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EXHIBIT 10.28
AMENDMENT NUMBER ONE TO AMENDED AND RESTATED
GENERAL PARTNERSHIP AGREEMENT OF CHILDRENS HEMOPHILIA
SERVICES AND RESTRICTIVE AGREEMENT
This Agreement is made by and between HEMOPHILIA HEALTH SERVICES, INC.,
formerly known as HORIZON HEALTH SYSTEMS, INC. ("HHS"), CHILDRENS HOME CARE,
INC. ("CHC"), and CHILDRENS HEMOPHILIA SERVICES, a California general
partnership ("Partnership"), this 5th day of January, 2000.
W I T N E S S E T H
WHEREAS, HHS and CHC have formed the partnership known as Childrens
Hemophilia Services, said partnership being evidenced by that written Amended
and Restated General Partnership Agreement of Childrens Hemophilia Services
dated November 10, 1998 ("Partnership Agreement"), and
WHEREAS, CHC, HHS and Partnership have entered into a Restrictive
Agreement dated November 10, 1998 ("Restrictive Agreement"), and
WHEREAS, HHS and CHC now desire to make certain changes and amendments
to the Partnership Agreement and Restrictive Agreement as set out herein.
NOW THEREFORE, for and in exchange of the mutual promises contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1. Section 13.2 of the Partnership Agreement is amended by deleting
same in its entirety and substituting in the place thereof the following Section
13.2:
(a) Each Partner and its Affiliates agree that, during the
term of this Agreement, it shall not compete with the
Partnership by providing any therapies, services, supplies or
goods which are being provided by the Partnership and
encompassed within the definition of the "Business" of the
Partnership as contained in this Agreement to any pediatric
patient whose Caregiver is Childrens Hospital of Los Angeles
or Childrens Hospital of Los Angeles Medical Group
("Restricted Patient"). From time to time, either Partner may,
but shall have no obligation to, refer nonrestricted Patients
to the Partnership. Notwithstanding the forgoing, the resale
by CHC of drugs acquired in wholesale transactions with the
Partnership or HHS, shall not constitute a breach of this
agreement not to compete.
(b) For purposes of this Section 13.2, "Caregiver" shall mean
the provider of healthcare at which, or from whom, the patient
is, at the time of any determination made pursuant to the
provisions of this Section 13.2, receiving care, as either an
out-patient or in-patient, for the condition or illness which
necessitates the use of goods or services offered by the
Partnership.
(c) No Partner shall be in violation of this Section 13.2 if
it has made reasonable inquiry of the patient and the patient
has denied having a Caregiver which would cause the patient to
be covered by these restrictions. However, if the correct
information is subsequently discovered such that the patient
should not have been provided therapies, services, supplies or
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goods by the Partner, then the Partner shall so advise the
patient and shall use all reasonable efforts to encourage the
patient to have such therapies, services, supplies or goods,
as the case may be, provided by the Partnership, consistent
with the right of the patient to select his/her own healthcare
provider.
(d) HHS shall provide CHC a Monthly Referral Report
identifying all new patients started by HHS within a 100 mile
radius of Childrens Hospital Los Angeles by the 20th of the
following month. The Monthly Referral Report will include
physician, therapy, institution and a patient identifier. If a
patient is identified by the referring physician as a
Partnership patient, the Partner will make its best efforts to
transition the patient to the Partnership. All future
referrals from this referring physician will be directed to
the Partnership
(e) HHS shall prepare a Monthly Discharge Report indicating
all patients who have terminated service with the Partnership
by the 20th of the following month. The Monthly Discharge
Report shall include patient name, date of discharge, reason
for discharge and new vendor.
2. Section 3 of the Restrictive Agreement be and hereby is amended by
deleting the last sentence thereof and substituting in the place thereof the
following:
Therefore, in consideration of the benefits conveyed
hereunder, and the purchase by HHS of the interest in
Partnership, for the Restricted Period and in the Restricted
Area, Restricted Party shall not, directly or indirectly,
jointly or individually, on its own behalf or as an agent,
employee, owner, partner, joint venturer, shareholder,
independent contractor, investor, consultant, employer or
advisor, engage in, assist other in engaging in, or establish
or own any interest in, any business, trade or occupations
engaging in the sale, marketing, distribution, promotion,
provision and distribution of clotting factor and such other
pharmaceuticals manufactured by third parties that were sold
by Partnership during the time that CHC was a partner in the
Partnership, whether or not such drugs are provided in the
hospital, home or other medical facilities.
3. This Amendment is effective January 1, 2000. Except as otherwise
amended, the Restrictive Agreement and the Partnership Agreement shall remain in
full force and effect.
HEMOPHILIA HEALTH SERVICES, INC.
By: /s/ Thomas W. Bell, Jr.
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Title: Senior Vice President
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CHILDRENS HOME CARE, INC.
By: /s/ Thomas J. McNulty
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Title: President
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CHILDRENS HEMOPHILIA SERVICES, a
general partnership
By: Childrens Home Care, Inc., a
general partner
By: /s/ Thomas J. McNulty
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Title: President
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