SUCH ENFORCEMENT ACTION, MGI MAY INITIATE AN ENFORCEMENT ACTION
AGAINST SUCH INFRINGEMENT. SUPERGEN SHALL COOPERATE IN SUCH ENFORCEMENT ACTION
AT MGI'S EXPENSE, PROVIDED THAT MGI INDEMNIFIES SUPERGEN AGAINST ANY LIABILITY
ARISING THEREFROM. THE PARTY INITIATING OR DEFENDING ANY SUCH ENFORCEMENT ACTION
SHALL KEEP THE OTHER PARTY HERETO REASONABLY INFORMED OF THE PROGRESS OF ANY
SUCH ENFORCEMENT ACTION, AND SUCH OTHER PARTY SHALL HAVE THE RIGHT TO
PARTICIPATE WITH COUNSEL OF ITS OWN CHOICE AND AT ITS OWN EXPENSE.
9.6.2
ENFORCEMENT. WITH RESPECT TO ENFORCEMENT ACTIONS
INITIATED BY SUPERGEN IN A COUNTRY IN THE TERRITORY, MGI SHALL PAY ONE HALF
(1/2) OF THE COSTS AND EXPENSES (INCLUDING ATTORNEYS' AND PROFESSIONAL FEES)
INCURRED BY SUPERGEN IN CONNECTION WITH SUCH ENFORCEMENT ACTION. ANY RECOVERY
RECEIVED AS A RESULT OF ANY ENFORCEMENT ACTION TO ENFORCE LICENSED PATENTS
PURSUANT TO THIS SECTION 9.6 BY EITHER PARTY SHALL BE USED FIRST TO REIMBURSE
THE PARTIES FOR THE COSTS AND EXPENSES (INCLUDING ATTORNEYS' AND PROFESSIONAL
FEES) INCURRED IN CONNECTION WITH SUCH ENFORCEMENT ACTION, AND THE REMAINDER OF
THE RECOVERY SHALL BE SHARED (TO THE EXTENT THE SAME REPRESENTS DAMAGES FROM
SALES OF LICENSED PRODUCTS WITHIN THE TERRITORY) EQUALLY BETWEEN THE PARTIES;
PROVIDED, HOWEVER, THAT IF SUPERGEN INITIATES THE ENFORCEMENT ACTION AND MGI
DOES NOT AGREE TO PAY ONE HALF (1/2) OF THE COSTS AND EXPENSES INCURRED BY
SUPERGEN THEREIN, MGI SHALL NOT BE ENTITLED TO ANY AMOUNT RECOVERED IN SUCH
ENFORCEMENT ACTION.
9.7
PATENT MARKING. MGI AGREES TO MARK AND HAVE ITS AFFILIATES AND LICENSEES
MARK ALL PATENTED LICENSED PRODUCTS THEY SELL OR DISTRIBUTE PURSUANT TO THIS
AGREEMENT IN ACCORDANCE WITH
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the applicable patent statutes or regulations in the country or countries of
manufacture, use, importation and sale thereof sufficient to preserve all of
SuperGen's rights and remedies under the Licensed Patents.
9.8
THIRD PARTY AGREEMENTS. (A)
THIRD PARTY
AGREEMENTS. THE PARTIES HERETO AGREE THAT ALL RESPONSIBILITIES AND OBLIGATIONS
OF SUPERGEN UNDER THE THIRD PARTY AGREEMENTS SET FORTH IN EXHIBIT 1.46 BE
TRANSFERRED TO MGI, AND THAT MGI SHALL ASSUME ALL SUCH RESPONSIBILITIES AND
OBLIGATIONS, COMMENCING AS OF THE EFFECTIVE DATE. WITH RESPECT TO THE THIRD
PARTY AGREEMENTS THAT WILL BE ASSIGNED TO MGI AS IDENTIFIED IN EXHIBIT 1.46,
EACH SUCH THIRD PARTY AGREEMENT IS AND SHALL BE TRANSFERRED AND ASSIGNED BY
SUPERGEN TO MGI, AND MGI HEREBY ASSUMES, AND SHALL ASSUME, ALL RESPONSIBILITIES,
OBLIGATIONS, AND LIABILITIES OF SUPERGEN UNDER THE THIRD PARTY AGREEMENTS. WITH
RESPECT TO THE THIRD PARTY AGREEMENTS RELATING TO THE DEVELOPMENT OR
COMMERCIALIZATION OF DECITABINE THAT SUPERGEN WILL RETAIN AND NOT ASSIGN TO MGI,
AS IDENTIFIED IN EXHIBIT 1.46,
MGI DOES AND SHALL ASSUME AND AGREES TO PERFORM
ALL OF SUPERGEN'S RESPONSIBILITIES, LIABILITIES AND OBLIGATIONS UNDER SUCH
AGREEMENTS. THE PARTIES SHALL COOPERATE REASONABLY AFTER THE EFFECTIVE DATE AS
NECESSARY TO OBTAIN ALL NECESSARY CONSENTS, WAIVERS AND APPROVALS AS ARE
REQUIRED UNDER THE ASSIGNED THIRD PARTY AGREEMENTS IN ORDER TO EFFECT SUCH
TRANSFER PROMPTLY AFTER THE EFFECTIVE DATE. THE PARTIES ACKNOWLEDGE AND AGREE
THAT SHOULD SUPERGEN BECOME AWARE THAT IT HAS INADVERTENTLY