Exhibit 10.62
GROWTH HORMONE
DRUG THERAPY BUSINESS
MANAGEMENT, SERVICE AND SALES AGREEMENT
This Business Management, Service and Sales Agreement (hereinafter
referred to as the "Agreement") is made and entered into this 10th day of
November, 1998, by and between Nova Factor, Inc., a Tennessee corporation
(hereinafter referred to as "Supplier") and Childrens Home Services, a
California general partnership (hereinafter referred to as "CHS");
W I T N E S S E T H:
WHEREAS, CHS has been formed for the purpose, among others, of engaging
in the business of providing certain drugs, therapies and services, to patients,
as set out in the Partnership Agreement of CHS (the "Drug Therapy Business");
and
WHEREAS, CHS desires to obtain from Supplier, and Supplier is willing
to provide to CHS, a supply of drug ("Drug") and certain services necessary or
desirable in the conduct of CHS's Drug Therapy Business, all upon the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, CHS has also contracted with Childrens Home Care, a partner in
the CHS ("CHC") to obtain certain services from CHC;
NOW, THEREFORE, for and in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Goods and SERVICES TO BE PROVIDED BY SUPPLIER. During the term of
this Agreement, Supplier agrees to provide, or arrange for the provision of, the
following goods and services to CHS:
A. PATIENT SERVICES. Supplier shall provide coordination with CHC of
medication shipments, including advice as to when drug will be shipped, co-pay
amounts and other patient coverage information. However, it is contemplated that
CHC shall be the primary contact with the patient.
B. BILLING, REIMBURSEMENT, COLLECTION AND FINANCIAL COUNSELING
SERVICES.
(a) SERVICES. Supplier shall provide such billing,
reimbursement and collection services as are required by CHS in
conducting its Drug Therapy Business, including the preparation,
transmitting and monitoring of all bills to patients of CHS's Drug
Therapy Business, or third party payors; preparing requests or
otherwise assisting patients of CHS's Drug Therapy Business in seeking
reimbursement from all third party payors for the services provided to
such patients by CHS; and collection of amounts due CHS from patients
or third parties. CHS shall establish patient charges for such Drug
Therapy Goods and related services.
(b) CLEARANCE OF PATIENTS. Except as otherwise provided
herein, CHS agrees that it will not commit to provide Drug Therapy
Goods, or related services, to any patient until such patient is
approved by Supplier as eligible for third party reimbursement. CHS
shall promptly notify Supplier as to any potential patient and CHS
shall obtain such patient data as shall be specified by Supplier.
Supplier agrees to promptly contact the third party payor, investigate
a potential patient's insurance coverage and financial ability to pay,
obtain prior authorization, and notify CHS if the potential patient is
approved to
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purchase Drug Therapy Goods, or related services, from CHS. CHS shall
thereafter obtain all documentation necessary to file claims with third
party payors and forward same to Supplier. In the case of any potential
patient who is not approved, Supplier shall notify CHS of the reasons
for such disapproval. Supplier shall have no liability for relying upon
information provided by third party payors concerning coverage in the
event that such information shall subsequently prove to be incorrect.
(c) COLLECTION AND DISBURSEMENT. Supplier shall monitor and
coordinate collection of all monies due to CHS from patients and/or
third party payors for Drug Therapy Goods and related services.
Supplier shall deposit all CHS funds received by it into the bank
account designated by CHS, Supplier shall have authority to disburse
funds from this account as necessary to carry out the accounts payable
functions specified herein. Collections of all accounts are performed
by Supplier on behalf of CHS and Supplier shall not be responsible for
any failure to collect such accounts. Supplier shall use reasonable
efforts to collect said accounts (but not greater than those efforts
used in the collection of its own accounts) but Supplier shall not be
required to institute suit for collection or incur any extraordinary
expenses in attempting to collect these receivables unless such action
is approved by the Management Committee and the costs are paid by CHS.
(d) ACCOUNTS PAYABLE. Supplier shall provide accounts payable
services to CHS, to consist of the writing of checks necessary to pay
the debts and obligations of CHS. Supplier shall only use funds in the
operating account for this purpose and Supplier shall have no
responsibility or liability for paying the debts of CHS from any source
other than the funds in the operating account. Those persons having
authority to sign checks on the operating account shall be designated
by the Management Committee. All checks to Supplier shall require two
signatures by persons designated by the Management Committee.
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C. ACCOUNTING AND FINANCIAL REPORTING. Supplier shall provide the
following accounting and financial reporting services required by CHS in the
conduct of its Drug Therapy Business: (a) monthly, quarterly and annual
financial statements consisting of income statements, balance sheets, and a
detailed General Ledger, (b) all sales tax returns and reports, (c) schedules of
accounts receivable, accounts payable and cash applications, (after applying
cash received to appropriate invoices, applying credits to patient accounts and
applying write-offs and adjustments approved by CHS) and (d) reconciliation of
the bank account statements of CHS. Supplier shall not make provision for any
annual audit of the CHS, and such audit if desired by CHS shall be the
responsibility of CHS and shall be conducted by such independent accounting firm
as CHS may select. Supplier agrees to cooperate with the accounting firm in the
conduct of the audit of CHS or any other accounting procedure for which the
accounting firm may be engaged by CHS. CHS shall make available to Supplier such
information and documentation as may be needed to enable Supplier to prepare the
tax returns and financial reports specified herein.
D. MANAGEMENT SERVICES AND MARKETING.
(a) RESPONSIBILITIES. CHS hereby appoints Supplier to
manage and supervise CHS's day-to-day operations of its Tennessee
pharmacy, and for this purpose, CHS delegates to Supplier the
authority to make, subject to the terms hereof, such management
decisions as are necessary for the day-to-day operations of CHS's
pharmacy. Supplier
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accepts this engagement and agrees to faithfully perform the duties
and responsibilities set out herein. As part of its management
responsibilities, and in accordance with the provisions of this
Agreement, Supplier shall, subject to the direction, input and general
guidance of the Management Committee, specifically carry out all
duties related to the pharmacy and shall provide such procedure
manuals as necessary.
(b) SALES AND MARKETING. Supplier shall, at CHS's cost, also
provide such materials for marketing to managed care organizations as
Supplier and CHS may from time to time mutually agree to be helpful in
the operation of CHS's Drug Therapy Business. Supplier shall also, at
CHS's cost, provide sales support in the form of managed care marketing
efforts as Supplier and CHS may from time to time mutually agree to be
helpful to CHS.
(c) PERSONNEL. Supplier shall designate certain Supplier
personnel to perform the management functions set out hereunder and
such Supplier personnel shall conduct and supervise the operation of
CHS's Tennessee pharmacy. All such employees shall remain employees of
Supplier and Supplier shall retain control and supervision of such
employees.
E. PHARMACY SERVICES. Supplier shall assist CHS in the establishment,
build out and operation of a pharmacy located at Supplier's Tennessee facility.
Supplier shall staff the pharmacy location in accordance with the requirements
of Tennessee pharmacy law and Supplier shall cause the pharmacy to be in
compliance with all applicable pharmacy laws and regulations applicable thereto.
Supplier will secure the prescription from CHC, dispense the Drug, and provide
follow up documentation as required. Supplier shall maintain such pharmacy
records as required by state and local governmental entities. Such records shall
be the property of CHS; however, copies will be made available to Supplier and
CHC to the extent allowed by law. Supplier shall obtain and
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maintain for CHS, all of the necessary licenses required by local, state or
federal authorities, including, but not limited to pharmacy licenses.
F. SALE OF DRUG.
(a) DRUG. During the term of this Agreement, CHS shall
purchase from Supplier and Supplier shall sell and provide to CHS, or
arrange for the provision of, such units of Drug, which are required by
CHS to meet the needs of its Drug Therapy Business. Said Drug will be
sold and provided to CHS when and as requested by CHS for resale by CHS
to its patients. Supplier shall only be obligated to provide Drug to,
or on behalf of, CHS for resale to patients pursuant to a physician's
prescription. Supplier shall provide such Drug as is prescribed by the
Physician, (or if not specifically described in the prescription, as
determined by CHS), subject to product availability. If Drugs are not
available, Supplier shall promptly notify CHS. In the event of Drug
unavailability, Supplier shall provide Drugs to CHS on a "most favored
nations" basis and CHS shall be free to purchase any shortfall of Drugs
elsewhere. "Most favored Nations" basis shall mean that Supplier shall
provide Drugs to CHS on the same basis that it provides Drugs to any
other entity with which it has a management contract, but shall not
require Supplier to treat CHS the same as Supplier's direct patients.
(b) HANDLING AND LABELING. Supplier agrees that all Drug
provided by Supplier hereunder shall be labeled in accordance with
applicable federal, state and local law and that said Drug shall be
stored, shipped and handled by Supplier in accordance with recognized
professional standards for handling and storage of such products and in
accordance with Supplier policies and procedures to the extent that
same do not contradict the requirements of federal, state and local
law. As part of preparing drug for shipment from Supplier's facility,
Supplier shall pack the goods in cartons or other suitable
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packaging with such ice, cooling packs, insulation, or other packing
materials as necessary.
(c) DELIVERY. All Drug provided by Supplier pursuant to this
Agreement, other than Consigned Drug described in paragraph 1(d)
hereinbelow, shall be delivered either to (i) CHS's patients on behalf
of CHS, or (ii) CHC for delivery to CHS's patients, or (iii) the
dispensing pharmacy designated by CHS, whichever shall be designated by
CHS. The cost of delivery of all Drugs which are delivered by Supplier
to CHS at its pharmacy in Memphis, Tennessee shall be paid by CHS.
Title to said Drug shall pass to CHS upon delivery of Drug to CHS. Any
Drug shipped to a location other than CHS's pharmacy in Memphis,
Tennessee shall be shipped at CHS's cost with risk of loss in transit
being in CHS. A copy of all shipping confirmations shall be forwarded
to CHC.
(d) CONSIGNED DRUG. The parties recognize that Supplier will
place certain Drug with CHC for use in meeting the needs of certain CHS
patients ("Consigned Drug"), in accordance with the terms of the
Services Agreement entered into among CHS, Supplier and CHC dated the
same date as this Agreement. All sales of Consigned Drug by Supplier to
CHS are made pursuant to this Management, Service and Sales Agreement
and all terms and provisions of this Agreement apply to all sales of
Consigned Drug.
(e) DISCLAIMER OF WARRANTY. Supplier makes no warranty as to
any Drug sold hereunder to CHS, and ALL WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT BEING LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY
EXPRESSLY DISCLAIMED BY SUPPLIER. CHS shall, where allowable, be given
and shall obtain all rights under, and directly against, the warranty
of any manufacturer of Drug which is acquired by Supplier and resold to
CHS.
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2. COMPENSATION. In exchange for the services provided by Supplier
under Sections 1A through 1E of this Agreement, CHS agrees to pay Supplier in
accordance with the prices set out on Exhibit A attached hereto which exhibit
may be amended from time to time by mutual agreement of the parties. Said fee
shall be determined on a monthly basis by Supplier and Supplier shall at the end
of each calendar month during the term of this Agreement submit invoices to CHS
setting out the amounts due Supplier for said month. The invoices for Supplier's
services shall be due and payable thirty (30) days from the receipt of same by
CHS.
In addition to the fee for services set out in the previous paragraph,
CHS agrees to pay to Supplier in exchange for the Drug purchased by it from
Supplier, an amount per each unit of Drug sold to CHS equal to Supplier's cost
of acquisition of said unit of Drug. Supplier's cost of acquisition shall mean
the price paid by Supplier to its supplier for the Drug, plus taxes and freight,
and less volume incentive discounts and free goods. CHS may review Supplier's
books and records at such times as shall be mutually convenient with Supplier
and CHS in order to verify Supplier's cost of acquisition of Drug. Supplier
shall submit invoices to CHS on a monthly basis identifying each shipment of
Drug supplied to CHS during that month and such invoices shall be due and
payable to Supplier thirty (30) days from date submitted to CHS. Drug placed on
consignment by Supplier at CHC pursuant to the Services Agreement entered into
among Supplier, CHS and CHC, shall be treated as having been purchased by CHS on
the date the Drug is dispensed to the patient by CHC as pharmacy agent for CHS.
The parties agree that the fees set forth in this Section 2 reflect
fair market value for the products and services provided by Supplier.
3. CHS COSTS. It is agreed and understood that during the term of this
Agreement, Supplier shall be responsible for the costs incurred in providing the
services which it is obligated
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to provide. Notwithstanding the preceding provision, CHS shall be responsible
for the costs of salaries and fringe benefits for CHS's employees, if any; cost
of goods; outside auditor fees; state taxes; principal and interest on CHS
loans; compensation to CHC for acting as pharmacy agent; depreciation; and
payroll taxes for its employees, if any, and the cost of preparing CHS's Federal
and State Income tax returns. All such expenses shall be contracted for and in
the name of CHS, based solely upon CHS's credit, and Supplier shall not be
liable to third party providers for the costs of such goods and services.
Supplier shall file for, and on behalf of, CHS all sales and use tax returns
necessary in the operation of CHS's Drug Therapy Business, however CHS shall
remit the amount of said taxes, if any, out of its own funds and Supplier shall
not be responsible for paying these taxes.
4. SALES TAX. With respect to the sale of products supplied by Supplier
to CHS or its patients under this Agreement, CHS shall provide Supplier an
appropriate state resale certificate, or CHS shall be responsible for remitting
to Supplier any state sales or use taxes that may be due relating to such sales.
5. DISCOUNT. Supplier and CHS acknowledge that CHS is obligated to
disclose any discount from Supplier's usual and customary charges reflected in
the prices for the products listed on Schedule A and any price reduction made on
account of the warranties set forth in this Agreement under all applicable state
and federal programs that provide cost or charged-based reimbursement to CHS for
the goods and services provided and that this Section and the disclosure
contained on any invoice delivered to CHS are intended to constitute notice from
Supplier to CHS of such obligation.
6. SUBCONTRACTING. The parties to this Agreement recognize that
Supplier may provide to CHS certain of the goods and services which it is
obligated to provide under this Agreement by means of subcontracts with third
parties. Supplier shall notify CHS of all
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subcontracting arrangements, and shall obtain CHS's approval, which approval
shall not be unreasonably withheld or delayed.
7. INDEMNITY AND INSURANCE. Supplier and CHS hereby agree that:
(i) Supplier shall assume responsibility for and shall indemnify and
hold CHS (and its Partners) harmless, and defend CHS (and its
Partners), from all losses (including claims for injuries to
employees of Supplier or of CHS), expenses, attorneys' fees,
damages, claims and judgments resulting from the negligent acts or
omissions or wrongful acts of Supplier, its agents or employees;
(ii) CHS shall assume responsibility for and shall indemnify and
hold Supplier harmless, and defend Supplier, from all losses
(including claims for injuries to employees of Supplier or of CHS),
expenses, attorneys' fees, damages, claims and judgments resulting
from the negligent acts or omissions or wrongful acts of CHS, its
agents or employees.
The party seeking indemnification pursuant to this Section shall notify
the other party in writing by registered mail of the assertion of any claim, or
the commencement of any suit, action or proceeding by any party in respect of
which indemnity may be sought under this agreement within thirty (30) days of
the party's actual knowledge of such assertion or commencement. Failure to
notify the other party will not result in the waiver of indemnity rights with
respect to such claim, suit, action or proceeding, unless such failure shall
prejudice the rights of the other party. The parties shall cooperate with each
other in the defense and settlement of any such claim, suit, action or
proceeding.
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The indemnities and assumptions of liabilities and obligations herein
provided for shall continue in full force and effect notwithstanding the
termination of this Agreement whether by expiration of time, by operation of law
or otherwise.
During the term of this Agreement, Supplier will at its sole cost and
expense, maintain general public liability, products liability and property
damage insurance with limits of not less than $1,000,000.00 per incident; and
$3,000,000.00 per annum aggregate. All policies insuring against liability for
bodily injury or death or damage to property shall include coverage for
malpractice if such exposure exists and shall insure Supplier against the
matters covered by Supplier's contractual duty to indemnify CHS set out
hereinabove.
Supplier will name CHS as an additional insured on all such general
liability, products liability and property damage insurance policies and provide
CHS with certificates evidencing the insurance required hereunder, and all such
policies shall provide that notice of cancellation or termination thereof shall
be provided in advance to CHS. In the event of cancellation or termination of
the coverage described herein, Supplier shall immediately obtain substitute or
replacement coverage.
8. TERM. This Agreement shall be for a term of FOUR years from the date of
execution ("Initial Term"), unless otherwise terminated in accordance with this
section. This Agreement shall thereafter be automatically renewed for additional
12 month periods ("Renewal Term"), unless otherwise terminated in accordance
with the provisions herein. This Agreement shall terminate (i) at the election
of either party upon CHS or the other party ceasing to exist, the insolvency or
bankruptcy of the other party, the making by the other party of an assignment
for the benefit of creditors, the consent by the other party to the appointment
of a trustee or receiver, or the appointment without its consent of a trustee or
receiver for the other party or for a
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substantial part of its property or the institution by or against the other
party of bankruptcy, reorganization, arrangement or insolvency proceedings, (ii)
upon the mutual agreement of the parties, or (iii) upon notice by any party
hereto given twelve months prior to the effective date of termination provided
that such notice may not be given during the Initial Term. In addition, if
either party hereto shall breach the terms of this Agreement, the nonbreaching
party may give written notice of the breach to the breaching party, and if said
breach is not cured within 14 business days following the giving of said notice,
this Agreement shall at the option of the nonbreaching party be terminated.
Upon termination of this Agreement, Supplier shall provide CHS with
such records as are reasonably required by CHS to undertake collection and
billing activities which prior to termination were being handled by Supplier.
After termination, Supplier shall have no further obligation to perform any
services for CHS, including but not limited to billing or collection activities.
Notwithstanding the foregoing, at the request of CHS, Supplier shall continue to
provide collection services for a reasonable period of time to enable CHS to
transition to a new collection services provider, and Supplier shall be paid for
these continued services in accordance with Exhibit A.
9. FORCE MAJEURE. The obligations of Supplier hereunder shall be
excused during any period of delay caused by matters such as strikes, acts of
God, shortages of raw materials or power, governmental action or compliance with
governmental requirements, whether voluntary or pursuant to order, or any other
matter which is beyond the reasonable efforts of Supplier to control.
10. INDEPENDENT CONTRACTOR. It is agreed that Supplier shall be an
independent contractor, and not an employee or agent, of CHS. Supplier shall
have sole control and discretion in the manner of performing its obligations
under this Agreement and CHS shall not
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be responsible for the acts of Supplier while Supplier is performing services
under this Agreement. Supplier is solely responsible for its employees'
salaries, federal and state income withholding, social security tax withholding,
workmen's compensation benefits and fringe benefits.
11. SEVERABILITY. If any one or more of the provisions of this
Agreement shall for any reason be held illegal or invalid, such illegality or
invalidity shall not affect any other provision of this Agreement and this
Agreement shall be enforced as if such illegal or invalid provision had not been
contained herein.
12. CONFIDENTIALITY. Each party has developed or may during the term
hereof develop certain formulae, products, methods of doing business, customer
lists and other proprietary information which that party deems to be
confidential and a trade secret. In the course of fulfilling their respective
obligations hereunder, some of these formulae, products, methods and other
proprietary information will become known to the other party hereto. It is
contemplated that each employee or agent of the parties who will be exposed to
such confidential information will be required to execute a confidentiality
agreement with each party hereto. Each party also agrees that it will not
duplicate, make use of, or disclose, in any manner whatsoever, any information
which is deemed to be confidential by the other party, either during or after
the term of this Agreement, without the express prior written consent of the
other party hereto.
In the event that any information deemed to be confidential by a party
is provided to the other party or its employees or agents in writing, the party
providing same shall ▇▇▇▇ the writing as "confidential." In the event that such
information is provided in non-written form such as orally, by audiotape,
videotape or computer software or disc, the party claiming such information to
be confidential shall furnish to the other party a written list containing a
brief description of such item and designating such item as confidential. Upon
termination of this Agreement, all copies of any information hereunder deemed,
or designated by a party as, confidential shall be
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returned to the party who supplied the information, or who designated same as
confidential. Notwithstanding the preceding provision, the following types of
information provided by a party shall always be deemed confidential, whether or
not so designated: patient records; prescription files; costs of goods and
supplies; and financial records of the party.
It is recognized and acknowledged that damages caused by a party's
breach of this Section would be difficult to ascertain and would not adequately
compensate the other party for its losses. Therefore, both parties agree that
the party claiming a breach of this Section shall be entitled to injunctive
relief to restrain the commission or continued commission of said breach by
seeking such relief from a court of competent jurisdiction.
Notwithstanding the preceding paragraphs, this restriction shall not
apply (i) to any information which is not deemed confidential hereunder, or
which has not been designated as confidential in the manner specified herein,
(ii) to any information which was known to a party prior to its disclosure by
the other party, (iii) to any information which is or becomes public knowledge
through no failure of a party bound by this Agreement, (iv) to any information
which is independently developed by a party hereto, (v) to any information
reasonably required by healthcare providers involved in a particular patient's
care, (vi) to the extent that such restrictions conflict with the terms of
Partnership Agreement evidencing CHS, or (vii) to information provided to
voluntary accreditation agencies government agencies or third party payors as
required by law or consented to by the affected party.
This provision shall not negate or in any way affect any other similar
agreement by which any of the parties are bound.
13. PATIENT REFERRALS. No part of this Agreement shall be construed to
induce or encourage the referral of patients. The parties acknowledge that there
is no requirement under
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this Agreement or any other agreement between Supplier and CHS that either party
refer any patients to the other or any affiliate. Patients that receive products
from CHS purchased pursuant to this Agreement are patients of CHS and not
Supplier. No payment made under this Agreement shall be in return for the
referral of patients. CHS is free to refer patients to or purchase healthcare
goods and services from any source it chooses.
14. SERVICE TO OTHER BUSINESSES. CHS acknowledges that Supplier offers
its services to other businesses and CHS agrees that no provision contained
herein shall restrict or prohibit Supplier from providing services to others in
addition to CHS as long as the performance of said services does not interfere
with the performance of Supplier's obligations hereunder.
15. CHANGE IN LAW. No party shall make or receive any payment under
this Agreement if any judicial decision, legislative action, or regulatory or
other administrative interpretation, whether federal or state, would render
illegal the conduct of either party under this Agreement. If performance by
either party of any term of this Agreement should be deemed illegal for any such
reason, the affected party shall have the right to require that the other party
renegotiate the terms of this Agreement, such renegotiated terms to become
effective not later than fifteen (15) days after receipt of written notice of
such request for renegotiations. If the parties fail to reach an agreement
satisfactory to both parties within fifteen (15) days after the receipt of the
request for renegotiations, either party may terminate this Agreement upon
fifteen (15) days' prior written notice to the other party, or sooner if
required by law. Neither party will make payments under this Agreement which
would be prohibited by law.
16. LEGAL COMPLIANCE. It is the intent of the parties to establish a
business relationship which complies with the requirement of the "safe harbor"
regulations regarding price discounts set forth in 42 CFR Section 1001.952(h)
and which also complies with the requirements of the Medicare and
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Medicaid anti-kickback statute (set for the at 42 U.S.C. 1320 a-7b (b)) and the
parties believe that this Agreement satisfies those requirements.
17. RECORDS. To the extent required by Section 1861(b)(1)(I) of the
Social Security Act, Supplier shall, upon proper request, allow the United
States Department of Health and Human Services, the Comptroller General of the
United States and their duly authorized representatives, access to this
Agreement and to all books, documents and records necessary to verify the nature
and extent of the costs of the services provided by Supplier under this
Agreement at any time during the term of this Agreement and for an additional
period of four (4) years following the last date services are furnished under
this Agreement.
18. NONASSIGNABILITY. The rights, duties and responsibilities of the
parties hereto are personal in nature and, except as stated herein, shall not be
assigned without the express written consent of the other party.
19. APPLICABLE LAW. This Agreement shall be construed in accordance
with the laws of the State of Tennessee and the laws of the State of Tennessee
shall govern the rights, duties, liabilities and responsibilities created
hereunder.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall constitute one
instrument. Facsimile signatures shall have the same effect as originals.
21. EFFECT. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their successors, administrators, trustees and
assigns.
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22. MODIFICATION. This Agreement may be changed or modified only with
the written consent of both parties.
23. NOTICES. All notices, demands, requests, consents, reports,
approvals, or other communications which may be or are required to be given,
served, or sent pursuant to this Agreement shall be in writing and shall be
mailed by first class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram, addressed as set out below. Each
party may designate by notice in writing a new address to which any notice,
demand, request, consent, report, approval or communication may thereafter be so
given, served or sent. Each notice, demand, request, consent, report, approval
or communication which shall be mailed in the manner described above, or which
shall be delivered to a telegraph company, shall be deemed sufficiently given,
served, sent or received for all purposes at such time as it is delivered to the
addressee (with the return receipt or the delivery receipt being deemed
conclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
24. WAIVERS. A waiver of the breach of any provision of this Agreement
shall not be deemed a waiver of any other breach of the same or any other
provision hereof.
25. FAIRNESS. The parties hereto recognize that the Supplier is a
Partner of CHS. Each party acknowledges that the terms of this Agreement are
fair and reasonable to both parties and that it is in the best interest of each
party to enter into this Agreement. Each party further acknowledges that the
terms of this Agreement were negotiated, and that CHS's decision to enter into
this Agreement, was made solely by the other partner of CHS.
26. HEADINGS. All headings used herein are for ease of reference only
and shall in no way be construed as interpreting, decreasing or enlarging the
provisions of this Agreement.
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IN WITNESS WHEREOF, the undersigned parties hereto have caused this
Agreement to be executed as of the day and year first above written.
CHILDRENS HOME SERVICES, a general partnership
By: Childrens Home Care, a general partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Title: President
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Address: ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
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NOVA FACTOR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chairman
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Exhibit A
CHILDRENS HOME SERVICES
FUNCTION NFI
-------- ---
Sales/Mgmt $ *
Patient Services
Pharmacy Services *
Reimbursement Services *
Accounting Functions *
TOTAL MANAGEMENT FEE PER MONTH $ *
NOTES:
1. All marketing expenses will be billed to the partnership directly (i.e.
marketing materials, flyers, brochures, invitations, promotional items,
translation, stationary, etc. and to include production costs.)
2. All deliveries made by CHC will be reimbursed at a rate of $ per
delivery. It is anticipated that all patients that have been on service
more than months will receive delivery of their drug via FedEx.
3. Nurse training, if necessary, will be billed to the partnership at a rate
of $ .
4. All management fees will be reviewed after each of the first two six month
periods and adjusted prospectively, if necessary. This review will take
place annually thereafter. If there is a significant change in either
partner's responsibilities during these periods, the management fees will
be reviewed and adjusted accordingly.
5. Sub lease rental cost will be billed separately through a formal sub lease
agreement.
* Omitted information is the subject of a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933 and has been filed
separately with the Securities and Exchange Commission.
