OR OTHERWISE OMITTED
A THIRD PARTY AGREEMENT SPECIFIC TO THE DEVELOPMENT OR COMMERCIALIZATION OF A
LICENSED PRODUCT FROM EXHIBIT 1.46, THE PARTIES WILL DISCUSS IN GOOD FAITH AND
AMEND EXHIBIT 1.46 TO INCLUDE SUCH THIRD PARTY AGREEMENT SUBJECT TO MGI'S REVIEW
AND ACCEPTANCE OF SUCH AGREEMENTS (AS DESCRIBED BELOW), AND UPON ACCEPTANCE, THE
PROVISIONS OF THIS SECTION 9.8 SHALL APPLY TO SUCH THIRD PARTY AGREEMENT AS IF
INCLUDED AS OF THE DATE OF SIGNING OF THIS AGREEMENT, PROVIDED, HOWEVER, THAT IF
MGI DOES NOT ACCEPT SUCH THIRD PARTY AGREEMENT, MGI SHALL NOT BE RESPONSIBLE FOR
COMPLIANCE AND PERFORMANCE OF SUCH THIRD PARTY AGREEMENT. IT IS UNDERSTOOD AND
AGREED THAT SUPERGEN'S COMMUNICATION OF THE AGREEMENT'S BASIC PURPOSE AND SCOPE
SHALL BE SUFFICIENT FOR MGI TO REVIEW AND DECIDE WHETHER TO ACCEPT INCLUSION OF
SUCH THIRD PARTY AGREEMENTS FOLLOWING THE DATE OF SIGNING HEREOF. WITH RESPECT
TO THE SUPPLY AGREEMENTS, SUPERGEN WILL USE REASONABLE EFFORTS TO SEEK A CONSENT
TO ASSIGNMENT OF THE MANUFACTURING AGREEMENT AND SUCH OTHER AMENDMENTS TO ITS
OTHER AGREEMENTS WITH PHARMACHEMIE B.V. AS MAY BE PRUDENT IN SUPERGEN'S BUSINESS
JUDGEMENT TO ENSURE SUPERGEN'S COMPLIANCE WITH THE TERMS OF SUCH AGREEMENTS, IT
BEING UNDERSTOOD THAT "REASONABLE EFFORTS" SHALL NOT INCLUDE PAYMENT OF ANY
MONETARY OR OTHER CONSIDERATION. WITHOUT LIMITING THE FOREGOING PROVISIONS OF
THIS SECTION 9.8 OR ANY OTHER PROVISION OF THIS AGREEMENT, IF CONSENT TO
ASSIGNMENT IS NOT OBTAINED WITH RESPECT TO THE MANUFACTURING AGREEMENT WITHIN
NINETY (90) DAYS FOLLOWING THE EFFECTIVE DATE, THE PARTIES SHALL NEGOTIATE IN
GOOD FAITH TERMS AND CONDITIONS FOR SUPERGEN'S SUPPLY OF DECITABINE TO MGI THAT
(X) ARE CONSISTENT WITH THE MANUFACTURING AGREEMENT; (Y) ENSURE THAT SUPERGEN IS
ABLE TO COMPLY WITH ITS OBLIGATIONS UNDER THE MANUFACTURING AGREEMENT ITS OTHER
AGREEMENTS WITH PHARMACHEMIE B.V.; AND (Z) PROVIDE FOR REIMBURSEMENT BY MGI OF
SUPERGEN'S SUPPLY COSTS. FOR PURPOSES OF THIS SECTION 9.8, THE FOLLOWING
DEFINITIONS SHALL HAVE THE FOLLOWING MEANINGS: "SUPPLY AGREEMENTS" SHALL MEAN
THAT CERTAIN MANUFACTURING AGREEMENT BETWEEN SUPERGEN AND PHARMACHEMIE B.V. SET
FORTH IN EXHIBIT 1.46 AND THAT CERTAIN AGREEMENT BETWEEN SUPERGEN AND FERRO
PFANSTIEHL SET FORTH IN EXHIBIT 1.46. "SUPPLY COSTS" SHALL MEAN THE TOTAL OF (I)
THE ACTUAL HOURS EXPENDED BY SUPERGEN PERSONNEL, MULTIPLIED BY THE REIMBURSEMENT
RATE IN EFFECT AT THE TIME SUCH HOURS ARE INCURRED FOR THE PARTICULAR
INDIVIDUAL; (II) MATERIAL COSTS; (III)
29
contractor costs; and (iv) other direct and out-of -pocket expenses incurred in
order to supply MGI under the Manufacturing Agreement. "Reimbursement Rate"
shall mean with respect to any individual SuperGen personnel, the sum of the
actual (i) annual salary, (ii) employee benefits (including bonus, payroll
taxes, insurances and other direct benefit costs) and (iii) Allocated Overhead,
divided by one thousand eight hundred seventy two (1872). The Reimbursement Rate
does not include material costs, contractor costs and other direct and
out-of-pocket expenses incurred. These other costs and expenses shall be
included in the Supply Costs separately under this Section 9.8 above.
10. TRADEMARKS
10.1
PRODUCT TRADEMARK. EACH OF THE LICENSED PRODUCTS
SHALL BE DISTRIBUTED,