1997 MEDICARE/MEDICAID REAGENT PURCHASING AGREEMENT
CONTRACT A
This agreement made and effective this 25 day of June, 1997 by and between Bayer
Corporation, acting through its Diagnostics Division at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx, 00000 (hereinafter "Bayer"), and__________________________
____________________________________________________ located at
_________________________________________________________________ (hereinafter
"Participant").
In consideration of the mutual promises and covenants contained herein, the
parties agree as follows:
1. Introduction
1.1 Pursuant to this Agreement, Bayer agrees to sell and Participant agrees
to purchase GLUCOMETER ENCORE(R) Blood Glucose Test Strips ("Products")
and/or GLUCOMETER ELITE(R) Blood Glucose Test Strips ("Products") for
resale exclusively to end-users who are Medicare/Medicaid recipients
("End-users").
1.2 Participant is currently a Bayer Authorized Distributor (Drug
Wholesaler, Physician and Hospital Distributors, Direct Retail Account,
Scientific Supply) which currently accepts Medicare/Medicaid assignment
or a Diabetes Care Center which is currently an authorized distributor
of Bayer's Products pursuant to a separate agreement between Bayer and
Participant the terms of which are incorporated herein by reference.
1.3 Bayer will issue a credit to the Participant for the rebate amount set
forth on Exhibit A and/or Exhibit B, attached hereto and made a part
hereof, for sales made to End-users for which Participant accepts
assignment of Medicare/Medicaid claims.
Accounts must refrain from debiting on current or past due statements
for proper issuance of credit by Bayer Corporation, Diagnostics
Division.
2. Credits
2.1 Participant agrees to purchase Products in the quantities and at the
prices designated in subparagraph 2.1.1. Bayer has no control over the
prices the prices for which the Products are sold by the Participant to
the End-users.
2.1.1 Product
Product Number Unit Price Effective Date*
------- ------- ---------- ---------------
GLUCOMETER ENCORE **per box 1/1/97- 1/31/97
Test Strip 50's 2250 **per box 2/1/97-12/31/97
GLUCOMETER ELITE **per box 1/1/97- 1/31/97
Test Strip 50's 3918 **per box 2/1/97-12/31/97
Minimum case quantities
*Price may change with 30 day written notice. LIT. PART #0450969
January 1997
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** Confidential treatment requested. Portions of this document have been
omitted by blocking out the relevant text pursuant to an Application for
Confidential Treatment. Such blocked out omissions have been filed
separately with the Securities and Exchange Commission. The Registrant
shall furnish all omitted schedules and exhibits to this document upon the
request of the Securities and Exchange Commission.
2.2 In consideration of the Participant's acceptance of the
Medicare/Medicaid reimbursement and co-payment as payment in full and
the submission of documentation which is acceptable to Bayer, Bayer will
credit the Participant's account in the amount of * for each box of
Glucometer Encore 50's; (#2250), and /or * for each box of Glucometer
Elite 50's (#3918) sold by the Participant to an End-user.
2.3 Participant shall claim credits on a monthly basis by submitting a
completed copy of Exhibit A and/or Exhibit B to the Bayer Customer Order
Services Department not later than the tenth day of the month following
the month for which the credits are being claimed. If the information
submitted by Participant is satisfactory, Bayer will issue a credit to
the Participant's account within twenty-one working days of receipt.
Claims will not be honored if submitted to Bayer 90 days after
Participant sale.
2.4 If the documentation submitted by Participant is insufficient to prove
the claimed credits for sales to End-users, Bayer will so notify the
Participant who will have ten (10) days from the date of such
notification to provide the necessary documentation. If Bayer does not
receive the documentation within this period, the credit will not be
granted.
2.5 Participant agrees that Bayer has the right to perform an audit of
Participant's records and/or the records of patients submitted to
participant at any time, upon reasonable prior notice, to determine that
rebates have been paid in accordance with the provisions of this
Agreement. Participant shall reimburse Bayer for any amounts that the
audit determines have been paid incorrectly, plus the costs of the audit
if the amount is incorrect by $1,000 or more.
2.6 Any credits or other price reductions issued by Bayer to Participant
under this Agreement may constitute a discount under Section 1128B (b)
(3) (A) of the Social Security Act [42 USC 1320a-7b (b) (3) (A)].
Accordingly, Participant agrees to disclose such credit or other price
reductions under any state or federal program which provides cost or
charge based reimbursement to the Participant for the goods provided
under this Agreement.
2.7 Products are for distribution in the U.S. only.
3. Term
3.1 This agreement will commence on 6/25/97 and shall terminate on December
31, 1997. It may be extended or modified only upon execution of a
writing by authorized representatives of both parties.
3.2 Bayer may terminate this Agreement immediately upon written notice to
the Participant if Bayer, in its sole judgment, determines that the
Participant has:
3.2.1 Knowingly claimed rebates for sales that were not made to
Medicare/Medicaid End-users; or
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* Confidential treatment requested. Portions of this document have been
omitted by blocking out the relevant text pursuant to an Application for
Confidential Treatment. Such blocked out omissions have been filed
separately with the Securities and Exchange Commission. The Registrant
shall furnish all omitted schedules and exhibits to this document upon
the request of the Securities and Exchange Commission.
-2-
3.2.2 Collected or attempted to collect from Medicare/Medicaid
recipients in an amount in excess of the Medicare/Medicaid
reimbursement rate and co-payment rate and the participant has
submitted rebate claims to Bayer for such uses.
3.2.3 Sold the Products provided to Participant under this Agreement
to parties other than Medicare/Medicaid End-users and the
participant has submitted rebate claims to Bayer for such uses.
3.2.4 Participant has acquired product at a price other than listed
in 2.1.1.
3.3 Bayer may terminate this Agreement for any reason upon sixty (60) days
prior written notice to Participant.
3.4 Either party may terminate this Agreement upon thirty (30) days prior
written notice upon the happening of any of the following events.
3.4.1 the adjudication of either party to be bankrupt or insolvent;
3.4.2 the filing by either party of a petition in bankruptcy or
insolvency;
3.4.3 the filing by either party of a petition or answer seeking
reorganization or readjustment under any law relating to
insolvency or bankruptcy;
3.4.4 the appointment of a receiver with respect to all or
substantially all of the property or either party;
3.4.5 any assignment by either party of its assets for the benefit of
creditors;
3.4.6 the institution by either party of any proceedings for
liquidation or the winding up of its business other than for
purposes of reorganization, consolidation or merger.
4. Warranty
4.1 Bayer's standard warranty terms shall apply to Products provided under
this Agreement.
5. General
5.1 Governing Law: This Agreement will be governed by the laws of the State
of New York.
5.2 Assignment: This Agreement shall not be assigned by Participant without
the prior written consent of Bayer.
5.3 Modification: This Agreement contains all the agreements and conditions
applicable to this undertaking. All prior oral and written agreements of
any kind are excluded. The terms and conditions of this Agreement shall
not be added to, modified, superseded or otherwise altered except by a
written modification signed by authorized representatives of both
parties.
-3-
5.4 No Waiver of Conditions: Failure of Bayer to insist on strict
performance shall not constitute a waiver of any of the provisions of
this Agreement or waiver or any other default of the Participant.
5.5 Independent Contractor and Indemnification
5.5.1 This Agreement does not create a special or fiduciary
relationship between the parties; Participant is an independent
contractor, and nothing in this Agreement is intended to
constitute either party an agent, legal representative,
subsidiary, joint venturer, partner, employee or servant of the
other for any purpose whatsoever.
5.5.2 Nothing in this Agreement authorizes Participant to make any
contract, warranty, or representation on Bayer's behalf or to
incur any debt or other obligation in Bayer's name. Participant
shall indemnify and hold Bayer, and Bayer's affiliates and
parent company's officers, directors, shareholders, employees
and representatives, harmless against any and all claims,
losses, costs, expenses, liabilities, and damages arising
directly or indirectly from, as a result of, or in connection
with Participant's performance of its obligations under this
Agreement including the costs, including attorney's fees, of
defending against them.
6. All notices to the respective parties shall be in writing and shall be
sent via certified mail return receipt requested to the following addresses:
To Bayer Corporation:
Bayer Corporation, Diagnostics Division
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxx
To: CERTIFIED DIABETIC SUPPLIES, INC.
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Name of Participant
0000 X & X XXXX.
-------------------------------------
XXXXXX, XX 00000
-------------------------------------
Attn: Xxxxx X. Xxxxxxx
--------------------------------
Bayer Corporation CERTIFIED DIABETIC SUPPLIES, INC.
(Authorized Representative in Tarrytown ---------------------------------
Office) Name of Participant
By: By: /s/ XXXXX X. XXXXXXX
----------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Xxxxx X. Xxxxxxx Pres/CEO
-------------------------------------- ---------------------------------
Print Name and Title Print Name and Title
6/25/97
-------------------------------------- ---------------------------------
Date Date
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Bayer Corporation Representative
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Exhibit A
BAYER CORPORATION, DIAGNOSTICS DIVISION PROPOSAL TO
CERTIFIED DIABETIC SUPPLY
CONTRACT PERIOD: Date of Acceptance through June 30, 2002
Rebate
NDC Product Basis
Number Code Product Name Price Rebate
------ ---- ------------ ----- ------
0000-0000-00 3918 GLUCOMETER ELITE(R) Test Strips, 50's * *
0000-0000-00 2250 GLUCOMETER ENCORE(R) Test Strips, 50's * *
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* Confidential treatment requested. Portions of this document have been
omitted by blocking out the relevant text pursuant to an Application for
Confidential Treatment. Such blocked out omissions have been filed
separately with the Securities and Exchange Commission. The Registrant
shall furnish all omitted schedules and exhibits to this document upon
the request of the Securities and Exchange Commission.
Exhibit B
Bayer Corporation, Diagnostics Division
Participating Plans List
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Number of Model
Participating Plan Name Address City ST Zip Covered Lives Type*
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*HMO, IPA, PPO, employer
Missing information (i.e. address, city, state, zip, model type) to be provided
by Certified Diabetic Supply before execution of this Agreement.
