any product other
than the Licensed Products.
2.2
SUBLICENSES. MGI SHALL HAVE THE RIGHT TO
SUBLICENSE ITS RIGHTS UNDER SECTION 2.1 ABOVE IN THE TERRITORY IN THE COUNTRIES
OUTSIDE THE U.S. TO LICENSEES OF THE LICENSED PRODUCT WITH SUPERGEN'S WRITTEN
CONSENT, NOT TO BE UNREASONABLY WITHHELD. MGI SHALL NOTIFY SUPERGEN WITHIN
FOURTEEN (14) DAYS AFTER THE THIRD PARTY BECOMES A LICENSEE (WHETHER THROUGH AN
AGREEMENT WITH MGI, ITS AFFILIATE, OR ANOTHER LICENSEE), AND SHALL PROVIDE TO
SUPERGEN, WITH SUCH NOTICE, A COPY OF THE AGREEMENTS WITH THE LICENSEE. IN
CONNECTION WITH THIS SECTION 2.2, THE PARTIES ACKNOWLEDGE AND AGREE THAT MGI,
RATHER THAN ANY THIRD PARTY OR AFFILIATE, SHALL DIRECTLY MARKET AND
COMMERCIALIZE THE LICENSED PRODUCTS IN THE U.S. EACH AGREEMENT WITH A LICENSEE
SHALL BE AT LEAST AS PROTECTIVE OF SUPERGEN AND ITS INTELLECTUAL PROPERTY,
LICENSED KNOW-HOW AND OTHER CONFIDENTIAL INFORMATION AS THE TERMS AND CONDITIONS
OF THIS AGREEMENT, AND SUBORDINATE THERETO, AND MGI SHALL BE RESPONSIBLE TO
SUPERGEN FOR THE PERFORMANCE BY EACH AFFILIATE AND LICENSEE AS NECESSARY FOR
COMPLIANCE WITH THE FINANCIAL AND OTHER OBLIGATIONS UNDER THIS AGREEMENT. ANY
ATTEMPT TO ENGAGE A LICENSEE OTHER THAN IN ACCORDANCE WITH THE FOREGOING SHALL
BE NULL AND VOID.
2.3
NO CONFLICT. SUBJECT TO THE RIGHTS EXPRESSLY
RESERVED BY SUPERGEN UNDER THE PROVISIONS OF SECTION 2.1 AND TO THE PROVISIONS
OF SECTION 2.4 BELOW, EACH PARTY COVENANTS AND WARRANTS THAT DURING THE TERM OF
THIS AGREEMENT, NONE OF SUCH PARTY, ITS AFFILIATES, AND LICENSEES WILL, DIRECTLY
OR INDIRECTLY, MARKET, DISTRIBUTE, SELL, OFFER TO SELL, IMPORT, OR OTHERWISE
COMMERCIALIZE ANY COMPETING PRODUCTS, OTHER THAN LICENSED PRODUCT SOLD IN THE
TERRITORY ON WHICH ROYALTIES ARE PAYABLE UNDER AND IN ACCORDANCE WITH THIS
AGREEMENT; NOR SHALL SUCH PARTY, ITS AFFILIATES, AND LICENSEES ASSIST, FUND, OR
LICENSE OR AUTHORIZE, ANY THIRD PARTY TO DO ANY OF THE FOREGOING.
2.4
RELATED COMPOUND; RIGHT OF FIRST OFFER;
CO-MARKETING. THE PARTIES ACKNOWLEDGE THAT SUPERGEN IS ALSO PERFORMING
ADDITIONAL DEVELOPMENT WORK ON [*] OR [*] COMPRISING AT LEAST ONE BASE OF THE
COMPOUND IDENTIFIED IN EXHIBIT 1.10 (EACH A "RELATED COMPOUND"). IN
CONSIDERATION OF THE OTHER AGREEMENTS OF THE PARTIES UNDER THIS AGREEMENT,
SUPERGEN HEREBY GRANTS TO MGI A RIGHT OF FIRST OFFER FOR PHARMACEUTICAL PRODUCTS
THAT CONTAIN SUCH RELATED COMPOUND AS AN ACTIVE INGREDIENT AND COMPETING
PRODUCTS OTHER THAN COMPETING PRODUCTS THAT CONTAIN DECITABINE AS THE ACTIVE
INGREDIENT (EACH, A "RELATED PRODUCT"), TO THE EXTENT SET FORTH IN THIS
SECTION 2.4.
2.4.1
AT SUCH TIME AS SUPERGEN, ITS AFFILIATES, OR ANY SUCCESSOR-IN-INTEREST
OF SUPERGEN THAT IS A PARTY TO THIS AGREEMENT IN LIEU OF SUPERGEN DUE TO A
CHANGE IN CONTROL, SHALL DETERMINE TO LICENSE A THIRD PARTY TO SELL OR OTHERWISE
COMMERCIALIZE ANY RELATED PRODUCT OR ASSIGN TO A THIRD PARTY ALL OR
SUBSTANTIALLY ALL OF ITS RIGHTS IN AND TO THE RELATED PRODUCT (EXCLUDING THIRD
PARTY CONTRACTS MADE IN THE ORDINARY COURSE OF BUSINESS, SUCH AS CONTRACT
MANUFACTURING AGREEMENTS) (EACH INSTANCE A "LICENSE OR ASSIGNMENT" AND TO
"LICENSE OR ASSIGN"), SUPERGEN SHALL NOTIFY MGI, IN