AT LEAST SEMIANNUALLY, A REPORT (ORAL AND WRITTEN,
WHICH WRITTEN REPORT SHALL NOT BE REQUIRED TO CONTAIN MORE DETAIL THAN THAT
TYPICALLY INCLUDED IN AN EXECUTIVE SUMMARY) DESCRIBING (I) THE DEVELOPMENT
ACTIVITIES IT HAS PERFORMED, OR CAUSED TO BE PERFORMED, SINCE THE PRECEDING
MEETING AT WHICH SUCH A REPORT WAS
37
PRESENTED (OR, IN THE CASE OF THE FIRST MEETING OF THE JDC, PRIOR TO SUCH
MEETING) AND ON A CALENDAR YEAR-TO DATE BASIS, EVALUATING THE WORK PERFORMED IN
RELATION TO THE GOALS AND TIMELINE OF THE DEVELOPMENT PLAN, (II) ITS DEVELOPMENT
ACTIVITIES IN PROCESS AND THE FUTURE ACTIVITIES IT EXPECTS TO INITIATE DURING
THE THEN-CURRENT CALENDAR YEAR, AS COMPARED TO THE DEVELOPMENT PLAN, AND (III)
IN THE CASE OF THE WRITTEN REPORT THE AUTHORIZED DEVELOPMENT EXPENSES INCURRED,
AND EXPECTED TO BE INCURRED, BY SUCH MEMBER PARTY FOR THE THEN-CURRENT CALENDAR
YEAR, AS COMPARED TO THE DEVELOPMENT BUDGET.
IN ADDITION, GILEAD AND BMS SHALL
REPORT PROMPTLY TO THE JDC THROUGH THEIR RESPECTIVE COMMITTEE MEMBERS ANY
MATERIAL DEVELOPMENTS WITH RESPECT TO DEVELOPMENT ACTIVITIES THAT THEY ARE
RESPONSIBLE FOR PERFORMING UNDER THE DEVELOPMENT PLAN.
NOTWITHSTANDING ANYTHING
CONTAINED IN THIS SECTION 3.9 TO THE CONTRARY, EACH MEMBER PARTY'S REPORTING
OBLIGATIONS UNDER THIS SECTION 3.9 SHALL AUTOMATICALLY BE DEEMED TO TERMINATE
WITH RESPECT TO ANY PERIOD IN WHICH THERE IS NOT THEN IN EFFECT A DEVELOPMENT
PLAN AND DEVELOPMENT BUDGET.
3.10
NEW PRODUCTS.
DURING THE PERIOD FROM THE DATE OF
THIS AGREEMENT THROUGH THE [*] ANNIVERSARY OF THE EFFECTIVE DATE, THE MEMBER
PARTIES AGREE TO USE COMMERCIALLY REASONABLE EFFORTS TO EVALUATE AND PURSUE AN
ARRANGEMENT WITH EACH OTHER FOR THE CO-DEVELOPMENT AND CO-COMMERCIALIZATION OF
[*] PRODUCT COMPRISING [*]; PROVIDED, HOWEVER, THAT THE MEMBER PARTIES MAY
TERMINATE SUCH EFFORTS BY MUTUAL WRITTEN AGREEMENT IF THEY DETERMINE THAT THE
PROPOSED PRODUCT IS NOT COMMERCIALLY OR TECHNICALLY FEASIBLE, WITH SUCH
AGREEMENT TO TERMINATE NOT TO BE UNREASONABLY WITHHELD.
IN FURTHERANCE OF THE
FOREGOING, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, DURING
THE PERIOD FROM THE EFFECTIVE DATE THROUGH THE [*] ANNIVERSARY OF THE EFFECTIVE
DATE (A) GILEAD SHALL NOT (AND SHALL CAUSE ITS AFFILIATES NOT TO) [*] AN [*]
WITH ANY [*] FOR [*] WITHIN THE TERRITORY OF ANY [*] THAT CONTAINS [*] WITH [*]
THAT IS (I) [*] TO THAT THIRD PARTY AND (II) [*] IN THE TERRITORY AS OF [*], AND
(B) BMS SHALL NOT (AND SHALL CAUSE ITS AFFILIATES NOT TO) [*] AN [*] WITH ANY
[*] FOR [*] WITHIN THE TERRITORY OF ANY [*] THAT CONTAINS [*] IN COMBINATION
WITH [*] THAT ARE (I) PROPRIETARY TO THAT THIRD PARTY AND (II) [*] IN THE
TERRITORY AS OF [*].
3.11
PUBLICATION.
(A)
EITHER MEMBER PARTY SHALL HAVE THE RIGHT TO
PUBLISH OR PRESENT DATA AND FINDINGS RESULTING FROM PROJECT ACTIVITIES,
INCLUDING, WITHOUT LIMITATION, CO-FUNDED CLINICAL TRIALS, SUBJECT TO THE RIGHT
OF OBJECTION OR DEMAND FOR MODIFICATION BY THE OTHER MEMBER PARTY IN THE
INTEREST OF (I) PROTECTING THE CONFIDENTIAL INFORMATION OF SUCH OTHER MEMBER
PARTY, (II) PRESERVING THE INTELLECTUAL PROPERTY RIGHTS OF