EXHIBIT 10.8
ADVISORY SERVICES AGREEMENT
BETWEEN
MMM HOLDINGS, INC.
A CORPORATION ORGANIZED UNDER
THE LAWS OF THE COMMONWEALTH OF PUERTO RICO
(ADVISOR)
AND
MMM HEALTHCARE, INC.
A CORPORATION ORGANIZED UNDER
THE LAWS OF THE COMMONWEALTH OF PUERTO RICO
(OPERATOR)
DATED AS OF
JANUARY 1, 2005
ADVISORY SERVICES AGREEMENT
This Advisory Services Agreement (the "Agreement"), dated as of January 1,
2005 by and between MMM Holdings, Inc., a corporation organized under the laws
of the Commonwealth of Puerto Rico (the "Advisor") and MMM Healthcare, Inc., a
corporation organized under the laws of the Commonwealth of Puerto Rico (the
"Operator").
BACKGROUND
A. Operator owns and runs a Medicare Advantage Plan in Puerto Rico (the "MA
Business").
▇. ▇▇▇▇▇ Health, Inc., (hereinafter "Aveta") is a corporation that, through
its subsidiaries and related companies, owns or operates a variety of health
care service businesses and other companies primarily focused on medical care
for the elderly. These businesses include (i) long term care and assisted living
facilities, (ii) operating or managing IPAs, Health Plans and other related
entities, (iii) providing services to or on behalf of a Health Plan in the areas
of medical management, risk adjustment, medical network operations or
administration, plan design, pricing, utilization or quality control revenues,
(iv) institutional pharmacy services, (v) providing hospice care, and (v)
investing in private equity, hedge funds, and real estate and other businesses.
C. As a result, Aveta has available to it expertise in matters relating to
finance, accounting, law, and management of Health Plans, health care service
businesses and related businesses, as well as expertise in the areas of medical
management, management of care operations, and implementation of changes in
Medicare law and regulations, such as the implementation of the Medicare program
for prescription drug benefits (hereinafter referred to as "Part D") and changes
in methodology of premium payments (and related strategic and tactical
considerations) to health service organizations operating under Medicare
Advantage contracts with the Centers for Medicare & Medicaid Services ("CMS")
(such services are referred to hereinafter as "Risk Adjustment Services").
▇. ▇▇▇▇▇ is currently unwilling to establish operations directly in the
Commonwealth of Puerto Rico because it is reluctant to open itself to taxation,
regulation or litigation in Puerto Rico. Furthermore, Aveta does not have the
business structure to execute such services directly for MMM Healthcare in
Puerto Rico.
E. Advisor has agreed to arrange for certain personnel of Aveta and related
entities to be available under the supervision of ▇.▇. ▇'▇▇▇▇▇▇▇, LLC, a
consultant to Advisor to assist Holdings in providing services hereunder.
F. Currently very few companies have developed expertise with respect to
the implementation of Part D and Risk Adjustment Services and there is not an
established unrelated company in the United States or in Puerto Rico able to
provide the services described herein in a manner acceptable to Operator.
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G. Operator desires to engage Advisor to provide advice and consultation to
the Operator to assist it in managing the operations of the MA Business on
Operator's behalf.
H. Advisor is willing to provide advisory and consulting services with
respect to the MA Business on the basis, terms and conditions set forth below.
TERMS
NOW, THEREFORE, in consideration of the mutual representations, covenants
and agreements set forth below, and intending to be legally bound, Operator and
Advisor agree as follows:
SECTION 1. APPOINTMENT OF ADVISOROperator hereby appoints and engages Advisor as
Advisor to the MA Business, and Advisor agrees to act as Advisor to the MA
Business to during the term of this Agreement upon the terms and conditions
hereinafter stated. In providing services hereunder, Advisor shall exercise
reasonable care and shall perform its duties hereunder in accordance with
industry best practices and accepted professional standards, and in any event,
shall exercise at least the same degree of diligence and skill applied by
Advisor in its other business operations. Advisor shall comply with Operator's
policies made known to Advisor by Operator. In the absence of any such policy,
Advisor shall exercise its reasonable judgment in performing its services
hereunder. Any advice, policy, process or procedure for the MA Business proposed
by Advisor, and any subsequent amendments or additions, hereunder shall be
subject to Operator's approval which approval may not be withheld or delayed in
Operator's sole and unfettered discretion. In providing services hereunder,
Advisor shall operate in compliance with the requirements of governmental
authorities and third party payors.
During the term of this Agreement, Operator shall retain authority over the MA
Business as required by law in accordance with the licenses held by the MA
Business. Nothing in this Agreement shall require or obligate Advisor to perform
any service or to undertake any responsibility with respect to any matter that
by law, regulation or requirement of a governmental authority or third party
payor is required to be the direct responsibility or obligation of a holder of
such licenses.
SECTION 2. TERM The term of this Agreement shall commence on the date hereof
(the "Commencement Date") and, unless the Agreement is sooner terminated
pursuant to Section 13, shall continue for a period ending on December 31, 2007
(the "Initial Term"). This Agreement shall automatically renew for a one (1)
year renewal term, unless either party delivers a written notice of non renewal
on or before September 30, 2006.
SECTION 3. SERVICES In connection with the MA Business, Advisor shall perform or
cause to be performed, the following services:
3.1 Regulatory Approvals. Advisor shall assist Operator in its application
for, and to obtain and maintain, on behalf of Operator and in its name, all
necessary licenses, certifications, accreditations, permits, contracts and
approvals, and renewals thereof, to operate the MA Business to comply with all
applicable laws, rules and regulations and to be eligible for participation in
the Reforma or Medicaid Program in the commonwealth and states in which it
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operates, the federal Medicare Program and third-party payor programs. Such
assistance shall include if requested, preparation and filing of applications,
financial projections and other materials reasonably related to the regulatory
approvals; preparation for on-site inspections; preparation of plans of
correction or consent orders; and review and recommendation of agreements. Any
and all materials prepared by Advisor shall be subject to Operator's approval.
3.2 Annual Budget. Annually during the term of this Agreement Advisor shall
assist Operator in preparing an annual budget covering the operations of and
proposed capital expenditures to be made with respect to the MA Business for the
next fiscal year. The Annual Budget shall include a capital budget outlining a
program of capital expenditures, in which each proposed capital expenditure will
be designated as either mandatory, highly recommended or desirable. The Annual
Budget shall include an operating budget setting forth an estimate of operating
revenues and expenses for the MA Business for the next fiscal year.
3.3 Operations Management and Affairs. Advisor shall provide overall
operational advice to assist Operator in managing the operations and business
affairs of the MA Business, including, but not limited to, legal services, human
resources, quality control, utilization management, compliance, benefit design
sales and marketing and general administration.
3.4 Risk Management and Insurance. Advisor shall assist Operator in
developing and implementing a program to identify and manage all business risks
and to purchase and maintain appropriate insurance coverage for such risks.
3.5 Strategic Planning and Marketing: Advisor shall assist Operator in
developing a strategic plan and marketing program designed to maintain the
Operator's market share, to assist it in diversifying its products and services
and to identify opportunities for it to improve its profitability by controlling
costs, providing ancillary services, operating its own health facilities or
implanting other programs. Operator's efforts may also focus on identifying
(i)potential joint venture opportunities; (ii) potential shared service
opportunities; (iii) physician recruitment needs; (iv) diagnostic and treatment
opportunities; (v) alternative health care delivery system opportunities; (vi)
long term care opportunities; and (vii) networking opportunities with other
organizations. Advisor shall make specific recommendations to the Operator for
service implementation including possible changes in its organizational
structure. Advisor shall assist the Operator in the implementation of all
approved service opportunities, organizational structure changes and other
elements of the strategic plan.
3.6 Financial Services In order to enable Operator to maintain its
financial viability, to continue to meet the needs of customers, to resolve
capital formation issues, to have adequate capital resources to replace capital
equipment and to meet the demands of a competitive health care environment,
Advisor shall (i) monitor the Operator's accounts receivable and recommend
actions including improved collection practices and procedures that may be
required to maximize the Operator's reimbursement and cash flow from all payors,
(ii) consult and assist in the preparation of and presentation to the Operator
of monthly financial statements containing a balance sheet and a statement of
income and expense in reasonable detail with narrative explanations of
significant financial changes, (iii) assist in the maintenance of positive
relationships with Federal, commonwealth and local officials as well as the
community and (iv) assist the Operator in developing and managing a treasury
function to manage its investments.
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3.7 Management and Employees.
(a) Advisor shall assist Operator in recruiting, hiring, training,
supervising and evaluating an adequate office staff and other administrative and
professional staff necessary for the operation of the MA Business. Except as
otherwise expressly provided herein, all MA Business employees shall be
employees of Operator and subject to Operator's personnel policies.
(b) Advisor shall recommend general salary scales, personnel policies
and appropriate employee benefits for employees of the MA Business so that the
MA Business's salary scales and employee benefits are competitive with, but not
excessive with respect to, salaries and benefits paid by other comparable
businesses in the MA Business's general market area.
3.8 Tax Services. The Advisor shall assist the Company and its subsidiaries
in (i) in preparing any Tax returns, tax elections, or other tax filings which
it is legally obligated to file, (ii) in preparing for any audits of, or
disputes with Taxing Authorities regarding, and Tax returns of the Operator,
(iii) maintaining the tax records of the Operator and its subsidiaries
3.9 Regulatory Implementation Services. The Advisor shall assist the
Operator in implementing the provisions of the Medicare Modernization Act and
other statutory and regulatory changes, including implementation of Part D, Risk
Adjustment, and new CMS bidding procedures. This assistance shall include
assistance in interpreting and implementing the regulations, providing the
Operator with operational information and guidance, developing analytical tools
and information systems, developing appropriate business models and methods and
providing oversight and project management, all designed to allow Operator to
optimize its revenue and profitability, consistent with the regulations and its
quality systems.
SECTION 4. RESPONSIBILITIES OF ADVISOR IN PROVIDING SERVICES
4.1 Compliance with Operator Policies. Manager shall comply with Operator's
policies made known to Manager by Operator.(a) Compliance with Regulatory
Requirements and Accreditation Standards. Advisor shall comply with the federal
and state regulatory requirements, state licensure requirements, and
accreditation standards applicable to the MA Business.
(b) Services of Others. The Advisor may employ, retain or otherwise
avail itself of the services or facilities of other Persons for the purpose of
providing the Advisor, the Parent, the Company and its subsidiaries with such
advice and information as the Advisor may deem necessary, appropriate or
convenient for the discharge of its obligations hereunder or otherwise helpful
to the Company and its subsidiaries. All services provided hereunder shall be
provided at the offices of the Company in Puerto Rico. Advisor shall neither
knowingly employ, continue in employment nor contract with, any individuals or
entities who have been excluded from participation in any Federal, Commonwealth
or state health care program, and shall cause applicable licensure and registry
lists to be consulted, criminal background checks to be performed and federal
and state program exclusion and debarment lists to be checked ("Background
Checks") prior to employing or contracting with any person or entity.
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4.2 Proprietary Property. Advisor retains all ownership and other rights in
all proprietary systems, policy and other manuals, materials and other
information, in whatever form, developed by Advisor prior to this Agreement or
developed in connection with the operation of the MA Business, whether by
Operator or Advisor. Nothing contained in this Agreement shall be construed as a
license or transfer of such information either during the term of this Agreement
or otherwise. Upon termination of this Agreement, or earlier upon Advisor's
request, Operator shall immediately return all such information to Advisor.
SECTION 5. RESPONSIBILITIES OF OPERATOR. Operator makes the following covenants
that are material covenants and upon which Advisor relies as an inducement to
enter into this Agreement:
5.1 Cooperation. Operator shall cooperate with Advisor in every respect to
allow Advisor to perform its services under this Agreement and will furnish
Advisor with all information required by it for the performance of its services
under this Agreement. Operator shall permit Advisor full access to the MA
Business and will allow Advisor to examine and copy any data in the possession
and control of Operator affecting management and/or operation of the MA
Business.
5.2 Operations Control. During the term of this Agreement, Operator shall
retain authority over the MA Business as required by law in accordance with the
licenses held by the MA Business.
5.3 Inspection of Documents. Operator shall examine documents submitted by
Advisor and render reasonable decisions pertaining thereto, when required,
promptly, to avoid unreasonable delay in the progress of Advisor's work. In any
emergency situation (as reasonably determined by Advisor), Advisor shall not be
required to seek or obtain Operator's approval for any actions which Advisor, in
its sole judgment, deems necessary or appropriate to respond to such situations,
provided Advisor promptly thereafter reports such action to Operator in writing.
Operator shall execute and deliver any and all applications and other documents
that may be deemed by Advisor to be necessary or proper to be executed by
Operator in connection with the operation of the MA Business.
SECTION 6. COOPERATION BETWEEN OPERATOR AND ADVISORAdvisor and Operator shall
mutually cooperate with each other as follows:
6.1 Mutual Cooperation and Restrictive Covenants. Advisor and Operator
shall mutually cooperate with each other as follows:
(a) Compliance - On and after the Commencement Date, neither Operator
nor Advisor shall knowingly take any action or fail to take any action which may
cause any governmental authority or third party payor having jurisdiction over
the operation of the MA Business to institute any proceeding for the suspension,
rescission or revocation of any necessary license, permit, consent,
accreditation, certification or approval.
(b) No Borrowing/Security Interest - Advisor, without the prior
written consent of Operator in each instance (which consent may be withheld in
Operator's sole and absolute discretion), shall not enter into any lease
agreement with respect to the MA Business, borrow
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money in the name of or on behalf of the MA Business, or grant any party a
security interest in or lien upon equipment, accounts receivable, or licenses
and permits related to the operation of the MA Business.
(c) Affiliate Agreements - Advisor, without the prior written consent
of Operator in each instance (which consent shall not be unreasonably withheld
or delayed), shall not enter into any agreement with respect to the MA Business
with any third party providing goods or services to the MA Business that is an
Affiliate of Advisor. In the event of Operator approval, shall have a thirty
(30) day termination without penalty provision.
(d) Compliance With Law - Advisor and Operator shall each use its best
efforts to abide by all relevant laws, ordinances, rules and regulations of
federal, state and local governing authorities, and any third party payors.
(e) Records - Operator and Advisor shall each afford the other
reasonable access to records so as to permit the other to discharge its
obligations hereunder. Operator and Advisor shall each use its best efforts to
comply with all applicable federal and state laws and regulations relating to
the confidentiality of medical records and other personal information. Operator
and Advisor shall each treat information relating to the MA Business's financial
condition, businesses, and operations as confidential provided, however, that
Operator or Advisor may disclose information necessary to the performance of its
obligations hereunder or as required by law or court order. For a period of four
(4) years after the termination of this Agreement, Operator and Advisor will
provide each other with reasonable access to records relating to the subject
matter of this Agreement.
6.2 HIPAA Compliance. Advisor acknowledges that it is a "Business
Associate" as defined by the Standards for Privacy of Individually Identifiable
Health Information (the "Privacy Rule") under the Health Insurance Portability
and Accountability Act of 1996 ("HIPAA"). Advisor shall comply with HIPAA and
protect the privacy of individually identifiable health information pursuant to
the Privacy Agreement set forth in Exhibit A hereto, which is incorporated by
this reference as if fully set out herein.
SECTION 7. FEES.
7.1 Advisory Fee(a) Operator shall pay to Advisor an annual fee (the
"Advisory Fee") equal to (i) five million dollars ($5,000,000) plus (ii) thirty
percent (30%) of the Risk Adjustment Revenue (as defined below) of Operator for
such year; provided however that in no event shall the Advisory Fee exceed
fourteen million dollars ($14,000,000) for any year during the term of this
Agreement.
(b) During the first year of this Agreement, Operator shall pay to
Advisor on the first day of each month one twelfth of the estimated Advisory
Fee; such monthly fee is agreed to be one million one hundred thousand dollars
($1,100,000).
(a) For the purposes of this section, Risk Adjustment Revenue shall be
determined on an accrual basis in accordance with generally accepted accounting
principles, consistently applied and:
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For 2005 "Risk Adjustment Revenue" means, (x) total premiums ("Total
Premiums") attributable to 2005 payable to the Operator and its
subsidiaries by the Centers for Medicare & Medicaid Services ("CMS")
pursuant to Medicare Advantage contracts with CMS adjusted as if the
risk adjustment factor for 2005 were the average risk adjustment
factor for the Operator reflected on the Monthly Membership Report
from CMS reflecting the final determination of the risk adjustment
factor for the Operator for the month ended December 31, 2005, less
(y) Total Premiums recalculated utilizing a risk adjustment adjusted
as if the risk adjustment factor for 2005 were the average risk
adjustment factor for the Operator reflected on the Monthly Membership
Report from CM for the month ended December 31, 2004.
For each year thereafter "Risk Adjustment Revenue" means, (x) Total
Premiums attributable to such year payable to the Operator and its
subsidiaries by the CMS pursuant to Medicare Advantage contracts with
CMS adjusted as if the risk adjustment factor for such year were the
average risk adjustment factor for the Operator reflected on the
Monthly Membership Report from CMS reflecting the final determination
of the risk adjustment factor for the Operator for the last month of
such year, less (y) Total Premiums recalculated utilizing a risk
adjustment adjusted as if the risk adjustment factor for 2005 were the
average risk adjustment factor for the Operator reflected on the
Monthly Membership Report from CM for the month ended immediately
prior to the start of such year.
(b) In the event that this Agreement is terminated prior to the
expiration of the Initial Term or any subsequent term, the Advisory Fee shall be
equitability prorated.
(c) Within thirty (30) days after the calculation of the actual Risk
Adjustment Revenue for the prior calendar year, Operator shall remit to Advisor,
or Advisor shall remit to Operator, as the case may be, without interest, any
deficit or excess, as the case may be, in the Advisory Management Fee paid for
the prior calendar year over the sum of all monthly installments of estimated
fees for such period previously paid by Operator to Advisor.
7.2 Expense Reimbursement. The Operator shall reimburse the Advisor for the
reasonable out-of-pocket expenses (the "Expenses") incurred by the Advisor in
the course of the performance of its duties under this Agreement, including
travel, entertainment, professional fees and brokerage commissions (but
excluding the administrative and overhead expenses of the Advisor, including all
costs and expenses on account of rent, salaries paid to its employees and those
of entities related to Advisor, wages and employee benefits, and accounting and
administrative costs). The Company shall pay the Advisor for such expenses at
the end of each month promptly upon the delivery by the Advisor of a
corresponding invoice and appropriate documentation.
SECTION 8. TAXES. Any federal, state or local taxes, assessments or other
governmental charges imposed on the MA Business and arising from Operator's
period of ownership are the obligations of Operator, not of Advisor. Advisor
shall pay or cause to be paid from the MA Business Operating Account all such
taxes, assessments or other governmental charges. Advisor
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may (and at Operator's discretion, Advisor shall at the Operator's expense)
contest the validity or amount of any such tax or imposition on the MA Business.
SECTION 9. LICENSES, PERMITS, CERTIFICATIONS AND LEGAL PROCEEDINGS.
9.1 Licenses, Permits and Approvals. Advisor, shall assist Operator in its
application for, in the name of Operator, and to obtain and maintain, on behalf
of Operator, all necessary licenses, certifications, accreditations, permits and
approvals, and renewals thereof, to operate the MA Business to comply with all
applicable laws, rules and regulations and to be eligible for participation in
the Commonwealth's Reforma/Medicaid Program, the federal Medicare Program and
third-party payor programs. Such assistance shall include preparation and filing
of applications, financial projections and other materials reasonably related to
the regulatory approvals; preparation for on-site inspections; preparation of
plans of correction or consent orders; and review and recommendation of
agreements. Any and all materials prepared by Advisor shall be subject to
Operator's approval.
9.2 Government Actions.. Neither Operator nor Advisor shall knowingly take
any action or fail to take any action which such party knows will cause any
governmental authority having jurisdiction over the operation of the MA Business
to institute any proceeding for the suspension, termination, rescission or
revocation of any necessary license, permit, accreditation, certification or
approval. Advisor shall not knowingly take any action or fail to take action
which Advisor knows will adversely affect Operator's right to accept and obtain
payments under Medicare, Medicaid or any other public or private third party
medical payment programs.
9.3 Compliance. Operator shall comply with all federal, state and local
laws, rules and regulations and requirements which are applicable to Operator
provided that Operator, at its sole expense and without expense to Advisor,
shall have the right to contest by proper legal proceedings the validity, so far
as applicable to it, of any such law, rule, regulation or requirement, provided
that such contest shall not result in a suspension of operations of the MA
Business, and provided, further, Operator shall not be deemed to be in breach of
this covenant if Operator's failure to comply with any such law, rule,
regulation or requirement is the result of the gross negligence or willful
misconduct of Advisor.
SECTION 10. TRANSACTIONS WITH SPECIALISTSIn addition to the other advisory
services provided for in this Agreement, Advisor shall make available to the MA
Business for consultation and advice, when necessary, specialists in accounting,
budgeting, management, pharmacy services, personnel, purchasing, quality
assurance, policies and procedures, and third-party reimbursement.
SECTION 11. REPRESENTATIONS AND WARRANTIESOperator and Advisor make the
following representations and warranties to the other party:
11.1 Status. The representing party is duly organized and validly existing
in good standing under the laws of the jurisdiction of formation, and has all
necessary power to carry on
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its business as now being conducted, to operate its properties as now being
operated, to carry on its contemplated business, to enter into this Agreement
and to observe and perform its terms.
11.2 Authority and Due Execution. The representing party has full power and
authority to execute and to deliver this Agreement and all related documents and
to carry out the transactions contemplated by this Agreement. The execution of
this Agreement by such party will not, with the passing of time, the giving of
notice, or both, result in a default under or a breach or violation of such
party's: (i) organizational documents; or (ii) any law, regulation, court order,
injunction or decree of any court, administrative agency or governmental body;
or (iii) any mortgage, note, bond, indenture, agreement, lease, license, permit
or other instrument or obligation to which such party is now a party or by which
such party or any of its assets may be bound or affected. This Agreement
constitutes a valid and binding obligation of the representing party,
enforceable against such party in accordance with its terms, except to the
extent that its enforceability is limited by applicable bankruptcy,
reorganization, insolvency, receivership or other laws of general application or
equitable principles relating to or affecting the enforcement of creditors'
rights.
11.3 Litigation. There is no litigation, claim, investigation, challenge or
other proceeding pending or, to the knowledge of the representing party,
threatened against such party, its properties or business which seeks to enjoin
or prohibit it from entering into this Agreement.
11.4 Program Representations. With respect to any federal health care
program as defined in section 1128B of the Social Security Act (42 U.S.C.
1320a-7b(f)) or any State or Commonwealth health care program as defined in
section 1128B of the Social Security Act (42 U.S.C. 1320a-7b(h)) (collectively,
the "Programs"), neither party, nor any individual with a direct or indirect
ownership or control interest of five percent (5%) or more of such party, nor
any director, officer, agent or employee of such party has ever (i) been
debarred, suspended or excluded from any Program; (ii) been sanctioned under any
Program; or (iii) had a civil monetary penalty levied under any Program. Each
party covenants to immediately notify the other in writing if this
representation is no longer true.
SECTION 12. TERMINATION.
12.1 Operator's Right To Terminate. The occurrence of one or more of the
following events (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall be a default. In that case, Operator
shall deliver to Advisor a notice of default in the manner described in Section
13 demanding that the Advisor remedy the default. If such default shall not have
been remedied, or steps initiated to remedy the same to the Operator's
reasonable satisfaction, within thirty (30) days after Advisor's receipt of the
notice of default, the Operator may terminate this Agreement, by delivering in,
the manner described in Section 12.5, written notice of termination with an
effective date not less than fourteen (14) days thereafter. Matters constituting
a default are:
(a) failure on the part of the Advisor duly to observe or perform any
of the covenants or agreements made by Advisor under this Agreement;
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(b) entry of a decree or order for relief in respect of the Advisor in
a court having jurisdiction in an involuntary case under applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Advisor or for any substantial part of the property of the
Advisor or ordering the winding up or liquidation of the affairs of the Advisor,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days;
(c) commencement by the Advisor of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Advisor or for any substantial part of the property of the
Advisor, or the Advisor shall make any general assignment for the benefit of
creditors;
(d) If the Advisor is excluded by the United States Department of
Health and Human Services from participating in the Medicare and Medicaid
Programs, or is prevented by any administrative or judicial determination from
performing its duties hereunder;
(e) If for any reason performance of the obligations under this
Agreement is made impossible by operation of or requirement of law;
(f) If Advisor is convicted of any felony; or
(g) willful misconduct, fraud or gross negligence in connection with
its management responsibilities hereunder.
In addition, although not an Event of Default, if Operator leases or sells
the MA Business to another operator, Operator may terminate this Agreement with
thirty (30) days prior written notice to Advisor.
12.2 Advisor's Right To Terminate.
Advisor may by giving thirty (30) days prior written notice to Operator,
terminate this Agreement upon the following occurrences:
(a) If Operator defaults in the prompt and full performance of any
other of the covenants, obligations or agreements hereunder, and fails to
correct such failure within thirty (30) days of receipt of written notice from
the Advisor of such default (unless such default cannot reasonably be cured
within thirty (30) days, in which event such period shall be extended for an
additional thirty (30) days, provided the Operator shall have commenced in good
faith to cure such default within the first such thirty (30) day period and
shall proceed with all due diligence to correct such default thereafter).
(b) If Operator fails to pay Advisor any fee due under this Agreement
within thirty (30) days when due;
(c) If the Operator is excluded by the United States Department of
Health and Human Services from participating in the Medicare and Medicaid
Programs; failure on the part
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of the Advisor duly to observe or perform any of the covenants or agreements
made by Advisor under this Agreement;
(d) entry of a decree or order for relief in respect of the Operator
in a court having jurisdiction in an involuntary case under applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Operator or for any substantial part of the
property of the Operator or ordering the winding up or liquidation of the
affairs of the Operator, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days;
(e) commencement by the Operator of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Operator or for any substantial part of the property of the
Operator, or the Operator shall make any general assignment for the benefit of
creditors;
(f) If for any reason performance of the obligations under this
Agreement is made impossible by operation of or requirement of law;
(g) If Operator is convicted of any felony; or
(h) willful misconduct, fraud or gross negligence in connection with
its management responsibilities hereunder.
12.3 Transitional Obligations. In the event of the termination of this
Agreement, Advisor shall cooperate with Operator in transferring its services to
a new Advisor identified by Operator or to Operator. Advisor agrees to work
cooperatively with the new Advisor or Operator until all responsibilities are
effectively transferred. Upon termination and to the extent not in the
possession of the MA Business, Advisor shall provide to the MA Business copies
or originals of all books and records relating to the operation of the MA
Business. Such documents, records and information shall be timely provided upon
receipt of a written request and shall be provided in a form that is reasonably
useable and acceptable. In the event that any such books and records are in
computer useable form, Advisor shall provide Operator and the new Advisor with
reasonable access to such information including, without limitation, a copy of
the electronic records of the MA Business in the Advisor's possession.
12.4 Effect of Termination. Upon any termination of this Agreement for any
reason whatsoever (i) all amounts payable to Advisor from Operator under this
Agreement or otherwise shall be immediately due and payable, including, without
limitation, all accrued but unpaid fees and expenses which accrued prior to such
termination but have not yet been paid to Advisor.
12.5 Notices. Any notice, communication or demand requiring or permitted to
be given under this Agreement shall be in writing (including facsimile
communications) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by facsimile transmission or by
personal delivery. All notices shall be sent to the applicable party at the
following addresses addressed as follows:
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To Operator, by addressing the same to:
MMM Healthcare, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
To Advisor by addressing the same to:
MMM Holdings, Inc.
c/o Aveta Health
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Any such properly given notice shall be effective on the earliest to occur of
receipt, telephone confirmation of receipt of facsimile communication, one
business day after delivery to a nationally recognized overnight courier, or
five business days after deposit in the mail, return receipt requested.
SECTION 13. COSTS AND EXPENSES; INDEMNITY AND INSURANCE.
13.1 Costs and Fees. Except as otherwise expressly provided in this
Agreement, all fees, costs, expenses and purchases arising out of, relating to
or incurred in the operation of the MA Business, including, without limitation,
the fees, costs and expenses of consultants and professionals, shall be the sole
responsibility of Operator. Except as otherwise expressly provided in this
Agreement, Advisor, by reason of the execution of this Agreement or the
performance of its services under this Agreement, shall not be liable for or
deemed to have assumed any liability for such fees, costs and expenses, or any
other liability or debt of Operator whatsoever, arising out of or relating to
the MA Business or incurred at any of its administrative offices in the
performance of its obligations hereunder. Advisor shall have no obligations to
advance any sums required to maintain necessary licenses and permits and to
otherwise keep the MA Business operating as a pharmacy business, without
assurances that the necessary funds for the discharge of any such liability of
any such obligation will be punctually paid by Operator.
13.2 Indemnification by Operator. Operator shall indemnify and hold Advisor
harmless from and against any and all claims, losses, costs, damages, and
liabilities, including reasonable attorneys' fees, incurred, caused or
occasioned by, in connection with or arising out of gross negligence or willful
misconduct of Operator, except if such claim, loss, cost, damage or liability
results from the gross negligence or willful misconduct of Advisor.
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13.3 Indemnification by Advisor. Advisor shall indemnify and hold Operator
harmless from and against any and all claims, losses, costs, damages, and
liabilities, including reasonable attorneys' fees, incurred, caused or
occasioned by, in connection with or arising out of the gross negligence or
willful misconduct of Advisor, its agents, employees or contractors, including,
without limitation, Advisor's violation or failure to perform, or
misrepresentation with respect to, any of the terms, covenants or conditions of
this Agreement, except if such claim, loss, cost, damage or liability results
from the gross negligence or willful misconduct of Operator.
SECTION 14. MISCELLANEOUS.
14.1 Government Regulations In accordance with its obligations under this
Agreement, Operator and Advisor shall operate and maintain the MA Business in
compliance with the requirements of any statute, ordinance, law, rule,
regulation or order of any governmental or regulatory body having jurisdiction
over the MA Business. Notwithstanding anything to the contrary contained in this
Agreement, in the event that any Medicare and/or Medicaid law, rule, regulation
or payment policy, or any other applicable law or regulation, or any
interpretation thereof, at any time, is modified, implemented, threatened to be
implemented, or determined to prohibit, restrict or in any way materially change
the terms of this Agreement, or by virtue of the existence of this Agreement has
or will have a material adverse affect on either party, then Operator and
Advisor agree to negotiate in good faith to amend this Agreement in a manner
consistent with such change and the intent of the parties. If for any reason any
term or condition of this Agreement is found to be invalid or contrary to
government laws, rules, regulations or orders, Operator and Advisor agree to
immediately and in good faith modify such term or condition to comply with such
government law, rule, regulation or order.
14.2 Limitations Each party's liability hereunder shall be limited to
actual damages suffered as a direct and proximate result of the other party's
breach under any provision of this Agreement. Advisor makes no warranties,
express or implied, and shall not assume any financial or other responsibilities
in connection with its obligations under this Agreement, except as specifically
provided in this Agreement.
14.3 Assignment. Neither Advisor nor Operator shall assign its rights or
obligations under this Agreement without prior written consent of the other,
except that Operator may at any time assign its rights and obligations under
this Agreement to any party acquiring substantially all of its assets, stock or
membership interest.
14.4 Retention of Control by Operator. Operator shall at all times continue
to exercise control over the assets and operations of the MA Business and
Advisor shall perform its responsibilities as described in this Agreement. By
entering into this Agreement, Operator does not delegate to Advisor any of the
powers, duties and responsibilities vested in the Operator by law, or by its
governance documents.
14.5 Force Majeure. Neither Advisor nor Operator shall be deemed to be in
violation of this Agreement if it is prevented from performing any of its
obligations under this Agreement for any reason beyond its control including,
without limitation, strikes, lockouts, acts of God, unavailability of patients,
personnel or supplies, unforeseen changes in statutes, regulations or rules of
appropriate governmental or other regulatory authorities.
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14.6 Binding Agreement. The terms, covenants, conditions, provisions and
agreements contained in this Agreement shall be binding upon and inure to the
benefit of Operator and Advisor, their successors and assigns.
14.7 Relationship of Parties. Nothing contained in this Agreement shall
constitute or be construed to be or to create a partnership, joint venture or
lease between Operator and Advisor with respect to the MA Business. Advisor at
all times shall act as an independent contractor to the Operator and shall not
hold itself out to third parties as a partner, joint venturer, or employee of
the Operator.
14.8 Entire Agreement; Amendments. This Agreement (including the Exhibits
attached to and a part of this Agreement) contains the entire agreement between
the parties hereto with respect to the subject matter, and no prior oral or
written, and no contemporaneous oral, representations or agreements between the
parties with respect to the subject matter of this Agreement shall be of any
force and effect. Any additions, amendments or modifications to this Agreement
shall be of no force and effect unless in writing and signed by both Operator
and Advisor.
14.9 Captions and Headings. The captions and headings throughout this
Agreement are for convenience of reference only, and the words contained therein
shall in no way be held or deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction or meaning of any provision
of or the scope or intent of this Agreement nor in any way affect this
Agreement.
14.10 Governing Law. This Agreement is made under, and shall be construed
and enforced in accordance with, the laws of the Commonwealth of Puerto Rico
applicable to agreements made and to be performed solely therein, without giving
effect to principles of conflicts of law.
14.11 Arbitration of Disputed Matters. Any dispute, controversy, or claim
arising out of or relating to this Agreement (a "Controversy"), shall be settled
by an arbitration panel (the "Arbitration Panel") in accordance with the
American Arbitration Association ("AAA") Rules of Procedure for Arbitration,
such arbitration to be held in San ▇▇▇▇, Puerto Rico.
(a) The Arbitration Panel shall consist of one arbitrator selected by
agreement of Advisor and Operator. If they are unable to agree on such
selection, the Arbitration Panel shall consist of one arbitrator selected by
each of the parties hereto and the arbitrators thus selected shall select one
additional neutral arbitrator. No such arbitrator shall be a current or former
officer, director, member, shareholder or employee, or be serving in any current
capacity or within the two years prior to selection as an agent of, any party
hereto or any of its affiliates. If the matter involves accounting matters the
arbitrators shall be representatives of a firm or firms specializing in
accounting in the area of Health Plan operations.
(b) It is agreed that if any party shall desire relief of any nature
whatsoever from any other party as a result of any Controversy, such party will
initiate such arbitration proceedings within a reasonable time. The parties
shall bear equally all costs of said arbitration (other than their own
attorney's fees and costs). The prevailing party in such arbitration shall be
15
entitled to reimbursement for its reasonable costs and expenses (including
reasonable attorney's fees) as part of any award. The arbitration panel shall
not have the authority to award punitive or exemplary damages. The parties agree
that the decision and award of the Arbitration Panel shall be final and
conclusive upon the parties, in lieu of all other legal, equitable or judicial
proceedings between them, and that no appeal or judicial review of the award or
decision of the Arbitration Panel shall be taken, but that such award or
decision may be entered as a judgment and enforced in any court having
jurisdiction over the party against whom enforcement is sought.
14.12 Maintenance of Books, Records and Documents. Pursuant to section
1395x(v)(1)(l) of Title 42 of the United States Code and applicable rules and
regulations thereunder, until the expiration of four years after the termination
of this Agreement, Advisor shall make available, upon appropriate written
request by the Secretary of the United States Department of Health and Human
Services, the Comptroller General of the United States General Accounting
Office, or the applicable state agencies or departments, or any of their duly
authorized representatives, a copy of this Agreement and such books, documents
and records as are necessary to certify the nature and extent of the costs of
the services provided by Advisor under this Agreement. Advisor shall immediately
notify Operator if such access is requested. Advisor further agrees that in the
event it carries out any of its duties under this Agreement through a
subcontract with a value or cost of Ten Thousand Dollars ($10,000) or more over
a 12 month period, such subcontract shall contain a clause identical to that
contained in the first sentence of this Section.
(a) Until the expiration of ten (10) years after the furnishing of
services pursuant to this Agreement, Advisor shall, as provided in section
1395x(v)(1)(l) of Title 42 of the United States Code and regulations promulgated
thereunder make available, upon written request, to the Secretary of the United
States Department of Health and Human Services, or upon request, to the
Comptroller General of the United States, or any of their duly authorized
representatives, this Agreement, and all books, documents and records of Advisor
that are necessary to verify the nature and extent of the costs of any services
furnished pursuant to this Agreement for which payment may be made under the
Federal Medicare Program.
(b) If Advisor carries out any of the duties of this Agreement through
a subcontract or subcontracts with an aggregate value or cost of Ten Thousand
Dollars ($10,000) or more over a 12 month period with a related organization,
such subcontract or subcontracts shall contain a clause to the effect that until
the expiration of four years after the furnishing of such services pursuant to
such subcontract or subcontracts, the related organization shall, as provided in
section 1395x(v)(1)(l) of Title 42 of the United States Code, make available,
upon written request, to the above referenced Federal officials, or any of their
duly authorized representatives, the subcontract or subcontracts, and all books,
documents and records of such organization that are necessary to verify the
nature and extent of the costs of any services furnished pursuant to such
subcontract or subcontracts for which payment may be made under the Medicare
program.
14.13 Further Assurances. At any time and from time to time during the term
of this Agreement, at either party's request, each party shall promptly execute
and deliver all such further agreements, certificates, instruments and
documents, including a certificate of Operator in a form reasonably satisfactory
to Advisor stating that this Agreement is in effect with respect to,
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and is binding against, Operator, and each party shall perform such further
actions, as the other party may reasonably request in order to fully consummate
the transactions contemplated by this Agreement and carry out the purposes and
intent of this Agreement. In all matters referred to in this Agreement where a
party's consent or approval is required, such party agrees that it will not
unreasonably withhold or delay its consent or approval and where a party is
required to exercise any discretion or to make any determinations or judgments,
such determinations or judgments shall be reasonable.
14.14 Certain Definitions.
(a) Affiliate. The term "Affiliate," as used in this Agreement, means
a person that, directly or indirectly, controls or is controlled by, or is under
common control with, the person specified.
(b) Person. The term "person," as used in this Agreement means any
individual, sole proprietorship, joint venture, corporation, partnership,
governmental body, regulatory agency or other entity of any nature.
14.15 Severability. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
14.16 Waivers. No party's waiver of any term, provision, or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or construed as a further and continuing waiver by such
party of any such term, provision or condition of this Agreement.
14.17 No Third-Party Rights. This Agreement shall not confer any rights or
benefits to or upon any person or entity not a party to this Agreement.
14.18 Surviving Obligations. Upon termination or expiration of Operator's
appointment of Advisor under this Agreement, Advisor's obligation to provide
services and Operator's obligations to pay for such services provided shall
cease after such termination or expiration date. Other terms and provisions of
this Agreement shall survive any such termination or expiration to the extent
necessary for the implementation thereof.
14.19 No Personal Liability. Neither this Agreement nor any term or
provision hereof shall create any personal liability whatsoever on the part of
any officer, director, Advisor, shareholder, partner, member, trustee, or
employee of any party hereto.
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14.20 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute an
original hereof, and it shall not be necessary in making proof of this Agreement
to produce or account for more than one original counterpart hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on their behalf their duly authorized representatives, as of the day and year
first above written.
MMM HOLDINGS, INC. MMM HEALTHCARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- ------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President Vice President
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EXHIBIT A
PRIVACY AGREEMENT
1. Terms and Terminology.
1.1 Terms. Terms used, but not defined in this Privacy Agreement shall have
the same meaning as those terms in 45 C.F.R. Part 160 and Part 164, Subparts A
and E.
1.2 Privacy Rule. "Privacy Rule" shall mean the Standards for Privacy of
Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164,
Subparts A and E.
2. Obligations and Activities of Advisor
2.1 Advisor agrees not to use or further disclose Protected Health
Information other than as permitted or required by this Privacy Agreement or as
required by law.
2.2 Advisor agrees to use appropriate safeguards to prevent use or
disclosure of Protected Health Information other than as provided for by this
Privacy Agreement or the Privacy Rule.
2.3 Advisor agrees to mitigate, to the extent practicable, any harmful
effect that is known to Advisor of a use or disclosure of Protected Health
Information in violation of the Privacy Rule.
2.4 Advisor agrees to report to Operator any use or disclosure of Protected
Health Information made in violation of the Privacy Rule.
2.5 Operator shall prepare a Notice of Information Practices for the MA
Business in accordance with 45 C.F.R. Section 164.520 and provide a copy to
Advisor.
2.6 Advisor shall ensure that any agent, including a subcontractor, to whom
it provides Protected Health Information received from, or created or received
by Advisor in each case on behalf of Operator, agrees to the same restrictions
and conditions that apply through this Privacy Agreement to Advisor with respect
to such information.
2.7 Advisor agrees to provide access, at the request of Operator, and in
the time and manner designated by Operator, to Protected Health Information in a
Designated Record Set, to Operator or, as directed by Operator, to an Individual
in order to meet the requirements of 45 C.F.R. Section 164.524.
2.8 Advisor agrees to make any amendment(s) to Protected Health Information
in a Designated Record Set that Operator directs or agrees to pursuant to 45
C.F.R. Section 164.526 at the request of Operator or an Individual, and in the
time and manner designated by Operator.
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2.9 Advisor agrees to make internal practices, books, and records relating
to the use and disclosure of Protected Health Information received from, or
created or received by Advisor on behalf of, Operator available to the Operator,
or at the request of, Operator to the Secretary of HHS (the "Secretary"), in a
time and manner designated by the Operator or the Secretary, for the purposes of
the Secretary determining the Operator's compliance with the Privacy Rule.
2.10 Advisor agrees to document such disclosures of Protected Health
Information and information related to such disclosures as would be required for
Operator to respond to a request by an Individual for an accounting of
disclosures of Protected Health Information in accordance with 45 CFR Section
164.528.
2.11 Advisor agrees to provide to Operator or an Individual, in the time
and manner designated by Operator, information collected in accordance with
Section 2.12 of this Privacy Agreement, to permit Operator to respond to a
request by an Individual for an accounting of disclosures of Protected Health
Information in accordance with 45 CFR Section 164.528.
3. Permitted Uses and Disclosures by Advisor.
Except as otherwise limited in this Privacy Agreement, Advisor may use or
disclose Protected Health Information to perform functions, activities, or
services for itself and/or on behalf of Operator as specified in the Advisory
Services Agreement into which this Privacy Agreement has been incorporated by
reference (the "Service Agreement"), provided that such use or disclosure would
not violate the Privacy Rule if done by Operator.
4. Obligations of Operator.
4.1 Operator shall notify Advisor of any restriction to the use or
disclosure of Protected Health Information to which Operator has agreed in
accordance with 45 C.F.R. Section 164.522.
4.2 Operator shall not request Advisor to use or disclose Protected Health
Information in any manner that would not be permissible under the Privacy Rule
if done by Operator.
5. Term and Termination.
5.1 Term. The Term of this Privacy Agreement shall be effective as of the
Commencement Date of the Service Agreement and shall terminate when all of the
Protected Health Information provided by Operator to Advisor, or created or
received by Advisor on behalf of Operator, is destroyed or returned to Operator,
or, if it is not feasible to return or destroy Protected Health Information,
protections are extended to such information, in accordance with the termination
provisions of this Section 5.
5.2 Effect of Termination.
(a) Except as provided in paragraph (b) of this Section 5.3, upon
termination of the Service Agreement for any reason, Advisor shall return or
destroy all Protected Health Information received from Operator, or created or
received by Advisor on behalf of Operator. This Section 5.2(a) shall apply to
Protected Health Information that is in the possession of
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subcontractors or agents of Advisor. Advisor shall retain no copies of Protected
Health Information.
(b) In the event that Advisor determines that returning or destroying such
Protected Health Information referred to in Section 5.2(a) is not feasible,
Advisor shall provide to Operator notification of the conditions that make
return or destruction not feasible. Upon mutual agreement of the parties that
return or destruction of the Protected Health Information is not feasible,
Advisor shall extend the protections of this Privacy Agreement to such Protected
Health Information and limit further uses and disclosures of such Protected
Health Information to those purposes that make the return or destruction
infeasible, for so long as Advisor maintains such Protected Health Information.
6. Miscellaneous.
6.1 Regulatory References. A reference in this Privacy Agreement to a
section in the Privacy Rule means the section as in effect or as amended, and
for which compliance is required.
6.2 Amendment. Advisor and Operator agree to take such action to amend this
Privacy Agreement as is necessary for Operator to comply with the requirements
of the Privacy Rule and the Health Insurance Portability and Accountability Act
of 1996.
6.3 Survival. The respective rights and obligations of Advisor under
Section 5 of this Privacy Agreement shall survive the termination of this
Privacy Agreement and the Service Agreement.
6.4 Interpretation. Any ambiguity in this Privacy Agreement shall be
resolved in favor of a meaning that permits Operator to comply with the Privacy
Rule.
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