EXHIBIT 10.24
[LOGO OF AMGEN] Amendment #2 dated June 22, 2000 to Agreement No. 19990110
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Agreement No. 19990110, between Amgen Inc. ("Amgen") and Total Renal Care, Inc.,
including any prior amendments thereto, shall be amended, and for the period
commencing 4/1/2000 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 Inc. ("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, 2000 ("Commencement Date") through March 31, 2001 ("Termination Date").
2. Dialysis Center Affiliates. Dialysis Center must provide Amgen with a
complete list of its dialysis center affiliates ("Affiliates") on or before
the date this Agreement is executed by Dialysis Center. 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 on or before the
date this Agreement is executed by Dialysis Center's corporate
headquarters. 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 B. 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 on 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.
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Amendment #2 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, 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. [DELETED].
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, and then upon notification to
the other party.
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 in the form of a check payable 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. Upon vesting, Amgen will make such
discounts available within [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 check payable 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.
-2-
Amendment #2 to Agreement No. 19990110 (Continued)
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9. Treatment of Discounts. 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 it will (a) claim the benefit of such discount received, in
whatever form, in the fiscal year in which such discount was earned or the
year after, (b) 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 care program, and (c) 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.
10. Data Collection. Dialysis Center agrees 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, [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. Either 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 the parties submit to the jurisdiction of the California
courts, both state and federal.
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Amendment #2 to Agreement No. 19990110 (Continued)
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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 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): Dialysis Center: Total Renal Care, Inc., 21250
Hawthorne Boulevard, Suite 800, Torrance, CA 90503-5517, Attn: Chief
Financial Officer, with a copy to General Counsel. Amgen, Inc.: One Amgen
Center Drive, Thousand Oaks, CA 91320-1789, Attn: [DELETED].
15. Compliance with Health Care Pricing Legislation and Statutes.
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] or
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].
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.
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, the terms of this Agreement shall
govern. Upon expiration or early termination of this Agreement, the rights
and obligations set forth in sections 8, 13, 19, and 20 shall survive.
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Amendment #2 to Agreement No. 19990110 (Continued)
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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].
20. [DELETED].
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/ Richard Whitney
------------------ -----------------------
Print Name: [DELETED] Print Name: Richard Whitney
------------------- -----------------------
Print Title: [DELETED] Print Title: CFO
------------------- -----------------------
Date: 6/22/00 Date: 6/23/00
------------------- -----------------------
-5-
Amendment #2 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms
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1. Pricing. Dialysis Center may purchase EPOGEN(R) through Authorized
Wholesalers at a [DELETED]. Amgen reserves the right to change the
[DELETED] at any time. [DELETED]. Resulting prices do not include any
wholesaler markup, service fees, or other charges. [DELETED]. Prices
referenced below are the prices in effect at the time of the Commencement
Date of this Agreement.
[DELETED]
2. [DELETED] Incentive. Dialysis Center may qualify for an [DELETED] Incentive
[DELETED] provided the following requirements are met.
a. Requirements: 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, at least [DELETED] taken on an overall basis (and not separately
for each Affiliate) must have [DELETED] (as defined in Section 2(b) below)
greater than or equal to [DELETED]. If either of these criteria is not met
during [DELETED], Dialysis Center will not qualify for the [DELETED].
-6-
Amendment #2 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
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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] after [DELETED]. In those cases in
which Amgen directs Dialysis Center to submit the [DELETED], Dialysis
Center shall be deemed [DELETED] so long as it does so [DELETED],
regardless of the [DELETED] to Amgen: [DELETED], (collectively the "Data");
provided, however, that Dialysis Center shall be [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
[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 "Annual Certification Letter",
a copy of which is attached hereto as Exhibit #1. Amgen hereby acknowledges
that it has received such required Annual Certification Letter, in form and
substance satisfactory to Amgen. Delivery of such Annual 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] greater than or equal to [DELETED], will
be determined by dividing the total number of dialysis patients with
[DELETED] greater than or equal to [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 [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].
-7-
Amendment #2 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 based upon the Data received
[DELETED], and will equal a percentage of Dialysis Center's total 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. [DELETED]. Amgen reserves the right to modify the
[DELETED] if the EPOGEN(R) package insert language changes. [DELETED].
[DELETED] of all dialysis patients [DELETED]
with [DELETED] greater than or equal to [DELETED] Incentive Percentage
Please direct your attention to the EPOGEN(R) package insert --------------------
------------------------------------------------------------
[DELETED]
[DELETED].
d. Vesting: Dialysis Center's [DELETED] will vest on [DELETED].
-8-
Amendment #2 to Agreement No. 19990110 (Continued)
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Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
e. [DELETED] Conversion: Dialysis Center may choose to submit [DELETED] test
results rather than [DELETED] test results as a measurement of [DELETED].
If during the Term, Dialysis Center elects to use [DELETED] test results,
Dialysis Center must: i) submit a "Notification Letter" to Amgen, a sample
of such Notification Letter is attached hereto as Exhibit #2, and ii) begin
submitting all [DELETED] test results for all dialysis patients along with
all other information described in Section 2(a) above, rather than
[DELETED] test results for all dialysis patients at each Affiliate for
purposes of participating in the [DELETED]. Amgen will accept the [DELETED]
test results, [DELETED], and apply the converted results to the same
schedule, requirements, and calculations described above in place of the
[DELETED] test results. For the [DELETED] in which Dialysis Center submits
its Notification Letter ("Grace Period"), Amgen will apply Dialysis
Center's [DELETED] in which complete [DELETED] test results were received
[DELETED] to the [DELETED] schedule listed above in order to determine the
applicable [DELETED] Percentage earned by Dialysis Center. If Dialysis
Center's overall performance on the [DELETED] after the Grace Period does
not equal or exceed the overall performance by Dialysis Center prior to
[DELETED], Amgen will continue to apply Dialysis Center's [DELETED] through
the remainder of the Term, provided that during the time period the
[DELETED] is so applied, Dialysis Center's aggregate EPOGEN(R)purchases by
all Affiliates listed on Appendix B on the Commencement Date of this
Agreement [DELETED], equals or exceeds [DELETED] by those same Affiliates
listed on Appendix B on the Commencement Date of this Agreement [DELETED],
for the same time period from the previous year. In the event any
Affiliates still submitting Data based on [DELETED] test results are added
to this Agreement after Dialysis Center has converted to [DELETED], such
[DELETED], for [DELETED] in which they were added, shall be included in the
calculation of the [DELETED] payment. In order for such added Affiliates'
Qualified Purchases of EPOGEN(R)to be included in all subsequent [DELETED]
payment calculations, such Affiliate must submit [DELETED] test results
rather than [DELETED].
3. [DELETED]. Dialysis Center shall be eligible to receive a [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 during [DELETED]. [DELETED]. In
order to qualify for the [DELETED], the following [DELETED] must be
submitted to Amgen by all Affiliates in [DELETED] acceptable to Amgen
[DELETED] Facility ID, [DELETED]. Such [DELETED] must be submitted, on a
[DELETED], and no later than [DELETED].[DELETED]. However, if Amgen
reasonably determines that any Affiliate 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] for [DELETED]. The [DELETED] will vest on [DELETED], and
payments will be made [DELETED], contingent upon receipt by Amgen of all
[DELETED]. [DELETED]
-9-
Amendment #2 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]
[DELETED].
For purposes of calculating the [DELETED], Amgen will incorporate Qualified
Purchases of EPOGEN(R) from [DELETED].
[DELETED].
[DELETED] payments will be made within [DELETED], contingent upon receipt by
Amgen of all necessary [DELETED]. [DELETED].
-10-
Amendment #2 to Agreement No. 19990110 (Continued)
- --------------------------------------------------------------------------------
Appendix A: Discount Pricing, Schedule, and Terms (continued)
-------------------------------------------------------------
[DELETED].
b. Vesting: Dialysis Center's [DELETED] will vest [DELETED], and will be paid
in accordance with the terms and conditions described above.
-11-
Amendment #2 to Agreement No. 19990110 (Continued)
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Appendix B: List of Dialysis Center Affiliates
(See Referenced)
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]
-12-
Amendment #2 to Agreement No. 19990110 (Continued)
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Exhibit #1
Annual Certification Letter
---------------------------
June 21, 2000
Total Renal Care, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, CA 90503
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] 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]. 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.
Total Renal Care, Inc.
Signature: /s/ [DELETED]
-------------------------------
Print Name: [DELETED]
-------------------------------
Print Title: Director, Purchasing
-------------------------------
Date: 6/23/2000
-------------------------------
-13-
Amendment #2 to Agreement No. 19990110 (Continued)
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Exhibit #2
Sample Notification Letter
--------------------------
Month X, 2000
[DELETED]
[DELETED] Incentive Analyst
Amgen Inc. [DELETED]
One Amgen Center Drive [DELETED]
Thousand Oaks, CA 91320
RE: Amgen Agreement No. XXXXXX
Dear [DELETED]:
This letter serves as notification that FSDC Legal Name and all eligible
Affiliates participating in the [DELETED] under Agreement No. XXXXXX, will begin
using [DELETED] test results as a measurement of [DELETED] as of Month X, 199X,
and will begin submitting [DELETED] test results rather than [DELETED] test
results for purposes of participating in the [DELETED].
We understand that any discount under the [DELETED] will now be based solely on
[DELETED] test results and that [DELETED] test results will no longer be
accepted. We also understand that such [DELETED] test results will be [DELETED]
and applied to the same schedule, requirements, and calculations described in
the [DELETED] outlined in the Agreement.
Sincerely,
Name of Administrator
Title
-14-
[LOGO OF AMGEN]
One Amgen Center Drive
Thousand Oaks, CA 91320-1799
January 17, 2001
Total Renal Care, Inc.
Attn: Rich Whitney
21250 Hawthorne Boulevard, Suite 800
Torrance, CA 90503
Re: EPOGEN/(R)/ Purchase Agreement #19990110, as amended; [DELETED].
Dear Rich Whitney:
Reference is made to the Agreement indicated above (the "Agreement") by and
between Amgen Inc. ("Amgen") and Total Renal Care, Inc. ("TRC") for the purchase
of EPOGEN/(R)/.
[DELETED].
Please note that this letter shall be considered a modification to the Agreement
and as such should be signed by both parties. Except as herein modified, all
other terms of the Agreement shall remain in full force and effect. Please
confirm that you are duly authorized to sign and commit on behalf of TRC
hereunder and that you have read, understand and agree to the terms of this
letter by signing below and returning the signed original copy of the letter to
me at the address provided above on the letterhead. A copy of this letter is
enclosed for your records.
If you have any questions or comments, please feel free to contact me at
805-313-7480. We look forward to receiving a signed copy of this letter and are
anxious to develop our ongoing relationship for the benefit of patients
undergoing dialysis.
Sincerely,
/s/
[DELETED]
National Account Manager
ACKNOWLEDGED AND AGREED:
Date: January ____, 2001
Total Renal Care, Inc.
By: /s/ Richard K. Whitney
----------------------------
Name: Richard K. Whitney
----------------------------
Title: CFO
----------------------------