WHEREUPON
SUCH FINAL AGREED CALCULATIONS SHALL BE BINDING ON THE PARTIES.
THE REQUESTING
MEMBER SHALL BEAR THE FEES AND COSTS OF THE INDEPENDENT ACCOUNTING EXPERT IN
CONNECTION WITH
ITS CONFIRMATION OF THE ACCURACY OF SUCH DETERMINATION AND/OR
INFORMATION, UNLESS THE INDEPENDENT ACCOUNTING EXPERT FINDS A DISCREPANCY EQUAL
TO OR GREATER THAN [*] THEREIN, IN WHICH CASE THE JV (IN THE CASE OF A
DISCREPANCY IN A [*]) OR THE OTHER MEMBER PARTY (IN THE CASE OF A DISCREPANCY IN
[*]), SHALL BEAR SUCH FEES AND COSTS.
NOTHING IN THIS SECTION 5.3(G) SHALL BE
DEEMED TO LIMIT ANY REMEDY AVAILABLE TO EITHER MEMBER PARTY IN THE EVENT OF A
BREACH OF ANY OF THE PROVISIONS OF THIS SECTION 5.3 OR THE [*] BY THE OTHER
MEMBER PARTY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SUCH
BREACH SHALL NOT BE SUBJECT TO THE CURE PROVISIONS SET FORTH IN SECTION 14.4.
(H)
ALL INFORMATION PROVIDED TO THE PRICING
COMMITTEE ("PRICING INFORMATION") SHALL BE CONSIDERED CONFIDENTIAL INFORMATION
OF THE DISCLOSING MEMBER PARTY AND SHALL BE USED SOLELY FOR THE PURPOSE OF [*]
AND FOR NO OTHER PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE EXCEPTIONS TO
CONFIDENTIALITY SET FORTH IN SECTION 12.2 (OTHER THAN IN SECTIONS 12.2(A) AND
(B)) SHALL NOT APPLY TO PRICING INFORMATION.
EXCEPT AS EXPRESSLY PERMITTED BY
THE [*], PRICING INFORMATION SHALL NOT BE DISCLOSED BY THE PRICING COMMITTEE
REPRESENTATIVES EXCEPT TO COUNSEL, THE INDEPENDENT ACCOUNTING EXPERT, OR ANY
THIRD PARTY AUDITOR SELECTED PURSUANT TO SECTION 5.3(G).
ALL PRICING
INFORMATION SHALL BE [*] MAINTAINED BY THE PRICING COMMITTEE, WHICH [*] SHALL
NOT BE ACCESSIBLE BY PERSONS OTHER THAN THE MEMBERS OF THE PRICING COMMITTEE.
WITHOUT LIMITING THE FOREGOING, EACH OF BMS AND GILEAD SHALL:
46
(I)
CAUSE ITS REPRESENTATIVES ON THE PRICING
COMMITTEE NOT TO DISCLOSE TO ANY OTHER PERSON [*]; AND
(II)
NOT REFERENCE OR USE, DIRECTLY OR
INDIRECTLY, ANY INFORMATION FROM THE PRICING COMMITTEE [*].
(I)
PRIOR TO THE LAUNCH OF THE COMBINATION
PRODUCT AND THEREAFTER ANNUALLY, THE JEC SHALL REVIEW THE [*] (AS MOST RECENTLY
MODIFIED PURSUANT TO THIS SECTION 5.3(I), IF APPLICABLE) IN LIGHT OF THE
THEN-PREVAILING MARKET CONDITIONS AND JV MARKETING AND SALES STRATEGIES.
IF
APPROPRIATE, THE JEC SHALL RECOMMEND TO THE MEMBER PARTIES CHANGES TO THE [*].
THE JEC'S ACTION OR INACTION UNDER THIS SECTION 5.3(I) SHALL NOT BE SUBJECT TO
ARBITRATION.
IF (AND ONLY IF) GILEAD AND BMS MUTUALLY AGREE ON ANY SUCH CHANGES
PROPOSED BY THE JEC, THEN THE [*] AS SO CHANGED SHALL BE DEEMED TO BE THE "[*]"
HEREUNDER.
(J)
GILEAD AND BMS SHALL EACH RETAIN SOLE
DISCRETION WITH RESPECT TO PRICE-SETTING AND DISCOUNTS FOR ITS RESPECTIVE SINGLE
AGENT PRODUCTS AND DOUBLE AGENT PRODUCT, IF ANY.
NOTWITHSTANDING THE FOREGOING,
EACH MEMBER PARTY COVENANTS THAT IT SHALL [*] AND SHALL NOT DIRECTLY OR
INDIRECTLY [*] OF [*] SOLELY OR PRIMARILY FOR THE PURPOSE OF [*].
5.4
NATIONAL ACCOUNTS.
GILEAD SHALL HAVE SOLE
RESPONSIBILITY TO ACT AS AGENT FOR CONDUCTING ALL PRICING ACTIVITIES ON BEHALF
OF THE JV RELATING TO GOVERNMENTAL ORGANIZATIONS,