OF THE COMPANY AND
THE INVESTOR CONTAINED HEREIN, AND THE AGREEMENTS AND COVENANTS SET FORTH
HEREIN, SHALL SURVIVE THE CLOSING.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO
BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND
DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS
THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
(K)
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT WILL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
(L)
REMEDIES.
THE INVESTOR AND EACH HOLDER OF THE SECURITIES SHALL
HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THE TRANSACTION DOCUMENTS AND ALL
RIGHTS AND REMEDIES WHICH SUCH HOLDERS HAVE BEEN GRANTED AT ANY TIME UNDER ANY
OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS WHICH SUCH HOLDERS HAVE UNDER
ANY LAW.
ANY PERSON HAVING ANY RIGHTS UNDER ANY PROVISION OF THIS AGREEMENT
SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS SPECIFICALLY (WITHOUT POSTING A BOND OR
OTHER SECURITY), TO RECOVER DAMAGES BY REASON OF ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT AND TO EXERCISE ALL OTHER RIGHTS GRANTED BY LAW.
FURTHERMORE,
THE COMPANY RECOGNIZES THAT IN THE EVENT THAT IT FAILS TO PERFORM, OBSERVE, OR
DISCHARGE ANY OR ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT, ANY REMEDY AT LAW
MAY PROVE TO BE INADEQUATE RELIEF TO THE INVESTOR.
THE COMPANY THEREFORE AGREES
THAT THE INVESTOR SHALL BE ENTITLED TO SEEK TEMPORARY AND PERMANENT INJUNCTIVE
RELIEF IN ANY SUCH CASE WITHOUT THE NECESSITY OF PROVING ACTUAL DAMAGES AND
WITHOUT POSTING A BOND OR OTHER SECURITY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Investor and the Company have caused this Conversion and
Amendment Agreement to be duly executed as of the date first written above.
COMPANY:
INVESTOR:
SUPERGEN, INC.
By:
Name:
Joseph Rubinfeld
Title:
President/Chief Executive Officer
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EXHIBITS
Exhibit A
Form of Amended and Restated Note
Exhibit B
Opinion of Wilson Sonsini Goodrich & Rosati, PC
Exhibit C
Form of Officer's Certificate
11