LAW, IN THE OPINION OF LEGAL COUNSEL TO THE
RECEIVING PARTY AS EXPRESSED IN AN OPINION LETTER IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE DISCLOSING PARTY, WHICH SHALL BE PROVIDED TO THE
DISCLOSING PARTY AT LEAST TWO (2) BUSINESS DAYS PRIOR TO THE RECEIVING PARTY'S
DISCLOSURE OF THE CONFIDENTIAL INFORMATION PURSUANT TO THIS SECTION 12.2(B);
(C)
MADE AS REQUIRED BY THE APPLICABLE LAWS AND REGULATIONS
(INCLUDING, WITHOUT LIMITATION, REGULATION FD) RELATING TO SECURITIES OR RULES
OF THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, THE NEW YORK STOCK EXCHANGE,
OR ANY OTHER APPLICABLE ASSOCIATION GOVERNING THE STOCK EXCHANGE ON WHICH A
MEMBER PARTY'S STOCK IS LISTED, INCLUDING WITHOUT LIMITATION FILING OF REPORTS
ON FORMS 10-K, 10-Q AND 8-K WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION, IN
WHICH CASE (I) THE PROCEDURES SET FORTH IN SECTION 12.2(D) SHALL APPLY IF
SECTION 12.2(D) IS ALSO APPLICABLE TO SUCH FILING AND (II) THE PROCEDURES SET
FORTH IN THE PROVISO TO SECTION 12.5(B) SHALL APPLY;
74
(D)
MADE IN THE FORM OF A FILING OF A COPY OF THIS AGREEMENT BY GILEAD
OR BMS (AS THE CASE MAY BE) WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION TO
COMPLY WITH APPLICABLE LAW, PROVIDED THAT SUCH MEMBER PARTY (I) REQUESTS
CONFIDENTIAL TREATMENT OF AT LEAST THE COMMERCIAL TERMS AND MATERIAL TERMS
HEREOF TO THE EXTENT SUCH CONFIDENTIAL TREATMENT IS REASONABLY AVAILABLE TO SUCH
MEMBER PARTY, AND (II) SOLICITS THE OTHER MEMBER PARTY'S COMMENTS ON SUCH
REQUEST FOR CONFIDENTIAL TREATMENT, IN WHICH CASE THE FILING MEMBER PARTY SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO TAKE INTO ACCOUNT THE OTHER MEMBER
PARTY'S REASONABLE COMMENTS ON SUCH REQUEST;
(E)
SUBJECT TO SECTION 3.4, MADE BY THE RECEIVING PARTY TO THE
REGULATORY AUTHORITIES AS REQUIRED IN CONNECTION WITH ANY FILING, APPLICATION OR
REQUEST FOR ANY REGULATORY APPROVALS OR OTHERWISE TO COMPLY WITH THE
REQUIREMENTS OF APPLICABLE LAW; PROVIDED, HOWEVER, THAT REASONABLE MEASURES
SHALL BE TAKEN TO ASSURE CONFIDENTIAL TREATMENT OF SUCH INFORMATION;
(F)
MADE BY THE RECEIVING PARTY AS NECESSARY TO FILE OR PROSECUTE
PATENT APPLICATIONS, PROSECUTE OR DEFEND LITIGATION OR OTHERWISE ESTABLISH
RIGHTS OR ENFORCE OBLIGATIONS UNDER THIS AGREEMENT;
(G)
MADE BY THE RECEIVING PARTY TO ITS EMPLOYEES, AFFILIATES,
INDEPENDENT CONTRACTORS, LEGAL COUNSEL, CONSULTANTS, AUDITORS AND ADVISORS WHO
ARE BOUND BY CONFIDENTIALITY AND NON-USE OBLIGATIONS NO LESS PROTECTIVE THAN
THOSE IN THIS SECTION 12 AND WHO REASONABLY REQUIRE SUCH CONFIDENTIAL
INFORMATION FOR THE PERFORMANCE OF SUCH MEMBER PARTY'S OBLIGATIONS OR
ENFORCEMENT OF SUCH MEMBER PARTY'S RIGHTS UNDER THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, THE MATTERS DESCRIBED IN SECTIONS 12.2(A) THROUGH (J));
PROVIDED, HOWEVER, THAT THE RECEIVING PARTY SHALL REMAIN RESPONSIBLE FOR ANY
FAILURE BY ANY SUCH PERSON TO TREAT SUCH CONFIDENTIAL INFORMATION AS REQUIRED BY
THIS SECTION 12;
(H)
MADE BY THE RECEIVING PARTY TO ITS LICENSORS OF ITS RESPECTIVE
TECHNOLOGY PURSUANT TO CONTRACTUAL OBLIGATIONS TO SUCH LICENSORS EXISTING AS OF
THE EFFECTIVE DATE AND UNDER OBLIGATIONS OF CONFIDENTIALITY AND NON-USE NO LESS
PROTECTIVE THAN THOSE IN THIS SECTION 12; PROVIDED, HOWEVER, THAT THE RECEIVING
PARTY SHALL REMAIN RESPONSIBLE FOR ANY