ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
16.2.4
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.
16.2.5
INJUNCTIVE RELIEF. BECAUSE OF, AMONG OTHER THINGS, THE UNIQUE NATURE OF
THE LICENSED PATENTS, DECITABINE IMPROVEMENTS AND LICENSED KNOW-HOW WHICH ARE
THE SUBJECT OF THIS AGREEMENT, THE POTENTIAL THAT LOST OPPORTUNITY COSTS WILL
NOT BE QUANTIFIABLE, AND THE FACT THAT TIME IS OF THE ESSENCE TO THE ADEQUATE
DEVELOPMENT AND MARKETING OF THE LICENSED PRODUCTS RELATING TO THE LICENSED
PATENTS, DECITABINE IMPROVEMENTS AND LICENSED KNOW-HOW, THE PARTIES HERETO AGREE
THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF
THIS AGREEMENT, 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 IS APPROPRIATE.
16.3
NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. IT IS
AGREED THAT NO WAIVER BY EITHER PARTY HERETO OF ANY BREACH OR DEFAULT OF ANY OF
THE COVENANTS, REPRESENTATIONS, OR WARRANTIES HEREIN SET
43
forth shall be effective unless in a writing signed by such Party, and no such
written waiver shall be deemed a waiver as to any subsequent and/or similar
breach or default.
16.4
INDEPENDENT CONTRACTORS. THE RELATIONSHIP OF MGI
AND SUPERGEN ESTABLISHED BY THIS AGREEMENT IS THAT OF INDEPENDENT CONTRACTORS.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO CREATE ANY RELATIONSHIP OTHER
THAN INDEPENDENT CONTRACTORS. NEITHER PARTY SHALL HAVE ANY RIGHT, POWER OR
AUTHORITY TO ASSUME, CREATE OR INCUR ANY EXPENSE, LIABILITY OR OBLIGATION,
EXPRESS OR IMPLIED, ON BEHALF OF THE OTHER.
16.5
NOTICES. ANY NOTICE REQUIRED OR PERMITTED TO BE
GIVEN HEREUNDER SHALL BE IN WRITING AND SHALL BE DELIVERED IN PERSON, BY A
NATIONALLY RECOGNIZED OVERNIGHT COURIER, OR BY FACSIMILE (RECEIPT CONFIRMED,
WITH A CONFIRMATION NOTICE SENT BY ONE OF THE OTHER METHODS SPECIFIED HEREIN),
TO THE ADDRESSES GIVEN BELOW OR SUCH OTHER ADDRESSES AS MAY BE DESIGNATED IN
WRITING BY THE PARTIES FROM TIME TO TIME DURING THE TERM, AND SHALL BE DEEMED TO
HAVE BEEN GIVEN WHEN RECEIVED UNLESS OTHERWISE SPECIFIED HEREIN AS WHEN SENT.
MGI:
MGI PHARMA, INC.
5775 West Old Shakopee Road, Suite 100
Bloomington, MN 55437-3174
Attn: Eric P. Loukas, General Counsel
Fax: 952-406-3281
With a copy to:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Attn: Timothy S. Hearn
Fax: 612-340-8738
SuperGen:
SuperGen, Inc.
4140 Dublin Road, Suite 200
Dublin, CA 94568
Attn: Dr. James S.J. Manuso, President and
Chief Executive Officer
Telephone: (925) 560-0100
Facsimile: (925) 551-5695
With a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
44
Attn: John V. Roos, Esq.
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
Or to such other address (including electronic mail