HOLDINGS THAT SUCH ISIS COMMON
STOCK HAS BEEN APPROVED FOR LISTING ON THE NASDAQ NATIONAL MARKET OR SUCH OTHER
NATIONAL MARKET ON WHICH THE ISIS COMMON STOCK IS THEN LISTED, AND (B) ISIS
SHALL DELIVER TO HOLDINGS ON OR BEFORE THE PURCHASE OPTION CLOSING DATE, A LEGAL
OPINION FROM ISIS' GENERAL COUNSEL, OR SUCH OTHER COUNSEL AS ISIS AND HOLDINGS
SHALL MUTUALLY AGREE, WHICH OPINION SHALL BE, IN FORM AND SUBSTANCE, REASONABLY
ACCEPTABLE TO HOLDINGS AND SHALL
8
CONTAIN, WITH RESPECT TO THE ISIS COMMON STOCK TO BE USED AS PARTIAL PAYMENT OF
THE PURCHASE PRICE, SUBSTANTIALLY THE SAME OPINIONS RENDERED BY ISIS' GENERAL
COUNSEL IN PARAGRAPHS 4, 5 AND 8 OF THE OPINION DELIVERED TO HOLDINGS ON THE
CLOSING DATE, ALONG WITH CUSTOMARY ASSUMPTIONS AND LIMITATIONS.
(II)
IF ISIS ELECTS TO SATISFY ANY PORTION OF THE PURCHASE PRICE IN
ISIS COMMON STOCK, ISIS SHALL CONVEY GOOD AND MARKETABLE TITLE TO SUCH ISIS
COMMON STOCK, FREE FROM ANY ENCUMBRANCES AND ANY AND ALL OTHER RESTRICTIONS THAT
ANY ISSUANCE, SALE, ASSIGNMENT OR OTHER TRANSFER OF SUCH ISIS COMMON STOCK BE
CONSENTED TO OR APPROVED BY ANY PERSON.
(III)
UPON THE EXPIRATION OF THE PURCHASE OPTION OR THE TERMINATION OF
THIS AGREEMENT PURSUANT TO SECTION 9 HEREOF, OR AS SOON THEREAFTER AS IS
PRACTICAL, ISIS SHALL (A)
IN ACCORDANCE WITH AND PURSUANT TO SECTIONS 2.7 AND
2.8 OF THE NOVATED AND RESTATED TECHNOLOGY LICENSE AGREEMENT, DELIVER TO
SYMPHONY GENISIS ALL REGULATORY FILES AND TANGIBLE MATERIALS, AND (B) IN
ACCORDANCE WITH AND PURSUANT TO SECTION 2.11 OF THE NOVATED AND RESTATED
TECHNOLOGY LICENSE AGREEMENT, NEGOTIATE IN GOOD FAITH, AND ON COMMERCIALLY
REASONABLE TERMS AND CONDITIONS, A SUPPLY AGREEMENT RELATING TO MATERIALS,
INCLUDING COMPOUNDS AND PRODUCTS, REQUIRED BY SYMPHONY GENISIS OR ITS PARTNERS
OR TRANSFEREES FOR THE CONTINUED DEVELOPMENT (INCLUDING CLINICAL DEVELOPMENT),
MANUFACTURE AND COMMERCIALIZATION OF PRODUCTS.
(IV)
IN THE EVENT THAT ISIS EXERCISES THE PURCHASE OPTION, THEN ISIS
SHALL MAINTAIN THE SEPARATE CORPORATE EXISTENCE OF SYMPHONY GENISIS FOR A
MINIMUM OF TWO (2) YEARS FOLLOWING SUCH EXERCISE, UNLESS SUCH MAINTENANCE WOULD
HAVE A MATERIAL ADVERSE EFFECT ON ISIS OR ANY OF ITS AFFILIATES.
Section 4.
Holdings Representations, Warranties and Covenants.
(a)
As of the date hereof, Holdings hereby represents and warrants, and, except
to the extent that any of the following representations and warranties is
limited to the date of this Agreement or otherwise limited, on the Purchase
Option Closing Date, shall be deemed to have represented and warranted, to Isis
and Symphony GenIsis that:
(I)
ORGANIZATION.
HOLDINGS IS A LIMITED LIABILITY COMPANY, DULY
FORMED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE.
(II)
AUTHORITY AND VALIDITY.
HOLDINGS HAS ALL REQUISITE LIMITED
LIABILITY COMPANY POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
THE EXECUTION, DELIVERY AND PERFORMANCE BY HOLDINGS OF THIS AGREEMENT
AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AND
VALIDLY AUTHORIZED BY ALL NECESSARY ACTION REQUIRED ON THE PART