate party to reflect
any such development. The Parties shall be deemed to release and discharge each
other from any further obligations under Section 3 of the License Agreement and
HPI Service Agreement upon the payment of any amount required by the Accounting
and any true-up payments; provided, however, that such release and discharge
shall not apply to any payment disputes between the Parties or are in
arbitration on or before January 1, 2001."
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XIII. AMENDMENT TO SECTION 10.2
The second sentence of Section 10.2 is amended to read in its entirety as
follows:
"In addition, in such event, the Parties agree that, notwithstanding the
provisions of the Previous Agreement to the contrary, the Previous Agreement
shall not terminate prior to (i) February 1, 2000 if any of the conditions
set forth in subsections (i)-(iv) fail and UHC may give notice under Articles
8 or 11 of the Previous Agreement no earlier than November 5, 1999, nor later
than November 15, 1999 and (ii) the One Hundred Twentieth (120th) day after
the condition set forth in subsection (v) of Section 10.1 fails, and UHC may
give notice under Articles 8 or 11 of the Previous Agreement no earlier than
ninety (90) days, no later than one hundred (100) days, after the condition
set forth in subsection (v) of Section 10.1 fails."
XIV. AMENDMENT TO SECTION 11.2
Section 11.2 is amended to read in its entirety as follows:
"This Agreement shall inure to the benefit of and bind each of the Parties
and their successors and assigns. Except as may be permitted pursuant to
Section 4.1.C(i) or Section 6.2, neither this Agreement nor any right hereunder
nor any part hereof may be assigned by any Party without the prior written
consent of the other Parties and all necessary regulatory authorities. For the
avoidance of doubt, any of the UWS Entities may change their structure or
organization or merge with or consolidate with or into any other corporation or
entity, and this Agreement may be assigned to any successor entity and this
Agreement shall be binding upon and inure to its benefit; provided, however,
that this sentence shall not apply to Unity, which is governed by Section 6.2."
XV. EFFECT OF AMENDMENT
Except as explicitly set forth in this Amendment, the terms and conditions
of the Agreement shall remain in full force and effect as provided therein.
XVI. MISCELLANEOUS
A. INCORPORATION OF ARTICLE 11.
Article 11 of the Agreement, as amended pursuant to this Amendment, is
hereby incorporated by reference to apply to this Amendment.
B. DEFINITIONS.
Capitalized terms that are not otherwise defined in this Amendment shall be
defined as provided in the Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
persons authorized to act in their respective names.
UNITY HEALTH PLANS INSURANCE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: ----------------------------------------
CEO
----------------------------------------
BLUE CROSS & BLUE SHIELD UNITED OF WISCONSIN
By: /s/ Xxxxx X. Xxxxxxx
Title: ----------------------------------------
Vice President
----------------------------------------
UNITED WISCONSIN SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Title: ----------------------------------------
Vice President
----------------------------------------
UNIVERSITY HEALTH CARE, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President & CEO
----------------------------------------
UNIVERSITY COMMUNITY CLINICS, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President
----------------------------------------
HEALTH PROFESSIONALS OF WISCONSIN, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: ----------------------------------------
President
----------------------------------------
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