Exhibit 10.7
CERTAIN PORTIONS OF THIS EXHIBIT
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934. THE
OMITTED MATERIALS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
PRIME VENDOR
AGREEMENT
This Prime Vendor Agreement
(“Agreement”) is made as of May 1, 2006
(“Effective Date”) by AmerisourceBergen Drug
Corporation, a Delaware corporation (“ABDC”), and
NMHCRx Mail Order, Inc., dba NMHC Mail, a Delaware corporation
(“Customer”).
A. ABDC is a national distributor of
pharmaceutical and other products, including prescription
(“Rx”) and over-the-counter (“OTC”)
Pharmaceuticals, nutritional, health and beauty care
(“HBC”) and home health care (“DME”)
products (“Product” or “Products”), and
services (“Services”);
B. Customer owns and operates one or
more alternate care pharmacies (“Facilities”);
and
C. The parties intend by this
Agreement to set forth their obligations to each other for an
arrangement under which ABDC will provide Products and Services to
Customer (“Program”).
NOW THEREFORE, the parties agree as
follows:
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1.
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PRICING AND
PAYMENT TERMS
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ABDC will be the Primary Vendor of
all requirements of Customer’s Facilities for Products.
Customer will pay, within terms, Product costs and Program fees
pursuant to payment terms in Exhibit “1”
(“Pricing/Payment Terms”). “Primary Vendor”
means Customer purchases from ABDC no less than 90% of all
prescription pharmaceutical Products it purchases, as verified
quarterly, and meets minimum periodic purchase levels in Paragraph
3(A) of the Pricing/Payment Terms. Orders for Products will be
electronically transmitted (including Schedule II controlled
substances when allowed) and will describe Products that ABDC will
provide to Customer, the quantity and designated delivery location.
All payment plans (except pre-pay) must be by electronic funds
transfer (EFT).
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2.
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PRO GENERICS
PROGRAM PARTICIPATION
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Customer must elect to participate
in ABDC’s preferred generic formulary program
(“Preferred Rx Options” or “PRxO Generics”)
pursuant to requirements as amended from time to time by ABDC.
Customer will purchase no less than 3% of its total purchases from
ABDC’s PRxO Generics program. Customer authorizes ABDC as its
sole agent to develop and implement a generic pharmaceutical
Product list for the Term. Customer will purchase from ABDC each
calendar quarter no less than the minimum Net Purchase volume of
generic pharmaceutical Products as set forth in the Pricing/Payment
Terms.
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3.
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CUSTOMER
LOCATIONS & DELIVERIES
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ABDC will deliver Products to each
Facility five days a week (Monday-Friday), once a day except
holidays and warehouse physical inventory days. Additionally,
Customer will be entitled to three emergency deliveries per
calendar quarter per pharmacy location at no additional charge.
Customer may be charged for each additional emergency order.
Facility means each of Customer’s alternate care pharmacies,
together with any other facilities Customer acquires, is affiliated
with or operates during the Term in the United States. Newly
acquired facilities with existing agreements with other
distributors will become Facilities under this Agreement upon the
earlier of expiration of such existing agreement or the date
Customer may terminate such agreement, with or without cause,
without breaching it or paying a material termination penalty;
provided, however, service to Facilities outside ABDC’s
normal service area (which does not include Alaska, Hawaii or U.S.
territories) may be subject to a delivery surcharge.
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Customer will only return Products
to ABDC in accordance with ABDC’s standard policy for
returned Products (“Returned Goods Policy”), as amended
from time to time by ABDC. If Customer returns more than 3% of its
OTC Net Purchases, or 3% of its pharmaceutical Net Purchases in any
quarter, Customer may be assessed an additional restocking fee over
any standard stocking fee in the Returned Goods Policy or ABDC may
adjust the Price of Goods or both. Customer will return only
Product purchased from ABDC for which Customer has submitted the
invoice number and date of purchase. ABDC may reject returns not
accompanied by the invoice number and date of purchase or that
exceed in amount either the 3% return limit or the amount on the
referenced invoice number. ABDC reserves the right to refuse all
future returns from Customer in the event that Customer submits any
counterfeit Product for return.
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5.
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ADDITIONAL
SERVICES & PROVISIONS.
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Services are listed in Exhibit
“2” . Terms, conditions and other provisions are
set forth in Exhibit “3”
(“Provisions”). ABDC may, from time to time, develop
policies and procedures relative to new or existing Services
offered to customers, on an interim or as-needed basis. If ABDC
develops such policies or procedures or changes current ones, ABDC
will notify Customer in writing at least thirty (30) days
before such changes are effective. If Customer is materially
adversely affected by such policy or procedure, Customer may
terminate this Agreement upon thirty (30) days written notice
to ABDC.
Subject to Paragraph 5 of the
Provisions, the Term will be from the Effective Date until
April 30, 2010 . The Term will, thereafter, be extended on a
month-to-month basis until either party gives at least ninety
(90) days prior written notice to the other of its intention
not to extend this Agreement.
To the extent required by 42 U.S.C.
§1395x(v)(1), until four (4) years after termination of
this Agreement, ABDC will make available upon written request to
the Secretary of the U.S. Department of Health & Human
Services (“HHS”), the Comptroller General, or their
authorized representatives, a copy of this Agreement and all
records required to certify the nature and extent of costs of
Products and Services provided by ABDC under this Agreement. ABDC
will ensure, to the extent it carries out its duties through a
subcontract with a value or cost of $10,000 or more in a twelve
(12) month period with a related organization, such
subcontract will contain similar provisions. Notwithstanding the
foregoing, ABDC will have no obligation to make public documents
subject to attorney-client privilege.
Notices must be in writing and sent
certified mail, prepaid, return receipt requested, or sent by
facsimile to the address or facsimile number below. Parties may
change this information by written notice to the other party.
Pursuant to the Telephone Consumer Protection Act of 1991, 47
U.S.C. §227, Customer consents to receiving notices, including
product updates, recalls, new product launches and programs,
advertisements and other marketing materials by telephone facsimile
(“fax”) machine from ABDC, its affiliates and their
related companies, to the fax number set forth below.
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To Customer:
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NMHCRx Mail Order, Inc., dba NMHC
Mail
9994 Premiere Parkway
Miramar, FL 33025
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Attn:
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President
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Fax:
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954-443-9654
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To ABDC:
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AmerisourceBergen Drug Corporation
1300 Morris Drive
Chesterbrook, PA
19087-5594
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Attn:
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Vice President,
Health Systems
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Fax:
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610-727-3601
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with a copy to:
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AmerisourceBergen Corporation
1300 Morris Drive
Chesterbrook, Pennsylvania
19087-5594
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Attn:
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General
Counsel
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Fax:
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(610)
727-3612
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The following exhibits to this
Agreement are incorporated by this reference.
IN WITNESS WHEREOF, the parties have
had a duly authorized officer, partner or principal execute this
Prime Vendor Agreement as of the Effective Date.
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CUSTOMER:
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ABDC:
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NMHCRx Mail
Order, Inc., dba NMHC Mail
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AmerisourceBergen Drug Corporation
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By:
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/s/ Jay
Flanick
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By:
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/s/ Carleton E.
Jones
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Name:
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Jay
Flanick
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Name:
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Carleton E.
Jones
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Title:
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Chief Mail
Officer
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Title:
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Vice President,
Alternate Care Sales
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3
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO
PRIME VENDOR
AGREEMENT
PRICING / PAYMENT
TERMS
In addition to payment for Products,
Customer will pay ABDC the following Program and other fees for
ABDC’s Product distribution and Services for Customer and its
Facilities. Except as otherwise provided, payments are due within
ten (10) days from ABDC’s invoice date. Pricing does not
reflect any administrative or other fee to a group purchasing
organization or buying group (“GPO”). If Customer
contracts with a GPO, Customer will pay any such fees to the
applicable GPO. In any event, ABDC will not pay a GPO fee unless
and until a group designation form signed by Customer is filed with
ABDC. Customer will pay any increase in GPO administrative fees
during the Term of this Agreement.
A. Price of Goods . Customer
will pay the following Price of Goods based upon the definition of
“Cost” below, subject to the following adjustments for
payment terms, for Products other than Products and Services
designated as ABDC Special Price Products. ABDC will add to the
billed amount any applicable sales, use, business and occupation,
gross receipts or other tax.
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Price of Goods*
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Branded Rx Pharmaceutical
Products—Average Total Monthly Volume
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Weekly
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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*
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“Cost” with respect to any Product
means the lower of (i) the price of the Product on a
supplier’s price list on the date the Product is allocated to
Customer or (ii) any applicable Customer/GPO contract price
for the Product authorized by a supplier and maintained in an ABDC
bid file, in each case exclusive of discounts for prompt payment
given to ABDC by its manufacturers. Cost outside the continental
U.S. may be higher than manufacturer’s/supplier’s
normal price list.
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Selected Products (“ABDC
Special Price Products”) including but not limited to drop
shipments, food, gift items, HBC/OTC items, home healthcare (DME),
items deemed operationally difficult to manage (refrigerated,
schedules, etc.), items purchased from suppliers not offering cash
discounts of 2% or better, deliveries FOB destination or other
standard terms, generics, nutritional, private label, school and
office items, slow-moving items, supplies (bottles &
vials)) and Services will not be billed based upon ABDC’s
Cost (as defined above), but will instead be billed in accordance
with the terms and conditions established by ABDC from time to time
for such Products and Services. “Slow-moving items” are
defined as items of which 10 or less are sold through a single
distribution center per month. Insulin, refrigerated items and
Schedule II through V narcotics shall not be ABDC Special Price
Products. Purchases of ABDC Special Price Products count toward
total Monthly Net Purchase volume.
B. PRxO Generics Rebates. If
Customer continues to use ABDC as its Primary Vendor and otherwise
complies with ABDC’s PRxO Generics requirements, ABDC will
issue a credit to Customer equal to [*]% of Customer’s Net
Purchases of PRxO Generics during the preceding calendar quarter if
Customer’s PRxO Generics purchases are [*]% or more of
Customer’s total Rx Net Purchase volume.
Calculations are quarterly, with no
carryover from one quarter to the next. Customer’s PRxO
Generics purchases will be invoiced at ABDC’s standard ABDC
Special Price. Pending rebates will be noted in Customer’s
invoices and statements. Customer hereby indemnifies ABDC pursuant
to Provisions Paragraph 6 for any inappropriate use of such
invoices. ABDC will issue any credit to Customer within forty-five
(45) days of the end of each calendar quarter. If Net
Purchases of PRxO Generics are less than [*]% of total Rx Net
Purchases, no rebate credit will be given and ABDC may reasonably
adjust Price of Goods to reflect the lower than expected purchase
volume. Customer must be compliant with payment terms to be
eligible for any rebate under this paragraph.
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[*]
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Confidential
Portion Omitted and filed Separately with the Commission
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4
CONFIDENTIAL TREATMENT REQUESTED
C. Compliance Rebate . At the
end of each contract year, if Customer complies with all terms of
this Agreement during the contract year, Customer shall receive a
discount in the form of a rebate equal to [*]% off the first $[*]
of Net Purchases purchased in the last month of the contract year,
payable in the form of a credit memo no later than 45 days after
April 30 of each year of the Agreement, commencing
April 30, 2007. “Net Purchases” shall mean
purchases less returns. Customer must be compliant with all terms
of this Agreement to be eligible for any rebate under this
paragraph.
D. Additional Value-Added
Services . The additional value-added Services in Exhibit
“2” will be provided to Customer by ABDC for $0.00
per month per Facility for Facilities that meet minimum Net
Purchase levels.
E. Ordering Hardware/Software
. In addition to the foregoing value-added Services fee, Customer
will pay the per-month fees in Exhibit “2” for
ordering and reporting software and hardware selected by Customer
for each installation on system hardware at Customer’s
Facilities and other locations.
F. Contract Administration .
In administering Customer’s GPO/supplier contracts, Customer
must (i) provide a copy of new contracts, (ii) comply
with supplier’s terms, (iii) use all products for its
“own use” (as defined in judicial and legislative
interpretations), (iv) notify ABDC at least forty-five
(45) days before it changes suppliers, and (v) upon
changing suppliers, assist ABDC in disposing of any excess
inventory acquired for Customer. Additionally, Customer will notify
ABDC before discontinuing purchases of any special inventory that
it has requested that ABDC stock (whether or not pursuant to a
contract) and assist ABDC in disposing of any excess of such
inventory. When invoiced, Customer will promptly reimburse ABDC for
any unpaid chargebacks that are (x) denied by a GPO or
manufacturer/supplier or (y) not paid within forty-five
(45) days and, in either case, Customer will look solely to
such GPO or manufacturer/supplier for redress.
G. Security Deposit . Within
five (5) days of execution of this Agreement, Customer will
deposit with ABDC the sum of $0.00 as a deposit for
Customer’s performance of its obligations under this
Agreement. Upon request, ABDC will return such deposit within
thirty (30) days if Customer has fully performed its
obligations under this Agreement, including having no late
payments, for a period of 0 months prior to such request. Upon the
expiration or termination of this Agreement, ABDC may deduct from
such deposit any unpaid amount, including payment for Products and
Services. ABDC will return to Customer any balance remaining within
thirty (30) days of the expiration or termination of this
Agreement.
A. Options . Customer agrees
to the following payment terms for Product purchases. ( Check
only one box below ):
Monthly Prepay
¨
Prior to commencement of deliveries,
Customer will make a prepayment deposit for an estimated one
month’s purchases to ABDC. Thereafter, payment for invoices
dated the 1st through the last day of each calendar month must be
received by the 10th of the following calendar month.
Semi-Monthly
Prepay
¨
Prior to commencement of deliveries,
Customer will make a prepayment deposit for an estimated one-half
of one month’s average purchas