OR ITS SUCCESSORS OR ASSIGNS SHALL BE BROUGHT AND DETERMINED IN THE
CHANCERY OR OTHER COURTS OF THE STATE OF DELAWARE, AND EACH OF PARTIES HEREBY
IRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH ACTION OR PROCEEDING FOR ITSELF AND
IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, TO THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS.
4.11
WAIVER OF JURY TRIAL.
THE INVESTOR AND THE COMPANY EACH HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF INVESTOR AND THE COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
4.12
OTHER REMEDIES.
EXCEPT AS OTHERWISE PROVIDED HEREIN, ANY AND ALL
REMEDIES HEREIN EXPRESSLY CONFERRED UPON A PARTY WILL BE DEEMED CUMULATIVE WITH
AND NOT EXCLUSIVE OF ANY OTHER REMEDY CONFERRED HEREBY, OR BY LAW OR EQUITY UPON
SUCH PARTY, AND THE EXERCISE BY A PARTY OF ANY ONE REMEDY WILL NOT PRECLUDE THE
EXERCISE OF ANY OTHER REMEDY.
4.13
INJUNCTIVE RELIEF.
THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT, AND OF
THE OTHER STOCK AGREEMENTS, WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC
TERMS OR WERE OTHERWISE BREACHED.
THE PARTIES ACCORDINGLY AGREE THAT INJUNCTIVE
RELIEF ENFORCING THE TERMS OF THIS AGREEMENT AND THE OTHER STOCK AGREEMENTS IS
APPROPRIATE.
[Signature Page Follows]
The foregoing Agreement is hereby executed as of the date first above written.
SUPERGEN, INC.
By:
/s/ JAMES S.J. MANUSO
Name:
James S.J. Manuso
Title:
Chairman, President & CEO
MGI PHARMA, INC.
By:
/s/ LEON O. MOULDER JR.
Name:
Leon O. Moulder Jr.
Title:
President & CEO
[Signature Page to Investor Rights Agreement]
Exhibit A
Certificate of Subsequent Sale
Mellon Investor Services
Attn.: Sharon Magidson
235 Montgomery Street, 23rd Floor
San Francisco, CA 94104
RE:
Sale of Shares of Common Stock of SuperGen,
Inc. (the "Company") pursuant to the Company's Prospectus dated [date of
Prospectus], 200
(the "Prospectus")
Dear Ms. Magidson:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the Shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Stockholder (the beneficial
owner):
Record Holder (e.g., if held in name of
nominee):
Restricted Stock Certificate
No.(s):
Number of Shares
Sold:
Date of
Sale:
In the event that you receive a stock certificate(s) representing more shares of
Common Stock than have been sold by the undersigned, you should return to the
undersigned a newly issued certificate for such excess shares in the name of the
Record Holder and BEARING A RESTRICTIVE LEGEND.
Further, you should place a
stop transfer on your records with