RESPONSIBILITY OF PROMOTING THE PRODUCT AS OF THE EFFECTIVE DATE, AND FULL
RESPONSIBILITY FOR ANY DETAILS THAT OCCUR ON OR AFTER JANUARY 1, 2008, THE
PARTIES HAVE DEVELOPED AND AGREED UPON THE TRANSITION PLAN ATTACHED HERETO AS
EXHIBIT B.
THE PARTIES SHALL HAVE NO OBLIGATION TO UNDERTAKE ANY TRANSITION
ACTIVITIES NOT SET FORTH IN THE TRANSITION PLAN.
THE COSTS OF TRANSITIONING
MARKETING AND RELATED MATERIALS SHALL INCLUDE ONLY THOSE ACTIVITIES SPECIFICALLY
IDENTIFIED IN THE TRANSITION PLAN.
EACH PARTY IS RESPONSIBLE FOR ASSUMING ONE
HUNDRED PERCENT (100%) OF THE COSTS INCURRED BY IT ASSOCIATED WITH THE ORDERLY
TRANSITION OF KEY MARKETING PROGRAMS, MATERIALS AND OTHER IDENTIFIED MATTERS
FROM KING TO DEPOMED, AS SET FORTH IN THE TRANSITION PLAN.
5.2
COMPLIANCE.
IN PERFORMING ITS DUTIES HEREUNDER, EACH PARTY SHALL,
AND SHALL CAUSE ITS EMPLOYEES AND AGENTS TO, COMPLY WITH ALL LEGAL REQUIREMENTS,
INCLUDING THE FDA'S REGULATIONS AND GUIDELINES CONCERNING THE ADVERTISING OF
PRESCRIPTION DRUG PRODUCTS, DDMAC'S PROMOTIONAL GUIDELINES, THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES OFFICE OF THE INSPECTOR GENERAL COMPLIANCE PROGRAM
GUIDANCE FOR PHARMACEUTICAL MANUFACTURERS, THE AMERICAN MEDICAL ASSOCIATION'S
GUIDELINES ON GIFTS TO PHYSICIANS, THE PHRMA CODE ON INTERACTIONS WITH
HEALTHCARE PROVIDERS, THE PRESCRIPTION DRUG MARKETING ACT OF 1987, AS AMENDED,
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, THE ACCME STANDARDS FOR
COMMERCIAL SUPPORT OF CONTINUING MEDICAL EDUCATION, EQUAL EMPLOYMENT,
NON-DISCRIMINATION AND FEDERAL AND STATE ANTI-KICKBACK LEGAL REQUIREMENTS, LEGAL
REQUIREMENTS WITH RESPECT TO SUBMISSION OF FALSE CLAIMS TO GOVERNMENTAL OR
PRIVATE HEALTH CARE PAYORS, AND ALL INDUSTRY AND PROFESSIONAL STANDARDS, WHICH
MAY BE APPLICABLE TO THE ACTIVITIES (INCLUDING THE WAREHOUSING, HANDLING AND
DISTRIBUTION OF SAMPLES) TO BE PERFORMED BY SUCH PARTY HEREUNDER.
NONE OF KING,
DEPOMED, OR EITHER PARTY'S EMPLOYEES AND AGENTS SHALL OFFER, PAY, SOLICIT OR
RECEIVE ANY REMUNERATION TO OR FROM
5
PROFESSIONALS IN ORDER TO INDUCE REFERRALS OF OR PURCHASE OF THE PRODUCT.
THE
KING SALES FORCE SHALL HAVE NO DIRECT CONTACT WITH, NOR SHALL THE KING SALES
FORCE BE INVOLVED WITH THE DELIVERY OF PRODUCT TO PATIENTS, OTHER THAN DELIVERY
OF SAMPLES DIRECTLY TO PROFESSIONALS AUTHORIZED TO PRESCRIBE THE PRODUCT.
THE
KING SALES FORCE WAS TRAINED IN CONNECTION WITH COMPLIANCE WITH SEC. 1128B(B) OF
THE SOCIAL SECURITY ACT AND THE AMA GUIDELINES ON GIFTS TO PHYSICIANS FROM
INDUSTRY PRIOR TO ENGAGING IN PROMOTION OF THE PRODUCT.
6.
CONFIDENTIALITY AND PUBLICITY
6.1
CONFIDENTIALITY.
PURSUANT TO THIS AGREEMENT AND THE PROMOTION
AGREEMENT, A PARTY RECEIVING PROPRIETARY INFORMATION FROM THE OTHER, DIRECTLY OR
INDIRECTLY, WILL TREAT SUCH PROPRIETARY INFORMATION AS CONFIDENTIAL, WILL USE
SUCH PROPRIETARY INFORMATION ONLY FOR THE PURPOSES OF THE PROMOTION AGREEMENT
AND THIS AGREEMENT AND WILL NOT DISCLOSE, AND WILL TAKE ALL REASONABLE
PRECAUTIONS TO PREVENT THE DISCLOSURE OF, SUCH PROPRIETARY INFORMATION TO
(A) ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EQUITY HOLDERS, EMPLOYEES, AGENTS,
REPRESENTATIVES, AFFILIATES OR CONSULTANTS WHO ARE NOT REQUIRED TO KNOW SUCH
PROPRIETARY INFORMATION OR WHO ARE NOT BOUND BY A LIKE OBLIGATION OF
CONFIDENTIALITY OR (B) THIRD PARTIES.
THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL BE CONSIDERED TO BE THE PROPRIETARY