TO THE PRODUCT. DEPOMED SHALL PROMPTLY
NOTIFY WATSON OF ANY SUCH ACTIONS TAKEN BY DEPOMED, INCLUDING ALL ACTIONS THAT
ARE REASONABLY LIKELY TO RESULT IN A MATERIAL ADVERSE EFFECT ON THE
MARKETABILITY OF THE PRODUCT IN THE TERRITORY. AT DEPOMED'S REQUEST, WATSON
SHALL PROVIDE ASSISTANCE TO DEPOMED IN CONDUCTING SUCH RECALL, MARKET WITHDRAWAL
OR OTHER CORRECTIVE ACTION (INCLUDING RETRIEVING SAMPLES DISTRIBUTED BY THE
WATSON SALES FORCE TO PROFESSIONALS). WITH RESPECT TO ANY RECALL, MARKET
WITHDRAWAL OR CORRECTIVE ACTION INITIATED BY DEPOMED AS A RESULT OF DEPOMED
BECOMING AWARE OF ANY MANUFACTURING DEFECT IN PRODUCT, DEPOMED SHALL REIMBURSE
WATSON FOR ITS REASONABLE, DOCUMENTED, DIRECT, OUT-OF-POCKET COSTS INCURRED IN
CONNECTION WITH PARTICIPATING IN SUCH RECALL, MARKET WITHDRAWAL OR OTHER
CORRECTIVE ACTION PROVIDED THAT WATSON'S BREACH OF ITS OBLIGATIONS HEREUNDER IS
NOT A MATERIAL CAUSE OF THE RECALL, MARKET WITHDRAWAL OR OTHER CORRECTIVE
ACTION. EXCEPT AS SET FORTH ABOVE, DEPOMED SHALL BE UNDER NO LIABILITY
WHATSOEVER TO COMPENSATE WATSON OR MAKE ANY OTHER PAYMENT TO WATSON FOR ANY
DECISION TO RECALL, INITIATE A MARKET WITHDRAWAL OR TAKE ANY OTHER CORRECTIVE
ACTION WITH RESPECT TO THE PRODUCT.
ARTICLE VI
MANUFACTURING AND SUPPLY; SALES; PRICING
SECTION 6.1
OBLIGATIONS OF DEPOMED.
(A)
IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT AND ALL
APPLICABLE LEGAL REQUIREMENTS, DEPOMED SHALL, AT ITS COST AND EXPENSE, USE
COMMERCIALLY REASONABLE 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.
(B)
DEPOMED HAS PREPARED AND DELIVERED, WITH INPUT FROM WATSON, A
COMMERCIAL STOCKING PLAN FOR THE PRODUCT.
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, UNLESS THE PARTIES OTHERWISE AGREE IN WRITING TO AN ALTERNATIVE METHOD OF
FORECASTING PRODUCT PRESCRIPTIONS IN THE TERRITORY WITHIN THE FIELD, WATSON
SHALL SUBMIT TO THE JSC A WRITTEN NON-BINDING FORECAST BY
8
Confidential Information, indicated by [***], has been omitted from this filing
and filed separately with the Securities Exchange Commission
MONTH OF THE NUMBER OF UNITS OF PRODUCT INCLUDED WITHIN PRESCRIPTIONS EXPECTED
TO BE FILLED IN THE TERRITORY DURING THE TWELVE (12) MONTH PERIOD BEGINNING WITH
SUCH AGREEMENT QUARTER, WHICH FORECAST SHALL BE PREPARED BY WATSON IN GOOD
FAITH. THE JSC 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 JSC AND TO BE CONSISTENT WITH THE FORECASTING AND PURCHASING
PROVISIONS OF DEPOMED'S THIRD PARTY SUPPLY AGREEMENT RELATING TO THE PRODUCT (AS
SO MODIFIED