Exhibit 10.11 PRESCRIPTION BENEFIT MANAGEMENT AGREEMENT THIS PRESCRIPTION
BENEFIT MANAGEMENT AGREEMENT ("Agreement") is made by and between PROVANTAGE
PRESCRIPTION BENEFIT MANAGEMENT SERVICES, INC., a Minnesota Corporation with
its principal place of business at 700 Pilgrim Way, Green Bay, ...
PRESCRIPTION BENEFIT MANAGEMENT AGREEMENT
THIS PRESCRIPTION BENEFIT MANAGEMENT AGREEMENT ("Agreement") is made by and
between PROVANTAGE PRESCRIPTION BENEFIT MANAGEMENT SERVICES, INC., a Minnesota
Corporation with its principal place of business at 700 Pilgrim Way, Green Bay,
Wisconsin 54313, hereinafter referred to as "PROVANTAGE", and SHOPKO STORES,
INC. a MINNESOTA corporation hereinafter referred to as the "Plan Sponsor".
WHEREAS, the Plan Sponsor has adopted a prescription drug program (the
"Plan") for its eligible employees and their eligible dependents (the
"Participants"), a description of which will be completed by the Plan Sponsor
prior to the effective date of this Agreement and shall be attached hereto and
incorporated herein (the "Plan Parameters");
WHEREAS, PROVANTAGE is a prescription benefit manager, and maintains a
computerized claims processing system, a prescription drug mail service, and a
network of retail pharmacies (the "Participating Pharmacies") who have agreed to
provide prescription services for PROVANTAGE's clients; and
WHEREAS, PROVANTAGE has agreed to provide prescription benefit management
services to Plan Sponsor upon the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Plan Sponsor and PROVANTAGE agree
I. PRESCRIPTION CLAIMS PROCESSING SERVICE
The terms and conditions set forth in this Section I shall apply only if
the Prescription Claims Processing Service option is selected by Plan Sponsor.
Plan Sponsor's election of the Prescription Claims Processing Service option
must be indicated by checking the appropriate box on the Plan Sponsor Data Sheet
attached to this Agreement as Exhibit A (hereafter, the "Data Sheet").
1. APPOINTMENT. The Plan Sponsor hereby appoints PROVANTAGE as its exclusive
Prescription Claims Processor, and PROVANTAGE hereby accepts such appointment.
2. AUTHORITY. PROVANTAGE hereby agrees to perform all of the following services,
and the Plan Sponsor hereby grants PROVANTAGE the authority and empowers
PROVANTAGE to perform such services:
A. To issue identification cards for all Participants entitled to receive
prescription drug benefits as directed by the Plan Sponsor;
B. To process all claims received from Participating Pharmacies and/or eligible
Participant in accordance with the Plan Parameters;
C. To reject or otherwise deny claims which are incomplete, ineligible, outside
the dates specified by this Agreement or invalid for any other reason;
D. To issue checks to Participating Pharmacies for the payment of claims;
E. To issue checks directly to the Plan Sponsor's Participants for covered items
if they are unable to have a Participating Pharmacy submit the claims on
F. To audit Participating Pharmacies as deemed necessary or appropriate by
PROVANTAGE for compliance with the specific Plan parameters as well as for
fraudulent or incorrectly submitted claims;
G. To generate reports for the Plan Sponsor, Participating Pharmacies and for
PROVANTAGE's own uses;
H. To maintain hard copy and/or computerized records of all transactions
completed on behalf of the Plan Sponsor;
I. To adjust the amount paid on a submitted claim so that it accurately
i. The correct ingredient cost at the time the benefit was received as
determined by First Data Bank current drug pricing database.
ii. The correct dispensing fee, if any.
iii. The correct sales tax, if any, for the State in which the benefit was
iv. The correct deductible, if any, that should have been collected.
v. To provide such other services as may be indicated on the Data Sheet.
3. IDENTIFICATION CARDS. PROVANTAGE will issue identification cards for eligible
Plan members containing the following information (all asterisked information to
be provided by Plan Sponsor):
A PLAN SPONSOR'S NAME*
B. PARTICIPANT'S NAME*
C. PARTICIPANT'S IDENTIFICATION NUMBER*
D. GROUP NUMBER
E. SPECIAL NOTES PERTAINING TO THE PLAN (IF APPLICABLE)
These cards remain the property of PROVANTAGE and must be surrendered upon
request. Each single Participant will be issued one card. Each Participant that
has dependent coverage will be issued two cards. If a card is lost or stolen,
PROVANTAGE will issue a replacement card and invalidate the lost or stolen card.
4. PAYMENT OF CLAIMS. The Plan Sponsor assumes all financial responsibility for
all claims submitted to PROVANTAGE, whether by Participating Pharmacies or
Participants. PROVANTAGE will issue checks to a Participating Pharmacy or
Participant only after the funds have been transferred from the Plan Sponsor to
PROVANTAGE. Payments to Participating Pharmacies shall be made by PROVANTAGE in
accordance with the terms of separate agreements between PROVANTAGE and the
Participating Pharmacies. The Plan Sponsor further acknowledges the right of any
Participating Pharmacy to proceed directly against the Plan Sponsor to collect
any legitimate claim which the Plan Sponsor has failed to pay to the
Participating Pharmacy through PROVANTAGE. This is a waiver of any claim of lack
of privity of contract between the Plan Sponsor and the Participating Pharmacy.
The Plan Sponsor shall transfer funds for the payment of prescription drug
claims under the Plan to PROVANTAGE pursuant to the banking arrangement between
the parties as specified in this Agreement. PROVANTAGE shall be responsible for
properly applying all funds transferred by the Plan Sponsor to PROVANTAGE for
the payment of prescription drug claims under the Plan.
5. DRUG COST CALCULATION. Drug cost calculations made by PROVANTAGE hereunder
shall be based upon prescription drug pricing information and clinical databases
supplied by First Data Bank, or any other nationally recognized database
selected by PROVANTAGE.
6. DRUG UTILIZATION REVIEW (DUR). PROVANTAGE shall, as part of the electronic
claim adjudication process, perform Drug Utilization Review (DUR). DUR includes
electronic drug interaction screening and the provision of other informational
messages to Participating Pharmacies. The information generated and provided in
connection with DUR is intended as a supplement to, and not a substitute for,
the knowledge, expertise, skill, and judgment of physicians, pharmacists and
other health care providers. Such providers are individually responsible for
acting or not acting upon the information provided through PROVANTAGE's DUR
Program, and for performing services in each jurisdiction consistent with the
scope of their professional licenses. PROVANTAGE disclaims all responsibility
for any and all actions or interventions, taken or not taken as a result of
PROVANTAGE's DUR services. Plan Sponsor acknowledges that PROVANTAGE may not
have all the relevant information necessary for the purposes of providing DUR
Information, including, but not limited to, patient diagnoses, utilization of
drugs obtained without using PROVANTAGE's Claims Processing System or not
included in the patients active profile, patient's medical history, and any
other idiosyncrasies of a patient. PROVANTAGE shall have no obligation to
acquire information concerning any patient where sufficient information is at
any time unavailable to enable PROVANTAGE's DUR Program to determine whether or
not intervention is indicated.
7. REPORTS AND STATEMENTS. PROVANTAGE shall provide the Plan Sponsor with a
detailed report on all claims paid or rejected on its behalf. PROVANTAGE shall
provide all Participating Pharmacies which submit claims for payment with a
8. AUDIT. PROVANTAGE will perform audits of Participants' claims or
Participating Pharmacies at its own discretion to ensure the integrity and
validity of the claims it receives and processes on behalf of the Plan Sponsor.
The Plan Sponsor may also request an audit of a specific claim or Participating
Pharmacy, to be conducted at Plan Sponsor's expense. if PROVANTAGE finds grounds
for denying or charging back any claims the Plan Sponsor will be notified.
PROVANTAGE's own books and files will be available for the Plan Sponsor's
inspection during regular business hours. However, the Plan Sponsor may only
inspect PROVANTAGE's books and files as they pertain to the specific Plan
9. COMPENSATION. Plan Sponsor agrees to pay to PROVANTAGE such compensation as
indicated on the Data Sheet. PROVANTAGE will provide an itemized semi-monthly
bill for its services. PROVANTAGE shall have the right after the initial term of
this Agreement to change the level of compensation PROVANTAGE receives for its
services upon sixty (60) days written notice to the Plan Sponsor. The Plan
Sponsor may object to any increase in such compensation by giving written notice
to PROVANTAGE at least thirty (30) days prior to the expiration of the sixty
(60) day period. In the event the parties cannot agree on an appropriate level
of compensation, this Agreement shall terminate at the end of the sixty (60) day
10. BILLING CYCLE AND PAYMENTS. PROVANTAGE will bill the Plan Sponsor or its
billing designee, as indicated on the Data Sheet, on a semi-monthly basis in
order that claims submitted to PROVANTAGE will be paid in a timely manner. The
first billing statement of every month will contain a list of all claims
submitted between the first (1st) and the fifteenth (15th) of the month and
approved for payment to the Participating Pharmacies as well as PROVANTAGE's
claims processing charges. The end of the month billing will contain all claims
submitted and processed between the sixteenth (16th) and the last day of the
month and approved for payment, as well as PROVANTAGE's claims processing fee,
and the monthly maintenance fees. Any credits due the Plan Sponsor from the
Participating Pharmacies will be credited on the next billing statement
following receipt of the credit by PROVANTAGE.
Bills will be generated and mailed on or after the 16th of the month and payment
is due on or before the twenty second (22nd) of the month for the first monthly
billing period. Bills will be mailed on or after the first of the month
following for the second billing period and payment is due on or before the
seventh (7th) of the month following the second billing period. In the event
payment is deemed late the funds will be transferred from the Claim Funding
Account if established, together with an administrative charge for this
transfer. In the event the Plan Sponsor does not have a Claim Funding Account or
has insufficient funds in the Claim Funding Account to cover the amount of the
invoice, payments deemed late shall be subject to interest at the rate of one
half of one percent per semi-monthly billing period (twelve percent (12%) per
annum) for payments more than thirty (30) days past due (or the maximum portion
thereof allowed by law).
11. CLAIM FUNDING DEPOSIT. The Plan Sponsor may be required to provide
PROVANTAGE with a claim funding deposit in the initial amount and on the terms
indicated on the Data Sheet. This deposit will be placed in a savings Account at
a reputable financial institution, in the name of the Plan Sponsor. The Plan
Sponsor agrees to appoint PROVANTAGE, its officers and agents the sole fiduciary
agents for this account. The Plan Sponsor will be responsible for the reporting
of any interest earned as income to the appropriate state and federal agencies.
The Plan Sponsor will be responsible for any service charges associated with
this account. In the event payment for claims and administrative fees payable
hereunder are not received by the due date indicated on the billing invoice,
PROVANTAGE at Its option, may withdraw the funds necessary from this account to
pay claims and twenty dollar ($20.00) per withdrawal administrative fee. The
Plan Sponsor shall immediately replace any funds transferred out of the Claim
Funding Account. The required amount of the claim funding deposit may be
adjusted during the term of this Agreement to provide PROVANTAGE with sufficient
funds to cover the estimated claims and claim processing fees for two
semi-monthly billing periods. The deposit will be held in the account for the
term of this Agreement and for 120 days thereafter. At the end of such period,
the full amount of the claim funding deposit account, less any outstanding
charges owed to PROVANTAGE or the Participating Pharmacies, will be refunded to
the Plan Sponsor.
12. OPTIONAL PROGRAMS. The Plan Sponsor may participate in any one or more of
PROVANTAGE's Optional Programs, as described in the Plan Parameters. Election
must be indicated on the Data Sheet.
II. PRESCRIPTION DRUG MAIL SERVICE
The terms and conditions set forth in this Section 11 shall apply only if the
Prescription Drug Mail Service option is selected by Plan Sponsor. Plan
Sponsor's election of the Prescription Drug Mad Service must be indicated by
checking, the appropriate box on the Data Sheet.
13. APPOINTMENT. The Plan Sponsor hereby appoints PROVANTAGE as its exclusive
Prescription Drug Mail Service provider, and PROVANTAGE hereby accepts such
14. AUTHORITY. PROVANTAGE hereby agrees to perform all of the following
services, and Plan Sponsor hereby grants PROVANTAGE the authority and empowers
PROVANTAGE to perform such services:
A. To provide and dispense all prescribed legend drugs, (collectively
referred to herein as "Pharmaceuticals"), as set forth in the Plan
Parameters, subject to availability. Such Pharmaceuticals shall be
supplied in the amounts prescribed, or as indicated in the Plan
B. To label and package the Pharmaceuticals as required by applicable State
and Federal Laws and Regulations and as is consistent with industry
practices and procedures.
C. To provide prepaid delivery of Pharmaceuticals to Participants'
residences by U.S. Mail, UPS or an overnight service in accordance with
applicable regulations and industry practices and procedures.
D. To provide, at PROVANTAGE's expense, toll free telephone lines, computer
services, informational brochures and similar administrative services as
PROVANTAGE shall determine to be appropriate for the provision of the
Prescription Drug Mail Services described herein.
15. TIMELINESS OF MAIL SERVICE. PROVANTAGE shall use reasonable efforts to
dispense Pharmaceuticals within two (2) business days after PROVANTAGE's receipt
of an acceptable prescription. Plan Sponsor acknowledges that PROVANTAGE shall
not be responsible for causes and circumstances beyond the reasonable control of
PROVANTAGE and that PROVANTAGE shall have no liability to Plan Sponsor or its
Participants as a result of any delay in preparation or delivery of
Pharmaceuticals. PROVANTAGE shall have no obligation to provide Pharmaceuticals
to any Participant until PROVANTAGE receives from such Participant any
applicable copayment charges.
16. PRESCRIPTIONS. PROVANTAGE assumes no liability or responsibility for the
accuracy, efficacy or timely receipt of prescriptions, orders or other
directions by physicians to supply Pharmaceuticals to Participants. PROVANTAGE
reserves the right to refuse to fill any prescription that professional judgment
dictates should not be dispensed.
17. BILLING AND PAYMENT. With respect to each prescription filled by PROVANTAGE,
Plan Sponsor shall pay PROVANTAGE the charges set forth in the Data Sheet
attached hereto plus any applicable state or federal sales or use taxes.
Whenever possible, and subject to State guidelines, PROVANTAGE agrees to
dispense the generic drug or the lowest cost item in stock unless the
prescribing physician orders otherwise.
If mail service is selected without a retail program PROVANTAGE shall bill Plan
Sponsor on a monthly basis. In the event a Participant submits to PROVANTAGE a
copayment in an insufficient amount, and PROVANTAGE is unable to collect the
correct copayment amount from the Participant, then PROVANTAGE reserves the
right to invoice Plan Sponsor for the amount of the uncollected copayment(s).
All payments shall be made to PROVANTAGE within fourteen (14) calendar days
after Plan Sponsors receipt of such invoice. Late payments will be subject to
interest at the rate of eighteen percent (18%) per annum. In the event a retail
and mail service program is selected, PROVANTAGE shall bill the Plan Sponsor as
indicated in section 10 of this Agreement.
18. MAINTENANCE OF RECORDS. PROVANTAGE shall maintain such records with regard
to Prescription Drug Mail Services provided hereunder as it shall determine to
be necessary and appropriate under the circumstances and as may be required
under applicable laws, rules and regulations. PROVANTAGE shall have no
responsibility for the maintenance of any records by or which are the obligation
of the Plan Sponsor. Records kept by PROVANTAGE with respect to Plan Sponsor's
Participants may be reviewed by Plan Sponsor during regular business hours, at
Plan Sponsor's expense provided, however, that no such review shall relate to
records for prescriptions dispensed more than two (2) years prior to the date
such review is requested.
PROVANTAGE shall furnish to Plan Sponsor a monthly report reflecting the
Pharmaceuticals dispensed pursuant to this Agreement, the details of which the
Plan Sponsor agrees to treat as confidential under applicable Federal and State
III. GENERAL TERMS AND CONDITIONS
The terms and conditions set forth in this Section III shall apply in all
instances regardless of whether the Plan Sponsor elects the Prescription Claims
Processing Service option or the Prescription Mail Service option, or both.
19. APPLICABLE PLAN. Plan Sponsor authorizes PROVANTAGE to fill prescriptions
and pay Participating Pharmacies or Participants in accordance with this
Agreement, including the Plan Parameters and the Data Sheet. The Plan Parameters
are expressly incorporated into this Agreement and must be completed prior to
PROVANTAGE's providing any services hereunder. The Plan shall be in effect for
the term of this agreement unless modified by the Plan Sponsor. The Plan Sponsor
may elect to amend the Plan, with sufficient written notice to PROVANTAGE.
20. TERM OF AGREEMENT. Subject to the terms and conditions of the following
paragraph, the initial term and commencement date of this Agreement shall be as
indicated on the Data Sheet. At the end of the initial term, and on each
anniversary thereafter, the term of this Agreement shall automatically renew for
successive one (1) year terms, unless either party gives written notice to the
other of such party's intent to terminate this Agreement at the end of the
then-current term, which notice shall be given at least ninety (90) days prior
to the end of the then-current term.
21. TERMINATION. If the Plan Sponsor or its designee fails to make any of the
payments referred to in this Agreement or breaches any of the terms and
provisions of this Agreement or if the Plan Sponsor shall make an assignment for
the benefit of creditors, file a petition of bankruptcy, is adjudicated
insolvent or bankrupt, has a receiver or trustee appointed for a substantial
part of its property, or has a proceeding commenced against it which will
substantially impair its ability to perform hereunder, then, in any such event,
this Agreement may be terminated immediately at the option of PROVANTAGE upon
written notice to Plan Sponsor. PROVANTAGE shall have the right to advise
Participating Pharmacies that effective on the termination date, the Plan
Sponsor's Participants are not eligible to receive benefits under the Plan. If a
Participating Pharmacy or a Participant requests information regarding the
denial of benefits, they may be advised that the Plan Sponsor has terminated the
program. The post-termination fees indicated on the Data Sheet will apply. The
termination of this Agreement by PROVANTAGE does not affect any liabilities of
the Plan Sponsor for the payments and charges due PROVANTAGE or its
Participating Pharmacies. These rights shall be in addition to all other rights
and remedies of PROVANTAGE as allowed by law or equity.
Either party shall have the right to terminate this Agreement effective as of
the date written notice of such termination is received by the other party in
the event that a law or regulation becomes effective after the date of this
Agreement which would render the services provided by PROVANTAGE under this
Agreement in violation of such law or regulation.
The Plan Sponsor remains responsible for the payment of all claims (and
associated administrative charges described herein) with a date of service prior
to the effective date of termination, which are received by PROVANTAGE within
NINETY (90) days after the effective date of such termination.
22. RELATIONSHIP BETWEEN PARTIES. Nothing in this Agreement shall be construed
to constitute either party a partner, joint venturer, employee or agent of the
other, nor shall either party have authority to bind the other in any respect,
it being intended that each shall remain an independent contractor solely
responsible for its own actions. No employee or agent of one
party hereto shall be considered an employee or agent of the other party hereto.
The Participating Pharmacies which provide services to the Participants shall
also do so as independent contractors.
23. LIST OF ELIGIBLE PARTICIPANTS. Upon execution of this Agreement, Plan
Sponsor will provide PROVANTAGE with a list of all eligible Participants. The
Plan Sponsor is responsible for providing PROVANTAGE with any changes
(additions, deletions and/or terminations) in writing as rapidly as possible
after they occur. In the event of a Participant's termination, the applicable
monthly fee will be assessed and the Participant(s) and their dependents will be
considered eligible for up to one full business day after notification has been
received by PROVANTAGE. Until such time, the Plan Sponsor will be responsible
for all liabilities incurred by the terminated Participant(s) and their
dependents. The Plan Sponsor shall hold PROVANTAGE harmless and without
liability for any errors or omissions, or any related problems that may result
from the Plan Sponsor's failure to provide an accurate, updated listing of
24. INDEMNIFICATION AND LIMITATION OF LIABILITY.
A. Each party agrees to indemnify and hold harmless the other party and
its directors, officers and employees (acting in the scope and course of their
employment and not as Plan Participants) against all claims, lawsuits,
settlements, judgments, costs, penalties and expenses, including aftorney's
fees, with respect to this Agreement and the acts of the indemnifying party or
its employees, acting alone or in collusion with others, to the extent it is
determined that the indemnified party's liability therefore was the direct
consequence of gross negligence, criminal conduct or fraud on the part of the
indemnifying party's directors, officers or employees.
B. The Plan Sponsor acknowledges that the Participating Pharmacies have
been chosen by PROVANTAGE solely based upon their willingness to provide
pharmacy services to the Plan Participants. PROVANTAGE has not performed any
investigation or review of any Participating Pharmacy's operations, and shall
not be responsible in any manner for any claim, loss or damage sustained as a
result of the provision of, or failure to provide, pharmaceutical goods or
services or any other action or failure to act by any Participating Pharmacy.
C. In no event shall either party be liable to the other for incidental,
consequential or exemplary damages.
D. PROVANTAGE relies upon outside data bases and software provided by
other vendors to provide information used by PROVANTAGE for drug pricing and in
its DUR program. PROVANTAGE's performance is limited by the information sought
and received by and from these vendors. PROVANTAGE will attempt to update these
data bases on a reasonable basis to reflect changes in the standards of
pharmaceutical prescribing; however, no data bases will contain all currently
available information. In most cases the vendors of such software and data bases
limit or exclude warranties regarding the information provided to PROVANTAGE for
use in its DUR and other programs. Such limitations and exclusions are
incorporated herein by this reference. PROVANTAGE's DUR program is dependent
upon the accurate transmission and processing of data by electronic means. Plan
Sponsor agrees to hold PROVANTAGE harmless from any liability for any
intervention or nonintervention resulting from any interruption in the
electronic processing regardless of the reason for said interruption. Because of
the large number of computer systems and software in use by providers,
PROVANTAGE cannot and does not guarantee that all providers are technically
capable of receiving DUR information. PROVANTAGE disclaims all express and
implied warranties of any kind, including but not limited to, any warranty as to
the quality, accuracy or suitability for any particular purpose of the
information generated and provided through DUR.
E. [Intentionally Deleted]
25. NOTICES. All notices provided for in this Agreement shall be in writing and
shall be sent by registered or certified mail, express mail, facsimile, or
delivered in person to the other party at the address above or indicated on the
Data Sheet or such other address as may be provided to the other party in the
same manner as that provided for giving of any notice. All notices shall be
deemed to have been received on the third (3rd) day after the date said notice
was mailed, or twenty four (24) hours following the time of said notice if sent
by facsimile, or immediately upon personal delivery.
26. OWNERSHIP OF INFORMATION. PROVANTAGE shall be the sole owner of the
information obtained through the administration and processing of the claims it
receives. The Plan Sponsor shall have free access to that information which
pertains specifically to the Plan Sponsor, but shall have no ownership rights
with respect thereto. Plan Sponsor, on behalf of itself and the Plan,
acknowledges that PROVANTAGE may use and/or transfer to third parties the drug
and related medical data collected by PROVANTAGE or provided to PROVANTAGE by
Plan Sponsor and/or Plan, for research, cost analysis, or cost comparison
purposes; provided, however, that PROVANTAGE shall maintain Participants'
confidentiality in accordance with all applicable laws. PROVANTAGE may receive
certain incentives or marketing support funds from pharmaceutical manufacturers
or other third parties based upon Participants' utilization of certain drugs in
the PROVANTAGE formulary.
27. CONFIDENTIALITY. Plan Sponsor agrees that it shall receive and hold in
confidence any knowledge or information concerning the affairs or business of
PROVANTAGE and PROVANTAGE's programs, procedures, or systems and will not,
during or after the term hereof, disclose same to any third party or use same
for the benefit of itself or any other person, firm or corporation related to or
associated with it in any way, except as may be required for the performance of
this Agreement or as may be required by law. Plan Sponsor agrees to hold
PROVANTAGE harmless from liability for any claim, injury, demand or action based
on the unauthorized release of such confidential information about PROVANTAGE's
In the performance of its obligations under this Agreement, PROVANTAGE will
receive private and confidential information concerning the Plan Participants.
PROVANTAGE is sensitive to the confidential nature of the files it maintains and
warrants that it has experienced no breach of this confidence in the history of
its operation. PROVANTAGE shall not disclose such information to any entity
other than the Plan Sponsor, unless required to do so by law or as otherwise set
forth in this Agreement. Any such disclosure shall be made in accordance with
applicable laws with respect to patient confidentiality.
28. NO THIRD PARTY BENEFICIARIES. Except as set forth in Paragraph 3 above, the
parties hereto, no individual person, participant insurance company, third party
payer or other entity, other than PROVANTAGE and Plan Sponsor (except
governmental authorities to the extent required by law), is or shall be entitled
to bring any action to enforce any provision of this Agreement against either of
the parties hereto, and that the covenants, undertakings, and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto, or their respective successors and
assignees as permitted hereunder.
29. EXCLUSIVITY. PROVANTAGE shall be the sole and exclusive provider of the
services described in this Agreement to Plan Sponsor while this Agreement
remains in effect. However, nothing in this Agreement shall prohibit ProVantage
from contracting with any other person, firm, corporation or other entity for
any purpose whatsoever for the providing or delivery of the same or similar
services as those described in this Agreement.
30. NON-DISCRIMINATION. PROVANTAGE shall not discriminate against any Plan
Sponsor or Participant on the basis of race, color, disability, national origin,
creed, sex or age.
31. ASSIGNMENT. This Agreement shall not be assignable by the Plan Sponsor to
any other person or entity, and any attempted assignment shall be void and of no
force and effect, unless the written consent of PROVANTAGE shall have first been
obtained, which consent shall not be unreasonably withheld. The foregoing
restrictions on assignment shall not apply to assignments to any entity which
controls, is controlled by, or is under common control with the Plan Sponsor,
provided PROVANTAGE is notified in writing of any such assignment within
fourteen (14) days thereof.
32. REGULATORY COMPLIANCE. Plan Sponsor acknowledges that the Plan is or may be
an "employee welfare benefit plan" as defined in the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. ss 1001 et seq., and the regulations
promulgated under that act. PROVANTAGE will provide Plan Sponsor with any
information in PROVANTAGE's possession necessary for the Plan Sponsor and the
Plan to comply with any laws or regulations applicable to the Plan, but the Plan
Sponsor's and the Plan's compliance with any such laws and regulations shall be
the sole responsibility of the Plan Sponsor and/or Plan. The Plan Sponsor shall
comply and ensure that the Plan complies with all such laws and regulations.
PROVANTAGE will obtain and maintain any licenses or regulatory approvals
necessary for it to perform PROVANTAGE's services under this Agreement. The Plan
Sponsor shall not name PROVANTAGE or represent that PROVANTAGE is, and
PROVANTAGE shall not be, a Plan Administrator or a named fiduciary of the Plan
as those terms are used in ERISA. The Plan Sponsor shall have complete
discretionary, binding and final authority to construe the terms of the Plan, to
interpret ambiguous Plan language, to make factual determinations regarding the
payment of claims or provisions of benefits, to review denied claims and to
resolve complaints by Plan Participants.
33. FORCE MAJEURE. Neither PROVANTAGE nor Plan Sponsor shall be deemed to have
breached this Agreement or be held liable for any failure or delay in the
performance of all or any portion of their respective obligations hereunder if
prevented from doing so by a cause or causes beyond their respective reasonable
control. Without limiting the generality of the foregoing,
such causes include acts of God or public enemy, fires, flood, storms,
earthquakes, riots, strikes, boycotts, lockouts, wars and war operations,
restraints of government, power or communication line failure or other
circumstances beyond such party's control, or by reason of the judgment, ruling
or order of any court or agency of competent jurisdiction, or change of law or
regulation subsequent to the execution of this Agreement.
34. MISCELLANEOUS PROVISIONS. The provisions of this Agreement shall bind and
inure to the benefit of the parties hereto and their heirs, legal
representatives and successors. Failure to exercise any of the rights granted
hereunder for any one default shall not be a waiver of the right to exercise any
of these rights for subsequent default. Neither this Agreement nor any term
hereof may be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed on behalf of both parties. Time is of the essence
in the performance of each and every obligation herein imposed. This Agreement
when executed by all parties constitutes the entire understanding between the
parties hereto. In the event any provision or part thereof contained in this
Agreement shall be determined by a court of competent jurisdiction to be invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other provision or part thereof contained
herein. The headings in this Agreement are used solely for the purpose of
convenience and shall not be deemed to list the subject of any provision or be
considered in the construction thereof. This Agreement shall be construed and
enforced according to the Employee Retirement Income and Security Act of 1974,
as amended from time to time ("ERISA"). To the extent ERISA does not apply, the
laws of the state of Wisconsin shall govern. Both parties understand that it is
their respective obligation to comply with all applicable state, federal and
local laws, regulations and guidelines.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to begin as
noted in the Data Sheet.
PLAN SPONSOR: SHOPKO STORES, INC.
By: /s/ Sharon Campbell Date: 2-12-96
Title: Director Compensation & Benefits
Attest: /s/ Douglas Wilcox Date: 2-12-96
Title: Benefits Manager -------
PROVANTAGE PRESCRIPTION BENEFIT MANAGEMENT SERVICES, INC.:
By: /s/ Nicholas G. Avgoulas Date: 3/4/96
Nicholas G. Avgoulas, Vice President
Attest: /s/ David K. Jewell Date: 3/4/96
David K. Jewell, Vice President
PRESCRIPTION BENEFIT MANAGEMENT AGREEMENT ADDENDUM
FOR PAYMENTS VIA THE AUTOMATED CLEARING HOUSE (ACH)
This Agreement is made by and between PROVANTAGE, INC., a Minnesota Corporation,
d/b/a ProVantage Prescription Benefit Management Services, Inc., with its
principal place of business at 700 Pilgrim Way, Green Bay, Wisconsin 54313,
hereinafter referred to as "PROVANTAGE", and the contract holder so indicated in
Exhibit A, hereinafter referred to as the "Plan Sponsor".
WHEREAS, PROVANTAGE is a prescription claims processor and not a Plan Sponsor
nor an Insurance company.
WHEREAS, PROVANTAGE will maintain a computerized claims processing system in
which it will process and pay the Plan Sponsor's prescription drug claims it
receives from a network of participating pharmacies.
WHEREAS, PROVANTAGE has no financial liability for the payment of any claims it
receives and/or processes on behalf of the Plan Sponsor.
WHEREAS, The Plan Sponsor wishes to have PROVANTAGE request payment for
prescription drug claims and its administrative charges by allowing PROVANTAGE
to debit the Plan Sponsor's bank account indicated hereunder in Exhibit A, via
the Automated Clearing House.
NOW AND THEREFORE, The Plan Sponsor and PROVANTAGE agree to the following terms
1. AUTHORIZATION. The Plan Sponsor hereby authorizes PROVANTAGE to debit the
account indicated in Exhibit A for prescription drug claims and administrative
charges incurred by the Plan Sponsor in accordance with the Prescription Benefit
Management Agreement to which this addendum is attached.
2. INVOICING. PROVANTAGE shall provide the Plan Sponsor with a billing invoice
and detail reports prior to initiating the ACH debit of the Plan Sponsor's
account. Billing invoices will be generated and mailed on the first business day
following the fifteenth and the end of each month. It shall be the
responsibility of the Plan Sponsor to notify PROVANTAGE if they have not
received an invoice for a given billing period.
3. BILLING CYCLE AND PAYMENTS. PROVANTAGE will bill the Plan Sponsor or its
billing designee, as indicated in Exhibit A, on a semi-monthly basis in order
that claims submitted to PROVANTAGE are paid in a timely manner. The first
billing statement of every month will contain a list of all claims submitted
between the first (1st) and the fifteenth (15th) of the month and approved for
reimbursement to the participating pharmacies as well as PROVANTAGE's claims
processing charges. The end of the month billing will contain all claims
submitted and processed between the sixteenth (16th) and the last day of the
month and approved for reimbursement, as well as PROVANTAGE's claims processing
fee, and the monthly maintenance fees. Any credits due the Plan Sponsor from the
participating pharmacies will be credited on this statement. Bills will be
mailed on the sixteenth (16th) of the month or the first business day thereafter
and the ACH debit of the Plan Sponsor's account shall occur on the twenty second
(22nd) of the month or the first business day thereafter, for the first monthly
billing period. Bills will be mailed on the first of the month or the first
business day thereafter and the ACH debit of the Plan Sponsor's account shall
occur on the seventh (7th) or the first business day thereafter, for the second
monthly billing period. All bills shall be deemed to have been received by the
Plan Sponsor on the third (3rd) day after the date said bill was mailed, or
within twenty four (24) hours if sent by facsimile or express mail. In the event
funds are willfully not made available for transfer via the ACH System the Plan
Sponsor shall be deemed in default and shall be subjected to late payment
penalties and/or automatic termination as outlined in the Prescription Benefit
Management Agreement to which this addendum is attached.
4. AVAILABILITY OF FUNDS. The Plan Sponsor warrants to PROVANTAGE that it shall
make available for debit sufficient funds to meet PROVANTAGE's full invoice
amount. The Plan Sponsor's willful failure to make these funds available for
transfer via the ACH System shall be deemed in default and shall be subjected to
late payment penalties and/or automatic termination as outlined in the
Prescription Benefit Management Agreement to which this addendum is attached.
5. PROVANTAGE'S LIABILITY. PROVANTAGE warrants to the Plan Sponsor that it shall
only debit the Plan Sponsor's account via the ACH System on or after the dates
indicated above and for the amount of PROVANTAGE's invoice. PROVANTAGE shall be
liable for and immediately return to the Plan Sponsor any amount debited in
excess of the amount(s) owed. PROVANTAGE's liability shall be limited to the
extent the debit amount exceeds the amount or amounts owed to PROVANTAGE or its
participating pharmacies. Notwithstanding any provision to the contrary
contained herein, PROVANTAGE shall be held harmless from liability for any
wrongful act or omission in connection with the ACH debit process including,
without limitation, any act or omission by any Automated Clearing House, any
financial institution or any person including any data processing vendor used by
PROVANTAGE or the Plan Sponsor. PROVANTAGE shall have no liability for any
consequential damages in any event.
6. NON-LIABILITY. The Plan Sponsor and PROVANTAGE agree to hold the other
harmless from liability for any claim, injury, demand or judgment based on
contract, tort, or other grounds arising out of an error made by the bank(s) or
other entities involved in the ACH debit process. Each party agrees to
immediately notify the other, if they believe an error has occurred. Both
parties further agree to work to correct any such error immediately.
IN WITNESS WHEREOF, The parties have executed this Agreement to begin as noted
in Exhibit A.
Name of Plan Sponsor: Shopko Stores, Inc.
/s/ Sharon Campbell
By:____________________________________ Date: 2-12-96
Title: Director Compensation & Benefits
/s/ Douglas A. Wilcox
By:____________________________________ Date: 2-12-96
Title: Benefits Manager
PROVANTAGE PRESCRIPTION BENEFIT MANAGEMENT SERVICES, INC.
/s/ Nicholas C. Avgoulas
Nicholas G. Avgoulas, Vice President
/s/ David K. Jewell
By:____________________________________ Date: 3-4-96
David K. Jewell, Vice President