NOVEMBER 1, 2005 OR, IF LATER, WITHIN 15 DAYS AFTER LICENSED PRODUCT IS
AVAILABLE IN COMMERCIAL QUANTITIES PURSUANT TO THE TERMS OF THE SUPPLY
AGREEMENT);
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
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(D)
BUILD AN ACTIVE AND CONTINUOUS MARKETING AND
SALES PROGRAM CAPABLE OF ADDRESSING THE MARKET OPPORTUNITY FOR THE LICENSED
PRODUCT IN THE TERRITORY;
(E)
ACCEPT, AND DISTRIBUTE IN RESPONSE TO,
CUSTOMER ORDERS AND REQUESTS FOR LICENSED PRODUCT IN THE TERRITORY SO AS NOT TO
RESULT IN SHORTAGES OF LICENSED PRODUCT IN THE TERRITORY;
(F)
CARRY ADEQUATE INVENTORIES OF PRODUCTS TO
SERVICE ALL ACCOUNTS WITHIN THE TERRITORY;
(G)
PROVIDE A DEDICATED PRODUCT SPECIALIST,
CUSTOMER SUPPORT AND TECHNICAL SUPPORT FOR THE LICENSED PRODUCT AT A LEVEL
REASONABLY CALCULATED TO ASSURE SALES PERFORMANCE, CUSTOMER SATISFACTION
(INCLUDING WITHOUT LIMITATION (A) ESTABLISH AND MAINTAIN A SUFFICIENTLY DETAILED
TRACKING SYSTEM TO PERMIT SUCCESSFUL TRACKING OF PRODUCTS IN THE EVENT OF A
RECALL AND (B) KEEP A RECORD OF ALL CUSTOMER COMPLAINTS AND COMMUNICATE PROMPTLY
TO DEPOMED ALL SUCH COMPLAINTS);
(H)
PROVIDE REASONABLE AND ADEQUATE ADVERTISING
AND PROMOTION CAPABLE OF ADDRESSING THE MARKET OPPORTUNITY FOR THE LICENSED
PRODUCT IN THE TERRITORY (AND, WITH RESPECT TO THE PERIOD BEGINNING ON THE
EFFECTIVE DATE AND ENDING ON DECEMBER 31, 2006, CONSISTENT WITH THE MARKETING
BUDGET ATTACHED HERETO AS EXHIBIT C); AND
(I)
PROVIDE SUFFICIENT SAMPLES OF LICENSED
PRODUCT FOR ITS FIELD SALES FORCE.
5.2
COMPLIANCE WITH REGULATIONS.
ESPRIT SHALL
PERFORM ITS OBLIGATIONS IN RESPECT OF THE DISTRIBUTION OF LICENSED PRODUCT IN
THE TERRITORY AND THE MARKETING OF LICENSED PRODUCT IN THE TERRITORY (A) ONLY IN
A MANNER WHICH IS CONSISTENT WITH FDA AND ALL OTHER APPLICABLE REGULATORY
APPROVALS OR REQUIREMENTS WHICH ARE THEN IN EFFECT WITH RESPECT TO THE LICENSED
PRODUCT AND (B) IN COMPLIANCE WITH ALL APPLICABLE LAWS, RESTRICTIONS AND
REGULATIONS OF THE FDA, THE DEPARTMENT OF COMMERCE AND ANY OTHER UNITED STATES,
STATE, LOCAL, OR APPLICABLE AGENCY OR AUTHORITY.
ESPRIT SHALL (A) LIMIT ITS
CLAIMS OF EFFICACY AND SAFETY FOR LICENSED PRODUCT TO THOSE THAT ARE CONSISTENT
WITH APPROVED PROMOTIONAL MATERIALS AND FDA-APPROVED PRESCRIBING INFORMATION FOR
LICENSED PRODUCT IN THE TERRITORY, (B) NOT ADD, DELETE OR MODIFY CLAIMS OF
EFFICACY AND SAFETY IN THE MARKETING OF LICENSED PRODUCT UNDER THIS AGREEMENT
FROM THOSE CLAIMS OF EFFICACY AND SAFETY THAT ARE CONSISTENT WITH THE
FDA-APPROVED PRESCRIBING INFORMATION AND APPLICABLE LAW AND (C) MARKET THE
LICENSED PRODUCT IN ADHERENCE TO APPLICABLE LAWS AND IN COMPLIANCE WITH THE THEN
CURRENT PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA CODE ON
INTERACTIONS WITH HEALTHCARE PROFESSIONALS.
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5.3
SALES FORCE.
(A)
ESTABLISHMENT OF PRIMARY CARE SALES FORCE.
IN THE EVENT THAT ESPRIT FAILS TO PROVIDE A PROFESSIONAL FIELD SALES FORCE OF AT
LEAST [***] REPRESENTATIVES TO COVER THE PRIMARY CARE MARKET IN THE TERRITORY
WITHIN SIX MONTHS AFTER THE FIRST COMMERCIAL SALE AS REQUIRED PURSUANT TO
SECTION 5.1(B), THEN ESPRIT SHALL PRESENT TO