PHARMACY BENEFIT MANAGEMENT AGREEMENT
This PHARMACY BENEFIT MANAGEMENT AGREEMENT (this "Agreement") is
between UNITED HEALTHCARE SERVICES, INC., on behalf of itself and its affiliates
from time to time, located at 9900 Bren Road East, Minnetonka, Minnesota 55343
(hereinafter "United HealthCare"), and MERCK MEDCO MANAGED CARE, L.L.C. located
at 100 Summit Avenue, Montvale, New Jersey 07645-1753 (hereinafter "PBM"). This
Agreement is effective on the date the parties have each executed it (the
"Effective Date"). It concerns services provided as of the "Commencement Date,"
as hereinafter defined. This Agreement supersedes and replaces any existing
agreements between the parties related to the same subject matter.
W I T N E S S E T H:
WHEREAS, United HealthCare desires to contract with a pharmaceutical
benefits management entity for pharmaceutical benefit management and related
services that United HealthCare will make available, together with other United
HealthCare services, to Health Plans, as hereinafter defined, and other
non-Health Plan business (affiliated with United HealthCare or to which United
HealthCare provides services) through contracts with United HealthCare; and
WHEREAS, PBM provides pharmaceutical benefits management and related
services and desires to contract with United HealthCare to provide such
management and services.
NOW, THEREFORE, in consideration of the terms and conditions set forth
in this Agreement, the undersigned parties agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINITIONS. In addition to the capitalized terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings:
(a) "AVERAGE WHOLESALE PRICE" or "AWP" means the average wholesale
price of the Covered Prescription Drug Services dispensed, utilizing
the current price list in the Blue Book and its supplements. If PBM
ceases to use the Blue Book and its supplements, PBM shall use such
other nationally recognized pricing source as PBM uses for all of its
remaining customers; or, if PBM uses more than one source, then the
source used for United HealthCare shall be the source mutually agreed
to by the parties. Under the Retail Pharmacy Program, AWP is based on
the package size submitted. Under the Mail Service Program, AWP is
based on package sizes of 100 units or 16 oz. quantities, or smaller
quantities if such quantities are not commercially available.
(b) "BENEFIT CONTRACT" means a benefit plan that: (i) is
sponsored, purchased, issued or administered by Payor and (ii) contains
the terms and conditions of a Covered Person's coverage. A Benefit
Contract is also known as a certificate of coverage, summary plan
description, evidence of coverage, or group services agreement.
(c) "COMMENCEMENT DATE" means June 1, 2000 or such earlier date on
which PBM begins to provide services under this Agreement in accordance
with SECTION 3.24.
(d) "COPAYMENT OR COINSURANCE OR DEDUCTIBLE OR OTHER CHARGE"
collectively known as "Copayment" means the charge, in addition to the
premium, which a Covered Person is required to pay for certain covered
services provided under the Benefit Contract and Pharmacy Rider.
Copayment or Coinsurance or Deductible or Other Charge may be either a
defined dollar amount or a percentage of eligible expenses. A Covered
Person is responsible for the payment of any Copayment directly to the
pharmacy at the time the prescription is dispensed.
(e) "COVERED PERSON" means an individual eligible to receive
coverage for outpatient prescription pharmacy benefits who is currently
enrolled under a United HealthCare or Payor Benefit Contract that
includes a Pharmacy Rider.
(f) "COVERED PRESCRIPTION DRUG SERVICES" means those covered
outpatient prescription drugs and covered pharmacy products, services
and supplies pursuant to a Covered Person's Benefit Contract and/or
Pharmacy Rider.
g) "HEALTH PLAN" means a licensed health maintenance organization
("HMO") or other similar organization that is either (i) owned by United
HealthCare where "Owned" means that United HealthCare owns not less than a
majority of the voting securities; or (ii) managed by United HealthCare,
where "Managed" means that United HealthCare manages the pharmacy program or
provides other management or administrative services such as claims
processing services, where the local managed health plan assumes medical risk
other than as defined below. Health Plan includes an HMO or other similar
organization Owned or Managed that offers an array of products including but
not limited to fully-insured, self-insured products (where such self-insured
products use the provider networks, medical management and other similar
services used by the HMO or similar organization), commercial HMO products,
Medicare risk products (Medicare+ Choice), Medicaid, EPO products, PPO
products, and all combination products that include an in-network and
out-of-network component such as point-of-service ("POS") products. When such
organization is Managed by United HealthCare, not Owned by United HealthCare,
Health Plan includes such organization only to the extent it has elected to
receive services pursuant to this Agreement. The term Health Plan is not
intended to include: (i) United HealthCare Insurance Company (UHI) products
unless: (A) such products use provider networks, medical management and other
similar services in a manner comparable to the HMOs or similar organization;
and (B) United HealthCare is responsible for medical underwriting risk; or
(ii) fully insured or self-funded products sold through United HealthCare's
Strategic Business Services division; or (iii) Medicare supplemental products
(MediGap); or (iv) *** of this Agreement.
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
(h) "INTELLECTUAL PROPERTY" means all patents, patents pending,
trademarks, service marks, trade names, service names, slogans,
registered copyrights, commercially significant unregistered
copyrights, technology rights and licenses, computer software
(including, without limitation, any source or object codes or
related documentation), trade secrets, franchises, know-how, and
inventions and all improvements to such intellectual property.
(i) "MAIL SERVICE PROGRAM" means a program contemplated by this
Agreement in which Covered Persons may mail a prescription together
with the applicable Copayment to PBM for dispensing of a 90 day
maximum supply of a covered drug via mail service.
(j) "MAXIMUM ALLOWABLE COST" or "MAC" means a list established
by PBM for its book of business showing the maximum allowable cost
for a list of prescription drug ingredients. Any generic or branded
generic drug on the MAC list dispensed at retail will be reimbursed
at the maximum allowed by such list.
(k) "PARTICIPATING PHARMACY" means a pharmacy, including a
retail or mail service pharmacy, which has entered into an agreement
with PBM under which pharmacy has agreed to provide Covered
Prescription Drug Services to Covered Persons and to comply with (i)
contractual requirements pursuant to this Agreement; and (ii)
regulatory requirements.
(l) "PAYOR" means United HealthCare or the entity or person
that has the financial responsibility to United HealthCare for
payment for services covered by a Benefit Contract and/or Pharmacy
Rider.
(m) "PHARMACY RIDER" means that rider to the Covered Person's
Benefit Contract that in addition to the Benefit Contract, states
the details of Covered Person's prescription drug coverage. The
Benefit Contract and Pharmacy Rider are used by PBM in processing
outpatient prescription drug claims in connection with this
Agreement.
(n) "PHARMACY & THERAPEUTICS COMMITTEE" or "P&T Committee"
means that United HealthCare committee that: (i) reviews a
prescription drug for inclusion on the United HealthCare Preferred
Drug List or other comparable formularies; and, (ii) develops other
criteria, procedures and rules for the Program including but not
limited to quantity level and prior authorization.
(o) "PREFERRED DRUG LIST" or "PDL" means a list that identifies
those Federal Drug Administration ("FDA") approved prescription drug
products that are preferred by United HealthCare for dispensing to
Covered Persons.
(p) "PROGRAM" means all pharmacy services provided under the
Benefit Contract and Pharmacy Rider to Covered Persons, including
days supply limitation, Copayment, Preferred Drug List and other
program specifications set forth in this Agreement or otherwise
agreed to, in writing, between or among the parties.
(q) "PDL REBATE(S)" means ***
(r) "RETAIL PHARMACY PROGRAM" means that part of the pharmacy
program where Covered Persons may purchase a maximum of a 34 day
supply (except as otherwise mutually agreed) of Covered Prescription
Drug Services from a retail Participating Pharmacy upon providing
verification of eligibility and payment of the applicable Copayment.
(s) "SUBSTANTIAL CHANGE" means a change in law or regulation
applicable to a party to this Agreement that materially adversely
affects the benefits such party reasonably expected to receive under
this Agreement.
(t) "UNITED HEALTHCARE" means the party to this Agreement or
another wholly owned affiliate, subsidiary or business division to
whom United HealthCare may assign this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES
2.1. REPRESENTATIONS AND WARRANTIES OF PBM.
2.1.1. ORGANIZATION AND QUALIFICATION. PBM represents and
warrants to United HealthCare that it is a limited liability
company duly organized, validly existing and in good standing
under the laws of New Jersey. PBM has the corporate power and
authority necessary to own and operate its properties and to
carry on its business as now conducted. PBM is qualified to do
business as a foreign corporation in every jurisdiction in
which the nature of its business and/or its ownership of
property requires it to be so qualified.
2.1.2. CORPORATE AUTHORIZATION. PBM represents and warrants
to United HealthCare that the execution, delivery, and
performance of this Agreement and the provision of the
services contemplated hereby are within its corporate powers.
All requisite authority necessary to enter into this Agreement
has been obtained, and PBM has duly and validly executed and
delivered this Agreement. Assuming this Agreement constitutes
the valid and binding agreement of United HealthCare, this
Agreement constitutes a valid and binding agreement of PBM
enforceable against PBM in accordance with its terms.
2.1.3. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. PBM
represents and warrants to United HealthCare that the
execution, delivery and performance of this Agreement does
not, and the provision of the services contemplated hereby
will not: (a) conflict with the Articles of Organization or
Bylaws of PBM; (b) conflict with or violate any laws
applicable to PBM or by which any of its properties is bound
or affected; or (c) result in any breach of or constitute a
default (or an event that with
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
notice or lapse of time or both would become a default)
under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the
properties or assets of PBM pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to
which PBM is a party, or by which PBM or any of its
properties is bound or affected. The execution and delivery
of this Agreement by PBM does not, and the performance of
this Agreement by PBM and the provision of the services
contemplated hereby by PBM will not, require any consent,
approval, authorization or permit of, or filing with or
notification to, any third party, except for certain
filings required by certain state governmental entities.
2.2. REPRESENTATIONS AND WARRANTIES OF UNITED HEALTHCARE.
2.2.1. ORGANIZATION AND QUALIFICATION. United HealthCare
represents and warrants to PBM that it is a corporation duly
incorporated, validly existing and in good standing under the
laws of Minnesota. United HealthCare has the corporate power
and authority necessary to own and operate its properties and
to carry on its business as now conducted. United HealthCare
is qualified to do business as a foreign corporation in every
jurisdiction in which the nature of its business or its
ownership of property requires it to be so qualified.
2.2.2. CORPORATE AUTHORIZATION. United HealthCare represents
and warrants to PBM that the execution, delivery, and
performance of this Agreement are within its corporate powers.
All requisite authority necessary to enter into this Agreement
has been obtained, and United HealthCare has duly and validly
executed and delivered this Agreement. Assuming this Agreement
constitutes the valid and binding agreement of PBM, this
Agreement constitutes a valid and binding agreement of United
HealthCare enforceable against United HealthCare in accordance
with its terms.
2.2.3. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. United
HealthCare represents and warrants to PBM that the execution,
delivery and performance of this Agreement does not, and the
performance of this Agreement by United HealthCare will not:
(a) conflict with the Articles of Incorporation or Bylaws of
United HealthCare; (b) conflict with or violate any laws
applicable to United HealthCare or by which any of its
properties is bound or affected; or (c) result in any breach
of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of United
HealthCare pursuant to any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which United HealthCare is a
party, or by which United HealthCare or any of its properties
is bound or affected. The execution and delivery of this
Agreement by United HealthCare does not, and the
performance of this Agreement by United HealthCare will
not, require any consent, approval, authorization or permit
of, or filing with or notification to any third party,
except for certain filings required by certain state
governmental entities.
SECTION 3. OBLIGATIONS OF PBM: PHARMACY MANAGEMENT AND SERVICES
3.1. GENERAL PBM SERVICES. PBM shall provide to United HealthCare
the services described in this Agreement and in EXHIBIT A. PBM
acknowledges that its position as a premier company capable and
desirous of providing industry leading products and services is an
inducement on which United HealthCare is relying in entering into this
Agreement.
3.2. LAWS, REGULATIONS AND LICENSES. PBM, at its own cost, shall:
(a) maintain all federal, state, and local licenses that are materially
necessary to provide services under this Agreement and the lack of
which could adversely affect United HealthCare; (b) shall comply with
all applicable statutes and regulations in providing all services
pursuant to this Agreement; and (c) require all Participating
Pharmacies employed by or under contract with PBM to comply with (a)
and (b).
3.3. PERSONNEL AND OTHER RESOURCES. PBM shall provide sufficient,
dedicated personnel, information systems support and other resources,
as reasonably required to successfully administer a high quality,
cost-effective Program for United HealthCare pursuant to this
Agreement. PBM and United HealthCare shall review the appropriateness
of resource allocation on a regular basis, no less often than
quarterly. United HealthCare has the right to interview and approve of
any recommended new hires for the Dedicated Pharmacy Management Unit
discussed below. United HealthCare also has the right to have a PBM
employee removed from providing services for United HealthCare. PBM
shall be responsible for all compensation, benefits and taxes of PBM's
employees. If the parties agree to locate any PBM employees at a United
HealthCare location, United HealthCare shall be responsible to provide
workspace, supplies and equipment to PBM within a mutually agreed upon
reasonable time frame and at a mutually agreed upon cost.
3.3.1. PBM agrees to have a Dedicated Pharmacy Management
Unit located in Minneapolis as part of the pharmacy management
services provided for United HealthCare. PBM agrees to have
this unit fully operational prior to the Commencement Date.
United HealthCare will designate the name of this dedicated
unit, subject to the approval of PBM.
3.3.2. PBM agrees that the senior management team dedicated
to United HealthCare shall be located in Minneapolis and shall
consist of a senior level employee who has decision-making
authority. In addition to general PBM management expertise,
PBM shall have individuals located in the Dedicated Pharmacy
Management Unit with expertise in: (a) clinical and analytical
services, (b) customer account services, (c) marketing and
sales support, (d) pharmacists to work with the Health
Plans, and (e) account management for Health Plan and
non-Health Plan business. PBM shall also provide the
following support to the Dedicated Pharmacy Management
Unit's activities for United HealthCare from PBM's
corporate or other offices: customer service, legal and
regulatory compliance, information systems, network
management, operational support, underwriting, manufacturer
activity and clinical programs.
3.3.3. PBM agrees that the services provided by PBM's
dedicated pharmacy management services include: (a) work with
United HealthCare to position United HealthCare's prescription
drug Programs for economic and service success in a changing
competitive market place; (b) formulate appropriate pharmacy
goals with and for United HealthCare; (c) develop and execute
a pharmacy marketing plan that will enable United HealthCare
to meet its sales and growth goals; and (d) help with pharmacy
cost management including United HealthCare's trend management
and per member per month (pmpm) cost management.
3.3.4. PBM agrees to provide dedicated management and sales
support as reasonably requested to optimize the value of
United HealthCare's Program and to attain United HealthCare's
identified goals. PBM's marketing and sales support shall
include but not be limited as the market changes from time to
time, to the following: (a) strategic consultation, training
and education; (b) advanced training modules for sales
representatives; (c) continuing education programs; (d) site
visits and video presentations; (e) focus groups and related
consulting; (f) press release development and recommendations;
(g) strategies to successfully market against competitors; (h)
presentation and reference materials for use by sales
representatives; (i) client sales support during finalist
presentations; (j) professionally designed marketing
literature that effectively positions United HealthCare and
communicates the clients' prescription benefit programs; and
(k) customized communication programs to motivate and inform
selected audiences.
3.3.5. PBM agrees that different marketing strategies will
be provided to United HealthCare for growth goals based on
revenue, profit, and membership.
3.4. RETAIL PARTICIPATING PHARMACY NETWORK. PBM agrees to provide
national networks of retail Participating Pharmacies under contract
with PBM to provide dispensing services to Covered Persons under the
Retail Pharmacy Program. PBM agrees that United HealthCare may require
the termination of a specific retail pharmacy for good cause including
quality of care issues. PBM shall notify United HealthCare of any
terminations in the Participating Pharmacy network. PBM shall send
letters to Covered Persons, who have utilized a Participating Pharmacy
in the prior twelve months, notifying them of the termination of such
Participating Pharmacy, after receiving from United HealthCare: (a) the
addresses of the affected Covered Persons; and (b) the approval of the
letters by United HealthCare. United HealthCare shall be responsible
for the postage costs of any mailings to Covered Persons when a
Participating Pharmacy is terminated at United HealthCare's request.
PBM shall be responsible for the postage costs of
any mailings to Covered Persons when Participating Pharmacy is
terminated at PBM's request.
3.4.1. PBM will provide United HealthCare with at least
three network alternatives by the Commencement Date as
described in the FINANCIAL APPENDIX:
3.4.1.1. PBM shall provide and maintain a
Participating Provider network that is taken as a
whole no less favorable in terms of number, location,
and quality of providers than the network available
to United HealthCare as of the period just prior to
the Commencement Date and PBM shall guarantee no
deterioration in reimbursement during the term of
this Agreement as compared to the period just prior
to the Commence Date. This network may upon parties'
mutual written consent be contracted through United
HealthCare.
3.4.1.2. PBM shall make available its CCNIII network.
3.4.1.3. PBM shall make available its CCN+ network.
3.4.2. PBM agrees to use reasonable commercial efforts to
create alternative retail networks for any new products or
other offerings that may be developed by United HealthCare
from time to time.
3.4.3. For the network described in SECTION 3.4.1.1, PBM
agrees that during the term of this Agreement all PBM
customized pharmacy provider agreements for such retail
pharmacy network shall be assignable to United HealthCare.
Such assignment shall be made at United HealthCare's sole
discretion and at a time determined by United HealthCare.
3.5. MAIL SERVICE. PBM shall provide to United HealthCare and
Health Plans shall use PBM's mail service program as its exclusive mail
service program, as more fully described in the FINANCIAL APPENDIX.
United HealthCare shall use its reasonable commercial efforts to
encourage non-Health Plan business to use PBM's mail service. PBM
agrees to interface with other mail service vendors utilized by
non-Health Plan business as reasonably requested using PBM's
specifications.
3.6. CUSTOMIZED INSTALLATION MATERIALS. PBM agrees to provide to
United HealthCare customized installation materials for United
HealthCare that are accurate and support the specific language in the
Benefit Contract and Pharmacy Rider. PBM is responsible for
administering the Benefit Contract and Pharmacy Rider accurately and in
accordance with all regulatory requirements. At United HealthCare's
option and approval, PBM shall produce brochures, and other Covered
Person materials for Covered Persons specific to Covered Prescription
Drug Services. PBM agrees to provide an accompanying explanatory
brochure and direct reimbursement claim forms for use by Covered
Persons who have not received or who have lost their Identification
Cards. PBM agrees that any Covered Person materials must be approved by
United HealthCare. United HealthCare shall be responsible for all
postage costs related to mailings to
Covered Persons except as otherwise provided in this Agreement.
3.7. ELIGIBILITY. PBM agrees to administer eligibility of Covered
Persons according to eligibility information provided by United
HealthCare via tape or telecommunication or such other reasonably
practicable method in a mutually agreeable acceptable format. PBM
agrees to provide toll-free access for Covered Persons to PBM's
Customer Service Department for eligibility and claims processing
assistance. PBM may rely on eligibility information provided by United
HealthCare for all purposes related to this Agreement.
3.8. COVERED PERSON PROTECTION PROVISION. PBM hereby agrees that it
shall not seek payment, other than Copayments, from any Covered Person
for Covered Prescription Drug Services under any circumstances. This
Section shall survive the Agreement.
3.9. COMMUNICATIONS. PBM agrees that all written communications
sent to United HealthCare Covered Persons, participating providers or
facilities that relate in any way to United HealthCare's Benefit
Contract or Pharmacy Rider must be reviewed and approved by United
HealthCare before such communications are sent out to any such
individuals or groups. PBM agrees that all program communication
protocols to be used with United HealthCare participating physician
providers will be reviewed and approved by United HealthCare prior to
use. United HealthCare shall approve or disapprove all such materials
within a reasonable time after submission by PBM.
3.10. CLAIMS PROCESSING.
3.10.1. PBM shall process Covered Persons' Covered
Prescription Drug Services claims in accordance with
regulatory requirements, the Benefit Contract and Pharmacy
Rider, and PBM'S standard operating procedure.
3.10.2. At the end of each bi-weekly claims cycle, or other
processing time period as mutually agreed to by the parties,
PBM shall provide claims reports and written notice to United
HealthCare of the amount necessary to pay claims processed and
fees due to PBM for claims processed.
3.10.3. Any disputes over claims shall be resolved prior to
payment by PBM. If PBM makes an error or omission in claims
processing, PBM shall be solely responsible for any related
costs.
3.10.4. All postage costs related to payment or denial of
direct reimbursement claims is the responsibility of PBM.
3.11. CLAIM APPEALS. In the event of a claim denial by PBM, PBM
shall promptly communicate to the Covered Person the right to appeal
according to the Covered Person's Benefit Contract and Pharmacy Rider
and applicable law.
3.12. CLAIMS AND PHARMACY AUDITING. PBM shall regularly audit its
electronic and on-site claim processing activities and shall regularly
audit its retail
pharmacies, in accordance with PBM's standard audit procedures. PBM
shall provide United HealthCare with a report on such audits
containing specific audit information and containing such other
information as United HealthCare reasonably requests. United
HealthCare shall receive one hundred percent of any such audit
recoveries that were incorrectly paid pursuant to the United
HealthCare Program. When any such overpayment was the result of
errors or omissions by PBM, payment of such audit recovery shall
include interest at the prevailing prime rate of interest as
determined by the WALL STREET JOURNAL for the period of time from
the payment of the claim to receiving recovery from PBM.
3.13. REPORTS. PBM agrees to provide aggregate reports and
Payor-specific reports in a format and containing such information as
United HealthCare reasonably requests; provided in no event shall PBM
be required to incur costs substantially in excess of expenses incurred
by the PBM industry generally to provide such reports. This reporting
shall include PBM's EXPERxT and Standard PLUS Reports and reports
pursuant to EXHIBIT A.
3.14. COORDINATION OF BENEFITS. When United HealthCare provides
required information, PBM agrees to process Level I and II coordination
of benefits in accordance with PBM's coordination of benefits rules.
3.15. HEALTH MANAGEMENT PROGRAM. PBM agrees to provide Health
Management Programs to Covered Persons at United HealthCare's option.
Health Management Programs developed during the term of this Agreement
by PBM shall be made available to United HealthCare. ***
3.16. PHYSICIAN-BASED PHARMACEUTICAL CARE APPLICATION INFORMATION
SYSTEM. *** This systems program shall be a knowledge-based system
for physicians which includes but is not limited to PDL compliance
and drug compatibility capabilities.
3.17. DEMAND MANAGEMENT SERVICES. PBM agrees to utilize reasonable
efforts to contract exclusively with United HealthCare for Demand
Management Services by the Commencement Date. ***
3.18. ***
3.19. NATIONAL ACCOUNTS. The parties agree to use reasonable
commercial efforts to work together to increase joint pharmacy National
Account business. United HealthCare agrees to utilize PBM as United
HealthCare's exclusive PBM for National Accounts to the extent required
under SECTION 9. ***
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
3.20. SERVICE PERFORMANCE STANDARDS. United HealthCare and PBM shall
each use good faith and reasonable commercial efforts to perform their
respective duties and obligations in a diligent, professionally
responsible and efficient manner. The parties agree to cooperate with
and assist each other as reasonably necessary in the performance of
their respective duties and in developing timely responses to the needs
of United HealthCare's business. Notwithstanding the general and
specific Service Performance Standards and Guarantees applicable to PBM
identified in EXHIBIT B, PBM shall perform the services for which it is
responsible under this Agreement using the same degree of skill and
care in such performance as a prudent person engaged in pharmacy
benefit management services would use under substantially similar
circumstances in the management of a similar pharmacy benefit
management business of United HealthCare's magnitude. PBM agrees to
accept the Service Performance Standards and Guarantees set forth in
EXHIBIT B, including the dollars which shall be at risk should PBM's
aggregate performance or guarantees be below the indicated targets. PBM
shall provide to United HealthCare: (a) monthly or quarterly reports as
applicable of PBM's performance; and (b) annual statistics, within
ninety (90) days of the end of the calendar year, demonstrating whether
PBM met the Service Performance Standards and Guarantees described in
EXHIBIT B. At the same time PBM provides such statistics to United
HealthCare, PBM shall reimburse United HealthCare any monies owed
because of PBM's failure to meet such Service Performance Standards and
Guarantees.
3.21. INSURANCE. PBM shall procure by the Effective Date and shall
maintain, at its own expense: (a) professional liability insurance in
the amount of $5,000,000.00 per occurrence and $10,000,000.00 annual
aggregate including coverage for errors and omissions; (b) general
liability insurance in the amount of $1,000,000.00 per each occurrence
and $3,000,000.00 annual aggregate; and (c) umbrella/excess liability
insurance in the amount of $10,000,000.00 each occurrence and
aggregate. United HealthCare must be named as an "additional insured"
on the policies referenced above for claims affecting United
HealthCare's interests.
3.22. GUARANTY. PBM's and United HealthCare's parent corporations
will guaranty the fulfillment of all of the parties' financial and
other obligations by the delivery of a fully executed Guaranty
Agreement in the form set forth at ATTACHMENT 1 and ATTACHMENT 2.
3.23. CLAIMS AND REGULATORY INQUIRIES. PBM shall promptly, within
ten (10) days, provide information to United HealthCare about all
non-routine inquiries by regulatory departments, pharmaceutical
manufacturers, attorneys, Covered Persons, or other individuals or
entities with respect to PBM's services pursuant to this Agreement
including but not limited to the denial of any claims or any causes of
action.
3.24. ***
SECTION 4. OBLIGATIONS OF UNITED HEALTHCARE
4.1. OBLIGATIONS OF UNITED HEALTHCARE.
4.1.1. United HealthCare will be the entity that contracts
with Health Plans and non-Health Plans related to the services
provided under this Agreement. Non-Health Plans include but
are not limited to entities, groups, competitors and
individuals. Such agreements between United HealthCare and
Health Plans and non-HealthPlans may provide for additional
services by United HealthCare and shall make provision for
fees and other terms that United HealthCare, in its
discretion, determines to establish.
4.1.2. United HealthCare agrees to provide information
reasonably needed by PBM to administer its responsibilities
under this Agreement including (a) Benefit Contract and
Pharmacy Rider documents; (b) timely eligibility and
enrollment data on Covered Persons; (c) specific United
HealthCare customer information and needs; (d) participating
pharmacy information when PBM's pharmacy network is not
utilized or is used in addition to another participating
pharmacy network; (e) patient identifiable prescription drug
claims (including prescription drug claims from prior pharmacy
benefit management vendors); and (f) patient identifiable
medical claims reasonably necessary for PBM to implement and
operate its clinical management programs for United
HealthCare. Information shall be provided in a mutually
agreeable format.
4.1.3. United HealthCare or Payor shall be solely
responsible for drafting United HealthCare's Benefit Contract
and Pharmacy Rider.
4.1.4. United HealthCare shall identify its targeted
pharmacy growth and benefit objectives on at least an annual
basis and provide such objectives to PBM.
4.2. CLAIMS PAYMENT. United HealthCare shall establish a bank
account(s) (the "Program Account") from which PBM will make claims
payments as set forth below, using United HealthCare check stock.
United HealthCare will pay PBM Administrative Fee payments, as set
forth below through Automated Clearing House transfer. Banking
arrangements may change from time to time subject to the mutual
agreement of the parties.
4.2.1. CLAIMS. PBM shall provide United HealthCare with a
bi-weekly consolidated statement of expected payments to be
made from the Program Account for services provided by PBM
under the Program during such claim cycle ***
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
4.2.2. ADMINISTRATIVE FEES. PBM will provide United
HealthCare with an Administrative Fee statement in accordance
with PBM's four (4) week administrative fee cycle ***
Within two (2) days after receipt of each statement from PBM
as set forth in this SECTION 4.2.2 above, United HealthCare
shall transfer such funds via Automated Clearing House
transfer.
4.3. REGULATORY COMPLIANCE. United HealthCare shall (a) maintain
all material federal, state, and local licenses that are reasonably
required to operate its business; (b) comply with all material
applicable statutes and regulations; and, (c) make reasonable
commercial efforts to cause Health Plans to comply with (a) and (b).
4.4. INSURANCE. United HealthCare agrees to maintain adequate
insurance related to the operation of its business and its obligations
under the Agreement.
4.5. CLAIMS AND REGULATORY INQUIRIES. United HealthCare shall
promptly provide information to PBM within ten days about all
non-routine inquiries by regulatory departments, pharmaceutical
manufacturers, Covered Persons, or other individuals or entities with
respect to the services provided by PBM under this Agreement.
4.6. MINIMUM PDL ENROLLMENT. United HealthCare agrees that it
shall maintain a minimum of *** Health Plan Covered Persons and ***
non-Health Plan Covered Persons receiving services under this
Agreement including participating in United HealthCare's PDL by
January 1, 2001 and throughout the term of this Agreement. ***
SECTION 5. MUTUAL OBLIGATIONS
5.1. PHARMACY STRATEGIC COUNCIL. United HealthCare and PBM shall
create a Pharmacy Strategic Council ("Strategic Council"), the members
of which shall be three or four representatives from and designated by
each of United HealthCare and PBM. The Strategic Council shall meet no
less frequently than quarterly throughout the term of this Agreement
and shall be responsible for (a) overseeing the performance of the
parties under this Agreement; (b) enhancing communication of decisions
made by the parties or the Strategic Council, (c) resolving disputes as
directed by this Agreement; and (d) establishing a forum for
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
the discussion of common strategic objectives of United HealthCare
and PBM. United HealthCare shall be responsible to convene meetings
of the Strategic Council.
5.2. EXPENSES. Except as expressly set forth in this Agreement,
each of the parties shall bear the expenses incurred by it in
connection with its performance under this Agreement.
5.3. AUDITS.
5.3.1. United HealthCare shall keep reasonable documentation
of all Covered Persons related to this Agreement. PBM shall
have the right to review such data at reasonable times upon
reasonable notice
5.3.2. PBM shall maintain adequate medical, financial and
administrative records related to Program services in a manner
consistent with the standards of the community and in
accordance with all applicable statutes and regulations
including, but not limited to, reasonable documentation of all
the data of Covered Persons related to PBM's services under
this Agreement to determine that PBM is performing its
obligation under the Agreement and correctly billing United
HealthCare. United HealthCare shall have the right to review
such data at reasonable times and upon reasonable notice. If
any audit reveals an underpayment or overpayment by United
HealthCare to PBM such discrepancy will be reported to PBM and
PBM will respond within forty-five (45) days. Any amounts PBM
deemed payable as a result thereof shall be promptly repaid to
the appropriate party with accrued interest (whether or not
this Agreement has terminated). If the parties disagree on the
amount to be repaid, the matter shall be sent to the Strategic
Council. This obligation shall survive the expiration or
earlier termination of this Agreement.
5.3.3. PBM's agreements with pharmaceutical manufacturers
are subject to confidentiality agreements. Any audit of PBM's
agreements with pharmaceutical manufacturers conducted
pursuant to this Agreement, shall be conducted by a third
party public accounting firm reasonably acceptable to PBM
whose audit department is a separate stand alone function of
its business, subject to execution of a confidentiality
agreement, and shall include only those portions of such
pharmaceutical manufacturer agreements as necessary to
determine PBM's compliance with SECTION 5.5.2 in respect to
PDL Rebates.
5.4. PREFERRED DRUG LIST. Beginning on the Commencement Date and
continuing through the term of this Agreement, PBM shall administer the
United HealthCare PDL or other formularies as developed by United
HealthCare from time to time pursuant to the Benefit Contract, Pharmacy
Rider and this Agreement. All Health Plans shall participate in the PDL
unless otherwise agreed, in writing, by United HealthCare and PBM.
United HealthCare agrees to make reasonable commercial efforts to have
non-Health Plan business utilize this PDL.
5.4.1. UNITED HEALTHCARE PREFERRED DRUG LIST. The Preferred
Drug List ("PDL") is a list that identifies those Federal Drug
Administration ("FDA") approved prescription drug products
that are preferred by United HealthCare for dispensing to
Covered Persons.
5.4.1.1. United HealthCare and its P&T Committee have
complete control in deciding what prescription drugs
are placed on the PDL from time to time.
5.4.1.2 . PBM shall have the right to present
clinical data and rationale to the P&T Committee in
conjunction with its evaluation of prescription
drugs, but shall not be a voting member of the P&T
Committee.
5.4.2. PREFERRED DRUG LIST COMPLIANCE. United HealthCare has
in effect certain Program features designed to promote
prescribing of PDL drugs by participating providers,
dispensing of PDL drugs by Participating Pharmacies, and
awareness of the advantages of the PDL by Covered Persons.
Such features include, but are not limited to, incented
benefit plan designs and corresponding levels of Copayments.
United HealthCare shall notify PBM, in advance, of any
proposed Program modifications that are reasonably anticipated
to have a material effect on PDL compliance. Additionally,
United HealthCare shall participate in PBM's formulary
communications programs, which may include communications with
United HealthCare Covered Persons, Participating Pharmacies
and/or physicians, and financial incentives to Participating
Pharmacies for their participation in the PDL. PBM shall
notify United HealthCare, in advance, of all PDL
communications programs. United HealthCare shall approve and
may make reasonable changes to the content of such PDL
communication programs before they are provided to the above
United HealthCare groups and individuals.
5.4.3. EXCLUSIVE PDL ADMINISTRATION. Beginning on the
Commencement Date, United HealthCare agrees that PBM will be
the exclusive administrator of the United HealthCare PDL for
those entities covered by the exclusivity requirements of
SECTION 9 of this Agreement. After the Commencement Date,
United HealthCare agrees not to accept any funds the receipt
of which would influence the selection of prescription drugs
for inclusion on United HealthCare's PDL without the express
written consent of PBM.
5.5. PDL REBATE PROGRAM. Pursuant to agreements entered into
between PBM and certain pharmaceutical manufacturers ("Manufacturer
Agreements"), PBM receives PDL Rebates from certain drug
manufacturers as a result of the inclusion of such manufacturer's
branded products on the PDL ("PDL Rebates"). *** United HealthCare
acknowledges that PBM also receives and retains additional rebates
and/or fees from certain manufacturers which may take into account
various factors including the utilization of certain drugs within
their respective
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
therapeutic categories for PBM's book of business in aggregate as a
result of various commitments, services and programs including, but
not limited to, formularies, e.g. cost effective, incentive, volume,
and market-share rebates.
5.5.1. ***
5.5.2. GOOD FAITH REBATE NEGOTIATIONS AND DISTRIBUTION.
***
5.5.3. CUSTOMER ERISA REQUIREMENTS. As part of the standard
Administrative Fee, PBM agrees to provide a report to United
HealthCare, which discloses ERISA required information about
rebates for United HealthCare customers. PBM agrees to assist
United HealthCare as reasonably requested in providing
disclosure information to each of its self-insured customers.
PBM acknowledges that as required by ERISA, United
HealthCare's self-insured customers retain the right to
terminate use of the PDL if customer does not agree with a PDL
selection.
5.5.4. DRUG FORMULARY ONLY ADMINISTRATION. PBM shall, at
United HealthCare's request, provide drug formulary only
rebate administration for no additional fee for pharmacy
claims processed by other entities, if such business qualifies
for PDL Rebates. Such entities shall comply with PBM's data
format requirements and processes. The PDL Rebate Guarantee
shall not apply to Drug Formulary Only accounts.
5.5.5. GOVERNMENT AND OTHER ACTIONS. In the event any
government action, including a change in statute or
regulation or a change in the interpretation of statute or
regulation that has a material adverse affect on the
availability of PDL Rebates, parties shall negotiate in
good faith *** to reflect the effect of such event.
5.6. CONVERSION COSTS AND SERVICES. It is the intent of this
Agreement that PBM shall provide the majority of services required to
convert United HealthCare's present pharmacy benefit management service
from its current vendor to PBM. The parties agree that such costs for
conversion services are included in the Administrative Fee. The
conversion services provided by PBM shall include, but are not limited
to: (a) communications to Covered Persons, physicians, pharmacies; (b)
group training of United HealthCare pharmacy, sales and other staff;
(c) development of Covered Person materials; (d) required modification
of PBM's information systems; (e) development of the Minnesota
Dedicated Pharmacy Management Unit; (f) analytical support for the
conversion of models and tools for rebates, networks and guarantees;
and (g) printing of physician and Covered Person PDLs. United
HealthCare's only responsibility for conversion costs and services is
limited to postage, pharmacy management
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
implementation leadership, internal United HealthCare
communications, limited internal United HealthCare information
system programming, state filings, and servicing of customer calls
coming directly into United HealthCare. The parties agree that if
the conversion to PBM services results in unanticipated problems,
the parties shall commit such additional resources, as mutually
agreed, in order to implement this program in accordance with the
terms of this Agreement.
SECTION 6. CONFIDENTIALITY
6.1. CONFIDENTIAL AND PROPRIETARY INFORMATION. In fulfilling the
objectives of this Agreement, United HealthCare and PBM may provide to
each other or learn (directly or indirectly) certain information which
a party considers to be confidential or proprietary ("Confidential
Information"). Confidential Information shall include, without
limitation, information relating to Covered Person and provider
identities; reimbursement procedures; claims adjudication procedures;
software and financial systems; the specific financial sections and
provisions, specific operational aspects, financial guarantees
contained in this Agreement, and other information relating to each
party's business which is not generally available to the public. Each
party's Confidential Information shall also include confidential,
proprietary information which a third party has disclosed to a party,
and which such party is obligated to maintain as confidential.
Notwithstanding the foregoing, PBM and United HealthCare acknowledge
the other party's obligation to provide its pharmaceutical
manufacturers and customers with information generally regarding this
Agreement and consistent with the foregoing agrees that such parties
may disclose generally the terms of this Agreement.
6.1.1. Neither party shall have any obligation to disclose
its Confidential Information to the other party, unless such
an obligation is set forth elsewhere in this Agreement.
6.1.2. Each party agrees to maintain the secrecy of and not
to use or disclose the other party's Confidential Information,
except as required in order for a party to perform under this
Agreement. A party may disclose the other party's Confidential
Information only to the receiving party's directors, officer,
employees, agents and representatives (collectively, the
"Representatives"), but only if a Representative needs to know
the Confidential Information in order for the receiving party
to perform under this Agreement. The parties agree to inform
their Representatives of the confidential nature of the
disclosing party's Confidential Information, and each party
shall require any Representative, who is not an employee of
the receiving party to sign an appropriate confidentiality
agreement to protect the disclosing party's Confidential
Information from unauthorized use or disclosure. Each party
shall direct its Representatives to treat the other party's
Confidential Information confidentially, and not to use it,
other than to perform under this Agreement. Each party shall
be responsible for its Representatives' use and disclosure of
the other party's Confidential Information.
6.1.3. The restrictions in this SECTION 6.1 shall not apply
to: (a) information which is or becomes generally available to
the public, other than as a result of a disclosure by the
receiving party; (b) information a party obtains from a third
party which has no obligation to keep the information
confidential; (c) information which a party had in its
possession prior to receiving Confidential Information from
the disclosing party; (d) information which is independently
developed by a party without reference to the Confidential
Information disclosed by the other party; or (e) information
required to be disclosed by law, subject to compliance with
SECTION 6.1.4.
6.1.4. The parties agree that if a party is required (by
subpoena, civil investigative demand or similar process) to
disclose the other party's Confidential Information, the
disclosing party shall notify the other party of the request
or requirement so that the other party may seek an appropriate
protective order or waive compliance with the sections or
provisions of this Agreement. The parties agree to exercise
their commercially reasonable efforts to assist each other in
obtaining a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential
Information.
6.1.5. Upon termination of this Agreement each party will
immediately discontinue use of the other party's Confidential
Information, and shall return the other party's Confidential
Information to it, or destroy the other party's Confidential
Information in its possession or control. However, each party
may retain the other party's Confidential Information to the
extent such Confidential Information has been used in or
integrated into reports, studies, analyses, compilations or
other documents in the receiving party's possession or
control. Any oral Information will continue to be subject to
the terms of this letter agreement. The parties agree that the
Confidentiality obligations of this SECTION 6 shall survive
termination of this Agreement.
6.2. PRIVACY OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION.
United HealthCare and PBM will maintain the privacy and confidentiality
of all individually identifiable information regarding Covered Persons
and non-Covered Persons in accordance with all applicable statutes and
regulations. PBM and United HealthCare shall require all employees to
comply with this section. PBM agrees that all Covered Person
information provided to PBM by United HealthCare belongs exclusively to
United HealthCare.
6.3. UNITED HEALTHCARE'S DATABASE. Subject to SECTION 6.4 below,
PBM agrees that all data of United HealthCare and its affiliates,
including but not limited to Covered Person, customer, and provider
related data, which is in PBM's possession, whether obtained by PBM in
the course of providing services for United HealthCare or as a result
of a data transfer between United HealthCare and PBM, belongs solely to
United HealthCare. PBM has the right to possess and use such data only
to the extent permitted by contracts between the parties or as
otherwise provided in this Agreement subject to applicable legal
restrictions. All information contained in United HealthCare's database
and systems belongs exclusively to United HealthCare. PBM shall not
have direct access to United HealthCare's database and systems without
signing a separate agreement with United HealthCare. PBM and United
HealthCare recognize and agree that only information necessary for PBM
performance under the Agreement shall be supplied by United HealthCare
to PBM and PBM agrees that such data belongs exclusively to United
HealthCare.
6.4 PBM USE OF DATA. Notwithstanding the foregoing provisions of
this SECTION 6, PBM may incorporate prescription data into PBM's
prescription database when that database is used by PBM or provided to
others for research, statistical, marketing, sales tracking or similar
purposes. PBM agrees that if such prescription data is identifiable as
to (a) Covered Persons, (b) employers and/or customers, and/or (d)
United HealthCare, such identifiable information will be deleted or
encrypted before it is provided to others. This section only applies to
PBM's use of prescription data and does not apply to medical data.
SECTION 7. INTELLECTUAL PROPERTY
7.1. Any Intellectual Property developed solely by PBM without
using United HealthCare's Confidential Information shall remain the
property of PBM. United HealthCare's right to use such PBM Intellectual
Property shall be limited to those permitted by this Agreement or as
otherwise agreed to in writing by the parties.
7.2. Any Intellectual Property developed solely by United
HealthCare, without utilizing PBM's Confidential Information shall
remain the property of United HealthCare. PBM's right to use such
Intellectual Property shall be limited to those permitted by this
Agreement or as otherwise agreed to in writing by the parties.
7.3. The parties agree that any Intellectual Property or work
product: (a) created jointly by the parties; or (b) created by PBM
under this Agreement; or (c) created by PBM upon United HealthCare's
request (the "Work Product"), shall be the joint property of PBM and
United HealthCare.
SECTION 8. YEAR 2000 WARRANTY
PBM and United HealthCare warrant that (a) the goods and services to be provided
under this Agreement are in a state of Year 2000 Compliance, (b) the delivery of
the goods or services provided under this Agreement to parties will not be
adversely affected by Year 2000 Compliance (including without limitation the
Year 2000 Compliance of parties' information and/or operating systems or those
of any third parties that assist parties in the fulfillment of its obligations
under this Agreement); (c) the goods or services provided under this Agreement
to the parties will not affect or impair the Year 2000 Compliance of the parties
or any third party that has a business relationship with parties; and (d) The
parties have taken all necessary or appropriate steps to insure that it is in
compliance with the foregoing warranties. "Year 2000 Compliance" means the
ability of information or other systems to: (x) record, store, process, provide,
and insert true and accurate dates and calculations for dates including and
following January 1, 2000; and (y) process records containing dates after
January 1, 2000; and
(z) be interoperable in such respects with other systems used by the parties
PBM, the PBM's parties' vendors of any kind, or the parties, including
without limitation those which may deliver records to, receive records from
or otherwise interact with the goods or services provided by the parties.
SECTION 9. EXCLUSIVITY
9.1 Except as defined in SECTION 9 and its subparts, United
HealthCare Services, Inc. agrees that it shall not enter into a
contract, or any other similar arrangement, for pharmacy benefit
management services with a third party other than PBM with respect to
services beginning with the Commencement Date and continuing until the
term of this Agreement expires or until the Agreement is terminated.
9.2 This exclusivity section does not apply to any entities who:
(a) are acquired by or merged with United HealthCare Services, Inc. and
its affiliates and subsidiaries after this Agreement is executed; and
(b) have a contractual relationship with another pharmacy benefit
management company, at the time this Agreement is executed. The parties
agree that in no event will United HealthCare be required to terminate
another pharmacy benefit management vendor prior to the expiration of
such vendor's contract. United HealthCare agrees to convert any such
entity to coverage under this Agreement as soon as said entity's
contract with such other pharmacy benefit manager expires or can be
reasonably terminated without the payment of any additional fees,
fines, penalties, or damages. United HealthCare shall use its
reasonable commercial efforts to include such entities under this
Agreement. Within sixty (60) days after execution of this Agreement,
United HealthCare shall provide PBM with the name of any such entity
that has a contractual relationship in effect with another pharmacy
benefit manager, the termination date of said contract and the
approximate number of persons covered under such contract.
9.3 Notwithstanding the foregoing, United HealthCare shall not be
required to include government-defined benefit programs or any entity
for which United HealthCare provides management or administrative
services but does not own a controlling interest unless such entity
agrees to utilize the services contemplated by this Agreement.
9.4 The parties acknowledge and agree that United HealthCare may
not be able to transition all Covered Persons and participating Health
Plans to PBM: (a) on the Commencement Date; and/or (b) immediately in
the event of an acquisition, merger or similar transaction that occurs
prior to or during the term of this Agreement. The parties agree that a
reasonable transition of Covered Persons and participating Health Plans
related to (a) and (b) of this section shall not be considered a breach
of this SECTION 9 or of this Agreement. Notwithstanding the foregoing,
United HealthCare shall transition all existing Health Plans that will
be covered under this Agreement within a six (6) month period of the
Commencement Date unless otherwise mutually agreed to by the parties.
This is
not meant to restrict United HealthCare's ability to add other
Health Plans and non-Health Plans during the term of this Agreement.
SECTION 10. RENEGOTIATION DUE TO SUBSTANTIAL CHANGE
In the event of a Substantial Change the parties agree to renegotiate in good
faith so as to reflect as nearly as possible the economic factors that were the
basis for this Agreement prior to the Substantial Change. In the event such
renegotiations do not result in a mutually agreeable economic solution or the
parties are not able to agree as to whether a Substantial Change has occurred,
such issue shall be submitted pursuant to the dispute resolution procedure set
forth in SECTION 13. 6.
SECTION 11. INDEMNIFICATION
11.1. United HealthCare agrees to indemnify and hold PBM, its
subsidiaries and affiliates, and their respective officers, directors,
agents and employees harmless from and against any and all liabilities,
losses, proceedings, actions, damages, claims or expenses of any kind,
including reasonable attorneys' fees, which result from (a) a breach by
United HealthCare of any of its obligations under this Agreement or (b)
the negligence or willful acts or omissions by United HealthCare, its
agents, directors, officers, or employees, in connection with the
representations, duties and obligations of United HealthCare under this
Agreement.
11.2. PBM agrees to indemnify and hold United HealthCare, its
subsidiaries and affiliates, and their respective officers, directors,
agents and employees harmless from and against any and all liabilities,
losses, proceedings, actions, damages, claims or expenses of any kind,
including reasonable attorneys' fees, which result from (a) a breach by
PBM of any of its obligations under this Agreement or (b) the
negligence or willful acts or omissions by PBM, its agents, directors,
officers, or employees, in connection with the representations, duties
and obligations of PBM under this Agreement.
SECTION 12. TERM AND TERMINATION
12.1. TERM. The term of this Agreement is for the period commencing
on the Effective Date and ending December 31, 2005, with performance
beginning on the Commencement Date, unless terminated earlier as
outlined in SECTION 12.2.
12.2. TERMINATION. This Agreement may be terminated as follows:
12.2.1. By either party, after a ten day notice period, in
the event of a payment default, unless such default is cured
within such notice period, unless the defaulting party is able
to give assurances to the other party's reasonable
satisfaction.
12.2.2. By either party, effective 30 days after not less
than 60 days written notice and cure period in the event of a
material breach other than a payment default of this Agreement
by the other party.
12.2.3. By either party, effective immediately upon provision
of written notice to the other party, if the other party has
become insolvent or has been dissolved or liquidated, or makes
a general assignment for the benefit of creditors or has a
receiver appointed for a substantial portion of its assets.
12.2.4. Automatically and without any notice or other action
on the part of either party if either party files, or has
filed against it, a petition in bankruptcy and such petition
is not dismissed within 60 days of the filing unless the party
which is not subject to such petition elects to waive such
termination prior to the expiration of such 60 day period.
12.2.5. By either party immediately due to loss of insurance
or inability to self-insure as required under this Agreement.
12.2.6. By United HealthCare, effective at a time reasonable
to transferring the pharmacy management services to a new
vendor but no later than 180 days after notice to PBM, if a
change of control of PBM occurs. For purposes of this Section,
"Change of Control" means: (a) any transaction or series of
transactions that cause 50% or more of the stock of PBM or
United HealthCare, as the case may be, to be held by
individuals or entities who are not stockholders of PBM or
United HealthCare, as the case may be, on the date hereof; or
(b) any sale of PBM assets or United HealthCare, as the case
may be, that are essential to the business of PBM or United
HealthCare, as the case may be; or (c) any merger where PBM or
United HealthCare, as the case may be, is not the surviving
entity.
12.3. UNITED HEALTHCARE CHANGE OF CONTROL. If during the term of the
Agreement, there is a Change of Control of United HealthCare, as
defined above, United HealthCare has the option to terminate the
Agreement by providing PBM with ninety (90) days prior written notice
and by paying to PBM within sixty days of termination date an amount
equal to the aggregate payments that have been made to United
HealthCare by PBM under Trend Guarantee and PDL Rebate Guarantee as
addressed in the Financial Appendix. If any such termination occurs
prior to payment by PBM of any Trend Guarantee or PDL Rebate Guarantee,
United HealthCare shall pay to PBM within 60 days after such
termination date an amount equal to the transition costs paid by PBM to
United HealthCare pursuant to PROVISION 8 of the Financial Appendix.
12.4. INFORMATION TO COVERED PERSONS. PBM acknowledges the right of
United HealthCare to inform Covered Persons of PBM's termination.
12.5. END OF TERM OR TERMINATION. In the event this Agreement is
terminated for any reason prior to its expiration or upon the end of
the term, PBM and United HealthCare shall cooperate reasonably with
each other for up to a six
month period following such termination or expiration to effect a
quality, cost-effective and smooth transition of United HealthCare's
business previously operated or managed by PBM to United HealthCare
or United HealthCare's designee. ***
12.5.1. ***
12.5.2. ***
12.5.2.1 ***
12.5.2.2. ***
12.5.2.3. ***
12.5.2.4. ***
12.5.3. ***
SECTION 13. GENERAL PROVISIONS
13.1. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered
personally, by commercial overnight delivery service, by facsimile or
sent by certified, registered or express air mail, postage prepaid, and
shall be deemed given when so delivered personally, by overnight
delivery service or by facsimile, or if mailed, five days after the
date of mailing, addressed as follows:
*** Represents text deleted pursuant to a confidentiality treatment request
filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended.
<TABLE>
---------------------------------------- -------------------------------------
IF TO PBM: IF TO UNITED HEALTHCARE:
---------------------------------------- -------------------------------------
Merck Medco Managed Care, L.L.C. United HealthCare Services, Inc.
100 Summit Avenue 9900 Bren Road East, P.O. Box 1459
Montvale, New Jersey 07645-1753 Minnetonka, Minnesota 55343
Attention: Jim Cooper, Esq. Attention: David Lubben, Esq.
General Counsel General Counsel
Facsimile No. (201) 782-7878 Facsimile No. (612) 936-0044
---------------------------------------- -------------------------------------
</TABLE>
or to such other address or to such other person as may be designated
by written notice given from time to time during the term of the
Agreement by one party to the other.
13.2. RIGHT OF FIRST OFFER. Subject to such confidentiality
arrangements as PBM may reasonably propose, PBM agrees to provide
United HealthCare with reasonable prior notice of any event that might
lead to a change of control of PBM (which shall include any sale of
more than 10% of the voting securities to an entity not wholly owned by
Parent. Any notice herein contemplated shall be given to the Chief
Executive Officer or General Counsel of United HealthCare. Such advance
notification shall be maintained strictly confidential to the Chief
Executive Officer and General Counsel, except with the written consent
of the person giving notification.
13.3. FORCE MAJEURE. Noncompliance with the obligations of this
Agreement due to force majeure, laws or regulations of any government,
war, civil commotion, destruction of production facilities and
materials, fire, earthquake or storm, labor disturbances, shortage of
materials, failure of public utilities or common carriers, and any
other causes beyond the reasonable control of the applicable party,
shall not constitute breach of contract.
13.4. ASSIGNMENT. United HealthCare may assign all or any of its
rights and responsibilities under this Agreement to any entity
controlling, controlled by or under common control with United
HealthCare. United HealthCare may make such an assignment that is
effective only after the party to which such rights or responsibilities
are assigned (the "Assignee") no longer controls, is controlled by or
is under common control of such party; provided, however, that any such
entity is reasonably able to perform any responsibilities which it
assumes. United HealthCare may assign its rights and responsibilities
in such a way that both United HealthCare and Assignee share in the
rights and responsibilities that, prior to such assignment, were solely
those of United HealthCare. PBM may assign all or any of its rights and
responsibilities under this Agreement to any entity controlling,
controlled by, or under common control with such party. PBM and United
HealthCare each acknowledge that persons and entities under contract
with such party or in the case of United HealthCare, a Participating
Plan, may perform certain administrative services under this Agreement.
Other than above, United HealthCare and PBM agree that they shall not
assign any of the rights and responsibilities under this Agreement
without the prior written consent of the other party.
13.5. AMENDMENT. Any amendments to this Agreement shall require
written approval of the parties.
13.6. DISPUTE RESOLUTION. Any controversy or claim arising out of or
relating to this Agreement or a breach of the Agreement shall initially
be submitted to the Strategic Council for resolution. The Strategic
Council shall have the authority to: (a) waive the controversy, claim
or breach; (b) designate specific corrective or alternative action; (c)
set a time period for certain performance; (d) submit the matter to
mediation; or (e) allow a party to litigate the issue. Any action taken
by the Strategic Council shall be evidenced by a written notice to both
parties. During the period of time in which such issues are being
examined by the Strategic Council or are under mediation or litigation,
the parties shall proceed diligently with the performance of their
duties under this Agreement in a businesslike and efficient manner. In
the event the Strategic Council cannot resolve the matter within sixty
days or the matter is not one which must be submitted to the Strategic
Council, then within a reasonable time, a party or the Strategic
Council may submit the matter to mediation or litigation in
Minneapolis, Minnesota.
13.7. RELATIONSHIP BETWEEN UNITED HEALTHCARE AND PBM. The
relationship between United HealthCare and PBM is solely that of
independent contractors and nothing in this Agreement or otherwise will
be construed or deemed to create any other relationship, including one
of employment, agency or joint venture.
13.8. INVALIDITY/GOVERNING LAW. If any section or provision of this
Agreement is finally declared or found to be illegal or unenforceable
by a court of competent jurisdiction, both parties shall be relieved of
all obligations arising under such section or provision, but if capable
of performance, the remainder of this Agreement shall not be affected
by such declaration or finding.
13.9. ACCREDITATION COMPLIANCE. PBM agrees to provide United
HealthCare with reasonable assistance and cooperation in meeting all
accreditation standards, including but not limited to National
Committee for Quality Assurance and Joint Commission, applicable to the
services provided pursuant to this Agreement.
13.10. NAME, SYMBOL AND SERVICE MARK. During the term of this
Agreement, PBM and United HealthCare agree that they shall not use each
other's name, symbol or logo, or service mark for any purpose
whatsoever including without limitation in connection with marketing or
publications describing, explaining, or otherwise discussing the
Program without the prior approval of the other party.
13.11. HEADINGS. The headings of the various sections herein are for
convenience of reference only and shall not define, limit or otherwise
affect any of the terms or sections or provisions hereof.
13.12. ORIGINAL AGREEMENT. The parties agree that they shall execute
two identical originals of this Agreement. Each party shall retain one
of the originals. Each identical original shall serve as an original of
the Agreement but all such originals together shall constitute a single
original contract.
13.13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with applicable Minnesota law without giving
effect to conflict of law principle.
13.14. ENTIRE AGREEMENT. This Agreement and its Financial Appendix,
Exhibits A and B, and Attachments 1 and 2 constitute the entire
Agreement between the parties in regard to its subject matter.
13.15. REGULATORY APPROVAL. The parties agree and acknowledge that
the terms of this Agreement may be subject to review by state
regulators.
13.16. APPROVALS. Approvals required under this agreement shall not
be unreasonably delayed or withheld.
13.17. ADDITIONAL AGREEMENTS. Upon request, PBM agrees to enter into
an additional separate agreement with any United HealthCare affiliate
receiving services hereunder reflecting the services received and
obligations of such affiliate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
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UNITED HEALTHCARE SERVICES, INC. MERCK MEDCO MANAGED CARE, L.L.C.
9900 Bren Road East 100 Summit Avenue
Minnetonka, Minnesota 55343 Montvale, New Jersey 07645-1753
By:________________________________ By:________________________________
Date: ______________________________ Date: ______________________________
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