ANNUAL COMMERCIALIZATION PLAN (THE "ANNUAL PLAN")
AND SUBMIT THE ANNUAL PLAN TO THE JCC FOR REVIEW AND APPROVAL; PROVIDED THAT THE
ANNUAL PLAN FOR THE 2007 CALENDAR YEAR WILL BE DEVELOPED ON OR PRIOR TO DECEMBER
1, 2006.
THE ANNUAL PLAN SHALL SET FORTH THE MANNER IN WHICH
17
THE PRODUCT IS TO BE PROMOTED AND COMMERCIALIZED DURING THE PERIOD TO WHICH THE
ANNUAL PLAN RELATES AND SHALL INCLUDE, AT A MINIMUM:
(I)
THE ANTICIPATED NUMBER OF QUARTERLY AND ANNUAL DETAILS (INCLUDING
P1 DETAILS, P2 DETAILS AND P3 DETAILS) TO BE PROVIDED BY THE KING SALES FORCE;
(II)
THE KING PHYSICIAN LIST;
(III)
PRODUCT POSITIONING, STRATEGY AND TACTICS WITH SUPPORTING
ADVERTISING AND PROMOTIONAL ACTIVITY TO BE UNDERTAKEN, INCLUDING ALL MATERIAL
COMMUNICATIONS TO THIRD PARTIES RELATED TO COMMERCIAL MATTERS FOR THE PURPOSE OF
PROMOTING THE PRODUCT;
(IV)
ANY TRAINING AND/OR SAMPLING PROGRAMS TO BE CONDUCTED;
(V)
MEDICAL EDUCATION PROGRAMS TO BE CONDUCTED;
(VI)
PLANNED PUBLIC RELATIONS ACTIVITIES;
(VII)
PRODUCT PRODUCTION FORECASTS;
(VIII)
SAMPLE FORECASTS AND DELIVERY SCHEDULES;
(IX)
PRICING AND CONTRACTING STRATEGIES;
(X)
FORMAT AND QUANTITY OF SALES, MARKETING AND EDUCATIONAL
MATERIALS;
(XI)
MANAGED HEALTH CARE STRATEGIES AND TACTICS;
(XII)
CUSTOMER TARGETS;
(XIII)
PRODUCT MANUFACTURING AND DISTRIBUTION;
(XIV)
POST-MARKETING CLINICAL STUDIES THAT DEPOMED, IN ITS SOLE
DISCRETION, DECIDES TO CONDUCT; AND
(XV)
A DETAILED, ITEMIZED BUDGET FOR ALL COSTS AND EXPENSES ASSOCIATED
WITH THE ACTIVITIES TO BE UNDERTAKEN PURSUANT TO THE ANNUAL PLAN (INCLUDING ALL
ADVERTISING/MARKETING/EDUCATIONAL EXPENSES), AND THE ALLOCATION OF SUCH COSTS
AND EXPENSES BETWEEN THE PARTIES.
(C)
THE JCC SHALL USE ALL REASONABLE EFFORTS TO APPROVE THE ANNUAL
PLAN NOT LATER THAN NOVEMBER 1 OF EACH PRECEDING CALENDAR YEAR; PROVIDED THAT
THE ANNUAL PLAN FOR THE 2007 CALENDAR YEAR WILL BE APPROVED NO LATER THAN
JANUARY 1, 2007.
THE ANNUAL PLAN FOR 2007 SHALL INCORPORATE TASKS, ACTIVITIES
AND RESPONSIBILITIES IN ADDITION TO ANY TASKS, ACTIVITIES AND RESPONSIBILITIES
IN THE LAUNCH PLAN.
THE JCC SHALL ENDEAVOR TO ENSURE THE PARTIES THERE ARE NO
TASKS, ACTIVITIES OR RESPONSIBILITIES IN THE LAUNCH PLAN INCONSISTENT WITH THOSE
SET FORTH IN THE ANNUAL PLAN FOR 2007.
18
(D)
EACH PARTY SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO
PERFORM ALL TASKS, RESPONSIBILITIES AND ACTIVITIES FOR WHICH IT IS RESPONSIBLE
UNDER THE LAUNCH PLAN AND THE ANNUAL PLAN.
NEITHER PARTY SHALL HAVE ANY
OBLIGATION TO INCUR ADVERTISING/MARKETING/EDUCATIONAL EXPENSES IN EXCESS OF
THOSE SET FORTH IN THE ANNUAL PLAN; PROVIDED, THAT KING SHALL BE RESPONSIBLE FOR
ANY AND ALL COSTS AND EXPENSES ASSOCIATED WITH CREATING AND APPROVING ANY NEW
PRODUCT PACKAGING DESIGN PROPOSED BY KING (AND SUCH COSTS AND EXPENSES SHALL BE
IN ADDITION TO KING'S ADVERTISING/MARKETING/EDUCATIONAL EXPENSES).
FURTHERMORE,
EXCEPT TO THE EXTENT THE JCC HAS APPROVED ANY PAYMENT IN ACCORDANCE WITH THIS
AGREEMENT, INCLUDING APPROVAL AS PART OF AN ANNUAL PLAN, OR EXCEPT FOR A PARTY'S
OBLIGATION TO PAY ITS PORTION OF THE ADVERTISING/MARKETING/EDUCATIONAL EXPENSES
DESCRIBED IN SECTION 4.5(E) BELOW, NEITHER PARTY SHALL (I) BE OBLIGATED TO INCUR
ANY COSTS OR EXPEND ANY FUNDS THAT HAVE NOT BEEN APPROVED BY SUCH PARTY OR (II)