(WHETHER SOLD BEFORE OR AFTER THE EFFECTIVE DATE) AND ACCRUING AFTER THE
EFFECTIVE DATE.
ANY SUCH REBATE SHALL CONTINUE TO BE PROCESSED AND ISSUED
PURSUANT TO THE
8
TERMS OF THAT CERTAIN LETTER AGREEMENT, DATED AS OF SEPTEMBER 15, 2005, BETWEEN
DEPOMED AND ESPRIT.
7.4
COMMERCIAL REBATES.
ESPRIT WILL BE RESPONSIBLE
FOR ALL REBATES WITH RESPECT TO THE LICENSED PRODUCT BEARING AN ESPRIT NDC
NUMBER WHICH ARE OWED TO ANY MANAGED CARE PROVIDER, WHOLESALER OR RETAILER WITH
WHOM ESPRIT HAD ENTERED INTO A COMMERCIAL REBATE AGREEMENT, AND SHALL PROCESS
AND ISSUE ANY SUCH REBATE.
7.5
CHARGEBACK CLAIMS.
ESPRIT SHALL BE SOLELY
RESPONSIBLE FOR ALL CHARGEBACK CLAIMS FOR THE LICENSED PRODUCT BEARING AN ESPRIT
NDC NUMBER TO THE EXTENT A CHARGEBACK INVOICE WITH RESPECT TO EACH SUCH CLAIM IS
DATED (I.E. DATE OF SALE FROM THE WHOLESALER TO THE WHOLESALER CUSTOMER) PRIOR
TO JULY 31, 2007 (THE "TRANSITION CHARGEBACKS"), AND SHALL PROCESS ANY SUCH
TRANSITION CHARGEBACKS.
NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE
THAT THE VA NATIONAL ACQUISITION CENTER MUST APPROVE THE REMOVAL OF THE PRODUCTS
FROM ESPRIT'S FEDERAL SUPPLY SCHEDULE ("FSS") BEFORE THE RESPONSIBILITY OF
PROCESSING SUCH REBATES IS TRANSFERRED FROM ESPRIT TO DEPOMED.
ACCORDINGLY, IN
THE EVENT SUCH APPROVAL IS NOT OBTAINED PRIOR TO JULY 31, 2007, ESPRIT SHALL
CONTINUE TO BE RESPONSIBLE FOR PROCESSING THE FSS CHARGEBACKS ON DEPOMED'S
BEHALF, AND DEPOMED SHALL REIMBURSE ESPRIT FOR SAME.
7.6
MUTUAL EXPECTATIONS REGARDING LICENSED PRODUCT
RETURNS.
WITHOUT LIMITING IN ANY WAY ESPRIT'S OBLIGATIONS UNDER THIS ARTICLE
VII OR ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES ACKNOWLEDGE THAT AS OF
THE EFFECTIVE DATE, AND ON THE BASIS OF (A) THE DISTRIBUTION CHANNEL
RECONCILIATION, AND (B) THE EXPIRATION DATING OF LICENSED PRODUCT DISTRIBUTED BY
ESPRIT THROUGH THE EFFECTIVE DATE (OTHER THAN APPROXIMATELY 900 BOTTLES OF
LICENSED PRODUCT IN THE 50 COUNT TRADE PRESENTATION WITH NOVEMBER 2008
EXPIRATION DATING THAT HAVE BEEN DISTRIBUTED BY ESPRIT), AND (C) ESPRIT'S
OBLIGATIONS UNDER THIS AGREEMENT, THE PARTIES ANTICIPATE THAT IT IS LIKELY THAT
BY DECEMBER 31, 2008, ESPRIT WILL HAVE COMPLIED WITH ANY FINANCIAL OBLIGATIONS
IT HAS UNDER THIS AGREEMENT IN RESPECT OF LICENSED PRODUCT RETURNS (PROVIDED
THAT ESPRIT COMPLIES PROMPTLY AND IN ALL RESPECTS WITH ITS OBLIGATIONS UNDER
THIS AGREEMENT AND THAT EXPIRED LICENSED PRODUCT DISTRIBUTED BY ESPRIT IS
RETURNED TO ESPRIT BEFORE OR PROMPTLY FOLLOWING ITS EXPIRATION IN ACCORDANCE
ESPRIT'S CURRENT RETURNED GOODS POLICY).
8.
CONFIDENTIALITY
EXCEPT AS SPECIFICALLY AUTHORIZED BY THIS AGREEMENT, EACH PARTY SHALL, FOR THE
TERM OF THIS AGREEMENT AND FOR FIVE (5) YEARS AFTER THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT, KEEP CONFIDENTIAL, NOT DISCLOSE TO OTHERS AND USE
ONLY FOR THE PURPOSES AUTHORIZED HEREIN ALL PROPRIETARY INFORMATION PROVIDED BY
THE OTHER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING
OBLIGATIONS OF CONFIDENTIALITY SHALL NOT APPLY TO THE EXTENT THAT ANY SUCH
INFORMATION IS (I) ALREADY KNOWN TO THE RECIPIENT AT THE TIME OF DISCLOSURE AS
EVIDENCED BY ITS PRIOR WRITTEN RECORDS; (II) PUBLISHED OR PUBLICLY KNOWN PRIOR
TO OR AFTER DISCLOSURE OTHER THAN THROUGH UNAUTHORIZED ACTS OR OMISSIONS