EXPRESSLY SET FORTH IN THIS AGREEMENT, THE ACQUIRED ASSETS ASSIGNED BY
VALENTIS PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY,
EXPRESS, IMPLIED OR STATUTORY AND VALENTIS EXPRESSLY DISCLAIMS ANY WARRANTY OF
NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH
RESPECT TO ANY ACQUIRED ASSET ASSIGNED OR DELIVERED PURSUANT TO THIS AGREEMENT.
THIS DISCLAIMER IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN VALENTIS AND
MEDAREX.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF MEDAREX
Medarex represents and warrants to Valentis as follows:
SECTION 3.01
ORGANIZATION MEDAREX IS DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF NEW JERSEY.
MEDAREX HAS ALL
REQUISITE CORPORATE POWER
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AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ALL OF ITS
OBLIGATIONS HEREUNDER.
Section 3.02
Authority; Execution and Delivery; Enforceability
The
execution and delivery of this Agreement and the performance by Medarex of its
obligations hereunder have been authorized by all requisite corporate action on
the part of Medarex.
This Agreement has been validly executed and delivered by
Medarex.
Assuming that this Agreement has been duly authorized, executed and
delivered by Valentis, this Agreement constitutes a valid and binding obligation
of Medarex, enforceable against Medarex in accordance with its terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency, moratorium,
reorganization or other laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and general principles of equity;
and (b) law limiting the availability of specific performance, injunctive relief
or other equitable remedies.
(A)
NONE OF THE FOLLOWING: EXECUTION AND DELIVERY OF THIS AGREEMENT BY
MEDAREX, THE PERFORMANCE BY MEDAREX OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR
THE CONSUMMATION OF THE ACQUISITION:
(I)
VIOLATES THE CERTIFICATE OF INCORPORATION, BY-LAWS OR OTHER
ORGANIZATIONAL DOCUMENTS OF MEDAREX ;
(II)
CONFLICTS IN ANY RESPECT WITH OR RESULTS IN A VIOLATION OR BREACH
OF, OR CONSTITUTES A DEFAULT UNDER, ANY MATERIAL CONTRACT, AGREEMENT OR
INSTRUMENT TO WHICH MEDAREX IS A PARTY OR BY WHICH MEDAREX IS BOUND;
(III)
CONFLICTS OR VIOLATES WITH ANY EXISTING LAW APPLICABLE TO
MEDAREX;
OR
(IV)
MATERIALLY IMPAIRS MEDAREX'S ABILITY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY OR MATERIALLY DELAYS THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
(B)
NO FILING WITH, AND NO PERMIT, AUTHORIZATION, CONSENT OR APPROVAL
OF, ANY GOVERNMENTAL ENTITY IS NECESSARY FOR THE CONSUMMATION BY MEDAREX OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 3.03
BROKERS OR FINDERS NEITHER MEDAREX NOR ITS AFFILIATES HAVE
RETAINED ANY AGENT, BROKER, INVESTMENT BANKER, FINANCIAL ADVISOR OR OTHER FIRM
OR PERSON THAT IS OR WILL BE ENTITLED TO ANY BROKERS' OR FINDER'S FEE OR ANY
OTHER COMMISSION OR SIMILAR FEE IN CONNECTION WITH ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND THERE ARE NO CLAIMS FOR ANY OF THE
FOREGOING.
SECTION 3.04
NO PROCEEDINGS THERE IS NO PROCEEDINGS PENDING OR, TO THE
KNOWLEDGE OF MEDAREX, THREATENED AGAINST MEDAREX WHICH WOULD REASONABLY BE
EXPECTED TO AFFECT MEDAREX'S ABILITY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
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ARTICLE IV.