Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


 


Exhibit 10.62


 


GILEAD WORLD MARKETS, LTD. and PPG

TENOFOVIR DF MANUFACTURING SUPPLY AGREEMENT


 


THE PARTIES HEREBY ACKNOWLEDGE
THE FOLLOWING:


 


THIS
SUPPLY AGREEMENT (“Agreement”) is entered into as January 1, 2003 (the
“Effective Date”), by and between 
PPG-Sipsy S.A.S., a French company having a place of business at Z.I. la
Croix Cadeau, B.P. 79, 49242 Avrille Cedex, France (“PPG”) and Gilead World
Markets, Ltd., a company operating under the laws of the Cayman Islands, having
its principal place of business at Queensgate House, South Church Street, PO
Box 1234GT, Grand Cayman (“GWM”).   PPG
and GWM may be referred to singly as “Party” and collectively as “Parties” in
this Agreement.


                WHEREAS, PPG is a known
manufacturer of active pharmaceutical ingredients with expertise in “cGMP”
manufacturing, and GWM and its designees manufacture and market pharmaceutical
products for human use, including tenofovir disoproxil fumarate 300 mg  (“Viread®”);


                WHEREAS, PPG and GWM desire to
establish mutually agreeable terms for the commercial supply of tenofovir
disoproxil fumarate (“Product”) as an active pharmaceutical ingredient by PPG
to GWM.


                NOW, THEREFORE, in consideration
of (i) PPG’s agreement to manufacture Product and supply to GWM for the
monetary amounts set forth in this Agreement; (ii) the promises, covenants,
agreements and other valuable consideration hereinafter set forth, and
intending to be legally bound, the Parties hereby agree as follows:


 


1.               AGREEMENT
ACCEPTANCE: PPG has read and
understands this Agreement and understands that it will govern PPG’s written
acceptance of any order for or delivery of any Product.  All terms and conditions with respect to an
order for Product proposed by PPG which are different from or in addition
to this Agreement and are not agreed to in writing by GWM are expressly
rejected by GWM, and shall not become a part of this Agreement or such
order.  GWM has read and understands
this Agreement and shall purchase the Product manufactured by PPG and pay for the
supply of the Product in accordance with the terms and provisions of this
Agreement.  With the exception of any
Product delivery pursuant to the [*],
and the [*], any delivery of
Product after the Effective Date of this Agreement shall be governed by the
terms of this Agreement.  Any modifications
to this Agreement shall, prior to their implementation, be mutually agreed upon
by the parties hereto and shall be made in accordance with Section 28.


 


Neither
the General Sales Conditions of PPG nor the General Purchase Conditions of GWM
shall apply to the supply of the Product by PPG to GWM.


 


2.               TERM:  The term of this
Agreement shall begin as of January 1, 2003, and shall remain in effect until
December 31, 2005 (the “Initial Term”), and thereafter for subsequent two-year
renewal terms (each a “Renewal Term”), unless terminated at the end of the
Initial Term or any Renewal Term by either Party with at least twelve (12)
months prior written notice or
unless otherwise terminated according to Section 12 “Termination” of this
Agreement.


3.               SUPPLY:  During the term of this Agreement, PPG shall manufacture Product for
GWM for use in Viread®.  During the term of this Agreement, PPG is
obligated to manufacture Product at the location and in the quantities set
forth herein.


a)              PPG will
manufacture the Product for GWM only from its facility located at [*], or such other facilities as the Parties agree to in
writing.


b)             During the Initial
Term and any Renewal Term GWM will purchase and PPG shall deliver at least the
quantities set forth in Exhibit A.   [*] will result in [*] to the [*] for such [*]
the [*] the invoice for which will
be issued in the calendar year for which the [*]
of the [*] as described in Section
12, then [*] will be [*] to the quantities of Product ordered [*] such [*]
in addition to [*] as described in
Section 12.


 


Page 1

















 


c)              Forecasting:  
On the first day of each [*]
GWM shall provide to PPG the projected need for Product for [*] the [*]
period commencing [*] from the
date of forecast.  The quantities
indicated in the first [*] period
of the [*] projection will be an
affirmative obligation for GWM to purchase, and an affirmative obligation for
PPG to supply Product within the limits of [*]  The quantities indicated in the second [*] period of the [*] projection will be considered as a
forecast only.   With the exception of
calendar year 2003 for which [*],
notwithstanding anything in this Agreement, PPG’s [*] in any given [*]
period shall be [*] indicated in [*] in which the [*] period falls.


d)             Acceptance:  PPG shall respond to each order received from GWM
within [*] calendar days of
receipt.  The response shall include
PPG’s inability to comply with, or confirmation of the delivery dates and
quantities set forth in the order.


e)              Each shipment of
Product hereunder will be delivered to a facility of GWM, or a GWM designee,
and in such quantities as designated by GWM on its purchase order (the “GWM
Purchase Order”), material transfer request, or by subsequent written
instruction given by GWM and in accordance with the instructions for shipping
and packaging included in such GWM Purchase Order (each facility so designated
shall be a “GWM Location”). Any other additional terms and conditions provided
on such GWM Purchase Orders shall not apply as the terms and conditions of this
Agreement shall apply alone.


f)                If PPG is unable to
supply sufficient quantities of the Product to meet either its minimum
obligations under Section 3(b), or any GWM Purchase Order (whether or not
accepted by PPG), or should either Party perceive that a shortfall in delivery
of Product by PPG is likely to occur for any reason, the Parties shall discuss
appropriate steps to alleviate such a shortfall[*].  GWM shall have
the right [*].  Any quantities [*] to meet such a shortfall shall be [*] and [*]
in which the shortfall occurs.  If GWM
must [*] a [*] any costs beyond the Base Price, as
agreed by the Parties and as described in Exhibit B, for the shortfall
quantity, but limited to a total cost of not more than [*] of the Base Price. Repeated shortfalls
may be considered a material breach of this Agreement, as described in section
12 of this Agreement.


g)             If release and/or
shipment of any quantity is delayed after PPG has accepted an order, through
the fault of PPG, by more than [*]
the quantity shall be considered a shortfall, and treated as above in Section
3(f).  If such delay is caused by GWM,
GWM shall make [*] to remediate
the fault as soon as reasonably practicable.


4.               GOOD MANUFACTURING PRACTICES: PPG expressly warrants that all goods covered by this
Agreement will be manufactured in accordance with current good manufacturing
practices (“cGMP”) as established by the United States Food and Drug
Administration (the “FDA”), and the European Agency for Evaluation of Medicinal
Products (“EMEA”) for the manufacture of pharmaceutical materials, as well as
other applicable rules and regulations of the FDA, EMEA, and other governmental
or regulatory agencies of the United States or the European Union.  Each Party shall promptly notify the other
of any new instructions or specifications required by the FDA, the Federal
Food, Drug and Cosmetic Act, the Federal Public Health Service Act or other
applicable rules and regulations of the United States or the European Union,
and shall confer with each other with respect to the best means to comply with
such requirements and shall allocate any costs of implementing such changes on
an equitable basis.  Upon written
request of GWM, PPG will permit representatives of GWM to observe such
manufacture, or any government inspection of PPG’s manufacturing process for
the Product, at mutually agreeable times and PPG shall permit GWM to inspect
copies of PPG’s manufacturing records, including its batch records, for the
purposes of assuring Product quality and compliance with agreed-upon
manufacturing procedures.


 


5.               MANUFACTURING PROCESS AND BATCH RELEASE TESTING: GWM shall make available to PPG, free of
charge, all such know-how, information, and technical assistance if needed by
PPG so as to allow PPG to manufacture TENOFOVIR DF (the “Product”) to the
standard of GWM as will be more precisely described by GWM in writing to PPG
before the start of manufacturing of the Product.  PPG shall manufacture the Product in conformance with the
specifications (the “Specifications”) set forth in the Gilead Sciences
Tenofovir DF Contract Manufacturing Manual which is in effect on the Effective
Date of this Agreement, and as thereafter amended (the “Contract Manufacturing
Manual”), and according to the manufacturing process description as set forth
in the Contract Manufacturing Manual. 
PPG shall test each batch of Product for conformance to the
specifications according to the Standard Test Methods as set forth in the
Contract Manufacturing Manual.


 


6.               RAW MATERIALS: Raw materials used in the manufacture of Product will
conform to the specifications set forth in the Contract Manufacturing Manual
(the “Raw Material Specifications”) and such conformance will be 


 


Page 2

















 


verified in
accordance with the testing standards and procedures specified therein.  PPG agrees that it will facilitate changes
to the Raw Material Specifications that are necessary or appropriate in light
of FDA or other regulatory requirements. 
PPG shall not be liable hereunder if the raw materials meet the Raw
Material Specifications and the Product fails to meet the Specifications
because the raw material specifications are inadequate.


 


7.               CHANGE IN MANUFACTURING PROCESS: PPG shall obtain GWM’s prior written
approval before implementing any planned change in the materials, equipment,
process, or procedures used to manufacture the Product that would constitute a
change under cGMP, would impact the validation status of the process, or would
constitute noncompliance with the manufacturing process set forth in the
Contract Manufacturing Manual.  PPG
shall disclose all proposed changes in such manufacturing materials, equipment,
process, or procedure to GWM at a level sufficient to allow GWM to practice
such changed manufacturing process.  GWM
shall notify PPG in writing with reasonable notice of any change in the
materials, equipment, process, analytical methods, specifications, or
procedures to be used in the manufacture of the Product whether such changes
are to be reflected as updates to the Contract Manufacturing Manual or
otherwise.  PPG shall provide GWM with
an authentic copy of the current Master Batch Record for the preparation of the
Product.


 


The cost of implementing
any amendment or change of whatever nature to the procedures or specifications
described in the Contract Manufacturing Manual as it exists on the Effective
Date of this Agreement, as well as any extra costs resulting from the
implementation of such change, shall be borne by [*] through an [*]
which the Parties shall negotiate in good faith.


 


8.               PROCESS IMPROVEMENTS: [*]
agrees to communicate promptly to [*]
any idea and substantial improvement (patented or unpatented) made or developed
solely or jointly by [*] arising
from its activities under this Agreement and relating to the processing or
manufacture of the Product (“Improvement”). 
All rights and title to Improvements that have no foreseeable uses other
than those related to the processing or manufacture of the Product shall be
assigned to [*], which shall have
only the right to utilize such Improvements in the manufacture of the
Product.  All rights and title to
Improvements (patented or unpatentable) that have applications other than those
related to the processing or manufacture of the Product and that do not contain
specific know-how of [*] developed
prior to the Effective Date, shall be assigned to [*], which shall have only the right to utilize such
improvements in the processing and manufacture of the Product and any
structurally related Gilead pharmaceutical compound. [*] grants to [*]
a royalty-free worldwide exclusive license limited to processing or manufacture
of the Product and any structurally related Gilead pharmaceutical compound for
Improvements that have applications other than those related to the processing
or manufacture of the Product, but do not contain specific [*] know-how developed prior to the
Effective Date. If [*] contracts
out the processing or manufacture of the Product, or structurally related
Gilead pharmaceutical compounds to any third party, any Improvement may be
disclosed to such contract manufacturer but rights to use the same shall be
restricted to the processing and manufacture of the Product, or structurally
related Gilead pharmaceutical compounds, and the Parties hereto will discuss in
good faith an appropriate remuneration to [*]
before implementing any such disclosure to said third party.


 


9.               QUALITY CONTROL SAMPLE AND DOCUMENTATION: Manufacture of the Product shall at all
times be in strict conformance with the Specifications and such conformance
will be verified in accordance with the testing procedures specified
therein.  Prior to the delivery of any
batch of Product, PPG shall provide GWM with (i) a quality control sample of
such to be held by GWM for analytical reference, (ii) written confirmation that
the batch records for such batch have been reviewed and approved by PPG’s
quality assurance unit (Certificate of Compliance), and (iii) a Certificate of
Analysis confirming that such batch meets Specifications.  Quality control sampling, unless otherwise
specified by GWM in writing, shall be in accordance with the most current Drug
Substance Sampling/Testing Plan contained in the Contract Manufacturing Manual.


 


10.         QUANTITY
AND PRICE: Subject to adjustment as
provided in this Agreement, GWM shall pay to PPG the prices in Exhibit B.  Using Exhibit B, “Invoice” price is set on [*] of each calendar year for the
subsequent calendar year using the [*]
plus the forecast given by GWM for the second [*]
in accordance with Section 3.c. Adjustment will be made [*] based on [*] such year, with a corresponding [*] of that calendar year based on the [*].


 


PPG
agrees that if process improvements are discovered and mutually agreed upon in
accordance with Sections 7 and 8, and which have a material effect on Product
manufacturing cost, the Parties will negotiate in good faith [*].


 


Page
3

















 


11.         SHIPPING,
BILLING AND PAYMENT:
Unless otherwise agreed by the Parties in writing, all shipments shall be
shipped [*] (Incoterms 2000),
pursuant to written instructions provided by GWM to PPG.  However, [*]
shall be responsible for the [*].  PPG will package and ship the Products in
accordance with PPG’s customary practices for pharmaceutical compounds, unless
otherwise specified by GWM.  Within [*] calendar days of receipt of such
shipping instructions from GWM, PPG shall ship the invoiced amount of Product
to its destination.  All invoices from
PPG to GWM covering Product shipped to GWM shall be stated, and all payments to
PPG by GWM shall be made in Euros. 
Payments due to PPG shall be made by wire transfer to the bank account
of PPG of which PPG shall advise GWM from time to time.  The invoices will be issued upon completion
of the batches and issuance of the applicable quality control sample/s in
accordance with Section 9.  PPG’s
invoice shall be paid by GWM not later than [*]
calendar days following the later of (i) the receipt of the applicable invoice,
or (ii) receipt of the Certificate of Analysis and Certificate of
Compliance.  Any invoiced amount which
is not paid within [*] of its due
date shall be assessed a late payment fee at the rate of [*] or the maximum rate permitted by
applicable law with respect to such obligations, whichever is less.  At [*]
credit terms can be adjusted [*]
as justified by [*].


 


12.         TERMINATION:  Either
Party may terminate this Agreement for a material breach by the other Party. A
material breach may be encountered if either Party: (a) repudiates or breaches
a substantial term of this Agreement; or (b) fails to perform services or
deliver goods as provided in this Agreement. 
Termination under this section must be performed by giving the breaching
Party written Notice, specifying the circumstances of the breach, including the
provisions of this Agreement that are breached. The breaching Party, if such a
breach has indeed occurred, has thirty (30) calendar days to cure such breach
of this Agreement.


 


If the breach has not been cured at the end of the
thirty (30) calendar day period or if the breaching Party is not making
diligent, good faith efforts to cure such breach, then, upon immediate Notice
to the breaching Party, the breaching Party shall be in default and the
non-breaching Party may terminate this Agreement.  If the breaching Party is making diligent, good faith efforts to
cure such breach, the breaching Party shall be granted an additional thirty
(30) calendar day period to cure said breach. Unless the termination is on the
grounds of a material breach resulting directly from PPG’s fault in the
performance of its obligations under this Agreement, GWM shall purchase raw
material and intermediates at PPG’s actual cost and inventories of the Product
at the purchase price then in effect according to provisions of Appendix B
hereto as amended during the performance of this Agreement.  Otherwise, GWM shall have the right, but not
the obligation, to purchase such raw materials, intermediates and inventories
of the Product pursuant to Section 10 as GWM may determine in its sole
discretion.


 


In the event that either Party becomes bankrupt, the
other Party may, with immediate Notice to the first Party, terminate the
Agreement with no liabilities whatsoever, subject to relevant legislation and
provisions herein contained.


GWM
may terminate this Agreement in whole or in part at any time by giving thirty
(30) days written notice to PPG, if GWM, in its sole discretion, determines
that it will no longer develop or market Viread® in any of its markets, or if any Regulatory
Authority puts a clinical hold on Product or Viread® or withdraws approval of the manufacture or
marketing of Viread®.  GWM may terminate this Agreement if any
Regulatory Authority that regulates Product or Viread® takes any action the result of which is to
prohibit the manufacture, sale or use or any similar action of Viread® or any raw material contained therein or to
impose significant restriction on the manufacture, sale or use or any similar
action of Viread®.  Should GWM terminate this Agreement due to
the reasons contained in this Article, PPG shall take reasonable measures to
cease any ongoing production and limit further expenses associated with such
ongoing production.  GWM shall purchase raw material and
intermediates at PPG’s actual cost and inventories of the Product at the
purchase price then in effect according to provisions of Appendix B hereto as
amended during the performance of this Agreement, and will reimburse PPG for reasonable expenses incurred by PPG with
respect to the remainder of said GWM Purchase Order prior to the effective date
of the termination.


Except
as otherwise set forth in this Agreement, termination of this Agreement shall
not release any Party hereto from any payment, liability or other obligation
existing at the date of termination.


 


13. 
LIMITED WARRANTY: PPG warrants that Product delivered
hereunder will (i) be manufactured by PPG in accordance with cGMP and other
applicable FDA, EMEA, and other rules and regulations of the United States or
the European Union, (ii) be manufactured in accordance with the agreed-upon
manufacturing procedures described in the master batch records supplied to GWM
in accordance with the provisions of Section 7, as may 


 


Page 4

















 


be modified and disclosed to GWM in accordance with
the provisions of Section 7, (iii) conform to the  Specifications set forth in the 
Contract Manufacturing Manual at the time of Product manufacture, and
(iv) be provided in compliance with all applicable laws and regulations as more
fully set forth in Section 4 above. 
GWM’s remedies and PPG’s liability with respect to these warranties are
set forth below.  These are the only representations or
warranties PPG makes and all other express or implied warranties, under statute
or arising otherwise in law from a course of dealing or usage of trade,
including without limitation, any other warranty of fitness for a particular
purpose or use, are disclaimed by PPG. 
If any Product fails to conform to the warranties herein, PPG’s
exclusive obligation and GWM’s (or GWM’s affiliates’) exclusive remedy (subject
to SECTIONS 12 and 17) shall be as set forth in Section 14.  Except as provided in the immediately
preceding sentence, in no event will PPG be liable under any theory of recovery
(whether based on negligence of any kind, strict liability or tort) for any
direct, indirect, special, incidental, or consequential damages in any way
related to, arising from or resulting from any use made of the Product.  Nothing in this Section 13 is intended as a
limitation of indemnification obligations of PPG pursuant to Section 15, or the recall obligations of PPG under section
17. 


 


14.         REJECTION: 
GWM may reject Product delivered by PPG for failure to comply with the
warranties in Section 13 by giving PPG written notice, upon which the Parties
will cooperate to determine whether rejection was necessary or justified.  PPG will notify GWM promptly as to whether
it accepts GWM’s basis for any rejection. 
If the Parties disagree whether the Product batch did not comply with
the warranties, they will submit a sample of such Product batch and applicable
documentation to a mutually acceptable independent third party laboratory.  Such third party laboratory shall determine
whether such Product batch conforms with the warranties, and such determination
shall be final, binding and determinative as to whether rejection of such
Product batch was justified.  The Party
against whom the third party tester rules shall bear all costs of the third
party testing.  If GWM has given notice
of rejection, at GWM’s request PPG shall use best efforts to replace such
rejected Product.  If the third party
tester rules that a rejected batch meets the warranties, GWM will purchase such
batch, irrespective of whether PPG has already replaced it.  If PPG accepts GWM’s basis for rejection or
the third party tester rules that a rejected batch did not meet the warranties,
PPG will not charge GWM for such batch or for shipping, insurance or freight
costs therefor, or shall promptly refund any such amounts already paid by
GWM.  At its election, GWM may [*], until and unless it is finally
determined that the batch complied with the warranties in Section 13.


15.         INDEMNIFICATION BY PPG: PPG agrees to indemnify, hold harmless and defend GWM
and GWM’s directors, officers, employees and agents, and the directors,
officers, employees and agents of any GWM parent, subsidiary, or related
company (the “GWM Indemnitees”) from and against any and all losses,
liabilities, judgments, damages, costs, reasonable fees, and expenses,
including reasonable attorneys’ fees (collectively, “Losses”) resulting from
any third party claim, demand, action, suit or proceeding (collectively, “Third
Party Claim”) arising out of (i) PPG’s manufacture of Product which fails to
comply with PPG’s obligations under this Agreement, (ii) the transportation,
storage or use of the Product by PPG while the Product is in its control, or
(iii) any negligent or wrongful act or omission of PPG or any PPG Indemnitee
relating to this Agreement, including without limiting the generality of the
foregoing any Losses whatsoever with respect to Third Party Claims of death or
injury to person or damage to property, provided that GWM provides PPG with
prompt notice of any such Third Party Claim and the exclusive ability to defend
(with the reasonable cooperation of GWM) or settle any such Third Party Claim, except to the extent
that PPG has a right of indemnification or defense with respect to any such
Loss or Third Party Claim pursuant to Section 16.


 


16.         INDEMNIFICATION
BY GWM: GWM
agrees to indemnify, hold harmless, and defend PPG and PPG’s directors,
officers, employees and agents, and the directors, officers, employees and
agents of any PPG parent, subsidiary, or related company (the “PPG
Indemnitees”) from and against any and all Losses resulting from Third Party
Claims arising out of (i) the [*]
relating to the manufacture of the Product made available by GWM to PPG, (ii)
possession, use, transformation, or sale of the Product by any person other
than a PPG Indemnitee, or (iii) any negligent or wrongful act or omission of
GWM or any GWM Indemnitee relating to this Agreement, including without
limiting the generality of the foregoing any Losses whatsoever with respect to
Third Party Claims of death or injury to person or damage to property, provided
that PPG provides GWM with prompt notice of any such Third Party Claim and the
exclusive ability to defend (with the reasonable cooperation of PPG) or settle
any such Third Party Claim, except to the extent that GWM has a right of
indemnification or defense with respect to any such Loss or Third Party Claim
pursuant to Section 15.


 


Page 5

















 


17.         RECALLS
AND ADVERSE EVENTS:
If there is a recall or there are adverse events for Product that may be
related to the processing or manufacture of Product by PPG, PPG shall provide
at GWM’s cost any assistance reasonably requested by GWM in connection with
such recall or adverse events. If Product is recalled due to a breach of the
warranty in Section 13, PPG shall be responsible for reasonable out-of-pocket expenses incurred in connection with such
recall or seizure including loss of Viread®, notification, transportation, destruction expenses and replacement
costs[*].


 


18.         NO IMPLIED
LICENSES: No
right, express or implied, is granted by this Agreement to either Party to use
in any manner the name of the other or any other trade name or trademark or
other intellectual property rights of the other in connection with the
performance of the work covered by this Agreement.


 


19.         INDEPENDENT
CONTRACTORS: Each
Party hereto shall act as an independent contractor and nothing in this
Agreement shall be construed as to give either Party the authority to act for,
bind, or commit the other Party in any way whatsoever.


 


20.         FORCE
MAJEURE: Neither
Party shall be liable for failure to perform or for delay in performing any of
its obligations under this Agreement, if such failure or delay is caused by
lack of supply of materials through no fault of such Party, an act of God,
riot, fire, explosion, flood, hostilities of war, executive legislation or
administrative order, or other conditions reasonably beyond the control of such
Party, provided that the Party experiencing the delay promptly notifies the
other Party of the delay and uses and continues to use best efforts to overcome
such cause.  If such cause shall
continue for a period of three (3) months and is not overcome by the Party whose
performance is affected, the Party not subject to the force majeure may cancel
this Agreement without liability from the date of expiration of such period,
except as provided in Section 12. Specifically excluded from this provision is
any interference, caused by strike or lockout, of the ability of PPG to perform
any of its obligations.  PPG shall
inform GWM of such interference, its extent and duration, without delay.  Any interference, caused by strike or lockout,
of the ability of PPG to perform its obligations for more than thirty (30) days
shall constitute a shortfall, as per Sections 3(f) and 3(g) of this Agreement.


 


21.         NONASSIGNABILITY: Neither Party may assign or transfer
this Agreement or any rights or obligations hereunder without the prior written
consent of the other Party, except that: (a) GWM may make such an assignment or
transfer without the other Party’s consent if such assignment or transfer is to
a successor to substantially all of the business of GWM relating to the
Product, whether in a merger, sale of stock, sale of assets, or other similar
transaction, and (b) PPG may make such an assignment or transfer without prior
written consent, provided that in such event GWM shall have the option to
terminate this agreement at any time, with a minimum of 3 months written notice
prior to termination.  Such termination
shall leave GWM without liability beyond the value of raw materials and
intermediates in inventory, and work in progress, on the date of termination.  Any assignment or transfer or attempted
assignment or transfer by either Party in violation of the terms of this
Section 21 shall be null and void and of no legal effect.  In the case of any permitted assignment or
transfer of or under this Agreement, this Agreement shall be binding upon, and
inure to the benefit of, the successors, executors, heirs, representatives,
administrators, and assigns of the Parties hereto.


 


22.         GOVERNING
LAW: This
Agreement are made in accordance with and shall be governed by and construed,
interpreted, enforced, and applied under the laws of France, excluding its
choice of law rules and excluding the United Nations’ Convention on Contracts
for the Sale of Goods.  Should any part
of this Agreement be in conflict with any applicable law, all other provisions
of this order shall remain in force and the Parties hereto shall mutually and
in good faith modify the invalid or unenforceable provisions so as to maintain
essentially the spirit hereof and the original will of the Parties.


 


23.         SEVERABILITY: In the event any term of this Agreement
is held to be invalid or unenforceable under any statute, regulation,
ordinance, executive order or other rule of law, such term shall be deemed
modified or deleted, but only to the extent necessary to comply with such
statute, regulation, ordinance, order or rule, and the valid or enforceable
portion thereof and the remaining terms of this Agreement will remain in full
force and effect, unless the invalid or unenforceable provisions are of such
essential importance to this Agreement that it is reasonably assumed that the
Parties would not have entered into this Agreement without the invalid terms.


 


24.         WAREHOUSING: After ownership of the Product has
transferred to GWM and upon agreement by both Parties, PPG agrees to hold
supplies of the Product at PPG’s facility [*],
until further shipping instructions are available from GWM.  Storage of the Product shall be in
accordance with cGMP and other applicable FDA, EMEA, and other rules and
regulations of the United States, and the European Union.  [*]
shall bear the cost of 


 


Page 6

















 


any insurance against loss of the Product while it is
maintained at PPG’s facility. GWM will make all appropriate efforts to move the
Product from PPG’s facility in a reasonable period of time.


 


25.         NOTIFICATION
POLICY: The terms
and conditions of the [*] shall
apply the processing and manufacture of Product under this Agreement, with GWM
to be substituted for [*] for such
purposes.


 


26.         NOTICES: All notices under this Agreement shall
be in writing and shall be delivered personally, sent for next day delivery by
internationally recognized courier service or transmitted by facsimile
(transmission confirmed), with confirmation by next day delivery by an
internationally recognized courier service, to the following addresses and
facsimiles of the respective Parties or such other address or facsimile as is
notified pursuant to this Section 26:


 


 


	
  If to GWM:

  	
   

  	
  With a copy to: 
  

  
	
   

  	
   

  	
   

  
	
  Gilead World Markets, Ltd.

  Queensgate House 

  South Church Street 

  PO Box 1234GT 

  Grand Cayman 

  Attention: 
  Gregg H. Alton, Director 

  Facsimile:  [*]

  	
   

  	
  Gilead Sciences, Inc. 

  333 Lakeside Drive 

  Foster City, CA 
  94404 

  USA 

  Attention: 
  Associate Director, Chemical Manufacturing

  Facsimile:  [*]

  
	
   

  	
   

  	
   

  
	
  If to PPG:  

  	
   

  	
  With a copy to: 
  

  
	
   

  	
   

  	
   

  
	
  PPG-Sipsy 

  Z.I. la Croix Cadeau 

  B.P. 79 

  49242 Avrille Cedex, France 

  Attention: 
  European Operations Manager 

  Fax:  [*]

  	
   

  	
  PPG Industries, Inc. 

  One PPG Place, 36 E 

  Pittsburgh, PA 
  15272 USA 

  Attention: 
  General Manager, Fine Chemicals 

  Fax:  [*]

  



 


27.         CONFIDENTIALITY: “Confidential Information” means all
proprietary or confidential information, data, know-how, results, trade
secrets, techniques, inventions, ideas, process, formulas, drawings, or
diagrams disclosed by one Party to the other Party in the course of negotiating
or performing under this Agreement, whether or not marked or identified as
confidential or proprietary, and GWM’s Confidential Information shall include
all “Confidential Information” of Gilead Sciences, Inc. as defined in and
disclosed to PPG’s predecessor in interest pursuant to the Confidential
Disclosure Agreement made and effective as of January 1, 1998 by and between
Gilead Sciences, Inc. and PPG-Sipsy (as successor in interest to Sipsy Chimie
Fine S.C.A.), except for any such information that (i) is now, or hereafter
becomes, through no act or failure to act on the part of the receiving Party,
its employees or contractors in breach hereof, generally known or available;
(ii) is known by the receiving Party at the time of receiving such information,
as evidenced by its contemporaneous written records; (iii) is hereafter
furnished to the receiving Party by a Third Party, as a matter of right and
without restriction on disclosure; or (iv) is independently developed by the
receiving Party without reference to such Confidential Information, as shown by
independent, contemporaneous, written records. 
During the term of this Agreement, [*],
each Party will maintain all Confidential Information of the other Party
received by it under this Agreement in confidence and, without prior written
permission of the other Party, shall not disclose any such Confidential
Information of the other Party to any third party or use any such Confidential
Information for any purposes or to an extent other than as necessary or
permitted for performance under this Agreement. The Parties shall disclose
Confidential Information of the other Party only to its employees, agents,
consultants, affiliates, or sublicensees who need such information for
performance under this Agreement and who are subject to binding obligations to
hold in confidence and not make use of such Confidential Information of the
other Party for any purpose other than those permitted by this Agreement, that
are at least as restrictive as those of this Section 27.  Each Party will protect the confidentiality
of the other Party’s Confidential Information using the same standard of care
as it uses to protect its own confidential information of a similar nature, but
no less than reasonable care.  Each Party


 


Page 7

















 


will notify the other Party promptly upon discovery of
any unauthorized use or disclosure of the Confidential Information of the other
Party.


 


                        Notwithstanding any other provision of
this Agreement, each Party (or its affiliate, if applicable) may disclose
Confidential Information if such disclosure: (i) is in response to a valid
order of a court or other governmental body of the United States or a foreign
country, or any political subdivision thereof; provided, however, that the
receiving Party shall first have given notice to the other Party hereto and
shall have made a reasonable effort to obtain a protective order requiring that
the Confidential Information so disclosed be used only for the purposes for
which the order was issued; (ii) is otherwise required by governmental law,
rule or regulation, including without limitation rules or regulations of the
U.S. Securities and Exchange Commission, or by rules of the National
Association of Securities Dealers; provided, however, that the receiving Party
shall first have given notice to the other Party hereto in order to allow such
Party the opportunity to seek confidential treatment of the Confidential
Information; or (iii) is otherwise necessary to prosecute or defend litigation,
comply with applicable governmental regulations, make governmental patent or
regulatory filings, or otherwise enforce obligations under this Agreement, but
only to the extent that any such disclosure is necessary for such enforcement.


 


                        If this Agreement terminates or expires,
each Party will, at the other Party’s election, promptly return or destroy all
Confidential Information received by it from the other Party and shall certify
in writing to such other Party the completion thereof.


 


28.         ENTIRE
AGREEMENT; AMENDMENTS: This Agreement together with the attachments, exhibits, or supplements
specifically referenced in this Agreement constitutes the entire, final,
complete, and exclusive agreement between the Parties and supersedes all
previous agreements or representations, written or oral, with respect to the
subject matter of this Agreement. This Agreement may not be modified, amended,
waived, discharged, or terminated orally, but only by an instrument in writing
signed by a duly authorized representative of each Party. SUBJECT TO SUCH
AMENDMENT, THE TERMS AND CONDITIONS SET FORTH HEREIN CONSTITUTE THE FINAL
COMPLETE, EXCLUSIVE, AND ENTIRE AGREEMENT BETWEEN GWM AND PPG WITH RESPECT TO
THE SUBJECT MATTER HEREOF.  ANY TERM OR
CONDITION IN ANY AGREEMENT, CONFIRMATION, OR OTHER DOCUMENT FURNISHED BY GWM OR
PPG WHICH IS IN ANY WAY INCONSISTENT WITH THE TERMS SET FORTH HEREIN IS HEREBY
EXPRESSLY REJECTED.


 


29.         INSURANCE:
Each party shall maintain at is own cost insurance policies with respect
to its activities and obligations under this Agreement that are commercially
reasonable as to terms, coverage and coverage limits in view of the scope of
such party’s activities and obligations under this Agreement.  At the other party’s request, each party
will supply certificates of insurance evidencing such coverages.


 


30.         SURVIVAL: The provisions of Sections 8, 12 (with
respect to the last sentence only), 13, 14, 15, 16, 17, 18, 19, 22, 23, 26, 27,
28, 29 and 30 shall survive the termination or expiration of this Agreement.


 


Page 8

















 


 


	
  GILEAD WORLD MARKETS, LTD.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mark L. Perry

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Mark L. Perry

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  January 2, 2003

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and Acknowledged by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PPG-SIPSY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Rene DeVaumas

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Rene DeVaumas

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  December 18, 2002

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President, PPG-Sipsy

  	
   

  	
   

  



 


 


 


 


 


 


 


Certain
confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.


 


 


 


 


 


Page 9

















 


 


Certain
confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.


 


Exhibit
A


Tenofovir DF Purchase Quantities


 


 


	
   

  	
  Calendar
  Year

  	
   

  	
  Minimum GWM Purchase

  	
   

  
	
   

  	
  2003

  	
   

  	
  [*]

  	
   

  
	
   

  	
  2004

  	
   

  	
  [*]

  	
   

  
	
   

  	
  2005 and beyond

  	
   

  	
  [*]

  	
   

  



 


 


 


 


 


Page
10

















 


Certain confidential information
contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.


 


Exhibit B:


Tenofovir DF Base Prices


 


 


	
   

  	
  Annual
  volume, Metric Tons

  	
   

  	
  Base
  Price (Euros per kg)

  	
   

  
	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  



 


Using the above
table “Invoice” price is set on [*]
of each calendar year for the subsequent calendar year using the [*] plus the forecast given by GWM for the
second [*] in accordance with
Section 3(c). Adjustment will be made [*]
based on [*] such year, with a
corresponding [*] of that calendar
year based on the [*].


 


[*]


 


 


 


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