EXHIBIT 10.25
AMGEN
Amendment #3 dated January 16, 2001 to Agreement No. 19990110
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Agreement No. 19990110, between Amgen Inc. ("Amgen") and Total Renal Care, Inc.,
a subsidiary of DaVita, Inc., including any prior amendments thereto, shall be
amended, and for the period commencing April 1, 2001 shall be restated in its
entirety to read in full as stated below.
This agreement ("Agreement") together with all Appendices attached hereto and
incorporated herein by this reference, between Amgen and Total Renal Care, Inc.
including the freestanding dialysis center affiliate(s) listed on Appendix B,
(collectively, "Dialysis Center"), sets forth the terms and conditions for the
purchase of EPOGEN(R) (Epoetin alfa) by Dialysis Center for the exclusive
treatment of dialysis patients.
1. Term of Agreement. The "Term" of this Agreement shall be defined as April
1, 2001 ("Commencement Date") through December 31, 2001 ("Termination
Date").
2. Dialysis Center Affiliates. Dialysis Center must provide Amgen with a
complete list of its dialysis center affiliates ("Affiliates") no less than
fifteen (15) business days before the Commencement Date. Affiliates
eligible to participate under this Agreement shall be listed in Appendix B,
and shall reflect facilities owned in whole or in part by Dialysis Center
or for which Dialysis Center provides management or administrative
services, such services to include the purchase and billing of EPOGEN(R).
Additions to the dialysis center Affiliates listed on Appendix B may be
made pursuant to the request of Dialysis Center's corporate headquarters
and are subject to approval and acknowledgment by Amgen in writing, such
approval and acknowledgment not to be unreasonably withheld, conditioned or
delayed. Dialysis Center may delete Affiliates from participation in this
Agreement at any time, in its sole discretion. Amgen requires reasonable
notice before the effective date of change (the "Administrative Effective
Date") for any addition or deletion of Affiliates. [DELETED]; all such
purchases by Dialysis Center during such period shall constitute "Qualified
Purchases" under this Agreement and shall be included for purposes of
eligibility and calculation of each and every discount and incentive
provided hereunder and in Appendix A, including but not limited to,
[DELETED] set forth in Section 1 of Appendix A, so long as Amgen is not
obligated to pay the same discount or incentive attributable to the same
purchases to any person or entity other than Dialysis Center. Amgen
reserves the right in its reasonable discretion to terminate any Affiliates
with regard to participation in this Agreement. Termination of any
Affiliate by Amgen shall be effective (a) immediately in instances in which
Amgen determines, in its discretion, that such immediate termination is
required by law or order of any court or regulatory agency or as a result
of negligence in the use or administration of EPOGEN(R) by such Affiliate;
or (b) upon 30 days prior written notice to Dialysis Center in all other
instances; provided, that such termination shall be effective before the
expiration of such 30 days where Dialysis Center requests or consents to
such earlier termination.
3. Own Use. Dialysis Center hereby certifies that EPOGEN(R)purchased hereunder
shall be for Dialysis Center's "own use", for the exclusive treatment of
dialysis patients.
4. Authorized Wholesalers. Dialysis Center must provide Amgen with a complete
list of its current wholesalers, from whom Dialysis Center intends to
purchase EPOGEN(R), and must provide the list to Amgen no less than fifteen
(15) business days before the Commencement Date. The list must include the
name and complete address of each designated wholesaler. Wholesalers
designated by Dialysis Center and approved by Amgen to participate in this
program will be deemed "Authorized Wholesalers". A current listing of
Dialysis Center's Authorized Wholesalers is referenced in Appendix C.
Notification of proposed changes to the list of Authorized Wholesalers must
be provided to Amgen in writing at least 30 days before the effective date
of the proposed change; provided, however, that Amgen will use its best
efforts to accept a change in fewer than 30 days' notice. Amgen reserves
the right, in its reasonable discretion, to reject or terminate, with
reasonable notice, any wholesaler with regard to participation in this
Agreement, so long as (a) Amgen rejects or terminates such wholesaler with
respect to providing EPOGEN(R) to any and all purchasers of EPOGEN(R), or
(b) such wholesaler independently requests Amgen to remove it as an
Authorized Wholesaler for Dialysis Center. Amgen also reserves the right,
in its reasonable discretion, to accept wholesalers with regards to
participation in this Agreement, but Amgen agrees that it shall accept any
Wholesaler designated by Dialysis Center which provides EPOGEN(R) to other
purchasers approved by Amgen. Dialysis Center agrees to request all
Authorized Wholesalers to submit product sales information to a third-party
sales reporting organization designated by Amgen. In the event Amgen
terminates any Authorized Wholesaler from which Dialysis Center is
purchasing EPOGEN(R), Amgen will work with Dialysis Center to identify
other possible Authorized Wholesalers from which Dialysis Center may
purchase EPOGEN(R) [DELETED].
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Amendment #3 to Agreement No. 19990110 (Continued)
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5. Qualified Purchases. Only EPOGEN(R)purchased under this Agreement by
Dialysis Center through Authorized Wholesalers [DELETED], as confirmed by
Amgen based on sales tracking data, will be deemed "Qualified Purchases".
6. Commitment to Purchase. Dialysis Center agrees to purchase EPOGEN(R) for
all of its dialysis use requirements for recombinant human erythropoietin,
and Amgen agrees to supply through Authorized Wholesalers all orders as
placed by Dialysis Center. Notwithstanding the foregoing, Amgen expressly
acknowledges and agrees that Dialysis Center may participate in clinical
trials involving the administration of other products for the management of
anemia in dialysis patients. Dialysis Center may purchase another brand of
recombinant human erythropoietin for its dialysis use requirements only for
the time, and only to the extent, that Amgen has notified Dialysis Center's
corporate headquarters in writing that Amgen cannot supply EPOGEN(R) within
and for the time period reasonably required by Dialysis Center. Any such
notification shall be given by Amgen at least 30 days prior to the date on
which Amgen will cease supplying EPOGEN(R) to Dialysis Center, unless an
act or event described in Section 16 below, or an order of a regulatory
agency or other action arising out of patient safety concerns, requires the
giving of shorter notice. In the event that Amgen fails to supply Dialysis
Center with EPOGEN(R) as ordered, Dialysis Center shall be entitled, at a
minimum, to have the same proportion of its purchase orders fulfilled at
all times as other purchasers of EPOGEN(R) and, upon request, Amgen shall
provide written assurances of same to Dialysis Center.
7. Confidentiality. Both Amgen and Dialysis Center agree that this Agreement
represents and contains confidential information which shall not be
disclosed to any third party, or otherwise made public, without prior
written authorization of the other party, except where such disclosure is
contemplated hereunder or required by law or pursuant to subpoena or court
or administrative order, and then only upon prior written notification to
the other party giving such party an adequate opportunity to take whatever
steps it deems necessary to prevent, limit the scope of or contest the
disclosure. [DELETED].
8. Discounts. Dialysis Center shall qualify for discounts and incentives
subject to material compliance with the terms and conditions of this
Agreement as well as the schedules and terms set forth in Appendix A, which
is incorporated by reference hereto and made a part of this Agreement.
Discounts in arrears will be paid [DELETED] to Dialysis Center's corporate
headquarters. Discounts in arrears will be calculated in accordance with
Amgen's discount calculation policies based on Qualified Purchases using
the [DELETED] as the calculation price, except as otherwise provided
hereunder or as set forth in Appendix A. Upon vesting, Amgen will make such
discounts available [DELETED], after receipt by Amgen of all required data,
in a form reasonably acceptable to Amgen, detailing all Qualified Purchases
during the applicable period. Payment amounts, as calculated by Amgen, must
equal or exceed $100.00 for the applicable period to qualify, and are
subject to audit and final determination [DELETED], as provided in Appendix
A hereto. Subject to the section entitled "Breach of Agreement", in the
event that Amgen is notified in writing that Dialysis Center, and/or any
Affiliate(s) (the "Acquired Party") is acquired by another entity or a
change of control otherwise occurs with respect to any Acquired Party, any
discounts which may have been earned hereunder for all periods preceding
such acquisition or change of control shall be paid in the form of a wire
transfer to Dialysis Center's corporate headquarters, subject to the
conditions and requirements described herein. [DELETED]. Amgen and Dialysis
Center agree that, for purposes of determining eligibility for and
calculation of all discounts and all incentives provided in this Agreement
(including, without limitation, all discounts and incentives as are set
forth in Appendix A), a Qualified Purchase of EPOGEN(R) shall be deemed
made on the date of invoice to Dialysis Center from an Authorized
Wholesaler. Upon any termination of this Agreement, Amgen shall pay to
Dialysis Center all discounts and incentives earned by Dialysis Center
through the date of termination. Failure of Dialysis Center to qualify for
or receive any particular discount or incentive hereunder shall not
automatically affect its qualification for or receipt of any other discount
or incentive provided under this Agreement.
9. Treatment of Discounts. [DELETED] Dialysis Center agrees that it will
properly disclose and account for any discount or other reduction in price
earned hereunder, in whatever form(i.e. pricing, discount, or incentive),
in a way that complies with all applicable federal, state, and local laws
and regulations, including without limitation, Section 1128B(b) of the
Social Security Act and its implementing regulations. Section 1128B(b)
requires that a provider of services will properly disclose and
appropriately reflect the value of any discount or other reduction in price
earned in the costs claimed or charges made by the provider under a federal
health care program, as that term is defined in Section 1128B(f). Dialysis
Center also agrees that, if required by such statutes or regulations, it
will (i) claim the benefit of such discount received, in whatever form, in
the fiscal year in which such discount was earned or the year after, (ii)
fully and accurately report the value of such discount in any cost reports
filed under Title XVIII or Title XIX of the Social Security Act, or a state
health
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Amendment #3 dated January 16, 2001 to Agreement No. 19990110
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care program, and (iii) provide, upon request by the U.S. Department of
Health and Human Services or a state agency or any other federally funded
state health care program, the information furnished to Dialysis Center by
Amgen concerning the amount or value of such discount. Dialysis Center's
corporate headquarters agrees that it will advise all Affiliates, in
writing, of any discount received by Dialysis Center's corporate
headquarters hereunder with respect to purchases made by such Affiliates
and that said Affiliates will account for any such discount in accordance
with the above stated requirements.
[DELETED].
10. Data Collection. Dialysis Center agrees that it will at all times comply
with all federal, state, or local laws or regulations relating to patient
privacy of medical records, and that all data to be provided to Amgen
pursuant to this Agreement, shall be in a form that does not disclose the
identity or name of any patient or other patient-identifying information
such as address, telephone number, or social security number. Dialysis
Center acknowledges that the data to be supplied to Amgen pursuant to this
Agreement shall be used to support verification of the discounts and
incentives referenced herein, as well as for Amgen-sponsored research
concerning the role of EPOGEN(R) in improving treatment outcomes and
quality of life of dialysis patients. Dialysis Center shall consistently
use a unique alpha-numeric code (which shall not be the same as the
patient's social security number) as a "case identifier" to track the care
rendered to each individual patient over time, and such case identifier
shall be included in the data provided to Amgen. The key or list matching
patient identities to their unique case identifiers shall not be provided
to Amgen personnel. In furtherance of Amgen research, Dialysis Center may
agree from time to time, on terms to be negotiated separately by the
parties, to use its key to update the patient care data by linking it with
information concerning health outcomes, quality of life, and other
pertinent data that may become available to Amgen from other sources. Any
such linking of data sources shall not provide the identity of any patient
to Amgen. Amgen agrees that it will maintain data supplied under this
Agreement in confidence and that it will not use such data to identify or
contact any patient, and that it will at all times comply with all federal,
state, or local laws or regulations relating to patient records. [DELETED].
No reports by Amgen concerning analyses of the data or the results of such
research shall disclose the identity of any patient. Nothing in this
Agreement shall limit Dialysis Center's use of its own patient case data,
including, without limitation, any and all data to be supplied to Amgen
hereunder.
11. Breach of Agreement. in addition to any other legal or equitable remedies
which may be available to either party upon breach by the other party, such
party may terminate this Agreement for a material breach upon 30 days
advance written notice specifying the breach, provided that such breach
remains uncured at the end of the 30 day period, [DELETED]. In addition, in
the event that Dialysis Center materially breaches any provision of this
Agreement, and such breach remains uncured for 30 days following notice by
Amgen specifying the breach, [DELETED], Amgen shall have no obligation to
continue to offer the terms described herein or pay any further discounts
or incentives to Dialysis Center, except those discounts and/or incentives
earned by Dialysis Center up to the time of a breach which results in
termination.
12. Governing Law. This Agreement shall be governed by the laws of the State of
California and, [DELETED], the parties submit to the jurisdiction of the
California courts, both state and federal.
13. Warranties. Each party represents and warrants to the other that this
Agreement (a) has been duly authorized, executed, and delivered by it, (b)
constitutes a valid, legal, and binding agreement enforceable against it in
accordance with the terms contained herein, and (c) does not conflict with
or violate any of its other contractual obligations, expressed or implied,
to which it is a party or by which it may be bound. The party executing
this Agreement on behalf of Dialysis Center specifically warrants and
represents to Amgen that it is authorized to execute this Agreement on
behalf of and has the power to bind Dialysis Center and the Affiliates to
the terms set forth in this Agreement. [DELETED].
14. Notices. Any notice or other communication required or permitted hereunder
(excluding purchase orders) shall be in writing and shall be deemed given
or made three days after deposit in the United States mails, with proper
postage for first-class registered or certified mail prepaid, return
receipt requested, or when delivered personally or by facsimile, or one day
following traceable delivery to a nationally recognized overnight delivery
service with instructions for overnight delivery, in each case addressed to
the parties as follows (or at such other addresses as the parties may
notify each other of in writing):
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Amendment #3 dated January 16, 2001 to Agreement No. 19990110
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If to Dialysis Center:
Total Renal Care, Inc.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: Chief Financial Officer
Fax No.: [DELETED]
with a copy to:
Total Renal Care, Inc.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: General Counsel
Fax No.: [DELETED]
If to Amgen:
Amgen Inc.
One Amgen Center Drive, M/S 37-2-A
Xxxxxxxx Xxxx, XX 00000-0000
Attn: [DELETED]
Fax No.: [DELETED]
with a copy to:
Amgen Inc.
One Amgen Center Drive, M/S 27-4-A
Xxxxxxxx Xxxx, XX 00000-0000
Attn: [DELETED]
Fax No.: [DELETED]
15. Compliance with Health Care Pricing and Patient Privacy Legislation and
Statutes. a) Notwithstanding anything contained herein to the contrary, in
order to assure compliance, as determined by Amgen in its sole discretion,
with any existing federal, state or local statute, regulation or ordinance,
or at any time following the enactment of any federal, state, or local law
or regulation that in any manner reforms, modifies, alters, restricts, or
otherwise affects the pricing of or reimbursement available for EPOGEN(R),
Amgen may, in its sole discretion, upon 30 days notice, [DELETED] exclude
any Affiliates from participating in this Agreement unless such
Affiliate(s) certifies in writing that they are, or will be, exempt from
the provisions thereunder. If such affected Affiliate(s) does not so
certify and is therefore excluded from participating in this Agreement,
Dialysis Center and Amgen shall meet and in good faith [DELETED].
b) Notwithstanding anything contained herein to the contrary, in order to
assure compliance, as determined by either party in its sole discretion,
with any existing federal, state or local statute, regulation or ordinance
relating to patient privacy of medical records, or at any time following
the enactment of any federal, state, or local law or regulation relating to
patient privacy of medical records that in any manner reforms, modifies,
alters, restricts, or otherwise affects any of the data received or to be
received in connection with any of the incentives contemplated under this
Agreement, either party may, in its discretion, upon 30 days' notice, seek
to modify this Agreement. Dialysis Center and Amgen shall meet and in good
faith seek to mutually agree to modify this Agreement to accommodate any
such change in law or regulation, [DELETED]. If the parties in good faith
determine that such modification is not possible, the parties shall seek to
modify the Agreement in another manner acceptable to both parties. If the
parties, after a reasonable time, are unable to agree upon such a
modification, Amgen shall be entitled to terminate the affected incentive
upon 30 days' notice.
16. Force Majeure. Neither party will be liable for delays in performance or
nonperformance of this Agreement or any covenant contained herein if such
delay or nonperformance is a result of Acts of God, civil or military
authority, civil disobedience, epidemics, war, failure of carriers to
furnish transportation, strike, lockout or other labor disturbances,
inability to obtain material or equipment, or any other cause of like or
different nature beyond the control of such party.
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Amendment #3 dated January 16, 2001 to Agreement No. 19990110
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17. Miscellaneous. No modification of this Agreement will be effective unless
made in writing and executed by a duly authorized representative of each
party, except as otherwise provided hereunder. Neither party may assign
this Agreement to a third party without the prior written consent of the
other party, which consent may not be unreasonably withheld, conditioned,
or delayed. This Agreement may be executed in one or more counterparts,
each of which is deemed to be an original but all of which taken together
constitutes one and the same agreement. Whenever a party is permitted by
this Agreement to act in its discretion, that party shall be required to
exercise its discretion in good faith and in a reasonable manner. To the
extent that any provisions of Amgen's general or customary policies and
procedures or any terms of any purchase order conflict with or are in
addition to the terms of this Agreement or any Appendix attached hereto,
the terms of this Agreement and Appendices shall govern. Upon expiration or
early termination of this Agreement, the rights and obligations set forth
in sections 7, 8, 10, 13, 19, and 20 shall survive.
18. Entire Agreement. This Agreement, together with all of the Appendices
attached hereto, constitutes the entire understanding between the parties
and supersedes all prior written or oral proposals, agreements, or
commitments pertaining to the subject matter herein.
19. [DELETED].
[DELETED].
20. [DELETED].
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Amendment #3 dated January 16, 2001 to Agreement No. 19990110
--------------------------------------------------------------------------------
Please retain one fully executed original for your records and return the other
fully executed original to Amgen.
The parties executed this Amendment as of the dates set forth below.
Amgen Inc. Total Renal Care, Inc.
Signature: /s/ [DELETED] Signature: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------
Print Name: [DELETED] Print Name: Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------
Print Title: [DELETED] Print Title: CFO
--------------------------------- -------------------------
Date: 1/17/2001 Date: 1/17/01
--------------------------------- -------------------------
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Amendment #3 dated January 16, 2001 to Agreement No. 19990110
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Appendix A: Discount Pricing, Schedule, and Terms
-------------------------------------------------
1. Pricing. Throughout the Term of this Agreement (April 1, 2001 - December
31, 2001), Dialysis Center may purchase EPOGEN(R) through Authorized
Wholesalers at [DELETED]. Amgen reserves the right to change the [DELETED]
at any time, which change [DELETED] Dialysis Center during the Term of this
Agreement. [DELETED]. Resulting prices do not include any wholesaler
markup, service fees, or other charges. All discounts earned in arrears
during the Term of the Agreement shall be calculated based upon the
[DELETED].
2. [DELETED]. Dialysis Center may qualify for a [DELETED] provided it meets
the criteria described below in this section. The [DELETED] is designed to
improve patient outcomes by encouraging [DELETED].
a. Requirements: In order to qualify for the [DELETED], Dialysis Center's
aggregate Qualified Purchases of EPOGEN(R)for [DELETED], by all Affiliates
listed on Appendix B on the Commencement Date of this Agreement [DELETED],
must equal or exceed [DELETED]. In addition, [DELETED]. If either of these
criteria is not met during [DELETED], Dialysis Center will not qualify for
the [DELETED]. [DELETED].
In order to participate in the [DELETED], Dialysis Center must provide the
following items to Amgen or to a data collection vendor specified
[DELETED], and no later than [DELETED]. In those cases in which Amgen
directs Dialysis Center to submit [DELETED], Dialysis Center shall be
deemed [DELETED] so long as it does so [DELETED], regardless of the
[DELETED] to Amgen: [DELETED]
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Amendment #3 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
[DELETED]. Amgen may utilize the Data for any legal purpose, and reserves
the right to audit all Data, provided that any audit shall not permit access
to information disclosing the identity of any patient. Under no
circumstances should the Data include any patient identifiable information
including, without limitation, name, complete social security number,
address or birth date. The identity of the account submitting the Data and
any association with the Data will remain confidential. The [DELETED] test
results must be derived from [DELETED] taken immediately before dialysis
treatment using any [DELETED] testing method [DELETED] must be reported to
the [DELETED], and must be submitted [DELETED] in a format acceptable to
Amgen. Hand written reports are not acceptable; electronic submission of the
Data is preferred.
In addition, upon execution of this Agreement, Dialysis Center shall
simultaneously provide to Amgen an executed "Certification Letter", a copy
of which is attached hereto as Exhibit #1. Amgen hereby acknowledges that it
has received such required Certification Letter, in form and substance
satisfactory to Amgen. Delivery of such Certification Letter shall serve to
qualify Dialysis Center's participation in the [DELETED] throughout the Term
of this Agreement for the limited purpose of certification of the accuracy
of the data submitted to Amgen hereunder.
b. Calculation: Assuming Dialysis Center has fulfilled all requirements as
described in Section 2(a) above, the [DELETED] for Dialysis Center will be
calculated as follows:
The [DELETED] for each dialysis patient will be based upon the average of
all [DELETED] gathered for each patient [DELETED]. The [DELETED] of all
dialysis patients with [DELETED], will be determined by dividing the total
number of dialysis patients with [DELETED] by the total number of dialysis
patients treated by Dialysis Center during that [DELETED].
c. Payment: The [DELETED] will be calculated [DELETED] and paid to Dialysis
Center's corporate headquarters, within [DELETED] after receipt by Amgen of
all required data. For purposes of calculating the [DELETED] as referenced
in Section 2 (a) above, Amgen will compare the aggregate Qualified Purchases
of EPOGEN(R) [DELETED] by all Affiliates listed on Appendix B on the
Commencement Date of this Agreement [DELETED], to the aggregate Qualified
Purchases of EPOGEN(R) by those same Affiliates listed on Appendix B on the
Commencement Date of this Agreement [DELETED].
[DELETED]
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Amendment #3 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
[DELETED]. At any time during the Term of this Agreement, if Amgen
determines that any Affiliate(s) is consistently not submitting the required
Data, Amgen reserves the right in its sole discretion to exclude such
Affiliate's Qualified Purchases of EPOGEN(R) from the calculation of the
[DELETED]. [DELETED] payments will be made based upon the Data received from
[DELETED], and will equal [DELETED] Qualified Purchases of EPOGEN(R)
[DELETED] (exclusive of any Qualified Purchases of EPOGEN(R) made by
Dialysis Center or any Affiliate not meeting the Data submission
requirements described above) as governed by the [DELETED] schedule listed
below. If Amgen determines that any Affiliate is consistently not submitting
the required Data, Amgen and Dialysis Center will work collaboratively in
resolving such matters. [DELETED]. If the EPOGEN(R) package insert language
or the K/DOQI guidelines change, [DELETED].
[DELETED] of all dialysis patients [DELETED]
with [DELETED] Incentive Percentage
Please direct your attention to the EPOGEN(R) package
----------------------------------------------------------------------------
insert
------
[DELETED]
[DELETED].
d. Vesting: Dialysis Center's [DELETED] Incentive will vest on [DELETED].
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Amendment #3 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
e. [DELETED] Data Submission: In the event any Affiliates still submitting Data
based on [DELETED] test results are added to this Agreement, such
Affiliate's Qualified Purchases of EPOGEN(R), from the day it was added
through the [DELETED] in which it was added [DELETED], shall be included in
the calculation of the [DELETED] Incentive payment. [DELETED]. In order for
such added Affiliates' Qualified Purchases of EPOGEN(R) to be included in
all subsequent [DELETED] Incentive payment calculations, such Affiliate must
submit [DELETED].
3. [DELETED]. Dialysis Center shall be eligible to receive [DELETED] if certain
data elements are transmitted to Amgen [DELETED]. The [DELETED] will be
calculated as a percentage of the Qualified Purchases of
EPOGEN(R)attributable to Dialysis Center [DELETED]. [DELETED]. In order to
qualify for the [DELETED], the following [DELETED] must be submitted to
Amgen by all Affiliates [DELETED] acceptable to Amgen [DELETED]. Such
[DELETED] must be submitted, [DELETED], and no later than [DELETED]. Amgen
reserves the right in its sole discretion to exclude any consistently non-
reporting Affiliate's Qualified Purchases of EPOGEN(R)from the calculation
of the [DELETED]. The [DELETED] will vest [DELETED], and payments will be
made [DELETED]. The [DELETED]
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Amendment #3 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
[DELETED].
4. [DELETED]. Dialysis Center may qualify for the [DELETED] as described
below.
a. Calculation: Dialysis Center's [DELETED] will be calculated [DELETED] in
accordance with the following formula.
[DELETED]
For purposes of calculating the [DELETED], Amgen will incorporate Qualified
Purchases of EPOGEN(R) from [DELETED].
[DELETED].
[DELETED] payments will be made [DELETED], contingent upon receipt by Amgen of
all necessary [DELETED]. [DELETED]
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Amendment #3 to Agreement No. 19990110 (Continued)
--------------------------------------------------------------------------------
Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
[DELETED].
[DELETED].
b. Vesting: Dialysis Center's [DELETED] will vest [DELETED], and will be paid
in accordance with the terms and conditions described above.
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Amendment #3 to Agreement No. 19990110 (Continued)
--------------------------------------------------------------------------------
Appendix B: List of Dialysis Center Affiliates
(See Referenced)
-13-
Amendment #3 to Agreement No. 19990110 (Continued)
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Appendix C: List of Authorized Wholesalers
To ensure you receive the appropriate discount, it is important that we have
your current list of Authorized Wholesalers. The following list represents the
Wholesalers Amgen currently has associated with your contract. Please update the
list by adding or deleting Wholesalers as necessary.
[DELETED]
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Amendment #3 to Agreement No. 19990110 (Continued)
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Exhibit #1
Certification Letter
--------------------
Month X, 2001
Total Renal Care, Inc.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
RE: EPOGEN(R)(Epoetin alfa) Agreement No. 19990110
Dear [DELETED]:
Thank you for your participation in the [DELETED]. In order for us to process
your data, we require that a duly authorized representative of your organization
sign the certification below.
Upon receipt of this executed document, we will calculate the value of your
incentive. If we do not receive the executed certification, we cannot provide
you with this incentive.
If you have any questions regarding this letter please contact me at [DELETED].
Thank you for your assistance in returning this certification.
Sincerely,
[DELETED]
[DELETED] Incentive Analyst
CERTIFICATION:
On behalf of Total Renal Care, Inc. and all eligible Affiliates participating in
the [DELETED] under Agreement No. 19990110, the undersigned hereby certifies
that the [DELETED] data and any other data required to be submitted (herein
referred to as "Data"), for each eligible Affiliate during the term of this
Agreement shall include the required Data from all dialysis patients from each
such Affiliate, [DELETED], and shall not include Data from non-patients. The
party executing this document also represents and warrants that it (i) has no
reason to believe that the submitted Data will be incorrect, and (ii) is
authorized to make this certification on behalf of all eligible Affiliates
submitting Data.
Signature: /s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
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Print Title: CFO
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Date: 1/17/01
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