HAVE THE FOREGOING RIGHTS WITH RESPECT TO ANY
MATERIALS THAT INCLUDE CONFIDENTIAL INFORMATION OF SUPERGEN. THE CONTRIBUTION OF
EACH PARTY SHALL BE NOTED IN ALL PUBLICATIONS OR PRESENTATIONS BY ACKNOWLEDGMENT
OR COAUTHORSHIP, WHICHEVER IS APPROPRIATE.
12. REPRESENTATIONS AND WARRANTIES
12.1
BY SUPERGEN. SUPERGEN HEREBY REPRESENTS AND
WARRANTS TO MGI AS FOLLOWS:
12.1.1
SUPERGEN HAS BEEN DULY ORGANIZED AND IS VALIDLY EXISTING
AS A CORPORATION IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, WITH
CORPORATE POWER TO CONDUCT ANY LAWFUL BUSINESS ACTIVITY. SUPERGEN HAS THE
CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
12.1.2
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT, AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, BY SUPERGEN HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL REQUISITE
CORPORATE ACTION OF SUPERGEN. THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED BY SUPERGEN AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF
SUPERGEN, ENFORCEABLE AGAINST SUPERGEN IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION
OR OTHER SIMILAR LAWS RELATING TO OR AFFECTING THE RIGHTS OF CREDITORS
GENERALLY, AND BY GENERAL PRINCIPLES OF EQUITY.
12.1.3
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT BY SUPERGEN, AND THE CONSUMMATION BY SUPERGEN OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, DO NOT IN ANY MATERIAL RESPECT (I) CONFLICT WITH
OR RESULT IN ANY BREACH OF ANY OF THE PROVISIONS OF, CONSTITUTE A DEFAULT UNDER,
RESULT IN A VIOLATION OF, GIVE RISE TO ANY RIGHT OF TERMINATION UNDER, OR
REQUIRE ANY AUTHORIZATION, CONSENT (EXCEPT AS MAY HAVE BEEN OBTAINED), APPROVAL,
EXEMPTION OR OTHER ACTION BY OR NOTICE TO ANY COURT OR GOVERNMENTAL BODY, UNDER
THE PROVISIONS OF SUPERGEN'S ARTICLES OF INCORPORATION OR BYLAWS OR ANY
INDENTURE, MORTGAGE, LEASE, LOAN AGREEMENT, LICENSE OR OTHER AGREEMENT OR
INSTRUMENT TO WHICH SUPERGEN IS A PARTY; OR (II) CONFLICT WITH OR RESULT IN THE
VIOLATION OF ANY LAW, STATUTE, RULE OR REGULATION OR ORDER, JUDGMENT OR DECREE
TO WHICH SUPERGEN IS SUBJECT; IN EACH OF (I) AND (II) EXCEPT AS DISCLOSED BY
SUPERGEN TO MGI IN THAT CERTAIN DISCLOSURE LETTER PROVIDED BY SUPERGEN TO MGI OF
EVEN DATE HEREWITH (THE "DISCLOSURE LETTER").
12.1.4
SUPERGEN HAS RECEIVED NO NOTICE FROM ANY OF THIRD PARTY
CONTRACTOR OR LICENSORS (OR THEIR LICENSORS) THAT IT IS IN MATERIAL BREACH OF
ANY OF ITS OBLIGATIONS UNDER THE THIRD PARTY AGREEMENTS, AND IT IS NOT AWARE OF
ANY MATERIAL BREACH OF THE THIRD PARTY AGREEMENTS.
33
12.1.5
IT (I) IS THE OWNER OF THE ENTIRE RIGHT, TITLE AND
INTEREST IN AND TO, OR HAS LICENSED SUFFICIENT RIGHTS TO, THE LICENSED PATENTS
AND THE TRADE SECRETS IN THE LICENSED KNOW-HOW, FREE AND CLEAR OF ANY LIENS OR
ENCUMBRANCES, SUFFICIENT TO GRANT THE LICENSES TO MGI THEREUNDER IN THIS
AGREEMENT AND (II) HAS NOT ASSIGNED AND/OR GRANTED LICENSES TO THE LICENSED
PATENTS OR THE LICENSED KNOW-HOW, OR ENTERED INTO ANY INCONSISTENT PRIOR
OBLIGATIONS, TO ANY OTHER PERSON OR ENTITY THAT CONFLICT WITH