CERTIFIED MAIL OR OVERNIGHT EXPRESS DELIVERY SERVICE AT THE ADDRESS OF EACH
PARTY SET FORTH BELOW, OR TO SUCH OTHER ADDRESS AS EITHER PARTY MAY INDICATE ON
ITS BEHALF BY WRITTEN NOTICE.
If to SuperGen:
SuperGen, Inc.
4140 Dublin Blvd, Suite 200
Dublin, California 94568
Attention:
Joseph Rubinfeld, Ph.D., President & CEO
With a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Rd.
Palo Alto, CA 94304
Attn: John Roos
If to Licensor:
Peregrine Pharmaceuticals, Inc.
14282 Franklin Ave.
Tustin, CA 92780-7017
Attn:
President & CEO
Notice shall be deemed served when delivered or, if delivery is not accomplished
by reason or some fault of the addressee, when tendered.
10.6
FORCE MAJEURE.
NEITHER PARTY SHALL LOSE ANY RIGHTS HEREUNDER OR BE
LIABLE TO THE OTHER PARTY FOR DAMAGES OR LOSSES (EXCEPT FOR PAYMENT OBLIGATIONS)
ON ACCOUNT OF FAILURE OF PERFORMANCE BY THE DEFAULTING PARTY IF THE FAILURE IS
OCCASIONED BY WAR, STRIKE, FIRE, ACT OF GOD, EARTHQUAKE, FLOOD, LOCKOUT,
EMBARGO, GOVERNMENTAL ACTS OR ORDERS OR RESTRICTIONS, FAILURE OF SUPPLIERS, OR
ANY OTHER REASON WHERE FAILURE TO PERFORM IS BEYOND THE REASONABLE CONTROL AND
NOT CAUSED BY THE NEGLIGENCE, INTENTIONAL CONDUCT OR MISCONDUCT OF THE
NON-PERFORMING PARTY AND THE NON-PERFORMING PARTY HAS EXERTED ALL REASONABLE
EFFORTS TO AVOID OR REMEDY SUCH FORCE MAJEURE; PROVIDED, HOWEVER, THAT IN NO
EVENT SHALL A PARTY BE REQUIRED TO SETTLE ANY LABOR DISPUTE OR DISTURBANCE.
10.7
COMPLIANCE WITH LAWS.
EACH PARTY SHALL FURNISH TO THE OTHER PARTY
ANY INFORMATION RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT REQUESTED OR
REQUIRED BY THAT PARTY DURING THE TERM OF THIS AGREEMENT OR ANY EXTENSIONS
HEREOF TO ENABLE THAT PARTY TO COMPLY WITH THE REQUIREMENTS OF ANY U.S. OR
FOREIGN FEDERAL, STATE AND/OR GOVERNMENT AGENCY.
10.8
LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES
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ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY
THEORY OF LIABILITY.
10.9
FURTHER ASSURANCES.
AT ANY TIME OR FROM TIME TO TIME ON AND AFTER
THE DATE OF THIS AGREEMENT, LICENSOR SHALL AT THE WRITTEN REQUEST OF SUPERGEN
(I) DELIVER TO SUPERGEN SUCH RECORDS, DATA OR OTHER DOCUMENTS CONSISTENT WITH
THE PROVISIONS OF THIS AGREEMENT, (II) EXECUTE, AND DELIVER OR CAUSE TO BE
DELIVERED, ALL SUCH CONSENTS, DOCUMENTS OR FURTHER INSTRUMENTS OF TRANSFER OR
LICENSE, AND (III) TAKE OR CAUSE TO BE TAKEN ALL SUCH ACTIONS, AS SUPERGEN MAY
REASONABLY DEEM NECESSARY OR DESIRABLE IN ORDER FOR SUPERGEN TO OBTAIN THE FULL
BENEFITS OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
10.10
SEVERABILITY.
IN THE EVENT THAT ANY PROVISIONS OF THIS AGREEMENT
ARE DETERMINED TO BE INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THE REMAINDER OF THE AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT WITHOUT SAID PROVISION.
THE PARTIES SHALL IN GOOD FAITH NEGOTIATE A
SUBSTITUTE CLAUSE FOR ANY PROVISION DECLARED INVALID OR UNENFORCEABLE, WHICH
SHALL MOST NEARLY APPROXIMATE THE INTENT OF THE PARTIES IN ENTERING THIS
AGREEMENT.
10.11
WAIVER.
THE FAILURE