TERRITORY, WHICH MAY INCLUDE, TELEPHONE HOTLINES, INFORMATIONAL FAX
PROGRAMS, MAIL RESPONSE PROGRAMS;
(H)
ADMINISTER AND PAY ANY CHARGEBACKS, REBATES, ADMINISTRATIVE
SERVICE FEES AND OTHER DISCOUNTS AND FEES WITH RESPECT TO THE PRODUCT IN THE GSK
TERRITORY WHICH FROM TIME TO TIME GSK MAY AGREE TO GIVE OR MAY BE REQUIRED UNDER
APPLICABLE LAWS TO GIVE TO PAYORS OR PURCHASERS OF THE PRODUCT;
(I)
USE ITS COMMERCIALLY REASONABLE EFFORTS TO ADEQUATELY TRAIN SALES
REPRESENTATIVES;
(J)
USE ITS COMMERCIAL REASONABLE EFFORTS TO UNDERTAKE AN ANALYSIS OF
THE INTELLECTUAL PROPERTY POSITION IN ANY COUNTRY OF THE GSK TERRITORY WHERE A
LAUNCH OF THE PRODUCT IS ANTICIPATED, AND WHERE DEEMED NECESSARY BY GSK, DEVELOP
OTHER TRADEMARKS FOR REVIEW AND APPROVAL BY THE JSC;
(K)
USE COMMERCIALLY REASONABLE EFFORTS TO CONDUCT ITS
COMMERCIALIZATION OF THE PRODUCT IN ACCORDANCE WITH THE COMMERCIALIZATION PLAN ;
AND
(L)
[**] AFTER THE END OF EACH CALENDAR YEAR, FURNISH SEPRACOR WITH
REASONABLY DETAILED SUMMARY WRITTEN REPORTS ON ALL ACTIVITIES CONDUCTED BY GSK
UNDER THE COMMERCIALIZATION PLAN DURING SUCH CALENDAR YEAR. INFORMATION SHALL BE
PROVIDED ON A COUNTRY BY COUNTRY BASIS FOR THE MAJOR MARKETS.
6.4.
FAILURE TO LAUNCH.
(A)
FOR THE AVOIDANCE OF DOUBT AND SUBJECT TO THE OTHER TERMS IN THIS
SECTION 6.4, THE PARTIES HEREBY ACCEPT THAT THE FAILURE TO LAUNCH THE PRODUCT IN
ANY COUNTRY OR COUNTRIES SHALL NOT, PER SE, BE DEEMED A BREACH OF GSK'S
OBLIGATIONS TO USE COMMERCIALLY REASONABLE EFFORTS TO COMMERCIALIZE THE PRODUCT.
WHERE GSK'S DECISION NOT TO LAUNCH IN ANY SPECIFIC COUNTRY IS FOUNDED ON GSK'S
GOOD FAITH BELIEF THAT THE PRODUCT IS NOT COMMERCIALLY VIABLE IN SUCH COUNTRY,
FOR EXAMPLE BECAUSE OF PRICING AND REIMBURSEMENT CONCERNS OR THAT THE LAUNCH OF
THE PRODUCT IN SUCH COUNTRY WOULD ADVERSELY AFFECT THE AMOUNT OF NET SALES THAT
WOULD BE ACHIEVED IN THE GSK TERRITORY, GSK SHALL NOT BE REQUIRED TO AND
SEPRACOR SHALL NOT HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IN SUCH COUNTRY,
EXCEPT AS DESCRIBED IN SECTION 6.4(B). HOWEVER, FOR THE AVOIDANCE OF DOUBT: (I)
GSK'S GOOD FAITH BELIEF MUST BE SUPPORTED BY ACTUAL INTERACTIONS WITH REGULATORY
AUTHORITIES OR OTHER GOOD FAITH OBJECTIVE EVIDENCE WHICH SUPPORTS
CONFIDENTIAL
GSK'S CONCLUSIONS; (II) GSK MUST SHARE ITS FINANCIAL ASSESSMENT, IN REASONABLE
DETAIL, SETTING FORTH WHY THE PRODUCT IS NOT IN GOOD FAITH DEEMED COMMERCIALLY
VIABLE; AND (III) THE JSC IS TO BE NOTIFIED AND HAVE THE OPPORTUNITY TO REVIEW
ANY SUCH DECISION NOT TO LAUNCH THE PRODUCT IN A COUNTRY.
(B)
NOTHWITHSTANDING ANYTHING ELSE HEREIN, WHERE (I) THE GSK DECISIONS
IN SECTION 6.4(A) AT ANY TIME COMBINE SO THAT GSK HAS DECIDED THAT IT WILL NOT
LAUNCH IN [**], OR (II) GSK HAS FAILED TO LAUNCH IN [**] FOLLOWING EMEA
APPROVAL, SEPRACOR HAS THE RIGHT TO TERMINATE THIS AGREEMENT, ON A
COUNTRY-BY-COUNTRY BASIS, IN [**] BY GIVING GSK SIXTY (60) DAYS WRITTEN NOTICE
TO THAT EFFECT AT ANY TIME THEREAFTER, PROVIDED THAT GSK HAS NOT IN THE INTERIM,
PRIOR TO RECEIPT OF NOTICE OF TERMINATION FROM SEPRACOR, NOTIFIED SEPRACOR THAT
IT PLANS TO