<PAGE>
Exhibit 10.04
[***] indicates the omission of
confidential portions for which confidential
treatment has been requested. Such
confidential information has been filed
separately with the Commission.
SECOND AMENDMENT TO
WHOLESALE SUPPLY AGREEMENT
---------------------------------------------------------------------------
This second amendment ("SECOND AMENDMENT")
dated June 2, 2004 amends the
Wholesale Supply Agreement dated January 1,
2004 ("AGREEMENT") and subsequently
amended on May 26, 2004 between CVS and
Cardinal Health. CVS and Cardinal Health
("PARTIES") desire to enter into this
Second Amendment to amend Section 1 and
Section 12 Disclosure Schedule [***].
The Parties agree as follows:
1. Effective Date of Amendment.
This Second Amendment shall be effective
as of [***]. In the event that the [***] does not [***], then
this
Second Amendment shall become null and void and shall be of no
force
or effect. Furthermore, CVS reserves the right to provide
Cardinal
with notification ("NOTICE") before the close of the [***] that
CVS
has determined in its sole discretion that it will not undertake
the
wholesale supply arrangement as described in the Second Amendment
in
which case this Second Amendment shall become null and void and
shall
be of no force or effect.
2. Scope. Notwithstanding
anything else in the Agreement, as amended, in
no event will CVS, at any time, be obligated to designate [***] by
CVS
or its affiliates for any reason, or which, [***] by CVS or its
affiliates in its business judgment, [***], or [***].
3. Disclosure Schedules. The
Agreement is amended by deleting therefrom
the following disclosure schedules in their entirety:
"Section 1", and
"Section 12 Disclosure Schedule"
and
replacing them with the following new Disclosure Schedules:
"Section 1", and
"Section 12 Disclosure Schedule"
attached to this Second Amendment and incorporated into this
Second
Amendment and into the Agreement by this reference, which shall
be
attached by the Parties to their respective copies of the
Agreement.
4. Generally. It is the
Parties' intent for the Agreement and this
Amendment [***] to be applied and construed as a single
instrument.
The Agreement, as modified by this Second Amendment, remains in
full
force and effect and constitutes the entire agreement
<PAGE>
among the Parties regarding this subject matter and supersedes
all
prior or contemporaneous writings and understandings among the
Parties
with respect thereto. This Second Amendment will be binding on
the
Parties and their successor and assigns. If any term or provision
of
this Second Amendment is determined to be illegal or unenforceable
by
a court of competent jurisdiction, the remaining terms and
provisions
of this Second Amendment and the Agreement will remain in full
force
and effect. Only a subsequent writing signed by both Parties may
amend
this Second Amendment or further amend the Agreement.
CVS Pharmacy, Inc
Cardinal Health*
By: /s/ Matthew J. Leonard
By: /s/ Michael J. Bender
----------------------------
----------------------------------
Print Name: Matthew J. Leonard
Print Name: Michael J. Bender
--------------------
--------------------------
Title: VP Pharmacy Merchandising
Title: EVP, Retail Sales and Marketing
-------------------------
-------------------------------
*The term "CARDINAL HEALTH" means the
following pharmaceutical distribution
companies: Cardinal Health 106, Inc.
(formerly known as James W. Daly, Inc.), a
Massachusetts corporation (Peabody,
Massachusetts); Cardinal Health 103, Inc.
(formerly known as Cardinal Southeast,
Inc.), a Mississippi corporation
(Madison, Mississippi); Cardinal Health
110, Inc. (formerly known as Whitmire
Distribution Corporation), a Delaware
corporation (Folsom, California) and any
other subsidiary of Cardinal Health, Inc.,
an Ohio corporation ("CHI"), as may
be designated by CHI.
Cc: Tina Egan, Assistant
General Counsel CVS
Paul
Williams, General Counsel Cardinal Health
2
<PAGE>
SECTION 1
---------
AMENDED JUNE 2, 2004
--------------------
SECTION 1. DESIGNATION AS [***].
----------------------
(a) Retail Pharmacies. During the term of this Agreement, CVS
will
designate Cardinal as [***] operated by CVS (collectively, the
"PHARMACIES" and individually, a "PHARMACY") subject to Section
1(a)
Disclosure Schedule. A list of the Pharmacies (the "[***]") will
be
provided by CVS to Cardinal from time to time during the term of
this
Agreement.
(b) Distribution Centers. During the term of this Agreement, CVS
will
designate Cardinal as [***] operated by CVS ("CVS PHARMACY
DCS")
subject to Section 1(b) Disclosure Schedule. A comprehensive list
[***]
as of January 1, 2004 (the date of this agreement) (the "Total
DC
List") is set forth in the Section 1(b) Disclosure Schedule.
(c) [***]. This Agreement [***] purchases which are made by CVS
on
behalf of the CVS [***] In return [***] as described in the Section
12
Disclosure Schedule, CVS will [***] from a CVS Pharmacy DC
being
serviced by Cardinal for a period of [***]. If at anytime after
[***],
CVS [***] from a CVS Pharmacy DC being serviced by Cardinal, then
s
described in the Section 12 Disclosure Schedule will [***]. If
CVS
[***] from a CVS Pharmacy DC being serviced by Cardinal after
the
[***], then the [***] as described in the Section 12 Disclosure
Schedule will for as long as CVS [***] from a CVS Pharmacy DC
being
serviced by Cardinal.
This Agreement specifically excludes [***] on behalf of the
[***].
As it concerns [***], in the event either party desires not to
[***]
from a [***] being serviced by Cardinal a
