WRITING, OF SUCH DECISION
AND PROVIDE MGI WITH SUFFICIENT DETAIL TO EVALUATE THE RELATED PRODUCT BASED ON
THE THEN CURRENT STATE OF DEVELOPMENT OF SUCH RELATED PRODUCT,
INCLUDING BUT
NOT LIMITED TO THE RIGHT TO REVIEW PATENT APPLICATIONS AND CLAIMS RELATING
THERETO, THE ASSOCIATED FILE HISTORIES DESCRIBING PRIOR ART AND PATENTABILITY
OPINIONS, AND REGULATORY DOCUMENTATION AND SUPPORTING DATA
10
for the Related Product, as well as the general nature of the License or
Assignment that SuperGen desires to grant.
2.4.2
MGI SHALL HAVE THIRTY (30) DAYS FOLLOWING SUCH NOTICE FROM SUPERGEN TO
EVALUATE THE RELATED PRODUCT AND TO NOTIFY SUPERGEN, IN WRITING THAT MGI DESIRES
TO OBTAIN THE RIGHTS TO THE RELATED PRODUCT THAT SUPERGEN DESIRES TO LICENSE OR
ASSIGN. UPON NOTIFICATION BY MGI OF ITS DESIRE TO OBTAIN SUCH RIGHTS, THE
PARTIES SHALL NEGOTIATE, IN GOOD FAITH, FOR A PERIOD NOT TO EXCEED ONE HUNDRED
AND EIGHTY (180) DAYS AFTER THE DATE OF SUPERGEN'S NOTICE, UNLESS EXTENDED BY
MUTUAL WRITTEN AGREEMENT OF THE PARTIES IN AN EFFORT TO ARRIVE AT MUTUALLY
ACCEPTABLE TERMS AND CONDITIONS FOR SUCH A LICENSE OR ASSIGNMENT.
2.4.3
IF MGI FAILS TO NOTIFY SUPERGEN WITHIN THE THIRTY (30) DAY PERIOD SET
FORTH IN SECTION 2.4.2, OR IF THE PARTIES DO NOT ENTER INTO AN AGREEMENT, WITHIN
ONE HUNDRED EIGHTY (180) DAY PERIOD SET FORTH IN SECTION 2.4.2, IN WHICH
SUPERGEN GRANTS TO MGI THE DESIRED LICENSE OR ASSIGNMENT, THEN NEITHER PARTY
SHALL HAVE ANY FURTHER OBLIGATION UNDER THIS AGREEMENT WITH RESPECT TO THE
RELATED PRODUCTS, EXCEPT AS FOLLOWS. IF SUPERGEN HAS NOT ENTERED INTO AN
AGREEMENT FOR THE LICENSE OR ASSIGNMENT OF RIGHTS TO A RELATED PRODUCT WITHIN AN
EIGHTEEN (18) MONTH PERIOD FOLLOWING THE CONCLUSION OF DISCUSSIONS BETWEEN MGI
AND SUPERGEN PURSUANT TO THE PROVISIONS OF SECTION 2.4.2, THEN MGI'S RIGHTS
UNDER THIS SECTION 2.4 SHALL BE REINSTATED, AND MGI SHALL AGAIN BE ENTITLED TO
THE RIGHTS GRANTED UNDER THIS SECTION 2.4 FOR UP TO TWO ADDITIONAL TIMES BUT IN
NO EVENT SHALL SUPERGEN BE OBLIGATED TO OFFER THE RELATED PRODUCT TO MGI MORE
THAN ONCE FOLLOWING MARKETING AUTHORIZATION. THE PARTIES ACKNOWLEDGE AND AGREE
THAT A CHANGE OF CONTROL OF SUPERGEN DOES NOT CONSTITUTE A DECISION BY SUPERGEN
TO LICENSE OR ASSIGN A RELATED PRODUCT PURSUANT TO THE PROVISIONS OF THIS
SECTION 2.4 AND ACCORDINGLY, THIS SECTION 2.4 SHALL NOT APPLY TO THE CHANGE OF
CONTROL TRANSACTION.
2.4.4
IN THE EVENT THAT SUPERGEN ELECTS TO RETAIN THE RIGHTS TO THE RELATED
PRODUCT AND TO MARKET ITSELF A RELATED PRODUCT, OR A DERIVATIVE THEREOF
CONSISTING OF THE SAME ACTIVE INGREDIENT (THE "NEW PRODUCT"), EITHER THROUGH
SUPERGEN'S SALES FORCE OR THROUGH A CONTRACTED SALES FORCE BY SUPERGEN, THEN IN
SUCH CASE, SUPERGEN SHALL OFFER MGI THE RIGHT TO CO-MARKET THE RELATED PRODUCT
AND, IF APPLICABLE THE NEW PRODUCT, IN SUCH MARKETS AS MGI HAS ITS OWN SALES
FORCE, ON TERMS AND CONDITIONS COMPARABLE TO OTHER CO-MARKETING AGREEMENTS IN
THE PHARMACEUTICAL INDUSTRY, WHICH TERMS SHALL BE NEGOTIATED IN GOOD FAITH BY
THE PARTIES FOLLOWING SUPERGEN'S NOTICE