TO SEEK
EXTENSIONS OF THE TERMS OF LICENSED PATENTS IN THE TERRITORY. AT MGI'S REQUEST,
SUPERGEN SHALL EITHER AUTHORIZE MGI TO ACT AS SUPERGEN'S AGENT FOR THE PURPOSE
OF MAKING ANY APPLICATION FOR ANY EXTENSIONS OF THE TERM OF LICENSED PATENTS AND
PROVIDE REASONABLE ASSISTANCE THEREFOR TO MGI OR SHALL DILIGENTLY SEEK TO OBTAIN
SUCH EXTENSIONS, IN EITHER EVENT, AT THE PARTIES HERETO SHARED EXPENSE. MGI
SHALL COOPERATE REASONABLY WITH SUPERGEN WITH RESPECT TO EXTENSIONS SOUGHT BY
SUPERGEN.
9.5
THIRD PARTY INFRINGEMENT CLAIMS. IF THE MAKING, SALE, IMPORTATION, OR USE
OF ANY LICENSED PRODUCT IN THE TERRITORY PURSUANT TO THIS AGREEMENT RESULTS IN A
CLAIM, SUIT OR PROCEEDING BY A THIRD PARTY ALLEGING PATENT INFRINGEMENT AGAINST
SUPERGEN OR MGI (OR THEIR RESPECTIVE AFFILIATES OR LICENSEES) (COLLECTIVELY,
"INFRINGEMENT ACTIONS"), SUCH PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY HERETO
IN WRITING. SUBJECT TO ARTICLE 13, THE PARTY SUBJECT TO SUCH INFRINGEMENT ACTION
SHALL HAVE THE EXCLUSIVE RIGHT TO DEFEND AND CONTROL THE DEFENSE THEREOF
(INCLUDING THE CONCLUSION OF A POTENTIAL SETTLEMENT, BUT LIMITED TO THE RIGHTS
GRANTED PURSUANT TO THIS AGREEMENT) USING COUNSEL OF ITS OWN
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choice,and also subject to Article 13 the Infringement Action shall be at such
Party's own expense; provided, however, that the Party not responsible under the
foregoing for defending such Infringement Action may participate in the defense
and/or settlement thereof at its own expense with counsel of its choice. The
Party defending the Infringement Action agrees to keep the other Party hereto
reasonably informed of all material developments in connection with any such
Infringement Action. MGI agrees not to make admissions regarding infringement by
the Licensed Product of any Patent Rights outside of the Licensed Patents,
without obtaining the prior written consent of SuperGen. Nothing in this
Section 9.5 shall be construed as limiting the obligations of indemnification
under Article 13.
9.6
ENFORCEMENT. SUBJECT TO THE PROVISIONS OF THIS SECTION 9.6, IN THE EVENT
THAT MGI REASONABLY BELIEVES THAT ANY OF THE LICENSED PATENTS IN THE TERRITORY
ARE INFRINGED OR MISAPPROPRIATED BY A THIRD PARTY OR IS SUBJECT TO A DECLARATORY
JUDGMENT ACTION IN THE TERRITORY ARISING FROM SUCH INFRINGEMENT, IN EACH CASE
WITH RESPECT TO THE MANUFACTURE, SALE OR USE OF A PRODUCT WITHIN THE TERRITORY
THAT CONTAINS DECITABINE, MGI SHALL PROMPTLY NOTIFY SUPERGEN. IN SUCH EVENT, AS
BETWEEN THE PARTIES, SUPERGEN SHALL HAVE THE INITIAL RIGHT (BUT NOT THE
OBLIGATION) TO ENFORCE THE LICENSED PATENTS WITH RESPECT TO SUCH INFRINGEMENT,
OR DEFEND ANY DECLARATORY JUDGMENT ACTION WITH RESPECT THERETO (FOR PURPOSES OF
THIS SECTION 9.6, AN "ENFORCEMENT ACTION").
9.6.1
INITIATING ENFORCEMENT ACTIONS. IN THE EVENT THAT
SUPERGEN FAILS TO INITIATE AN ENFORCEMENT ACTION TO ENFORCE THE LICENSED PATENTS
AGAINST AN INFRINGEMENT BY A THIRD PARTY PRODUCT IN A COUNTRY IN THE TERRITORY,
WHICH INFRINGEMENT CONSISTS OF THE MANUFACTURE, SALE OR USE IN SUCH COUNTRY OF A
PRODUCT THAT TREATS AN INDICATION FOR WHICH MGI HAS RECEIVED A MARKETING
AUTHORIZATION HEREUNDER, WITHIN ONE HUNDRED TWENTY (120) DAYS OF A REQUEST BY
MGI TO INITIATE