2. Purchase Price. Section 3(a) of the Agreement is hereby amended and replaced inits entirety with the following:“The purchase price for each of the Products for the period of May 5, 2008 throughDecember 31, 2009 shall be as set forth in Exhibit A. On or beforeSeptember 30, 2009, ROCKWELL may submit a written notice to DAVITA requesting anincrease to the purchase price of each of the Products for calendar year 2010 (a“Purchase Price Increase Notice Request”). [*          *] DAVITA acknowledges and agrees that ROCKWELL shall have sixty (60) days to cureany breach of this Section 3(a).”     3. Product Commitment. Section 3(b) of the Agreement is hereby amended by insertingthe following at the end of such section:“ROCKWELL’s only remedy for a breach of the provisions of this Section 3(b)by DAVITA shall be to terminate this Agreement in accordance with the terms andconditions of Section 9(a) of this Agreement, and in such event ROCKWELLshall not be entitled to any other relief or remedy whatsoever, including withoutlimitation monetary damages.”     4. Discontinuation Event. The Agreement is hereby amended by inserting a new Section3(c) into the Agreement as follows:
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“c. DAVITA agrees that (i) in the event one or more of its clinics intends ondiscontinuing the purchase of its Products requirements from ROCKWELL (a“Discontinuation Event”), it shall provide ROCKWELL with at least ninety (90) days’prior written notice of such Discontinuation Event [**] In the event of a breach by DAVITA of the provisions of this Section3(c), ROCKWELL’s sole and exclusive remedy shall be to terminate this Agreementupon sixty (60) days advance written notice; providedthat DAVITAhas not cured, corrected or otherwise resolved such breach in such sixty (60) dayperiod.”     5. Mixers. Section 4 of the Agreement is hereby amended and replaced in its entiretywith the following:“4. Mixers.(a) For the period of May 5, 2004 through November 17, 2008, ROCKWELL will provideto each clinic purchasing Dri-Sate® Dry Acid, one Dri-Sate Dry Acid Mixer (each, a“Mixer”) as set forth in Exhibit A, and ROCKWELL shall maintain and service eachMixer in accordance with the highest reasonable industry performance standards, atno additional charge to DAVITA. Each clinic which has received a Mixer pursuant tothis Section 4(a) [**](b)      [*
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*]6. Payment Terms. Section 7 of the Agreement is hereby amended and replacedin its entirety with the following:“7. Payment Terms. All purchases by DAVITA of Products pursuant to thisAgreement shall be paid on terms net 30 days. DAVITA may withhold payment on theportion of any invoice for which DAVITA has a bona fide dispute if it (a) pays allundisputed amounts; (b) notifies ROCKWELL that it is disputing charges; and (c)provides a reconciliation of charges and documentation necessary to support itsclaimed adjustment. All other purchase terms and conditions shall be as set forthon Exhibit C.”     7. Failure to Perform Supply Obligations. Section 8(a) of the Agreement is herebyamended and replaced in its entirety with the following:“8. Failure to Perform Supply Obligation.a. In the event ROCKWELL cannot supply or does not deliver any of the Productswithin and for the time period required by this Agreement (and not caused by thenegligence of the non-performing party) (a “Failure to Supply Event”), ROCKWELLcovenants and agrees that it shall (i) give notice as promptly as is practicableunder the circumstances to DAVITA of such Failure to Supply Event, unless an orderof a regulatory agency or other action arising out of patient safety concernsrequires the giving of shorter notice; [*
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*] ROCKWELL further agrees and covenants that during a Failure to Supply Event,DAVITA shall not be subject to the commitment requirements set forth in Section 3(b)of this Agreement.b. ROCKWELL acknowledges and agrees that a breach by ROCKWELL of any of theprovisions of this Section 8 shall constitute a substantial breach forpurposes of Section 9(a) of this Agreement which entitles DAVITA at its soleand absolute discretion to terminate this Agreement pursuant to the provisions ofSection 10 hereof.”     8. Potential Rockwell Clinics. Section 8(b) of the Agreement is hereby deleted in itsentirety.     9. Termination Default. Section 9(a) of the Agreement is hereby amended and replacedin its entirety with the following:“a. substantial breach of the terms of this Agreement, which breach is not cured,corrected or otherwise resolved within thirty (30) days after written notice by thenon-breaching party (setting forth the particulars of the alleged breach) to thebreaching party. A “substantial breach” shall include a failure to perform anymaterial obligation hereunder, including without limitation a failure to pay anyamount due hereunder or under any purchase order issued hereunder when due, otherthan amounts which DAVITA or ROCKWELL disputes in good faith; or.”     10. Termination. Section 10 of this Agreement is hereby amended and replaced in itsentirety with the following:“10. Termination. Upon the occurrence of a Termination Default hereunder,the non-defaulting party may terminate this Agreement immediately upon writtennotice to the defaulting party. [*
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*] Termination of this Agreement shall not relieve either party of obligationsincurred prior to the effective date of termination, including without limitationobligations of payment of monies or credits owed at the time of such termination.The provisions of this Section 10 and of Sections 13 (Confidentiality), 14(Warranties), 15 (Indemnification and Insurance), 20 (Choice of law), 21 (Attorneyfees), 25 (Open Records), 26 (Discounts), and any other provision the context ofwhich shows the parties intended it to survive, shall survive any expiration ortermination of this Agreement.”     11. Product Addition. Section 11 of the Agreement is hereby amended and replaced inits entirety with the following:“11. Product Addition and Product Replacement.a. Throughout the Term, ROCKWELL shall provide to DAVITA the right to purchaseand/or lease all new products manufactured, utilized, licensed, sold or distributedby ROCKWELL or any of its affiliates (including products and product lines acquiredby ROCKWELL or any of its affiliates as a result of an acquisition, merger or othertransaction involving ROCKWELL or any of its affiliates), that are or that becomeCommercially Available and which are not already covered by this Agreement or by anyother agreement, whether written or oral, between the parties (such products arecollectively referred to as “Additional Products” and individually as an “AdditionalProduct”). ROCKWELL agrees to include DAVITA in all of its distributions ofcustomer announcements regarding ROCKWELL’s Additional Products. The purchase pricefor such Additional Products shall be negotiated by the parties in good faith andthe agreed upon purchase price shall be memorialized in writing as a supplement oramendment to this Agreement. For purposes of this Section 11, “CommerciallyAvailable” means any product that is approved by the Food and Drug Administrationand manufactured, utilized, sold or distributed anywhere in the United States byROCKWELL and/or any of its affiliates. If ROCKWELL acquires any Additional Productas a result of an acquisition, merger or other transaction involving ROCKWELL or anyof its affiliates with a person or entity with which DAVITA already has a purchaseor rebate arrangement (a “Prior Agreement”), ROCKWELL covenants and agrees that itshall continue to abide by all of the terms and conditions of such Prior Agreementor if DAVITA requests, such Additional Products shall be included in this Agreementon terms to be negotiated and determined as provided in this Section 11(a).
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b. If at anytime during the Term, ROCKWELL introduces a product or offering that isa replacement for an existing Product covered by this Agreement, whether developedby ROCKWELL or acquired by ROCKWELL in connection with any transaction (a“Replacement Product”), ROCKWELL will allow DAVITA or any of its clinics, asapplicable, to purchase such Replacement Product at the same price as the Product itis replacing or is ultimately intended to replace.”     12. Recall. The Agreement is hereby amended by inserting a new Section 35 titled“Recall” into the Agreement as follows:“35. Recall. In the event ROCKWELL believes in its sole discretion that itmay be necessary to conduct a recall, field correction, market withdrawal, stockrecovery, or other similar action with respect to any of the Products (a “Recall”),ROCKWELL shall immediately notify DAVITA. The parties agree that the final decisionas to and control of the handling of any Recall shall be in ROCKWELL’s solediscretion; providedthat ROCKWELL conducts the Recall in accordancewith any and all applicable legal requirements. In the event that ROCKWELL does notconduct the Recall in accordance with all applicable legal requirements, DAVITAshall have the right to take any and all actions it determines necessary to complywith such requirements, in its sole and absolute discretion. DAVITA shall provideall reasonable assistance requested by ROCKWELL in connection with a Recall. If aRecall arises as a result of the manufacture of any of the Products, ROCKWELL shallreimburse DAVITA for (a) one hundred percent (100%) of the costs incurred by DAVITAto acquire a replacement product for the recalled Product or if a replacementproduct is not available for the recalled Product one hundred percent (100%) of thecosts paid by DAVITA for such recalled Product and (b) all out-of-pocket expensesincurred by DAVITA in connection with such Recall. DAVITA and ROCKWELL shallmaintain records of all sales of the Products and customers sufficient to adequatelyadminister a Recall for the period required by applicable legal requirements.ROCKWELL shall also indemnify and hold the DAVITA Indemnitees harmless from anyclaims, damages, losses, costs or expenses (including reasonable attorneys’ fees)incurred by the DAVITA Indemnitees in connection with such Recall. In the event ofa Recall, neither party shall make any statement to the press or public concerningthe Recall without first notifying the other party and obtaining the other party’sprior written approval of any such statement, which approval shall not beunreasonably, withheld, conditioned or delayed.”     13. Audit Rights. The Agreement is hereby amended by inserting a new Section 36 titled“Audit Rights” into the Agreement as follows:“36. Audit Rights. If DAVITA disagrees with any computation or statementdelivered by ROCKWELL to DAVITA under this Agreement, DAVITA may, within thirty (30)days after the receipt of such computation or statement, audit
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any such computation or statement. DAVITA shall conduct any such audit during suchtimes as may be mutually agreed to by the parties. In the event DAVITA’s auditresults in a number different from that set forth in the computation or statementdelivered by ROCKWELL to DAVITA, DAVITA shall deliver a written notice (an“Objection Notice”) to ROCKWELL setting forth in reasonable detail any and all itemsof disagreement related to such computation or statement. If DAVITA does notdeliver an Objection Notice within the requisite time period, the calculations setforth in any such computation or statement delivered by ROCKWELL to DAVITA shall bedeemed final, conclusive and binding on the parties. ROCKWELL and DAVITA will usetheir commercially reasonable efforts to resolve any disagreements relating to anycomputation or statement, but if they do not obtain a final resolution within twenty(20) days after ROCKWELL has received the Objection Notice, then either ROCKWELL orDAVITA may refer the items in dispute to a nationally recognized firm of independentpublic accountants as to which ROCKWELL and DAVITA mutually agree (the“Firm”), to resolve any remaining disagreements. ROCKWELL and DAVITA willdirect the Firm to render a determination within twenty (20) days of its retention,and ROCKWELL and DAVITA and their respective agents will cooperate with the Firmduring its engagement. The determination of the Firm will be conclusive and bindingupon ROCKWELL and DAVITA. ROCKWELL and DAVITA shall bear that percentage of thefees and expenses of the Firm equal to the proportion of the dollar value of theunresolved disputed issues determined in favor of the other party.”     14. Corporate Integrity Agreement. The Agreement is hereby amended by inserting a newSection 37 titled “Corporate Integrity Agreement” into the Agreement as follows:“37. Corporate Integrity Agreement. The parties, as applicable, herebyacknowledge and agree as follows:     (a) ROCKWELL acknowledges that DVA Renal Healthcare, Inc. (“DVA Healthcare”), asubsidiary of DAVITA, is under a Corporate Integrity Agreement (the “CIA”) with theOffice of the Inspector General of the Federal Department of Health and HumanServices, and that such CIA imposes various reporting and operational compliancerelated obligations on DVA Healthcare. To the extent not otherwise set forthherein, ROCKWELL agrees to cooperate with DVA Healthcare in compliance with therequirements of such CIA, as such requirements may apply to the performance ofROCKWELL’s obligations under this Agreement.     (b) ROCKWELL hereby certifies that it will comply with the terms of DVAHealthcare’s Corporate Compliance Program, including any training required to beprovided thereunder by DVA Healthcare to employees and certain contractors, and DVAHealthcare’s Compliance Critical Concepts and policies and procedures related tocompliance with 42 U.S.C. § 1320a-7b(b) (the “Anti-Kickback Statute”), a copy ofeach of which will be provided to ROCKWELL, in
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each case as applicable to the performance of ROCKWELL’s obligations under thisAgreement.     (c) ROCKWELL and DAVITA (on behalf of DVA Healthcare) agree and certify thatthis Agreement is not intended to generate referrals for services or supplies forwhich payment may be made in whole or in part under any federal healthcare program.     (d) ROCKWELL certifies that it will abide by the terms of the Anti-KickbackStatute in connection with the performance of any of its obligations under thisAgreement.”     15. Availability of Products. The Agreement is hereby amended by inserting a newSection 38 titled “Availability of Products” into the Agreement as follows:“38. Availability of Products. ROCKWELL agrees and covenants to DAVITA thatit shall, at all times during the Term, to allow for the continuous anduninterrupted supply of each of the Products to DAVITA to enable the physicians atthe dialysis clinics owned and managed by DAVITA to treat their patients [**] During the Term, ROCKWELL and DAVITA agree to continuously work together and usetheir best efforts to increase and improve the inventory reserve of each of theProducts maintained by ROCKWELL for use exclusively by DAVITA.”     16. Payment Terms. The following language included in Section 7 of the FirstAmendment is hereby deleted in its entirety: “terms are net 30 days, there is no discount.”     17. Exhibit A. “Exhibit A-2” of the Agreement is hereby deleted in its entirety andreplaced with a new “Exhibit A” attached hereto as Exhibit A.     18. Exhibit B. “Exhibit B-2” of the Agreement is hereby deleted in its entirety andreplaced with a new “Exhibit B” attached hereto as Exhibit B.     19. Exhibit C. “Exhibit C-2” of the Agreement is hereby deleted in its entirety andreplaced with a new “Exhibit C” attached hereto as Exhibit C.     20. No Other Changes. Except as specifically amended in this Second Amendment, allother terms and conditions of the Agreement shall remain unchanged and in full force and effect andshall govern and apply to all matters contemplated by this Second Amendment.     21. Governing Law. All issues and questions concerning the construction, validity,enforcement and interpretation of this Second Amendment shall be governed by and construed in
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accordance with the laws of the State of Delaware, without giving effect to any choice of lawor 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 Stateof Delaware.     22. Severability. Whenever possible, each provision of this Second Amendment shall beinterpreted in such manner to be effective and valid under applicable law, but if any provision ofthis Second Amendment is held to be invalid, illegal or unenforceable in any respect under anyapplicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability willnot affect any other provision or any other jurisdiction, but this Second Amendment will bereformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceableprovision had never been contained herein.     23. Counterparts; Facsimile/PDF Signatures. This Second Amendment may be executed inany number of counterparts and any party to this Second Amendment may execute any such counterpart,each of which when executed and delivered shall be deemed to be an original and all of whichcounterparts taken together shall constitute but one and the same instrument. This SecondAmendment shall become binding when one or more counterparts taken together shall have beenexecuted and delivered by the parties. The parties hereto agree that facsimile or PDF transmissionof original signatures shall constitute and be accepted as original signatures.[Signature Page Follows]
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     IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to the SupplyAgreement to be executed by their respective duly authorized representatives and effective as ofthe Second Amendment Effective Date.**DAVITA:** DAVITA INC. By: /s/ LeAnne Zumwalt