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DocuSign. Envelope ID: 58185859-5943-4C41-90BF-OCE5E90FDADD (01;2021 Version) pharmaceutical company's (a) failure to pay Rebates; (b) breach of an agreement related to Rebates; or (c) negligence or misconduct affecting Rebates. Client acknowledges that whether and to what extent pharmaceutical companies are willing to provide Rebates to Client may depend upon a variety of factors, including the content of the PDL, the Plan's design features, Client meeting criteria for Rebates. and the extent of participation in ESI's formulary management programs, as well as ESI/Administrator receiving sufficient information regarding each Claim for submission to pharmaceutical companies for Rebates. Client acknowledges and agrees that ESI may, but shall not be required to, initiate any collection action to collect any Rebates from a pharmaceutical company. In the event ESI does initiate collection action against a pharmaceutical company to collect Rebates, ESI may offset any reasonable costs, including reasonable attorneys' fees and expenses, arising from any such action. Notwithstanding any provision of this Agreement to the contrary-, Administrator shall only be responsible for payment of Rebates to Client pursuant to the terms of this Agreement if such Rebates are actually received by Administrator during the Term of this Agreement. In no event shall Administrator be obligated to pay Rebates to Client until Administrator receives payment for the same Rebates from ESI. In the event Client terminates the Agreement outside the terms and conditions in the Agreement, Client forfeits the right to receive any Rebates received by Administrator on Client's behalf after the date of such termination. Client acknowledges that Administrator shall not be obligated to pay Client any Rebates described herein until this Agreement is signed by Client. 5. Rebate amounts paid to Client pursuant to this Agreement are intended to be treated as "discounts" pursuant to the federal anti -kickback statute set forth at 42 U.S.C. § 1320a -7b and implementing regulations. Client is obligated if requested by the Secretary of the United States Department of Health and Human Services, or as otherwise required by applicable law, to report the Rebate amounts and to provide a copy of this notice. ESI will refrain from doing anything that would impede Client from meeting any such obligation. E. The following pricing assumptions shall apply for purposes of this Agreement: 1. If Client decides to implement a mandatory generic, mandatory mail, step therapy or other program during the Term, ESI has agreed that proposed pricing terms other than rebate guarantees will remain unchanged. 2. ESI must agree to propose pricing based on its broad national retail network that includes all major national and regional pharmacy chains. DISCOUNTS 3. The proposed "effective" generic discount and the generic discount guarantee calculation INCLUDES the following: MAC Generics Non -MAC Generics Single Source Generics Multi -Source Generics Generics in their FDC -granted exclusivity period Patent litigated claims Generics with limited supply Generic medications prescribed and/or dispensed in conjunction with a specialty medication 4. All Claims filled in Most Favored Nation states are INCLUDED in discount guarantees. 5. All Claims filled in rural pharmacies are INCLUDED in discount guarantees. 6. Ingredient Cost (including Member share) is defined as the lesser of the following: AWP -Discount MAC Price; or Usual & Customary Price. NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF EXPRESS SCRIPTS AND RXBENEFITS 56