JCC SHALL DETERMINE HOW
THE JV SHALL RESPOND TO REQUESTS FROM INDIVIDUAL PATIENTS WHO HAVE OR MAY OBTAIN
PRESCRIPTIONS FOR THE COMBINATION PRODUCT BUT MAY BE UNABLE TO AFFORD IT, AND
FROM HEALTH CARE PROVIDERS ON BEHALF OF SUCH PATIENTS, INCLUDING, WITHOUT
LIMITATION, ESTABLISHING APPROPRIATE PROCEDURES AND RESPONSE TIMES THAT SHALL
APPLY IN RESPONDING TO SUCH REQUESTS; PROVIDED, HOWEVER, THAT THE JCC SHALL
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STRUCTURE THE APPLICABLE PROGRAM IN A MANNER THAT WILL MAKE EVIDENT TO SUCH
HEALTH CARE PROVIDERS AND PATIENTS THE PARTICIPATION OF THE JV (AND, AS
APPROPRIATE, EACH OF ITS MEMBER PARTIES) IN SUCH PROGRAM AND SHALL ENSURE THAT
THE PROCEDURES AND RESPONSE TIMES ARE NO LESS FAVORABLE TO PATIENTS THAN THE
MOST FAVORABLE OF EITHER MEMBER PARTY'S PATIENT ASSISTANCE PROGRAMS FOR ITS
SINGLE AGENT PRODUCT(S) AND/OR DOUBLE AGENT PRODUCT AS OF THE EFFECTIVE DATE.
THE JCC SHALL REVIEW THE ARRANGEMENTS FOR THE PATIENT ASSISTANCE PROGRAM
ANNUALLY AND AGREE UPON APPROPRIATE CHANGES.
EACH MEMBER PARTY MAY PROPOSE
INTERIM CHANGES WITH RESPECT THERETO FROM TIME TO TIME BETWEEN SUCH REVIEWS,
WHICH CHANGES THE JCC SHALL ADOPT IF FAILURE TO DO SO WOULD BE LIKELY TO HAVE A
MATERIAL ADVERSE EFFECT ON THE COMBINATION PRODUCT BUSINESS.
(B)
WITHOUT LIMITATION OF THE FOREGOING, GILEAD
SHALL PERFORM ALL THE FUNCTIONS OF A DISTRIBUTOR WITH RESPECT TO SALES OF THE
COMBINATION PRODUCT ON BEHALF OF THE JV, INCLUDING, WITHOUT LIMITATION,
INVENTORY MANAGEMENT AND CONTROL, WAREHOUSING AND DISTRIBUTION, INVOICING,
COLLECTION OF SALES PROCEEDS, PREPARATION OF SALES RECORDS AND REPORTS, CUSTOMER
RELATIONS AND SERVICES, AND HANDLING OF RETURNS, IN ACCORDANCE WITH CUSTOMARY
PRACTICE IN THE BIOPHARMACEUTICAL INDUSTRY, PURSUANT TO A SEPARATE SERVICES
AGREEMENT TO BE ENTERED INTO BY THE PARTIES WITHIN [*] OF THE EFFECTIVE DATE
SUBSTANTIALLY ON THE TERMS OUTLINED IN ANNEX P.
(C)
GILEAD'S RELATIONSHIPS WITH WHOLESALE
DISTRIBUTORS FOR THE COMBINATION PRODUCT SHALL BE GOVERNED BY INVENTORY
MANAGEMENT AGREEMENTS TO REDUCE INVENTORY FLUCTUATIONS TO THE EXTENT
COMMERCIALLY FEASIBLE, AND IF SUCH AGREEMENTS DO NOT ALSO COVER GILEAD'S OTHER
PRODUCTS IN THE FIELD, THEY SHALL BE COMMERCIALLY REASONABLE AND [*].
FOR ANY
[*] IN RESPECT OF [*] RELATING THERETO, GILEAD SHALL ENSURE EITHER THAT (I) SUCH
[*] ARE [*] FOR [*] ON A [*] AS FOR [*], OR (II) IF SUCH [*] ARE NOT [*] ON A
[*] BASIS, SUCH [*] ARE [*] AMONG [*]. GILEAD SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO KEEP INVENTORY LEVELS OF THE COMBINATION PRODUCT AT WHOLESALE
DISTRIBUTORS AT [*], SUBJECT TO FLUCTUATIONS EXPECTED DURING THE LAUNCH PERIOD
FOR THE COMBINATION PRODUCT.
5.3
PRICING OF COMBINATION PRODUCT.
(A)
GILEAD SHALL HAVE SOLE RESPONSIBILITY TO
ACT AS AGENT FOR SELLING THE COMBINATION PRODUCT ON BEHALF OF THE JV AT PRICES
THAT [*] WITH THE [*] (AS DEFINED BELOW) MADE PURSUANT TO THE PROVISIONS OF THIS
SECTION 5.3 AND THE [*] SET FORTH ON ANNEX Q (THE "[*]").
(B)
GILEAD AND BMS SHALL EACH APPOINT TWO (2)
MEMBERS OF A PRICING COMMITTEE FOR THE JV (THE "PRICING COMMITTEE").
ONE (1)
REPRESENTATIVE FROM EACH MEMBER PARTY (THE "[*] REPRESENTATIVE") SHALL BE