SUBCONTRACTORS' NEGLIGENCE, RECKLESSNESS OR
INTENTIONAL WRONGDOING, IN WHICH CASE *** WILL BE RESPONSIBLE FOR SUCH PRODUCT
LIABILITY CLAIMS.
10.5
RESPONSIBILITY FOR EXPENSES OF RECALL.
IF ANY
GOVERNMENTAL AUTHORITY WITHDRAWS ITS APPROVAL TO SELL THE PRODUCT OR ISSUES A
DIRECTIVE OR REQUEST THAT ALL OR SPECIFIED QUANTITIES
13
OF THE PRODUCT BE RECALLED FOR PRODUCT SAFETY REASONS OR SUPERGEN REASONABLY
DETERMINES THAT ALL OR SPECIFIED QUANTITIES OF THE PRODUCT SHOULD BE RECALLED,
THEN SUPERGEN WILL PAY ALL COSTS, INCLUDING ***'S REASONABLE OUT-OF-POCKET
EXPENSES, ASSOCIATED WITH THE RECALL, EXCEPT TO THE EXTENT SUCH RECALL IS
ATTRIBUTABLE SOLELY TO ***'S OR ANY OF ITS SUBCONTRACTORS' NEGLIGENCE,
RECKLESSNESS OR INTENTIONAL WRONGDOING, IN WHICH CASE:
10.5.1
*** WILL BE RESPONSIBLE FOR ALL SUCH COSTS,
10.5.2
SUPERGEN WILL HAVE THE RIGHT TO CANCEL ANY PRODUCT PURCHASE
ORDERS ALREADY SUBMITTED, AND
10.5.3
SUPERGEN WILL HAVE NO OBLIGATIONS OR LIABILITIES WITH
RESPECT TO ANY PRODUCT NOT YET SHIPPED TO SUPERGEN OR FOR ANY MATERIALS USED OR
ORDERED IN ANTICIPATION OF FULFILLING ANY SUCH PRODUCT PURCHASE ORDERS.
10.6
DEFINITION OF RECALL.
FOR PURPOSES OF THIS
ARTICLE 10, THE TERM "RECALL" MEANS ANY ACTION BY SUPERGEN, OR ANY AFFILIATE OR
SUBSIDIARY OF SUPERGEN, TO RECOVER TITLE TO OR POSSESSION OF PRODUCT SOLD OR
SHIPPED TO THIRD PARTIES.
ARTICLE 11 - PUBLICITY AND CONFIDENTIALITY
11.1
PUBLICITY.
EXCEPT AS REQUIRED BY LAW OR THE
STANDARDS OF ANY SECURITIES REGULATORY AUTHORITY, INCLUDING, WITHOUT LIMITATION,
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, NYSE AND NASDAQ, NEITHER
*** NOR SUPERGEN WILL MAKE ANY OFFICIAL PRESS RELEASE, ANNOUNCEMENT OR OTHER
FORMAL PUBLICITY RELATING TO THE TERMS OF THIS AGREEMENT OR TRANSACTIONS THAT
ARE THE SUBJECT OF THIS AGREEMENT WITHOUT FIRST OBTAINING IN EACH CASE THE PRIOR
WRITTEN CONSENT OF SUPERGEN OR ***, RESPECTIVELY (WHICH CONSENT MAY NOT BE
UNREASONABLY WITHHELD).
IF EITHER PARTY IS REQUIRED TO FILE THIS AGREEMENT WITH
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR ANOTHER APPLICABLE
SECURITIES REGULATORY AUTHORITY, THEN THAT PARTY WILL SEEK CONFIDENTIAL
TREATMENT FOR ANY PROVISIONS OF THIS AGREEMENT THAT EITHER PARTY BELIEVES WOULD
DISCLOSE TRADE SECRETS, CONFIDENTIAL COMMERCIAL OR FINANCIAL INFORMATION AND
THEREBY IMPAIR THE VALUE OF THE CONTRACTUAL RIGHTS REPRESENTED BY THIS AGREEMENT
OR PROVIDE DETAILED COMMERCIAL AND FINANCIAL INFORMATION TO COMPETITORS OR OTHER
PERSONS.
EXCEPT AS REQUIRED BY LAW OR THE STANDARDS OF ANY SECURITIES
REGULATORY AUTHORITY, *** AND SUPERGEN MAY NOT USE THE NAME OR TRADEMARKS OF
SUPERGEN OR ***, RESPECTIVELY, OR ANY DIRECTOR, OFFICER OR EMPLOYEE THEREOF OR
ANY ADAPTATION THEREOF WITHOUT THE PRIOR WRITTEN APPROVAL OF SUPERGEN OR ***,
RESPECTIVELY.
11.2
PUBLICATIONS.
*** WILL SEND TO SUPERGEN FOR ITS
APPROVAL, AT LEAST SIXTY (60) DAYS BEFORE IT IS FILED OR SUBMITTED, ANY
PUBLICATION OR ABSTRACT RESULTING FROM THIS AGREEMENT.
THE AUTHORSHIP ON ANY
PUBLICATION OR ABSTRACT SHALL BE DETERMINED BY AGREEMENT OF THE PARTIES OR AS
DEEMED SCIENTIFICALLY APPROPRIATE.
ANY PUBLICATION RESULTING FROM THIS
AGREEMENT WILL BE DELAYED OR PROHIBITED IF, IN EITHER PARTY'S REASONABLE
OPINION, DELAY OR PROHIBITION IS REQUIRED IN ORDER TO FILE OR PROCURE PATENT
APPLICATION OR RIGHTS PROTECTION