Confirmation of OTC Convertible Note Hedge

Exhibit 10.2

Confirmation of OTC Convertible Note Hedge

Date:		April 19, 2006, as amended and restated as of April 24, 2006
To:		Gilead Sciences, Inc. (“Counterparty”)
Attention:		Corporate Secretary
From:		Bank of America, N.A. (“Bank”)

Dear Sir / Madam:

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the above-referenced transaction entered into between Counterparty and Bank on the Trade Date specified below (the “Transaction”). This Confirmation constitutes a “Confirmation” as referred to in the Master Agreement specified below.

The definitions and provisions contained in the 2000 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions” and, together with the Swap Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern, and in the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. References herein to a “Transaction” shall be deemed to be references to a “Share Option Transaction” for purposes of the Equity Definitions and a “Swap Transaction” for the purposes of the Swap Definitions.

This Confirmation evidences a complete binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. This Confirmation (notwithstanding anything to the contrary herein), shall be subject to an agreement in the 1992 form of the ISDA Master Agreement (Multicurrency Cross Border) (the “Master Agreement”) as if we had executed an agreement in such form (but without any Schedule and with the elections specified in the “ISDA Master Agreement” Section of this Confirmation) on the Trade Date of the Transaction. In the event of any inconsistency between the provisions of that agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction. The parties hereby agree that the Transaction evidenced by this Confirmation shall be the only Transaction subject to and governed by the Master Agreement.

The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:		April 19, 2006
Effective Date:		The date of issuance of the Reference Notes.
Option Style:		Bermuda
Seller:		Bank of America, N.A.
Buyer:		Counterparty
Shares:		The shares of common stock, $0.001 par value, of Counterparty (Security Symbol: “GILD”) or such other securities or property into which the Reference Notes are convertible on the date of determination.

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Initial Payment Amount:		$214,695,000 payable by Buyer to Seller
Initial Payment Amount Payment Date:		Effective Date
Potential Exercise Date:		Each Valuation Date
Exchange:		NASDAQ National Market
Related Exchange(s):		All Exchanges
Reference Notes:		0.625% Convertible Notes of Counterparty due 2013 in the original principal amount of $650,000,000.
Conversion Event:		Each conversion of any Reference Note pursuant to the terms of the Note Indenture (the principal amount of Reference Notes so converted, the “Conversion Amount” with respect to such Conversion Event) occurring before the Termination Date. For the avoidance of doubt, an exchange of a Reference Note in lieu of conversion pursuant to the Note Indenture will not be a “conversion” thereunder.
		If the Conversion Amount for any Conversion Event is less than the aggregate principal amount of Reference Notes then outstanding, then the terms of the Transaction shall continue to apply, subject to the terms and conditions set forth herein, with respect to the remaining outstanding principal amount of the Reference Notes.
Note Indenture:		The indenture, dated as of closing of the issuance of the Reference Notes, between Counterparty and Xxxxx Fargo Bank, National Association, as trustee relating to the Reference Notes, as the same may be amended, modified or supplemented, subject to the “Additional Termination Events” provisions of this Confirmation.
Termination Date:		The earlier of (i) the Settlement Date relating to the final Valuation Date and (ii) the first day on which none of the Reference Notes remain outstanding, whether by virtue of conversion, issuer repurchase or otherwise.
Valuation:
Valuation Date:		The final “trading day” in the applicable “conversion reference period” (each as defined in the Note Indenture) in respect of each Conversion Event.
Settlement Terms:
Settlement Method:		Net Share Settlement or Net Cash Settlement consistent with Counterparty’s election with respect to the Reference Notes converted in the applicable Conversion Event, provided that Net Share Settlement shall apply in the event that Counterparty elects to deliver any Shares in connection with the applicable Conversion Event.
Settlement Notice:		Counterparty shall provide Seller with one or more notices (which notices can be provided by the Trustee (as defined in the Note Indenture)) of its Settlement Method prior to the first “trading day” in the relevant “conversion reference period,” provided that in the event Counterparty shall not deliver a Settlement Notice specifying the Settlement Method, the Settlement Method shall be Net

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		Share Settlement (without regard to subsection (b) of the definition of Net Share Settlement). The Settlement Notices, collectively, will include (i) the number of Reference Notes being converted, (ii) the first “trading day” in the relevant “conversion reference period” for the Reference Notes and (iii) the applicable Cash Percentage, if any.
Settlement Date:		The third (3rd) “trading day” (as defined in the Note Indenture) following the Valuation Date.
Net Share Settlement:		On the Settlement Date, Seller shall deliver to Counterparty (a) a number of Shares equal to the related Net Share Settlement Amount, provided that in the event that the number of Shares calculated comprises any fractional Share, only whole Shares shall be delivered and an amount in cash equal to the value of such fractional Share shall be payable by Seller to Counterparty and (b) an amount in cash equal to the cash amount, if any, paid by Counterparty in excess of the principal amount of the applicable Reference Notes for such Conversion Event under the Note Indenture.
Net Cash Settlement:		On the Settlement Date, Seller shall deliver to Counterparty an amount in cash equal to the related Net Cash Settlement Amount.
Net Share Settlement Amount:		For each Conversion Event, the number of Shares equal to the shares delivered by Counterparty for such Conversion Event under the Note Indenture, provided that with respect to such Conversion Event if neither a Settlement Notice nor a Conversion Notice shall be delivered to the Seller prior to the start of the “conversion reference period” (as defined in the Note Indenture) applicable to such Conversion Event, the Net Share Settlement Amount for such Conversion Event shall be reduced by an amount determined by the parties, in a commercially reasonable manner each acting in good faith, to account for the reduced number of “trading days” during the period from the delivery of such notice to the end of the applicable “conversion reference period” rather than over the entire “conversion reference period” (as defined in the Note Indenture). No reduction of the Net Share Settlement Amount shall reduce the Net Share Settlement Amount below zero.
Net Cash Settlement Amount:		For each Conversion Event, an amount equal to the cash delivered by Counterparty in excess of the principal amount of the applicable Reference Notes for such Conversion Event under the Note Indenture, provided that with respect to such Conversion Event if the Settlement Notice shall not be delivered to the Seller prior to the start of the “conversion reference period” (as defined in the Note Indenture) applicable to such Conversion Event, the Net Cash Settlement Amount for such Conversion Event shall be reduced by an amount determined by the parties, in a commercially reasonable manner each acting in good faith, to account for the reduced number of “trading days” during the period from the delivery of such notice to the end of the applicable “conversion reference period” rather than over the entire “conversion reference period” (as defined in the Note Indenture). No reduction of the Net Cash Settlement Amount shall reduce the Net Cash Settlement Amount below zero.
Share Adjustments:
Method of Adjustment:		Calculation Agent Adjustment

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Extraordinary Events:

Consequences for Merger Events:
Share-for-Share:		The Transaction will be adjusted consistent with the Reference Notes as provided in the Note Indenture.
Share-for-Other:		The Transaction will be adjusted consistent with the Reference Notes as provided in the Note Indenture.
Share-for-Combined:		The Transaction will be adjusted consistent with the Reference Notes as provided in the Note Indenture.
Consequences of Tender Offers:		The Transaction will be adjusted consistent with the Reference Notes as provided in the Note Indenture.
Nationalization, Insolvency and Delisting:		Cancellation and Payment (Calculation Agent Determination), provided Counterparty shall determine whether payment shall be settled in cash or Shares.
Additional Disruption Events:
Change in Law:		Not Applicable
Failure to Deliver:		Applicable. If there is inability in the market to deliver Shares due to illiquidity on a day that would have been a Settlement Date, then the Settlement Date shall be the first succeeding Exchange Business Day on which there is no such inability to deliver, but in no such event shall the Settlement Date be later than the date that is two (2) Exchange Business Days immediately following what would have been the Settlement Date but for such inability to deliver.
Insolvency Filing:		Applicable
Hedging Disruption Event:		Not Applicable
Increased Cost of Hedging:		Not Applicable
Hedging Party:		Seller
Loss of Stock Borrow:		Not Applicable
Increased Cost of Stock Borrow:		Not Applicable
Determining Party:		Seller
Non-Reliance:		Applicable
Agreements and Acknowledgments Regarding Hedging Activities:		Applicable
Additional Acknowledgments:		Applicable

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Additional Agreements, Representations and Covenants of Counterparty, Etc.:

1. Counterparty hereby represents and warrants to Seller, on each day from the Trade Date to and including the earlier of (i) April 25, 2006 and (ii) the date by which Seller is able to initially complete a hedge of its position relating to the Transaction, that:

a. it will not, and will not permit any person or entity subject to its control to, bid for or purchase Shares during such period except as disclosed in the Offering Memorandum relating to the Reference Notes; and

b. Counterparty has publicly disclosed all material information necessary for Counterparty to be able to purchase or sell Shares in compliance with applicable federal securities laws and that it has publicly disclosed all material information with respect to its condition (financial or otherwise).

2. The parties hereby agree that all documentation with respect to the Transaction is intended to qualify the Transaction as an equity instrument for purposes of EITF 00-19. If Counterparty would be obligated to receive cash from Seller pursuant to the terms of this Confirmation for any reason without having had the right (other than pursuant to this paragraph (2)) to elect to receive Shares in satisfaction of such payment obligation, then Counterparty may elect that Seller deliver to Counterparty a number of Shares having a cash value equal to the amount of such payment obligation (such number of Shares to be delivered to be determined by the Calculation Agent acting in a commercially reasonable manner to determine the number of Shares that could be purchased over a reasonable period of time with the cash equivalent of such payment obligation). Settlement relating to any delivery of Shares pursuant to this paragraph (2) shall occur within a reasonable period of time.

Additional Termination Events:

The occurrence of any of the following shall be an Additional Termination Event for purposes of the Transaction:

1. Amendment Event. If an Amendment Event (as defined below) occurs, the Transaction shall terminate in its entirety and, notwithstanding anything to the contrary herein, no payments shall be required hereunder in connection with the Additional Termination Event arising as a result of such Amendment Event.

“Amendment Event” means that Counterparty amends, modifies, supplements or obtains a waiver of any term of the Note Indenture or the Reference Notes relating to the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any material term relating to conversion of the Reference Notes (including changes to the conversion price, conversion settlement dates or conversion conditions), or any other term that would require consent of the holders of 100% of the principal amount of the Reference Notes to amend.

2. Repayment Event. If a Repayment Event (as defined below) occurs, the Transaction shall terminate only to the extent of the principal amount of Reference Notes that cease to be outstanding as a result of such Repayment Event and, notwithstanding anything to the contrary herein, no payments shall be required hereunder in connection with the Additional Termination Event arising as a result of such Repayment Event.

“Repayment Event” means that (a) any Reference Notes are repurchased (whether in connection with or as a result of a change of control, howsoever defined, or for any other reason) by Counterparty, (b) any Reference Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), other than as a result of and in connection with a Conversion Event, (c) any principal of any of the Reference Notes is repaid prior to the Final Maturity Date (as defined in the Note Indenture) (whether following acceleration of the Reference Notes or otherwise), provided that no payments of cash made in respect of the conversion of a Reference Note shall be deemed a payment of principal

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under this clause (c), (d) any Reference Notes are exchanged by or for the benefit of the holders thereof for any other securities of Counterparty (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction or (e) any of the Reference Notes is surrendered by Counterparty to the trustee for cancellation, other than registration of a transfer of such Reference Notes or as a result of and in connection with a Conversion Event.

3. Initial Purchase Event. If an Initial Purchase Event (as defined below) occurs, the Transaction shall terminate automatically in its entirety and, notwithstanding anything to the contrary herein, only the payments specified below shall be required hereunder in connection with the Additional Termination Event arising as a result of such Initial Purchase Event.

“Initial Purchase Event” means that the transactions contemplated by the purchase agreement among Counterparty and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Banc of America Securities LLC, as representatives of the several initial purchasers named in Schedule A thereto, dated as of April 19, 2006 (the “Purchase Agreement”), relating to the purchase of the Reference Notes, shall fail to close for any reason.

If an Initial Purchase Event occurs for any reason other than a breach of the Purchase Agreement by Banc of America Securities LLC or an affiliate thereof that acts as Initial Purchaser, then all payments previously made hereunder shall be returned to the person making such payment, including the Initial Payment Amount, less an amount equal to the product of (a) 8,529,950 Shares and (b) the sum of (i) US$0.50 per Share and (ii) an amount equal to the excess, if any, of the closing price of the Shares on the Trade Date over the closing price of the Shares on the date of the Termination Event (the “Break Expense”); provided that any negative amount shall be replaced by zero and provided further that to the extent the Initial Payment Amount has not been paid, Counterparty shall promptly pay Seller the Break Expense. Seller and Counterparty agree that actual damages would be difficult to ascertain under these circumstances and that the amount of liquidated damages resulting from the determination in the preceding sentence is a good faith estimate of such damages and not a penalty.

If an Initial Purchase Event occurs due to a breach of the Purchase Agreement by Banc of America Securities LLC or an affiliate thereof that acts as Initial Purchaser, then all payments previously made hereunder, including the Initial Payment Amount, shall be promptly returned to the person making such payment.

Staggered Settlement:

If Seller determines reasonably and in good faith that the number of Shares required to be delivered to Counterparty hereunder on any Settlement Date would exceed 8.0% of all outstanding Shares, then Seller may, by notice to Counterparty on or prior to such Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares comprising the related Net Share Settlement Amount on two or more dates (each, a “Staggered Settlement Date”) as follows:

1. in such notice, Seller will specify to Counterparty the related Staggered Settlement Dates (the first of which will be such Nominal Settlement Date and the last of which will be no later than twenty (20) “trading days” (as defined in the Note Indenture) following such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;

2. the aggregate number of Shares that Seller will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Seller would otherwise be required to deliver on such Nominal Settlement Date; and

3. the Net Share Settlement terms will apply on each Staggered Settlement Date, except that the Shares comprising the Net Share Settlement Amount will be allocated among such Staggered Settlement Dates as specified by Seller in the notice referred to in clause (1) above.

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Notwithstanding anything herein to the contrary, solely in connection with a Staggered Settlement Date, Seller shall be entitled to deliver Shares to Counterparty from time to time prior to the date on which Seller would be obligated to deliver them to Counterparty pursuant to Net Share Settlement terms set forth above, and Counterparty agrees to credit all such early deliveries against Seller’s obligations hereunder in the direct order in which such obligations arise. No such early delivery of Shares will accelerate or otherwise affect any of Counterparty’s obligations to Seller hereunder.

Compliance with Securities Laws:		Each party represents and agrees that it has complied, and will comply, in connection with the Transaction and all related or contemporaneous sales and purchases of Shares, with the applicable provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations each thereunder, including, without limitation, Rules 10b-5 and 13e and Regulation M under the Exchange Act; provided that each party shall be entitled to rely conclusively on any information communicated by the other party concerning such other party’s market activities; and provided further that Counterparty shall have no liability as a result of a breach of this representation due to Seller’s gross negligence or willful misconduct.
		Each party further represents that if such party (“X”) purchases any Shares from the other party pursuant to the Transaction, such purchase(s) will comply in all material respects with (i) all laws and regulations applicable to X and (ii) all contractual obligations of X.
		Each party acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act by virtue of Section 4(2) thereof. Accordingly, Counterparty represents and warrants to Seller that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act and (iii) the disposition of the Transaction is restricted under this Confirmation, the Securities Act and state securities laws.
		Counterparty represents and acknowledges that as of the date hereof:
		(a) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
		(b) without limiting the generality of Section 13.1 of the Equity Definitions, Seller is not making any representations or warranties with respect to the treatment of the Transaction under FASB Statements 149 or 150, EITF Issue No. 00-19 (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

Account Details:		Account for payments to Counterparty:		Not Applicable
		Account for payment to Seller:		Bank of America, N.A.
				New York, NY
				ABA#: 000-000-000
				SWIFT: BOFAUS3N
				Account Name: Bank of America
				A/C: 0012333-34172

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Bankruptcy Rights:		In the event of Counterparty’s bankruptcy, Seller’s rights in connection with the Transaction shall not exceed those rights held by common shareholders. For the avoidance of doubt, the parties acknowledge and agree that Xxxxxx’s rights with respect to any other claim arising from the Transaction prior to Counterparty’s bankruptcy shall remain in full force and effect and shall not be otherwise abridged or modified in connection herewith.
Set-Off:		Each party waives any and all rights it may have to set-off, whether arising under any agreement, applicable law or otherwise.
Collateral:		None.
Transfer:		Counterparty shall have the right to assign its rights and obligations hereunder with respect to any portion of the Transaction, subject to Seller’s consent (such consent not to be unreasonably withheld); provided that such assignment or transfer shall be subject to receipt by Seller of opinions and documents reasonably satisfactory to Seller and effected on terms reasonably satisfactory to the Seller with respect to any legal and regulatory requirements relevant to the Seller; provided further that Counterparty shall not be released from its obligation to deliver a Settlement Notice. Seller may transfer any of its rights or delegate its obligations under the Transaction with the prior written consent of Counterparty, which consent shall not be unreasonably withheld.

ISDA Master Agreement

With respect to the Master Agreement, Seller and Counterparty each agree as follows:

Specified Entities:

(i) in relation to Seller, for the purposes of:

Section 5(a)(v): not applicable

Section 5(a)(vi): not applicable

Section 5(a)(vii): not applicable

Section 5(b)(iv): not applicable

and (ii) in relation to Counterparty, for the purposes of:

Section 5(a)(v): not applicable

Section 5(a)(vi): not applicable

Section 5(a)(vii) not applicable

Section 5(b)(iv): not applicable

“Specified Transaction” will have the meaning specified in Section 14 of the Master Agreement.

The “Credit Event Upon Merger” provisions of Section 5(b)(iv) of the Master Agreement will not apply to Seller and Counterparty.

The “Automatic Early Termination” provision of Section 6(a) of the Master Agreement will not apply to Seller or to Counterparty.

Payments on Early Termination. For the purpose of Section 6(e) of the Master Agreement: (i) Market Quotation shall apply; and (ii) the Second Method shall apply.

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“Termination Currency” means USD.

Tax Representations:

(I) For the purpose of Section 3(e) of the Master Agreement, each party represents to the other party that it is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii), or 6(e) of the Master Agreement) to be made by it to the other party under the Master Agreement. In making this representation, each party may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the Master Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Master Agreement, and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Master Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Master Agreement; provided that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not deliver a form or document under Section 4(a)(iii) of the Master Agreement by reason of material prejudice to its legal or commercial position.

(II) For the purpose of Section 3(f) of the Master Agreement, each party makes the following representations to the other party:

(i) Seller represents that it is a national banking association chartered by the Office of the Comptroller of the Currency pursuant to the National Bank Act.

(ii) Counterparty represents that it is a corporation incorporated under the laws of the State of Delaware.

Delivery Requirements: For the purpose of Sections 3(d), 4(a)(i) and (ii) of the Master Agreement, each party agrees to deliver the following documents:

Tax forms, documents or certificates to be delivered are:

Each party agrees to complete (accurately and in a manner reasonably satisfactory to the other party), execute, and deliver to the other party, United States Internal Revenue Service Form W-9 or W-8 BEN, or any successor of such form(s): (i) before the first payment date under this Confirmation; (ii) promptly upon reasonable demand by the other party; and (iii) promptly upon learning that any such form(s) previously provided by the other party has become obsolete or incorrect.

Other documents to be delivered:

Party Required to Deliver Document		Document Required to be Delivered		When Required		Covered by Section 3(d) Representation
Counterparty		Evidence of the authority and true signatures of each official or representative signing this Confirmation		Upon or before execution and delivery of this Confirmation		Yes
Counterparty		Certified copy of the resolution of the Board of Directors or equivalent document authorizing the execution and delivery of this Confirmation and such other certificates as Seller shall reasonably request		Upon or before execution and delivery of this Confirmation		Yes

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Additional Notice Requirements: Counterparty hereby agrees to promptly deliver to Seller a copy of all notices and other communications required or permitted to be given to the holders of any Reference Notes pursuant to the terms of the Note Indenture on the dates so required or permitted in the Note Indenture and all other notices given and other communications made by Counterparty in respect of the Reference Notes to holders of any Reference Notes. Counterparty further covenants to Seller that it shall promptly notify Seller of each Conversion Event, Amendment Event (including in such notice a detailed description of any such amendment) and Repayment Event (identifying in such notice the nature of such Repayment Event and the principal amount at maturity of Reference Notes being paid).

Addresses for Notices: For the purpose of Section 12(a) of the Master Agreement:

Address for notices or communications to Seller for all purposes:

Address:		Bank of America, N.A.
		c/o Banc of America Securities LLC
		Equity Financial Products
		0 Xxxx 00xx Xxxxxx, 40th Floor
		New York, NY 10019
Attention:		Legal Department
Facsimile No.:		(000) 000-0000
Telephone No.:		(000) 000-0000

Additionally, a copy of all notices pursuant to Sections 5, 6, and 7 as well as any changes to Counterparty’s address, telephone number or facsimile number should be sent to:

Address:		Bank of America, N.A.
		c/o Banc of America Securities LLC
		Equity Financial Products
		0 Xxxx 00xx Xxxxxx, 40th Floor
		New York, NY 10019
Attention:		Legal Department
Facsimile No.:		(000) 000-0000
Telephone No.:		(000) 000-0000

Address for notices or communications to Counterparty for all purposes:

Gilead Sciences, Inc.
000 Xxxxxxxx Xxxxx
Foster City, California 94404
Attention:		Treasurer
Facsimile No.:		(000) 000-0000
Telephone No.:		(000) 000-0000

Process Agent: For the purpose of Section 13(c) of the Master Agreement: Neither Bank nor Counterparty appoints a Process Agent.

Multibranch Party. For the purpose of Section 10(c) of the Master Agreement:

The Office for Seller for the Transaction is Xxxxxxxxx.

Counterparty is not a Multibranch Party.

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Calculation Agent. The Calculation Agent is Seller, whose judgments, determinations and calculations in the Transaction and any related hedging transaction between the parties shall be made in good faith and in a commercially reasonable manner.

Credit Support Document.

Seller: Not Applicable.

Counterparty: Not Applicable.

Credit Support Provider.

With respect to Seller: Not Applicable.

With respect to Counterparty: Not Applicable.

Governing Law. This Confirmation will be governed by, and construed in accordance with, the laws of the State of New York.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein.

Netting of Payments. The provisions of Section 2(c) of the Master Agreement shall not be applicable to the Transaction.

Basic Representations. Section 3(a) of the Master Agreement is hereby amended by the deletion of “and” at the end of Section 3(a)(iv); the substitution of a semicolon for the period at the end of Section 3(a)(v) and the addition of Sections 3(a)(vi), as follows:

Eligible Contract Participant; Line of Business. Each party agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended (“CEA”), this Agreement and the Transaction thereunder are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in Section 1a(33) of the CEA, and it has entered into this Confirmation and the Transaction in connection with its business or a line of business (including financial intermediation), or the financing of its business.

Amendment of Section 3(a)(iii). Section 3(a)(iii) of the Master Agreement is modified to read as follows:

No Violation or Conflict. Such execution, delivery and performance do not materially violate or conflict with any law known by it to be applicable to it, any provision of its constitutional documents, any order or judgment of any court or agency of government applicable to it or any of its assets or any material contractual restriction relating to Specified Indebtedness binding on or affecting it or any of its assets.

Amendment of Section 3(a)(iv). Section 3(a)(iv) of the Master Agreement is modified by inserting the following at the beginning thereof:

“To such party’s best knowledge,”

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Acknowledgements:

(1) The parties acknowledge and agree that there are no other representations, agreements or other undertakings of the parties in relation to the Transaction, except as set forth in this Confirmation.

(2) The parties hereto intend for:

(a) the Transaction to be a “securities contract” as defined in Section 741(7) of Title 11 of the United States Code (the “Bankruptcy Code”), qualifying for the protections under Section 555 of the Bankruptcy Code;

(b) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Master Agreement with respect to the other party to constitute a “contractual right” as defined in the Bankruptcy Code;

(c) all payments for, under or in connection with the Transaction, all payments for the Shares and the transfer of such Shares to constitute “settlement payments” as defined in the Bankruptcy Code.

Amendment of Section 6(d)(ii). Section 6(d)(ii) of the Master Agreement is modified by deleting the words “on any day” in the second line thereof and substituting therefore “on the day that is three Local Business Days after the day.” Section 6(d)(ii) is further modified by deleting the words “two Local Business Days” in the fourth line thereof and substituting therefore “three Local Business Days.”

Amendment of Definition of Reference Market-Makers. The definition of “Reference Market-Makers” in Section 14 is hereby amended by adding in clause (a) after the word “credit” and before the word “and” the words “or to enter into transactions similar in nature to Transactions.”

Consent to Recording. Each party consents to the recording of the telephone conversations of trading and marketing personnel of the parties and their Affiliates in connection with this Confirmation. To the extent that one party records telephone conversations (the “Recording Party”) and the other party does not (the “Non-Recording Party”), the Recording Party shall in the event of any dispute, make a complete and unedited copy of such party’s tape of the entire day’s conversations with the Non-Recording Party’s personnel available to the Non-Recording Party. The Recording Party’s tapes may be used by either party in any forum in which a dispute is sought to be resolved and the Recording Party will retain tapes for a consistent period of time in accordance with the Recording Party’s policy unless one party notifies the other that a particular transaction is under review and warrants further retention.

Disclosure. Each party hereby acknowledges and agrees that Seller has authorized Counterparty to disclose the Transaction and any related hedging transaction between the parties if and to the extent that Counterparty reasonably determines (after consultation with Seller) that such disclosure is required by law or by the rules of NASDAQ or any securities exchange. Notwithstanding any provision in this Confirmation or the Master Agreement, in connection with Section 1.6011-4 of the Treasury Regulations, the parties hereby agree that each party (and each employee, representative, or other agent of such party) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.

Severability. If any term, provision, covenant or condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable in whole or in part for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Confirmation had been executed with the invalid or unenforceable provision eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of this Confirmation will not substantially impair the respective benefits or expectations of parties to this Confirmation; provided, however, that this severability provision shall not

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be applicable if any provision of Section 2, 5, 6 or 13 of the Master Agreement (or any definition or provision in Section 14 to the extent that it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable.

Affected Parties. For purposes of Section 6(e) of the Master Agreement, each party shall be deemed to be an Affected Party in connection with Illegality and any Tax Event.

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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.

Very truly yours,
BANK OF AMERICA, N.A.
By:		/s/ XXXX X. XXXXXXXXX
Name:		Xxxx X. Xxxxxxxxx
Title:		Authorized Signatory

Confirmed as of the date first above written:

GILEAD SCIENCES, INC.
By:		/s/ XXXX X. XXXXXXXX, PH.D.
Name:		Xxxx X. Xxxxxxxx, Ph.D.
Title:		Executive Vice President and Chief Financial Officer

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