Common use of SUPERGEN REPRESENTATIONS AND WARRANTIES Clause in Contracts

SUPERGEN REPRESENTATIONS AND WARRANTIES. SuperGen hereby represents and warranties to Xxxxxx as follows: (a) SuperGen is a corporation duly organized and validly existing in good standing under the laws of its state of incorporation, with all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted; (b) SuperGen has all requisite corporate right, power and authority to enter into this Agreement and the other SuperGen-Xxxxxx Agreements and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the other SuperGen-Xxxxxx Agreements by SuperGen and the consummation by SuperGen of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on SuperGen's behalf, including but not limited to approval by the stockholders of SuperGen with respect to the SuperGen-Xxxxxx Agreements. This Agreement and the other SuperGen-Xxxxxx Agreements constitute legal, valid and binding obligations of SuperGen, enforceable against SuperGen in accordance with the terms hereof and thereof, (c) the execution, delivery and performance by SuperGen of this Agreement and each of the other SuperGen-Xxxxxx Agreements and SuperGen's compliance with the terms and provisions hereof and thereof will not result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation pursuant to, or a loss of benefits under, any provision of its Certificate of Incorporation or By-laws, or any mortgage, indenture, lease or other agreement or instrument, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to SuperGen or SuperGen's properties or assets; (d) no consent, approval or authorization of, or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery or performance of this Agreement and the other SuperGen-Xxxxxx Agreements by SuperGen or the consummation by SuperGen of the transactions contemplated hereby or thereby. Upon their execution and delivery, and assuming the valid execution thereof by Xxxxxx, this Agreement and the other SuperGen-Xxxxxx Agreements will constitute valid and binding obligations of SuperGen, enforceable against SuperGen in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except to the extent that the indemnification agreements of in Section 15 hereof may be legally unenforceable;

SUPERGEN REPRESENTATIONS AND WARRANTIES. SuperGen hereby represents and warranties to Xxxxxx as follows: : (a) SuperGen is a corporation duly organized and validly existing in good standing under the laws of its state of incorporation, with all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted; ; (b) SuperGen has all requisite corporate right, power and authority to enter into this Agreement and the other SuperGen-Xxxxxx Agreements and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the other SuperGen-Xxxxxx Agreements by SuperGen and the consummation by SuperGen of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on SuperGen's behalf, including but not limited to approval by the stockholders of SuperGen with respect to the SuperGen-Xxxxxx Agreements. This Agreement and the other SuperGen-Xxxxxx Agreements constitute legal, valid and binding obligations of SuperGen, enforceable against SuperGen in accordance with the terms hereof and thereof, , (c) the execution, delivery and performance by SuperGen of this Agreement and each of the other SuperGen-Xxxxxx Agreements and SuperGen's compliance with the terms and provisions hereof and thereof will not result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation pursuant to, or a loss of benefits under, any provision of its Certificate of Incorporation or By-laws, or any mortgage, indenture, lease or other agreement or instrument, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to SuperGen or SuperGen's properties or assets; ; 44 <PAGE> CONFIDENTIAL TREATMENT REQUESTED (d) no consent, approval or authorization of, or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery or performance of this Agreement and the other SuperGen-Xxxxxx Agreements by SuperGen or the consummation by SuperGen of the transactions contemplated hereby or thereby. Upon their execution and delivery, and assuming the valid execution thereof by Xxxxxx, this Agreement and the other SuperGen-Xxxxxx Agreements will constitute valid and binding obligations of SuperGen, enforceable against SuperGen in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except to the extent that the indemnification agreements of in Section 15 hereof may be legally unenforceable;; (e) to its knowledge and information, as of the Effective Date, there are no patents, trademarks or other proprietary rights which are valid and which would be infringed by making, having made, using, selling, offering for sale or importing the Product in the Territories in accordance with the terms of this Agreement; (f) as of the Effective Date, SuperGen is not aware of any compounds or products, the manufacture, use, importation, selling or offering for sale of which would constitute an infringement by a Third Party of the Product Patents; (g) as of the Effective Date, SuperGen is aware of no pending interference, opposition proceeding, litigation or any communication which threatens an interference or opposition proceeding or litigation before any patent and trademark office, court, or any other competent entity in any jurisdiction in regard to the Product Patents; (h) as of the Effective Date, SuperGen has disclosed to Xxxxxx all protocols, data (including but not limited to preclinical and clinical data), reports, and other information and materials regarding the Compound and the Product; (i) as of the Effective Date, SuperGen has provided to Xxxxxx a complete and accurate copy of each of the SuperGen license agreements with respect to the Product; (j) as of the Effective Date, there are no material facts which SuperGen has not disclosed to Xxxxxx regarding the manufacture, use or sale of any Product or the practice of any inventions included in the Product Patents or the use of the Product Technology by Xxxxxx, including without limitation any material facts regarding the possibility that such manufacture, use, sale or practice might infringe any Third Party's know-how, patent rights or other intellectual property in the Territories; 45 <PAGE> CONFIDENTIAL TREATMENT REQUESTED (k) at no time during the term of this Agreement shall SuperGen enter into any transaction providing for debt financing which by its terms (A) imposes a lien, license, security interest or other encumbrance upon or (B) transfers any of the SuperGen Technology relating to the Compound or the Product; (l) with respect to the Compound, (A) SuperGen has obtained and is in substantial compliance with all applicable regulatory approvals, applications, licenses, requests for exemption, permits or other regulatory authorizations with the FDA, or any state or local regulatory body necessary to conduct its business activities to date; and (B) to the extent the Compound is intended for export from the United States, and to the extent applicable, SuperGen is in compliance in all material respects with either all FDA requirements for marketing or as set forth in 21 U.S.C. Section 38l(e) or 382; (m) to the knowledge and information of SuperGen, all manufacturing operations performed by or on behalf of SuperGen for the Compound and/ or the Product have been and are being conducted in substantial compliance with the current good manufacturing practices issued by the FDA and all other relevant governmental authorities or agencies, to the extent applicable; (n) to the knowledge and information of SuperGen, all nonclinical laboratory studies, as described in 21 C.F.R. Section 58.3(d), sponsored by SuperGen for the Compound and/ or the Product have been and are being conducted in substantial compliance with the good laboratory practice regulations set forth in C.F.R. Part 58 and similar regulations of all other relevant governmental authorities or agencies, to the extent applicable; and (o) Finished Product supplied to Xxxxxx by SuperGen under this Agreement shall conform to the Specifications applicable thereto and shall be manufactured in compliance with applicable cGMPs and other applicable laws and regulations in the Territories, and Compound and Product used in Finished Product supplied to Xxxxxx by SuperGen under this Agreement shall conform to the Specifications applicable thereto and shall be manufactured in compliance with applicable cGMPs and other applicable laws and regulations in the Territories.