exv10w39







 




    Exhibit 10.39



 


			
	[*          *]	 	    Portions of the this exhibit have been omitted pursuant to a
    request for confidential treatment pursuant to
Rule 24b-2
    under the Securities Exchange Act of 1934, as amended.




 




    PRODUCTS
    PURCHASE AGREEMENT



 



    THIS PRODUCTS PURCHASE AGREEMENT (this
    “Agreement”), is entered into and effective as
    of the 16th day of February, 2011 (the “Effective
    Date”), by and between Rockwell Medical Technologies,
    Inc., a Michigan corporation (“Rockwell”), and
    DaVita Inc., a Delaware corporation (“DaVita”)
    on behalf of itself and the DaVita Facilities (as defined in
    Recital B). Capitalized terms used herein and not otherwise
    defined herein shall have the meaning set forth in
    Article XVIII.



 




    RECITALS



 



    A. Rockwell is in the business of manufacturing and selling
    dialysis products and supplies, including the dialysis products
    and supplies set forth on Exhibit A attached hereto
    and incorporated herein by this reference (each a,
    “Product”, and collectively, the
    “Products”).



 



    B. DaVita owns (in whole or in part)
    and/or
    manages dialysis and vascular access facilities, clinics or
    units located throughout the United States and its territories
    (each a, “DaVita Facility”, and collectively,
    the “DaVita Facilities”).



 



    C. DaVita, on behalf of itself and the DaVita Facilities,
    desires to purchase and acquire from Rockwell, and Rockwell
    desires to supply and sell to DaVita and the DaVita Facilities,
    the Products, subject to all of the terms and conditions set
    forth in this Agreement.



 



    In consideration of the foregoing premises and mutual covenants,
    agreements, representations and warranties contained herein, and
    for other good and valuable consideration, the receipt and
    sufficiency of which are hereby acknowledged, the parties
    hereto, intending to be legally bound, agree as follows:



 





ARTICLE I

    



 




    PURCHASE
    AND SALE OF PRODUCTS AND REPORTS



 



    1.1 Sale and Purchase.  During the
    Term (as defined in Section 2.2), and subject to the
    terms and conditions of this Agreement, Rockwell will sell,
    supply, convey, transfer, assign and deliver the Products to
    DaVita and the DaVita Facilities in such quantities as DaVita
    and/or the
    DaVita Facilities may order from time to time.



 



    1.2 Product Commitment.  DaVita
    covenants and agrees
    [*















 







*]



 



    1.3 Monthly Reports.  Each month
    during the Term, Rockwell shall deliver a report to DaVita in
    accordance with DaVita’s specifications, which
    specifications will be given to Rockwell by DaVita. Each monthly
    report, at a minimum, shall (a) show all purchases of the
    Products made by each DaVita Facility by Product or Product
    categories, (b) include
    year-to-date
    purchase figures for each DaVita Facility, and (c) include
    any other information reasonably requested by DaVita relating to
    each DaVita Facility’s purchases of the Products pursuant
    to this Agreement.



 



    1.4 Notice of Changes to Product
    Labeling.  If, at any time during the Term,
    Rockwell or any applicable Governmental Authority determines
    that there must be an amendment, change, revision
    and/or
    modification to the product labeling, safety information,
    and/or any
    other information relating to any particular Product (a
    “Product Labeling Event”), Rockwell shall
    within
    [*          *]
    of any such Product Labeling Event, deliver a written notice to
    DaVita which: (a) describes in reasonable detail any such
    Product Labeling Event, (b) explains in reasonable detail
    the reasons and the causes for any such Product Labeling Event,
    and (c) includes a copy of such amendment, change, revision
    and/or
    modification to the product labeling, safety information,
    and/or any
    other information relating to any such particular Product (the
    “Product Label Change Notice”). Rockwell shall
    respond to any questions, inquiries or requests for additional
    information that DaVita or any DaVita Facility may have with
    respect




    to any Product Label Change Notice and shall assist DaVita and
    the DaVita Facilities in understanding how, if at all, any
    Product Labeling Event may
    [*          *].



 





ARTICLE II

    



 




    TERM AND
    TERMINATION



 



    2.1 Term.  This Agreement shall
    commence on the Effective Date, and shall continue in effect
    until December 31, 2013 (the “Initial
    Term”), unless sooner terminated in accordance with the
    provisions of this Article II.



 



    2.2 Renewal.  If, upon the
    expiration of the Initial Term, the parties hereto have not
    negotiated, executed and delivered (a) a new agreement
    relating to the subject matter hereof or (b) an extension
    of this Agreement, this Agreement shall continue until the
    earlier of either party hereto providing ninety (90) days
    prior written notice of termination to the other party hereto or
    the parties entering into a new agreement relating to the
    subject matter hereof or an extension of this Agreement (the
    Initial Term, together with any such extension shall be referred
    to as the “Term”).



 



    2.3 DaVita Termination
    Rights.  This Agreement may be terminated by
    DaVita as follows:



 



    (a) [*          *]
    in the event of a breach by Rockwell of any of its covenants and
    obligations set forth in Articles VI or
    IX; or



 



    (b) Upon
    [*          *]
    prior written notice to Rockwell, in the event of a breach by
    Rockwell of any representation, warranty, covenant or obligation
    of Rockwell contained in this Agreement (other than the
    covenants and obligations set forth in Articles VI
    or IX), and Rockwell fails to cure such breach within
    [*          *]
    following the date of such notice; or



 



    (c) [*          *]
    upon the occurrence of any of the following: (i) Rockwell
    files a voluntary petition in bankruptcy seeking protection from
    creditors (a “Bankruptcy Filing”); or
    (ii) Rockwell fails to contest an involuntary Bankruptcy
    Filing made against it or, despite contesting such





    2









 






Bankruptcy
    Filing, fails to obtain its dismissal within sixty
    (60) days from its filing; or (iii) a trustee or
    custodian is appointed for a substantial portion of or all of
    the assets of Rockwell; or (iv) Rockwell fails to pay its
    debts as they become due or admits its inability to do so (each
    of the foregoing, an “Insolvency
    Event”); or



 



    (d) [*          *]
    in the event there is a change in Rockwell’s status which
    excludes it from participation in any federal health care
    program, as defined under 42 U.S.C.
    § 1320a-7b(f).



 



    2.4 Rockwell Termination
    Rights.  This Agreement may be terminated by
    Rockwell as follows:



 



    (a) [*          *]
    in the event of a breach by DaVita of any of its covenants and
    obligations set forth in Article IX; or



 



    (b) Upon
    [*          *]
    prior written notice to DaVita, in the event of a breach by
    DaVita of any representation, warranty, covenant or obligation
    of DaVita contained in this Agreement (other than the covenants
    and obligations set forth in Article IX or
    Section 17.1), and DaVita fails to cure such breach
    within
    [*          *]
    following the date of such notice; or



 



    (c) [*          *]
    upon the occurrence of an Insolvency Event with respect to
    DaVita; or



 



    (d) [*














 



                    *]



 



    (e) Upon
    [*          *]
    advance written notice to DaVita in the event of a breach by
    DaVita of Section 17.1, and DaVita fails to cure
    such with breach within
    [*          *]
    following the date of such notice; or



 



    (f) [*          *]
    in the event there is a change in DaVita’s status which
    excludes it from participation in any federal health care
    program, as defined under 42 U.S.C.
    § 1320a-7b(f).



 



    2.5 Effect of
    Termination.  Termination of this Agreement
    will not release either party hereto from any liability or
    obligation which, at the time of such termination, has already
    accrued or which thereafter may accrue in respect to any act or
    omission of any party hereto prior to such termination, nor will
    any such termination affect in any way the survival of any
    right, duty or obligation of any party hereto, which is
    expressly stated elsewhere in this Agreement to survive the
    termination.



 





ARTICLE III

    



 




    PURCHASE
    PRICE AND OTHER PRICING COVENANTS



 



    3.1 Purchase Price.  The purchase
    price for each Product is set forth on Exhibit A
    (collectively, the “Purchase Price”). The
    Purchase Price includes
    [*






    

    3








 


 




                              *].
    In the event that DaVita
    and/or any
    DaVita Facility requires any Product to be shipped outside of
    [*          *],
    DaVita and Rockwell shall
    [*



 












              *]



 



    3.2 Taxes.  Rockwell covenants and
    agrees that neither DaVita nor any DaVita Facility shall be
    liable for any taxes including any excise, gross receipts, gross
    earnings, gross value, property, income taxes measured on
    Rockwell’s income, or other taxes, other than applicable
    sales taxes, with respect to the purchase and sale of the
    Products.



 



    3.3 Pricing Covenant. Rockwell represents and warrants to
    DaVita that
    [*














                                                  *]



 



    3.4 [*

























                 *]



 



    3.5 Warrant.  [*          *],
    Rockwell agrees to provide DaVita with a warrant in the form
    attached to this Agreement as Exhibit E (the
    “Warrant”) to purchase up to one hundred
    thousand (100,000) shares of Rockwell’s common stock (the
    “Warrant Shares”). The Warrant Shares will have
    an exercise price equal to one hundred ten percent (110%) of the
    closing bid price per share of Rockwell’s common stock as
    quoted on NASDAQ on (a) the trading date immediately
    preceding the date on which this Agreement is executed by the
    parties if such execution occurs at or before 4:00 p.m.
    Eastern time or (b) the date on which this Agreement is
    executed by the parties if such execution occurs after
    4:00 p.m. Eastern time. The Warrant will expire at the
    earlier of (i) the close of business on the ninetieth
    (90th) day immediately following the completion of the Initial
    Term or (ii) the termination of this Agreement by Rockwell
    pursuant to Section 2.4. The Warrant will become
    exercisable on the first day immediately following the end of
    the Initial Term and may be exercised in whole or in part at any
    time after it becomes exercisable until its expiration by the
    submission of an exercise notice in the form attached as an
    exhibit to the Warrant. If the Warrant expires prior to the date
    it







    

    4







 







becomes exercisable, the Warrant shall not be exercisable.
    The Warrant Shares issuable upon exercise of the Warrant shall
    bear a legend restricting transfer. The Warrants Shares shall
    not be transferable and the Warrant shall bear a legend to that
    effect.



 





ARTICLE IV

    



 




    PURCHASE
    ORDERS; DELIVERY; DEDICATED CUSTOMER SERVICE
    REPRESENTATIVE



 



    4.1 Purchase Orders and
    Delivery.  Each Product shall be delivered by
    Rockwell to DaVita
    and/or the
    DaVita Facilities pursuant to the terms of each purchase order
    submitted by DaVita or any DaVita Facility.
    [*



 



    4.2 Dedicated Customer Service
    Representatives.  Rockwell hereby agrees and
    covenants that it shall provide DaVita with reasonable access to
    one or more dedicated customer service representatives (each a,
    “Service Representative”) who shall be
    available to promptly respond to and address any issues that
    DaVita
    and/or any
    DaVita Facility may have with respect to any of the Products
    (the “Customer Services”). Rockwell further
    agrees and covenants that each Service Representative shall
    perform the Customer Services in the highest professional manner.



 



    4.3 Return Goods Policy.  Rockwell
    hereby represents and warrants to DaVita that attached hereto as
    Exhibit D is a true, correct and complete copy of
    Rockwell’s “Return Goods Policy” (the
    “Return Goods Policy”). Notwithstanding
    anything to the contrary set forth in the Return Goods Policy,
    DaVita or a DaVita Facility, as applicable, reserves the right
    to inspect all Products and to reject any or all of the Products
    which are, in DaVita’s or     a DaVita Facility’s, as applicable, sole and absolute
    discretion, incorrectly shipped, defective, damaged,
    contaminated or otherwise not in compliance with the warranties
    granted or assigned hereunder. [*

                    
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
         *]

    DaVita or any DaVita Facility shall also have the right to
    return any of the Products pursuant to the terms and conditions
    set forth in the Return Goods Policy that do not conflict with
    this Section 4.3.  Rockwell shall provide
    DaVita with at least thirty (30) days prior written notice
    of any changes to the Return Goods Policy.



 




    ARTICLE V

    



 




    PAYMENT
    TERMS



 



    All purchases by DaVita or any DaVita Facility of Products
    pursuant to this Agreement shall be paid on terms
    [*          *].
    DaVita or any DaVita Facility may withhold payment on the
    portion







    

    5








 







of any invoice for which DaVita or such DaVita Facility,
    as applicable, has a bona fide dispute if it: (a) pays all
    undisputed amounts, (b) notifies Rockwell of such invoice
    dispute, and (c) provides to Rockwell a reconciliation of
    charges and any documentation necessary to support its claimed
    adjustment. The parties hereto agree to use their commercially
    reasonable efforts to resolve any such invoice dispute within
    [*          *]
    of Rockwell’s receipt of such invoice dispute notice from
    DaVita or any DaVita Facility, as applicable.



 




    ARTICLE VI

    



 




    FAILURE
    TO SUPPLY



 



    In the event of Rockwell’s failure or inability to supply
    any Product within and for the time period required by DaVita or
    any DaVita Facility, as applicable, including as a result of a
    force majeure event (e.g. act of God, fire, casualty, flood,
    war, act of terrorism, strike, lockout, labor trouble, failure
    of public utilities, injunction, epidemic, riot, insurrection or
    any other circumstances beyond the reasonable control of the
    party asserting it) (a “Failure to Supply
    Event”), Rockwell covenants and agrees that it shall
    (a) give notice
    [*          *]
    under the circumstances to DaVita of such Failure to Supply
    Event, unless an order of a regulatory agency or other action
    arising out of patient safety concerns requires the giving of
    shorter notice;
    [*



















          *]
    Rockwell further covenants and agrees that during the period
    that a Failure to Supply Event is occurring, none of the
    Committed DaVita Facilities shall be subject to the Product
    Commitment.



 




    ARTICLE VII
    



 





[*          *]
    



 



    Rockwell agrees and covenants to DaVita that it shall, at all
    times during the Term, to allow for the continuous and
    uninterrupted supply of each of the Products to DaVita and the
    DaVita Facilities to enable the physicians at the DaVita
    Facilities to treat their patients:
    [*




    

    6









 







          *]
    Rockwell and DaVita agree to continuously work together and use
    their best efforts to increase and improve the
    [*          *]
    for each Product maintained by Rockwell for use exclusively by
    DaVita and the DaVita Facilities.



 




    ARTICLE VIII

    



 




    ADDITIONAL
    PRODUCTS AND REPLACEMENT PRODUCTS



 



    8.1 Additional
    Products.  Throughout the Term, Rockwell shall
    provide to DaVita and the DaVita Facilities the right to
    purchase
    and/or lease
    all current or new products manufactured, utilized, licensed,
    sold or distributed by Rockwell or any of its Affiliates
    (including products and product lines acquired by Rockwell or
    any of its Affiliates as a result of an acquisition, merger or
    other transaction involving Rockwell or any of its Affiliates)
    that are or that become Commercially Available and which are not
    already covered by this Agreement or by any other agreement,
    whether written or oral, between the parties hereto (such
    products are collectively referred to as “Additional
    Products” and individually as an “Additional
    Product”). Rockwell agrees to include DaVita in all of
    its and its Affiliates distributions of customer announcements
    regarding Rockwell’s or its Affiliates’ Additional
    Products. The purchase price for any such Additional Products
    shall be negotiated by the parties hereto in good faith and the




    agreed upon purchase price shall be memorialized in writing as a
    supplement or amendment to this Agreement. Rockwell covenants
    and agrees that it shall only make an offer for the sale of any
    Additional Product(s) to DaVita’s Vice-President of
    Clinical Operations, Chief Medical Officer, or Vice-President of
    Purchasing, and not to any DaVita Facility directly;
    provided that the purchase of any Additional
    Product by DaVita or any DaVita Facility through a Rockwell
    product catalog made generally available to the dialysis
    community shall not be a breach by Rockwell of this
    Section 8.1. If Rockwell or any of its
    Affiliates acquires any Additional Product(s) as a result of an
    acquisition, merger or other transaction involving Rockwell or
    any of its Affiliates with a Person with which DaVita or a
    DaVita Facility, as applicable, already has a purchase or rebate
    arrangement whether written or oral (a “Prior
    Agreement”), Rockwell or such Affiliate covenants and
    agrees that it shall continue to abide by all of the terms and
    conditions of such Prior Agreement or if DaVita requests, such
    Additional Product(s) shall be included in this Agreement on
    terms to be negotiated and determined by the parties hereto as
    provided in this Section 8.1.



 



    8.2 Replacement Products.  If at
    anytime during the Term, Rockwell or any of its Affiliates
    introduces a product or offering that is a replacement for an
    existing Product covered by this Agreement, whether developed by
    Rockwell or any of its Affiliates or acquired by Rockwell or any
    of its Affiliates in connection with any transaction (a
    “Replacement Product”), Rockwell will allow (or
    will cause its Affiliate to allow) DaVita or any DaVita
    Facility, as applicable, to purchase such Replacement Product at
    the same price as the Product it is replacing or is ultimately
    intended to replace.



 




    ARTICLE IX

    



 




    CONFIDENTIAL
    INFORMATION COVENANTS



 



    9.1 Confidential Information.



 



    (a) No Disclosure of Confidential
    Information.  The Non-Disclosing Party (as
    defined in Article XVIII) agrees that in connection
    with the transactions contemplated by this Agreement and the
    relationship of the parties hereto, it will have access to
    Confidential Information of the Disclosing Party (as defined in
    Article XVIII) and that such Confidential
    Information is vital, sensitive, confidential and proprietary to
    the Disclosing Party. Therefore, the Non-Disclosing Party agrees
    that during the Term and




    

    7










 







for the longest time permitted under
    applicable law after the Term, that it will (i) hold any
    Confidential Information delivered or communicated to it by the
    Disclosing Party in the strictest confidence, including taking
    all reasonable precautions to prevent the inadvertent disclosure
    of the Confidential Information to any unauthorized third party
    or parties and (ii) not, at any time without the Disclosing
    Party’s express written consent, which consent may be
    withheld by the Disclosing Party in its sole and absolute
    discretion (A) disclose, reproduce, display, perform,
    record, broadcast, transmit, distribute, modify, translate,
    combine with other information or materials, create derivative
    works based on, exploit commercially or otherwise use the
    Confidential Information in any manner or medium whatsoever,
    (B) disclose or publicize any of the Confidential
    Information or the terms of this Agreement to any third party or
    parties, or (C) discuss with, or otherwise disclose or
    reveal to, any third party or parties any information relating
    to the Disclosing Party’s business or the Non-Disclosing
    Party’s duties or responsibilities to the Disclosing Party,
    regardless of whether such information constitutes Confidential
    Information. Notwithstanding anything to the contrary herein,
    the Non-Disclosing Party shall have the right to disclose any of
    the terms or provisions of this Agreement upon any determination
    by the Non-Disclosing Party that such disclosure is necessary in
    connection with the compliance by the Non-Disclosing Party with
    any legal requirement, including applicable obligations and
    requirements pursuant to federal and state securities laws and
    listing standards.



 



    (b) Retention and Destruction of Confidential
    Information.  The Non-Disclosing Party shall
    not take or retain any Confidential Information that is in
    written, email, computerized, model, sample, or other form
    capable of physical delivery, upon or after the expiration or
    earlier termination of this Agreement for any reason without the
    prior written consent of the Disclosing Party, which consent may
    be withheld by the Disclosing Party in its sole and absolute
    discretion. At any time upon the request of the Disclosing
    Party, the Non-Disclosing Party shall promptly redeliver to the
    Disclosing Party or destroy all written materials containing or
    reflecting any information contained in the Confidential
    Information (including all copies, extracts or other
    reproductions) and agree to destroy all documents, memoranda,
    notes and other writings whatsoever (including all copies,
    extracts or other reproductions), prepared by the Non-Disclosing
    Party based on the information contained in the Confidential
    Information.




    Notwithstanding the return or destruction of the Confidential
    Information, the Non-Disclosing Party will continue to abide by
    its obligations of confidentiality and other obligations
    hereunder.



 



    (c) Exceptions to Confidential
    Information.  Notwithstanding anything to the
    contrary herein, Confidential Information shall not include any
    information that (i) was already known to the
    Non-Disclosing Party at the time of disclosure by the Disclosing
    Party free of any restriction, (ii) is generally available
    to the public or becomes publicly known through no wrongful act
    of the Non-Disclosing Party, or (iii) is received by the
    Non-Disclosing Party from a third-party who has a legal right to
    provide such information to the Non-Disclosing Party.



 



    (d) Use of Trademarks and Other Intellectual
    Property.  Each party hereto agrees not to
    internally or externally use, release, publish or distribute any
    materials or information (including advertising and promotional
    materials) containing the names, tradenames, or trademarks or
    other intellectual property right of the other party hereto
    without the express prior written consent of such other party
    hereto.



 



    (e) Disclosures of Confidential Information Required
    By Law.  In the event that the Non-Disclosing
    Party is required by law (by oral questions, interrogatories,
    request for information or documents, subpoena, civil
    investigative demand or any other similar process) to disclose
    any Confidential Information, the Non-Disclosing Party agrees to
    provide the Disclosing Party with prompt written notice of such
    request(s) (but in no event later than
    [*          *]
    after the receipt of such request(s)) and shall consult with the
    Disclosing Party as to the advisability of taking legally
    advisable





    

    8










 







steps to resist or narrow such request(s).
    Notwithstanding the foregoing, if disclosure of such
    Confidential Information is required by law, the Non-Disclosing
    Party will (i) furnish only that portion of the
    Confidential Information which, in the reasonable opinion of the
    Non-Disclosing Party’s counsel, after consultation with the
    Disclosing Party’s counsel, it is legally obligated to
    disclose, and (ii) use its best efforts to obtain an order
    or other reliable assurances that confidential, non-public
    treatment will be accorded to all such disclosed Confidential
    Information.




 



    (f) Employees, Agents, Representatives,
    Etc.  For purposes of this
    Section 9.1, any Confidential Information received
    by any director, officer, member, manager, partner, employee,
    agent, subcontractor, advisor or representative of the
    Non-Disclosing Party pursuant to the terms and conditions of
    this Agreement shall be deemed received by the Non-Disclosing
    Party and any breach by such persons of this
    Section 9.1 shall be deemed a breach by the
    Non-Disclosing Party of this Agreement.



 



    9.2 Enforcement.  The
    Non-Disclosing Party expressly acknowledges and agrees that the
    restrictions contained herein are reasonable in terms of
    duration and scope restrictions and are necessary to protect the
    Confidential Information and the goodwill of the business of the
    Disclosing Party, and the Non-Disclosing Party agrees that it
    shall not challenge the validity or enforceability of the
    restrictions contained herein. The Non-Disclosing Party agrees
    that money damages would not be an adequate remedy for any
    breach of this Article IX. Therefore, in the
    event of a breach or threatened breach of the provisions of this
    Article IX by the Non-Disclosing Party, the
    Disclosing Party may, in addition to other rights and remedies
    existing in its favor, apply to any court of competent
    jurisdiction for specific performance
    and/or
    injunctive or other relief in order to enforce or prevent any
    violation of the provisions of this Article IX
    (without proving monetary damages or posting a bond or other
    security).



 





ARTICLE X

    



 




    REPRESENTATIONS
    AND WARRANTIES OF ROCKWELL



 



    Rockwell hereby represents and warrants to DaVita as follows:



 



    10.1 Standing and
    Authority.  Rockwell has the requisite
    corporate power, right and authority to enter into this
    Agreement and to consummate the transactions contemplated
    hereby. Rockwell’s execution and delivery of this Agreement
    and the consummation of the transactions contemplated hereby
    have been duly and validly authorized by all necessary corporate
    action on the part of Rockwell.



 



    10.2 Execution; Delivery; Binding
    Effect.  This Agreement has been duly executed
    and delivered by Rockwell, and constitutes the legal, valid and
    binding obligation of Rockwell, enforceable against Rockwell in
    accordance with its terms.




    10.3 No Conflicts.  Neither the
    execution, delivery or performance of this Agreement by Rockwell
    nor the consummation of the transactions contemplated in this
    Agreement, shall (a) conflict with, contravene or result in
    a breach of any statute or administrative regulation, or of any
    law, rule, regulation, ordinance, order, writ, injunction,
    judgment, or decree of any Governmental Authority or of any
    arbitration award to which Rockwell is a party or by which any
    of the properties or assets of Rockwell are or may be bound; or
    (b) conflict with, contravene or violate any agreement,
    understanding or arrangement to which Rockwell is a party or by
    which any of the properties or assets of Rockwell are or may be
    bound.



 



    10.4 Title.  Rockwell possesses
    good and marketable title to all of the Products free and clear
    of any and all liens, mortgages, charges, security interests,
    pledges or other encumbrances or adverse claims of any nature,
    whether arising by agreement, operation of law or otherwise
    (collectively, “Liens”).





    

    9










 







Rockwell has the right
    to convey and in connection with the transactions contemplated
    by this Agreement will convey to DaVita
    and/or the
    DaVita Facilities, as applicable, good and marketable title to
    all of the Products acquired hereunder, free and clear of any
    and all Liens.



 



    10.5 Licenses, Permits, and Compliance with
    Laws.  Rockwell has all rights, licenses,
    permits and consents necessary to sell the Products to DaVita
    and the DaVita Facilities and to perform its obligations
    hereunder during the Term. Rockwell is and has at all times been
    in and during the Term shall be in compliance with all federal,
    state and local laws, statutes, rules, and regulations
    applicable to its business and the performance of its
    obligations under this Agreement. No Product delivered hereunder
    during the Term is or will be adulterated or misbranded within
    the meaning of the FFDCA, or within the meaning of any
    applicable state or municipal law, or is or will be a product
    which may not be introduced into interstate commerce. During the
    Term, Rockwell shall immediately inform DaVita following its
    receipt of any information which states that the integrity or
    legal status of any Product provided hereunder has been called
    into question by any retailer, wholesaler, or state or federal
    authority, or that any Product sold to DaVita or any DaVita
    Facility hereunder is suspected of being counterfeit, stolen,
    adulterated, misbranded or otherwise an unlawful product and
    shall provide DaVita with prompt written confirmation of any
    such event, including copies of any and all documents related
    thereto. DaVita’s and the DaVita Facilities’ use of
    the Products in accordance with their intended use shall not
    infringe upon any ownership rights of any other Person or upon
    any patent, copyright, trademark, or other intellectual property
    or proprietary right or trade secret of any third party.



 



    10.6 Products.  Each Product
    purchased during the Term
    [*























          *]



 



    10.7 Expired Product.  Rockwell
    will use its best efforts not to ship to DaVita or any DaVita
    Facility expired Product
    [*












                              *]



 



    10.8 Health Care
    Programs.  Rockwell is not currently
    (a) named on any of the following lists
    (i) HHS/OIG
    List of Excluded Individuals/Entities, (ii) GSA List of
    Parties Excluded from Federal Programs or (iii) OFAC
    “SDN and Blocked Individuals” and (b) under
    investigation or otherwise aware of any circumstances which
    would result in Rockwell being excluded from participation in
    any federal health care program, as defined under 42 U.S.C.
    § 1320a-7b(f).



 



    All warranties granted or assigned under this
    Article X will continue in full force and effect
    notwithstanding transfer of title to any Product to or by DaVita
    or any DaVita Facility to any other





    

 10










 







DaVita Facility. All
    warranties granted under this Agreement shall survive
    inspection, acceptance and payment of the Products.



 





ARTICLE XI

    



 




    REPRESENTATIONS
    AND WARRANTIES OF DAVITA



 



    DaVita hereby represents and warrants to Rockwell as follows:



 



    11.1 Standing and
    Authority.  DaVita has the requisite corporate
    power, right and authority to enter into this Agreement and to
    consummate the transactions contemplated hereby. DaVita’s
    execution and delivery of this Agreement and the consummation of
    the transactions contemplated hereby have been duly and validly
    authorized by all necessary corporate action on the part of
    DaVita.




    11.2 Execution; Delivery; Binding
    Effect.  This Agreement has been duly executed
    and delivered by DaVita, and constitutes the legal, valid and
    binding obligation of DaVita, enforceable against DaVita in
    accordance with its terms.



 



    11.3 No Conflicts.  Neither the
    execution, delivery or performance of this Agreement by DaVita
    nor the consummation of the transactions contemplated in this
    Agreement, shall (a) conflict with, contravene or result in
    a breach of any statute or administrative regulation, or of any
    law, rule, regulation, ordinance, order, writ, injunction,
    judgment, decree of any Governmental Authority or of any
    arbitration award to which DaVita is a party or by which any of
    the properties or assets of DaVita are or may be bound; or
    (b) conflict with, contravene or violate any provision of
    any agreement, understanding or arrangement to which DaVita is a
    party or by which any of the properties or assets of DaVita are
    or may be bound.



 



    11.4 Compliance with Laws.  DaVita
    has all rights, licenses, permits and consents necessary to
    perform its obligations hereunder during the Term. DaVita is and
    has at all times been in and during the Term shall be in
    compliance with all federal, state and local laws, statutes,
    rules, and regulations applicable to its business and the
    performance of its obligations under this Agreement.



 



    11.5 Health Care Programs.  DaVita
    is not currently (a) named on any of the following lists
    (i) HHS/OIG List of Excluded Individuals/Entities,
    (ii) GSA List of Parties Excluded from Federal Programs or
    (iii) OFAC “SDN and Blocked Individuals” and
    (b) under investigation or otherwise aware of any
    circumstances which would result in DaVita being excluded from
    participation in any federal health care program, as defined
    under 42 U.S.C.
    § 1320a-7b(f).



 





ARTICLE XII

    



 




    INDEMNIFICATION
    AND INSURANCE



 



    12.1 Indemnification of
    DaVita.  Rockwell agrees to defend, indemnify
    and hold DaVita, its Affiliates and the DaVita Facilities and
    each of their respective directors, officers, members, managers,
    partners, employees and agents (collectively, the
    “DaVita Indemnitees”) harmless from and against
    any and all causes of action (at law or in equity), actions,
    claims, costs, suits, liabilities, judgments, settlements,
    demands, losses, damages, proceedings
    and/or
    expenses of all kinds (including reasonable attorneys’
    fees, witnesses’ fees, investigation expenses, and any
    other expenses incident thereto) (collectively,
    “Losses”) that the DaVita Indemnitees may
    sustain or incur as a result of
    [*




    

    11









 







          *]



 



    12.2 Indemnification of
    Rockwell.  DaVita agrees to defend, indemnify
    and hold Rockwell and its Affiliates and each of their
    respective directors, officers, members, managers, partners,
    employees and agents (collectively, the “Rockwell
    Indemnitees”) harmless from and against any and all
    Losses that the Rockwell Indemnitees may sustain or incur as a
    result of
    [*























          *]



 



    12.3 Indemnification Procedure for Third Party
    Claims.  If any DaVita Indemnitee or any
    Rockwell Indemnitee entitled to indemnification under this
    Article XII (the “Indemnified
    Party”) receives notice of the assertion of any claim,
    or the commencement of any suit, action or proceeding by any
    Person who is not a party hereto or an Affiliate of a party
    hereto (a “Third Party Claim”) against such
    Indemnified Party, the Indemnified Party shall give written
    notice regarding such Third Party Claim to the party hereto that
    is required to provide indemnification under this
    Article XII (the “Indemnifying
    Party”) within
    [*          *]
    after learning of such Third Party Claim. The Indemnifying Party
    shall have the right, upon written notice to the Indemnified
    Party (the “Defense Notice”) within
    [*          *]
    after receipt from the Indemnified Party of notice of such Third
    Party Claim, which Defense Notice by the Indemnifying Party
    shall specify the counsel it will appoint to defend such Third
    Party Claim (“Defense Counsel”), to conduct at
    its expense the defense against such Third Party Claim in its
    own name, or if necessary in the name of the Indemnified Party;
    provided, however, that: (a) the Indemnified
    Party shall have the right to approve the Defense Counsel, which
    approval shall not be unreasonably withheld, conditioned or
    delayed by the Indemnified Party and (b) as a condition
    precedent to the Indemnifying Party’s right to assume
    control of such defense, the Indemnifying Party must first enter
    into an agreement with the Indemnified Party (in form and
    substance reasonably satisfactory to the Indemnified Party)
    pursuant to which the Indemnifying Party agrees to be fully
    responsible for any and all Losses relating to such suit Third
    Party Claim and







    unconditionally guarantees the payment and performance of any
    and all Losses which may arise with respect to such Third Party
    Claim, subject to the terms and conditions set forth in this
    Section 12. The Indemnifying Party shall not
    have the right to assume control of, but may participate in, and
    the Indemnified Party shall have the sole right to assume
    control of any Third Party Claim which: (i) seeks a
    temporary restraining order, a preliminary or permanent
    injunction or specific performance against the Indemnified
    Party, (ii) involves criminal or quasi-criminal allegations
    against the Indemnified Party, (iii) if unsuccessful would
    set a precedent that would materially interfere with, or have a
    material adverse effect on, the business or financial condition
    of the Indemnified Party, or (iv) imposes liability in the
    part of the Indemnified Party for which the Indemnified Party is
    not entitled to indemnification under this
    Article XII. If the Indemnifying Party is
    permitted to assume and control the defense of any Third Party
    Claim and elects to do so, the Indemnified Party shall have the
    right to employ counsel separate from counsel employed by the
    Indemnifying Party in any such Third Party Claim and to
    participate in the defense thereof, but the fees and expenses of
    such counsel employed by the Indemnified Party shall be at the
    expense of the Indemnified Party unless (A) the employment
    thereof has been specifically authorized by the Indemnifying
    Party in writing, (V) the Indemnified Party has been
    advised by counsel that a reasonable likelihood exists of a
    conflict of interest between the Indemnifying Party and




    

    12










 







the
    Indemnified Party, or (C) the Indemnifying Party has failed
    to assume the defense and employ counsel, in which case the fees
    and expenses of the Indemnified Party’s counsel shall be
    paid by the Indemnifying Party. No Indemnifying Party shall
    consent to the entry of any judgment or enter into any
    settlement of any Third Party Claim without the prior written
    consent of the Indemnified Party if (w) such judgment or
    settlement would lead to liability or create any financial or
    other obligation on the part of the Indemnified Party for which
    the Indemnified Party is not entitled to indemnification
    hereunder, (x) such judgment or settlement would result in
    the finding or admission of any violation of any federal, state
    or local law, statute, ordinance or regulation, (y) such
    judgment or settlement does not include as an unconditional term
    thereof the giving by each claimant or plaintiff to each
    Indemnified Party of a release from all liability in respect to
    such Third Party Claim, or (z) as a result of such judgment
    or settlement, injunctive or other equitable relief would be
    imposed against the Indemnified Party. In the event that the
    Indemnifying Party fails to give the Defense Notice within
    [*          *]
    of receiving notice of such Third Party Claim from the
    Indemnified Party, it shall be deemed to have elected not to
    conduct the defense of such Third Party Claim, or in the event
    the Indemnifying Party does deliver a Defense Notice within
    [*          *]
    of receiving notice of such Third Party Claim from the
    Indemnified Party and thereby elects to not conduct the defense
    of such Third Party Claim, then in either such event the
    Indemnified Party shall have the right to conduct and control
    the defense of such Third Party Claim in good faith and to
    compromise and settle such Third Party Claim or consent to the
    entry of a judgment of such Third Party Claim in good faith
    without the prior consent of the Indemnifying Party. A failure
    by the Indemnified Party to give timely, complete or accurate
    notice as provided in this Section 12.3 will not
    affect the rights or obligations of the Indemnifying Party
    except and only to the extent that, as a result of such failure,
    the Indemnifying Party entitled to receive such notice was
    deprived of its right to recover any payment under its
    applicable insurance coverage or was otherwise directly and
    materially damaged as a result of such failure to give timely
    notice.



 



    12.4 Indemnification Procedure for Direct
    Claims.  In the event the Indemnified Party
    should have a claim against the Indemnifying Party hereunder
    which does not involve a Third Party Claim (a “Direct
    Claim”), such Indemnified Party shall transmit to the
    Indemnifying Party a written notice (the “Direct
    Indemnification Notice”) containing an estimate of the
    amount of damages attributable to such Direct Claim and the
    basis of such Indemnified Party’s request for
    indemnification under this Article XII within
    [*          *]
    after learning of such Direct Claim. If the Indemnifying Party
    does not notify such Indemnified Party in writing within
    [*          *]
    from its receipt of the Direct Indemnification Notice that the
    Indemnifying Party disputes the Direct Claim set forth in such
    Direct Indemnification Notice, the Direct Claim specified by
    such Indemnified Party in such Direct Indemnification Notice
    shall be deemed a liability of the Indemnifying Party hereunder.
    If the Indemnifying Party has timely disputed the Direct Claim
    set forth in such Direct Indemnification Notice, as provided in
    this Section 12.4, such Direct Claim set forth in
    such Direct Indemnification Notice shall be resolved by
    litigation.



 



    12.5 [*























*]





    

    13









 









ARTICLE XIII

    



 





RECALL



 



    In the event the FDA initiates a mandatory recall (i.e. the
    correction or removal of a Product) or Rockwell believes in its
    sole discretion that it may be necessary to conduct a recall
    (i.e. the correction or removal of a Product), field market
    withdrawal, stock recovery, or other similar action with respect
    to any of the Products (a “Recall”), Rockwell
    shall immediately notify DaVita of such Recall.
    [*















































          *]



 





ARTICLE XIV

    



 




    OPEN
    RECORDS AND DISCOUNTS



 



    14.1 Open Records.  To the extent
    required by § 1861(v)(1)(I) of the Social Security
    Act, the parties hereto will allow the U.S. Department of
    Health and Human Services, the U.S. Comptroller General,
    and their duly authorized representatives, access to this
    Agreement and any records necessary to verify the nature and
    extent of costs incurred pursuant to this Agreement during the
    Term and for four (4) years following the last date any
    Products are furnished by Rockwell to DaVita or any DaVita
    Facility under this Agreement. If Rockwell carries out its
    obligations under this Agreement through a subcontract worth Ten
    Thousand Dollars ($10,000) or more over a twelve (12) month
    period with a related





    

    14











 







organization, the subcontract shall also
    contain an access clause to permit access by the
    U.S. Department of Health and Human Services, the
    U.S. Comptroller General, and their duly authorized
    representatives to the related organization’s books and
    records. Nothing in this Section 14.1 is intended to
    waive any right either party hereto may have under any
    applicable laws or regulations to retain in confidence
    information included in records so requested.



 



    14.2 Discounts.  Any discounts,
    rebates, incentives,
    and/or other
    reductions in price issued by Rockwell to DaVita
    and/or any
    DaVita Facility under this Agreement may constitute a discount
    within the meaning of 42 U.S.C.
    § 1320a-7b(b)(3)(A).
    DaVita and the DaVita Facilities may have an obligation to
    properly disclose and appropriately reflect any such discounts,
    rebates, incentives
    and/or other
    reductions in price to any state or federal program that
    provides cost or charge based reimbursement to DaVita
    and/or any
    such DaVita Facility for the items to which such discounts,
    rebates, incentives
    and/or other
    reductions in price apply. In order to assist DaVita’s and
    the DaVita Facilities’ compliance with any such
    obligations, Rockwell agrees that it shall fully and accurately
    report all discounts, rebates, incentives
    and/or other
    reductions in price on the invoices, coupons or statements
    submitted to DaVita or any DaVita Facility and inform DaVita
    and/or any
    such DaVita Facility of their obligations to report such
    discounts, rebates, incentives
    and/or other
    reductions in price. In the event the value of any discounts,
    rebates, incentives
    and/or other
    reductions in price are not known at the time of sale, Rockwell
    shall fully and accurately report the existence of such
    discounts, rebates, incentives
    and/or other
    reductions in price on the invoices, coupons or statements
    submitted to DaVita
    and/or any
    DaVita Facility, inform DaVita
    and/or any
    DaVita Facility of their obligations to report such discounts,
    rebates, incentives
    and/or other
    reductions in price, and when the value of such discounts,
    rebates, incentives
    and/or other
    reductions in price becomes known, provide DaVita
    and/or any
    DaVita Facility with documentation of the calculation of such
    discounts, rebates, incentives
    and/or other
    reductions in price and identifying the specific Products
    purchased to which such discounts, rebates, incentives
    and/or other
    reductions in price will be applied. Rockwell shall also provide
    to DaVita
    and/or any
    DaVita Facility any other information that DaVita
    and/or any
    DaVita Facility may request that is necessary for them to obtain
    in order to comply with any such obligations, and Rockwell shall
    refrain from doing anything which would impede DaVita
    and/or any
    DaVita Facility from meeting their obligations under this
    Section 14.2 or any Medicare regulation.



 





ARTICLE XV

    



 




    ACCESS
    AND POLICIES AND PROCEDURES



 



    Rockwell acknowledges and agrees that (a) DaVita has
    informed Rockwell that copies of all of DaVita’s applicable
    vendor relations policies and procedures (the “Policies
    and Procedures”) that will be in effect during the Term
    will be available for viewing by Rockwell during the Term by
    going to:
    http://www.davita.com/about/company/?id=3902
    and (b) Rockwell shall abide by all such Policies and
    Procedures during the Term. Rockwell understands and agrees that it must obtain DaVita’s prior
    written approval of all proposed educational, marketing and
    promotional materials and of all presentations made by Rockwell
    relating to any of the Products or any other Rockwell products,
    which approval may only be given in writing by DaVita’s
    Vice President, Clinical Operations or his authorized
    representative. DaVita’s Vice President, Clinical
    Operations or his authorized representative agrees to notify
    Rockwell of his decision within
    [*          *]
    following receipt of such request; otherwise, such request will
    be deemed denied. No personnel or agent of Rockwell shall be
    permitted to access any DaVita Facility without the prior
    written consent of DaVita’s Vice President, Clinical
    Operations or his authorized representative.





    

    15











 









ARTICLE XVI

    



 





AUDIT



 



    If DaVita disagrees with any computation or statement delivered
    by Rockwell to DaVita or any DaVita Facility under this
    Agreement, DaVita may, within
    [*          *]
    after the receipt of such computation or statement, audit any
    such computation or statement. DaVita shall conduct any such
    audit during such times as may be mutually agreed to by the
    parties hereto. In the event that DaVita’s audit results in
    a number different from that set forth in the computation or
    statement delivered by Rockwell to DaVita or any DaVita
    Facility, DaVita shall deliver a written notice (an
    “Objection Notice”) to Rockwell setting forth
    in reasonable detail any and all items of disagreement related
    to such computation or statement. If DaVita does not deliver an
    Objection Notice within such
    [*          *]
    period, the calculations set forth in any such computation or
    statement shall be deemed final, conclusive and binding on the
    parties hereto. Rockwell and DaVita will use their commercially
    reasonable efforts to resolve any disagreements relating to any
    computation or statement, but if they do not obtain a final
    resolution within
    [*          *]
    after Rockwell has received the Objection Notice, then either
    Rockwell or DaVita may refer the items in dispute to a
    nationally recognized firm of independent public accounts as to
    which DaVita and Rockwell mutually agree (the
    “Firm”), to resolve any remaining
    disagreements. Rockwell and DaVita will direct the Firm to
    render a determination within
    [*          *]
    of its retention, and Rockwell and DaVita and their respective
    agents and employees will cooperate with the Firm during its
    engagement. The determination of the Firm will be conclusive and
    binding upon DaVita and Rockwell, and DaVita or Rockwell, as
    applicable, will make any payment owed to other party hereto
    within
    [*          *]
    of the Firm’s determination. The Firm shall execute a
    confidentiality agreement in a form reasonably acceptable to
    Rockwell and DaVita.
    [*



          
          
          *]



 





ARTICLE XVII

    



 




    ADDITIONAL
    ACKNOWLEDGEMENTS AND AGREEMENTS OF THE PARTIES



 



    17.1 [*

























          
          
          
          
          
          
          
          
          
          *]



 



    17.2 Business Model
    Change.  [*





    

    16










 







          
          
          
          
          
          
          
          
          *]



 



    17.3 Mixer
    Training.  [*          *]
    complete and appropriate training regarding the use and
    maintenance of the
    Dri-Sate®

    Acid Mixer
    [*













          
          
          *].



 



    17.4 [*















          
          
          
          
          
          
          
          
          
          *]



 





ARTICLE XVIII

    



 




    CERTAIN
    DEFINED TERMS



 



    The following terms as used herein have the following meaning:



 



    “Affiliate” means, with respect to a
    Person, any Person that, directly or indirectly, through one or
    more intermediaries, controls, is controlled by, or is under
    common control with, such Person.



 



    “Business Day” means a day other than
    Saturday, Sunday or a public holiday on which banks are
    authorized or required to be closed under the laws of the State
    of California.



 



    “Commercially Available” means any
    product that is approved by the FDA and manufactured, utilized,
    sold or distributed anywhere in the United States by Rockwell
    and/or any
    of its Affiliates.



 



    “Confidential Information” means
    information not generally known outside the disclosing party
    and/or any
    of its Affiliates (collectively, the “Disclosing
    Party”) (unless as a result of a breach of any of the
    non-disclosing party’s
    and/or any
    of its Affiliates’(collectively, the
    “Non-Disclosing Party’s”) obligations
    imposed by this Agreement) or which is identified as
    confidential by the Disclosing Party to the Non-Disclosing Party
    concerning the Disclosing Party’s business and technical
    information, whether in written, computerized, oral, tangible or
    intangible or other form, including: (a) the terms and
    provisions of this Agreement, (b) any and all trade secrets
    concerning the business, customers and affairs of the Disclosing
    Party, product specifications, data, know-how, formulae,
    compositions, processes, designs, sketches, photographs, graphs,
    drawings, samples, inventions and ideas, past, current and
    planned research and development, current and planned
    manufacturing and distribution methods and processes, customer
    lists, current and anticipated customer requirements, price
    lists, market studies, business plans, clinical practices and
    patient protocols, computer software and programs (including
    object code and source code), database technologies, systems,
    improvements, devices, discoveries, concepts, methods, and
    information of the Disclosing Party and any other information of
    the Disclosing Party, however documented, that is a trade secret
    under applicable law, (c) any and all information
    concerning the business and affairs of the Disclosing Party,
    including historical financial statements, financial projections
    and budgets, rebates, discounts, payment terms, pricing,
    historical and projected sales, capital spending




    

    17










 







budgets and
    plans, contractual arrangements, the names and background of key
    personnel, contractors, agents, customers, suppliers and
    potential suppliers, personnel training and techniques and
    materials, purchasing methods and techniques, however
    documented, (d) the names and addresses, records and charts
    and any other information concerning the Disclosing Party’s
    patients, and (e) any and all notes, analysis compilations,
    studies, summaries and other materials prepared by or for the
    Disclosing Party containing or based, in whole or in part, upon
    any information included in the foregoing.



 



    “FDA” means the United States Food and
    Drug Administration and any successor thereto.



 



    “FFDCA” means the United States Federal
    Food, Drug and Cosmetic Act of 1938 and all regulations
    promulgated thereunder.



 



    “Governmental Authority” means any
    multi-national, national, state, provincial, local,
    governmental, judicial, public, quasi-public, administrative,
    regulatory or self-regulatory authority, agency, commission,
    board, organization or instrumentality.



 



    “Person” means any individual or any
    group of individuals or any general partnership, limited
    partnership, limited liability partnership, limited liability
    company, professional limited liability company, corporation,
    joint venture, trust, business trust, cooperative or association
    or any other organization that is not a natural person and any
    combination of any such entity or organization and any natural
    persons acting in concert, and the heirs, executors,
    administrators, legal representatives, successors and assigns of
    any “person” where the context so permits.



 



    “Sale of DaVita” means any transaction
    or series of transactions pursuant to which any Person or group
    of related Persons in the aggregate acquire(s)
    (a) securities of DaVita possessing the voting power to
    elect a majority of DaVita’s board of directors (whether by
    merger, consolidation, reorganization, combination, sale or
    transfer of DaVita’s securities, securityholder or voting
    agreement, proxy, power of attorney or otherwise) or
    (b) all or substantially all of DaVita’s assets.



 



    “Sale of Rockwell” means any transaction
    or series of transactions pursuant to which any Person or group
    of related Persons in the aggregate acquire(s)
    (a) securities of Rockwell possessing the voting power to
    elect a majority of Rockwell’s board of directors (whether
    by merger, consolidation, reorganization, combination, sale or
    transfer of Rockwell’s securities, securityholder or voting
    agreement, proxy, power of attorney or otherwise) or
    (b) all or substantially all of Rockwell’s assets.



 



    “Transfer” means (a) any Sale of
    Rockwell, (b) Sale of DaVita, or (c) any sale,
    transfer, assignment, pledge, mortgage, exchange, hypothecation,
    grant of a security interest or other direct or indirect
    disposition or encumbrance of an interest (including by
    operation of law) or the rights thereof. The term
    “Transferred,” and other forms of the word
    “Transfer” shall have correlative meanings.








ARTICLE XIX

    



 





MISCELLANEOUS



 



    19.1 Entire Agreement;
    Amendments.  This Agreement, including its
    recitals and exhibits, constitutes the entire agreement between
    the parties hereto and supersedes any and all prior
    representations, warranties, statements, promises, agreements
    and understandings between the parties hereto, whether oral or
    written, relating to the subject matter hereof, and no party
    hereto shall be bound by





    

    18










 







nor charged with any written or oral
    representations, warranties, statements, promises, agreements
    and understandings not specifically set forth in this Agreement.
    No amendments or modifications of the terms of this Agreement,
    including any conflicting or additional terms contained in any
    sales order, purchase order, acknowledgment form, or other
    written document submitted by either party hereto, shall be
    binding on either party hereto unless reduced to writing and
    signed by a duly authorized representative of each party hereto.



 



    19.2 Notices.  All notices given
    pursuant to this Agreement shall be sent by: (a) certified
    mail, return receipt requested, in which case notice will be
    deemed delivered three (3) Business Days after deposit,
    postage prepaid in the United States mail; (b) a nationally
    recognized overnight courier, in which case notice will be
    deemed delivered one (1) Business Day after deposit with
    such courier; or (c) personal delivery. Addresses of the
    parties hereto are as follows:



 


	 	 	 
	
 
	
 
	
 

	

    To Rockwell:


	
 
	
    Rockwell Medical Technologies, Inc.

    30142 Wixom Road

    Wixom, Michigan 48383

    Attention: Chief Executive Officer

	
 
	
 
	
 

	

    To DaVita:


	
 
	
    DaVita Inc.

    15253 Bake Parkway

    Irvine, California 92618

    Attention: Vice-President of Purchasing

	
 
	
 
	
 

	

    With a copy to:


	
 
	
    DaVita Inc.

    601 Hawaii Street

    El Segundo, California 90245

    Attention: General Counsel









 



    The above addresses may be changed by written notice to the
    other party hereto, provided that no notice of a
    change of address will be effective until actual receipt of such
    notice.



 



    19.3 Choice of Law.  All issues and
    questions concerning the construction, validity, enforcement and
    interpretation of this Agreement shall be governed by and
    construed in accordance with the laws of the State of Delaware,
    without giving effect to any choice of law or conflict of law
    rules or provisions (whether of the State of Delaware or any
    other jurisdiction) that would cause the application of the laws
    of any jurisdiction other than the laws of the State of Delaware.



 



    19.4 WAIVER OF JURY TRIAL.  EACH OF
    THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
    TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY LEGAL
    PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
    TRANSACTIONS OR EVENTS CONTEMPLATED HEREBY OR ANY COURSE OF
    CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
    OR ACTIONS OF ANY PARTY HERETO. THE PARTIES HERETO EACH AGREE
    THAT ANY AND ALL SUCH CLAIMS AND CAUSES OF ACTION SHALL BE TRIED
    BY THE COURT WITHOUT A JURY. EACH OF THE PARTIES HERETO FURTHER
    WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LEGAL
    PROCEEDING IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER
    LEGAL PROCEEDINGS IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN
    WAIVED.





    

    19










 






 



    19.5 Attorneys Fees.  In the event
    of any legal proceeding between the parties hereto with respect
    to this Agreement, the enforceability of any of its provisions
    or any alleged or actual breach of this Agreement by any party
    hereto, the prevailing party shall be entitled to recover
    reasonable attorney’s fees and all other costs and expenses
    incurred in connection with pursuing any action with respect
    thereto, in addition to any other relief to which such


    party may be entitled. The term “prevailing party”
    shall mean with respect to each claim asserted in a complaint
    the party in whose favor final judgment after appeal (if any) is
    rendered with respect to such claim asserted in the complaint.



 



    19.6 Non-Limitation of Rights and
    Remedies.  Except as otherwise expressly
    provided herein, the various rights and remedies provided herein
    shall be cumulative and in addition to any other rights and
    remedies the parties hereto may be entitled to pursue at law or
    equity. The exercise of one or more of such rights or remedies
    shall not impair the right of either party hereto to exercise
    any other right or remedy at law or equity.



 



    19.7 Waiver.  No waiver by any
    party hereto, whether express or implied, of its rights under
    any provision hereto shall constitute a waiver of the
    party’s rights under such provisions at any other time or a
    waiver of the party’s rights under any other provision
    hereto. No failure by any party hereto to take any action
    against any breach of this Agreement or default by another party
    hereto shall constitute a waiver of the former party’s
    right to enforce any provision of this Agreement or to take
    action against such breach or default or any subsequent breach
    or default by the other party hereto. To be effective any waiver
    must be in writing and signed by the waiving party.



 



    19.8 Severability.  In the event
    any provision of this Agreement shall be held to be invalid or
    unenforceable in any respect, such provision shall be enforced
    to the fullest extent permitted by law and the remaining
    provisions of this Agreement shall remain in full force and
    effect. If any such invalid portion constitutes a material term
    of this Agreement, the parties hereto shall meet and in good
    faith seek to mutually agree to modify this Agreement so as to
    retain, if possible, the overall essential terms of this
    Agreement.



 



    19.9 Conflicts.  To the extent that
    any provision of any sales order, purchase order, invoice, or
    any other document, or the terms of any of Rockwell’s
    general policies, terms and conditions, procedures or catalogs,
    conflict with or alter any term of this Agreement, this
    Agreement shall govern and control.



 



    19.10 Assignment and
    Transfer.  This Agreement will be binding upon
    and inure to the benefit of the parties hereto. This Agreement
    may not be Transferred by any party hereto without the prior
    written consent of the other party hereto; provided
    however that nothing in this Agreement shall or is
    intended to limit the ability of DaVita to Transfer this
    Agreement, in whole or in part, without the consent of Rockwell
    to: (a) any Affiliate of DaVita; (b) any buyer in
    connection with a Sale of DaVita; or (c) any lenders of
    DaVita as collateral for borrowings.



 



    19.11 Relationship of the
    Parties.  This Agreement is not intended to
    create and shall not be construed as creating between Rockwell
    and DaVita the relationship of Affiliate, principal and agent,
    joint venture, partnership, or any other similar relationship,
    the existence of which is hereby expressly denied. Neither party
    hereto shall have (nor shall it hold itself out as having) any
    right, power or authority to make or incur any legally binding
    agreement, obligation, representation, warranty or commitment on
    behalf of the other party hereto or to direct any action of, or
    activity by the other party hereto or any of its officers,
    directors, members, managers, employees or agents.



 



    19.12 Counterparts; Facsimile/PDF
    Signatures.  This Agreement may be executed in
    any number of counterparts and any party hereto may execute any
    such counterpart, each of which when




    

    20









 







 executed and delivered
    shall be deemed to be an original and all of which counterparts
    taken together shall constitute but one and the same instrument.
    This Agreement shall become binding when one or more
    counterparts taken together shall have been executed and
    delivered by each of the parties hereto. It shall not be
    necessary in making proof of this Agreement or any counterpart
    hereof to produce or account for any of the other counterparts.
    The parties hereto agree that facsimile transmission or PDF of
    original signatures shall constitute and be accepted as original
    signatures.



 



    19.13 
Headings and
    Interpretation.  All Section and Article
    headings contained in this Agreement are for convenience of
    reference only, do not form a part of this Agreement and shall
    not affect in any way the meaning or interpretation of this
    Agreement. Words used herein, regardless of the number and
    gender specifically used, shall be deemed and construed to
    include any other number, singular or plural, and any other
    gender, masculine, feminine, or neuter as the context requires.
    The words “include”, “includes” and
    “including”, and words of similar import, shall be
    deemed to be followed by the phrase “without
    limitation”. Unless the context expressly by its terms
    requires otherwise, (a) any reference to any law herein
    shall be construed as referring to such law as from time to time
    enacted, repealed or amended, (ii) any reference herein to
    any Person shall be construed to include such Person’s
    permitted successors and assigns, (iii) the words
    “herein”, “hereof” and
    “hereunder”, and words of similar import, shall be
    construed to refer to this Agreement in its entirety and not to
    any particular provision hereof, and (iv) all references herein to Sections, Articles, or Exhibits shall be
    construed to refer to Sections, Articles, or Exhibits of this
    Agreement.



 



    19.14 Joint Preparation.  Each
    party hereto: (a) has participated in the preparation of
    this Agreement; (b) has read and understands this
    Agreement; and (c) has been represented by counsel of its
    own choice in the negotiation and preparation of this Agreement.
    Each party hereto represents that this Agreement is executed
    voluntarily and should not be construed against any party hereto
    solely because it drafted all or a portion hereof.



 



    19.15 Time of
    Essence.  Rockwell’s obligation to meet
    the delivery dates or any other time periods set forth herein is
    of the essence.



 



    19.16 Survival.  Notwithstanding
    anything to the contrary that may be contained elsewhere in this
    Agreement, this Article XIX and
    Articles II, VI, IX, X,
    XI, XII and XIII shall survive, and remain
    in full force and effect, following the expiration or
    termination of this Agreement for any reason.



 



    19.17 Business Day.  If any payment
    is due, or any time period for giving notice or taking action
    expires, on a day that is not a Business Day, the payment shall
    be due and payable on, and the time period for giving such
    notice or taking such action shall automatically be extended to,
    the next succeeding Business Day.



 



    19.18 Public Announcements.  Except
    as otherwise required pursuant to any applicable federal or
    state securities laws or stock listing requirements, no party
    hereto shall make any public announcement of any kind or any
    filing with respect to the other party hereto or any of the
    transactions provided for herein without the prior written
    consent of the other party hereto. Except as otherwise required
    pursuant to any applicable federal or state securities laws or
    stock listing requirements, any press release or other
    announcement or notice regarding the other party hereto or any
    of the transactions contemplated by this Agreement shall be by
    joint press release mutually agreed to in writing by the parties
    hereto.



 




    [SIGNATURE
    PAGE FOLLOWS]
    








    

    21










 







    IN WITNESS WHEREOF, the parties hereto have caused this
    Agreement to be effective as of the Effective Date.



 


	 	 	 
	

    ROCKWELL:


	
 
	
    DAVITA:

	
 
	
 
	
 

	

    ROCKWELL MEDICAL TECHNOLOGIES, INC.


	
 
	
    DAVITA INC.

	
 
	
 
	
 

	

    By: /s/  Rob
    Chioini


    




	
 
	

    By: /s/  LeAnn
    Zumwalt


    





	
 
	
 
	
 

	

    Print Name:  Rob Chioini


	
 
	

    Print Name:  LeAnn Zumwalt



	
 
	
 
	
 

	

    Title:  CEO


	
 
	

    Title:  VP



	
 
	
 
	
 

	

    Time of Signature:  2/16/11 3:40 p.m.


	
 
	

    Time of Signature:  2/16/11



	
 
	
 
	
 

	
 
	
 
	
    Approved as to form:

	
 
	
 
	
 

	
 
	
 
	
    DAVITA INC.

	
 
	
 
	
 

	
 
	
 
	

    By: /s/  Jon
    Kweller


    





	
 
	
 
	
 

	
 
	
 
	

    Print Name:  Jon Kweller



	
 
	
 
	
 

	
 
	
 
	

    Title:  Deputy General Counsel











 




    [SIGNATURE
    PAGE TO PRODUCTS PURCHASE AGREEMENT]





    











 








    EXHIBIT A

    



 




    PRODUCTS
    AND PURCHASE PRICE



 



    See attached.





    

    A-1










 








    
    



 



    EXHIBIT A; 2011



 




    Price
    Quote Standard Formulas



 


	 	 	 	 	 	 	 	 	 
	
 

	
    CATALOG #
	
 
	
    DESCRIPTION
	
 
	
    PACKAGING
	
 
	
    UNIT
	
 
	
    PRICE

	
 

	 

	

    [*


	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    *]


	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
    










 



    NOTE:




    • [*






          
          
          
          
          
          
          
          
          *]



 



    • [*          
          
          
          
          
          
          
          *]



 


 



    30142 Wixom
    Road o  Wixom,
    MI
    48393 o  (248) 960-9009 o  Fax
    (248) 960-9119 o  (800) 449-3353





    

    A-2









 








    EXHIBIT B



 



    [*          *]



 



    See attached.





    

    B-1









 








    
    



 



    EXHIBIT B; 2011



 



    The purchase price for the Products as set forth on
    Exhibit A is applicable in the following states:



 



    [*          *]



 



    [*          *]



 



    [*          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          *]



 


 



    30142 Wixom
    Road o  Wixom,
    MI
    48393 o  (248) 960-9009 o  Fax
    (248) 960-9119 o  (800) 449-3353





    

    B-2









 








    EXHIBIT C

    



 




    DAVITA
    SHIPPING AND ORDER REQUIREMENTS



 



    See attached.





    

    C-1









 








    
    

    



 




    EXHIBIT C;
    2011

    





    DAVITA
    SHIPPING & ORDERING GUIDELINES



 



    GENERAL GUIDELINES APPLICABLE TO ALL PRODUCTS
    (DRI-SATE®

    DRY ACID CONCENTRATE,
    RENALPURE®

    LIQUID ACID CONCENTRATE,
    RENALPURE®

    BICARBONATE POWDER,
    STERILYTE®

    LIQUID BICARBONATE,
    CITRAPURE®

    DRY ACID and LIQUID ACID CONCENTRATE and CLEANING AGENTS)



 



    1. [*          *]



 



    2. [*          *]



 



    3. [*          *]



 



    4. [*          *]



 



    5. [*          *]



 



    6. [*          *]



 



    NOTE:
    [*          *]



 



    SPECIFIC ADDITIONAL GUIDELINES FOR CERTAIN PRODUCTS



 



    [*          *]



 


 



    30142 Wixom
    Road o  Wixom,
    MI
    48393 o  (248) 960-9009 o  Fax
    (248) 960-9119 o  (800) 449-3353





    

    C-2









 








    EXHIBIT D

    



 




    RETURN
    GOODS POLICY



 



    See Item 3 of Exhibit C.





    

    D-1









 








    EXHIBIT E

    



 




    WARRANT



 



    See attached.





    

    E-1









 



    THIS STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE
    SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
    LAWS. IT MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE
    OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
    AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
    COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
    NOT REQUIRED. THIS WARRANT IS ALSO SUBJECT TO THE RESTRICTIONS
    ON TRANSFER SET FORTH IN SECTION 5 HEREOF.



 




    WARRANT TO
    PURCHASE SHARES

    OF COMMON STOCK, NO PAR VALUE, OF

    ROCKWELL MEDICAL TECHNOLOGIES, INC.
    



 



    February 16, 2011



 



    THIS STOCK PURCHASE WARRANT (“Warrant”) CERTIFIES
    THAT, for value received, subject to the provisions hereinafter
    set forth, DaVita Inc. (the “Holder”) is entitled to
    purchase from Rockwell Medical Technologies, Inc., a Michigan
    corporation, and its successors and assigns (the
    “Company”) up to 100,000 shares (the
    “Warrant Shares”) of common stock of the Company, no
    par value (the “Common Stock”). This Warrant is the
    “Warrant Agreement” issued in accordance with that
    certain Products Purchase Agreement, dated as of
    February 16, 2011, between the Company and Holder (the
    “Agreement”). This Warrant is subject to the
    provisions and adjustments, and exercise hereof is subject to
    and will be made on the terms and conditions, hereinafter set
    forth.



 



    The following is a statement of the rights of the Holder of this
    Warrant and the terms and conditions to which this Warrant is
    subject, to which terms the Holder hereof, by acceptance of this
    Warrant, assents.



 


		
	
    1.  
	
    EXERCISE
    OF WARRANT




 



    (a) The Warrant shall become exercisable in full on the
    first day immediately following the end of the Initial Term (as
    defined in the Agreement) (the “Exercise Date”). The
    exercise price for the Warrant Shares is $10.25 per share (the
    “Exercise Price”). On and after the Exercise Date,
    subject to the conditions set forth herein, this Warrant may be
    exercised in whole at any time or in part from time to time
    until the close of business on the Expiration Date (as defined
    below) by the Holder by the surrender of this Warrant at the
    principal office of the Company, accompanied by a signed notice
    of exercise in the form attached hereto and payment to the
    Company of the Exercise Price in the manner set forth below for
    each of the Warrant Shares intended to be purchased. Such
    payment shall be made by Holder to the Company in the form of
    cash, a certified or cashier’s check or by means of the
    cashless method described in Section 1(b) of this Warrant.
    Notwithstanding any other provision in this Warrant to the
    contrary, this Warrant shall not be deemed exercised until
    payment in full of the applicable Exercise Price for the




    

    E-2









 



Warrant
    Shares to be purchased has been received by the Company as
    specified in this Section 1. The Warrant will expire at the
    earlier of (i) the close of business on the 90th day
    immediately following the completion of the Initial Term (as
    defined in the Agreement), or (ii) the termination of the
    Agreement by the Company pursuant to Section 2.4 thereof
    (the earlier of such dates being the “Expiration
    Date”). If the Expiration Date shall occur prior to the
    Exercise Date, the Warrant shall expire without becoming
    exercisable.



 



    (b) The Holder may exercise the Warrant by the surrender of
    this Warrant at the principal office of the Company on or before
    the Expiration Date together with a written notice of cashless
    exercise, in which event the Company shall issue to the Holder
    the number of shares of Common Stock determined as follows:



 



    X = (Y x (A-B))/A



 



    where:



 



    X = the number of shares of Common Stock to be issued to the
    Holder;



 



    Y = the number of Warrant Shares with respect to which this
    Warrant is being exercised;



 



    A = the average of the high and low trading prices per share of
    the Common Stock on the Nasdaq Stock Market for the five trading
    days immediately preceding (but not including) the date of
    exercise.



 



    B = the Exercise Price (as adjusted to the date of such
    calculation).



 





		
	
    2.  
	
    ADJUSTMENTS




 



    (a) In the event the Company shall (i) pay a dividend
    to the holders of Common Stock in shares of Common Stock,
    (ii) subdivide its outstanding shares of Common Stock into
    a greater number of shares, or (iii) combine its
    outstanding shares of Common Stock into a smaller number of
    shares, then (A) the number of Warrant Shares that, at such
    time, remain available for purchase pursuant to this Warrant
    (“Available Warrant Shares”) shall be adjusted so that
    such amount is equal to the number of shares of Common Stock
    which Holder would have owned immediately after such event had
    the number of Available Warrant Shares immediately prior to the
    occurrence of such event been owned on the record date for such
    event and (B) the Exercise Price shall be adjusted by
    multiplying the Exercise Price in effect immediately prior to
    such event by a fraction (x) the numerator of which is the
    total number of outstanding shares of Common Stock immediately
    prior to such event, and (y) the denominator of which shall
    be the total number of outstanding shares of Common Stock
    immediately after such event. Such adjustment shall become
    effective immediately after the opening of business on the day
    following such record date or the day upon which such dividend,
    subdivision or combination becomes effective.



 



    (b) In the event the Company shall (i) issue by
    reclassification of its Common Stock any shares of the Company
    of any class or series, (ii) merge or consolidate with or
    into another entity (other than a merger in which the Company is
    the surviving entity and which does not result in any
    reclassification of the outstanding shares of Common Stock),
    (iii) sell or otherwise convey to another entity all or
    substantially all of the assets of the





    

    3









 


Company followed by the
    distribution of the proceeds thereof to the shareholders of the
    Company, or (iv) engage in a share exchange involving all
    or substantially all of the stock of the Company, then the
    Holder shall thereafter be entitled to receive upon the exercise
    of this Warrant, instead of the Available Warrant Shares, the
    consideration which the Holder would have owned immediately
    after such event had the Available Warrant Shares been owned
    immediately prior to the occurrence of such event.



 



    (c) No adjustment shall be required unless such adjustment
    would require an increase or decrease of at least one-tenth of a
    share in the number of Warrant Shares, or at least one-tenth of
    a cent in the Exercise Price; provided, however, that any
    adjustment which by reason hereof is not required to be made
    shall be carried forward and taken into account in any
    subsequent adjustment.



 



    (d) No fractional shares of Common Stock shall be issued
    upon exercise of this Warrant. The number of shares issued shall
    instead be rounded down to the nearest whole share and any
    fractional share disregarded.



 



    (e) In the event that, as a result of an adjustment made
    pursuant to this Section 2, the Holder shall become
    entitled to receive any shares of capital stock of the Company
    other than shares of Common Stock, the number of such other
    shares so receivable upon exercise of this Warrant shall be
    subject thereafter to adjustment from time to time in a manner
    and on terms as nearly equivalent as practicable to the
    provisions with respect to the Warrant Shares contained in this
    Warrant.



 



    (f) The Company shall not, by amendment of its Articles of
    Incorporation or through any reorganization, recapitalization,
    transfer of assets, consolidation, merger, dissolution, issue or
    sale of securities or any other voluntary action, avoid or seek
    to avoid the observance or performance of any of the terms to be
    observed or performed hereunder by the Company, but will at all
    times in good faith assist in the carrying out of all of the
    provisions of this Section 2.



 


		
	
    3.  
	
    FULLY
    PAID STOCK




 



    The Company agrees that the Warrant Shares delivered upon
    exercise of this Warrant as herein provided shall, at the time
    of such delivery, be fully paid and non-assessable, and free
    from all liens and charges with respect to the purchase thereof.
    During the period within which this Warrant may be exercised for
    Common Stock, the Company will at all times have authorized, and
    hold in reserve for issuance upon exercise of this Warrant, a
    sufficient number of shares of Common Stock to provide for the
    exercise of this Warrant.



 


		
	
    4.  
	
    LOST OR
    STOLEN WARRANTS




 



    In case this Warrant shall be mutilated, lost, stolen or
    destroyed, the Company shall issue a new Warrant of like date,
    tenor, and denomination and deliver the same in exchange and
    substitution for and upon surrender and cancellation of any mutilated






    

    4









 



    Warrant, or in lieu of the lost,
    stolen or destroyed Warrant, upon receipt of an indemnity
    agreement or bond from Holder reasonably satisfactory to the
    Company.



 


		
	
    5.  
	
    ASSIGNMENT




 



    This Warrant may not be Transferred (as defined below) without
    the prior written consent of the Company; provided, however,
    that if the Agreement is Transferred in accordance with the
    terms thereof, this Warrant may be Transferred to the transferee
    of the Agreement. A “Transfer” means any sale,
    transfer, assignment, pledge, mortgage, exchange, hypothecation,
    grant of a security interest or other direct or indirect
    disposition or encumbrance of an interest (including by
    operation of law) or the rights thereof. The Company shall deem
    and treat the Holder (or any successor holder to whom this
    Warrant is Transferred in accordance with this
    Section 5) as the absolute owner of this Warrant,
    notwithstanding any notations of ownership or writing hereon
    made by anyone other than the Company, for all purposes and
    shall not be affected by any notice to the contrary. Any
    attempted Transfer of this Warrant without compliance with this
    Section 5 shall be null and void.



 


		
	
    6.  
	
    SECURITIES
    MATTERS




 



    (a) Neither this Warrant nor the Warrant Shares have been
    registered under the Securities Act of 1933, as amended (the
    “Act”), or any applicable “Blue Sky” laws.



 



    (b) By exercising this Warrant, Holder (or any successor
    holder to whom this Warrant is Transferred in accordance with
    Section 5) is deemed to represent and warrant to the
    Company that (i) Holder is an “accredited
    investor” as defined in Rule 501 of Regulation D
    promulgated under the Act and was not organized for the purpose
    of acquiring the Warrant or the Warrant Shares;
    (ii) Holder’s financial condition is such that it is
    able to bear the risk of holding the Warrant Shares for an
    indefinite period of time and could afford a complete loss on
    such investment; (iii) Holder has sufficient knowledge and
    experience in investing in companies similar to the Company so
    as to be able to evaluate the risks and merits of its investment
    in the Company and has so evaluated the risks and merits of such
    investment, understands that an investment in the Warrant Shares
    involves a significant degree of risk, including a risk of total
    loss of Holder’s investment, and understands the risk
    factors included, or that may be included in the future, in the
    Company’s periodic reports filed from time to time with the
    Securities and Exchange Commission; (iv) Holder
    acknowledges that the Company has made available copies of its
    annual, quarterly and other reports and documents filed with the
    Securities and Exchange Commission pursuant to
    Sections 13(a), 14(a), 14(c) and 15(d) of the Securities
    Exchange Act of 1934, as amended, and the information
    incorporated in such reports and documents by reference, and
    acknowledges that, a reasonable time before Holder’s
    exercise of the Warrant, it has reviewed such reports and
    documents, has had the opportunity to ask questions about the
    Company and the Warrant Shares, that such questions have been
    answered to Holder’s satisfaction, and that it has obtained
    all other information with respect to an investment in the
    Warrant Shares that it has requested from the Company; and
    (v) Holder is acquiring the Warrant Shares for its own
    account for investment and not for resale or with a view to
    distribution thereof in





    

    5









 



violation of the Securities Act of 1933.
    Except to the extent that the sale of the Warrant Shares by the
    Company upon exercise of the Warrant has been registered under
    the Act, each and every certificate representing Warrant Shares
    delivered upon exercise of this Warrant shall bear the following
    legend:



 



    THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
    THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
    LAWS. SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN
    THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
    AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION
    OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
    NOT REQUIRED.



 



    (c) Anything to the contrary herein notwithstanding, the
    Company’s obligation to sell and deliver Common Stock
    pursuant to the exercise of this Warrant is subject to its
    receipt of satisfactory assurance that the issuance of such
    shares shall not violate any of the provisions of the Act or the
    rules and regulations of the Securities and Exchange Commission
    promulgated thereunder. No Warrant Shares shall be issued until
    counsel for the Company has determined that the Company has
    complied with all requirements under applicable securities laws.





 


		
	
    7.  
	
    NO RIGHTS
    AS SHAREHOLDER




 



    Nothing contained in this Warrant shall be construed as
    conferring upon the Holder any rights as a shareholder of the
    Company.



 


		
	
    8.  
	
    MISCELLANEOUS




 



    (a) All covenants and agreements of the Company in this
    Warrant shall be binding upon the Company’s successors and
    assigns. All covenants and provisions hereof by or for the
    benefit of the Holder shall bind and inure to the benefit of its
    successors and permitted assigns hereunder.



 



    (b) This Warrant shall be construed and enforced in
    accordance with the laws of the State of Michigan without regard
    to choice of law principles that would compel the application of
    the law of any other jurisdiction.



 



    (c) Except as provided in Section 2, this Warrant may
    be amended only with the written consent of the Company and the
    Holder.



 



    (d) Any notices or other communications required or
    permitted hereunder shall be sufficiently given if in writing
    and delivered in person or sent by United States mail, by
    registered mail, postage prepaid, or by courier or express
    delivery service (including, without limitation, Federal Express
    and UPS), and if to the Holder, addressed to the Holder at 15253
    Bake Parkway, Irvine, California 92618, Attention:
    Vice-




    

    6







 



President of Purchasing, and if to the Company, addressed
    to it at 30142 Wixom Road, Wixom, Michigan 48393, Attention:
    Chief Financial Officer, or to such other address or attention
    as shall be furnished in writing by the Company or the Holder.
    Any such notice or other communication shall be deemed to have
    been given as of the date received.



 



    (e) In the event of any conflict between this Warrant and
    the Agreement, the terms of this Warrant shall control.





    

    7







 






    IN WITNESS WHEREOF, the undersigned has caused this Warrant to
    be signed by a duly authorized officer and this Warrant to be
    dated as of the date set forth above.



 



    ROCKWELL MEDICAL TECHNOLOGIES, INC.



 


			
	 	    By: 
	
        


    





 


			
	 	    Its: 
	
        


    






 



    

    8







 







    NOTICE OF
    EXERCISE



 



    Rockwell Medical Technologies, Inc.




    30142 Wixom Road




    Wixom, Michigan 48393




    Attention: Chief Financial Officer



 



    A Warrant was issued to the undersigned as of February 16,
    2011 to purchase up to 100,000 shares of Rockwell Medical
    Technologies, Inc. common stock at the exercise price set forth
    in the Warrant. The undersigned hereby elects to exercise the
    Warrant with respect
    to           shares.
    Payment of the exercise price is being made by (check one):



 



              



 



    /          /  cash;



 



              



 



    /          /  certified
    or cashier’s check delivered with this notice;



 


			
	 	    /          /  
	
    cashless exercise method described in Section 1(b) of the
    Warrant.




 



    The stock certificate for the shares acquired upon exercise
    should be issued to:



 








    (name)
    ­
    ­



 








    (address)
    ­
    ­



 





 








    (Social Security No. or EIN)
    ­
    ­



 





 







			
	 	    By: 
	
        


    





 







			
	 	    Its: 
	
        


    





 







			
	 	    Dated: 
	
        


    







 



    

    9