TO THE PRODUCT.
ARTICLE VI
MANUFACTURING AND SUPPLY; SALES; PRICING; 1000MG FORMULATION
SECTION 6.1
OBLIGATIONS OF DEPOMED.
IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT AND ALL APPLICABLE LEGAL REQUIREMENTS, DEPOMED
SHALL, AT ITS COST AND EXPENSE, USE REASONABLE BEST EFFORTS TO PERFORM OR CAUSE
TO BE PERFORMED ALL PRODUCT MANUFACTURE, LABELING, PACKAGING, WAREHOUSING,
DISTRIBUTION AND RETURN, ORDER ENTRY, CUSTOMER SERVICES AND ALL OTHER ACTIVITIES
TO SUPPLY AND DISTRIBUTE THE PRODUCT IN THE TERRITORY IN ORDER TO FILL ORDERS
FOR PRODUCT CONFORMING TO THE THEN-CURRENT VOLUME FORECAST IN A TIMELY AND
EFFICIENT MANNER.
FROM AND AFTER THE COMPLETION OF THE SIXTH FULL CALENDAR
MONTH FOLLOWING THE PROMOTION COMMENCEMENT DATE, DEPOMED SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO MAINTAIN AT LEAST ONE MONTH'S SAFETY STOCK OF PRODUCT
("SAFETY STOCK") TO ADDRESS UNANTICIPATED CHANGES IN DEMAND FOR THE PRODUCT
(CALCULATED ON THE BASIS OF THE VOLUME FORECAST CONTAINED IN THE THEN-CURRENT
ANNUAL PLAN).
SECTION 6.2
MANUFACTURING ACTIVITIES.
THE PRODUCT, INCLUDING ALL
SAMPLES, TO BE MANUFACTURED BY OR FOR DEPOMED FOR SALE IN THE TERRITORY SHALL BE
MANUFACTURED TO MEET APPLICABLE SPECIFICATIONS FOR THE PRODUCT IN ACCORDANCE
WITH THE NDA, CGMP AND IN COMPLIANCE WITH ALL OTHER APPLICABLE LEGAL
REQUIREMENTS.
SECTION 6.3
VOLUME FORECASTS.
AT LEAST 30 DAYS PRIOR TO THE
BEGINNING OF EACH AGREEMENT QUARTER ENDING AFTER THE PROMOTION COMMENCEMENT
DATE, KING SHALL SUBMIT TO THE JCC A WRITTEN FORECAST BY MONTH OF THE NUMBER OF
UNITS OF PRODUCT EXPECTED TO BE SOLD IN THE TERRITORY DURING THE TWELVE (12)
MONTH PERIOD BEGINNING WITH SUCH AGREEMENT QUARTER, WHICH FORECAST SHALL BE
PREPARED BY KING IN GOOD FAITH.
IN ORDER TO ASSIST KING IN DEVELOPING SUCH
FORECASTS, DEPOMED SHALL GIVE KING TRADE WHOLESALER STOCKING LEVELS INFORMATION
WITHIN TEN DAYS FOLLOWING THE BEGINNING OF EACH AGREEMENT QUARTER ENDING AFTER
THE PROMOTION COMMENCEMENT DATE (OR, IF LATER, WITHIN TWO BUSINESS DAYS AFTER
SUCH INFORMATION BECOMES AVAILABLE TO DEPOMED).
THE JCC SHALL REVIEW AND
DISCUSS SUCH FORECAST AND SHALL MAKE SUCH MODIFICATIONS THERETO AS MAY BE
NECESSARY FOR SUCH FORECAST TO BE UNANIMOUSLY APPROVED BY THE JCC AND TO BE
CONSISTENT WITH THE FORECASTING AND PURCHASING PROVISIONS OF DEPOMED'S THIRD
PARTY SUPPLY AGREEMENT RELATING TO THE PRODUCT (AS SO MODIFIED AND APPROVED FOR
THE APPLICABLE TWELVE (12) MONTH PERIOD, THE "VOLUME FORECAST").
DEPOMED SHALL
USE REASONABLE BEST EFFORTS TO
26
MANUFACTURE AND DISTRIBUTE, OR CAUSE TO BE MANUFACTURED AND DISTRIBUTED, PRODUCT
CONSISTENT WITH THE VOLUME FORECAST.
THE VOLUME FORECAST FOR THE TWELVE MONTH
PERIOD BEGINNING ON AUGUST 1, 2006 IS ATTACHED HERETO AS SCHEDULE 6.3.
SECTION 6.4
SALES; PRICING.
(A)
DEPOMED OR ITS AFFILIATES SHALL BOOK ALL SALES OF THE PRODUCT IN
THE TERRITORY AND SHALL BE RESPONSIBLE FOR ENTERING INTO ANY CONTRACTS AND OTHER
ARRANGEMENTS WITH ANY PERSON REGARDING THE SALE OF THE PRODUCT, AND FOR
ESTABLISHING AND APPROVING THE FORM, CONTENT AND TERMS AND CONDITIONS THEREOF,
INCLUDING ANY DISCOUNT, ALLOWANCE, REBATE, CHARGEBACK OR OTHER TERM GRANTED
THEREIN; PROVIDED, HOWEVER, THAT (I) THE PRICING OF THE PRODUCT SHALL BE
CONSISTENT WITH THE PRICING ESTABLISHED BY