{"id":42829,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/sourcing-and-supply-agreement-amgen-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sourcing-and-supply-agreement-amgen-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/sourcing-and-supply-agreement-amgen-inc.html","title":{"rendered":"Sourcing and Supply Agreement – Amgen Inc."},"content":{"rendered":"

Note: Redacted portions have been marked with [*]. The
\nredacted portions are subject to a request for<\/p>\n

confidential treatment that has been filed with the Securities
\nand Exchange Commission.<\/p>\n

SOURCING AND SUPPLY AGREEMENT <\/strong><\/p>\n

This Sourcing and Supply Agreement (this “Agreement”) is made by and between
\nAmgen USA Inc. (“Amgen”), a wholly-owned subsidiary of Amgen Inc., and DaVita
\nInc. (“Dialysis Center”) to set forth the terms and conditions upon which
\nDialysis Center Purchasers shall purchase EPOGEN \u00ae<\/sup> (Epoetin alfa) and
\nAmgen shall provide discounts and pay rebates to Dialysis Center on EPOGEN. Each
\nof Amgen and Dialysis Center are referred to herein as a “Party<\/u>” and
\ntogether as the “Parties<\/u>“. Amgen Inc. is a party to this Agreement for
\nthe purposes set forth in Sections<\/u> 3.1, 8.2, 9.4, 9.5.1, and 11.14 of
\nthis Agreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meaning set forth in Section 1<\/u>.<\/p>\n

RECITALS <\/strong><\/p>\n

WHEREAS<\/strong>, Amgen is a leading innovator in the field of ESAs
\nwith expertise in the field of anemia management and the ability to manufacture
\nand supply safe and efficacious ESAs for the treatment of dialysis patients;\n<\/p>\n

WHEREAS<\/strong>, Dialysis Center is a leading provider of dialysis
\nservices in the Territory with expertise in establishing and delivering
\nstate-of-the-art, quality-of-care standards, practices and procedures for the
\ncare of patients undergoing dialysis;<\/p>\n

WHEREAS<\/strong>, Dialysis Center desires to select one ESA supplier
\nto meet its primary ESA needs on a long term basis for patients undergoing
\ndialysis;<\/p>\n

WHEREAS<\/strong>, Dialysis Center has evaluated the ESAs available
\nfor commercial use and those in clinical development, including potential [*]
\nESAs, and has determined that EPOGEN \u00ae<\/sup> (Epoetin alfa) will be its
\npreferred ESA for managing anemia for patients undergoing dialysis;<\/p>\n

WHEREAS<\/strong>, the Parties wish to enter into this Agreement to,
\namong other things, provide for Dialysis Center’s selection of Amgen as the
\nDialysis Center Purchasers’ supplier of EPOGEN to meet the Dialysis Center
\nPurchasers’ requirements for EPOGEN for the treatment of dialysis patients
\nduring the Term, on all of the terms provided herein;<\/p>\n

WHEREAS<\/strong>, Dialysis Center seeks stable, predictable and
\ncompetitive pricing over a seven year period, which it can achieve through the
\ndiscounts, rebates and other price concessions set forth herein;<\/p>\n

WHEREAS<\/strong>, in order to provide Dialysis Center with such
\npricing over a seven year period, Amgen will make substantial long-term
\ninvestments and forego other potential opportunities to scale and schedule its
\nmanufacturing capacity and supply of EPOGEN for Dialysis Center Purchasers in
\naccordance with Dialysis Center Purchasers’ anticipated demand for EPOGEN for
\nuse in the Territory as provided under this Agreement;<\/p>\n

NOW THEREFORE<\/strong>, in consideration of the foregoing recitals
\nand of the mutual promises and covenants set forth herein, and for other good
\nand valuable consideration, the receipt and sufficiency of which is hereby
\nacknowledged, and intending to be legally bound, each Party hereby agrees as
\nfollows:<\/p>\n\n\n\n
\n

1.<\/p>\n<\/td>\n

\n

DEFINITIONS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

When used with initial capitals herein, the following terms shall have the
\nmeaning ascribed to them below:<\/p>\n

Page 1 of 136<\/p>\n

\n\n\n\n
\n

1.1.<\/p>\n<\/td>\n

\n

“Actual Supply Shortfall<\/u>” has the meaning set forth in Section
\n2.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.2.<\/p>\n<\/td>\n

\n

“Added Dialysis Center Purchaser<\/u>” has the meaning set forth in
\nSection 2.8.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.3.<\/p>\n<\/td>\n

\n

“Added Dialysis Center Purchaser Effective Date<\/u>” has the meaning set
\nforth in Section 2.8.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.4.<\/p>\n<\/td>\n

\n

“Added Dialysis Center Purchaser Transaction Date<\/u>” means with respect
\nto each Added Dialysis Center Purchaser: (a) in the case of a new Dialysis
\nCenter Affiliate, the effective date of the acquisition or establishment of the
\nnew Dialysis Center Affiliate; or (b) in the case of a new Managed Center, the
\nearlier of (i) the effective date of the contract pursuant to which a dialysis
\nfacility becomes a Managed Center or (ii) the date Dialysis Center first
\nprovides services to a dialysis facility that results in such facility becoming
\na Managed Center, in each case after the Term Start Date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.5.<\/p>\n<\/td>\n

\n

“Administrator<\/u>” has the meaning set forth in Section 9.2.1<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.6.<\/p>\n<\/td>\n

\n

“Affiliate<\/u>” of a given entity shall mean an entity that controls, is
\ncontrolled by, or under common control with such given entity. Control shall
\nmean ownership of more than fifty percent (50%) of the voting stock of an entity
\nor, for non-stock entities, the right to more than fifty percent (50%) of the
\nprofits of such entity.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.7.<\/p>\n<\/td>\n

\n

“[*]<\/u>” has the meaning set forth in Section 2.5.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.8.<\/p>\n<\/td>\n

\n

“Alternative ESA<\/u>” means an ESA that is available for use in the
\nTerritory that is not EPOGEN or Aranesp.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.9.<\/p>\n<\/td>\n

\n

“Alternative ESA Purchase Amount<\/u>” has the meaning set forth in
\nSection 2.1.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.10.<\/p>\n<\/td>\n

\n

“Alternative ESA Purchase Event<\/u>” has the meaning set forth in
\nSection 2.1.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.11.<\/p>\n<\/td>\n

\n

“Alternative ESA Purchase Event Share of Sales<\/u>” shall be calculated as
\nfollows<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[*]<\/p>\n

A = Committed Unit Purchases of Amgen ESAs during the [*] which an
\nAlternative ESA Purchase Event has occurred<\/p>\n

B = Committed Unit Purchases of Amgen ESAs during the [*] which such
\nAlternative ESA Purchase Event has occurred<\/p>\n

C = Committed Unit Purchases of Alternative ESAs during the [*] which an
\nAlternative ESA Purchase Event has occurred<\/p>\n

D = Committed Unit Purchases of Alternative ESAs during the [*] which such
\nAlternative ESA Purchase Event has occurred<\/p>\n\n\n\n
\n

1.12.<\/p>\n<\/td>\n

\n

“Amgen Business Representative<\/u>” has the meaning set forth in
\nSection 4.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.13.<\/p>\n<\/td>\n

\n

“[*]<\/u>” means [*] for use with patients receiving Dialysis Services,
\nwhich [*] is the subject of a written agreement between the Parties or their
\nAffiliates.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.14.<\/p>\n<\/td>\n

\n

“Amgen ESA Risk Evaluation Program<\/u>” has the meaning set forth in
\nSection 11.18<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.15.<\/p>\n<\/td>\n

\n

“Amgen ESAs Share of Sales<\/u>” shall mean Committed [*] Purchases of
\nAmgen ESAs during the Quarter divided<\/u> by<\/u> the sum of Committed [*]
\nPurchases of Amgen ESAs and Committed [*] Purchases of Alternative ESAs during
\nthe Quarter.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 2 of 136<\/p>\n

\n

Amgen ESAs Share of Sales Illustration: <\/strong><\/p>\n

Committed [*] Purchases of Amgen ESAs<\/p>\n

–<\/p>\n

Committed [*] Purchases of Amgen ESAs + Committed [*]
\nPurchases of Alternative ESAs<\/p>\n\n\n\n
\n

1.16.<\/p>\n<\/td>\n

\n

“Amgen Indemnitees<\/u>” has the meaning set forth in Section
\n9.5.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.17.<\/p>\n<\/td>\n

\n

“Appeal Procedures<\/u>” has the meaning set forth in Section
\n9.2.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.18.<\/p>\n<\/td>\n

\n

“Aranesp<\/u>” means Amgen’s proprietary darbepoetin alfa product that is
\nmarketed by Amgen in the Territory under the trademark Aranesp \u00ae<\/sup>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.19.<\/p>\n<\/td>\n

\n

“Arbitrator<\/u>” has the meaning set forth in Section 9.2.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.20.<\/p>\n<\/td>\n

\n

“Authorized Removal Occurrence<\/u>” has the meaning set forth in
\nSection 2.8.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.21.<\/p>\n<\/td>\n

\n

“Authorized Wholesalers<\/u>” shall mean those wholesalers listed on
\nExhibit B<\/u>, as such list may be modified pursuant to Section 2.7<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.22.<\/p>\n<\/td>\n

\n

“Authorized Wholesaler List<\/u>” has the meaning set forth in Section
\n2.7<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.23.<\/p>\n<\/td>\n

\n

“Available EPOGEN SKUs<\/u>” have the meaning set forth in Section
\n2.4.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.24.<\/p>\n<\/td>\n

\n

“Award<\/u>” has the meaning set forth in Section 9.2.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.25.<\/p>\n<\/td>\n

\n

“Base Invoice Discount<\/u>” means the base invoice discount described in
\nSection 2.1<\/u> of Exhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.26.<\/p>\n<\/td>\n

\n

“Base Rate Rebate<\/u>” means the base rebate described in Section
\n3.1<\/u> of Exhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.27.<\/p>\n<\/td>\n

\n

“Baseline [*]<\/u>” has the meaning set forth in Section 2.1.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.28.<\/p>\n<\/td>\n

\n

“[*] Rebate<\/u>” means the [*] rebate described in Section 3.2<\/u> of
\nExhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.29.<\/p>\n<\/td>\n

\n

“Best Price<\/u>” has the meaning set forth in Section 3.6<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.30.<\/p>\n<\/td>\n

\n

“[*] Rebate<\/u>” means the [*] rebate described in Section 3.3<\/u> of
\nExhibit A.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.31.<\/p>\n<\/td>\n

\n

“Business Representatives<\/u>” has the meaning set forth in Section
\n4.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.32.<\/p>\n<\/td>\n

\n

“Certification<\/u>” has the meaning set forth in Section 5.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.33.<\/p>\n<\/td>\n

\n

“Committed [*] Purchases of Amgen ESAs<\/u>” means, for any period, the
\naggregate amounts in [*] of EPOGEN and Aranesp purchased by all Dialysis Center
\nCommitted Purchasers during such period for use in providing Dialysis Services,
\nnet of product returns and adjustments, which aggregate [*] data have been
\nindependently confirmed by Amgen through the Relevant Information.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.34.<\/p>\n<\/td>\n

\n

“Committed [*] Purchases of Alternative ESAs<\/u>” means, for any period,
\nthe aggregate amounts in [*] of all Alternative ESAs purchased by all Dialysis
\nCenter Committed Purchasers from any source during such period for use in
\nproviding Dialysis Services, (provided<\/u> that any Alternative ESA provided
\nto a Dialysis Center Committed Purchaser at no or nominal cost from any source
\nshall be considered a purchase), adjusted to be an equivalent [*] of EPOGEN (in
\n[*]) based on the [*] (if the [*] is clearly set forth therein) or otherwise as
\nreasonably determined pursuant to Section 2.1.2<\/u>, and which aggregate [*]
\ndata have been independently confirmed by Amgen through the Relevant
\nInformation.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.35.<\/p>\n<\/td>\n

\n

“Compensation Data<\/u>” has the meaning set forth in Section 6.1<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.36.<\/p>\n<\/td>\n

\n

“Confidential Information<\/u>” has the meaning set forth in Section
\n11.14<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 3 of 136<\/p>\n

\n\n\n\n
\n

1.37.<\/p>\n<\/td>\n

\n

“Data<\/u>” means the data set forth on Schedule 1<\/u> provided by
\nDialysis Center to Amgen pursuant to the terms and conditions of Section
\n5<\/u> and Exhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.38.<\/p>\n<\/td>\n

\n

“Debarred Party<\/u>” has the meaning set forth in Section 10.2.3<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.39.<\/p>\n<\/td>\n

\n

“Designated Affiliates<\/u>” shall mean any Affiliate of Dialysis Center
\nlisted on Exhibit C<\/u>, as such list may be modified pursuant to Section
\n2.8.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.40.<\/p>\n<\/td>\n

\n

“Designated Affiliates List<\/u>” has the meaning set forth in Section
\n2.8.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.41.<\/p>\n<\/td>\n

\n

“Dialysis Center Business Representative<\/u>” has the meaning set forth in
\nSection 4.1.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.42.<\/p>\n<\/td>\n

\n

“Dialysis Center Committed Purchasers<\/u>” has the meaning set forth in
\nSection 2.8.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.43.<\/p>\n<\/td>\n

\n

“Dialysis Center Committed Purchasers List<\/u>” has the meaning set forth
\nin Section 2.8.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.44.<\/p>\n<\/td>\n

\n

“Dialysis Center Indemnitees<\/u>” has the meaning set forth in Section
\n9.5.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.45.<\/p>\n<\/td>\n

\n

“Dialysis Center Purchasers<\/u>” shall mean Dialysis Center, the
\nDesignated Affiliates, and the Managed Centers. Dialysis Center Purchasers
\ninclude Added Dialysis Center Purchasers from and after the Added Dialysis
\nCenter Purchaser Effective Date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.46.<\/p>\n<\/td>\n

\n

“Dialysis Services<\/u>” means services related to the treatment of
\npatients receiving renal dialysis, including hemodialysis, peritoneal dialysis,
\nnocturnal dialysis, and home hemodialysis in the Territory during the Term.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.47.<\/p>\n<\/td>\n

\n

“Disclosing Party<\/u>” has the meaning set forth in Section 11.14<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.48.<\/p>\n<\/td>\n

\n

“Discounts<\/u>” means all rebates and discounts set forth on Exhibit
\nA<\/u> that may be earned by the Dialysis Center Purchasers pursuant to the terms
\nand conditions set forth in this Agreement, which shall be earned, calculated
\nand vested as provided in Exhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.49.<\/p>\n<\/td>\n

\n

“Disputes<\/u>” has the meaning set forth in Section 9.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.50.<\/p>\n<\/td>\n

\n

“[*]<\/u>” has the meaning set forth in Section 2.1.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.51.<\/p>\n<\/td>\n

\n

“EPOGEN<\/u>” means Amgen’s proprietary epoetin alfa product that is
\nmarketed by Amgen in the Territory under the trademark EPOGEN \u00ae<\/sup>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.52.<\/p>\n<\/td>\n

\n

“EPOGEN Equivalent Quantity<\/u>” has the meaning set forth in Section
\n2.1.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.53.<\/p>\n<\/td>\n

\n

“ESAs<\/u>” shall mean agents that stimulate erythropoiesis.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.54.<\/p>\n<\/td>\n

\n

“FDA<\/u>” has the meaning set forth in Section 8.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.55.<\/p>\n<\/td>\n

\n

“FDA Website<\/u>” has the meaning set forth in Section 11.18<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.56.<\/p>\n<\/td>\n

\n

“Firm<\/u>” has the meaning set forth in Section 3.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.57.<\/p>\n<\/td>\n

\n

“Forecast Shortfall<\/u>” has the meaning set forth in Section
\n2.4.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.58.<\/p>\n<\/td>\n

\n

“Forecast Shortfall Amount<\/u>” has the meaning set forth in Section
\n2.4.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.59.<\/p>\n<\/td>\n

\n

“Force Majeure Event<\/u>” has the meaning set forth in Section
\n11.8<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.60.<\/p>\n<\/td>\n

\n

“Governmental Authority<\/u>” shall mean in respect of any individual or
\nentity, any government administrative agency, commission or other governmental
\nauthority, body or instrumentality, or any federal, state, or local governmental
\nregulatory body having legal jurisdiction over that individual or entity.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.61.<\/p>\n<\/td>\n

\n

“Gross Purchases of Amgen ESAs<\/u>” means, for any period, the aggregate
\ngross amounts paid for purchases of EPOGEN and Aranesp by all Dialysis Center
\nPurchasers during such period for use in providing Dialysis Services, calculated
\nby using [*] in effect on<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 4 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

each date of purchase, net of product returns and adjustments, which
\naggregate sales data have been independently confirmed by Amgen through the
\nRelevant Information.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.62.<\/p>\n<\/td>\n

\n

“Hearing<\/u>” has the meaning set forth in Section 9.2.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.63.<\/p>\n<\/td>\n

\n

“HIPAA<\/u>” shall mean the Health Insurance Portability and Accountability
\nAct of 1996 and its implementing regulations, each as may be amended.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.64.<\/p>\n<\/td>\n

\n

“IMS<\/u>” means IMS Health Incorporated, a Delaware corporation and its
\nAffiliates.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.65.<\/p>\n<\/td>\n

\n

“Indemnified Party<\/u>” has the meaning set forth in Section
\n9.6.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.66.<\/p>\n<\/td>\n

\n

“Indemnifying Party<\/u>” has the meaning set forth in Section
\n9.6.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.67.<\/p>\n<\/td>\n

\n

“Individually Identifiable Health Information<\/u>” shall have the meaning
\nspecified in HIPAA.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.68.<\/p>\n<\/td>\n

\n

“Initial [*]<\/u>” has the meaning set forth in Section 2.1.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.69.<\/p>\n<\/td>\n

\n

“[*]<\/u>” means an [*] for EPOGEN, Aranesp or an Alternative ESA, as
\napplicable, based on its measured biological activity or effect.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.70.<\/p>\n<\/td>\n

\n

“Joint Project<\/u>” has the meaning set forth in Section 7.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.71.<\/p>\n<\/td>\n

\n

“Joint Project Committee<\/u>” has the meaning set forth in Section
\n7.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.72.<\/p>\n<\/td>\n

\n

“Law<\/u>” means, individually and collectively, any and all applicable
\nlaws, ordinances, rules, regulations, directives, administrative circulars,
\nguidances and other pronouncements having the effect of law of any Governmental
\nAuthority.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.73.<\/p>\n<\/td>\n

\n

“Liquidated Damages<\/u>” has the meaning set forth in Section
\n10.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.74.<\/p>\n<\/td>\n

\n

“Managed Center<\/u>” shall mean a dialysis facility that is not an
\nAffiliate of Dialysis Center but for which Dialysis Center or an Affiliate of
\nDialysis Center provides management services or administrative services in which
\nit controls the selection or procurement of ESAs.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.75.<\/p>\n<\/td>\n

\n

“Managed Centers List<\/u>” has the meaning set forth in Section
\n2.8.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.76.<\/p>\n<\/td>\n

\n

“Material Label Change<\/u>” means a material amendment, change, revision,
\nand\/or modification to the Chronic Kidney Disease section of the Boxed Warning
\nof the US prescribing information for EPOGEN as it relates to dialysis use.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.77.<\/p>\n<\/td>\n

\n

“Minimum Forecast Commitment<\/u>” has the meaning set forth in Section
\n2.4.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.78.<\/p>\n<\/td>\n

\n

“[*] Rebate<\/u>” means the [*] rebate described in Section 3.4<\/u> of
\nExhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.79.<\/p>\n<\/td>\n

\n

“Non-Disclosing Party<\/u>” has the meaning set forth in Section
\n11.14<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.80.<\/p>\n<\/td>\n

\n

“Notice of Added Dialysis Center Purchaser<\/u>” has the meaning set forth
\nin Section 2.8.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.81.<\/p>\n<\/td>\n

\n

“Objection Notice<\/u>” has the meaning set forth in Section 3.2<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.82.<\/p>\n<\/td>\n

\n

“Other Agreement(s)<\/u>” has the meaning set forth in Section 2.2<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.83.<\/p>\n<\/td>\n

\n

“Other Agreement Early Termination Date<\/u>” has the meaning set forth in
\nSection 2.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.84.<\/p>\n<\/td>\n

\n

“Party<\/u>” and “Parties<\/u>” have the meaning set forth in the
\npreamble hereto.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.85.<\/p>\n<\/td>\n

\n

“[*]<\/u>” has the meaning set forth in Section 5.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.86.<\/p>\n<\/td>\n

\n

“Permitted Percentage Variances<\/u>” has the meaning set forth in
\nSection 2.4.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.87.<\/p>\n<\/td>\n

\n

“Permitted Variance Period<\/u>” has the meaning set forth in Section
\n2.4.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.88.<\/p>\n<\/td>\n

\n

“Policies and Procedures<\/u>” has the meaning set forth in Section
\n2.8.6<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.89.<\/p>\n<\/td>\n

\n

“Project Plan<\/u>” has the meaning set forth in Section 7.1.<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 5 of 136<\/p>\n

\n\n\n\n
\n

1.90.<\/p>\n<\/td>\n

\n

“Project Proposal<\/u>” has the meaning set forth in Section 7.1<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.91.<\/p>\n<\/td>\n

\n

“Purchase Commitment<\/u>” has the meaning set forth in Section
\n2.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.92.<\/p>\n<\/td>\n

\n

“Qualified Gross Purchases of EPOGEN<\/u>” shall mean the amount of EPOGEN
\npurchased by Dialysis Center Purchasers during the Term from an Authorized
\nWholesaler (or from Amgen pursuant to Section 2.7<\/u>) for use in providing
\nDialysis Services, and confirmed by Amgen through sales tracking data. Qualified
\nGross Purchases of EPOGEN shall be calculated using the [*] in effect at the
\ntime of the relevant purchase, net of product returns and adjustments.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.93.<\/p>\n<\/td>\n

\n

“Quarter<\/u>” shall mean each calendar quarter during the Term
\n(i.e.<\/em>, January 1 through March 31, April 1 through June 30, July 1
\nthrough September 30, and\/or October 1 through December 31, as applicable).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.94.<\/p>\n<\/td>\n

\n

“Recall<\/u>” has the meaning set forth in Section 11.19<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.95.<\/p>\n<\/td>\n

\n

“Relevant Information<\/u>” means the Data, all sales tracking data,
\nSelf-Reported Purchase Data, Compensation Data and other relevant information,
\nincluding relevant Third Party reporting agency data.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.96.<\/p>\n<\/td>\n

\n

“Research Study<\/u>” has the meaning set forth in Section 5.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.97.<\/p>\n<\/td>\n

\n

“Rolling Forecast<\/u>” has the meaning set forth in Section 2.4.1<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.98.<\/p>\n<\/td>\n

\n

“Rolling Forecasts<\/u>” has the meaning set forth in Section
\n2.4.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.99.<\/p>\n<\/td>\n

\n

“Rules<\/u>” has the meaning set forth in Section 9.2.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.100.<\/p>\n<\/td>\n

\n

“Self-Reported Purchase Data<\/u>” means all [*] purchased of each ESA and
\nthe number of patients who received each such ESA from Dialysis Center
\nPurchasers and such other related data as may be specified on Exhibit
\nSR-1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.101.<\/p>\n<\/td>\n

\n

“[*]<\/u>” has the meaning set forth in Section 5.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.102.<\/p>\n<\/td>\n

\n

“Supply Commitment<\/u>” has the meaning set forth in Section 2.1<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.103.<\/p>\n<\/td>\n

\n

“Supply Shortfall<\/u>” has the meaning set forth in Section 2.5<\/u>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.104.<\/p>\n<\/td>\n

\n

“Supply Shortfall Notice<\/u>” has the meaning set forth in Section
\n2.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.105.<\/p>\n<\/td>\n

\n

“Supply Shortfall Quarter<\/u>” has the meaning set forth in Section
\n2.5<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.106.<\/p>\n<\/td>\n

\n

“Term<\/u>” means the period commencing on the Term Start Date and ending
\non the Term End Date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.107.<\/p>\n<\/td>\n

\n

“Term End Date<\/u>” shall mean December 31, 2018.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.108.<\/p>\n<\/td>\n

\n

“Term Start Date<\/u>” shall mean January 1, 2012.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.109.<\/p>\n<\/td>\n

\n

“Termination Date<\/u>” means the date upon which this Agreement shall have
\nbeen terminated in accordance with the terms and conditions of this Agreement
\npursuant to Section 10.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.110.<\/p>\n<\/td>\n

\n

“Territory<\/u>” means the United States, and its territories and
\npossessions, including Puerto Rico.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.111.<\/p>\n<\/td>\n

\n

“Third Party<\/u>” means any individual or entity other than a Party or an
\nAffiliate of a Party (or, in the case of Dialysis Center, a Managed Center).\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.112.<\/p>\n<\/td>\n

\n

“Third Party Claim(s)<\/u>” has the meaning set forth in Section
\n9.5.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

1.113.<\/p>\n<\/td>\n

\n

“[*]<\/u>” shall mean the [*] for EPOGEN to [*] as established by [*] in
\nits [*] from time to time, not including prompt pay or other discounts, rebates,
\nor reductions in [*].<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 6 of 136<\/p>\n

\n\n\n\n
\n

2.<\/p>\n<\/td>\n

\n

PURCHASE AND SUPPLY COMMITMENTS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.1.<\/p>\n<\/td>\n

\n

Purchase and Supply Commitments<\/u>. Subject to the terms and conditions
\nof this Agreement, (i) the Dialysis Center Committed Purchasers shall purchase
\nfrom Amgen through one or more Authorized Wholesalers those quantities of EPOGEN
\nthat are needed to meet an Amgen ESAs Share of Sales of at least ninety percent
\n(90%) during each Quarter of the Term (the “Purchase Commitment<\/u>“), and
\n(ii) Amgen shall ensure that during each Quarter of the Term [*] percent ([*]%)
\nof the [*] for each such Quarter is available for purchase by the Dialysis
\nCenter Purchasers from one or more Authorized Wholesalers (the “Supply
\nCommitment<\/u>“). Subject to Section 2.3.2<\/u> and Section 2.3.3<\/u>,
\nAmgen acknowledges and agrees that nothing in this Agreement shall prohibit any
\nDialysis Center Committed Purchaser from purchasing an amount of EPOGEN
\nnecessary to satisfy the Purchase Commitment in a particular Quarter regardless
\nof whether such EPOGEN was actually administered by the Dialysis Center
\nCommitted Purchasers to their patients for the provision of Dialysis Services
\nduring such Quarter.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.1.1.<\/p>\n<\/td>\n

\n

Alternative ESA Purchases<\/em>. If in any Quarter the Dialysis Center
\nCommitted Purchasers do not meet the Purchase Commitment (an “Alternative ESA
\nPurchase Event<\/u>“), then Dialysis Center shall (i) within thirty (30) days of
\nthe end of any such applicable Quarter provide notice to Amgen of such
\nAlternative ESA Purchase Event, including the Committed [*] Purchases of
\nAlternative ESAs in such Quarter and (ii) within thirty (30) days of the end of
\nthe Quarter immediately following the Quarter in which the Alternative ESA
\nPurchase Event occurred, the Committed [*] Purchases of Alternative ESAs in such
\nsubsequent Quarter. If Dialysis Center provides such notice pursuant to this
\nSection 2.1.1<\/u>, or if Amgen, in its sole discretion, through the use of
\nRelevant Information determines that there has been an Alternative ESA Purchase
\nEvent, then Amgen shall have the right to deliver to Dialysis Center a notice
\nthat sets forth the “EPOGEN Equivalent Quantity<\/u>,” which shall be that
\nquantity of EPOGEN (in [*]) [*] but for the Alternative ESA Purchase Event
\n(based on the [*] (if the [*] is clearly set forth therein), or otherwise as
\nreasonably determined by Amgen through the Relevant Information as set forth in
\nSection 2.1.2<\/u>). In the event the Alternative ESA Purchase Event Share of
\nSales is equal to or greater than ninety percent (90%), then Dialysis Center
\nshall be deemed to have met the Purchase Commitment for the Quarter in which the
\nAlternative ESA Purchase Event occurred. If the Alternative ESA Purchase Event
\nShare of Sales is less than ninety percent (90%) for any reason, including a
\nForce Majeure Event related to Dialysis Center and\/or the Dialysis Center
\nPurchasers, and not the result of a Supply Shortfall, then Amgen shall deliver
\nto Dialysis Center a notice, and Dialysis Center shall pay to Amgen within
\nthirty (30) days of its receipt of such notice, an amount (the “Alternative
\nESA Purchase Amount<\/u>“) indicated by Amgen (as determined by Amgen based on
\nthe Relevant Information) in such notice equal to (a) the EPOGEN Equivalent
\nQuantity multiplied by (b) [*] of EPOGEN earned by the Dialysis Center Committed
\nPurchasers during such Quarter. At Amgen’s option, any Alternative ESA Purchase
\nAmount may be offset in whole or in part against any Discounts earned by the
\nDialysis Center Purchasers on Qualified Gross Purchases of EPOGEN in the
\napplicable Quarter or any subsequent Quarter.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.1.2.<\/p>\n<\/td>\n

\n

If a Party, in its reasonable discretion, feels that the Dialysis Center
\nCommitted Purchasers potentially may not meet the Purchase Commitment due to
\npurchases of Alternative ESAs by the Dialysis Center Committed Purchasers in a
\nQuarter, then Amgen shall in consultation with Dialysis Center determine the
\nappropriate methodology to be used to determine the [*] (in [*]) of an
\nAlternative ESA that was<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 7 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

used by the Dialysis Center Committed Purchasers patients’ during the
\napplicable measurement period that is equivalent to a [*] (in [*]) of EPOGEN
\nthat was used by the Dialysis Center Committed Purchasers patients’ during the
\napplicable measurement period (the “[*]<\/u>“) and Dialysis Center shall
\nreasonably cooperate with Amgen and provide any other reasonable data, including
\n[*] of ESAs utilized during the applicable measurement period, necessary to
\ncomplete the determination. If Dialysis Center has a reasonable objection to the
\nmethodology proposed by Amgen, the Parties shall appoint a mutually agreeable
\nThird Party to determine the methodology to be used with the costs of such Third
\nParty to be borne equally by the Parties. The initial [*] for any particular
\nAlternative ESA as determined by either the Parties or the Third Party appointed
\nby the Parties, as applicable, pursuant to this Section 2.1.2<\/u> (the
\n“Initial [*]<\/u>“) shall only apply to the Quarter immediately preceding the
\nInitial [*]. The determination of the [*] for each particular Alternative ESA
\nshall be recalculated for each of the first [*] after the Initial [*] for such
\nAlternative ESA and the calculation of the [*] for such Alternative ESA after
\neach Quarter during such [*] period shall only apply to the immediately
\npreceding Quarter after each such recalculation. The [*] for a particular
\nAlternative ESA for all periods after such [*] period shall be the [*]
\ndetermined as of the end of the [*] Quarter after the Initial [*] for such
\nAlternative ESA (the “Baseline [*]<\/u>“); provided, either Party may, no more
\nfrequently than once per calendar year, request a recalculation of the Baseline
\n[*], which recalculation shall be applied prospectively, if such Party
\nreasonably believes that the Baseline [*] has materially changed over time, in
\nwhich event the requesting Party shall bear the costs of any Third Party
\nappointed by the Parties in connection therewith.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.2.<\/p>\n<\/td>\n

\n

Purchase Commitment Transition Period for Added Dialysis Center
\nPurchasers<\/u>. If, after the Term Start Date, there is a new Added Dialysis
\nCenter Purchaser pursuant to Section 2.8.2<\/u>, that is a Dialysis Center
\nCommitted Purchaser, Dialysis Center shall use its commercially reasonable
\nefforts to cause such Added Dialysis Center Purchaser to meet the Purchase
\nCommitment as soon as practicable, but such Added Dialysis Center Purchaser
\nshall not be obligated to meet the Purchase Commitment until [*] days after the
\nAdded Dialysis Center Purchaser Effective Date. If, as of the Added Dialysis
\nCenter Purchaser Effective Date regarding an Added Dialysis Center Purchaser,
\nsuch Added Dialysis Center Purchaser was a party to a written agreement with a
\nThird Party which includes an obligation on the part of such Added Dialysis
\nCenter Purchaser to exclusively purchase an Alternative ESA to meet a majority
\nof its ESA requirements for the provision of Dialysis Services in the Territory
\n(an “Other Agreement(s)<\/u>“) and Dialysis Center can demonstrate via
\nreasonable evidence to Amgen that such Other Agreement was entered into by such
\nAdded Dialysis Center Purchaser at least [*] days prior to the Added Dialysis
\nCenter Purchaser Transaction Date, then such Added Dialysis Center Purchaser
\nshall not be subject to the Purchase Commitment until [*] days after such time
\nthat such Other Agreement(s) can be terminated and\/or amended to terminate such
\nobligation with respect to the Alternative ESAs without such Added Dialysis
\nCenter Purchaser and\/or Dialysis Center and\/or any of its Affiliates paying any
\ndamages and\/or other amounts to such Third Party (the “Other Agreement Early
\nTermination Date<\/u>“); provided that Dialysis Center shall use its best efforts
\nto terminate such Other Agreement as soon Dialysis Center can do so without such
\nAdded Dialysis Center Purchaser and\/or Dialysis Center and\/or any of its
\nAffiliates paying any damages and\/or other amounts to such Third Party. Amgen
\nshall not be obligated to meet the Supply Commitment for any Added Dialysis
\nCenter Purchaser until the expiration of the [*] day period after the Added
\nDialysis Center Purchaser Effective Date or, in the case of an<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 8 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Added Dialysis Center Purchaser that is a party to an Other Agreement, [*]
\ndays after the Other Agreement Early Termination Date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.3.<\/p>\n<\/td>\n

\n

Eligible Purchases<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.3.1.<\/p>\n<\/td>\n

\n

Purchases from Authorized Wholesaler<\/u><\/em>. <\/em>Only purchases
\nof EPOGEN made by a Dialysis Center Purchaser from an Authorized Wholesaler
\nshall be eligible to receive the Discounts provided under this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.3.2.<\/p>\n<\/td>\n

\n

Own Use<\/u><\/em>. The Dialysis Center Purchasers shall purchase EPOGEN
\nunder this Agreement solely for their own use in providing Dialysis Services,
\nand only purchases made by Dialysis Center Purchasers for such use shall be
\neligible for the Discounts provided under this Agreement and shall be considered
\nCommitted [*] Purchases of Amgen ESAs. Dialysis Center on behalf of itself and
\neach other Dialysis Center Purchaser covenants that none of them shall seek to
\nprocure any of the Discounts available under this Agreement for any purchases of
\nEPOGEN not for its or their use in providing Dialysis Services, and Dialysis
\nCenter shall promptly notify Amgen in the event Amgen shall have provided any
\nDialysis Center Purchaser with any Discounts hereunder for any EPOGEN that was
\nnot used by them for the provision of Dialysis Services.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.3.3.<\/p>\n<\/td>\n

\n

Maximum Quarterly Purchase Increases<\/u><\/em>. Notwithstanding any
\nother provision of this Agreement, no Discounts earned by Dialysis Center shall
\napply to Qualified Gross Purchases of EPOGEN for any Quarter that exceed [*]
\npercent ([*]%) of the Qualified Gross Purchases of EPOGEN in the immediately
\npreceding Quarter unless Amgen, in its sole discretion, determines that such
\nincrease is necessary for Dialysis Center to meet its Purchase Commitment for
\nany such Quarter. Such calculation shall be adjusted to remove from the
\ncalculation the effect of any change in [*], or increases\/decreases in the
\nnumber of Dialysis Center Purchasers during the relevant comparison periods.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.4.<\/p>\n<\/td>\n

\n

Quantity Forecasts and Minimum Forecast Commitment<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.4.1.<\/p>\n<\/td>\n

\n

Rolling Forecast<\/u><\/em>.<\/em> Each Quarter during the Term,
\nDialysis Center shall submit in writing to Amgen a rolling [*] month forecast
\nsetting forth on a month-by-month basis the aggregate quantities in [*] of
\nEPOGEN by Available EPOGEN SKU that Dialysis Center has determined in good faith
\nare required for all Dialysis Center Purchasers for each month in the forecast
\nperiod, starting with an initial [*] month forecast beginning as of [*] which
\nshall be delivered to Amgen by [*] (each, a “Rolling Forecast<\/u>” and
\ncollectively the “Rolling Forecasts<\/u>“). With the exception of the initial
\nRolling Forecast, Dialysis Center shall submit each Rolling Forecast by no later
\nthan the [*] of the [*] of each Quarter during the Term (e.g., by [*] Dialysis
\nCenter shall submit a Rolling Forecast for the [*] month period from [*] through
\n[*]). The Rolling Forecasts shall not reflect any EPOGEN requirements for
\nperiods after the Term End Date. If Dialysis Center has not timely delivered a
\nRolling Forecast as provided above, the Rolling Forecast previously in effect
\nshall remain in effect for the periods covered thereby. The purpose of this
\nSection 2.4.1<\/u> is to allow Amgen adequate time to adjust its manufacturing
\nplanning and operations to properly reflect the anticipated mix of Available
\nEPOGEN SKUs.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.4.2.<\/p>\n<\/td>\n

\n

Minimum Forecast Commitment<\/u><\/em>.<\/em> Without reducing or
\nlimiting the Purchase Commitment set forth in Section 2.1<\/u>, the forecasted
\nquantities of each Available EPOGEN SKU for months [*] of each Rolling Forecast
\nshall constitute the Dialysis Center Purchasers’ aggregate minimum purchase
\ncommitment of [*] of EPOGEN by Available EPOGEN SKU (the “Minimum Forecast
\nCommitment<\/u>“). If<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 9 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

the Dialysis Center Purchasers purchase an aggregate quantity in [*] of
\nEPOGEN by Available EPOGEN SKU during any Quarter that is less than the Minimum
\nForecast Commitment for any such Quarter (the quantity of any such difference,
\nthe “Forecast Shortfall<\/u>“), then Amgen shall notify Dialysis Center of the
\nForecast Shortfall in writing. If the Dialysis Center Purchasers purchase a
\nquantity in [*] of EPOGEN by Available EPOGEN SKU during the Quarter in which
\nthe Forecast Shortfall occurred and the immediately following Quarter in the
\naggregate that is less than the aggregate Minimum Forecast Commitments for such
\ntwo Quarters, Amgen shall notify Dialysis Centers of such failure in writing,
\nand within thirty (30) days of Dialysis Center’s receipt of such notice, it
\nshall pay to Amgen an amount equal to [*] percent ([*]%) of (i) the Forecast
\nShortfall for the applicable Quarter multiplied by<\/u> (ii) [*] less<\/u>
\nthe Discounts per [*] of EPOGEN for each Available EPOGEN SKU earned by the
\nDialysis Center Purchasers during such Quarter (the “Forecast Shortfall
\nAmount<\/u>“). At Amgen’s option, any Forecast Shortfall Amount may be offset in
\nwhole or in part against any Discounts earned by the Dialysis Center Purchasers
\non purchases of EPOGEN in the applicable Quarter or any subsequent Quarter.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.4.3.<\/p>\n<\/td>\n

\n

Forecast Variance.<\/u><\/em> Each Rolling Forecast provided by Dialysis
\nCenter may [*] quantities of each Available EPOGEN SKU only for new months [*]
\nand may [*] quantities of each Available EPOGEN SKU in the new months [*] from
\nthe corresponding months in the immediately prior Rolling Forecast by the
\n“Permitted Percentage Variances<\/u>” in the table below. The Permitted
\nPercentage Variances for the months of each Rolling Forecast (the “Permitted
\nVariance Period<\/u>“) are as follows:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Months<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]<\/p>\n<\/td>\n<\/tr>\n

\n

Permitted Percentage Variance<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]%<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

[<\/p>\n<\/td>\n

\n

*]%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

If Dialysis Center submits a Rolling Forecast that contains a forecast for
\nany month therein that is not in compliance with this Section 2.4.3<\/u>,
\nAmgen shall have the right, in its sole discretion, to either (a) accept such
\nforecast for any month therein that is not in compliance with this Section; or
\n(b) adjust such non-compliant forecasted quantity for any such month to increase
\nor decrease the amount forecasted for such month by up to the minimum amount
\nnecessary to bring such forecasted quantity into compliance with this
\nSection 2.4.3<\/u>. Dialysis Center may, at any time for any good faith
\nreason, request additional variances to the Permitted Percentage Variances and,
\nin such event, the Parties shall work in good faith to accommodate such request;
\nprovided, however, that (i) in no event shall Amgen be liable for any resulting
\nSupply Shortfall or Actual Supply Shortfall and (ii) Dialysis Center shall
\nremain liable for any Forecast Shortfall that may occur. If in any Quarter
\nduring the Term, the Dialysis Center Purchasers have a Forecast Shortfall and
\nthe Parties have determined, after good faith discussions, that such Forecast
\nShortfall is the necessary result of a Material Label Change, then the Dialysis
\nCenter Purchasers shall not be liable for such Forecast Shortfall.<\/p>\n\n\n\n
<\/td>\n\n

2.4.4.<\/p>\n<\/td>\n

\n

Good Faith Estimates<\/u><\/em>. Each Rolling Forecast submitted by
\nDialysis Center shall represent good faith estimates of the Dialysis Center
\nPurchasers’ actual anticipated purchases of EPOGEN for the treatment of dialysis
\npatients in the<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 10 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Territory and reasonable inventory requirements for EPOGEN in the Territory
\nduring the relevant timeframes.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.4.5.<\/p>\n<\/td>\n

\n

Available EPOGEN SKUs<\/u><\/em>.<\/em> The Available EPOGEN SKU
\nSchedule attached as Schedule 3<\/u> hereto sets forth the “Available
\nEPOGEN SKUs<\/u>” as of the Term Start Date. Amgen may add Available EPOGEN SKUs
\nto, or remove Available EPOGEN SKUs (with respect to all purchasers of EPOGEN
\nfor free-standing dialysis clinics) from, the Available EPOGEN SKUs Schedule
\nupon at least [*] advance written notice to Dialysis Center; provided that Amgen
\nmay not remove any Available EPOGEN SKUs from the Available EPOGEN SKUs Schedule
\nthat accounted for [*] percent ([*]%) or more of the Qualified Gross Purchases
\nof EPOGEN during the immediately preceding [*] without the prior written consent
\nof Dialysis Center, which consent may be withheld by Dialysis Center in its sole
\ndiscretion, unless there is an Available EPOGEN SKU that corresponds to the same
\ndosage, size and potency of the deleted Available EPOGEN SKU; and provided
\nfurther that, notwithstanding the foregoing, Amgen may immediately remove any
\nAvailable EPOGEN SKU should Amgen determine, in its sole discretion, that the
\nremoval of any such Available EPOGEN SKU is for safety or quality or similar
\nreasons. The Parties shall mutually agree upon (a) the first period for which
\nany such new Available EPOGEN SKU may be ordered by the Dialysis Center
\nPurchasers and (b) any permitted adjustments to the EPOGEN SKU mix contained in
\nDialysis Center’s then applicable Rolling Forecast to reflect any changes in the
\nAvailable EPOGEN SKUs or as otherwise may be required due to any production
\nshortfall applicable to all EPOGEN customers.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.5.<\/p>\n<\/td>\n

\n

Supply Commitment Shortfalls<\/u>. Dialysis Center shall promptly notify
\nAmgen in writing (the “Supply Shortfall Notice<\/u>“) if a Dialysis Center
\nPurchaser has not been able to purchase from the Authorized Wholesalers a
\nquantity of EPOGEN in [*] for any Available EPOGEN SKU that meets the Minimum
\nForecast Commitment for any Quarter for any reason, including as a result of a
\nForce Majeure Event related to Amgen (a “Supply Shortfall Quarter<\/u>“),
\nsetting forth in such notice the quantity of EPOGEN in [*] by Available EPOGEN
\nSKU representing such shortfall, including as a result of a Force Majeure Event
\nrelated to Amgen (the “Supply Shortfall<\/u>“). In the event of a Supply
\nShortfall, Amgen shall not intentionally discriminate against any of the
\nDialysis Center Purchasers in its allocation of the available quantities of an
\nAvailable EPOGEN SKU subject to such Supply Shortfall by making its allocation
\ndecisions, in whole or in part, on the basis of the prices, Discounts, and\/or
\nother financial terms offered to the Dialysis Center Purchasers pursuant to the
\nterms and conditions of this Agreement. In no event shall the inability to
\nobtain a particular Available EPOGEN SKU in a Minimum Forecast Commitment be
\ndeemed a Supply Shortfall, if a Dialysis Center Purchaser can purchase (i) the
\nsame quantity of EPOGEN in [*] through other Available EPOGEN SKUs or (ii)
\nAranesp, other than with respect to use by physicians with privileges at a
\nDialysis Center Purchaser who have obtained approval through Dialysis Center’s
\nformulary exception process to use a “short-acting” Alternative ESA instead of
\nAranesp. If the Authorized Wholesalers are actually unable to supply the
\nDialysis Center Purchasers with a quantity of (i) EPOGEN or (ii) Aranesp equal
\nto the Supply Shortfall within the time period reasonably required by the
\nDialysis Center Purchasers as set forth in the Supply Shortfall Notice, which in
\nno event will be less than five (5) business days after Amgen’s receipt of the
\napplicable Supply Shortfall Notice, the Purchase Commitment shall be reduced by
\nthe quantity of any Supply Shortfall that actually occurs (the “Actual Supply
\nShortfall<\/u>“).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.5.1.<\/p>\n<\/td>\n

\n

In the event of an Actual Supply Shortfall, Dialysis Center shall use good
\nfaith efforts to procure any Alternative ESAs from a Third Party at the [*].
\nDialysis<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 11 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Center shall deliver to Amgen a statement setting forth the aggregate [*]
\n(i.e.<\/em>, the aggregate [*] less all applicable discounts, rebates,
\nchargebacks and other price adjustments) actually paid by the Dialysis Center
\nPurchasers to any such Third Party for that quantity of Alternative ESAs
\npurchased by such Dialysis Center Purchasers during the Supply Shortfall Quarter
\nsolely as a substitute for the Actual Supply Shortfall (the “[*]<\/u>“);
\nprovided that should Dialysis Center be subject to any confidentiality
\nrestrictions that Dialysis Center may have with any Third Party from which it
\nprocured Alternative ESAs, then the Parties agree to send such [*] to the Firm
\nto be verified. Amgen shall pay to Dialysis Center an amount of cash equal to
\nthe difference, if any, between (a) the [*] and (b) the product of (i) (1) [*]
\nin effect for the Supply Shortfall Quarter less<\/u> (2) the Discounts per [*]
\nof Available EPOGEN SKU earned by the Dialysis Center Purchasers in such Supply
\nShortfall Quarter multiplied<\/u> by<\/u> (ii) the Actual Supply Shortfall.
\nAmgen shall also pay to Dialysis Center any incremental difference in the
\naggregate [*] of Aranesp purchased by Dialysis Center Purchasers as a result of
\nthe Supply Shortfall compared to the aggregate [*] of EPOGEN unless Amgen shall
\nhave notified Dialysis Center in advance that Dialysis Center Purchasers may
\npurchase an Alternative ESA as opposed to Aranesp during the Actual Supply
\nShortfall.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.5.2.<\/p>\n<\/td>\n

\n

Upon the completion of an Actual Supply Shortfall, the Purchase Commitment,
\nwith respect to the quantities of EPOGEN in [*] of the Available EPOGEN SKUs
\nthat constitute the Actual Supply Shortfall shall be suspended for a period of
\n[*] days to allow the Dialysis Center Purchasers to transition back from any
\nAlternative ESA’s used by the Dialysis Center Purchasers during such Actual
\nSupply Shortfall back to such applicable Available EPOGEN SKU.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.5.3.<\/p>\n<\/td>\n

\n

Provided that Amgen complies with its obligations under Section
\n2.5.1<\/u>, then Amgen will not be in breach of Section 2.1<\/u> and the Supply
\nCommitment as a result of the Actual Supply Shortfall.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.6.<\/p>\n<\/td>\n

\n

[*]<\/u>. The Dialysis Center Purchasers shall purchase EPOGEN from an
\nAuthorized Wholesaler at the then-prevailing [*] (subject to any wholesaler
\nmarkup, discount, services fees or other charges), and any Discounts shall be
\napplied in accordance with the schedules and terms set forth in Exhibit A<\/u>
\nand this Agreement. Amgen reserves the right to change [*] at any time, by any
\namount, without notice. Amgen shall promptly notify Dialysis Center of any
\nchange to [*].<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.7.<\/p>\n<\/td>\n

\n

Authorized Wholesalers<\/u>. Prior to the Term Start Date, Dialysis Center
\nshall select one or more Authorized Wholesalers from the Authorized Wholesaler
\nlist prepared by Amgen and set forth on Exhibit B<\/u> (as such list may be
\namended from time to time as provided in this Agreement, the “Authorized
\nWholesaler List<\/u>“), and only such selected Authorized Wholesalers shall be
\nAuthorized Wholesalers for purposes of this Agreement. From and after the Term
\nStart Date, Dialysis Center shall have the right to change its selection of
\nAuthorized Wholesalers from the Authorized Wholesaler List with thirty (30) days
\nprior written notice to Amgen. Dialysis Center may request Amgen to add
\nwholesalers to the Authorized Wholesaler List, and Amgen, at its sole
\ndiscretion, shall have the right to determine whether to approve of such
\naddition to the Authorized Wholesaler List. Amgen shall have the right to add or
\nremove wholesalers from the Authorized Wholesaler List set forth on Exhibit
\nB<\/u> in the exercise of its commercially reasonable discretion by thirty (30)
\ndays prior written notice to Dialysis Center, provided that for any removal (a)
\nAmgen removes such Authorized Wholesaler with respect to providing EPOGEN to all
\npurchasers of EPOGEN for free standing dialysis clinics, or (b) such Authorized
\nWholesaler requests Amgen to remove it as an Authorized Wholesaler for<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 12 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Dialysis Center Purchasers. In the event of any removal of an Authorized
\nWholesaler from the Authorized Wholesaler List by Amgen, Amgen shall work with
\nDialysis Center to transition the Dialysis Center Purchasers’ purchases of
\nEPOGEN to an alternative Authorized Wholesaler, and if no alternative Authorized
\nWholesaler exists at such time, the Parties shall use reasonable efforts to
\nestablish a direct purchasing relationship in any interim period between the
\nremoval of the removed Authorized Wholesaler and the initiation of purchases
\nfrom a new Authorized Wholesaler, if no Authorized Wholesaler exists at such
\ntime. Any such direct purchasing relationship shall be subject to credit
\nqualification and the approval by Amgen of an application for direct ship
\naccount. If the Dialysis Center Purchasers purchase EPOGEN directly from Amgen
\nas contemplated in this Section 2.7<\/u>, all purchases of EPOGEN made from
\nAmgen by such Dialysis Center Purchasers shall be deemed Qualified Gross
\nPurchases of EPOGEN and eligible for the Discounts.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

2.8.<\/p>\n<\/td>\n

\n

Dialysis Center Purchasers<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.8.1.<\/p>\n<\/td>\n

\n

Designated Affiliates and Managed Centers<\/u><\/em>. Only the
\nDesignated Affiliates listed on Exhibit C<\/u> (as such list may be amended
\nfrom time to time as provided in this Agreement, the “Designated Affiliates
\nList<\/u>“) and the Managed Centers set forth on Exhibit D<\/u> (as such list
\nmay be amended from time to time as provided in this Agreement, the “Managed
\nCenters List<\/u>“) shall be Dialysis Center Purchasers for purposes of this
\nAgreement. Dialysis Center shall promptly update and maintain the accuracy of
\nthe Designated Affiliates List and the Managed Centers List throughout the Term,
\nbut in no event later than thirty (30) days after the addition or removal of a
\nDialysis Center Purchaser pursuant to Section 2.8.2<\/u> or 2.8.3<\/u>
\nbelow. Dialysis Center shall not acquire, divest, restructure, reorganize or
\nreclassify its Affiliates or Managed Centers, or request any addition or removal
\nof any Dialysis Center Purchaser, with the purpose or intent in whole or in part
\nto avoid or eliminate its obligations or commitments, or the obligations and
\ncommitments of each of the Dialysis Center Purchasers set forth in this
\nAgreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.8.2.<\/p>\n<\/td>\n

\n

Addition of Dialysis Center Purchasers<\/u><\/em>. After the Term Start
\nDate, subject to Amgen’s reasonable consent under this Section 2.8.2<\/u>, all
\nnew Affiliates and Managed Centers in the Territory shall be added to this
\nAgreement and become Dialysis Center Purchasers. Dialysis Center shall provide
\nprior written notice to Amgen of each new Affiliate and Managed Center in the
\nTerritory (each a “Notice of Added Dialysis Center Purchaser<\/u>“), which
\nnotice shall include the proposed Added Dialysis Center Purchaser Transaction
\nDate, plus any additional information regarding the proposed Dialysis Center
\nPurchaser that Amgen shall reasonably request. Upon Amgen’s reasonable consent
\nand subject to the terms and conditions of Section 2.2<\/u> with respect to
\nthe Purchase Commitment, the Designated Affiliates List and the Managed Centers
\nList shall be amended to include such Affiliates or Managed Centers effective as
\nof the later of (i) thirty (30) days from the date of Amgen’s receipt of a
\nNotice of Added Dialysis Center Purchaser or (ii) the applicable Added Dialysis
\nCenter Purchaser Transaction Date (each such effective date, the “Added
\nDialysis Center Purchaser Effective Date<\/u>“, and each of the Affiliates and
\nManaged Centers added by such amendments, an “Added Dialysis Center
\nPurchaser<\/u>“). The Designated Affiliates List and the Managed Centers List
\nshall be amended without further action required of the Parties to reflect
\nadditions made in accordance with this Section 2.8.2<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 13 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

2.8.3.<\/p>\n<\/td>\n

\n

Removal of Dialysis Center Purchasers<\/u><\/em>. (A) Dialysis Center
\nmay remove Designated Affiliates from the Designated Affiliates List and Managed
\nCenters from the Managed Center List only (i) upon the written consent of Amgen,
\nwhich consent shall not be unreasonably withheld, conditioned, and\/or delayed or
\n(ii) upon thirty (30) days prior written notice to Amgen in the event such
\nremoval is a result of a (a) sale of all or substantially all of the assets or
\nequity interests of a Designated Affiliate to a Third Party, whether by
\nreorganization, merger, sales of assets, or sale of equity interests, (b)
\npermanent closure of a Designated Affiliate facility or (c) termination of the
\nrelevant management agreement for a Managed Center that has ceased its
\nmanagement relationship with Dialysis Center and\/or any Affiliate of Dialysis
\nCenter (each of the events described in this clause (ii), an “Authorized
\nRemoval Occurrence<\/u>“). Dialysis Center shall provide Amgen written notice
\ndescribing the nature of any requested removal, including the anticipated
\neffective date of any Authorized Removal Occurrence, and such removal shall be
\neffective thirty (30) days after Amgen has provided Dialysis Center with written
\nconsent to such removal or such earlier period as may be agreed to by Amgen or,
\nin the event of an Authorized Removal Occurrence, the effective date of the
\nAuthorized Removal Occurrence.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(B) Amgen shall also have the right to remove any Designated Affiliates from
\nthe Designated Affiliates List and any Managed Centers from the Managed Centers
\nList upon thirty (30) days (or such shorter \/period as may be required by Law or
\nany Governmental Authority) written notice to Dialysis Center (a) that such
\nremoval is required by order of a court or Governmental Authority or (b) in
\ninstances in which Amgen determines, in its reasonable discretion, that such
\nremoval is required (i) to comply with Law or (ii) as a result of any such
\nDesignated Affiliate’s or Managed Center’s negligence or willful misconduct in
\nthe use or administration of EPOGEN.<\/p>\n

(C) The Designated Affiliates List and the Managed Centers List shall be
\namended without further action required of the Parties to reflect removals made
\nin accordance with this Section 2.8.3<\/u>.<\/p>\n\n\n\n
<\/td>\n\n

2.8.4.<\/p>\n<\/td>\n

\n

Adjustments to Rolling Forecast<\/u><\/em>. Following the addition or
\nremoval of an Affiliate to or from the Designated Affiliates List or a Managed
\nCenter to or from the Managed Centers List, the Parties shall mutually agree in
\ngood faith to implement any reasonable and necessary adjustments to the Rolling
\nForecast to account for such addition or removal of an Affiliate to or from the
\nDesignated Affiliates List or a Managed Center to or from the Managed Centers
\nList; provided, that Amgen shall have no obligation under Section 2.5<\/u>
\nfor an Actual Supply Shortfall in the event that any increase to the quantities
\nof each Available EPOGEN SKU set forth in such adjusted Rolling Forecast is in
\nexcess of the applicable Permitted Percentage Variances.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.8.5.<\/p>\n<\/td>\n

\n

Dialysis Center Committed Purchasers List<\/u><\/em>. The Dialysis
\nCenter Purchasers as of the Term Start Date shall constitute the initial list of
\n“Dialysis Center Committed Purchasers<\/u>” as listed on Exhibit E<\/u> (as
\nsuch list may be amended from time to time as provided in this Agreement, the
\n“Dialysis Center Committed Purchasers List<\/u>“). Each Added Dialysis Center
\nPurchaser shall automatically be added to the Dialysis Center Committed
\nPurchasers List as of the Added Dialysis Center Purchaser Effective Date unless
\nAmgen shall have provided notice to the contrary prior to the Added Dialysis
\nCenter Purchaser Effective Date. Any Dialysis Center Purchaser removed from the
\nDesignated Affiliates List or the Managed Center List in accordance with
\nSection 2.8.3<\/u> shall automatically be removed from the Dialysis<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 14 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Center Committed Purchaser List as of the effective date of such removal from
\nthe Designated Affiliates List or the Managed Center List. Amgen shall have the
\nright in its sole discretion to add or remove any Dialysis Center Purchasers
\nfrom the Dialysis Center Committed Purchasers List upon at least fifteen (15)
\ndays’ written notice to Dialysis Center, effective as of the first day of the
\nQuarter after the expiration of the fifteen (15) day notice period; provided,
\nthat Amgen shall work together with Dialysis Center to agree as to which
\nspecific Dialysis Center Purchasers will be added or removed and, in the event,
\nthe Parties are unable to agree in a reasonable time, Amgen may in its
\ndiscretion add or remove specific Dialysis Center Purchasers that are not
\ndisproportionate in their use of Alternative ESAs compared to all Dialysis
\nCenter Purchasers. For avoidance of doubt, any Dialysis Center Committed
\nPurchaser that is removed from the Dialysis Center Committed Purchasers List but
\nremains on the Designated Affiliates List or the Managed Center List shall still
\nbe considered a Dialysis Center Purchaser.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.8.6.<\/p>\n<\/td>\n

\n

Access to Dialysis Center Facilities<\/u><\/em>. Amgen covenants and
\nagrees that neither it nor any of its employees and\/or agents shall have the
\nright to access to any Individually Identifiable Health Information while
\naccessing any of the Dialysis Center Purchasers’. The Parties acknowledge and
\nagree that (a) all of Dialysis Center’s applicable policies and procedures
\nregarding visitors and any updates thereto (the “Policies and
\nProcedures<\/u>“) that will be in effect during the Term are and will be
\navailable for viewing by Amgen and its employees and\/or agents during the Term
\nat http:\/\/www.davita.com\/about\/vendor-policies<\/u> and (b) Amgen and its
\nemployees and\/or agents shall have [*] during [*] to the Dialysis Center
\nPurchasers’ facilities for the purpose of promoting and providing [*] regarding
\n[*] and shall abide by all the Policies and Procedures during the Term to the
\nextent that such Policies and Procedures have not changed since the Term Start
\nDate, other than as required by any applicable Law and\/or generally accepted
\nindustry guidance covering vendor access to facilities, in a manner that would
\nlimit Amgen’s rights under this Section 2.8.6<\/u>; provided, however, that,
\nnotwithstanding anything contained in the Policies and Procedures, Amgen’s
\nemployees and\/or agents shall be permitted to utilize, without any pre-approval
\nor review by Dialysis Center, any Amgen internally approved (i) [*] materials
\nthat have been submitted to the FDA, (ii) [*] materials, and (iii) [*]
\nmaterials, provided, such [*] materials have been previously submitted to
\nDialysis Center’s Vice President of Clinical Management and Vendor Relations for
\napproval and not objected to by Dialysis Center’s Vice President of Clinical
\nManagement and Vendor Relations within [*] business days of such submission; and
\nprovided, further, that Amgen shall provide Dialysis Center’s Vice President of
\nClinical Management and Vendor Relations with copies of all materials to be
\nutilized at the Dialysis Center Purchaser’s facilities prior to their first use
\nat any facility of the Dialysis Center Purchasers.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.<\/p>\n<\/td>\n

\n

DISCOUNTS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.1.<\/p>\n<\/td>\n

\n

Earning, Calculating, Payment and Vesting of Discounts<\/u>. All Discounts
\nwill be earned, calculated and vested as set forth in Exhibit A<\/u>. For the
\npurposes of calculating the Discounts hereunder, Qualified Gross Purchases of
\nEPOGEN by any Dialysis Center Purchaser shall be deemed to be made on the date
\nof invoice by an Authorized Wholesaler or Amgen pursuant to Section 2.7<\/u>
\nto any such Dialysis Center Purchaser. The Discounts (other than invoice
\ndiscounts) shall be paid in arrears by electronic funds transfer using
\ninformation provided to Amgen by Dialysis Center as necessary to enable payment.
\nAll Discounts, excluding the Base Rate Rebate and the Base Invoice Discount,
\nshall be conditioned upon material compliance with Section 2.8.6<\/u>. Amgen
\nInc.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 15 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

hereby guarantees Amgen’s obligations to pay all Discounts earned by Dialysis
\nCenter hereunder.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.2.<\/p>\n<\/td>\n

\n

Verification and Audit<\/u>. Discounts (including any qualification
\ncriteria for any Discounts) specified herein and\/or any other amounts paid by
\none Party to the other Party pursuant to this Agreement are subject to
\nverification and audit of the relevant purchase and other data (including the
\nData, the Self-Reported Data and the Compensation Data), as reasonably necessary
\nto calculate any amounts payable hereunder. Dialysis Center Purchasers shall
\nmaintain their books and records in accordance with U.S. generally accepted
\naccounting principles, consistently applied. To the extent either Amgen or
\nDialysis Center, in its reasonable discretion, determines that it is necessary
\nto verify and confirm the calculation of: (a) any Discount described in this
\nAgreement in order to audit and assure compliance with the terms of this
\nAgreement and\/or (b) any other amount that one Party must pay to the other Party
\nunder this Agreement, the requesting Party shall provide written notice of same
\nto the other Party (an “Objection Notice”) setting forth in detail any and all
\nitems of disagreement related to such computation, statement, and\/or amount that
\nmust be paid by one Party to the other Party. Amgen and Dialysis Center shall
\njointly engage (at the requesting Party’s sole cost and expense, subject to any
\nreimbursement by the other Party as set forth below) and refer the items in
\ndispute to a nationally recognized firm of independent, certified public
\naccountants as to which Amgen and Dialysis Center mutually agree (the
\n“Firm<\/u>“), to resolve any disagreements. Amgen and Dialysis Center will
\ndirect the Firm to render a written determination within twenty (20) days of its
\nretention, and Amgen and Dialysis Center and their respective employees and\/or
\nagents will cooperate with the Firm during its engagement. The Firm shall keep
\nstrictly confidential all data reviewed and information learned or obtained in
\nconnection with resolving any Objection Notice and shall report to the
\nrequesting Party only the conclusion of its review without the disclosure of any
\nConfidential Information. All reports of the Firm shall be made available to
\nboth Parties simultaneously, promptly upon completion, and shall be deemed to
\nconclusively and definitively resolve the related Objection Notice, which shall
\nbe reimbursed (if applicable) in accordance with this Section 3.2<\/u>. Any
\nsuch audit shall be conducted during normal business hours, and so as not to
\nunreasonably interfere with the business of Amgen and\/or any of the Dialysis
\nCenter Purchasers. In the event any such audit is requested by Amgen and shows
\nthat Dialysis Center Purchasers have submitted incorrect information resulting
\nin Dialysis Center receiving in excess of [*] percent ([*]%) of the amount to
\nwhich it was entitled in any Quarter, Dialysis Center shall reimburse Amgen for
\nthe reasonable costs of such audit; otherwise, Amgen shall be responsible for
\nthe costs of such audit. In the event any such audit is requested by Dialysis
\nCenter and shows that Dialysis Center Purchasers have submitted correct
\ninformation but have been underpaid by more than [*] percent ([*]%) of the
\namount to which they were entitled in any Quarter, Amgen shall reimburse
\nDialysis Center for the reasonable costs of such audit; otherwise, Dialysis
\nCenter shall be responsible for the costs of such audit. The determination of
\nthe Firm will be conclusive and binding upon Amgen and Dialysis Center.
\nFollowing any audit that shows any over or underpayment hereunder, the relevant
\nParty shall, within sixty (60) days, make payment to the other Party for the
\ndifference between the amount paid hereunder and the amount actually payable
\nhereunder based upon the results of such audit.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.3.<\/p>\n<\/td>\n

\n

Adjustments for Changes<\/u>. In accordance with Section 2.8.2<\/u>
\nand\/or 2.8.3<\/u> above, in the event of an Affiliate’s addition to or
\ndeletion from the Designated Affiliates List or a Managed Center’s addition to
\nor deletion from the Managed Centers List during any Quarter of the Term, Amgen
\nshall adjust Qualified Gross Purchases of EPOGEN to account for such Affiliate’s
\naddition to or deletion from the Designated Affiliates List or a<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 16 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Managed Center’s addition to or deletion from the Managed Centers List by
\nadding or deleting such Designated Affiliates’ or Managed Centers’, as
\napplicable, purchases to or from the relevant Quarter or comparison Quarter (or
\nportion thereof).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.4.<\/p>\n<\/td>\n

\n

Treatment of Discounts and Rebates<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

3.4.1.<\/p>\n<\/td>\n

\n

Dialysis Center agrees that Dialysis Center Purchasers shall properly
\ndisclose and account for all Discounts earned hereunder, in whatever form, in
\ncompliance with all applicable federal, state, and local Laws, including
\n \u00a71128B(b) of the Social Security Act, as amended and its implementing
\nregulations. Dialysis Center agrees that, if required by such statutes or
\nregulations, it (together with its Designated Affiliates) shall and it shall
\ncause its Managed Centers to (i) claim the benefit of such Discount received in
\nthe fiscal year in which such Discount was earned or the year after, (ii) fully
\nand accurately report the value of such Discount in any cost reports filed under
\nTitle XVIII or Title XIX of the Social Security Act, as amended or a state or
\nlocal health care program, and (iii) provide, upon request by the U.S.
\nDepartment of Health and Human Services or a state or local agency or any other
\nfederally funded state health care program, the information furnished to
\nDialysis Center Purchasers by Amgen concerning the amount or value of such
\nDiscount.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

3.4.2.<\/p>\n<\/td>\n

\n

In order to assist Dialysis Center’s compliance with its obligations as set
\nforth in Section 3.4.1<\/u> above, Amgen agrees that it will fully and
\naccurately report all Discounts on the invoices or statements submitted to
\nDialysis Center and use reasonable efforts to inform Dialysis Center of its
\nobligations to report all such Discounts to the extent specified by 42 C.F.R \u00a7
\n1001.952(h)(2)(ii)(A) or where the value of a Discount is not known at the time
\nof sale, Amgen shall fully and accurately report the existence of the Discount
\nprogram on the invoices or statements submitted to Dialysis Center and use
\nreasonable efforts to inform Dialysis Center of its obligations to report all
\nsuch Discounts to the extent specified by 42 C.F.R \u00a7 1001.952(h)(2)(ii)(B), and
\nwhen the value of the Discounts become known, provide Dialysis Center with
\ndocumentation of the calculation of the Discount identifying the specific goods
\nor services purchased to which the Discount will be applied, in accordance with
\nSection 3.5<\/u> below.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.5.<\/p>\n<\/td>\n

\n

Reports<\/u>. Within ninety (90) days of the end of each Quarter, Amgen
\nshall provide to Dialysis Center a statement of the Discounts earned hereunder
\nwith the itemization of EPOGEN purchases made in a particular Quarter, broken
\ndown for each Dialysis Center Purchaser and any other information that Dialysis
\nCenter may reasonably request that is reasonably available to Amgen and
\nnecessary for Dialysis Center to obtain in order to comply with its obligations
\nhereunder. Dialysis Center agrees that it will provide such information to its
\nDialysis Center Purchasers in a timely manner in order to allow such Dialysis
\nCenter Purchasers to meet their reporting and other obligations hereunder and
\nunder applicable Law.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

3.6.<\/p>\n<\/td>\n

\n

Best Price Limitation<\/u>. At any time following the repeal, enactment or
\nmodification of any Law, policy, program memorandum, or the interpretation
\nthereof, including a decision by the Centers for Medicare & Medicaid
\nServices, that affects the definition of “Best Price<\/u>” (which, for
\npurposes of this Agreement, shall mean the price reported in Amgen’s Best Price
\nSubmission under Title XIX of the Social Security Act) or the methodology by
\nwhich Best Price must be calculated, Amgen shall have the right, in its sole
\ndiscretion, to determine the extent to which any [*] to any Third Party due to
\nsuch repeal, enactment, modification or decision may impact Amgen’s Best Price
\ncalculation under this Agreement alone or in combination with any other [*] in
\nother agreements with Dialysis Center or any Third Party. In the event that
\nAmgen determines reasonably and in good<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 17 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

faith that the then-existing [*] under this Agreement establishes or would
\nestablish a new “Best Price,” Amgen shall have the right, in its sole
\ndiscretion, upon the later of (a) the effective date of such repeal, enactment,
\nmodification or decision, or (b) notice to Dialysis Center, to [*] the Discounts
\noffered under this Agreement [*], and shall promptly notify Dialysis Center of
\nthe [*]; provided<\/u> that the [*] as adjusted by Amgen shall result in [*]
\navailable to Dialysis Center which would [*] the Best Price prior to the
\neffective date of such repeal, enactment, modification or decision, calculated
\nusing the modified definition or methodology by which Best Price is to be
\ncalculated.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

4.<\/p>\n<\/td>\n

\n

GOVERNANCE <\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

4.1.<\/p>\n<\/td>\n

\n

Business Representatives<\/u>. The “Business Representatives<\/u>” shall
\nbe comprised of: (i) in the case of Amgen, Amgen’s General Manager of the
\nNephrology Business Unit (the “Amgen Business Representative<\/u>“); and (ii)
\nin the case of Dialysis Center, the Chief Operating Officer of DaVita Inc. (the
\n“Dialysis Center Business Representative<\/u>“). Each Business Representative
\nshall be entitled to appoint designees who have been identified to the other
\nBusiness Representative in writing and have equivalent authority to the Party’s
\nBusiness Representative or have been expressly given all requisite authority by
\nthe Party’s Business Representative.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

4.2.<\/p>\n<\/td>\n

\n

Responsibilities of Business Representatives<\/u>. The Business
\nRepresentatives shall be responsible for overseeing the Parties’ activities and
\nconduct under this Agreement generally, and for ensuring an appropriate level of
\noversight. The Business Representatives shall meet in person, via teleconference
\nor videoconference at such times as may be deemed necessary by the Parties).\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.<\/p>\n<\/td>\n

\n

PATIENT AND PRODUCT DATA<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.1.<\/p>\n<\/td>\n

\n

Data Submission<\/u>. Dialysis Center shall deliver all Data to Amgen (or
\nto a data collection vendor specified by Amgen) in the format and manner
\nprovided in Exhibit A<\/u> and subject to the provisions of this Section
\n5<\/u>. To the extent Amgen requests that Dialysis Center deliver Data to a data
\ncollection vendor, Amgen agrees to cause any such data collection vendor to
\nadhere to and be bound by a substantially similar confidentiality obligation as
\nis applicable to Amgen under this Agreement, and Amgen shall be liable for any
\nfailure by any such data collection vendor to act in accordance with such
\nrequirements.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.2.<\/p>\n<\/td>\n

\n

HIPAA Compliance<\/u>. Neither Party has the intent that Dialysis Center
\nwill provide Amgen (or any specified data collection vendor) any Data in
\nviolation of HIPAA. Accordingly, the Parties shall engage an appropriately
\nqualified statistician, reasonably acceptable to each Party, who meets the
\nrequirements set forth in 45 C.F.R. \u00a7 164.514(b)(1) to review the Data and
\ndeliver a written certification that shall conclude that, subject to any
\nconditions, requirements or assumptions set forth therein, each delivery of Data
\npursuant to this Agreement will meet the standards for “de-identification” under
\nHIPAA (the “Certification<\/u>“). In connection with the Certification, the
\nParties agree to use their commercially reasonable best efforts to facilitate
\nthe completion and delivery of such Certification to each Party in an expedited
\nmanner, and Amgen shall bear the pre-approved costs of such Certification.
\nNotwithstanding anything in this Agreement to the contrary, in order to assure
\ncompliance, as determined by either Party in its reasonable discretion, with any
\nexisting Law relating to patient privacy of medical records, or at any time
\nfollowing the enactment of any Law relating to patient privacy of medical
\nrecords that in any manner reforms, modifies, alters, restricts, or otherwise
\naffects any of the Data received or to be received in connection with any of the
\nDiscounts contemplated under this Agreement, either Party may, upon thirty (30)
\ndays’ prior written notice, seek to amend this Agreement with respect to the
\naffected Discount. Dialysis Center and<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 18 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Amgen shall meet and in good faith mutually agree to modify this Agreement to
\naccommodate any such change in the Law, with the intent to, if possible, retain
\nthe essential terms of this Section 5<\/u> and the affected Discount and
\npricing structure of this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.3.<\/p>\n<\/td>\n

\n

Case Identifier<\/u>. Dialysis Center shall consistently use a unique
\nalpha-numeric code (which shall not be derived from Individually Identifiable
\nHealth Information) as a “case identifier” to track the care rendered to each
\nindividual patient over time, and such case identifier shall be included in the
\nData provided to Amgen. The key or list matching patient identities to their
\nunique case identifiers shall not be provided to Amgen.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.4.<\/p>\n<\/td>\n

\n

Data Use<\/u>. Amgen and its Affiliates shall have the right to use Data
\n(a) to support verification of the services under this Agreement, (b) for its
\n[*] and [*], development of [*], running [*] analyses, overall analyses of how
\nto improve treatment of patients on dialysis and creating tools by its marketing
\npersonnel, (c) in the aggregate for publications as part of a larger data set
\nincorporating comparable clinical data received from other dialysis providers in
\nthe Territory and provided that no portion of such data shall be attributed to
\nDialysis Center or its Affiliates, and (d) for purposes of verifying the
\nDialysis Center Purchasers’ performance under this Agreement and the calculation
\nof amounts payable hereunder, including verifying the Dialysis Center
\nPurchasers’ Purchase Commitment performance under this Agreement and calculating
\nor determining the Dialysis Center Purchasers’ eligibility to receive any
\nDiscount. Notwithstanding the foregoing, without Dialysis Center’s prior written
\nconsent (such consent not to be unreasonably conditioned, withheld or delayed):
\nAmgen and its Affiliates shall not (i) disclose to Third Parties the Data
\nprovided by Dialysis Center hereunder except (1) in any publication referenced
\nin clause (c) above, (2) pursuant to public health activities, (3) to agents of
\nAmgen bound by obligations of confidentiality no less restrictive than those
\ncontained in Section 11.14<\/u> or (4) to other Third Parties as required by
\nLaw or regulation as determined in Amgen’s discretion; and (ii) sell or resell
\nany such data or derivative works thereof to any Third Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.5.<\/p>\n<\/td>\n

\n

Clinical Research Studies<\/u>. Dialysis Center and Amgen acknowledge that
\nDialysis Center, either directly or through DaVita Clinical Research, Inc., an
\nAffiliate of Dialysis Center, may from time to time be engaged in research
\nstudies in which patients of the Dialysis Center Purchasers, may serve as
\nclinical trial subjects (a “Research Study<\/u>“). Notwithstanding any
\nobligation of Dialysis Center in this Agreement to the contrary, including any
\nrequirement in Section 3.5<\/u> of Exhibit A<\/u>, Dialysis Center shall not
\nbe required to submit Data for any patients of the Dialysis Center Purchasers
\nthat are participating in a Research Study (a “[*]<\/u>“), but shall continue
\nwithout limitation to be eligible for, and if earned receive, all Discounts
\ngranted pursuant to this Agreement, so long as (i) Dialysis Center notifies
\nAmgen of the [*] whose Data will not be delivered by Dialysis Center to Amgen as
\notherwise required by this Agreement as a result of such patient being a [*],
\nand (ii) the aggregate number of [*] whose Data is excluded by Dialysis Center
\ndoes not exceed the [*]. For purposes of the foregoing, “[*]<\/u>” means [*]
\npercent ([*]%) of the aggregate number of persons receiving treatment from the
\nDialysis Center Purchasers in any calendar month.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

6.<\/p>\n<\/td>\n

\n

OTHER DATA<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

6.1.<\/p>\n<\/td>\n

\n

Compensation Data<\/u>. Dialysis Center agrees that it shall provide the
\ndata, with respect to EPOGEN, set forth on Schedule 2<\/u> attached hereto
\n(the “Compensation Data<\/u>“) to Amgen in the electronic format set forth on
\nSchedule 2<\/u> on a calendar [*] basis no later than the fourteenth
\n(14th<\/sup>) day of the following calendar [*] following the [*] for which
\nsuch Compensation Data is being provided. Amgen acknowledges, agrees and
\ncovenants<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 19 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

that it shall only use the Compensation Data for sales force targeting and
\ncompensation. Dialysis Center and Amgen acknowledge and agree that the
\nCompensation Data does not include and shall never include any Individually
\nIdentifiable Health Information of any patient of Dialysis Center Purchasers.
\nNotwithstanding the foregoing, Amgen acknowledges and agrees that Dialysis
\nCenter shall only be required to deliver the Compensation Data to Amgen for as
\nlong as [*]. Amgen shall indemnify, defend and hold harmless Dialysis Center
\nfrom and against any and all loss, damage and\/or expense (including reasonable
\nattorney’s fees) that it may suffer as a result of claims, demands, actions,
\nproceedings, liabilities, costs or judgments, or threats thereof arising out
\nDialysis Center’s supply of the Compensation Data to Amgen.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

6.2.<\/p>\n<\/td>\n

\n

Self-Reported Purchase Data<\/u>. Dialysis Center, on behalf of the
\nDialysis Center Purchasers, acknowledges, covenants and agrees that it shall
\nsubmit full and complete Self-Reported Purchase Data for each Quarter to Amgen
\nwithin forty-five (45) days of the end of each such Quarter through a Purchase
\nData Submission Form attached here to as Exhibit SR-1<\/u>. Exhibit
\nSR-1<\/u> is subject to modification by mutual written agreement of the Parties.
\nDialysis Center on behalf of the Dialysis Center Purchasers shall submit
\nExhibit SR-1<\/u> in an Excel file format electronically by e-mail to [*] or
\nin such other manner as may be specified by Amgen through written notification
\nto Dialysis Center.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

7.<\/p>\n<\/td>\n

\n

JOINT PROJECTS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

7.1.<\/p>\n<\/td>\n

\n

Joint Projects<\/u>. The Parties shall form a “Joint Project
\nCommittee<\/u>” comprised of three (3) executives from each Party, one (1) of
\nwhom shall be a clinical executive, and shall be led by two (2) co-chairs, one
\n(1) appointed by each of the Parties. During the Term, either Party may present
\nto the Joint Project Committee one or more written proposals (a “Project
\nProposal<\/u>“) for a project or projects to be undertaken jointly by the Parties
\nrelated to the provision of Dialysis Services (a “Joint Project<\/u>“),
\ntogether with a draft project plan for the Joint Project (a “Project
\nPlan<\/u>“) which the Parties shall discuss in good faith. If the Parties agree
\nin writing to undertake a Joint Project, the Parties shall jointly pursue such
\nJoint Project in accordance with the Project Plan without any further approval
\naction required by the Parties.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

7.2.<\/p>\n<\/td>\n

\n

Joint Project Committee<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

7.2.1.<\/p>\n<\/td>\n

\n

Joint Project Committee Responsibilities<\/u><\/em>. <\/em>The Joint
\nProject Committee shall be responsible for the following:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

a)<\/p>\n<\/td>\n

\n

Reviewing and approving each new Project Proposal prior to adoption of any
\nJoint Projects set forth in such new Project Proposal;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

b)<\/p>\n<\/td>\n

\n

Reviewing and approving changes to the Project Plans for existing Joint
\nProjects prior to adoption of such changes;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

c)<\/p>\n<\/td>\n

\n

Providing for communication and discussion between the Parties to, as
\nappropriate, coordinate and optimize the development activities of the Parties
\nunder each Joint Project;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

d)<\/p>\n<\/td>\n

\n

Reviewing and monitoring the activities and progress of the Parties against
\nthe Joint Projects;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

e)<\/p>\n<\/td>\n

\n

Communicating with the Business Representatives regarding all of the
\nforegoing; and<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

f)<\/p>\n<\/td>\n

\n

Such other matters as are appropriate to make operational the terms of this
\nAgreement in respect of Joint Projects and as the Parties shall agree in
\nwriting.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 20 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

7.2.2.<\/p>\n<\/td>\n

\n

Meetings<\/u><\/em>. The Joint Project Committee shall meet in person,
\nvia teleconference or videoconference or otherwise, as frequently as deemed
\nnecessary by the Joint Project Committee. All Joint Project Committee meetings
\nshall have at least one (1) member appointed by each Party in attendance.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

7.2.3.<\/p>\n<\/td>\n

\n

Decision Making<\/u><\/em>. The Joint Project Committee shall make
\ndecisions by a unanimous vote. The Parties shall use good faith, reasonable
\nefforts to come to a complete agreement. In the event the Joint Project
\nCommittee fails to reach unanimity with respect to any matter, such matter shall
\nbe escalated to the Business Representatives.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.<\/p>\n<\/td>\n

\n

WARRANTIES, REPRESENTATIONS AND COVENANTS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.1.<\/p>\n<\/td>\n

\n

Power and Authority<\/u>. Each Party represents and warrants to the other
\nthat this Agreement: (a) has been duly authorized, executed, and delivered by
\nit, (b) constitutes a valid, legal, and binding agreement enforceable against it
\nin accordance with the terms contained herein, and (c) does not and shall not
\nconflict with or violate any of its other contractual obligations, expressed or
\nimplied, to which it is a party or by which it may be bound.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.2.<\/p>\n<\/td>\n

\n

Compliance with Law and Regulation<\/u>. Amgen and Amgen Inc. shall, and
\nDialysis Center shall, comply with all applicable Laws related to the
\nperformance of their respective obligations under this Agreement. Each Party
\nrepresents and warrants that (which representations and warranties shall be
\nongoing representations and warranties during the Term): (i) it is not currently
\nnamed on any of the following lists: (A) HHS\/OIG List of Excluded
\nIndividuals\/Entities, (B) GSA List of Parties Excluded from Federal Programs, or
\n(C) OFAC “SDN and Blocked Individuals” and (ii) it shall promptly notify the
\nother Party in the event it becomes named on any of the following lists: (x)
\nHHS\/OIG List of Excluded Individuals\/Entities, (y) GSA List of Parties Excluded
\nfrom Federal Programs, or (z) OFAC “SDN and Blocked Individuals”.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.3.<\/p>\n<\/td>\n

\n

Product<\/u>. Amgen covenants and agrees that EPOGEN is not and will not be
\nadulterated or misbranded within the meaning of the Federal Food, Drug and
\nCosmetic Act, as amended, or within the meaning of any applicable Law, or is or
\nwill be a product which may not be introduced in to interstate commerce. Amgen
\nwarrants that EPOGEN purchased pursuant to this Agreement (a) is manufactured,
\nand up to the time of its receipt by Authorized Wholesalers is handled, stored,
\nand transported in accordance with all applicable Laws, and meet all
\nspecifications for effectiveness and reliability as required by the United
\nStates Food and Drug Administration (the “FDA<\/u>“), and (b) when used in
\naccordance with the directions in its labeling is fit for the purposes and
\nindications described in its labeling. Amgen warrants that the use of EPOGEN by
\nDialysis Center Purchasers shall not infringe upon any ownership rights of any
\nother individual or entity or upon any patent, copyright, trademark or other
\nintellectual property or proprietary right or trade secret of any individual or
\nentity. Amgen agrees that as soon as practicable it will notify Dialysis Center
\nof any material defect in EPOGEN delivered to any Dialysis Center Purchasers in
\naccordance with applicable Law.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.4.<\/p>\n<\/td>\n

\n

Data<\/u>. Dialysis Center represents and warrants to Amgen that: (a) the
\nData, the Compensation Data, and the Self-Reported Purchase Data that the
\nDialysis Center Purchasers deliver to Amgen pursuant to Section 5<\/u> and
\nSection 6<\/u> shall be: (i) prepared and delivered in accordance with the
\nprovisions of Section 5<\/u>, Section 6<\/u> and Exhibit A<\/u> and (ii)
\nas complete and accurate as is reasonably obtainable in view of the Dialysis
\nCenter Purchasers’ customary method of compilation and the nature and accuracy
\nof the Dialysis Center Purchasers’ resources; (b) the Dialysis Center Purchasers
\nshall not knowingly and intentionally misrepresent any of the Data, the
\nCompensation Data,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 21 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

and\/or the Self-Reported Purchase Data provided by the Dialysis Center
\nPurchasers to Amgen; and (c) Dialysis Center shall promptly notify Amgen in the
\nevent it has actual knowledge that any of the Data, the Compensation Data,
\nand\/or the Self-Reported Purchase Data is not complete and\/or accurate.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.5.<\/p>\n<\/td>\n

\n

Designated Affiliates List and Managed Centers List<\/u>. Dialysis Center
\nrepresents and warrants that the Designated Affiliates List and the Managed
\nCenters List, as each of them is attached to this Agreement as of the Term Start
\nDate (and as of any subsequent date that such lists are updated in accordance
\nwith the terms hereof) are complete and accurate lists of all Affiliates of
\nDialysis Center and Managed Centers of Dialysis Center providing Dialysis
\nServices in the Territory as of the Term Start Date (and as of each such
\nsubsequent date).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.6.<\/p>\n<\/td>\n

\n

Adverse Claims<\/u>. Each Party represents and warrants to the other Party
\nthat, as of the execution of this Agreement, such Party has no actual knowledge
\nof any legal claim or right to be asserted against the other Party or its
\nAffiliates related to the negotiation or execution of this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.7.<\/p>\n<\/td>\n

\n

NO OTHER WARRANTIES<\/u>. OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN
\nTHIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ALL
\nOTHER WARRANTIES, STATUTORY, EXPRESS, AND\/OR IMPLIED, INCLUDING THOSE OF
\nMERCHANTABILITY AND\/OR FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY HEREBY
\nEXPRESSLY WAIVES ANY AND ALL OTHER WARRANTIES, STATUTORY, EXPRESS, AND\/OR
\nIMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND\/OR FITNESS FOR A PARTICULAR
\nPURPOSE.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.<\/p>\n<\/td>\n

\n

DISPUTE RESOLUTION, INSURANCE and INDEMNITY<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.1.<\/p>\n<\/td>\n

\n

Escalation of Disputes to Business Representatives<\/u>. The Parties
\nrecognize that claims, disputes or controversies arising out of or relating to
\nthis Agreement (“Disputes<\/u>“) may occur from time to time. It is the
\nobjective of the Parties to establish procedures to facilitate the resolution of
\nDisputes arising under this Agreement in an expedient manner by mutual
\ncooperation and, if possible, without resort to litigation.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

In the event of any Dispute, and prior to either Party (a) commencing any
\naction in a court of law or under any Governmental Authority, or (b) taking any
\naction to terminate this Agreement as provided in Section 10<\/u>, the Parties
\nshall first undertake that the employees of each Party with relevant expertise
\nand authority with respect to a Dispute shall meet to discuss such Dispute
\nwithin five (5) business days of a Party receiving notice of a Dispute (except
\nin the case where delay in resolving any such Dispute would be materially
\nprejudicial to a Party, in which case the Dispute will be referred directly to
\nthe Business Representatives). In the event the Parties are unable to resolve
\nany such Dispute within thirty (30) business days of the initial meeting between
\nthe Parties, it shall be referred to the Business Representatives, who shall
\nnegotiate with one another in good faith to reach a good faith resolution of the
\nDispute; provided<\/u>, that the Parties shall use commercially reasonable
\nbest efforts to expedite the resolution of any Disputes which by their nature
\nneed to be made quickly by the Business Representatives. In the event the
\nDispute cannot be resolved by the Business Representatives within fifteen (15)
\nbusiness days of the initial meeting between the Business Representatives or
\nsuch other period of time as is mutually agreed to by the Parties, then, upon
\nthe written demand of either Party, the Dispute shall be subject to arbitration,
\nas provided in Section 9.2<\/u>. Pending resolution of any Dispute, both
\nParties will continue their performance under this Agreement of all obligations
\nthat are not the subject of any such Dispute. If there is a Dispute relating to
\nany amount owed by either Party to the other Party, the undisputed<\/p>\n

Page 22 of 136<\/p>\n

\n

portion of such amount shall be paid to the other Party in accordance with
\nthe terms hereof, and the Parties shall first attempt to resolve the disputed
\nbalance in accordance with this Section 9.1<\/u>.<\/p>\n\n\n\n
\n

9.2.<\/p>\n<\/td>\n

\n

Arbitration<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.2.1.<\/p>\n<\/td>\n

\n

Claims<\/u><\/em>. Subject to Section 9.3<\/u> below, any Dispute that
\nis not resolved under Section 9.1<\/u> within thirty (30) days after a Party’s
\ninitial written request for resolution, shall be resolved by final and binding
\narbitration administered by JAMS (the “Administrator<\/u>“) in accordance with
\nits Comprehensive Arbitration Rules and Procedures (the “Rules<\/u>“), except
\nto the extent any such Rule conflicts with the express provisions of this
\nSection 9.2<\/u>. (capitalized terms in this Section 9.2<\/u> used but not
\notherwise defined in this Agreement shall have the meanings provided in the
\nRules.) For Disputes valued at less than Five Million Dollars ($5,000,000), the
\nArbitration shall be conducted by one (1) neutral arbitrator
\n(“Arbitrator<\/u>“) selected in accordance with the Rules, provided that such
\nArbitrator shall not be a current or former employee or director, or a current
\nstockholder, of either Party or any of their respective Affiliates. For Disputes
\nvalued at or more than Five Million Dollars ($5,000,000), the Arbitration shall
\nbe conducted by a panel of three (3) neutral Arbitrators selected in accordance
\nwith the Rules, provided that any such Arbitrator shall not be a current or
\nformer employee or director, or a current stockholder, of either Party or any of
\ntheir respective Affiliates. The Arbitration shall be held in Los Angeles,
\nCalifornia.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.2.2.<\/p>\n<\/td>\n

\n

Discovery<\/u><\/em>. Within forty-five (45) days after selection of the
\nArbitrator(s), the Arbitrator(s) shall conduct the Preliminary Conference. In
\naddressing any of the subjects within the scope of the Preliminary Conference,
\nthe Arbitrator(s) shall take into account both the needs of the Parties for an
\nunderstanding of any legitimate issue raised in the Arbitration and the
\ndesirability of making discovery efficient and cost-effective. In that regard,
\nthe Parties agree to the application of the E-Discovery procedures set forth in
\nRule 16.2(c) of JAMS’ Expedited Procedures; provided that the Parties agree that
\nthe time limitations identified in Rule 16.2 of JAMS’ Expedited Procedures shall
\nnot be binding and the Arbitrator(s) shall set time limitations for discovery
\nand depositions that are reasonable and necessary in light of the issues and
\nmatters raised in the Preliminary Conference. In no event shall the time
\nlimitations set by the Arbitrator(s) for discovery and depositions be shorter
\nthan the time periods for discovery and depositions that are set forth in Rule
\n16.2 of JAMS’ Expedited Procedures.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.2.3.<\/p>\n<\/td>\n

\n

Hearing; Decision<\/u><\/em>. The hearing (“Hearing<\/u>“) shall
\ncommence within a reasonable time after the discovery cutoff. The Arbitrator(s)
\nshall require that each Party submit concise written statements of position and
\nshall permit the submission of rebuttal statements, subject to reasonable
\nlimitations on the length of such statements to be established by the
\nArbitrator(s). The Arbitrator(s) shall also permit the submission of expert
\nreports. The Arbitrator(s) shall render the award (“Award<\/u>“) within thirty
\n(30) days after the Arbitrator(s) declares the Hearing closed, and the Award
\nshall include a written statement describing the essential findings and
\nconclusions on which the Award is based, including the calculation of any
\ndamages awarded. The Arbitrator(s) will, in rendering his, her or their
\ndecision, apply the substantive law of the State of California, without giving
\neffect to its principles of conflicts of law, and without giving effect to any
\nrules or laws relating to arbitration. The Award rendered by the Arbitrator(s)
\nshall be final, binding and non-appealable, and judgment may be entered upon it
\nin any court of competent jurisdiction. However, the Parties agree that the JAMS
\nOptional Arbitration Appeal Procedures<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 23 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

(“Appeal Procedures<\/u>“) shall apply to the Arbitration, at the request
\nby either Party in accordance with such Appeal Procedures. If a Party appeals
\nthe Award rendered by the Arbitrator(s), the Award issued by the Appeal Panel
\n(as defined in such Appeal Procedures) shall be final, binding and
\nnon-appealable, and judgment may be entered upon it in any court of competent
\njurisdiction.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.2.4.<\/p>\n<\/td>\n

\n

Costs<\/u><\/em>. Each Party shall bear its own attorney’s fees, costs,
\nand disbursements arising out of the Arbitration, and shall pay an equal share
\nof the fees and costs of the Arbitrator(s); provided, however, the Arbitrator(s)
\nshall be authorized to determine whether a Party is the prevailing party, and if
\nso, to award to that prevailing party reimbursement for any or all of its
\nreasonable attorneys’ fees, costs and disbursements (including, for example,
\nexpert witness fees and expenses, photocopy charges, travel expenses, etc.),
\nand\/or the fees and costs of the Administrator and the Arbitrator(s).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.2.5.<\/p>\n<\/td>\n

\n

Confidentiality<\/u><\/em>. Each Party acknowledges and agrees that: (a)
\nany discovery pursuant to this Section 9.2<\/u>, (b) the Hearing, (c) any and
\nall documents exchanged or delivered in connection with the Hearing, settlement
\nnegotiations, and\/or settlement terms, including the statements of position,
\nrebuttal statements, and expert reports, (d) settlement negotiations and\/or
\nsettlement terms, and (e) the Award shall be treated as Confidential Information
\nand subject to the terms and conditions of Section 11.14<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.3.<\/p>\n<\/td>\n

\n

Court Actions<\/u>. Nothing contained in this Agreement shall deny either
\nParty the right to seek injunctive or other equitable relief from a court of
\ncompetent jurisdiction in the context of a bona fide emergency or prospective
\nirreparable harm, and such an action may be filed and maintained notwithstanding
\nany ongoing discussions between the Parties or any ongoing arbitration
\nproceeding.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.4.<\/p>\n<\/td>\n

\n

Insurance<\/u>. Each Party shall secure and maintain in full force and
\neffect throughout the Term (and following termination, to the extent necessary
\nto cover any claims arising from this Agreement) commercial general liability
\ninsurance and product liability (in the case of Amgen only) which include
\ncontractual liability with limits of no less than [*] dollars ($[*] USD);
\nprofessional liability insurance (in the case of Dialysis Center only) with
\nlimits of no less than [*] dollars ($[*] USD), and workers’ compensation with
\nstatutory limits. Any limits on each of a Party’s insurance coverage shall not
\nbe construed to create any limit on such Party’s liability with respect to its
\nobligations under this Agreement or otherwise. Each of the Parties shall have
\nthe right to satisfy its obligations under this Section 9.4<\/u> through
\nself-insurance. Amgen Inc. hereby guarantees the performance of Amgen’s
\nobligations as set forth in this Section 9.4<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.5.<\/p>\n<\/td>\n

\n

Indemnity<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.5.1.<\/p>\n<\/td>\n

\n

By Amgen.<\/em> Amgen agrees to indemnify, defend, and hold Dialysis
\nCenter, its officers, directors, agents and employees (collectively, the
\n“Dialysis Center Indemnitees<\/u>“) harmless from and against any and all
\nloss, damage and\/or expense (including reasonable attorney’s fees) that they may
\nsuffer as a result of Third Party claims, demands, actions, proceedings,
\nliabilities, costs or judgments, or threats thereof (“Third Party
\nClaim(s)<\/u>“) arising out of (i) any defect in the design and\/or manufacture of
\nEPOGEN or the storage and\/or transportation of EPOGEN in Amgen’s possession,
\nincluding claims for property damage, loss of life, and\/or bodily injury; and\/or
\n(ii) the breach by Amgen or Amgen Inc. of any of their respective warranties,
\nrepresentations, and\/or covenants contained in this Agreement. Notwithstanding
\nanything to the contrary contained herein, Amgen and Amgen Inc. shall not have
\nany obligation to defend, indemnify, and\/or hold the<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 24 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Dialysis Center Indemnitees harmless from any Third Party Claims arising out
\nof the negligent acts and\/or omissions and\/or willful misconduct of the Dialysis
\nCenter Indemnitees. This indemnification shall survive the termination or
\nexpiration of this Agreement. Amgen Inc. hereby guarantees the performance of
\nAmgen’s obligations as set forth in this Section 9.5.1<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.5.2.<\/p>\n<\/td>\n

\n

By Dialysis Center.<\/em> Dialysis Center agrees to indemnify, defend, and
\nhold Amgen, its officers, directors, agents and employees (collectively, the
\n“Amgen Indemnitees<\/u>“) harmless from and against any and all Third Party
\nClaims arising out of (i) any Dialysis Center Purchasers’ administration,
\npromotion or use of EPOGEN purchased under this Agreement to its patients; (ii)
\nany Dialysis Center Purchasers’ failure to store and\/or transport any EPOGEN in
\nits possession in accordance with any applicable Law and\/or labeling
\ninformation; and\/or (iii) the breach by Dialysis Center of any of its
\nwarranties, representations, and\/or covenants contained in this Agreement. For
\npurposes of the foregoing, the “administration” of EPOGEN by Dialysis Center
\nshall mean the dispensing and handling by Dialysis Center and its employees of
\nEPOGEN and the actual administration of EPOGEN to patients by Dialysis Center
\nand its employees, but shall exclude physician prescriptions of EPOGEN to
\npatients. Notwithstanding anything to the contrary contained herein, Dialysis
\nCenter shall not have any obligation to defend, indemnify, and\/or hold the Amgen
\nIndemnitees harmless from any Third Party Claims arising out of the negligent
\nacts and\/or omissions and\/or willful misconduct of the Amgen Indemnitees. This
\nindemnification shall survive the termination or expiration of this Agreement.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.6.<\/p>\n<\/td>\n

\n

Procedure for Third Party Claims<\/u><\/em>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.6.1.<\/p>\n<\/td>\n

\n

Notice<\/u><\/em>.<\/em> The Party receiving indemnification
\nhereunder (the “Indemnified Party<\/u>“) shall give the Party providing
\nindemnification hereunder (the “Indemnifying Party<\/u>“) written notice
\nwithin fifteen (15) business days after the Indemnified Party receives notice of
\nany Third Party Claim, subject to indemnification hereunder upon which such
\nIndemnified Party intends to base a request for indemnification under
\nSection 9.5.1<\/u> or Section 9.5.2<\/u>. Failure to give any such notice
\nshall not constitute a waiver of any right to indemnification or reduce in any
\nway the indemnification available hereunder, except and only to the extent that
\nas a result of such failure the Indemnifying Party demonstrates that it was
\ndirectly and materially damaged as a result of such failure to give timely
\nnotice.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.6.2.<\/p>\n<\/td>\n

\n

Control of Defense.<\/u><\/em> The Indemnifying Party, at its expense,
\nshall assume control of the defense and resolution of each Third Party Claim
\nusing legal counsel reasonably approved by the Indemnified Party and shall keep
\nthe Indemnified Party fully and timely informed of the progress of such defense
\nand resolution. With respect to each Third Party Claim, the Indemnified Party
\nshall have the right to retain independent legal counsel at its cost and monitor
\nsuch Third Party Claim’s defense and resolution. In such a case, the
\nIndemnifying Party and its legal counsel shall fully cooperate with the
\nIndemnified Party and its legal counsel in providing such information as the
\nIndemnified Party may reasonably request. Notwithstanding this Section
\n9.6.2<\/u>, the Indemnifying Party shall not be entitled to control, but may
\nparticipate in, and the Indemnified Party shall be entitled to have sole control
\nover and select counsel to conduct, the defense or settlement of each Third
\nParty Claim that: (i) seeks a temporary restraining order, a preliminary or
\npermanent injunction, and\/or specific performance against the Indemnified Party,
\n(ii) involves criminal allegations against the Indemnified Party, (iii) if
\nunsuccessful, would set a precedent that would materially interfere with<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 25 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

and\/or have a material adverse effect on the business and\/or financial
\ncondition of the Indemnified Party, and\/or (iv) imposes liability on the part of
\nthe Indemnified Party for which the Indemnified Party is not entitled to
\nindemnification hereunder. In such an event, the Indemnifying Party will still
\nhave all of its obligations hereunder with respect to any such affected Third
\nParty Claims; provided<\/u> that<\/u> the Indemnified Party will not settle
\nany such affected Third Party Claims without the prior written consent of the
\nIndemnifying Party, which consent will not be unreasonably withheld,
\nconditioned, and\/or delayed by the Indemnifying Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.6.3.<\/p>\n<\/td>\n

\n

Representation.<\/u><\/em> If both the Indemnifying Party and the
\nIndemnified Party are named parties in any Third Party Claim and representation
\nof both Parties by the same legal counsel would be inappropriate due to the
\nactual or potential differing interests between them, then the Indemnified
\nParty, at the Indemnifying Party’s expense, shall have the right to be
\nrepresented by separate counsel of the Indemnified Party’s choosing.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.6.4.<\/p>\n<\/td>\n

\n

Resolution.<\/u><\/em> The Indemnifying Party shall not settle,
\ncompromise or resolve any Third Party Claim without the written consent of the
\nIndemnified Party; provided<\/u> that, the Indemnifying Party may, without
\nsuch consent, enter into any such judgment, settlement, compromise or resolution
\nthat relates solely to the payment of money damages, involves a full release of
\nthe Indemnified Party and does not result in any admission of any fault of the
\nIndemnified Party with respect to such Third Party Claim.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.6.5.<\/p>\n<\/td>\n

\n

Payment<\/u><\/em>. Any final judgment entered or settlement agreed upon
\nin the manner provided in this Section 9.6<\/u>, as applicable, shall be
\nbinding upon the Indemnifying Party and shall conclusively be deemed to be an
\nobligation with respect to which the Indemnified Party is entitled to prompt
\nindemnification hereunder, if applicable. Payment of all amounts owing by the
\nIndemnifying Party under this Section 9.6<\/u>, as applicable, shall be made
\npromptly upon a final settlement between the Indemnifying Party and the
\nIndemnified Party or upon a final adjudication determined by the Arbitrator(s)
\nthat an indemnification obligation is owed by the Indemnifying Party to the
\nIndemnified Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

10.<\/p>\n<\/td>\n

\n

TERM AND TERMINATION<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

10.1.<\/p>\n<\/td>\n

\n

Term<\/u>. This Agreement shall come into effect as of the Term Start Date
\nand shall expire on the earlier of the Term End Date, or the Termination Date.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

10.2.<\/p>\n<\/td>\n

\n

Termination for Cause<\/u>. Amgen or Dialysis Center may terminate this
\nAgreement only in the event of the following:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

10.2.1.<\/p>\n<\/td>\n

\n

Breach of Purchase Commitment<\/u><\/em>. <\/em>The Parties
\nacknowledge and agree that the Purchase Commitment is the principal value
\nexpected to be received by Amgen under this Agreement and it is the essential
\ninducement for Amgen to enter into this Agreement, pursuant to which it has
\nagreed, among other things, (a) to provide the Dialysis Center Purchasers for
\nthe duration of the Term the economic benefits of the Discounts provided for
\nherein, (b) to make the Supply Commitment, which requires that Amgen commit
\nfacilities to the manufacture of EPOGEN at the expense of other Amgen uses and
\nallocate significant resources to maintain its manufacturing capabilities and
\ncapacity at a commensurate level, (c) to assume the business risks and financial
\nliability in respect of the representations, warranties and covenants made by it
\nhereunder and (d) to forego potential other commercial opportunities in respect
\nof its nephrology business. In the event that the Dialysis<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 26 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Center Committed Purchasers do not meet an Amgen ESAs Share of Sales of (i)
\nat least [*] percent ([*]%) for [*] or more [*] during the Term with respect to
\nwhich the Dialysis Center is required to pay the Alternative ESA Purchase Amount
\nwith respect to each of such [*] in any [*] period during the Term, or (ii) at
\nleast [*] percent ([*]%) in any [*], then Amgen shall be entitled to terminate
\nthis Agreement immediately upon written notice to Dialysis Center and,
\nnotwithstanding any other provision of this Agreement, thereupon either receive
\nthe “Liquidated Damages” defined below or exercise such other rights and
\nremedies as may be allowed at law or in equity under applicable Law.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

10.2.2.<\/p>\n<\/td>\n

\n

Termination for Failure to Supply<\/u><\/em>. Dialysis Center may
\nterminate this Agreement immediately upon written notice to Amgen in the event
\nthat Amgen has not been able to supply to Dialysis Center through one or more
\nAuthorized Wholesalers EPOGEN in [*] (or Aranesp subject to the terms of
\nSection 2.5<\/u>) equal to at least [*] percent ([*]%) of the Minimum Forecast
\nCommitment (other than as a result of one or more Force Majeure Events) for [*].\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

10.2.3.<\/p>\n<\/td>\n

\n

Termination for Exclusion from Federal Health Care Program<\/u><\/em>.
\nEither Amgen or Dialysis Center may immediately terminate this Agreement upon
\nwritten notice to the other Party in the event there is change in the other
\nParty’s status which excludes it from participation in any “Federal health care
\nprogram” (as defined under 42 U.S.C. \u00a7 1320a-7b(f)) (a “Debarred
\nParty<\/u>“), provided that no Party shall have the right to terminate this
\nAgreement pursuant to this Section 10.2.3<\/u> if the Debarred Party can
\ncomplete its obligations through, or otherwise transfer its obligations to, an
\nAffiliate as permitted by applicable Law.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

10.3.<\/p>\n<\/td>\n

\n

Liquidated Damages<\/u>. The Parties acknowledge that Amgen’s actual
\ndamages in the event of a termination by Amgen, pursuant to Section
\n10.2.1<\/u> or Section 10.2.3<\/u>, would be difficult to ascertain, and that
\nthe payment of the Liquidated Damages represents the best estimate of the amount
\nof such damages by the Parties at this time. The Parties further expressly
\nacknowledge and agree that the Liquidated Damages are intended not as a penalty,
\nbut as full liquidated damages, in the event of Amgen’s termination of this
\nAgreement pursuant to Section 10.2.1<\/u> or Section 10.2.3<\/u> and as
\ncompensation for Amgen’s losses and other expenses associated with this
\nAgreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

For purposes of this Agreement, “Liquidated Damages<\/u>” means, in
\naddition to any amounts owed to Amgen under this Agreement, including for breach
\nof the Purchase Commitment under Section 2.1<\/u>, an amount in cash equal to
\n[*] percent ([*]%) of the [*] of Amgen’s projected [*] for each remaining
\nQuarter (including any fractional Quarters) in the Term, with such [*] equal to
\nA : B, grown Quarterly at a [*] percent ([*]%) annual rate and discounted on a
\nQuarterly basis, at a rate equal to the average annual increase in [*] for
\nEPOGEN on an [*] basis for all calendar years during the Term prior to the
\nrelated [*] calculation, where:<\/p>\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

A =<\/p>\n<\/td>\n

<\/td>\n\n

The average [*] for the [*] most recent Quarters prior to the Termination
\nDate in which Dialysis Center satisfied the Purchase Commitment in full (or, if
\nless than [*] such Quarters exist, then “A” shall equal the average of the sum
\nof (i) [*] plus (ii) the [*], for the [*] most recent Quarters prior to the
\nTermination Date); and<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

B =<\/p>\n<\/td>\n

<\/td>\n\n

The average aggregate [*] (other than the [*] Rebate, the [*] Rebate and the
\n[*] Rebate) earned by Dialysis Center Purchasers during the [*] most recent
\nQuarters prior to the Termination Date, regardless of whether Dialysis Center
\nsatisfied the Purchase Commitment in such Quarters.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 27 of 136<\/p>\n

\n\n\n\n
\n

10.4.<\/p>\n<\/td>\n

\n

Effect of Termination<\/u>. Upon any termination or expiration of this
\nAgreement, (a) any earned and vested Discounts shall be paid in accordance with
\nthe terms set forth in Exhibit A<\/u>, (b) any Alternative ESA Purchase
\nAmounts shall be paid pursuant to Section 2.1.1<\/u>, (c) any payments by
\nAmgen owing to Dialysis Center under Section 2.5.1<\/u> shall be paid, (d) any
\npayment by Dialysis Center owing to Amgen under Section 2.4.2<\/u> shall be
\npaid and (e) the Liquidated Damages pursuant to Section 10.3<\/u> shall be
\npaid. All Discounts available to Dialysis Center in the particular Quarter in
\nwhich such termination occurs shall be paid to Dialysis Center based on an
\nachievement of the eligibility and vesting requirements set forth in Exhibit
\nA<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

10.5.<\/p>\n<\/td>\n

\n

Survival<\/u>. Any provision that, either expressly or by its nature is
\nintended to survive this Agreement, shall survive any expiration or termination
\nof this Agreement, including Sections<\/u> 1, 3, 8, 9, 10, and 11.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.<\/p>\n<\/td>\n

\n

MISCELLANEOUS<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.1.<\/p>\n<\/td>\n

\n

Amendment<\/u>. Except as expressly set forth herein, no amendment of this
\nAgreement shall be effective unless expressed in a writing signed by a duly
\nauthorized representative of each Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.2.<\/p>\n<\/td>\n

\n

Assignment<\/u>. Neither Party shall have the right to assign or otherwise
\ntransfer this Agreement, or any of its rights and obligations hereunder, in
\nwhole or in part, without the other Party’s prior written consent, and any
\nattempted assignment or transfer without such consent shall be void; provided,
\nhowever, that Amgen may assign or otherwise transfer this Agreement and its
\nrights and obligations hereunder to any of its Affiliates that is not in the
\nbusiness of providing Dialysis Services in the Territory. Notwithstanding the
\nforegoing, each Party shall be obligated to assign and transfer this Agreement,
\nwithout any required consent, to any Person to whom either such Party has
\ntransferred all or substantially all of its business relating to this Agreement,
\nand the Parties agree that they shall take all reasonable and necessary actions
\nin respect thereof including the execution and delivery of all appropriate
\ninstruments to effectuate such assignment and transfer of this Agreement;
\nprovided that any assignment and transfer of this Agreement by Amgen to any
\nPerson, a substantial portion of whose business consists of providing Dialysis
\nServices in the Territory, shall require the prior written consent of Dialysis
\nCenter, which consent may be withheld by Dialysis Center in its sole and
\nabsolute discretion. This Agreement and the provisions hereof shall be binding
\nupon, and inure to the benefit of, the Parties’ permitted successors and
\nassigns.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.3.<\/p>\n<\/td>\n

\n

Modification of Law<\/u>. If at any time following the Term Start Date, the
\nenactment or modification of any Law occurs and, as a result, either Party’s
\nperformance of its obligations under this Agreement would not comply with such
\nLaw, either Party may, upon notice to the other Party, recommend an amendment to
\nmodify this Agreement to address those provisions of the Agreement that may not
\ncomply with such Law. The Parties agree to use their commercially reasonable
\nbest efforts to modify this Agreement as necessary to bring it into compliance
\nwith the Law if that can be done while retaining, in all material respects, the
\nessential rights and benefits of each Party under this Agreement, including the
\nPurchase Commitment, the Supply Commitment, the collection, exchange and use of
\nthe Data and the ability for Dialysis Center Purchasers to earn the Discounts
\nthat the Dialysis Center Purchasers are eligible to receive hereunder. Promptly
\nfollowing the delivery of such notice describing the Law at issue and the
\nproposed modifications to bring this Agreement into compliance with such Law,
\nDialysis Center and Amgen shall meet and in good faith seek to mutually agree to
\namend this Agreement to accommodate any such Law in accordance with this
\nSection 11.3<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 28 of 136<\/p>\n

\n\n\n\n
\n

11.4.<\/p>\n<\/td>\n

\n

Conflicting Provisions<\/u>. To the extent that any provisions of Amgen’s
\ngeneral or customary policies and procedures or any terms of any purchase order
\nconflict with or are in addition to the terms of this Agreement or any Exhibit
\nor Schedule attached hereto, the terms of this Agreement and its Exhibits and
\nSchedules shall govern.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.5.<\/p>\n<\/td>\n

\n

Construction<\/u>. This Agreement shall be deemed to have been jointly
\ndrafted by the Parties, and no rule of strict construction shall apply against
\neither Party. As used herein, the word “including” shall mean “including,
\nwithout limitation.”<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.6.<\/p>\n<\/td>\n

\n

Counterparts; Facsimile\/PDF Signatures<\/u>. This Agreement may be executed
\nin one or more counterparts, each of which shall be considered an original. The
\nParties agree that facsimile or PDF transmission of original signatures shall
\nconstitute and be accepted as original signatures.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.7.<\/p>\n<\/td>\n

\n

Currency<\/u>. All amounts herein are set forth in United States Dollars.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.8.<\/p>\n<\/td>\n

\n

Force Majeure<\/u>. Except as provided in Section 2.1.1<\/u> or
\nSection 2.5<\/u>, neither Party will be liable for delays in performance or
\nnonperformance of this Agreement or any covenant contained herein if such delay
\nor nonperformance is a result of acts of God, acts of civil or military
\nauthority, acts of any Governmental Authority, civil disobedience or commotion,
\nepidemics, war, terrorist acts, failure or default of public utilities or common
\ncarriers, destruction of production facilities or materials by fire, earthquake,
\nstorm or like catastrophe, inability to procure necessary raw materials in a
\ncommercially reasonable manner or default of suppliers or subcontractors or any
\nevents beyond the reasonable control and without the fault or negligence of a
\nParty (all of the foregoing, a “Force Majeure Event<\/u>“). Force Majeure
\nEvents shall not adversely affect Dialysis Center’s eligibility for any
\nDiscounts.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.9.<\/p>\n<\/td>\n

\n

Further Assurances<\/u>. Each Party shall perform all further acts
\nreasonably requested by the other to effectuate the purposes of this Agreement,
\nincluding obtaining the Certifications under Section 5<\/u> or obtaining
\npurchase data necessary from third parties to calculate any amounts payable
\npursuant to Exhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.10.<\/p>\n<\/td>\n

\n

Governing Law<\/u>. This Agreement shall be governed by the laws of the
\nState of California (without regard to its conflict of law rules) and, except as
\notherwise set forth in this Agreement, the Parties submit to the jurisdiction of
\nthe California courts, both state and federal.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.11.<\/p>\n<\/td>\n

\n

Merger\/No Reliance<\/u>. This Agreement, together with the Schedules, and
\nthe Exhibits constitutes the entire agreement, written or oral, of the Parties
\nas of the Term Start Date concerning the subject matter hereof. The Parties
\nacknowledge that, in making the determination to enter into this Agreement or
\notherwise, they have not relied, in whole or in part, on any promise,
\ninformation, understanding, guarantees, discussions, representation, or
\nwarranty, expressed or implied, not contained specifically in this Agreement.
\nWithout limiting the generality of the foregoing, the Parties agree that neither
\nParty makes or has made any representation or warranty with respect to any
\npotential changes in the dialysis segment or the use or pricing of ESAs in
\ndialysis, including as a result of the introduction of Alternative ESAs
\n(including [*]) including the timing of such introduction(s), the pricing of
\nsuch Alternative ESAs and their potential physician acceptance and impact on
\nprescribing practices.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.12.<\/p>\n<\/td>\n

\n

No Partnership<\/u>. The relationship between Amgen and Dialysis Center is
\nthat of independent contractors, and not a partnership or an agency, franchise
\nor other relationship. Neither Party shall have the authority to bind the other.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.13.<\/p>\n<\/td>\n

\n

Notices<\/u>. Any notice or other communication required or permitted
\nhereunder (excluding purchase orders) shall be in writing and shall be deemed
\ngiven or made five (5) days<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 29 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

after deposit in the United States mail with proper postage for first-class
\nregistered or certified mail prepaid, return receipt requested, or when
\ndelivered personally or by facsimile (as shown by concurrent written
\ntransmission confirmation and confirmed by overnight mail), or one (1) day
\nfollowing traceable delivery to a nationally recognized overnight delivery
\nservice with instructions for overnight delivery, in each case addressed to the
\naddress set forth below, or at such designated address that either Party shall
\nhave furnished to the other in accordance with this Section 11.13<\/u>:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

If to Amgen:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Amgen USA Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

One Amgen Center Drive, [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Thousand Oaks, CA 91320-1789<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Attn: Specialist, Contracts & Pricing : Nephrology Business Unit<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Fax: [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

with a copy to :<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Amgen USA Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

One Amgen Center Drive, [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Thousand Oaks, CA 91320-1789<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Attn: General Counsel<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Fax: [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

If to Amgen Inc.:<\/p>\n<\/td>\n

<\/td>\n\n

Amgen Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

One Amgen Center Drive, [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Thousand Oaks, CA 91320-1789<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Attn: General Counsel<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Fax No.: [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

If to Dialysis Center:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

DaVita Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

1350 Old Bayshore Highway, Suite 777<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Burlingame, California 94010<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Attn: Vice-President of Purchasing<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Fax No.: [*]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

with a copy to:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

DaVita Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

1551 Wewatta Street<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Denver, CO 80202<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Attn: Chief Legal Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Fax No.: [*]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.14.<\/p>\n<\/td>\n

\n

Confidentiality<\/u>. “Confidential Information<\/u>” means any and all
\ninformation provided by one Party and\/or any of its Affiliates (including
\nManaged Centers in the case of Dialysis Center) (the “Disclosing Party<\/u>“)
\nto the other Party and\/or any of its Affiliates (including Managed Centers in
\nthe case of Dialysis Center) (the “Non-Disclosing Party<\/u>“) which is
\nidentified in writing or orally as confidential by the Disclosing Party to the
\nNon-Disclosing Party or given the nature of the information or circumstances
\nsurrounding its disclosure reasonably should be considered as confidential,
\nwhether in written, computerized, oral, tangible or intangible, and\/or other
\nform. Nothing in this Section 11.14 shall prohibit,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 30 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Amgen from using the Data, the Compensation Data, and\/or the Self-Reported
\nPurchase Data as provided in Section 5<\/u> and Section 6<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.1.<\/p>\n<\/td>\n

\n

Confidentiality Covenants<\/u><\/em>. Except to the extent expressly
\nauthorized by this Agreement or otherwise agreed in writing by the Parties, the
\nNon-Disclosing Party agrees that for the Term, and for a period of five (5)
\nyears following the Term, the Non-Disclosing Party will keep confidential and
\nnot publish or otherwise disclose to any Third Party or use for any purpose,
\nother than in accordance with this Agreement, any Confidential Information,
\nprovided<\/u>, however<\/u>, that the Non-Disclosing Party may disclose any
\nsuch Confidential Information to its directors, officers, employees, agents,
\nconsultants and advisors as necessary for the Non-Disclosing Party to carry out
\nits rights and obligations under this Agreement on the condition that such
\ndirectors, officers, employees, agents, consultants and advisors are bound by
\nconfidentiality provisions at least as restrictive as those contained in this
\nAgreement. The confidentiality provisions contained in this Section 11.14<\/u>
\nshall not apply to the extent that it can be established by the Non-Disclosing
\nParty by competent proof that such Confidential Information:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

(a)<\/p>\n<\/td>\n

\n

was generally available to the public or otherwise part of the public domain
\nat the time of its disclosure to the Non-Disclosing Party by the Disclosing
\nParty; or<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

(b)<\/p>\n<\/td>\n

\n

became generally available to the public or otherwise part of the public
\ndomain after its disclosure to the Non-Disclosing Party by the Disclosing Party
\nand other than through any act or omission of the Non-Disclosing Party in breach
\nof this Agreement; or<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

(c)<\/p>\n<\/td>\n

\n

was independently discovered or developed by the Non-Disclosing Party without
\nthe use of or reference to the Confidential Information belonging to the
\nDisclosing Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.2.<\/p>\n<\/td>\n

\n

Retention and Destruction of Confidential Information<\/u><\/em>. At any
\ntime upon the written request of the Disclosing Party the Non-Disclosing Party
\nshall promptly return to the Disclosing Party or destroy all Confidential
\nInformation. Notwithstanding the return or destruction of the Confidential
\nInformation to the Disclosing Party or such other party as designated by the
\nDisclosing Party to the Non-Disclosing Party, the Non-Disclosing Party covenants
\nand agrees that it will continue to abide by its obligations hereunder with
\nrespect to any and all Confidential Information.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.3.<\/p>\n<\/td>\n

\n

Disclosures Required By Law<\/u><\/em>. In the event that the
\nNon-Disclosing Party and\/or any of its directors, officers, employees, agents,
\nconsultants and advisors that have received any Confidential Information is
\nrequired by Law (e.g., by oral questions, interrogatories, request for
\ninformation or documents, subpoena, civil investigative demand, or similar
\nprocess) to disclose any Confidential Information, the Non-Disclosing Party
\nagrees to (and shall cause each of its directors, officers, employees, agents,
\nconsultants and advisors that have received any Confidential Information to)
\nprovide the Disclosing Party with immediate written notice of any such
\ndisclosure of Confidential Information that is required by Law in order to
\nprovide the Disclosing Party with an opportunity to seek a protective order or
\nother similar order with respect to such Confidential Information. If disclosure
\nof any Confidential Information is required by Law, the Non-Disclosing Party
\nwill (and will cause each of its directors, officers, employees, agents,
\nconsultants and advisors that have received any Confidential<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 31 of 136<\/p>\n

\n\n\n\n
<\/td>\n\n

Information to) furnish only that portion of the Confidential Information
\nwhich it is legally obligated to disclose by Law and consistent with the terms
\nof any protective order or other similar order obtained by the Disclosing Party
\nwith respect to such Confidential Information required to be disclosed by Law.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.4.<\/p>\n<\/td>\n

\n

Public Announcements; Authorized Disclosure<\/u><\/em>.<\/em>
\nNeither Party shall make a public announcement or other public disclosure
\nconcerning this Agreement without the consent of the other Party, except that
\neither Party may make such announcement or disclosure if it is required by
\napplicable Law, reasonably necessary for any filings with any Governmental
\nAuthority or pursuant to the rules of any securities exchange or interdealer
\nquotation system; provided<\/u>, that the disclosing Party shall give
\nreasonable prior advance notice of the proposed text of such announcement or
\ndisclosure to the other Party for its prior review and approval, which review
\nand approval shall not be unreasonably conditioned, withheld or delayed. The
\nproviso in the immediately preceding sentence shall not apply to Relevant
\nInformation included in any cost report filed under Title XVIII or Title XIX of
\nthe Social Security Act, or health care program of any Governmental Authority.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.5.<\/p>\n<\/td>\n

\n

Confidential Terms.<\/u><\/em> Notwithstanding the foregoing, each Party
\nmay disclose the terms of this Agreement in confidence under terms and
\nconditions at least as restrictive as set forth herein on a need-to-know basis
\nto its legal and financial advisors to the extent such disclosure shall be
\nreasonably necessary in connection with such Party’s activities as expressly
\npermitted by this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.14.6.<\/p>\n<\/td>\n

\n

Enforcement.<\/u><\/em> Each Party agrees that money damages alone would
\nnot be an adequate remedy for any breach of the terms and conditions of this
\nSection 11.14<\/u>. Therefore, in the event of a breach or threatened breach
\nof this Section 11.14<\/u>, the non-breaching Party may, in addition to other
\nrights and remedies existing in its favor, apply to any court of competent
\njurisdiction for specific performance and\/or injunctive and\/or other relief in
\norder to enforce and\/or prevent any violation of the provisions of this
\nSection 11.14<\/u> by the breaching Party (without proving monetary damages
\nand\/or posting a bond and\/or other security).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.15.<\/p>\n<\/td>\n

\n

Severability<\/u>. Subject to the provisions of Section 11.3<\/u>, if any
\none or more of the provisions of this Agreement is held to be invalid or
\nunenforceable, the provisions shall be considered severed from this Agreement
\nand shall not serve to invalidate any remaining provisions hereof.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.16.<\/p>\n<\/td>\n

\n

Waiver<\/u>. No Party shall be deemed to have waived any right hereunder,
\nunless such waiver is expressed in a writing signed by such Party.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.17.<\/p>\n<\/td>\n

\n

Open Records<\/u>. To the extent required by \u00a71861(v)(1)(I) of the Social
\nSecurity Act, as amended, the Parties will allow the U.S. Department of Health
\nand Human Services, the U.S. Comptroller General and their duly authorized
\nrepresentatives, access to this Agreement and all books, documents and records
\nnecessary to certify the nature and extent of costs incurred pursuant to it
\nduring the Term and for four (4) years following the last date any EPOGEN or
\nservices are furnished under it. If Amgen carries out the duties of this
\nAgreement through a subcontract worth $10,000 or more over a 12-month period
\nwith a related organization, the subcontract shall also contain an access clause
\nto permit access by the U.S. Department of Health and Human Services, the U.S.
\nComptroller General, and their duly authorized representatives to the related
\norganization’s books and records.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 32 of 136<\/p>\n

\n\n\n\n
\n

11.18.<\/p>\n<\/td>\n

\n

Amgen’s ESA Risk Evaluation and Mitigation Strategy Program. Dialysis Center
\nand its Designated Affiliates and Managed Centers shall reasonably cooperate and
\ncomply with Amgen in Amgen’s implementation of its ESA Risk Evaluation and
\nMitigation Strategy program as found at the FDA website:
\nhttp:\/\/www.fda.gov\/downloads\/Drugs
\n\/DrugSafety\/PostmarketDrugSafetyInformationforPatientsandProviders\/UCM200105.pdf<\/u>
\n(“the FDA Website”) and which may be modified from time to time by the FDA (the
\n“Amgen ESA Risk Evaluation Program<\/u>“). Dialysis Center shall refer to the
\nFDA Website for updates to the Amgen ESA Risk Evaluation Program.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.19.<\/p>\n<\/td>\n

\n

Recall.<\/u> In the event the FDA initiates a mandatory recall or Amgen
\ninitiates a recall, field market withdrawal, stock recovery, or other similar
\naction with respect to EPOGEN (a “Recall<\/u>“), the Dialysis Center
\nPurchasers shall cooperate with Amgen in implementing the Recall consistent with
\napplicable Law, any industry guidance issued by the FDA, and the terms or
\nprocedures of the Recall, including reasonable cooperation with any Amgen
\ndesignated Third Party vendors.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

11.20.<\/p>\n<\/td>\n

\n

Assumption of Risk<\/u>. Each Party expressly accepts and assumes all risks
\nthat may arise out of or result from uncertainties or changes to the dialysis
\nmarket including those resulting from the introduction of Alternative ESAs
\n(including [*]), including the timing of such introduction(s), the pricing of
\nsuch Alternative ESAs and their potential physician acceptance and impact on
\nprescribing practices.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 33 of 136<\/p>\n

\n

The Parties have executed this Agreement by their designated representatives
\nset forth below.<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

AMGEN USA INC.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Anthony C. Hooper<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Name (print):<\/p>\n<\/td>\n

<\/td>\n\n

Anthony C. Hooper<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

EVP<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Date:<\/p>\n<\/td>\n

<\/td>\n\n

11\/15\/2011<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

DIALYSIS CENTER<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Dennis Kogod<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Name (print):<\/p>\n<\/td>\n

<\/td>\n\n

Dennis Kogod<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Chief Operating Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Date:<\/p>\n<\/td>\n

<\/td>\n\n

11\/15\/2011<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Amgen Inc. with respect to certain provisions of this Agreement as
\nset forth herein. <\/strong><\/p>\n

Amgen Inc. <\/strong><\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Anthony C. Hooper<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Name (print):<\/p>\n<\/td>\n

<\/td>\n\n

Anthony C. Hooper<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

EVP<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Date:<\/p>\n<\/td>\n

<\/td>\n\n

11\/15\/2011<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 34 of 136<\/p>\n

\n<\/p>\n

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