Abraxis BioScience (ABII)

FORCE MAJEURE; SERVICE INTERRUPTION AND RESTORATION

5.1 Force Majeure. No party to this Agreement shall be responsible for failure or delay in delivery of any Service, nor shall any party be responsible for failure or delay in receiving such Service, if caused by an act of God or public enemy, war, government acts or regulations, fire, flood, embargo, quarantine, epidemic, labor stoppages beyond its reasonable control, accident, unusually severe weather or other cause similar or dissimilar to the foregoing beyond their control; provided, that such Service will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.

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5.2 Service Interruption and Restoration. The parties recognize that from time to time disruptions in the Services may occur. If a disruption of any Service occurs, the providing party shall use commercially reasonable efforts to restore such Services consistent with the manner in which Abraxis would have restored such Services prior to the Effective Date (but not including any historical preference or priority given to New Alpha’s products as compared with Gholdco’s products) and consistent with such party’s restoration of such Services for its own business. No party shall be deemed in default of this Agreement to the extent that such disruptions or any delay or failure in the performance of its obligations under this Agreement results from any cause beyond its reasonable control and without its fault or negligence, such as the events and circumstances specified in Section 5.1. In the event of any such excused disruption or delay, (i) the non-performing party promptly shall advise the other party in writing of the circumstances causing the disruption or delay, (ii) the non-performing party shall use commercially reasonable efforts, consistent with the manner in which Abraxis would have overcome such circumstances prior to the Effective Date (but not including any historical preference or priority given to New Alpha’s products as compared with Gholdco’s products) and resume performance as promptly as commercially practicable and (iii) the time for performance shall be extended for a period equal to the time lost by reason of the delay. In the event the providing party is excused from supplying any Service in accordance with the terms of this paragraph, the receiving party shall be free to acquire such Services from any substitute source, at the receiving party’s expense, and with a reduction in any amounts otherwise due hereunder to the providing party for the Service being so substituted but without further liability to the providing party, for the period (and, to the extent the receiving party acts reasonably under the circumstances in making such commitments and it was necessary to make such commitments, a period thereafter necessary to honor reasonable commitments beyond the expiration of any disruption or delay) and to the extent reasonably necessitated by such non-performance.

5.3 Pro-Ration of Limited Resources for Services. If at any time the resources available to provide a particular Service or Services are less than the aggregate demand of both parties for such Service or Services, the providing party shall allocate whatever resources and or products that are available to it necessary for the performance of such Service or Services in good faith equitably between the providing party for its own account and the receiving party for the performance of the Service hereunder.

ARTICLE VI