Common use of REPRESENTATIONS AND WARRANTIES OF PFIZER Clause in Contracts

REPRESENTATIONS AND WARRANTIES OF PFIZER. Pfizer hereby represents and warrants to SuperGen and its Affiliate(s) as of the Closing Date as follows: (a) The Asset Selling Corporations are indirect, wholly-owned subsidiaries of Pfizer, and Pfizer has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including without limitation to cause the Asset Selling Corporations to fulfill the obligations set forth in Article 2. The execution, delivery and performance of this Agreement and any transactions contemplated hereunder have been duly authorized by all necessary corporate action by Pfizer and no further authorizations or actions are required. This Agreement will, after being duly executed and delivered by Pfizer, constitute the valid and binding obligation of Pfizer, enforceable in accordance with its terms. (b) The execution, delivery and performance of this Agreement and any transactions contemplated hereunder will not conflict with, or result in any violation of or default under, or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (any such event, a "Conflict") (i) any provision of the charter documents or bylaws of Pfizer, (ii) any contract to which Pfizer is a party or by which its assets are or have been bound, including the Distribution Agreement; and (iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Pfizer or any of the Assets. (c) Pfizer is conducting its business and operations as it relates to the Assets and Distribution Agreement in compliance in all material respects with all governmental laws, rules and regulations applicable thereto and to the best of Pfizer's Knowledge is not in violation or default in any material respect under any statute, regulation, order, decree or governmental authorization applicable to it or any of its properties or business as presently conducted or proposed to be conducted as it relates to the Assets or the Distribution Agreement. Pfizer is not subject to any order or consent decree of any court or administrative body that relates specifically to the Assets. (d) Pfizer and the Asset Selling Corporations have full right, title and interest to, and as of the Closing Date will sell, convey, transfer, assign and deliver to SuperGen or its designated Affiliate(s) good title to all Assets. The Assets and the Distribution Agreement are free and clear of any material claim, liability, security interest or encumbrance of any party, and, except with respect to renewals of each of the Marketing Approvals as set forth in Schedule 1.13, for which Pfizer has agreed to provide assistance to SuperGen, and renewals of each the Trademarks as set forth in Schedule 1.24, there are no actions that must be taken within ninety (90) days after the Closing Date (including the payment of any fees or the filing of any report) for the purposes of obtaining, maintaining, perfecting, or preserving any Marketing Approval. Schedule 1.13 represents a full and complete list of all Marketing Approvals for the Product for countries outside of the Prior Territory, and Schedule 1.24 represents a full and complete list of all Trademarks for countries outside of the Prior Territory. There are no material problems or defects in any of the Marketing Approvals in countries set forth in Schedule 1.13 that would adversely affect such Marketing Approvals or SuperGen's ability to manufacture, market and sell Products after the Closing Date or, as a direct result of such defects, would render the Products unmarketable for the purposes for which they were intended. To Pfizer's Knowledge, there is no infringement by any third party of its title to the Assets. (e) There are no adverse third party actions or claims pending against Pfizer in any court or by or before any Governmental Authority with respect to the Assets or the Distribution Agreement. There are no other actions, suits, proceedings, claims or investigations pending against Pfizer, nor has Pfizer received notice of any of the foregoing, with respect to the transactions contemplated and hereby which, if adversely determined, would prevent Pfizer from consummating the transactions contemplated hereby. (f) Pfizer has provided to SuperGen a true, correct and complete copy of the Distribution Agreement, and the Distribution Agreement is valid, legally binding, enforceable, and in full force and effect, and will continue to be in full force and effect following assignment thereof to SuperGen or its designated Affiliate(s) hereunder. To the Knowledge of Pfizer: (i) Pfizer is not in breach or default under the Distribution Agreement, (ii) Wyeth is not in breach or default thereof, and (iii) there is no dispute or threatened dispute regarding the scope of the Distribution Agreement or performance under such agreement. (g) Except for the Distribution Agreement, there are no outstanding material contracts, leases, instruments, obligations, commitments, understandings and agreements, whether written or oral, to which Pfizer is a party and to which the Assets will be subject after the Closing Date. Pfizer has no material agreement with any third party that will obligate SuperGen or its Affiliate(s) to make any payments to such third parties with respect to any of the Assets. (h) None of the representations or warranties made by Pfizer in this Agreement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which made, not misleading.