SciClone Pharmaceuticals (SCLN)

5 REPRESENTATIONS AND WARRANTIES

Borrowers jointly and severally represent and warrant as follows:

5.1 Due Organization, Authorization; Power and Authority. Each Borrower is duly existing and in good standing in its jurisdiction of formation and is qualified and licensed to do business and is in good standing in any jurisdiction in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. In connection with this Agreement, Borrowers have delivered to Bank completed certificates signed by each Borrower and Guarantor, each entitled “Perfection Certificate.” Borrowers represent and warrant to Bank that, except as Borrowers may hereafter disclose to Bank pursuant to Section 7.2, (a) each Borrower’s exact legal name is indicated on the applicable Perfection Certificate and on the signature page hereof; (b) each Borrower is an organization of the type and is organized in the jurisdiction set forth in the applicable Perfection Certificate; (c) each Perfection Certificate accurately sets forth the applicable Borrower’s organizational identification number or accurately states that such Borrower has none; (d) each Perfection Certificate accurately sets forth the applicable Borrower’s place of business, or, if more than one, its chief executive office as well as such Borrower’s mailing address (if different than its chief executive office); (e) no Borrower (nor any predecessors of any Borrower) has, in the past 5 years, changed its jurisdiction of formation, organizational structure or type, or any organizational number assigned by its jurisdiction; and (f) all other information set forth on the Perfection Certificates pertaining to any Borrower and their Subsidiaries is accurate and complete (it being understood and agreed that Borrowers may from time to time update certain information in the Perfection Certificates after the Effective Date to the extent permitted by one or more specific provisions in this Agreement). If a Borrower is not now a Registered Organization but later becomes one, Borrowers shall promptly notify Bank of such occurrence and provide Bank with such Borrower’s organizational identification number.

The execution, delivery and performance by each Borrower of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with any of such Borrower’s organizational documents, (ii) contravene, conflict with, constitute a default under or violate any material Requirement of Law, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which any Borrower or any of Borrowers’ Subsidiaries or any of their property or assets may be bound or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect) or (v) constitute an event of default under any material agreement by which any Borrower is bound. Neither Borrower is in default under any agreement to which it is a party or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change.

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5.2 Collateral. Borrowers have good title to, have rights in, and the power to transfer each item of the Collateral upon which they purport to grant a Lien hereunder, free and clear of any and all Liens except Permitted Liens. Borrowers have no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrowers have given Bank written notice and taken such actions as are necessary to give Bank a perfected security interest therein, and the Excluded Collateral Accounts. The Collateral is not in the possession of any third party bailee (such as a warehouse), except as otherwise provided in the Perfection Certificate and fully insured goods in transit in the ordinary course of business. Except as hereafter disclosed to Bank in writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than (a) as provided in the Perfection Certificate, (b) fully insured components of the Collateral that may be located in transit between Borrower’s locations in Belgium, Italy and Hong Kong or (c) the following locations at which no more than $100,000 in the aggregate of Collateral may be located at any time: (i) mobile equipment, including computers with employees and consultants at various locations, (ii) Collateral at locations Bank has been notified of pursuant to Section 7.2, (iii) Collateral at temporary locations for sales, testing or demonstration purposes and (iv) other locations. In the event that Borrowers, after the date hereof, intend to store or otherwise deliver any portion of the Collateral to a bailee, then Borrowers will first receive the written consent of Bank and such bailee must acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank. The foregoing requirement for a written acknowledgement shall not apply with respect to any bailee that (i) does not have an established course of business with any Borrower and (ii) holds Collateral solely as part of a “start-up” testing regimen to establish such bailee as a regular part of the Borrower’s supply chain, provided that the exception to the written acknowledgement requirement contained in this sentence shall only apply until such bailee has entered into a formal agreement with one or more of the Borrowers. The Accounts are bona fide, existing obligations of the Account Debtors. Except for Inventory with an aggregate value, at any time, of not more than $200,000, all Inventory is in all material respects of good and marketable quality, free from material defects. Borrowers are the sole legal and beneficial owners of their Intellectual Property, except for (a) non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business, (b) exclusive licenses of Intellectual Property that could not result in a legal transfer of title of the licensed property that are exclusive only in respects other than territory or exclusive as to territory only as to discreet geographical areas outside of the United States or (c) other non-exclusive licenses of Intellectual Property that could not result in a legal transfer of title of the licensed property. Each patent that is material to Borrowers’ business is valid and enforceable and no part of the Intellectual Property that is material to Borrowers’ business has been judged invalid or unenforceable, in whole or in part, and to the best of Borrowers knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party.

REPRESENTATIONS AND WARRANTIES

Section 6.1 Existence and Power.

Each Party hereby represents and warrants to the other Party that, such Party (a) is duly organized, validly existing and in good standing under the laws of the state in which it is organized; (b) has the power and authority and the legal right to own and operate its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is now being conducted; and (c) is in compliance with all requirements of applicable law, except to the extent that any noncompliance would not materially adversely affect such Party’s ability to perform its obligations under this Agreement.

Section 6.2 Authorization and Enforcement of Obligations.

Each Party hereby represents and warrants to the other Party that such Party (a) has the-power and authority and the legal right to enter into this Agreement and to perform its obligation hereunder (b) has taken all necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder. This Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms.

Section 6.3 No Consents.

Each Party hereby represents and warrants to the other Party that all necessary consents, approvals and authorizations of all governmental authorities and other persons required to be obtained by such Party in connection with this Agreement have been obtained.

Section 6.4 No Conflict.

Each Party hereby represents and warrants to the other Party that the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of applicable laws or regulations or any material contractual obligations of such Party and (b) do not materially conflict with, or constitute a material default or require any consent under any material contractual obligation of such Party. Manufacturer shall not in any event enter into any agreement or arrangement with any other Party that would prevent or in any way interfere with Manufacturer’s obligations pursuant to this Agreement.

Section 6.5 Manufacturer’s Warranty.

(a) Manufacturer warrants that (i) it currently has access to, and during the entire term of this Agreement will make all reasonable efforts to ensure that it will continue to have access to, sufficient personnel, supply of Raw Materials, utilities, packaging materials, and all other required items to perform the services required of it hereunder without interruption, subject only to the occurrence of any events covered by the provisions of Section 13.7 and Manufacturer’s failure to perform.

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*** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH MOUNTS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED AS [****]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

(b) Manufacturer warrants that Bulk Drug Substance delivered hereunder will (i) be manufactured by Manufacturer in accordance with all applicable rules and regulations and cGMP, (ii) be manufactured in accordance with the agreed-upon manufacturing procedures and (iii) conform to the applicable Specifications set forth on Exhibit C hereto at the time of delivery. Customer’s remedies and Manufacturer’s liability with respect to this warranty are set forth below.

(c) This warranty does not extend to any Bulk Drug Substance which has already been treated, used, misused or improperly stored.

Section 6.6 Customer’s Warranty.

(a) Customer has and shall at all times throughout the term of this Agreement have the right to supply the process to Manufacturer and the necessary rights to licence or permit Manufacturer to use the same for the purpose hereunder;

(b) Customer represents and warrants that TA-1 (excluding and independent of the manufacture) does not infringe the intellectual property rights of any third party and that it shall notify Manufacturer in writing immediately should it become aware of any claims asserting such infringement.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

REPRESENTATIONS AND WARRANTIES

SECTION 7.1 Mutual Representations. SciClone and RESprotect each represent and warrant to the other on the 2007 Effective Date as follows:

(a) Organization. It is a corporation duly organized, validly existing and, as for SciClone, in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority, corporate or otherwise, to execute, deliver and perform this Agreement.

(b) Authorization. The execution, delivery and performance by it of this Agreement has been duly authorized by all necessary corporate action and does not violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter documents or any agreement or other instrument or obligation to which it is bound or its assets are subject.

(c) Binding Agreement. This Agreement is a legal, valid and binding obligation of it enforceable against it in accordance with its terms and conditions.

(d) No Inconsistent Obligation. It is not under any obligation to any person, or entity, contractual or otherwise, that is conflicting or inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder.

SECTION 7.2 Representation of RESprotect regarding Title to Licensed Product; Mutual Representation regarding Performance.

(a) RESprotect is the sole owner of the RESprotect Patent Rights and RESprotect Know-how, free and clear of all liens, charges, encumbrances of Third Parties and RESprotect owns the exclusive, worldwide, royalty free, sublicensable, transferable right to use the Licensed Product under the RESprotect Patent Rights and RESprotect Know-how. To RESprotect’s knowledge the patentability or validity of the RESprotect Patent Rights have not been contested or threatened to be contested by any Third Party and to RESprotect’s knowledge, there is no legitimate basis for such a claim. No infringement proceedings have been initiated against Third Parties on the basis of the RESprotect Patent Rights. All patent applications which relate to the RESprotect Patent Rights have been filed in accordance with the applicable formal requirements and none of such patent applications, or patents which cover the RESprotect Patent Rights have lapsed by reason of abandonment or non-payment of any fees. RESprotect has paid all maintenance fees, which are due and payable with respect to the RESprotect Patent Rights through the date of signing of this Agreement. All patent applications, which relate to the RESprotect Patent Rights have been filed within the applicable period for claiming priority. To RESprotect’s knowledge, RESprotect’s ownership of the RESprotect Patent Rights or its rights therein have not been contested or threatened to be contested by any Third Party. For the sake of clarification, RESprotect does not warrant that the RESprotect Patent Rights are free from rights of Third Parties. However, to RESprotect’s knowledge, no Third Party has asserted or threatened to assert any rights in or to the RESprotect Patent Rights.

(b) To RESprotect’s knowledge, no other person or product infringes upon the Licensed Product in the Territory.

(c) RESprotect and SciClone are not in default (nor has there transpired an event which with notice or the lapse of time or both would be a default) under any court order, agreement, document, instrument, indenture or other obligation of RESprotect or SciClone, respectively, which affects or could affect the use of the Licensed Product in the Territory or the performance of the respective party under this Agreement.

(d) To RESprotect’s knowledge, there are no royalties, honoraria, fees or other payments payable by RESprotect to any person by reason of RESprotect’s ownership in the RESprotect Patent Rights except for deferred payment obligations which arose in connection with (i) the acquisition of the RESprotect Patent Rights, US patent 6,589,941, from the Fraunhofer-Gesellschaft in the year 2000, (ii) the subsidising of RESprotect by the Saechsische AufbauBank (“SAB”) and (iii) the employee invention compensation obligation of RESprotect relating to the RESprotect Patent Rights, for all (i) to (iii) of which RESprotect shall have sole responsibility for timely payment.

(e) RESprotect has not granted any right to a Third Party to use the Licensed Product under the RESprotect Patent Rights in the Territory.

(f) None of RESprotect’s officers, directors, employees, consultants, agents or representatives have any ownership or other similar rights in or to the Licensed Product in the Territory.

SECTION 7.3 Knowledge. “Knowledge” or “known” shall mean, with respect to any representation or warranty or other statement in this Agreement qualified by positive knowledge of RESprotect, the actual knowledge of Professor Fahrig.