AGREEMENT
Between
IVPCARE, INC.,
And
INTEGRAMED AMERICA, INC.
THIS AGREEMENT ("Agreement"), is dated October 1, 2005 and is made and
entered into by and between ivpcare, Inc., a Texas corporation with its
principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
000000 ("IVP"), and IntegraMed America, Inc., a Delaware corporation with its
principal place of business at Two Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("IntegraMed"). IVP and IntegraMed are individually referred to herein as a
"Party" and collectively referred to as "Parties."
RECITALS
0.1 WHEREAS, IVP is a licenced pharmacy specializing in dispensing
ingestable, injectable, and infusion drugs, pharmaceuticals, and products
related to the treatment of human infertility, pursuant to the prescription of a
duly licensed and authorized physician ("Pharmaceutical Products") to end-user
patients ("Customers");
0.2 WHEREAS, IntegraMed has developed, and may develop in the future,
relationships, affiliations and associations with certain infertility medical
practices, as set forth on Exhibit 0.2 attached hereto, as may be amended from
time to time (such existing and any future medical practice and associated
infertility medical practices shall hereinafter be referred to collectively as
the "Medical Practices");
0.3 WHEREAS, IntegraMed arranges for the retail distribution of
Pharmaceutical Products and educational materials to Customers of the Medical
Practices (collectively herein, "Pharmaceutical Services");
0.4 WHEREAS, IntegraMed will, through a variety of marketing
communications, management, and patient education efforts, introduce Customers
of the Medical Practices to the availability and benefits of the Pharmaceutical
Services it offers (the "Marketing Services") in recognition that on-going
communciations with the Medical Practices will facilitate greater penetration
and utilization of the Pharmaceutical Services by the Customers of the Medical
Practices; it being specifically understood that IntegraMed's efforts shall not
be the sole marketing efforts to the Medical Practices, but shall be in addition
to certain sales efforts made by IVP pursuant to Section 3.1.7; and
0.5 WHEREAS, IVP will provide administrative, business, and pharmacy
services as are necessary and appropriate for the provision of Pharmaceutical
Services to Customers of the Medical Practices (the "Services"); and
NOW, THEREFORE, in consideration of the foregoing premises and
of the mutual covenants and obligations set forth herein, and for such other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby covenant and agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. For the purposes of this Agreement, the
following definitions shall apply:
1.1.1 "Cost of Operations" shall mean a monthly fee recorded
by IVP on the last day of each month for the items described in Section
2.1 below. Cost of Operations shall equal that percentage of the Net
Sales realized or accrued during the current month as set forth on
Exhibit 1.1.1 attached hereto, as may be amended from time to time.
1.1.2 "Cost of Pharmaceutical Products" shall mean the cost of
Pharmaceutical Products sold by IVP resulting in Net Sales to Customers
of Medical Practices and shall equal IVP's wholesale cost for such
Pharmaceutical Products, as set forth on Exhibit 1.1.2 attached hereto,
as may be amended from time to time.
1.1.3 "Collections" shall mean all payments actually received
by IVP from the distribution of Pharmaceutical Products to Customers of
the Medical Practices and the provision of Pharmaceutical Services
hereunder.
1.1.4 "Cycle Kit" shall mean the packaging format and patient
education materials that IVP supplies to Customers of the Medical
Practices under the trade name "Cycle Kit(TM)."
1.1.5 "Direct Costs" shall mean the cost of outside
accountants and attorneys who provide services directly related to Net
Sales.
1.1.6 "Employees" shall mean such accounting, nursing,
pharmacy, secretarial, receptionist, and billing and collections
personnel necessary for IVP to provide the Services related to Net
Sales. Such Employees may be employees exclusively of IVP, or may be
independent contractors or leased employees.
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1.1.7 "Fiscal Year" shall mean the 12-month period beginning
January 1 and ending December 31 of each year.
1.1.8 "GAAP" shall mean generally accepted accounting
principles applied to public companies in the United States.
1.1.9 "Joint Committee" shall mean the committee described in
Section 5.1 below.
1.1.10 "Month" shall mean a calendar month.
1.1.11 "Net Sales" shall mean gross revenues resulting from
the provision of the Services, by IVP to Customers of the Medical
Practices, that are earned and recorded in accordance with GAAP less
contractual sales discounts and bad debt.
ARTICLE 2
COST OF OPERATIONS
2.1 COST OF OPERATIONS. The Cost of Operations reflected on Exhibit
1.1.1 as a pre-determined percentage of Net Sales cover, and fully compensate
IVP for the following costs and expenses with respect to the Net Sales:
2.1.1 Salaries, fringe benefits, payroll taxes, and other
costs of employing or retaining employees to provide the Services, as
defined in Section 0.7 hereof;
2.1.2 Any sales and use taxes assessed against IVP related to
provision of the Services ;
2.1.3 Professional and regulatory licensure fees;
2.1.4 Insurance premiums that are paid with respect to the
insurance delineated in Article 11 below.
2.1.5 Such other costs and expenses actually incurred by IVP
reasonably necessary for the provision of the Services.
2.2 In addition to the Cost of Operations provided for in Section 2.1,
IVP shall be entitled to an interest expense cost, with respect to its accounts
receivables resulting from Net Sales, at a rate equal to LIBOR plus 2.25%,
adjusted monthly based on the LIBOR for the applicable month.
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2.3 Notwithstanding anything to the contrary contained herein, Cost of
Operations shall not include the following:
2.3.1 Direct Costs;
2.3.2 The Marketing Services Fee;
2.3.3 Any federal or state income or franchise taxes of IVP
related to Net Sales; or
2.3.4 Cost of Pharmaceutical Products.
ARTICLE 3
DUTIES AND RESPONSIBILITIES OF IVP
3.1 SERVICES AND ADMINISTRATION. IVP agrees to record and account
separately for Net Sales and agrees that the Services delineated in this Section
3.1, all of which shall be fully compensated by and included in the Cost of
Operations and applicable Sales Support Fee.
3.1.1 IntegraMed hereby appoints IVP as IntegraMed's sole and
exclusive agent and administrator to distribute Pharmaceutical Products
to Customers of the Medical Practices and grants IVP all the necessary
authority to carry out its duties and responsibilities pursuant to the
terms of this Agreement.
3.1.2 IVP shall xxxx Customers and collect fees for
Pharmaceutical Products supplied to Customers of the Medical Practices.
3.1.3 IVP shall maintain all files and records relating to
accounting and billing records, and collection records with respect to
the Net Sales. Prescription records shall at all times be and remain
the property of IVP. IVP's maintenance of all files and records shall
comply with all applicable state and federal laws and regulations,
including, without limitation, those pertaining to confidentiality of
patient records. The records relating to Customers of the Medical
Practices shall be expressly deemed confidential and shall not be made
available to any third party except in compliance with all applicable
laws, rules, and regulations. IVP may utilize such records in order to
provide the Services hereunder, to perform billing functions, and to
prepare for the defense of any lawsuit in which those records may be
relevant. The obligation to maintain the confidentiality of such
records shall survive termination of this Agreement. IntegraMed,
subject to applicable HIPAA regulations and State privacy laws, shall
have unrestricted access to all of such records at all times and such
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right shall survive any termination of this Agreement. In connection
therewith, IntegraMed agrees to enter into IVP's standard Business
Associate Agreement required under HIPAA.
3.1.4 IVP shall maintain all reasonably necessary management,
administrative, supervisory, nursing, pharmacy, clerical, accounting
and bookkeeping employees necessary to provide, and IVP shall provide,
quality and competent Pharmaceutical Services to Customers of the
Medical Practices. IVP shall provide such computer services, printing,
postage and duplication services, and any other necessary or
appropriate administrative services reasonably necessary for the
provision of Pharmaceutical Services to Customers of the Medical
Practices. IVP shall have the responsibility for hiring, supervising,
promoting, reprimanding, suspending, and/or reinstating and terminating
its employees consistent with IVP's policies and procedures.
3.1.5 IVP shall arrange for such legal and accounting services
as may be reasonably required in the ordinary course of providing the
Pharmaceutical Services; provided, however, that IVP shall have no
authority to arrange for any legal or accounting services on behalf of
IntegraMed. IVP will maintain all bookkeeping services necessary to
support the Pharmaceutical Services made available to Customers of the
Medical Practices, including, without limitation, maintenance, custody,
and supervision of all business records, papers, documents, ledgers,
journals and reports, and the preparation, distribution, and
recordation of all bills and statements for services rendered by IVP,
including the billing and completion of reports and forms required by
insurance companies, governmental agencies, or other third-party
payors.
3.1.6 IVP shall remit to IntegraMed monthly the IntegraMed
Marketing Services Fee provided for in Article 6 hereof.
3.1.7 In connection with any Pharmaceutical Products sold to
Customers of the Medical Practices, IVP shall provide CycleTriage,
CycleTrack, CycleKits and any patient educational materials in the same
manner as it provides such to Customers purchasing Pharmaceutical
Products directly from IVP. Monthly sales call report documentation
shall be provided to IntegraMed.
3.1.8 IVP shall distribute the Pharmaceutical Products to
Customers of the Medical Practices in accordance with all applicable
laws and regulations and as prescribed by physicians associated with
the Medical Practices.
3.2 FINANCIAL PLANNING AND GOALS. IVP shall prepare annual Net Sales
projections reflecting the anticipated revenues and expenses. IVP shall present
the projections to the Joint Committee for its approval at least 30 days prior
to the commencement of the Fiscal Year. If the Joint Committee does not agree on
the projections or any aspect thereof for any Fiscal Year, the projections for
the preceding Fiscal Year shall serve as the budget until such time as
projections are approved.
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3.3 FINANCIAL STATEMENTS.
--------------------
3.3.1 IVP shall prepare and, within 6 business days following
the end of each month, present to IntegraMed a statement showing the
Net Sales, related expenses and fees due IntegraMed for the month and
for the Fiscal Year to date.
3.3.2 IVP shall prepare and, within 30 days following each
Fiscal Year end, present to IntegraMed a statement showing the Net
Sales, related expenses and fees earned by IntegraMed for the Fiscal
Year then ended. At the election of IntegraMed, expressed in writing to
IVP at least 90 days prior to the end of a Fiscal Year, the statement
referred to in this Section 3.3.2 shall be audited by Amper, Politziner
& Xxxxxx or other independent certified public accountant, at
IntegraMed's expense.
3.3.3 IVP's failure to present the statement to IntegraMed in
accordance with Section 3.3.2 within 45 days following the end of the
Fiscal Year shall be deemed a material breach subject to Section 8.1.2
below.
ARTICLE 4
DUTIES AND RESPONSIBILITIES OF INTEGRAMED
4.1 OVERSIGHT. IntegraMed, while delegating to IVP the fulfillment of
Pharmaceutical Services to Customers of the Medical Practices through this
Agreement, shall nonetheless have active oversight in IVP's fulfillment of
Pharmaceutical Services to Customers of the Medical Practices through its
participation in the Joint Committee. IntegraMed hereby agrees that all
compensation, expenses, and travel costs for its officers, directors, employees,
and consultants, shall be paid by IntegraMed.
4.2 COOPERATION WITH IVP. IntegraMed agrees that during the Term of
this Agreement, it will use its best efforts to cause its officers and employees
to execute such documents, agreements, notifications, and consents and take such
steps reasonably necessary to assist IVP in providing its Services under this
Agreement.
4.3 SALES AND MARKETING. IntegraMed shall provide marketing services in
the form of Customer education concerning the availability of the Pharmacuetical
Products and training Medical Practice personnel on the availabilty of the
Pharmaceutical Products. IntegraMed shall prepare an annual sales and marketing
plan for generation of Net Sales detailing its anticipated activities in such
regard. IntegraMed shall present the plan to the Joint Committee for its
approval at least 45 days prior to the commencement of the Fiscal Year. If the
Joint Committee does not agree on the plan or any aspect thereof for any Fiscal
Year, the plan, or portion of the plan in disagreement, for the preceding Fiscal
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Year shall serve as the plan until such time as a plan is the subject of
agreement. Monthly marketing activity documentation will be provided to IVP by
IntegraMed.
ARTICLE 5
JOINT DUTIES AND RESPONSIBILITIES
5.1 FORMATION AND OPERATION OF JOINT COMMITTEE. IVP and IntegraMed
shall establish a Joint Committee (the "Joint Committee"), which shall be
responsible for developing marketing policies for the overall provision of the
Services by IVP and IntegraMed hereunder. IntegraMed and IVP shall each be
entitled to elect two members to the Joint Committee, provided, however, that
each party shall be allowed only one vote on each matter submitted to the Joint
Committee for its vote. The representatives of IntegraMed and IVP on the Joint
Committee shall be either directors or executive officers of their respective
parties.
5.2 DUTIES AND RESPONSIBILITIES OF THE JOINT COMMITTEE. The
Joint Committee shall have the following duties and responsibilities:
5.2.1 ANNUAL PROJECTIONS AND MARKETING PLANS. All annual
projections prepared by IVP, and all sales, marketing, advertising, and
promotions plans prepared by IntegraMed, shall be subject to the
review, amendment, approval, and/or disapproval of the Joint Committee.
Approval shall not be unreasonably withheld.
5.2.2 STRATEGIC PLANNING. The Joint Committee shall develop
long-term strategic plans, from time to time.
5.2.3 RETAIL PRICING POLICIES. The Joint Committee shall
establish retail pricing policies.
5.2.4 PROVIDER CONTRACT. The Joint Committee shall have veto
authority over marketing any managed care, PPO, HMO, Medicare risk and
other provider contracts to the Medical Providers.
ARTICLE 6
INTEGRAMED FEES
IntegraMed shall be paid a marketing services fee, accrued and paid
monthly but reconciled to the annual results of operations, equal to 50% of the
amount of Net Sales less the sum of (a) the Cost of Pharmaceutical Products, (b)
Cost of Operations for such month, (c) Direct Costs for such month and (d) the
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applicable IVP Sales Intervention Fees set forth on Exhibit 0.2 (the Marketing
Services Fee"). The Marketing Services Fee shall be paid to IntegraMed on or
before the 20th calendar day following the month in which the Marketing Services
Fee is earned.
ARTICLE 7
EXCLUSIVE SERVICE RIGHT, TERM AND RENEWAL
7.1 IntegraMed grants IVP the exclusive right to provide the
Pharmaceutical Services on behalf of IntegraMed during the Term of this
Agreement.
7.2 The term of this Agreement shall begin on October 1, 2005 (the
"Effective Date") and shall expire on June 30, 2009 (unless this Agreement is
renewed from time to time as provided in this Section 8.2) or on any earlier
date if this Agreement is terminated pursuant to Article 8 below (the Effective
Date through the date of final expiration or termination shall be referred to as
the "Term of this Agreement"). This Agreement may be renewed by either party, if
within the period of 180 days prior to the date of expiration, one party gives
notice to the other of its intention to continue this Agreement under the same
terms and conditions as set forth herein or under such different terms and
conditions as particularly set forth in the written notice and further providing
that the other party has 30 days from the date of notice to accept, reject, or
modify the offer. If within 30 days the other party does not respond or by
written notice accepts, this Agreement shall continue for an additional 10 years
under the terms and conditions as provided in the notice. In the event the offer
is not accepted, the parties agree to negotiate, in good faith, a renewal of
this Agreement.
ARTICLE 8
TERMINATION OF THE AGREEMENT
8.1 TERMINATION. This Agreement may be terminated by either party to
this Agreement in the event of the following, provided, however, that no party
having the right to terminate this Agreement shall be obligated to exercise such
right:
8.1.1 INSOLVENCY. If a receiver, liquidator, or trustee of any
party shall be appointed by court order, or a petition to reorganize
shall be filed against any party under any bankruptcy, reorganization,
or insolvency law, and shall not be dismissed within 90 days, or if any
party shall file a voluntary petition in bankruptcy or make assignment
for the benefit of creditors, then either of the other parties may
terminate this Agreement upon 10 days prior written notice to the other
parties.
8.1.2 MATERIAL BREACH. If any party shall materially breach
its obligations hereunder, then either of the other parties may
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terminate this Agreement by providing 30 days prior written notice to
the breaching party detailing the nature of the breach, provided that
the breaching party shall not have cured the breach within such 30-day
period, or, with respect to breaches that are not curable within such
30-day period, shall not have commenced to cure such breach within such
30-day period and thereafter shall not have cured the breach with the
exercise of due diligence. It shall be a material breach for IVP to
provide the Services in a manner inconsistent with the generally
prevailing standard of care in the delivery of pharmacy services to
Customers, or to provide the Services in a commercially unreasonable
manner or in a manner that wastes or destroys the assets or reputation
of IntegraMed. IntegraMed shall have the burden of proving that IVP has
failed to provide the Services in a commercially reasonable manner or
has destroyed the assets or reputation of IntegraMed in an arbitration
proceeding or court of competent jurisdiction.
8.1.3 ILLEGALITY. Any party may terminate this Agreement
immediately upon receipt of notification by any local, state, or
federal agency or court of competent jurisdiction that the conduct
contemplated by this Agreement is forbidden by law; except that this
Agreement shall not terminate during such period of time as to any
party that contests such notification in good faith and the conduct
contemplated by this Agreement is allowed to continue during such
contest. If any governing regulatory agency asserts that the services
provided by any party under this Agreement are unlawful and such
assertion is not contested by such party (or if contested, the agency's
assertion is found to be correct by a court of competent jurisdiction
and no appeal is taken, or if any appeals are taken and the same are
unsuccessful), this Agreement shall thereupon terminate with the same
force as if such termination date was the date originally specified in
this Agreement as the date of final expiration of the terms of this
Agreement. Notwithstanding this paragraph, the parties acknowledge that
this Agreement serves the interests of all of the parties. For these
reasons, the parties agree to make such amendments to this Agreement as
are necessary to conform to the opinions, reviews, and/or orders of
regulatory and/or administrative agencies of any jurisdiction, such as
to preserve the legality of this Agreement, provided that such are not
to the material financial detriment of any party.
8.1.4 TERMINATION UPON LOSS OF LICENSE. IntegraMed may
terminate this Agreement upon 10 days prior written notice to IVP
should IVP's license to practice pharmacy, in any jurisdiction where
Pharmaceutical Services are provided to Customers of Medical Practices,
is suspended, revoked, or not renewed. Any loss, revocation, or failure
to renew licenses of IVP shall be deemed a material breach of this
Agreement by the party or parties whose negligence, fault, or failure
to provide necessary information is the primary cause of such loss,
revocation, or non-renewal.
8.1.5 TERMINATION UPON UNPROFITABILITY. In the event that, at
any time following the date nine months from the Effective Date of this
Agreement, there are no Net Sales generated from the sale of
Pharmaceutical Products to Customers of the Medical Practices
determined in accordance with GAAP for any period of six consecutive
months, then any party may terminate this Agreement upon 30 days prior
written notice to the other parties.
8.1.6 Terminations pursuant to Sections 8.1.1 through 8.1.5
shall be deemed termination for cause ("Termination for Cause"), and
shall be made by delivering a termination notice, detailing the reasons
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therefor, to the non-terminating party, and providing the opportunity
to cure under the provisions of Section 8.1.2 above. A termination for
any other reason shall be deemed termination without cause
("Termination without Cause").
ARTICLE 9
RIGHTS UPON TERMINATION
9.1 If this Agreement is Terminated for Cause by IntegraMed, then:
9.1.1 The provisions of Articles 10 and 11.1 shall be of no
force and effect.
9.1.2 The license granted by Article 12 shall cease, and
IntegraMed shall cease to use any such Tradename and cease to utilize
any written materials, for delivery to Customers of Pharmaceutical
Products, supplied by IVP.
9.2 If this Agreement is Terminated for Cause by IVP, then:
9.2.1 The provisions of Articles 10 and 11.2 shall be of no
force and effect.
9.2.2 The license granted by Article 12 shall cease, and
IntegraMed shall cease to use any such Tradename and cease to utilize
any written materials, for delivery to Customers of Pharmaceutical
Products, supplied by IVP.
9.3 If this Agreement is Terminated without Cause by any party, then:
9.3.1 If IVP is the non-terminating party, then (a) the
provisions of Section 11.1 shall continue to apply for the periods
specified therein; and (b) the license granted by Article 12 shall
cease, and IntegraMed shall cease to use any such Tradename and cease
to utilize any written materials, for delivery to Customers of
Pharmaceutical Products, supplied by IVP.
9.3.2 If IntegraMed is the non-terminating party, then (a) the
provisions of Section 11.2 shall continue to apply for the periods
specified therein; and (b) the license granted by Article 12 shall
Page 10 of 21
cease, and IntegraMed shall cease to use any such Tradename and cease
to utilize any written materials, for delivery to Customers of
Pharmaceutical Products, supplied by IVP.
9.3.3 The terminating party shall bear any (a) accounting and
bookkeeping; and (b) severance/vacation costs associated with any
employees which directly result from the termination.
9.4 In the event that this Agreement is terminated for any reason, then
(a) IVP shall continue dispensing Pharmaceutical Products to Customers of the
Medical Practices that it was servicing as of the date of notice of termination
and shall continue to pay to IntegraMed the Marketing Fee as provided for herein
for so long as IVP services such Customers, and (b) IVP and IntegraMed covenant
to utilize their best efforts, for a period 90 days prior to the termination
date and 30 days thereafter, or, if the required notice of termination be only
30 days, then for the notice period and 90 days post-termination, to fully
cooperate so as to effect a transition of such Customers to IntegraMed or its
designee (the "Transition Period"). For any services provided by IVP during a
Transition Period that extend beyond the termination date, IVP shall be paid a
reasonable fee to be agreed upon between the IVP and IntegraMed, but in no event
shall such amount be less than the Cost of Operations and Service Fee, if any,
that would have been earned by IVP during the Transition Period had the
Agreement not so terminated.
ARTICLE 10
INSURANCE
10.1 IVP, at its own cost, shall secure and carry insurance, covering
itself and its employees providing services under this Agreement in the minimum
amount of $1 million per incident, $3 million in the aggregate, for professional
negligence and general liability. Such insurance shall name IntegraMed as an
additional named insured. IVP shall also carry a policy of public liability and
property damage insurance with respect to the Facilities under which the insurer
agrees to indemnify IntegraMed, subject to ordinary deductibles, against all
cost, expense, and/or liability arising out of or based upon any and all claims,
accidents, injuries, and damages customarily included within the coverage of
such policies of insurance available for IVP. The minimum limits of liability of
such insurance shall be $1 million combined single limit covering bodily injury
and property damage. IntegraMed shall be an additional named insured under the
terms of such insurance coverages. A certificate of insurance evidencing such
policies shall be presented to IntegraMed within 30 days after the execution of
this Agreement. Failure to provide such certificate(s) with such period shall
constitute a material breach by IVP hereunder subject to the procedures of
Section 8.1.2 above.
10.2 IVP shall provide IntegraMed with written notice, at least 10 days
in advance of the effective date, of any reduction, cancellation or termination
of the insurance required to be carried by each hereunder.
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ARTICLE 11
NON-SOLICITATION AND NON-COMPETITION
11.1 During the Term of this Agreement, and for a period of two years
after the termination thereof (except as provided in Section 9 above),
IntegraMed shall, not individually or through an affiliate, (a) enter into any
agreement with another independent person or entity, other than IVP, to provide
services substantially similar to the Services required under this Agreement;
(b) market or sell any pharmaceuticals to any end-user patients, except through
IVP, during the Term of this Agreement; or (c) employ or solicit for employment
any employee of IVP, or contact any employee of IVP for the purpose of
encouraging such employee to leave the employment of IVP.
11.2 During the Term of this Agreement, and for a period of two years
after the termination thereof (except as provided in Section 9 above), IVP shall
not, either individually or through an affiliate, (a) market or sell any
Pharmaceutical Products to any patients or Customers of the Medical Practices
except with IntegraMed's marketing participation (and subject to the terms of
this Agreement), provided, however, that this prohibition shall not apply to the
Medical Practices identified on Exhibit 11.2 attached hereto who had Customers
that had purchased Pharmaceutical Products from IVP prior to the Effective Date
of this Agreement; or (b employ or solicit for employment any Employee of
IntegraMed, or its affiliates ("IntegraMed Employees"), or contact any
IntegraMed Employees for the purpose of encouraging such employees to leave
their employment.
ARTICLE 12
Licenses and Confidential Information
12.1 GRANT OF LICENSE. During the Term of this Agreement, IVP hereby
grants to IntegraMed a nonexclusive, personal, nonassignable, nontransferable,
royalty-free license to use the "Cycle Kit" tradename ("Tradename") in
connection with the Marketing Services to be performed pursuant to this
Agreement. IntegraMed hereby acknowledges IVP's exclusive ownership of the
Tradename.
12.2 TRADE SECRETS, PROPRIETARY AND CONFIDENTIAL INFORMATION.
IntegraMed hereby acknowledges that it shall have access to and become familiar
with certain management information systems, trade secrets, and proprietary and
confidential information of IVP, as described and scheduled on Exhibit 12.2
("Confidential Information"). IntegraMed hereby acknowledges IVP's exclusive
ownership of Confidential Information and agrees not to use or disclose such
Confidential Information without the prior written consent of IVP, which consent
may be withheld by IVP in its sole and absolute discretion. IntegraMed shall not
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photocopy or otherwise duplicate any Confidential Information of another party
without the prior express written consent of the such other party except as is
required to perform services under this Agreement. All such Confidential
Information shall remain the exclusive property of IVP and shall be returned to
the proprietor immediately upon any termination of this Agreement.
ARTICLE 13
MISCELLANEOUS
13.1 FURTHER ASSURANCES. Each party hereto agrees to perform any
further acts and to execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
13.2 PRIOR AGREEMENTS; AMENDMENTS. This Agreement and the accompanying
exhibits represent the entire agreement and understanding of the parties hereto
and supersedes any other prior agreements and understandings between the Parties
as to the subject matter covered hereunder, and this Agreement may not be
amended, altered, changed or terminated orally. No amendment, alteration, change
or attempted waiver of any of the provisions hereof shall be binding without the
written consent of all parties, and such amendment, alteration, change,
termination or waiver shall in no way affect the other terms and conditions of
this Agreement, which in all other respects shall remain in full force.
13.3 ASSIGNMENT; BINDING EFFECT. This Agreement and the rights and
obligations hereunder may not be assigned without the prior written consent of
all of the parties, and any attempted assignment without such consent shall be
void and of no force and effect. Subject to such limitations on assignment, the
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties' respective heirs, legal representatives, successors and
permitted assigns.
13.4 WAIVER OF BREACH. The failure to insist upon strict compliance
with any of the terms, covenants or conditions herein shall not be deemed a
waiver of such terms, covenants or conditions, nor shall any waiver or
relinquishment of any right at any one or more times be deemed a waiver or
relinquishment of such right at any other time or times.
13.5 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Any and all claims,
disputes, or controversies arising under, out of, or in connection with this
Agreement or any breach thereof, shall be determined by binding arbitration in
Washington, D.C. (hereinafter "Arbitration"). The party seeking determination
shall subject any such dispute, claim or controversy to the American Arbitration
Association, Washington, D.C., and the rules of commercial arbitration of the
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selected entity shall govern. The Arbitration shall be conducted and decided by
three arbitrators, unless the parties mutually agree, in writing at the time of
the Arbitration, to fewer arbitrators. In reaching a decision, the arbitrators
shall have no authority to change or modify any provision of this Agreement,
including any liquidated damages provision. Each party shall bear its own
expenses and one-half the expenses and costs of the arbitrators. Any application
to compel Arbitration, confirm, or vacate an arbitral award or otherwise enforce
this Section shall be brought only in the Courts of the States of New York or
Texas or the United States District Courts for the Southern District of New York
or the Northern District of Texas, to whose jurisdiction for such purposes
IntegraMed and IVP hereby irrevocably consent and submit.
13.6 SEPARABILITY. If any portion of the provisions hereof shall to any
extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such portion or provisions in circumstances other than those in
which it is held invalid or unenforceable, shall not be affected thereby, and
each portion or provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law, but only to the extent the same continues to
reflect fairly the intent and understanding of the parties expressed by this
Agreement take as a whole.
13.7 HEADINGS. Section and paragraph headings are not part of this
Agreement and are included solely for convenience and are not intended to be
full or accurate descriptions of the contents thereof.
13.8 NOTICES. Any notice hereunder shall have been deemed to have been
given only if in writing and either delivered in hand or sent by registered or
certified mail, return receipt requested, postage prepaid, or by United States
Express Mail or other commercial expedited delivery service, with all postage
and delivery charges prepaid, to the addresses set forth below:
13.8.1 If for IntegraMed:
Xxx Xxxxxx, President
IntegraMed America, Inc.
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
13.8.2 If for IVP:
Von L. Best, President & CEO
ivpcare, inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Page 14 of 21
Either party hereto, by like notice to the other parties, may designate
such other address or addresses to which notice must be sent.
13.9 INDEMNIFICATION.
13.9.1 IVP agrees to indemnify and hold harmless IntegraMed,
its shareholders, directors, officers, employees and servants from any
suits, claims, actions, losses, liabilities or expenses (including
reasonable attorney's fees and costs) arising out of or in connection
with any act or failure to act by IVP related to the performance of its
duties and responsibilities under this Agreement. The obligations
contained in this Section 13.9.1 shall survive termination of this
Agreement.
13.9.2 IntegraMed agree to indemnify and hold harmless IVP,
its shareholders, directors, officers, employees and servants from any
suits, claims, actions, losses, liabilities or expenses (including
reasonable attorney's fees and costs) arising out of or in connection
with any act or failure to act by IntegraMed related to the performance
of its duties and responsibilities under this Agreement. The
obligations contained in this Section 13.9.2 shall survive termination
of this Agreement.
13.9.3 In the event of any claims or suits in which IVP and/or
IntegraMed, their directors, officers, employees and servants are
named, each of IVP and IntegraMed, for their respective directors,
officers, employees agree to cooperate in the defense of such suit or
claim; such cooperation shall include, by way of example but not
limitation, meeting with defense counsel (to be selected by the
respective party hereto), the production of any documents in his/her
possession for review, response to subpoenas and the coordination of
any individual defense with counsel for the respective parties hereto.
The respective party shall, as soon as practicable, deliver to the
other copies of any summonses, complaints, suit letters, subpoenas or
legal papers of any kind, served upon such party, for which such party
seeks indemnification hereunder. This obligation to cooperate in the
defense of any such claims or suits shall survive the termination, for
whatever reason. of this Agreement.
13.9.4 Promptly after the receipt by IntegraMed of notice of
any claim or commencement of any action or proceeding subject to
indemnification delineated in Section 13.9.1 ("asserted liability"),
IntegraMed, will demand such indemnification from IVP and proffer the
defense to IVP. IVP may thereafter, at its option, assume such defense
at its own expense and by its own counsel. IVP shall provide written
notice to IntegraMed, within 20 days, of its assumption or declination
of such defense. If IVP shall undertake to compromise any asserted
liability, it shall promptly notify IntegraMed, of its intention to do
so and IntegraMed, agrees to cooperate fully and promptly with IVP and
its counsel in the compromise and defense of any asserted liability.
Page 15 of 21
IVP shall not enter into any non-monetary settlement hereunder without
the prior written consent of IntegraMed. Notwithstanding the foregoing,
IntegraMed shall have the right to participate in the compromise or
defense of any asserted liability with its own counsel and at its own
expense.
13.9.5 Promptly after the receipt by IVP of notice of any
claim or commencement of any action or proceeding subject to
indemnification delineated in Section 13.9.2 ("asserted liability"),
IVP will demand such indemnification from IntegraMed, and proffer the
defense to such party. Such party may thereafter, at its option, assume
such defense at its own expense and by its own counsel. Such party
shall provide written notice to IVP, within 20 days, of its assumption
or declination of such defense. If IntegraMed, shall undertake to
compromise any asserted liability, it shall promptly notify the IVP of
its intention to do so and IVP agrees to cooperate fully and promptly
with IVP and its counsel in the compromise and defense of any asserted
liability. IntegraMed not shall enter into any non-monetary settlement
hereunder without the prior written consent of IVP. Notwithstanding the
foregoing, IVP shall have the right to participate in the compromise or
defense of any asserted liability with its own counsel and at its own
expense.
13.10 CONSTRUCTION. Each party and its counsel have participated fully
in the review and revision of this Agreement. In construing this Agreement, it
shall be deemed to have been drafted jointly.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
IVPCARE, INC.
By: /s/ Von L. Best
-------------------------------
Von L. Best, President
INTEGRAMED AMERICA, INC.
By: /s/ Xxx Xxxxxx
------------------------------
Xxx Xxxxxx, President
Page 16 of 21
EXHIBIT 0.2
Medical Practices
A. 1% Sales Support Fee- IVP will deduct a Sales Support Fee of 1% of Net
Sales for the following Medical Practices:
1. Reproductive Science Center of Boston
2. Reproductive Endocrinology Associates of Charlotte
3. Reproductive Science Center of the Bay Area Fertility and Gynecology
Medical Group
4. Fertility Centers of Illinois
5. Shady Grove Fertility Centers
6. IVF Florida Reproductive Associates
7. Seattle Reproductive Medicine
8. Reproductive Partners Medical Group
B. 3% Sales Support Fee- IVP will deduct a Sales Support Fee of 3% of Net
Sales for the following Medical Practices:
1. Reproductive Medicine Associates of New Jersey- Morristown, NJ
2. Reproductive Science Associates- Mineola, New York and Stony Brook, NY
3. Atlanta Center for Reproductive Medicine- Atlanta, GA
4. Southeastern Fertility Center- Mt.Pleasant, SC
5. Midwest Reproductive Medicine- Indianapolis, IN
6. Center for Assisted Reproduction- Bedford, TX
7. Center for Reproductive Medicine- Minneapolis, MN
8. Colorado Center for Reproductive Medicine- Englewood, CO
9. The Center for Reproductive Medicine- Mobile, AL
10. Reproductive Resource Center- Overland, Kansas
11. Abington Reproductive Medicine-Philadelphia, PA
12. Oregon Health & Science University Consultants/Oregon Health & Science
University Medical Group
Page 17 of 21
EXHIBIT 1.1.1
Cost of Operations (% of Net Sales)
----------------------------------------------------------
Monthly Cost Of
Net Sales Operations
----------------------------------------------------------
----------------------------------------------------------
$25,000 or more 22.84%
$50,000 or more 17.15%
$100,000 or more 14.30%
$200,000 or more 12.86%
$400,000 or more 12.16%
$800,000 or more 11.81%
$1,250,000 or more 11.68%
$1,500,00 or more 11.64%
Page 18 of 21
EXHIBIT 1.1.2
Cost of Pharmaceutical Products
IVP will purchase Pharmaceutical Products using its wholesale license.
IVP will apply its utilization and market-share rebates related to the provision
of the Services; however, IVP will not apply its trade discounts received as
incentive for timely payment, or its discounts on bulk purchases as defined
below. These guidelines yield the following rebate structure as of the Effective
Date of this Agreement:
Qualifying Rebates (Passed along with respect to the provision of the Services):
-------------------------------------------------------------------------------
1. The variable Serono market-share rebates and the Serono Volume Rebates.
2. The Organon utilization rebates.
3. The Ferring market-share rebates.
Non-Qualifying Rebates (Kept by IVP):
-------------------------------------
1. All rebates given as incentive for timely payment (e.g., 2% 30/ Net 31).
Other Issues:
1. A few manufacturers, e.g., TAP, do not offer any rebates, and IVP buys at
Wholesale Acquisition Cost (WAC). These products will be billed at net
invoice +2%.
2. From time to time, IVP may receive additional discounts from manufacturers
for committing to bulk purchases. The quantities usually represent a three-
to 12-month supply, and the value of the discounts is partially offset by
IVP's cost of capital, storage costs, and property taxes. These discounts
will not be applied with respect to provision of the Services
3. WAC will be the basis by which all products costs will be applied with
respect to provision of the Services. Qualifying rebates that are taken by
IVP at time of payment will be passed with respect to provision of the
Services on IVP's invoice. Qualifying rebates that are received via check
from the manufacture at a later time will be estimated and accrued in the
monthly financials with respect to Net Sales.
Page 19 of 21
EXHIBIT 11.2
IVP's Prior Relationships with Medical Practices
1. Reproductive Science Center of Boston
2. Shady Grove Reproductive Science Centers, Inc.
Page 20 of 21
EXHIBIT 13.2
IVP's Trade Secrets, Proprietary, and Confidential Information
1. All information related to IVP that is not directly related to IntegraMed
2. IVP retail pricing structure.
3. All internal policies and procedures used by IVP.
4. IVP's rebate structure with all pharmaceutical drug manufacturers and
distributors.
5. IVP's business plans and strategies.
6. IVP's customer relationships, referral sources, payors, and patients.
7. IVP's dispensing and drug utilization data.
8. IVP's trade names and programs developed for its direct-to-patient
distribution services.
9. Any other material, programs, or systems that IVP deems as confidential.
Page 21 of 21
