THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL HAVE BEEN DULY MADE AND OBTAINED ON TERMS REASONABLY
SATISFACTORY TO ISIS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL
APPLICABLE WAITING PERIODS (AND ANY EXTENSIONS THEREOF) UNDER THE HSR ACT SHALL
HAVE EXPIRED OR OTHERWISE BEEN TERMINATED.
(E)
AMI SHALL HAVE DELIVERED TO ISIS A CERTIFICATE OF AMI TO THE
EFFECT THAT EACH OF THE CONDITIONS SPECIFIED ABOVE IN SECTION 4.2(A) AND
SECTION 4.2(B) IS SATISFIED IN ALL RESPECTS.
(F)
AMI (AND ANY OTHER ABBOTT HOLDERS (AS DEFINED IN THE INVESTOR
RIGHTS AGREEMENT)) SHALL HAVE EXECUTED AND DELIVERED TO ISIS A WRITTEN CONSENT
IN FORM REASONABLY SATISFACTORY TO AMI AND ISIS, CONSENTING TO THE TRANSACTIONS
CONTEMPLATED BY SECTION 7.10.
Isis may waive any condition specified in this Section 4.2 if it executes a
writing so stating at or prior to the Closing.
In the event of any such waiver,
Isis shall be deemed to have waived any claim against AMI for failure to satisfy
such condition; provided that, except to the extent specifically and expressly
set forth in such waiver, any such waiver shall not limit Isis' right to
recovery hereunder for a breach by AMI of any other provision of this Agreement.
19
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
5.1
Representations and Warranties of Isis. As a material inducement
to AMI to enter into this Agreement, except as set forth in the corresponding
Section of the Disclosure Schedules delivered to AMI herewith on the date hereof
(the "Disclosure Schedules"), Isis hereby represents and warrants the following
representations and warranties are as of the date hereof, and will be as of the
Closing Date, true and correct:
(A)
POWER AND AUTHORITY. EACH OF IBIS AND ISIS (I) HAS THE POWER, AUTHORITY
AND THE LEGAL RIGHT TO ENTER INTO EACH OF THE TRANSACTION DOCUMENTS AND TO
PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER, AND (II) HAS TAKEN ALL
NECESSARY ACTION REQUIRED TO AUTHORIZE THE EXECUTION AND DELIVERY OF EACH OF THE
TRANSACTION DOCUMENTS AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND
THEREUNDER.
(B)
ENFORCEABILITY. EACH OF THE TRANSACTION DOCUMENTS HAS BEEN DULY EXECUTED
AND DELIVERED ON BEHALF OF IBIS AND ISIS AND CONSTITUTES A LEGAL, VALID AND
BINDING OBLIGATION OF EACH SUCH PARTY AND IS ENFORCEABLE AGAINST EACH SUCH PARTY
IN ACCORDANCE WITH ITS TERMS SUBJECT TO THE EFFECTS OF BANKRUPTCY, INSOLVENCY OR
OTHER LAWS OF GENERAL APPLICATION AFFECTING THE ENFORCEMENT OF CREDITOR RIGHTS.
(C)
GOVERNMENTAL AUTHORITY; CONSENTS. ALL NECESSARY CONSENTS, APPROVALS AND
AUTHORIZATIONS OF ALL GOVERNMENTAL AUTHORITIES AND OTHER PARTIES REQUIRED TO BE
OBTAINED BY IBIS AND ISIS IN CONNECTION WITH THE EXECUTION AND DELIVERY OF EACH
OF THE TRANSACTION DOCUMENTS AND THE PERFORMANCE OF THEIR OBLIGATIONS HEREUNDER
AND THEREUNDER HAVE BEEN OBTAINED.
(D)
NO CONFLICTS. THE EXECUTION AND DELIVERY OF EACH OF THE TRANSACTION
DOCUMENTS BY EACH OF IBIS AND ISIS AND THE PERFORMANCE OF EACH SUCH PARTY'S
OBLIGATIONS HEREUNDER AND THEREUNDER, WITH OR WITHOUT THE PASSAGE OF TIME OR
GIVING OF NOTICE, (I) DO NOT AND WILL NOT CONFLICT WITH OR VIOLATE ANY