A [*] IN [*].
6.11
EFV LICENSE AGREEMENT.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT
TO THE CONTRARY, GILEAD AGREES TO EXERCISE THE RIGHTS GRANTED TO IT IN SECTIONS
6.2(D), 6.4(D) AND 6.9(A) IN THE TERRITORIES OUTSIDE THE EFV LICENSE AGREEMENT
TERRITORY, ONLY AFTER REACHING AN AGREEMENT WITH THE EFV LICENSOR IF AND AS
NECESSARY FOR GILEAD TO AVOID INFRINGING OR MISAPPROPRIATING THE INTELLECTUAL
PROPERTY RIGHTS OF THE EFV LICENSOR IN SUCH TERRITORIES.
IF REQUESTED BY
GILEAD, BMS SHALL COOPERATE WITH GILEAD IN ITS EFFORTS TO REACH SUCH AN
AGREEMENT.
6.12
JV OBLIGATIONS AS SUBLICENSEE.
THE JV SHALL COMPLY WITH ALL
PROVISIONS APPLICABLE TO SUBLICENSEES SET FORTH IN THE EFV LICENSE AGREEMENT (IN
THE FORM PROVIDED BY BMS TO GILEAD PURSUANT TO SECTION 13.2(C)) AND IN THE
LICENSE AGREEMENTS DELIVERED BY GILEAD TO BMS PURSUANT TO THE THIRD SENTENCE OF
SECTION 13.3(C) (IN THE FORM SO DELIVERED), RESPECTIVELY, INCLUDING WITHOUT
LIMITATION ANY SUCH PROVISIONS WITH RESPECT TO REPORTING OF INFORMATION, RECORD
KEEPING AND ACCESS TO RECORDS FOR AUDIT BY THE UPSTREAM LICENSOR (BUT EXCLUDING
ANY PAYMENT OBLIGATIONS OR OTHER MATTERS FOR WHICH A MEMBER PARTY IS RESPONSIBLE
UNDER SECTION 7.2).
SUCH OBLIGATIONS AS OF THE EFFECTIVE DATE ARE MORE
SPECIFICALLY IDENTIFIED IN ANNEX O.
WITH RESPECT TO [*] WITH [*] REFERRED TO IN
ANNEX O (THE [*]), [*] SHALL USE COMMERCIALLY REASONABLE EFFORTS TO [*] AFTER
THE EFFECTIVE DATE, THE [*] TO [*] GRANT OF A SUBLICENSE TO THE JV UNDER THIS
AGREEMENT AS REQUIRED BY [*] (WHICH [*] SHALL BE IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO [*]).
60
SECTION 7.
PAYMENTS AND THIRD PARTY ROYALTIES
7.1
PAYMENTS TO MEMBER PARTIES.
(A)
IN CONSIDERATION OF THE SUPPLY BY GILEAD AND BMS TO THE JV OF
QUANTITIES OF THEIR RESPECTIVE ACTIVE PHARMACEUTICAL INGREDIENTS FOR MANUFACTURE
OF NON-CLINICAL SUPPLY OF THE COMBINATION PRODUCT PURSUANT TO SECTION 4.2(C) AND
THEIR RESPECTIVE SUPPLY AGREEMENTS (AND IN CONSIDERATION OF THE PROVISION OF
CERTAIN SERVICES HEREUNDER), AND SUBJECT TO ADJUSTMENT PURSUANT TO SECTION
7.1(D), THE JV SHALL PAY TO GILEAD THE "GILEAD TRANSFER PRICE" AND TO BMS SUB
THE "BMS TRANSFER PRICE" IN ACCORDANCE WITH THIS SECTION 7.
FOR A GIVEN
CALENDAR YEAR, PURSUANT TO THIS SECTION 7.1, THE JFC SHALL CALCULATE (I) INTERIM
GILEAD TRANSFER PRICES PER KILOGRAM OF TDF OR FTC BULK ACTIVE PHARMACEUTICAL
INGREDIENT RESPECTIVELY, I.E. THE APPLICABLE TRANSFER PRICE IN ACCORDANCE WITH
ANNEX K HERETO PER KILOGRAM OF BULK ACTIVE PHARMACEUTICAL INGREDIENT (EACH AN
"INTERIM GILEAD UNIT TRANSFER PRICE") AND (II) AN INTERIM BMS TRANSFER PRICE PER
KILOGRAM OF EFV ACTIVE PHARMACEUTICAL INGREDIENT, I.E. THE APPLICABLE TRANSFER
PRICE IN ACCORDANCE WITH ANNEX K HERETO PER KILOGRAM OF EFV ACTIVE
PHARMACEUTICAL INGREDIENT (THE "INTERIM BMS UNIT TRANSFER PRICE"), IN EACH CASE
BASED UPON THE RESPECTIVE WORKING PERCENTAGES CALCULATED PURSUANT TO SECTION
7.1(C)(I), THE ESTIMATED NET SELLING PRICE OF THE COMBINATION PRODUCT DETERMINED
BY THE JFC WITH RESPECT TO SUCH CALENDAR YEAR PURSUANT TO SECTION 7.1(C)(II),
AND THE RELEVANT TARGET YIELD FOR THE ACTIVE PHARMACEUTICAL INGREDIENT
CALCULATED PURSUANT TO ANNEX K HERETO.
THE JFC