DEEMED TO WAIVE SUCH NOTICE (BUT
NOT, IF APPLICABLE, HIS OR HER RIGHT TO OBJECT TO THE INCLUSION OF A PARTICULAR
AGENDA ITEM OR ITEMS AS SET FORTH IN THE PROVISO TO THE PREVIOUS SENTENCE) IF HE
OR SHE ATTENDS THE MEETING AND DOES NOT OBJECT TO THE MEETING BECAUSE OF A LACK
OF NOTICE PRIOR TO ITS COMMENCEMENT.
(E)
AT LEAST TWO (2) MEMBERS APPOINTED BY
GILEAD SUB AND TWO (2) MEMBERS APPOINTED BY BMS SUB MUST BE IN ATTENDANCE AT A
MEETING OF AN OPERATING COMMITTEE TO ESTABLISH A QUORUM FOR THE CONDUCT OF
BUSINESS.
COMMITTEE MEMBERS MAY ATTEND MEETINGS IN PERSON OR, AS LONG AS EACH
ATTENDEE IS ABLE TO HEAR THE OTHERS, BY TELEPHONE OR BY VIDEO CONFERENCE
EQUIPMENT; PROVIDED, HOWEVER, THAT AT LEAST TWO (2) MEETINGS PER CALENDAR YEAR
OF EACH OPERATING COMMITTEE SHALL BE HELD IN PERSON UNTIL THE LAUNCH OF THE
COMBINATION PRODUCT, AND THEREAFTER AT LEAST ONE (1) MEETING PER CALENDAR YEAR
OF EACH OPERATING COMMITTEE SHALL BE HELD IN PERSON.
EACH OPERATING COMMITTEE
MAY ALSO ACT BY UNANIMOUS WRITTEN CONSENT OF ITS MEMBERS WITHOUT A MEETING.
(F)
AT EACH MEETING OF AN OPERATING
COMMITTEE, EACH MEMBER'S DESIGNEES ON SUCH OPERATING COMMITTEE SHALL,
COLLECTIVELY, HAVE ONE (1) VOTE ON ALL MATTERS TO BE ACTED UPON (THE "MEMBER
VOTE").
EACH OPERATING COMMITTEE SHALL TAKE ACTION BY UNANIMOUS MEMBER VOTE.
IF AN OPERATING COMMITTEE IS UNABLE TO REACH AGREEMENT ON A MATTER PROPERLY
PRESENTED TO SUCH OPERATING COMMITTEE FOR ITS CONSIDERATION, THE MATTER SHALL BE
RESOLVED BY THE PROCEDURE SET FORTH IN SECTION 2.8 (EXCEPT AS OTHERWISE PROVIDED
THEREIN).
(G)
EACH OPERATING COMMITTEE MAY, AS IT DEEMS
APPROPRIATE, DELEGATE ITS DECISION-MAKING AUTHORITY FOR SPECIFIC MATTERS OR
TYPES OF MATTERS (OTHER THAN, AS APPLICABLE IN THE CASE OF THE JDC AND JCC,
APPROVAL OF UPDATES OF THE DEVELOPMENT PLAN, COMMERCIALIZATION PLAN, DEVELOPMENT
BUDGET OR COMMERCIALIZATION BUDGET FOR WHICH THAT OPERATING COMMITTEE IS
RESPONSIBLE, OR AS PROVIDED IN SECTION 3.4) TO SUBCOMMITTEES OR SPECIFIC GROUPS,
EACH WITH REPRESENTATIVES FROM BOTH MEMBERS, WHICH SHALL MAKE SUCH DECISIONS BY
CONSENSUS.
IF SUCH SUBCOMMITTEES OR GROUPS DO NOT REACH CONSENSUS ON A MATTER,
EITHER MEMBER MAY REFER SUCH MATTERS BACK TO SUCH OPERATING COMMITTEE FOR
RESOLUTION.
(H)
NOTWITHSTANDING THE ENUMERATED AUTHORITY OF
THE JEC IN THIS AGREEMENT AND THE OPERATING AGREEMENT AND THE EXPRESS
RESERVATION TO THE DECISION-MAKING AUTHORITY OF THE MEMBER PARTIES OF CERTAIN
MATTERS HEREIN AND THEREIN:
IN THE EVENT THAT THE JEC, ACTING (I) BY UNANIMOUS
AFFIRMATIVE MEMBER VOTES (AS DEFINED IN THE OPERATING AGREEMENT) PURSUANT TO
SECTION 6.5(D) OF THE OPERATING AGREEMENT, OR (II) BY UNANIMOUS WRITTEN CONSENT
PURSUANT TO SECTION 6.5(C) OF THE OPERATING AGREEMENT, TAKES ACTION ON A MATTER
RELATING TO THE EXPLOITATION OF THE COMBINATION PRODUCT, BUT WITH RESPECT TO
WHICH MATTER AUTHORITY AND
27
RESPONSIBILITY HAVE NOT BEEN DELEGATED TO OR VESTED IN THE JEC, THE MEMBER
PARTIES SHALL BE DEEMED TO WAIVE ANY OBJECTION TO THE EFFECT THAT THE JEC ACTED
BEYOND THE SCOPE OF ITS AUTHORITY OR RESPONSIBILITY,