Section 15.12 shall
be of no further effect and shall not bind BMS in any manner from and after such
time, if any, as Gilead shall make a public announcement that it has entered
into a letter of intent or definitive agreement with a Third Party Acquirer
providing for a Change of Control of Gilead.
15.13
NONSOLICITATION OF EMPLOYEES.
DURING THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND CONTINUING THROUGH THE TERM OF THIS
AGREEMENT, EACH MEMBER PARTY AGREES THAT NEITHER IT NOR ANY OF ITS AFFILIATES
THAT PARTICIPATES IN OR IS RESPONSIBLE FOR THE DEVELOPMENT OR COMMERCIALIZATION
OF THE COMBINATION PRODUCT PURSUANT TO THIS AGREEMENT SHALL RECRUIT, SOLICIT OR
INDUCE ANY EMPLOYEE OF THE OTHER MEMBER PARTY'S HIV/VIROLOGY SALES FORCE
(INCLUDING MANAGERS) TO TERMINATE HIS OR HER EMPLOYMENT WITH SUCH OTHER MEMBER
PARTY AND BECOME EMPLOYED BY OR CONSULT FOR SUCH OTHER MEMBER PARTY, WHETHER OR
NOT SUCH EMPLOYEE IS A FULL-TIME EMPLOYEE OF SUCH OTHER MEMBER PARTY, AND
WHETHER OR NOT SUCH EMPLOYMENT IS PURSUANT TO A WRITTEN AGREEMENT OR IS
AT-WILL.
FOR PURPOSES OF THE FOREGOING, "RECRUIT," "SOLICIT" OR "INDUCE" SHALL
NOT BE DEEMED TO MEAN (X) GENERAL SOLICITATIONS BY THIRD PARTY PLACEMENT
SPECIALISTS OR FIRMS (E.G., HEADHUNTERS) OR (Y) OTHER GENERAL SOLICITATIONS OF
EMPLOYMENT (INCLUDING RESPONSES TO GENERAL ADVERTISEMENTS), IN EACH CASE ((X)
AND (Y)) NOT SPECIFICALLY TARGETED AT EMPLOYEES OF A PARTY OR ANY OF ITS
AFFILIATES.
15.14
ENTIRE AGREEMENT.
THIS AGREEMENT (INCLUDING THE
ANNEXES HERETO), TOGETHER WITH THE OPERATING AGREEMENT, THE ANCILLARY AGREEMENTS
AND THE OTHER AGREEMENTS CONTEMPLATED BY THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION THE SAFETY DATA EXCHANGE PROTOCOL), CONSTITUTES, ON AND AS OF THE
EFFECTIVE DATE, THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, AND ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS OR AGREEMENTS,
WHETHER WRITTEN OR ORAL, BETWEEN THE PARTIES WITH RESPECT TO SUCH SUBJECT MATTER
(INCLUDING THE MUTUAL TECHNOLOGY TRANSFER AGREEMENT ENTERED INTO BY
BRISTOL-MYERS SQUIBB COMPANY AND GILEAD SCIENCES, INC. AS OF FEBRUARY 5, 2004
(THE "MTTA") AND THE MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT ENTERED INTO BY
AND BETWEEN BRISTOL-MYERS SQUIBB COMPANY AND GILEAD SCIENCES, INC. AS OF
DECEMBER 12, 2003, AS AMENDED) ARE HEREBY SUPERSEDED IN THEIR ENTIRETIES;
PROVIDED, HOWEVER, THAT ANY RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE MTTA
AND SUCH MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT THAT HAVE ACCRUED AS OF THE
EFFECTIVE DATE SHALL SURVIVE.
THIS AGREEMENT SHALL NOT BE AMENDED IN ANY
RESPECT WHATSOEVER EXCEPT BY A FURTHER AGREEMENT, IN WRITING, FULLY EXECUTED BY
EACH OF THE PARTIES (OR PRIOR TO THE EFFECTIVE DATE, BY GILEAD AND BMS).
15.15
CONSENT TO JURISDICTION.
EACH PARTY, FOR THE PURPOSE
OF ENFORCING AN AWARD UNDER SECTION 15.6 OR FOR SEEKING INJUNCTIVE OR OTHER
EQUITABLE RELIEF AS PERMITTED BY SECTION 12.8, 14.4(D) OR 15.6(D), (A)
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (THE "COURT"), FOR PURPOSES OF ANY
ACTION, SUIT
98
OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, THE OPERATING AGREEMENT AND
ANY ANCILLARY AGREEMENT, AND