EXHIBIT 7
CONFIDENTIAL TREATMENT REQUESTED
AGREEMENT
This Agreement ("Agreement"), dated as of June 19, 2000, is between Express
Scripts, Inc., a Delaware corporation ("ESI"), and PlanetRx.com, Inc., a
Delaware corporation ("PlanetRx").
RECITALS
Whereas, ESI and PlanetRx entered into that certain Agreement dated as of
August 31, 1999 ("Previous Agreement").
Whereas, ESI and PlanetRx mutually desire to terminate the Previous
Agreement and enter into this Agreement.
In consideration of the agreements, covenants and conditions set forth
herein, intending to be legally bound, the parties hereto agree as follows:
Section 1. Definitions.
Whenever used in this Agreement with initial letters capitalized, the
following terms will have the following specified meanings:
"Affiliate" means, with respect to a party, any Person that, directly or
indirectly, Controls, or is Controlled by, or is under common Control with, such
party; provided, however, that with respect to ESI, the term shall not include
New York Life Insurance Company or its subsidiaries.
"Change in Control of PlanetRx" means the following:
(i) a Person becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended), directly or indirectly, of
securities of PlanetRx representing fifty percent (50%) or more of the combined
voting power for the election of directors of PlanetRx's then outstanding
securities;
(ii)any consolidation, reorganization or merger of PlanetRx in which
PlanetRx is not the continuing or surviving corporation or pursuant to which
shares of common stock of PlanetRx would be converted into cash, securities or
other property, other than a merger or reorganization of PlanetRx in which the
holders of common stock immediately prior to the merger or reorganization have
the same proportionate ownership of common stock of the surviving corporation
immediately after the merger or reorganization;
(iii) the shareholders of PlanetRx approve a plan of complete liquidation
of PlanetRx; or
(iv)the shareholders of PlanetRx approve an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets
or any transaction having a similar effect.
"Confidential Information" means all trade secrets, know-how and nonpublic
information that relates to research, development, trade secrets, inventions,
source code, technical data, software programming, concepts, designs,
procedures, manufacturing, purchasing, accounting, engineering, marketing,
merchandising, selling, business plans or strategies and other proprietary or
confidential information, protectable under the laws of the United States or any
other nation, state or jurisdiction (including, but not limited to, any foreign
equivalents thereto).
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether by contract or through the ownership of voting securities, including the
ownership of more than fifty percent (50%) of the equity, partnership or similar
interest in such Person.
"Effective Date" means the date on which ESI receives the payment described
in Section 4 hereof.
"ESI Member" means any individual who is entitled to benefits under a
prescription drug benefit plan provided by ESI, or a Person Controlled by ESI,
to an ESI Plan Sponsor or directly to such individual.
"ESI Networks" means any or all of the networks of retail pharmacies
contracted with ESI to dispense prescription drugs to ESI Members. A pharmacy
network that is contracted by an ESI Plan Sponsor and merely administered by ESI
for such ESI Plan Sponsor shall not be deemed to be an ESI Network for purposes
of this Agreement.
"ESI Plan Sponsor" means a sponsor of a health plan (such as an insurance
company, health maintenance organization, employer, Taft-Hartley plan, or other
Person, or a third party administrator acting on behalf of such a plan sponsor,
including a sponsor of a "cash and carry" or discounted card program) who
contracts with ESI or one of its Affiliates to provide a prescription drug
benefit to members of such health plan.
"Equity Transaction" means, collectively, the transactions described in
that certain Asset Contribution and Reorganization Agreement dated as of August
31, 1999, among ESI, yourPharmacy.com, Inc., PlanetRx, PRX Holdings, Inc. and
PRX Acquisition Corp.
"IP Right" means any copyright, trademark, patent, trade secret, moral
right or other intellectual property or proprietary right of any kind (including
applications therefor and, in the case of patents, any continuation or
divisional patent applications claiming priority thereto), whether arising under
the laws of the United States or any other nation, state or jurisdiction
(including any foreign equivalents thereto).
"Internet" means the Internet or the World Wide Web (or any successor or
other online network including those using delivery over television, cable, set
top boxes, intranets, extranets and personal digital assistants).
"Internet Pharmacy" means both Pure-Play Internet Pharmacies and
Non-Pure-Play Internet Pharmacies.
"Non-Pure-Play Internet Pharmacy" means the Internet division or operations
owned and operated by pharmacy chains, traditional independent brick and mortar
pharmacies (having one or more physical locations), and other retail merchants
(such as supermarket chains and discount stores) that dispense prescription
drugs from a physical retail location and who, as an adjunct to their
traditional pharmacy operations also accept prescription orders via the Internet
and mail or deliver the Pharmaceutical Products to their customers. As a matter
of clarification, a pharmacy that first had a brick and mortar location (even if
only one location) for retail pick-up, then adds the capability of accepting
prescription orders via the Internet as an adjunct to their traditional
operation, shall fall within this definition of Non-Pure-Play Internet Pharmacy.
A Pure-Play Internet Pharmacy that opens or acquires a material number of
physical retail pharmacy locations shall be considered a Non-Pure-Play Internet
Pharmacy.
"PBM Competitor" means a third party which engages in any of the following
activities, whether or not constituting such party's principal line of business:
contracting with health plan sponsors to provide (a) prescription drug benefits
via mail order, (b) point-of-sale electronic processing of pharmacy claims, (c)
formulary development and administration, or (d) for the development and/or
maintenance of retail pharmacy networks for fulfillment of consumer orders for
Pharmaceutical Products for members of a prescription drug benefit plan;
provided, that an insurance company, HMO or other Person whose principal
business involves offering policies or plans of comprehensive health care and
which engages in such activities solely for the benefit of its policyholders or
members of its comprehensive health plans shall not be deemed to be a PBM
Competitor for purposes of this Agreement.
"Person" means any individual, corporation, partnership, limited liability
company, trust, association or other entity or organization, including any
governmental or political subdivision or any agency or instrumentality thereof.
"Pharmaceutical Products" means any product that under law may not be
dispensed except pursuant to a prescription order written by a licensed medical
professional and dispensed by a licensed pharmacy.
"PlanetRx Site" means the website currently located at www.PlanetRx.com and
any successor site.
"Pure-Play Internet Pharmacy" means a pharmacy which receives orders from
customers primarily through the Internet and is not a Non-Pure-Play Internet
Pharmacy.
Section 2. Termination of Previous Agreement; Waiver.
2.1 On the Effective Date, the Previous Agreement shall be deemed to be
terminated in its entirety, and the Internet Pharmacy Provider Agreement dated
as of August 31, 1999 by and between ESI and PlanetRx (the "Previous Internet
Pharmacy Agreement") shall be replaced in its entirety by the Amended and
Restated Internet Pharmacy Provider Agreement attached hereto as Exhibit I (the
"New Internet Pharmacy Agreement"), which the parties shall execute and deliver
on such Effective Date.
2.2 In exchange for the consideration set forth in this Agreement, ESI and
PlanetRx each hereby waives, releases and forever discharges the other of and
from any and all manner of action or actions, cause or causes of action, in law
or in equity, suits, debts, liens, contracts, agreements, promises, liability,
claims, demands, damages, loss, cost or expense, of any nature whatsoever, known
or unknown, fixed or contingent (hereinafter called "Claims"), which either now
has or may hereafter have against the other by reason of any matter, cause or
thing whatsoever from the beginning of time to the date hereof, including,
without limiting the generality of the foregoing, any Claims arising out of,
based upon or relating to the Previous Agreement. These terms represent a full
and final settlement of any and all claims arising out of the Previous Agreement
and the Previous Internet Pharmacy Agreement, or arising out of any transaction
or relationship between ESI and PlanetRx of any kind whatsoever.
Section 3. ESI Grant.
3.1 Subject to the terms and conditions of this Agreement and the New
Internet Pharmacy Agreement, PlanetRx shall continue to be a participating
pharmacy in the ESI Networks for non-objecting ESI Plan Sponsors during the term
hereof.
3.2 Subject to the terms and conditions of this Agreement and the New
Internet Pharmacy Agreement, PlanetRx shall be the "Preferred" Internet Pharmacy
in the ESI Networks, except for such ESI Networks in which PlanetRx declines to
participate. For purposes of the foregoing, "Preferred" shall mean that PlanetRx
shall be the recommended Internet Pharmacy vendor to ESI Plan Sponsors (although
no level of promotion of PlanetRx is guaranteed by ESI). Notwithstanding the
foregoing: (i) ESI may permit Non-Pure-Play Internet Pharmacies into ESI
Networks, and list such Non-Pure-Play Internet Pharmacies as participants in the
applicable ESI Networks; (ii) ESI may recommend specific Non-Pure-Play Internet
Pharmacies to ESI Plan Sponsors if and only if the applicable ESI Plan Sponsor
seeks an alternative Internet Pharmacy (i.e., alternative to PlanetRx); (iii)
ESI may permit other Pure-Play Internet Pharmacies into applicable ESI Networks
if and then only for a specific ESI Plan Sponsor that requests that such
specific Pure-Play Internet Pharmacy participate in its applicable ESI Network,
and (iv) ESI may honor contractual obligations of a business or entity acquired
by ESI under agreements with third parties existing at the time of such
acquisition until such agreements can be lawfully terminated without financial
or other penalty.
3.3 In the event of (i) a Change in Control of PlanetRx, or (ii) the
acquisition of 30% or more of PlanetRx's voting stock by a PBM Competitor,
PlanetRx shall notify ESI in writing of the occurrence (or proposed occurrence)
thereof and ESI shall have the right, within 30 days of receipt of such notice,
to terminate Section 3.2 hereof by giving PlanetRx written notice of said
termination. In such case, said termination shall be effective 30 days after
receipt of notice thereof by PlanetRx.
Section 4. Payment.
PlanetRx shall pay ESI eight million dollars ($8,000,000) on July 5, 2000,
by wire transfer in immediately available funds, as PlanetRx's payment in full
of all obligations under this Agreement and the Previous Agreement (i.e., said
payment includes the Operating Fee payable to ESI under the Previous Agreement
for the period April 1 to June 30, 2000).
Section 5. PlanetRx Stock; Restrictions.
ESI shall retain the shares of PlanetRx Common Stock received under the
Equity Transaction agreement. ESI agrees that prior to January 1, 2001, ESI
shall not, without the prior written consent of PlanetRx, directly or
indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose of or transfer (or announce any offer,
sale, offer of sale, contract of sale, pledge, grant of any option to purchase
or other disposition or transfer) any such shares of PlanetRx Common Stock or
any securities into which such shares may be converted or exchanged; provided,
however, that ESI may transfer such shares or securities in a private
transaction in accordance with an exemption from registration under applicable
securities laws if, prior to such transfer, the transferee agrees in writing
with PlanetRx to be bound by the restrictions set forth in this Section 5 with
respect to such shares.
Section 6. Technology Deposit.
The parties hereto shall negotiate in good faith and use their best efforts
to execute and deliver, on or before July 31, 2000, a mutually acceptable
Depository Agreement, which shall require PlanetRx to promptly deposit the
source code for and a working copy of the then current versions of all software
developed by PlanetRx that is incorporated into the PlanetRx Site in accordance
with the terms of said Depository Agreement. Such Depository Agreement shall
grant ESI a non-exclusive, non-transferable, non-sublicensable, irrevocable,
worldwide, royalty free, fully paid up license to any PlanetRx IP Rights
relating to such software solely for ESI's use for its own website, provided ESI
shall agree not to use said license unless and until PlanetRx (i) ceases to do
business or otherwise terminates its operation on the PlanetRx Site, (ii) files
for or converts to a case for relief under Chapter 7 of the United States
Bankruptcy Code ("Bankruptcy Code") or a liquidating plan has been confirmed and
gone effective in a case under Chapter 11 of the Bankruptcy Code in which
PlanetRx is the debtor and such plan provides for the liquidation of the
business of PlanetRx, or (iii) liquidates, dissolves or otherwise winds-up its
affairs. The source code and working copy of the software shall be delivered to
ESI by the depository agent immediately upon the occurrence of any of the
foregoing events. In addition, the Depository Agreement shall not require any
future performance on the part of PlanetRx (other than the delivery of the
source code and working copy of the software at the outset).
Section 7. Nondisclosure.
7.1 A party (the "Receiving party") receiving any Confidential Information
of the other party (the "Disclosing party") will exercise a reasonable degree of
care, but in no event less than the same degree of care that it uses to protect
its own confidential information of a like nature, to keep confidential and not
disclose such Confidential Information and not to use such Confidential
Information except as authorized by this Agreement. Without limiting the
generality of the foregoing, the Receiving Party shall disclose the Confidential
Information of the other party only to those of its employees and contractors
(a) who have a need to know the Confidential Information in order to exercise
its license to such Confidential Information, and (b) who are contractually
bound to terms and conditions protecting against the unauthorized disclosure or
use of Confidential Information.
7.2 The obligations set forth in Section 7.1 above shall not apply to any
Confidential Information to the extent it: (a) is approved by prior written
authorization of the Disclosing party for release by the Receiving party; (b) is
disclosed in order to comply with a judicial order issued by a court of
competent jurisdiction, in which event the Receiving party shall give prior
written notice to the Disclosing party of such disclosure as soon as practicable
and shall cooperate with the Disclosing party in using all reasonable efforts to
obtain an appropriate protective order or equivalent, provided that the
information shall continue to be Confidential Information to the extent it is
covered by such protective order or equivalent; (c) becomes generally available
to the public through any means other than a breach by the Receiving party of
its obligations under this Agreement; (d) was in the possession of the Receiving
party without obligation of confidentiality prior to receipt or disclosure under
this Agreement as evidenced by written records made prior to such receipt or
disclosure; (e) is developed independently by the Receiving party without the
use of or benefit from any of the Confidential Information of the other party or
without breach of this Agreement, as evidenced by records of the Receiving
party; or (f) is required to be disclosed by any national securities exchange,
by government rule or regulation (e.g., in connection with a securities filing)
or by any other provisions of applicable law, provided that the Receiving party
gives the Disclosing party advance written notice (to the extent practicable) of
the disclosure and cooperates with the Disclosing party in any reasonable
attempt to limit the scope of the required disclosure. In any dispute over
whether information is Confidential Information under this Agreement, it will be
the burden of the Receiving party to show that such contested information falls
within the exceptions set forth in this Section 7.
Section 8. Representations and Warranties
8.1 Representations and Warranties of PlanetRx. PlanetRx hereby represents
and warrants to ESI:
(a) Authorization. All corporate action on the part of PlanetRx, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement by and between PlanetRx and ESI, and the
performance of all obligations of PlanetRx hereunder has been taken, and this
Agreement, when executed and delivered by PlanetRx, will constitute valid and
legally binding obligations of PlanetRx, enforceable against PlanetRx in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
(b) Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation of or be in conflict with
or constitute, with or without the passage of time and giving of notice, a
default under any provision of PlanetRx's or any of its subsidiaries' charter or
bylaws or any instrument, judgment, order, writ, decree or contract to which
PlanetRx or any of its subsidiaries is a party or by which PlanetRx or any of
its subsidiaries is bound, or any provision of any federal or state statute,
rule or regulation applicable to PlanetRx or any of its subsidiaries, the effect
of which would have a material adverse effect on the ability of PlanetRx or any
of its subsidiaries to perform its obligations under this Agreement or result in
the creation of any lien, charge or encumbrance upon any assets of PlanetRx or
any of its subsidiaries.
8.2 Representations and Warranties of ESI. ESI hereby represents and
warrants to PlanetRx:
(a) Authorization. All corporate action on the part of ESI, its officers,
directors and stockholders necessary for the authorization, execution and
delivery of this Agreement, and the performance of all obligations of ESI
hereunder has been taken, and this Agreement, when executed and delivered by
ESI, will constitute valid and legally binding obligations of ESI, enforceable
against ESI in accordance with its terms except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
other laws of general application affecting enforcement of creditors' rights
generally, as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(b) Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation of or be in conflict with
or constitute, with or without the passage of time and giving of notice, a
default under any provision of ESI's or any of its subsidiaries' charter or
bylaws or any instrument, judgment, order, writ, decree or contract to which ESI
or any of its subsidiaries is a party or by which ESI or any of its subsidiaries
is bound, or any provision of any federal or state statute, rule or regulation
applicable to ESI or any of its subsidiaries, the effect of which would have a
material adverse effect on the ability of ESI or any of its subsidiaries to
perform its obligations under this Agreement or result in the creation of any
lien, charge or encumbrance upon any assets of ESI or any of its subsidiaries.
Section 9. Outsourcing Agreement
The parties will engage in discussions regarding entering into an
outsourcing agreement pursuant to which PlanetRx would be permitted to fill mail
pharmacy prescriptions for ESI, at ESI's sole discretion.
Section 10. Effectiveness and Term; Termination; Survival
10.1 Effectiveness and Term. This Agreement shall become effective on the
Effective Date and the term hereof shall continue for a period of 5 years from
such Effective Date, unless terminated earlier in accordance with the terms
hereof; provided, however, that if the Effective Date does not occur on or
before July 6, 2000, (i) this Agreement shall be deemed to be null and void and
of no force and effect, and ESI shall have all its rights and remedies under the
Previous Agreement, and (ii) nothing contained in this Agreement shall be
considered prejudicial to ESI with respect to its rights or remedies under the
Previous Agreement or otherwise compromise any of such rights or remedies.
10.2 Termination. The following shall be events of default under this
Agreement, and shall give ESI the right to immediately terminate this Agreement:
(a) If PlanetRx is in material breach of any of its obligations under this
Agreement or the Equity Transaction agreements (including any material breach or
inaccuracy of its representations or warranties that has a material adverse
effect on the ability of PlanetRx to perform its obligations under this
Agreement or the Equity Transaction agreements), which breach PlanetRx does not
cure within sixty (60) days after ESI gives PlanetRx written notice thereof;
(b) PlanetRx engages in prescribing medicine or referring consumers to
physicians or other medical or dental professionals to obtain prescriptions for
Pharmaceutical Products;
(c) PlanetRx fails to maintain its privacy structure in accordance with
state and federal regulatory requirements and industry standards, as may be
reflected in certification standards of organizations such as Trust e, BBB,
VIPPS, the NABP or similar organizations and at a level comparable to that
maintained by other Internet Pharmacies.
10.3 Survival. Sections 2.2 and 7 shall survive the termination of this
Agreement. Section 6 shall survive termination of this Agreement due to
PlanetRx's breach if the Depository Agreement is not executed and delivered
prior to said termination.
Section 11. General.
11.1 Relationship. The parties are independent contractors under this
Agreement. Each party acknowledges and agrees that it is not and will not be
during the term an employee or an agent of the other party. Nothing in this
Agreement will be deemed to constitute, create, give effect to or otherwise
recognize a joint venture, partnership, franchise or business entity of any
kind.
11.2 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and the legal representatives, successors in
interest and permitted assigns, respectively, of each such party. This Agreement
shall not be assigned in whole or in part by any party without the prior written
consent of the other party, such consent not to be unreasonably withheld except
to an entity that acquires all or substantially all of the business or assets of
such party, subject to Section 3.3.
11.3 Change in Existing Law. In the event that there is a change in law or
regulation, a change in interpretation of existing law or regulation, or new
enforcement of existing law or regulation such that any provision of this
Agreement shall be deemed illegal, invalid or unenforceable, or impractical, the
parties shall in good faith renegotiate such affected terms so as to put the
parties in as close to the same economic position as they would have been in had
the affected provisions not been deemed illegal, invalid or unenforceable.
11.4 Notices. All notices, requests, demands, applications, services of
process, and other communications that are required to be or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if sent by telecopy or facsimile transmission, answer back requested, or
delivered by courier or mailed, certified first class mail, postage prepaid,
return receipt requested, to the parties to this Agreement at the following
addresses:
If to ESI: Express Scripts, Inc.
13900 Riverport Drive
Maryland Heights, Missouri 63043
Attention: President
Fax: 314-770-1581
With a copy to: Express Scripts, Inc.
13900 Riverport Drive
Maryland Heights, Missouri 63043
Attention: General Counsel
Fax: 314-702-7120
If to PlanetRx: PlanetRx.com, Inc.
349 Oyster Point Blvd., Suite 201
South San Francisco, California, 94080
Attention: General Counsel
Fax: 650-616-1585
or to such other address as the party shall have furnished to the other party by
notice given in accordance with this Section 11.4. Such notice shall be
effective (i) if delivered in person or by courier, upon actual receipt by the
intended recipient, or (ii) if sent by telecopy or facsimile transmission, on
the date of transmission unless transmitted after normal business hours, in
which case on the following date, or (iii) if mailed, upon the date of first
attempted delivery.
11.5 Waiver. No provision of this Agreement shall be deemed to be waived
and no breach excused unless such waiver or consent shall be in writing and
signed by the party that is claimed to have waived or consented. The failure of
a party at any time, or from time to time, to require performance by the other
party of any provision hereof shall in no way affect the rights of such party
thereafter to enforce the same nor shall the waiver by a party of any breach of
any provision hereof by the other party constitute a waiver of any succeeding
breach of such provision, or a waiver of any provision itself, or a waiver of
any other provisions hereof.
11.6 Severability. This Agreement will be enforced to the fullest extent
permitted by applicable law. If for any reason any provision of this Agreement
is held to be invalid or unenforceable to any extent, then: (a) such provision
will be interpreted, construed or reformed to the extent reasonably required to
render the same valid, enforceable and consistent with the original intent
underlying such provision; (b) such provision will be void to the extent it is
held to be invalid or unenforceable; (c) such provision will remain in effect to
the extent that it is not invalid or unenforceable; and (d) such invalidity or
unenforceability will not affect any other provision of this Agreement or any
other agreement between the parties.
11.7 Remedies. Except as otherwise expressly provided in this Agreement,
each and all of the rights and remedies provided in this Agreement, and each and
all of the remedies allowed at law and in equity, will be cumulative, and the
exercise of one right or remedy will not be exclusive of the right to exercise
or resort to any and all other rights or remedies provided in this Agreement or
at law or in equity.
11.8 Injunctive Relief. The parties acknowledge that a material breach of
Section 7 of this Agreement would cause irreparable harm, the extent of which
would be difficult to ascertain. Accordingly, they agree that, in addition to
any other legal remedies to which the non-breaching party may be entitled, such
party will be entitled to obtain immediate injunctive relief in the event of a
material breach of this Agreement.
11.9 Governing Law. This Agreement will be governed by and construed
according to the laws of the State of Delaware without regard to its choice of
law provisions. The parties consent to the jurisdiction of such courts and waive
any right to assert that any such court constitutes an inconvenient or improper
forum.
11.10 Publicity. Neither party shall, without the approval of the other,
make any press release or other public announcement concerning the transactions
contemplated by the Agreements, except as and to the extent that any such party
shall be so obligated by law or by the rules, regulations or policies of any
national securities exchange or association or governmental entity, in which
case the other party shall be advised and the parties shall use reasonable
efforts to cause a mutually agreeable release or announcement to be issued;
provided, however, that the parties hereby acknowledge and agree that
communications among employees of the parties and their attorneys,
representatives and agents necessary to consummate the transactions contemplated
hereby shall not be deemed a public announcement for purposes of this Section
11.10. Upon the execution and delivery of this Agreement, the parties hereto
will cooperate in respect of the immediate issuance of a mutually acceptable
press release relating to the transactions contemplated by the Agreements.
11.11 Entire Agreement. All Exhibits to this Agreement are incorporated in
and constitute a part of this Agreement. This Agreement, including the Exhibits
and Schedules hereto, each as amended from time to time, constitute the entire
understanding between the parties in relation to the subject matter hereof and
supersede all prior discussions, agreements and representations related to this
subject matter, whether oral or written and whether or not executed by a party.
Unless otherwise provided in this Agreement, no modification, amendment or other
change may be made to this Agreement or any part thereof unless reduced to
writing and executed by authorized representatives of all parties.
11.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
11.13 Titles and Subtitles. The titles and subtitles used in this Agreement
and in the Exhibits and Schedules hereto are used for convenience only and are
not to be considered in construing or interpreting this Agreement.
11.14 Force Majeure. Neither party shall be responsible for a failure to
meet its obligations under this Agreement to the extent caused by the following:
(i) materially inaccurate data submitted by the other party; (ii) any failure of
equipment, facilities or services not controlled or supplied by such party; or
(iii) failure(s) caused by acts of God, acts of nature, riots and other major
civil disturbances, strike by such party's personnel, sabotage, injunctions or
applicable laws or regulations, in each case without breach by such party of any
obligations under this Agreement with regard to either such event or such
failure. ESI or PlanetRx, as applicable, agrees to use its commercially
reasonable efforts to restore performance of its obligations under this
Agreement as soon as reasonably practicable following any such event.
(Remainder of Page Intentionally Left Blank)
(Signature Page of Agreement dated as of June 19, 2000, between
Express Scripts, Inc., and PlanetRx.com, Inc.,)
IN WITNESS WHEREOF, the parties have duly entered into this Agreement as of
the date first written above.
ESI: PlanetRx:
EXPRESS SCRIPTS, INC. PLANETRX.COM, INC.
By: /s/ George Paz By: /s/ Michael Beindorff
Name: George Paz Name: Michael Beindorff
Senior Vice President Title: Chief Executive Officer
and Chief Financial Officer
Exhibit I
CONFIDENTIAL TREATMENT REQUESTED
FORM OF INTERNET PHARMACY
PROVIDER AGREEMENT
THIS INTERNET PHARMACY PROVIDER AGREEMENT ("Agreement") is effective as
of this 5th day of July, 2000 (the "Effective Date"), by and between Express
Scripts, Inc., a Delaware corporation ("ESI"), and PlanetRx.com, Inc. a Delaware
corporation ("Provider").
RECITALS
A. ESI provides and manages prescription drug programs for its clients,
which programs include claims administration, mail service dispensing
and other pharmacy benefit management services.
B. Provider, a Web-based pharmacy, wishes to provide Internet Pharmacy
services to eligible members of certain prescription drug programs by
participating in one or more of ESI's pharmacy networks, all in
accordance with and subject to the terms and conditions set forth
herein.
TERMS AND CONDITIONS
1. DEFINITIONS For purposes of this Agreement, the following capitalized terms
shall have the meanings set forth below:
"Average Wholesale Price" or "AWP" means the average wholesale price of
a prescription drug based upon the most current information provided to
ESI by drug pricing services such as First Databank, Redbook or other
source generally recognized in the retail prescription drug industry
selected by ESI.
"Benefit Plan" means a health care plan pursuant to which prescription
drug benefits are available to Members.
"Copayment" means that portion of the total charge for each
prescription drug that a Member is required to pay to Provider in
accordance with that Member's Prescription Drug Program and the
provisions of Section 2.A hereof, whether designated as a "copayment"
or "deductible" under the applicable Prescription Drug Program.
"Covered Medications" means those prescription drugs, supplies and
other items prescribed by an authorized, licensed medical practitioner
that are covered by a Benefit Plan.
"DAW Code" means the "dispense as written" codes as developed by the
NCPDP, as may be revised from time to time.
"Formulary" means a list of preferred drugs developed by ESI or a
Sponsor and revised periodically, which drugs physicians are encouraged
to prescribe and pharmacists are encouraged to dispense, consistent
with their professional judgment and applicable medical and
pharmaceutical laws and procedures, and which Members are encouraged to
use. ESI will send Formulary information to the Provider on-line at
time of claim adjudication, or in such other manner as ESI deems
appropriate.
"Internet Pharmacy" means a pharmacy which does not have a physical
location for patrons to visit for retail sales but that receives orders
from customers only through the Internet, but does not include the
Internet division or operations of pharmacy chains and other retail
merchants (such as supermarket chains and discount stores) that
dispense prescription drugs and who, as an adjunct to their traditional
pharmacy operations also accept prescription orders via the Internet
and mail or deliver the Pharmaceutical Products to their customers.
"MAC" means the maximum allowable cost that ESI will pay Provider for
generic drugs and multi-source brand drugs where a generic drug is
available (except in cases where the prescriber or Member insist upon
receiving the multi-source brand drug. MAC is determined by ESI, in its
sole discretion, based on industry wholesale trends and related current
pricing data for generic drugs.
"Internet" means the Internet or the World Wide Web (or any successor
or other online network including those using delivery over television,
cable, set top boxes, intranets, extranets and personal digital
assistants).
"Member" means a subscriber and his or her eligible dependents to whom
benefits are available pursuant to a Prescription Drug Program.
"NCPDP" means the National Council for Prescription Drug Programs, or
any successor organization.
"Operating Agreement" means the Agreement entered into by Provider and
ESI, dated as of June 19, 2000.
"Prescription Drug Program" means prescription drug program services
provided to a Sponsor pursuant to an agreement with ESI, including any
Formulary.
"Provider Manual" is a written description of ESI's generally
applicable practices, policies, rules and procedures provided by ESI
for pharmacies dispensing Covered Medications to Members, including
such provisions as are specific to Internet Pharmacies. The Provider
Manual may be revised from time to time by ESI in its sole discretion.
"Sponsor" means any health maintenance organization (HMO), insurance
company, employer or other organization having principal financial
responsibility for payment of Covered Medications provided to Members
under a Prescription Drug Program, or a person or entity (such as a
third party administrator) contracting on behalf of such an entity, or
a person or entity sponsoring a "cash and carry" or discounted card
program.
"Usual and Customary Retail Price" means the Provider's usual and
customary retail price of a Covered Medication in a cash transaction
(in the quantity dispensed) on the date that it is dispensed, including
any discounts or special promotions offered on such date.
2. PHARMACY SERVICES
A. Provider shall provide Internet Pharmacy services to Members through its
Internet Pharmacy website in connection with ESI's Prescription Drug Programs,
and agrees to perform the following:
1. Verification of Eligibility. Verify on-line with ESI that the Member
submitting the prescription request is eligible for benefits under the
Prescription Drug Program. Provider shall require the Member provide a health
plan identification number.
2. Dispensing. Dispense Covered Medications to each Member (not to exceed a
one month's supply) in accordance with all applicable laws and regulations and
the applicable Prescription Drug Program. Any prescription for a Member for a
Covered Medication greater than one-month's supply shall be transferred to ESI
for fulfillment unless otherwise mutually agreed to by the parties. The parties
will develop procedures for the transfer of such prescription orders to ESI.
Initially, however, Provider will create an order for each Member request for
such a prescription; obtain approval from the credit card issuer for the amount
of the Copayment; and remit the Copayment to ESI when received, net of the
credit card issuer's fee.
3. Claims Processing. Submit each and every prescription drug claim for a
Member to ESI in a current and industry accepted NCPDP telecommunications format
for processing and payment in accordance with the requirements set forth in the
Provider Manual, which submission shall include, among other things, (a) the DAW
Code, (b) the nationally determined unique provider identifier, when such
identifier is readily available (or the DEA number) or such other identifier
agreed to by ESI for the prescribing medical practitioner, and (c) the NDC
number for the original package size from which the Covered Medication was
dispensed. If a claim cannot be transmitted on-line, Provider will make
reasonable attempts to retransmit the claim. In no event shall a claim be
submitted later than 30 days after the prescription is filled. All messages and
DUR information transmitted by ESI for paid or rejected claims will be displayed
for the dispensing pharmacist at the time of claim processing. Provider will
respond to on-line messages received from ESI.
4. Copayments. Charge Members and collect the applicable Copayment
indicated on-line or if on-line processing is unavailable, then as outlined in
the Provider Manual, subject to the provisions of Section 2.B. hereof regarding
coupons. Copayments for Members may not be waived or discounted without ESI's
consent, nor may Provider accept coupons issued by any person other than ESI in
lieu of collecting the Copayment in cash (including charge or debit cards) for
Members submitting prescriptions for Covered Medications. In no event (including
but not limited to nonpayment by ESI or ESI's insolvency) shall Provider bill,
charge, collect a deposit from, or seek any other fees, taxes or surcharges or
any other compensation from any Member for any Covered Medications or services
provided in connection herewith other than (i) the applicable Copayment (and in
no event shall ESI be liable for any Copayment), and (ii) standard shipping
charges, which shall not be less favorable than the charges to Provider
customers that are not Members. This Section 2.A.4 shall survive termination of
this Agreement, regardless of the cause of termination, and shall be construed
for the benefit of Members.
5. Verification of Dispensing. Maintain order detail and method of shipment
records (or other evidence specifically approved by ESI) for each Covered
Medication dispensed to Members.
6. Consultation Services. Provide reasonable consultation services with
regard to Covered Medications that the Member is taking. Reasonable consultation
services shall include, at a minimum, such consultation as is required under
applicable federal or state law or regulation.
B. Standards of Service. Provider shall perform the services required of it
under this Agreement with at least the same standard of care, skill and
diligence that is customarily used by pharmacies, including VIPPS certified
internet pharmacies, in the community and that Provider uses in serving other
customers. Provider shall not engage in prescribing prescription drugs or in
referring Members to physicians or other medical or dental professionals for
prescriptions for Covered Medications. Provider agrees that the administrative
and billing practices applied and the prices charged for products and services
that are not Covered Medications provided to Members shall be no less favorable
than such practices applied or such prices charged to other customers. Provider
shall not refuse to provide services required under a Benefit Plan or attempt to
disenroll any Member. Further, Provider agrees to implement and maintain a
tracking program for orders identified by Members as lost in the mail. Provider
will comply with the Pharmacy Practice Standards promulgated from time to time
by the Pharmaceutical Care Management Association (PCMA), whether or not
Provider is a member of such association, or, if such association ceases to
promulgate such standards, the comparable standards of any generally recognized
successor organization that promulgates standards for mail and/or Internet
pharmacies.
C. Compliance with Applicable Law; Permits and Licenses. Provider shall be
bound by and comply with the provisions of all applicable laws, rules and
regulations of the state board of pharmacy and other governmental bodies having
jurisdiction over Provider, including non-resident pharmacy requirements. Where
required by a Sponsor that is a health maintenance organization, this Agreement
shall be subject to the Federal Health Maintenance Organization Act, 42 U.S.C.
300 et. seq., or any successor statutes and the rules and regulations
thereunder, and to the comparable laws and regulations of any applicable state,
which laws, rules and regulations shall take precedence over this Agreement to
the extent of any inconsistency. Provider shall maintain at all times all
required federal, state and local licenses, non-resident pharmacy registrations
and licenses, certificates and permits that are necessary to allow Provider to
dispense Covered Medications to Members. Provider shall notify ESI in writing
immediately in the event of any suspension, revocation, restriction or
limitation on any such license, registration, certificate or permit.
D. Drug Utilization Review; Compliance with Formularies and Provider
Manual. Provider shall (1) cooperate with ESI's procedures for drug utilization
review and generic substitution, as set forth from time to time in the Provider
Manual; (2) comply with ESI's procedures for calling prescribers to facilitate
generic substitution and Formulary compliance, and other programs established by
a Sponsor; and (3) comply with the Provider Manual. Provider shall use
commercially reasonable efforts to comply with the applicable Formulary when
dispensing Covered Medications to Members. Without limiting the generality of
the foregoing, in no event will Provider (i) attempt to switch a Member's
prescription to a drug that is not a Formulary drug on the applicable Formulary,
except for generic substitution opportunities or where required by medical
necessity. Provider agrees that ESI's manufacturer agreements, therapeutic
programs and formularies take precedence with the manufacturers over any such
agreements or programs to which Provider is a party with respect to Covered
Medications dispensed to Members. Provider will not implement any substitution
program for Members of Prescription Drug Programs that is inconsistent with such
Prescription Drug Program, including the applicable Formulary.
E. Hours of Service. Provider shall operate and be available to Members
on-line 24 hours a day, 7 days a week.
F. Member Communications. All outbound communications from Provider to ESI
Members (identifiable as such by Provider) (other than those customarily
occurring between a pharmacist and a patient with respect to the dispensing of
Pharmaceutical Products or those reasonably necessary to fulfill a Member's
order) shall require ESI's prior written approval, provided, however, that in
the event that Provider shall request consent for a specific promotion, ESI
shall provide a response to such request within one (1) business day.
3. PROVIDER COMPENSATION
A. Reimbursement Pricing -- 30-Day Prescriptions. In addition to any
Copayments, Provider shall receive payments from ESI for pharmacy services
described in Section 2 hereof, for prescriptions for medication for a 30-day
supply of medication or less, in accordance with the payment schedule set forth
in the applicable Exhibit A, or in any special pricing rider for a specific ESI
network to which Provider may agree (less the applicable Copayments). Payments
shall be based upon the prescription drug claims submitted to ESI pursuant to
Section 2.A.3 hereof. The parties agree to negotiate in good faith adjustments
to the transfer pricing/reimbursement fees for a particular network if, during
the term, ESI recontracts one or more of its retail pharmacy networks (e.g.,
PerxCare, PerxSelect or any successors thereto), as necessary to maintain the
positive rate differential between Provider and the retail network pharmacies.
B. Payment Schedule for Reimbursement Pricing. ESI shall pay Provider for
approved claims for pharmacy services prescribed in Section 2 hereof for
prescriptions for medication for a 30-day supply of medication or less, on a
twice monthly payment cycle; approved claims will be paid on average of thirty
(30) days from date of acceptance. Rejected or disputed claims must be
resubmitted within 30 days of the initial rejection. ESI may deny payment for
any claim not submitted within these time periods. Further, Provider and ESI
hereby agree that ESI may refuse to pay any claim not submitted in accordance
with the provisions of this Section 3.A. and of Section 2.A.3 hereof. Except
with respect to Copayments, Provider shall look solely to ESI for compensation
for Covered Medications and other services provided to Members pursuant to this
Agreement. ESI will not reverse any of its approvals for properly submitted
claims with respect to which Provider has complied with the terms of this
Agreement.
C. Fulfillment Pricing. For prescriptions ordered by a Member through
Provider but fulfilled/dispensed by ESI ("Fulfillment Claims"), Provider shall
receive payments from ESI equal to ESI's drug ingredient cost upon ESI's
collection of payment from the applicable Sponsor. Provider shall bear the risk
of loss for the inability of ESI to collect from the Sponsor. If ESI is unable
to collect from the Sponsor, ESI will assign its rights in such receivable to
Provider. Provider will remit the Copayments on all Fulfillment Claims to ESI,
net of any credit card issuer's fee on the transaction.
D. Payment Schedule for Fulfillment Pricing. ESI shall pay Provider for
Fulfillment Claims based on a schedule mutually agreeable to the parties.
E. Order Fees. ESI shall pay Provider an order processing fee for
Fulfillment Claims of [*] per prescription, payable monthly.
F. Preferred Product Fees. ESI shall pay Provider a preferred product fee
of [*] per prescription for each attempt to convert a prescription for a
non-preferred product to a preferred product for prescriptions filled by
Provider. The method of communication to the Member or the prescriber shall be
at the discretion of Provider.
G. Remittance Advices. Provider agrees that it is obligated to review
remittance advices to verify their accuracy, and must notify ESI in writing
within 45 days of receipt of each such remittance advice of any disputed
information thereon. Upon proper notice to ESI and verification of amounts to be
paid, if any, ESI shall only be responsible for remitting additional payments to
a Provider in connection with the specific disputed remittance advice. If
Provider does not notify ESI in the manner and time provided herein, ESI shall
have no further responsibility with respect to such remittance.
H. Taxes: Transmission Charges. With respect to Covered Medications
dispensed to Members by Provider, if permitted by the terms of its contract with
the Sponsor, ESI will bill the Sponsor for any Federal, state, or local sales
taxes payable with respect to any sales of Covered Medications to a Member, and
will remit to Provider any such taxes collected from Sponsors. Provider shall
remit any such sales taxes to the other taxes or surcharges associated with its
performance under this Agreement (but not for income taxes payable on ESI's
income). For purposes of this section "sales tax" means any excise tax on
Covered Medications now or hereafter in existence required to be collected or
paid by a retail seller on consumer retail sales, whether designed as a sales
tax, gross receipts tax, retail occupation tax, value added tax, or otherwise.
Provider shall be solely responsible for expenses included in transmitting
claims to ESI. If Provider transfers a prescription order to ESI for
fulfillment, ESI shall be solely responsible for any applicable sales taxes and
any other taxes or surcharges associated with fulfilling such prescription order
(but not for income taxes payable on Provider's income).
4. COMPENSATION TO ESI. For prescriptions ordered by a Member through
Provider but fulfilled/dispensed by ESI because the quantity dispensed exceeded
a 30 days supply, Provider shall reimburse ESI for its drug ingredient cost and
remit the applicable Copayment to ESI. Provider shall be responsible for
collecting the Copayment from the Member. Provider shall make such payments to
ESI based on a schedule mutually agreeable to the parties.
5. LIABILITY INSURANCE; INDEMNITY
A. Provider shall obtain and maintain in full force and effect and
throughout the term of this Agreement such policies of general liability,
professional liability and other insurance of the types and amounts as are
reasonably and customarily carried by pharmacies with respect to their
operations. Provider shall obtain and maintain during the term of this
Agreement, comprehensive general liability insurance coverage in the amount of
at least $1,000,000 per occurrence, including pharmacist's professional
liability insurance, for protection from claims for bodily injury and personal
injury to Members from Provider's operation under this Agreement. By signing
this Agreement, Provider represents that these insurance requirements are being
met. Provider shall furnish not less than 30 days' prior written notice to ESI
in the event of termination or material modification of any such policies of
insurance which renders Provider non-compliant with the foregoing. Upon ESI's
request, Provider shall provide ESI with evidence of such insurance coverage
satisfactory to ESI. If the insurance purchased to satisfy the requirements of
this Section is of the "claims made" variety, Provider shall purchase an
extended period of indemnity so that ESI is protected from any and all claims
brought against ESI for a period of not less than three years subsequent to the
date of termination of this Agreement.
B. With respect to any prescription orders filled by Provider, ESI shall
not be liable or suffer loss for any claim, injury, demand, or judgment of any
kind whatsoever arising out of the sale, compounding, dispensing, manufacturing,
consultation or use of any prescription drug or any service provided by Provider
pursuant to this Agreement. Regardless of the insurance coverage required herein
above, Provider shall indemnify, defend and hold harmless ESI, its officers,
directors and employees, against the full amount of any and all loss, expense,
claim, or damage (including expert and professional fees and attorneys fees)
arising out of or attributable to any of the foregoing.
C. With respect to any prescription orders that are referred by Provider to
ESI for fulfillment, Provider shall not be liable or suffer loss for any claim,
injury, demand, or judgment of any kind whatsoever arising out of the sale, drug
or any service provided by ESI in fulfilling such prescription order. ESI shall
indemnify, defend and hold harmless Provider, its officers, directors and
employees, against the full amount of any and all loss, expense, claim, or
damage (including expert and professional fees and attorneys fees) arising out
of or attributable to any of the foregoing as related to such prescriptions
dispensed by ESI.
D. If any claim, injury, demand, or judgment (collectively, an "Indemnified
Claim"), is asserted against a person entitled to indemnification hereunder (an
"Indemnified Party") in respect of which the Indemnified Party proposes to
demand indemnification from the other party (the "Indemnifying Party") pursuant
to Sections 4.B or 4.C above, such Indemnified Party will promptly notify the
Indemnifying Party in writing. No failure of an Indemnified Party to so notify
the Indemnifying Party shall relieve the Indemnifying Party from the obligation
to indemnify the Indemnified Party unless and to the extent the Indemnifying
Party is actually prejudiced by such failure. Such Indemnified Party will accord
the Indemnifying Party the opportunity to assume entire control for the defense,
compromise or settlement of any such Indemnified Claim through its own counsel
and at its own expense; provided that no such compromise or settlement shall
include any non-monetary terms and conditions applicable to such Indemnified
Party without the consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnified
Party may retain its own counsel at its own expense (the Indemnifying Party
shall only be liable for the reasonable cost of one such counsel for all
Indemnified Parties) if (i) the Indemnifying Party, within fifteen (15) days
after notice of any Indemnified Claim, fails to assume the defense of such
Indemnified Claim or (ii) the representation of both the Indemnifying Party and
the Indemnified Party would, in the reasonable judgment of the parties, be
inappropriate due to actual or potential conflicting interests between them. If
the Indemnifying Party does not assume entire control of the defense, compromise
or settlement of such Indemnified Claim, the Indemnified Party may compromise or
settle any such Indemnified Claim. Provider and ESI each agrees to reasonably
cooperate with respect to the defense of any Indemnified Claim, at the
Indemnifying Party's expense.appropriate taxing authority. Provider shall be
solely responsible for any
6. RECORDS
Provider shall maintain medical, financial and administrative records
relating to Members and their prescriptions for Covered Medications in
accordance with applicable law and as required for quality assurance and peer
review programs for a minimum of 5 years from the date any such prescription is
dispensed. The parties agree that such records shall be treated as confidential
so as to comply with all applicable state and Federal laws regarding the
confidentiality of patient records. Provider shall permit ESI or a third party
authorized by ESI to inspect, review, audit and reproduce, during regular
business hours and without charge, any business, financial and prescription
records maintained by Provider pertaining to ESI, Members or this Agreement as
ESI deems necessary to determine compliance with the terms of this Agreement.
7. QUALITY ASSURANCE
Provider shall cooperate and participate with ESI in any and all quality
assurance procedures, peer review, credentialing process, audit systems and any
complaint resolution procedures established by ESI or required by a Sponsor from
time to time, and Provider shall abide by, comply with and carry out all
determinations resulting from such processes or procedures.
8. ADVERTISING, MARKETING AND RESERVATION OF RIGHTS
Subject to compliance with Provider's trademark quality control guidelines,
ESI may use Provider's name, URL and description of services for purposes of
advertising or marketing prescription drug programs in all media, including any
website operated by ESI, subject to compliance with Provider's trademark quality
control guidelines. ESI reserves the exclusive rights to, and control of, the
use of the name "Express Scripts, "PERx" and all other names, symbols and
service marks presently existing or hereinafter adopted by ESI. Provider shall
not advertise or use any names, symbols or trademarks of ESI in any advertising
or promotional materials or otherwise without the prior written consent of ESI.
It is understood and agreed that any decal incorporating an ESI servicemark or
logo is solely for on-line screen display by Provider in connection with its
performance under this Agreement and that all such use and display shall
terminate upon termination of the Agreement.
9. TERM
A. The term of this Agreement shall commence on the Effective Date and
continue for five (5) years, unless terminated as provided in this Section 9.
B. Notwithstanding any provision to the contrary, the parties hereto agree
that in the event either (i) Provider, on the one hand, or (ii) ESI, on the
other, shall default in performance of any of their respective obligations under
this Agreement and good faith efforts to cure such default have not begun within
10 days after the receipt of written notice thereof, the nondefaulting party
shall have the right by further written notice to the defaulting party to
terminate this Agreement effective as of any future designated date, not less
than 30 days from the date of the termination notice.
C. ESI shall have the right to automatically and immediately terminate this
Agreement upon written notice in the event that (i) Provider ceases to be
licensed by the appropriate licensing authorities, or is excluded as a sanction
for misconduct from participation in any government health care programs, (ii)
Provider submits a fraudulent prescription drug claim or any information in
support thereof, knowing it to be fraudulent, (iii) Provider is declared
insolvent, goes into receivership or bankruptcy or any other action is taken on
behalf of its creditors, or (iv) the Operating Agreement is terminated due to
Provider's breach of such agreement.
10. MISCELLANEOUS
A. Any notice required to be given pursuant to the terms hereof shall be in
writing and sent by ordinary or express mail to the other party at the address
listed below or to the last reported address of such party:
If to Express Scripts, Inc., to:
Attn: Provider Relations
13900 Riverport Drive
Maryland Heights, MO 63043
with a copy to General Counsel at the same address.
If to PlanetRx, Inc., to:
PlanetRx.com, Inc.
6399 Shelby View Dr. Suite 111
Memphis, TN 38134
Attn: Legal
and to:
PlanetRx, Inc.
349 Oyster Point Blvd., Suite 201
South San Francisco, California 94080
Attention: Legal
Fax: 650-616-1505
B. Any reference to the parties in this Agreement shall include, apply to,
bind and benefit the permitted assigns and successors of the parties and any
corporation, partnership, individual, or person acting in a fiduciary capacity
on their behalf.
C. This Agreement, including the Exhibit(s) and the Provider Manual,
constitute the entire understanding of the parties hereto with respect to the
subject matter hereof and, upon execution by the parties, supersedes all prior
oral or written agreements between the parties with respect to the subject
matter hereof. No modification, alteration or waiver of any term, covenant or
condition of this Agreement shall be valid unless agreed to in writing by both
parties, except as hereinafter set forth. Notwithstanding the foregoing,
Provider and ESI agree that ESI may amend this Agreement to comply with any
changes required or suggested by the appropriate regulatory authorities in the
course of discharging their responsibilities under applicable laws and
regulations. ESI shall furnish Provider with written notice of such amendments.
In the event any such amendment constitutes a material change in the terms of
the Agreement that is unacceptable to Provider, Provider may elect to terminate
this Agreement by giving written notice of such election to terminate to ESI
within 20 days of receipt of amendment, and such termination shall be effective
no earlier than 180 days after receipt of written notice by ESI. If Provider
does not so elect to terminate this Agreement within such 20-day period, such
amendment will be deemed approved by Provider and ESI and shall automatically
become a part of this Agreement. Provider further agrees that ESI may amend the
Provider Manual and all policies and procedures of ESI, in its sole discretion,
and such amendment shall not require consent of Provider.
D. Provider and ESI each acknowledge that in the performance of the
services to be rendered hereunder, each Party will have access to certain
confidential business information regarding the other, including but not limited
to the following: trade secrets, know-how and nonpublic information that relates
to research, development, software programming, concepts, designs, procedures,
purchasing, accounting, engineering, marketing, merchandising, selling, business
plans or strategies, inventions, source code, pricing and other financial and
contractual arrangements with Sponsors and vendors, manuals, marketing
strategies, customer lists, Member information protectable under the laws of the
United States or any other nation, state or jurisdiction (including, but not
limited to, any foreign equivalents thereto) (collectively, the "Confidential
Information"). The receiving party shall not disclose or use or enable anyone
else to disclose or use, in whole or in part, any such Confidential Information
other than for the purpose of providing the services to be provided hereunder
and shall promptly return all Confidential Information to the providing party
upon request. The obligations set forth in Section 10.D above shall not apply to
any Confidential Information to the extent it: (a) is approved by prior written
authorization of the disclosing party for release by the receiving party; (b) is
disclosed in order to comply with a judicial order issued by a court of
competent jurisdiction, in which event the receiving party shall give prior
written notice to the disclosing party of such disclosure as soon as practicable
and shall cooperate with the disclosing party in using all reasonable efforts to
obtain an appropriate protective order or equivalent, provided that the
information shall continue to be Confidential Information to the extent it is
covered by such protective order or equivalent; (c) becomes generally available
to the public through any means other than a breach by the receiving party of
its obligations under this Agreement; (d) was in the possession of the receiving
party without obligation of confidentiality prior to receipt or disclosure under
this Agreement as evidenced by written records made prior to such receipt or
disclosure; (e) is developed independently by the receiving party without the
use of or benefit from any of the Confidential Information of the other party or
without breach of this Agreement, as evidenced by records of the receiving
party; or (f) is required to be disclosed by any national securities exchange,
by government rule or regulation (e.g., in connection with a securities filing)
or by any other provisions of applicable law, provided that the receiving party
-------- gives the disclosing party advance written notice (to the extent
practicable) of the disclosure and cooperates with the disclosing party in any
reasonable attempt to limit the scope of the required disclosure. In any dispute
over whether information is Confidential Information under this Agreement, it
will be the burden of the receiving party to show that such contested
information falls within the exceptions set forth in this Section.
E. Provider further agrees during the term of this Agreement and for a
period of one year thereafter it will not solicit the trade or patronage of any
of the Sponsors or potential sponsors of ESI with respect to prescription drug
programs, services, .products or other matters referred to in this Agreement
without ESI's prior written consent. Notwithstanding termination of this
Agreement, the rights and obligations of the parties under this Subsection shall
remain in full force and effect for a period of one year following termination.
F. This Agreement shall be construed and governed in all respects according
to the internal laws in the State of Missouri.
G. The relationship created hereunder is that of independent contractors
and nothing herein shall create or be deemed to create an agency, partnership or
joint venture relationship between the parties. No provision of this Agreement
or any part of any Sponsor's Prescription Drug Program shall be construed to
require any pharmacist to dispense any Covered Medication to any Member if, in
the pharmacist's reasonable professional judgment, such Covered Medication
should not be dispensed to such person. In such event, Provider agrees to notify
ESI of the circumstances of the decision not to dispense such Covered
Medication.
H. No waiver of a breach of any covenant or condition shall be construed to
be a waiver of any subsequent breach. No act, delay or omission done, suffered,
or permitted by the parties shall be deemed to exhaust or impair any right,
remedy or power of the parties hereunder.
I. This Agreement will be enforced to the fullest extent permitted by
applicable law. If for any reason any provision of this Agreement is held to be
invalid or unenforceable to any extent, then: (i) such provision will be
interpreted, construed or reformed to the extent reasonably required to render
the same valid, enforceable and consistent with the original intent underlying
such provision; (ii) such provision will be void to the extent it is held to be
invalid or unenforceable; (iii) such provision will remain in effect to the
extent that it is not invalid or unenforceable; and (iv) such invalidity or
unenforceability will not affect any other provision of this Agreement or any
other agreement between the parties.
J. This Agreement shall not be assigned, in whole or in part, by either
party without the prior written consent of the other, except in connection with
an acquisition of a party or of all or substantially all of a party's assets,
provided, that in any such case the assignee agrees in writing to be bound by
all of the obligations of the assignor hereunder.
IN WITNESS WHEREOF, the undersigned have executed this Provider Agreement
as of the day and year first above written.
PLANETRX.COM, INC. EXPRESS SCRIPTS, INC.
By: By:
----------------------- --------------------------
Name: Name:
------------------------- ------------------------
Title: Title:
------------------------ -----------------------
[FN]
* Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with the
Securities and Exchange Commission pursuant to the application for confidential
treatment.
</FN>
EXHIBIT A
CONFIDENTIAL TREATMENT REQUESTED
FEES
Reimbursement Rates. The reimbursement rates (i.e., rates at which ESI
shall pay Provider) for 30 or fewer days Internet Pharmacy prescriptions
dispensed to ESI Members by Provider shall be the lesser of:
(A) The following rates for the applicable networks:
[*]
[*]
[*]
[*]
[*]
[*]
or
(B) [*]
[FN]
* Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with the
Securities and Exchange Commission pursuant to the application for confidential
treatment.
</FN>
EXHIBIT B
CONFIDENTIAL TREATMENT REQUESTED
PERFORMANCE STANDARDS
For prescriptions dispensed by Provider, the following performance standards
will apply:
1. Mail Service Prescription Accuracy
Standard
While Provider strives for 100 percent accuracy, Provider guarantees [*] percent
accuracy in dispensing the correct drug, at the correct strength and at the
correct dosage, unless the error is a prescriber error. This standard will be
measured [*].
Guarantee
Provider places [*] percent of the dispensing fee at risk, if performance is
below the stated standard.
2. Turnaround time for routine prescriptions
Standard
Provider guarantees dispensing and shipping (or return) of [*] percent of all
fillable prescriptions not subject to intervention within an average of [*]
business days of receipt of the order at Provider. This standard will be
measured and reported [*]. "Interventions" include all calls to members or
prescribers to clarify the prescriber's direction, to obtain consent for generic
or therapeutic substitution, or otherwise.
Guarantee
Provider places [*] percent of the dispensing fee at risk, if performance is
below the stated standard for [*] or more.
3. Turnaround time for prescriptions subject to intervention
Standard
Provider guarantees dispensing and shipping (or return) of [*] percent of all
prescriptions subject to intervention within an average of [*] business days of
receipt of the order at Provider, if the prescriber provides a response on the
initial attempts at intervention. This standard will be measured [*].
Guarantee
Provider places [*] percent of the dispensing fee at risk if performance is
below the stated standard for [*] or more.
[FN]
* Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with the
Securities and Exchange Commission pursuant to the application for confidential
treatment.
</FN>
