their requirements for items such as the Products, and that each of the Non-Committed DaVitaFacilities may purchase other products from other vendors and suppliers performing some or all ofthe same functions as the Products.     1.3 Monthly Reports. Each month during the Term, Rockwell shall deliver a report toDaVita in accordance with DaVita’s specifications, which specifications will be given to Rockwellby DaVita. Each monthly report, at a minimum, shall (a) show all purchases of the Products made byeach DaVita Facility by Product or Product categories, (b) include year-to-date purchase figuresfor each DaVita Facility, and (c) include any other information reasonably requested by DaVitarelating 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, Rockwellor 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 otherinformation relating to any particular Product (a “Product Labeling Event”), Rockwell shallwithin five (5) Business Days of any such Product Labeling Event, deliver a written notice toDaVita which: (a) describes in reasonable detail any such Product Labeling Event, (b) explains inreasonable detail the reasons and the causes for any such Product Labeling Event, and (c) includesa copy of such amendment, change, revision and/or modification to the product labeling, safetyinformation, and/or any other information relating to any such particular Product (the “ProductLabel Change Notice”). Rockwell shall respond to any questions, inquiries or requests foradditional information that DaVita or any DaVita Facility may have with respect to any ProductLabel Change Notice and shall assist DaVita and the DaVita Facilities in understanding how, if atall, any Product Labeling Event may affect or have an impact on DaVita’s or any DaVita Facilities’use of the Products.**ARTICLE II****TERM AND TERMINATION**     2.1 Term. This Agreement shall commence on the Effective Date, and shall continue ineffect until December 31, 2013 (the “Initial Term”), unless sooner terminated in accordancewith the provisions of this Article II.     2.2 Renewal. If, upon the expiration of the Initial Term, the parties hereto have notnegotiated, 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 partyhereto providing ninety (90) days prior written notice of termination to the other party hereto orthe parties entering into a new agreement relating to the subject matter hereof or an extension ofthis 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) Immediately in the event of a breach by Rockwell of any of its covenants and obligationsset forth in Articles VI or IX; or     (b) Upon thirty (30) days prior written notice to Rockwell, in the event of a breach byRockwell of any representation, warranty, covenant or obligation of Rockwell contained in thisAgreement (other than the covenants and obligations set forth in Articles VI orIX), and Rockwell fails to cure such breach within thirty (30) days following the date ofsuch notice; or
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     (c) Immediately upon the occurrence of any of the following: (i) Rockwell files a voluntarypetition in bankruptcy seeking protection from creditors (a “Bankruptcy Filing”); or (ii)Rockwell fails to contest an involuntary Bankruptcy Filing made against it or, despite contestingsuch 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 ofRockwell; or (iv) Rockwell fails to pay its debts as they become due or admits its inability to doso (each of the foregoing, an “Insolvency Event”); or     (d) Immediately in the event there is a change in Rockwell’s status which excludes it fromparticipation 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 asfollows:     (a) Immediately in the event of a breach by DaVita of any of its covenants and obligations setforth in Article IX; or     (b) Upon thirty (30) days prior written notice to DaVita, in the event of a breach by DaVitaof 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 thirty (30) days following the date of such notice; or     (c) Immediately upon the occurrence of an Insolvency Event with respect to DaVita; or     (d) Upon at least nine (9) months prior written notice to DaVita in the event that Rockwelldecides to either: [* *]     (e) Upon sixty (60) days advance written notice to DaVita in the event of a breach by DaVitaof Section 17.1, and DaVita fails to cure such with breach within sixty (60) days followingthe date of such notice; or     (f) Immediately in the event there is a change in DaVita’s status which excludes it fromparticipation 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 eitherparty hereto from any liability or obligation which, at the time of such termination, has alreadyaccrued or which thereafter may accrue in respect to any act or omission of any party hereto priorto 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 tosurvive the termination.**ARTICLE III****PURCHASE PRICE AND OTHER PRICING COVENANTS**     3.1 Purchase Price. The purchase price for each Product is set forth on ExhibitA (collectively, the “Purchase Price”). The Purchase Price includes [* *] to thestates set forth on Exhibit B attached hereto (the “Territory”). In the event thatDaVita and/or any DaVita Facility requires any Product to be shipped outside of the Territory,DaVita and Rockwell shall [* *]. All orders for each Product by DaVita and/or any DaVita Facilityshall be subject to [* *] set forth on Exhibit C attached hereto. In the event that DaVitaand/or any DaVita Facility desires to order an amount of any Product [* *].
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     3.2 Taxes. Rockwell covenants and agrees that neither DaVita nor any DaVita Facilityshall 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 salestaxes, with respect to the purchase and sale of the Products.     3.3 Pricing Covenant. Rockwell represents and warrants to DaVita that the PurchasePrice for each Product and all other terms of sale offered to DaVita and the DaVita Facilities foreach Product [* *].     3.4 Price Increase. At any time on or after [* *], Rockwell may submit a writtennotice to DaVita requesting a meeting with DaVita to discuss and negotiate in good faith possibleadjustments to the Purchase Price of any of the Products. The parties shall meet at a mutuallyagreeable time and location within fifteen (15) days of such meeting request. During such meeting,if Rockwell requests an increase to the Purchase Price of any Product, it shall deliver to DaVitawithin five (5) days of such meeting or at such meeting, reasonably detailed documentation whichdocuments and indicates that [* *]. In the event the parties are not able to reach a mutuallyagreeable adjustment to the Purchase Price of any of the Products for which Rockwell requested anadjustment within thirty (30) days of the meeting, then either party hereto shall have the right toterminate this Agreement upon ninety (90) days’ prior written notice to the other party hereto.     3.5 Warrant. As further consideration for entering into this Agreement, Rockwellagrees 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’scommon stock (the “Warrant Shares”). The Warrant Shares will have an exercise price equalto one hundred ten percent (110%) of the closing bid price per share of Rockwell’s common stock asquoted on NASDAQ on (a) the trading date immediately preceding the date on which this Agreement isexecuted by the parties if such execution occurs at or before 4:00 p.m. Eastern time or (b) thedate 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) thetermination of this Agreement by Rockwell pursuant to Section 2.4. The Warrant will becomeexercisable on the first day immediately following the end of the Initial Term and may be exercisedin whole or in part at any time after it becomes exercisable until its expiration by the submissionof an exercise notice in the form attached as an exhibit to the Warrant. If the Warrant expiresprior to the date it becomes exercisable, the Warrant shall not be exercisable. The Warrant Sharesissuable upon exercise of the Warrant shall bear a legend restricting transfer. The WarrantsShares 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 toDaVita and/or the DaVita Facilities pursuant to the terms of each purchase order submitted byDaVita or any DaVita Facility. DaVita and/or the DaVita Facilities may submit an order for thepurchase of any of the Products via facsimile at [* *]. Rockwell shall provide accurate andon-time deliveries of all orders placed**,**in accordance with any special instructions that may beincluded in the purchase order. [* *].     4.2 Dedicated Customer Service Representatives. Rockwell hereby agrees and covenantsthat it shall provide DaVita with reasonable access to one or more dedicated customer servicerepresentatives (each a, “Service Representative”) who shall be available to promptlyrespond to and
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address any issues that DaVita and/or any DaVita Facility may have with respect to any of theProducts (the “Customer Services”). Rockwell further agrees and covenants that eachService Representative shall perform the Customer Services in the highest professional manner.     4.3 Return Goods Policy. Rockwell hereby represents and warrants to DaVita thatattached hereto as Exhibit D is a true, correct and complete copy of Rockwell’s “ReturnGoods Policy” (the “Return Goods Policy”). Notwithstanding anything to the contrary setforth in the Return Goods Policy, DaVita or a DaVita Facility, as applicable, reserves the right toinspect all Products and to reject any or all of the Products which are, in DaVita’s or a DaVitaFacility’s, as applicable, sole and absolute discretion, incorrectly shipped, defective, damaged,contaminated or otherwise not in compliance with the warranties granted or assigned hereunder. Anyreturn pursuant to this Section 4.3 by DaVita and/or any DaVita Facility shall be sent backto Rockwell, [* *]. DaVita or any DaVita Facility shall also have the right to return any of theProducts pursuant to the terms and conditions set forth in the Return Goods Policy that do notconflict 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 bepaid on terms [* *]. DaVita or any DaVita Facility may withhold payment on the portion of anyinvoice 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 toRockwell a reconciliation of charges and any documentation necessary to support its claimedadjustment. The parties hereto agree to use their commercially reasonable efforts to resolve anysuch invoice dispute within thirty (30) days of Rockwell’s receipt of such invoice dispute noticefrom 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 timeperiod required by DaVita or any DaVita Facility, as applicable, including as a result of a forcemajeure 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 othercircumstances beyond the reasonable control of the party asserting it) (a “Failure to SupplyEvent”), Rockwell covenants and agrees that it shall (a) give notice as promptly as ispracticable under the circumstances to DaVita of such Failure to Supply Event, unless an order of aregulatory agency or other action arising out of patient safety concerns requires the giving ofshorter notice; [* *]. Rockwell further covenants and agrees that during the period that a Failureto Supply Event is occurring, none of the Committed DaVita Facilities shall be subject to theProduct Commitment.**ARTICLE VII****INVENTORY RESERVE COVENANTS**     Rockwell agrees and covenants to DaVita that it shall, at all times during the Term, to allowfor the continuous and uninterrupted supply of each of the Products to DaVita and the DaVitaFacilities to
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enable the physicians at the DaVita Facilities to treat their patients: (a) maintain andreserve for use exclusively by DaVita and the DaVita Facilities an amount of inventory of each ofthe Products equal to [* *] and (b) have outstanding purchase orders with its suppliers for rawmaterials and products in amount sufficient to allow Rockwell to manufacture an amount of each ofthe Products equal to [* *] (the “Inventory Reserve Covenants”). [* *]. Rockwell andDaVita agree to continuously work together and use their best efforts to increase and improve theInventory Reserve Covenants for each Product maintained by Rockwell for use exclusively by DaVitaand the DaVita Facilities.**ARTICLE VIII****ADDITIONAL PRODUCTS AND REPLACEMENT PRODUCTS**     8.1 Additional Products. Throughout the Term, Rockwell shall provide to DaVita andthe 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 productsand 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 becomeCommercially Available and which are not already covered by this Agreement or by any otheragreement, whether written or oral, between the parties hereto (such products are collectivelyreferred to as “Additional Products” and individually as an “Additional Product”).Rockwell agrees to include DaVita in all of its and its Affiliates distributions of customerannouncements regarding Rockwell’s or its Affiliates’ Additional Products. The purchase price forany such Additional Products shall be negotiated by the parties hereto in good faith and the agreedupon purchase price shall be memorialized in writing as a supplement or amendment to thisAgreement. Rockwell covenants and agrees that it shall only make an offer for the sale of anyAdditional Product(s) to DaVita’s Vice-President of Clinical Operations, Chief Medical Officer, orVice-President of Purchasing, and not to any DaVita Facility directly; providedthat the purchase of any Additional Product by DaVita or any DaVita Facility through aRockwell product catalog made generally available to the dialysis community shall not be a breachby Rockwell of this Section 8.1. If Rockwell or any of its Affiliates acquires anyAdditional Product(s) as a result of an acquisition, merger or other transaction involving Rockwellor 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 termsand conditions of such Prior Agreement or if DaVita requests, such Additional Product(s) shall beincluded in this Agreement on terms to be negotiated and determined by the parties hereto asprovided in this Section 8.1.     8.2 Replacement Products. If at anytime during the Term, Rockwell or any of itsAffiliates introduces a product or offering that is a replacement for an existing Product coveredby this Agreement, whether developed by Rockwell or any of its Affiliates or acquired by Rockwellor 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, asapplicable, to purchase such Replacement Product at the same price as the Product it is replacingor is ultimately intended to replace.**ARTICLE IX****CONFIDENTIAL INFORMATION COVENANTS**     9.1 Confidential Information.
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     (a) No Disclosure of Confidential Information. The Non-Disclosing Party (as definedin Article XVIII) agrees that in connection with the transactions contemplated by thisAgreement and the relationship of the parties hereto, it will have access to ConfidentialInformation of the Disclosing Party (as defined in Article XVIII) and that suchConfidential Information is vital, sensitive, confidential and proprietary to the Disclosing Party.Therefore, the Non-Disclosing Party agrees that during the Term and for the longest time permittedunder applicable law after the Term, that it will (i) hold any Confidential Information deliveredor communicated to it by the Disclosing Party in the strictest confidence, including taking allreasonable precautions to prevent the inadvertent disclosure of the Confidential Information to anyunauthorized third party or parties and (ii) not, at any time without the Disclosing Party’sexpress written consent, which consent may be withheld by the Disclosing Party in its sole andabsolute discretion (A) disclose, reproduce, display, perform, record, broadcast, transmit,distribute, modify, translate, combine with other information or materials, create derivative worksbased on, exploit commercially or otherwise use the Confidential Information in any manner ormedium whatsoever, (B) disclose or publicize any of the Confidential Information or the terms ofthis Agreement to any third party or parties, or (C) discuss with, or otherwise disclose or revealto, any third party or parties any information relating to the Disclosing Party’s business or theNon-Disclosing Party’s duties or responsibilities to the Disclosing Party, regardless of whethersuch information constitutes Confidential Information. Notwithstanding anything to the contraryherein, the Non-Disclosing Party shall have the right to disclose any of the terms or provisions ofthis Agreement upon any determination by the Non-Disclosing Party that such disclosure is necessaryin connection with the compliance by the Non-Disclosing Party with any legal requirement, includingapplicable obligations and requirements pursuant to federal and state securities laws and listingstandards.     (b) Retention and Destruction of Confidential Information. The Non-Disclosing Partyshall 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 earliertermination of this Agreement for any reason without the prior written consent of the DisclosingParty, 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 promptlyredeliver to the Disclosing Party or destroy all written materials containing or reflecting anyinformation contained in the Confidential Information (including all copies, extracts or otherreproductions) 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 basedon the information contained in the Confidential Information. Notwithstanding the return ordestruction of the Confidential Information, the Non-Disclosing Party will continue to abide by itsobligations of confidentiality and other obligations hereunder.     (c) Exceptions to Confidential Information. Notwithstanding anything to the contraryherein, Confidential Information shall not include any information that (i) was already known tothe 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 theNon-Disclosing Party, or (iii) is received by the Non-Disclosing Party from a third-party who has alegal right to provide such information to the Non-Disclosing Party.     (d) Use of Trademarks and Other Intellectual Property. Each party hereto agrees notto internally or externally use, release, publish or distribute any materials or information(including advertising and promotional materials) containing the names, tradenames, or trademarksor other intellectual property right of the other party hereto without the express prior writtenconsent of such other party hereto.
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     (e) Disclosures of Confidential Information Required By Law. In the event that theNon-Disclosing Party is required by law (by oral questions, interrogatories, request forinformation or documents, subpoena, civil investigative demand or any other similar process) todisclose any Confidential Information, the Non-Disclosing Party agrees to provide the DisclosingParty with prompt written notice of such request(s) (but in no event later than five (5) days afterthe receipt of such request(s)) and shall consult with the Disclosing Party as to the advisabilityof taking legally advisable steps to resist or narrow such request(s). Notwithstanding theforegoing, if disclosure of such Confidential Information is required by law, the Non-DisclosingParty will (i) furnish only that portion of the Confidential Information which, in the reasonableopinion of the Non-Disclosing Party’s counsel, after consultation with the Disclosing Party’scounsel, it is legally obligated to disclose, and (ii) use its best efforts to obtain an order orother reliable assurances that confidential, non-public treatment will be accorded to all suchdisclosed Confidential Information.     (f) Employees, Agents, Representatives, Etc. For purposes of this Section9.1, any Confidential Information received by any director, officer, member, manager, partner,employee, agent, subcontractor, advisor or representative of the Non-Disclosing Party pursuant tothe terms and conditions of this Agreement shall be deemed received by the Non-Disclosing Party andany breach by such persons of this Section 9.1 shall be deemed a breach by theNon-Disclosing Party of this Agreement.     9.2 Enforcement. The Non-Disclosing Party expressly acknowledges and agrees that therestrictions contained herein are reasonable in terms of duration and scope restrictions and arenecessary to protect the Confidential Information and the goodwill of the business of theDisclosing Party, and the Non-Disclosing Party agrees that it shall not challenge the validity orenforceability of the restrictions contained herein. The Non-Disclosing Party agrees that moneydamages would not be an adequate remedy for any breach of this Article IX. Therefore, inthe event of a breach or threatened breach of the provisions of this Article IX by theNon-Disclosing Party, the Disclosing Party may, in addition to other rights and remedies existingin its favor, apply to any court of competent jurisdiction for specific performance and/orinjunctive or other relief in order to enforce or prevent any violation of the provisions of thisArticle 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 andauthority 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 transactionscontemplated hereby have been duly and validly authorized by all necessary corporate action on thepart of Rockwell.     10.2 Execution; Delivery; Binding Effect. This Agreement has been duly executed anddelivered 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 Agreementby 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 ofany law, rule, regulation, ordinance, order, writ, injunction, judgment, or decree of anyGovernmental Authority or of any arbitration award to which Rockwell is a party or by which any ofthe properties or assets of Rockwell are or may be bound; or (b) conflict with, contravene orviolate any agreement, understanding
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or arrangement to which Rockwell is a party or by which any of the properties or assets ofRockwell are or may be bound.     10.4 Title. Rockwell possesses good and marketable title to all of the Products freeand clear of any and all liens, mortgages, charges, security interests, pledges or otherencumbrances or adverse claims of any nature, whether arising by agreement, operation of law orotherwise (collectively, “Liens”). Rockwell has the right to convey and in connection withthe 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 clearof 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 toperform its obligations hereunder during the Term. Rockwell is and has at all times been in andduring the Term shall be in compliance with all federal, state and local laws, statutes, rules, andregulations 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 themeaning of the FFDCA, or within the meaning of any applicable state or municipal law, or is or willbe a product which may not be introduced into interstate commerce. During the Term, Rockwell shallimmediately inform DaVita following its receipt of any information which states that the integrityor 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 DaVitaFacility hereunder is suspected of being counterfeit, stolen, adulterated, misbranded or otherwisean 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’ useof the Products in accordance with their intended use shall not infringe upon any ownership rightsof any other Person or upon any patent, copyright, trademark, or other intellectual property orproprietary right or trade secret of any third party.     10.6 Products. Each Product purchased during the Term (a) is and shall bemanufactured in accordance with its packaging, (b) is and shall be manufactured, handled, storedand transported in accordance with all applicable United States, state and local laws andregulations pertaining thereto, including to the extent applicable, the FFDCA and implementingregulations and FDA approved Good Manufacturing Practices, (c) meets all specifications foreffectiveness and safety as required by the FDA, (d) is fit for the indications described in itslabeling, and (e) is labeled in compliance with all applicable laws. Each Product is and will (i)be of the kind and quantity specified herein, (ii) be of safe and merchantable quality, (iii) befree of defects in design, materials, manufacture or workmanship when delivered, (iv) [* *] (v)conform to its specifications as written or published, unless otherwise agreed to by the partieshereto. In the event any Product, or any component of a Product, is not manufactured by Rockwell,Rockwell hereby assigns or agrees to assign (to the extent assignable) to DaVita all suchmanufacturer warranties, copies of which shall be provided by Rockwell to DaVita upon request.     10.7 Expired Product. Rockwell will use its best efforts not to ship to DaVita or anyDaVita Facility expired Product [* *], unless agreed to in writing by DaVita. In the eventRockwell ships to DaVita or any DaVita Facility expired Product [* *], DaVita shall have the rightto return such Product to Rockwell at Rockwell’s sole cost and expense.     10.8 Health Care Programs. Rockwell is not currently (a) named on any of the followinglists (i) HHS/OIG List of Excluded Individuals/Entities, (ii) GSA List of Parties Excluded fromFederal Programs or (iii) OFAC “SDN and Blocked Individuals” and (b) under investigation orotherwise aware
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of any circumstances which would result in Rockwell being excluded from participation in anyfederal 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 andeffect notwithstanding transfer of title to any Product to or by DaVita or any DaVita Facility toany other 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 andauthority 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 transactionscontemplated hereby have been duly and validly authorized by all necessary corporate action on thepart of DaVita.     11.2 Execution; Delivery; Binding Effect. This Agreement has been duly executed anddelivered by DaVita, and constitutes the legal, valid and binding obligation of DaVita, enforceableagainst DaVita in accordance with its terms.     11.3 No Conflicts. Neither the execution, delivery or performance of this Agreementby 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 ofany law, rule, regulation, ordinance, order, writ, injunction, judgment, decree of any GovernmentalAuthority or of any arbitration award to which DaVita is a party or by which any of the propertiesor assets of DaVita are or may be bound; or (b) conflict with, contravene or violate any provisionof any agreement, understanding or arrangement to which DaVita is a party or by which any of theproperties or assets of DaVita are or may be bound.     11.4 Compliance with Laws. DaVita has all rights, licenses, permits and consentsnecessary to perform its obligations hereunder during the Term. DaVita is and has at all timesbeen 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 obligationsunder this Agreement.     11.5 Health Care Programs. DaVita is not currently (a) named on any of the followinglists (i) HHS/OIG List of Excluded Individuals/Entities, (ii) GSA List of Parties Excluded fromFederal Programs or (iii) OFAC “SDN and Blocked Individuals” and (b) under investigation orotherwise aware of any circumstances which would result in DaVita being excluded from participationin 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”) harmlessfrom and against any and all causes of action (at law or in equity), actions, claims, costs, suits,liabilities, judgments,
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settlements, demands, losses, damages, proceedings and/or expenses of all kinds (includingreasonable attorneys’ fees, witnesses’ fees, investigation expenses, and any other expensesincident thereto) (collectively, “Losses”) that the DaVita Indemnitees may sustain or incuras a result of: (a) any breach of any representation or warranty made by Rockwell in this Agreementor in materials furnished by Rockwell for DaVita’s and the DaVita Facilities’ use; (b) any breachby Rockwell of any of its covenants or obligations in this Agreement; (c) the use of any Product byDaVita and/or any DaVita Facility in accordance with any such Products’ labeling and instructionsfor use; (d) any defect in the design or manufacture of any Product (including claims for propertydamage, loss of life, and bodily injury); (e) any Recall (as defined in Article XIII) withrespect to any Product; or (f) any negligent, reckless, wanton, malicious or tortious conduct byRockwell in connection with the transactions contemplated by this Agreement. Notwithstanding theforegoing, in no event shall Rockwell have an obligation to defend, indemnify or hold any of theDaVita Indemnitees harmless hereunder to the extent any such Losses were caused by the solenegligence or willful misconduct of any such DaVita Indemnitees.     12.2 Indemnification of Rockwell. DaVita agrees to defend, indemnify and holdRockwell and its Affiliates and each of their respective directors, officers, members, managers,partners, employees and agents (collectively, the “Rockwell Indemnitees”) harmless from andagainst any and all Losses that the Rockwell Indemnitees may sustain or incur as a result of: (a)any breach of any representation or warranty made by DaVita in this Agreement; (b) any breach byDaVita of any of its covenants or obligations in this Agreement; (c) the use of any Product byDaVita and/or any DaVita Facility not in accordance with any such Products’ labeling andinstructions for use; (d) any DaVita Facilities’ negligence or misconduct in the “Administration”of a Product to its patients; or (e) any negligent, reckless, wanton, malicious or tortious conductby DaVita in connection with the transactions contemplated by this Agreement. For purposes of thisSection 12.2, the “Administration” of a Product by a DaVita Facility shall mean thedispensing and handling by such DaVita Facility and its employees of such Product and the actualadministration of such Product to patients by such DaVita Facility and its employees, but shallexclude physician prescriptions of such Product to patients. Notwithstanding the foregoing, in noevent shall DaVita have an obligation to defend, indemnify or hold any of the Rockwell Indemniteesharmless hereunder to the extent any such Losses were caused by the sole negligence or willfulmisconduct of any such Rockwell Indemnitees.     12.3 Indemnification Procedure for Third Party Claims. If any DaVita Indemnitee orany Rockwell Indemnitee entitled to indemnification under this Article XII (the“Indemnified Party”) receives notice of the assertion of any claim, or the commencement ofany suit, action or proceeding by any Person who is not a party hereto or an Affiliate of a partyhereto (a “Third Party Claim”) against such Indemnified Party, the Indemnified Party shallgive written notice regarding such Third Party Claim to the party hereto that is required toprovide indemnification under this Article XII (the “Indemnifying Party”) withinthirty (30) days after learning of such Third Party Claim. The Indemnifying Party shall have theright, upon written notice to the Indemnified Party (the “Defense Notice”) within thirty(30) days after receipt from the Indemnified Party of notice of such Third Party Claim, whichDefense Notice by the Indemnifying Party shall specify the counsel it will appoint to defend suchThird Party Claim (“Defense Counsel”), to conduct at its expense the defense against suchThird 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 approvethe Defense Counsel, which approval shall not be unreasonably withheld, conditioned or delayed bythe Indemnified Party and (b) as a condition precedent to the Indemnifying Party’s right to assumecontrol of such defense, the Indemnifying Party must first enter into an agreement with theIndemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuantto which the Indemnifying Party agrees to be fully responsible for any and all Losses relating tosuch suit Third Party Claim and unconditionally guarantees the payment and performance of any andall Losses which may arise with respect to such Third Party Claim, subject to the terms and conditions set
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forth in this Section 12. TheIndemnifying Party shall not have the right to assume control of, but may participate in, and theIndemnified 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 performanceagainst the Indemnified Party, (ii) involves criminal or quasi-criminal allegations against theIndemnified Party, (iii) if unsuccessful would set a precedent that would materially interferewith, or have a material adverse effect on, the business or financial condition of the IndemnifiedParty, or (iv) imposes liability in the part of the Indemnified Party for which the IndemnifiedParty is not entitled to indemnification under this Article XII. If the Indemnifying Partyis permitted to assume and control the defense of any Third Party Claim and elects to do so, theIndemnified Party shall have the right to employ counsel separate from counsel employed by theIndemnifying Party in any such Third Party Claim and to participate in the defense thereof, but thefees and expenses of such counsel employed by the Indemnified Party shall be at the expense of theIndemnified Party unless (A) the employment thereof has been specifically authorized by theIndemnifying Party in writing, (V) the Indemnified Party has been advised by counsel that areasonable likelihood exists of a conflict of interest between the Indemnifying Party and theIndemnified Party, or (C) the Indemnifying Party has failed to assume the defense and employcounsel, in which case the fees and expenses of the Indemnified Party’s counsel shall be paid bythe Indemnifying Party. No Indemnifying Party shall consent to the entry of any judgment or enterinto any settlement of any Third Party Claim without the prior written consent of the IndemnifiedParty if (w) such judgment or settlement would lead to liability or create any financial or otherobligation on the part of the Indemnified Party for which the Indemnified Party is not entitled toindemnification hereunder, (x) such judgment or settlement would result in the finding or admissionof any violation of any federal, state or local law, statute, ordinance or regulation, (y) suchjudgment or settlement does not include as an unconditional term thereof the giving by eachclaimant or plaintiff to each Indemnified Party of a release from all liability in respect to suchThird Party Claim, or (z) as a result of such judgment or settlement, injunctive or other equitablerelief would be imposed against the Indemnified Party. In the event that the Indemnifying Partyfails to give the Defense Notice within thirty (30) days of receiving notice of such Third PartyClaim from the Indemnified Party, it shall be deemed to have elected not to conduct the defense ofsuch Third Party Claim, or in the event the Indemnifying Party does deliver a Defense Notice withinthirty (30) days of receiving notice of such Third Party Claim from the Indemnified Party andthereby elects to not conduct the defense of such Third Party Claim, then in either such event theIndemnified Party shall have the right to conduct and control the defense of such Third Party Claimin good faith and to compromise and settle such Third Party Claim or consent to the entry of ajudgment of such Third Party Claim in good faith without the prior consent of the IndemnifyingParty. A failure by the Indemnified Party to give timely, complete or accurate notice as providedin this Section 12.3 will not affect the rights or obligations of the Indemnifying Partyexcept and only to the extent that, as a result of such failure, the Indemnifying Party entitled toreceive such notice was deprived of its right to recover any payment under its applicable insurancecoverage or was otherwise directly and materially damaged as a result of such failure to givetimely notice.     12.4 Indemnification Procedure for Direct Claims. In the event the Indemnified Partyshould have a claim against the Indemnifying Party hereunder which does not involve a Third PartyClaim (a “Direct Claim”), such Indemnified Party shall transmit to the Indemnifying Party awritten notice (the “Direct Indemnification Notice”) containing an estimate of the amountof damages attributable to such Direct Claim and the basis of such Indemnified Party’s request forindemnification under this Article XII within thirty (30) days after learning of suchDirect Claim. If the Indemnifying Party does not notify such Indemnified Party in writing withinthirty (30) days from its receipt of the Direct Indemnification Notice that the Indemnifying Partydisputes the Direct Claim set forth in such Direct Indemnification Notice, the Direct Claimspecified by such Indemnified Party in such Direct Indemnification Notice shall be deemed aliability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed the Direct
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Claim set forth insuch Direct Indemnification Notice, as provided in this Section 12.4, such Direct Claim setforth in such Direct Indemnification Notice shall be resolved by litigation.     12.5 Insurance. Each party hereto agrees that it shall secure and maintain in fullforce and effect throughout the Term (and following termination, to cover any claims or liabilitiesarising from this Agreement) commercial general liability insurance, which includes contractualliability coverage, product liability (only in the case of Rockwell) and workers’ compensationinsurance, to cover any claims or liabilities arising from this Agreement. Such commercial generalliability insurance shall be in an amount reasonably satisfactory to the other party hereto. Anylimits on either party’s insurance coverage shall not be construed to create a limit on itsliability with respect to any of its obligations hereunder. Each party hereto shall name the otherparty as an additional insured on such party’s commercial general liability insurance policy. Suchcommercial general liability insurance policy shall provide at least thirty (30) days prior writtennotice to the other party hereto of the cancellation, non-renewal or substantial modificationthereof. Each party hereto shall supply certificates of insurance to the other party hereto uponthe other party’s request.**ARTICLE XIII****RECALL**     In the event the FDA initiates a mandatory recall (i.e. the correction or removal of aProduct) 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 othersimilar action with respect to any of the Products (a “Recall”), Rockwell shall immediatelynotify DaVita of such Recall. The parties hereto agree that the final decision as to and controlof the handling of any Recall shall be in Rockwell’s sole discretion; providedthatRockwell conducts any such Recall in accordance with any and all applicable legal requirements andgeneral guidance issued by the FDA. In the event that Rockwell does not conduct a Recall, clearlyand without dispute, in accordance with all applicable legal requirements and general guidanceissued by the FDA, [* *]. DaVita shall provide all reasonable assistance requested by Rockwell inconnection with a Recall. In the event of a Recall with respect to any Product, Rockwell shallreimburse DaVita for: [* *]. DaVita and Rockwell shall maintain records of all sales of theProducts and customers who received such Products so as to enable Rockwell to adequately administera Recall with respect to any of the Products in accordance with applicable legal requirements andgeneral guidance issued by the FDA. In the event of a Recall, neither party hereto shall make anystatement to the press or public concerning such Recall without first notifying the other partyhereto and obtaining such other party’s prior written approval of any such statement, whichapproval shall not be unreasonably withheld, conditioned or delayed. Any return by DaVita or anyDaVita Facility pursuant to this Article XIII shall be sent back to Rockwell, [* *].**ARTICLE XIV****OPEN RECORDS AND DISCOUNTS**     14.1 Open Records. To the extent required by §1861(v)(1)(I) of the Social SecurityAct, 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 anyrecords necessary to verify the nature and extent of costs incurred pursuant to this Agreementduring the Term and for four (4) years following the last date any Products are furnished byRockwell to DaVita or any DaVita Facility under this Agreement. If Rockwell carries out itsobligations under this Agreement through a subcontractworth Ten Thousand Dollars ($10,000) or more over a twelve (12) month period with a related
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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 authorizedrepresentatives to the related organization’s books and records. Nothing in this Section14.1 is intended to waive any right either party hereto may have under any applicable laws orregulations to retain in confidence information included in records so requested.     14.2 Discounts. Any discounts, rebates, incentives, and/or other reductions in priceissued by Rockwell to DaVita and/or any DaVita Facility under this Agreement may constitute adiscount within the meaning of 42 U.S.C. §1320a-7b(b)(3)(A). DaVita and the DaVita Facilities mayhave 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 orcharge based reimbursement to DaVita and/or any such DaVita Facility for the items to which suchdiscounts, rebates, incentives and/or other reductions in price apply. In order to assist DaVita’sand the DaVita Facilities’ compliance with any such obligations, Rockwell agrees that it shallfully and accurately report all discounts, rebates, incentives and/or other reductions in price onthe invoices, coupons or statements submitted to DaVita or any DaVita Facility and inform DaVitaand/or any such DaVita Facility of their obligations to report such discounts, rebates, incentivesand/or other reductions in price. In the event the value of any discounts, rebates, incentivesand/or other reductions in price are not known at the time of sale, Rockwell shall fully andaccurately report the existence of such discounts, rebates, incentives and/or other reductions inprice on the invoices, coupons or statements submitted to DaVita and/or any DaVita Facility, informDaVita 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 DaVitaFacility with documentation of the calculation of such discounts, rebates, incentives and/or otherreductions 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 provideto DaVita and/or any DaVita Facility any other information that DaVita and/or any DaVita Facilitymay request that is necessary for them to obtain in order to comply with any such obligations, andRockwell shall refrain from doing anything which would impede DaVita and/or any DaVita Facilityfrom 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 ofDaVita’s applicable vendor relations policies and procedures (the “Policies andProcedures”) that will be in effect during the Term will be available for viewing by Rockwellduring 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 andagrees that it must obtain DaVita’s prior written approval of all proposed educational, marketingand promotional materials and of all presentations made by Rockwell relating to any of the Productsor any other Rockwell products, which approval may only be given in writing by DaVita’s VicePresident, Clinical Operations or his authorized representative. DaVita’s Vice President, ClinicalOperations or his authorized representative agrees to notify Rockwell of his decision within ten(10) Business Days following receipt of such request; otherwise, such request will be deemeddenied. No personnel or agent of Rockwell shall be permitted to access any DaVita Facility withoutthe prior written consent of DaVita’s Vice President, Clinical Operations or his authorizedrepresentative.
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**ARTICLE XVI****AUDIT**     If DaVita disagrees with any computation or statement delivered by Rockwell to DaVita or anyDaVita Facility under this Agreement, DaVita may, within thirty (30) days after the receipt of suchcomputation or statement, audit any such computation or statement. DaVita shall conduct any suchaudit during such times as may be mutually agreed to by the parties hereto. In the event thatDaVita’s audit results in a number different from that set forth in the computation or statementdelivered 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 ofdisagreement related to such computation or statement. If DaVita does not deliver an ObjectionNotice within such thirty (30) day period, the calculations set forth in any such computation orstatement shall be deemed final, conclusive and binding on the parties hereto. Rockwell and DaVitawill use their commercially reasonable efforts to resolve any disagreements relating to anycomputation or statement, but if they do not obtain a final resolution within twenty (20) daysafter Rockwell has received the Objection Notice, then either Rockwell or DaVita may refer theitems in dispute to a nationally recognized firm of independent public accounts as to which DaVitaand Rockwell mutually agree (the “Firm”), to resolve any remaining disagreements. Rockwelland DaVita will direct the Firm to render a determination within twenty (20) days of its retention,and Rockwell and DaVita and their respective agents and employees will cooperate with the Firmduring its engagement. The determination of the Firm will be conclusive and binding upon DaVitaand Rockwell, and DaVita or Rockwell, as applicable, will make any payment owed to other partyhereto within five (5) Business Days of the Firm’s determination. The Firm shall execute aconfidentiality agreement in a form reasonably acceptable to Rockwell and DaVita. [* *].**ARTICLE XVII****ADDITIONAL ACKNOWLEDGEMENTS AND AGREEMENTS OF THE PARTIES**     17.1 Discontinuation Event. DaVita agrees that: (a) in the event a Committed DaVitaFacility intends on discontinuing its purchase of the Products from Rockwell (a“Discontinuation Event”), it shall [* *]. DaVita further agrees that in the event aDiscontinuation Event occurs as to multiple Committed DaVita Facilities in a geographic county,group of nearby counties, or subdivisions of a county (a “Market”), it shall use itscommercially reasonable efforts to implement such Discontinuation Event as to such Committed DaVitaFacilities in such Market in a manner which assists Rockwell in minimizing the negative effect itwould experience as a result of such Discontinuation Event. In the event of a breach by DaVita ofthe provisions of this Section 17.1, Rockwell’s sole and exclusive remedy shall be toterminate this Agreement pursuant to Section 2.5(e).     17.2 Business Model Change. Rockwell agree to [* *] and to use commerciallyreasonable efforts to [* *]. DaVita acknowledges that in the event Rockwell wishes to [* *], itwill use its commercially reasonable efforts to [* *]; providedthat if DaVita usesits commercially reasonable efforts to [* *], DaVita shall have no liability whatsoever toRockwell, including any direct, indirect, consequential, exemplary or punitive damages, [* *].     17.3 Mixer Training. Rockwell agrees to furnish, [* *], complete and appropriatetraining regarding the use and maintenance of the Dri-Sate® Acid Mixer used for mixing Dri-Sate®Dry Acid and CitraPure® Dry Acid, to such number of personnel of DaVita and the DaVita Facilitiesas DaVita shall designate. [* *].     17.4 Bicarbonate Mixer. Upon mutual written agreement between the parties hereto,Rockwell will [* *].
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**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 whichbanks 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 andmanufactured, utilized, sold or distributed anywhere in the United States by Rockwell and/or any ofits Affiliates.     “Confidential Information” means information not generally known outside thedisclosing 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 itsAffiliates’(collectively, the “Non-Disclosing Party’s”) obligations imposed by thisAgreement) or which is identified as confidential by the Disclosing Party to the Non-DisclosingParty 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 provisionsof this Agreement, (b) any and all trade secrets concerning the business, customers and affairs ofthe Disclosing Party, product specifications, data, know-how, formulae, compositions, processes,designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current andplanned research and development, current and planned manufacturing and distribution methods andprocesses, customer lists, current and anticipated customer requirements, price lists, marketstudies, 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 informationof the Disclosing Party, however documented, that is a trade secret under applicable law, (c) anyand all information concerning the business and affairs of the Disclosing Party, includinghistorical financial statements, financial projections and budgets, rebates, discounts, paymentterms, pricing, historical and projected sales, capital spending budgets and plans, contractualarrangements, the names and background of key personnel, contractors, agents, customers, suppliersand potential suppliers, personnel training and techniques and materials, purchasing methods andtechniques, however documented, (d) the names and addresses, records and charts and any otherinformation concerning the Disclosing Party’s patients, and (e) any and all notes, analysiscompilations, studies, summaries and other materials prepared by or for the Disclosing Partycontaining 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 allregulations promulgated thereunder.     “Governmental Authority” means any multi-national, national, state, provincial, local,governmental, judicial, public, quasi-public, administrative, regulatory or self-regulatoryauthority, 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 limitedliability company, corporation, joint venture, trust, business trust, cooperative or association orany other
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organization that is not a natural person and any combination of any such entity ororganization 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 anyPerson or group of related Persons in the aggregate acquire(s) (a) securities of DaVita possessingthe 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, securityholderor voting agreement, proxy, power of attorney or otherwise) or (b) all or substantially all ofDaVita’s assets.     “Sale of Rockwell” means any transaction or series of transactions pursuant to whichany Person or group of related Persons in the aggregate acquire(s) (a) securities of Rockwellpossessing the voting power to elect a majority of Rockwell’s board of directors (whether bymerger, consolidation, reorganization, combination, sale or transfer of Rockwell’s securities,securityholder or voting agreement, proxy, power of attorney or otherwise) or (b) all orsubstantially 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 orother 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 andexhibits, constitutes the entire agreement between the parties hereto and supersedes any and allprior representations, warranties, statements, promises, agreements and understandings between theparties hereto, whether oral or written, relating to the subject matter hereof, and no party heretoshall be bound by nor charged with any written or oral representations, warranties, statements,promises, agreements and understandings not specifically set forth in this Agreement. Noamendments or modifications of the terms of this Agreement, including any conflicting or additionalterms contained in any sales order, purchase order, acknowledgment form, or other written documentsubmitted by either party hereto, shall be binding on either party hereto unless reduced to writingand 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 recognizedovernight courier, in which case notice will be deemed delivered one (1) Business Day after depositwith 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.
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         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 CounselThe above addresses may be changed by written notice to the other party hereto, providedthat no notice of a change of address will be effective until actual receipt of suchnotice.     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 accordancewith the laws of the State of Delaware, without giving effect to any choice of law or conflict oflaw rules or provisions (whether of the State of Delaware or any other jurisdiction) that wouldcause 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 ANYAND ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY LEGAL PROCEEDING ARISING OUTOF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS OR EVENTS CONTEMPLATED HEREBY OR ANY COURSE OFCONDUCT, 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 BYTHE COURT WITHOUT A JURY. EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TOCONSOLIDATE ANY SUCH LEGAL PROCEEDING IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LEGALPROCEEDINGS IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.**     19.5 Attorneys Fees. In the event of any legal proceeding between the parties heretowith respect to this Agreement, the enforceability of any of its provisions or any alleged oractual breach of this Agreement by any party hereto, the prevailing party shall be entitled torecover reasonable attorney’s fees and all other costs and expenses incurred in connection withpursuing any action with respect thereto, in addition to any other relief to which such party maybe entitled. The term “prevailing party” shall mean with respect to each claim asserted in acomplaint the party in whose favor final judgment after appeal (if any) is rendered with respect tosuch claim asserted in the complaint.     19.6 Non-Limitation of Rights and Remedies. Except as otherwise expressly providedherein, the various rights and remedies provided herein shall be cumulative and in addition to anyother rights and remedies the parties hereto may be entitled to pursue at law or equity. Theexercise of one or more of such rights or remedies shall not impair the right of either partyhereto 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 itsrights under any provision hereto shall constitute a waiver of the party’s rights under suchprovisions 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 defaultby another party hereto shall constitute a waiver of the former party’s right to enforce anyprovision of this Agreement or to take action against
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such breach or default or any subsequent breach or default by the other party hereto. To beeffective 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 beinvalid or unenforceable in any respect, such provision shall be enforced to the fullest extentpermitted by law and the remaining provisions of this Agreement shall remain in full force andeffect. If any such invalid portion constitutes a material term of this Agreement, the partieshereto shall meet and in good faith seek to mutually agree to modify this Agreement so as toretain, 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 andconditions, procedures or catalogs, conflict with or alter any term of this Agreement, thisAgreement shall govern and control.     19.10 Assignment and Transfer. This Agreement will be binding upon and inure to thebenefit of the parties hereto. This Agreement may not be Transferred by any party hereto withoutthe prior written consent of the other party hereto; providedhoweverthatnothing in this Agreement shall or is intended to limit the ability of DaVita to Transfer thisAgreement, 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 forborrowings.     19.11 Relationship of the Parties. This Agreement is not intended to create and shallnot be construed as creating between Rockwell and DaVita the relationship of Affiliate, principaland agent, joint venture, partnership, or any other similar relationship, the existence of which ishereby 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 actionof, 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 anynumber of counterparts and any party hereto may execute any such counterpart, each of which whenexecuted and delivered shall be deemed to be an original and all of which counterparts takentogether shall constitute but one and the same instrument. This Agreement shall become bindingwhen one or more counterparts taken together shall have been executed and delivered by each of theparties hereto. It shall not be necessary in making proof of this Agreement or any counterparthereof to produce or account for any of the other counterparts. The parties hereto agree thatfacsimile transmission or PDF of original signatures shall constitute and be accepted as originalsignatures.     19.13 Headings and Interpretation. All Section and Article headings contained in thisAgreement are for convenience of reference only, do not form a part of this Agreement and shall notaffect in any way the meaning or interpretation of this Agreement. Words used herein, regardlessof the number and gender specifically used, shall be deemed and construed to include any othernumber, singular or plural, and any other gender, masculine, feminine, or neuter as the contextrequires. The words “include”, “includes” and “including”, and words of similar import, shall bedeemed to be followed by the phrase “without limitation”. Unless the context expressly by itsterms requires otherwise, (a) any reference to any law herein shall be construed as referring tosuch law as from time to time enacted, repealed or amended, (ii) any reference herein to any Personshall 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 tothis Agreement in its entirety and not to any particular provision
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hereof, and (iv) all references herein to Sections, Articles, or Exhibits shall be construedto refer to Sections, Articles, or Exhibits of this Agreement.     19.14 Joint Preparation. Each party hereto: (a) has participated in the preparationof this Agreement; (b) has read and understands this Agreement; and (c) has been represented bycounsel of its own choice in the negotiation and preparation of this Agreement. Each party heretorepresents that this Agreement is executed voluntarily and should not be construed against anyparty 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 othertime periods set forth herein is of the essence.     19.16 Survival. Notwithstanding anything to the contrary that may be containedelsewhere in this Agreement, this Article XIX and Articles II, VI,IX, X, XI, XII and XIII shall survive, and remain in fullforce 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 ortaking action expires, on a day that is not a Business Day, the payment shall be due and payableon, and the time period for giving such notice or taking such action shall automatically beextended to, the next succeeding Business Day.     19.18 Public Announcements . Except as otherwise required pursuant to any applicablefederal or state securities laws or stock listing requirements, no party hereto shall make anypublic announcement of any kind or any filing with respect to the other party hereto or any of thetransactions 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 stocklisting requirements, any press release or other announcement or notice regarding the other partyhereto or any of the transactions contemplated by this Agreement shall be by joint press releasemutually agreed to in writing by the parties hereto.[SIGNATURE PAGE FOLLOWS]
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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be effective as of theEffective 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***[SIGNATUREPAGE TO PRODUCTS PURCHASE AGREEMENT]***

 
EXHIBIT A**PRODUCTS AND PURCHASE PRICE**See attached.
A-1