15 HERETO,
EXECUTED BY ISIS AND HOLDINGS, A CONFIRMATION OF TERMINATION, IN THE FORM SET
FORTH IN APPENDIX 15 HERETO, EXECUTED BY ISIS AND SYMPHONY GENISIS, AND OTHER
EVIDENCE REASONABLY SATISFACTORY TO OMI THAT THE PURCHASE OPTION CLOSING HAS
BEEN CONSUMMATED AND THE TECHNOLOGY LICENSE AGREEMENT HAS BEEN TERMINATED. THE
DATE OF SATISFACTION OF THE CONDITIONS SET FORTH IN THIS SECTION 14.13(C) IS
REFERRED TO IN THIS AGREEMENT AS THE "EFFECTIVE DATE."
(D)
AT OMI'S REQUEST, ISIS WILL
DEPOSIT INTO ESCROW WITH LEGAL COUNSEL MUTUALLY AGREEABLE TO BOTH PARTIES, ALL
DOCUMENTS THAT ARE NECESSARY TO EXERCISE THE PURCHASE OPTION AND REQUIRED BY
ISIS TO CONSUMMATE THE PURCHASE OPTION CLOSING AND TERMINATE THE
46
TECHNOLOGY LICENSE AGREEMENT, WITH INSTRUCTIONS TO DELIVER SUCH DOCUMENTS TO
SYMPHONY GENISIS AND HOLDINGS AND DECLARE SUCH DOCUMENTS AUTOMATICALLY EFFECTIVE
UPON RECEIPT OF HSR CLEARANCE.
(E)
DEFINED TERMS USED IN THIS SECTION
14.13, BUT NOT OTHERWISE DEFINED IN THIS AGREEMENT, WILL HAVE THE MEANING
ASCRIBED TO THEM IN THE PURCHASE OPTION AGREEMENT.
(F)
IF THE CONDITIONS SET FORTH IN
SECTION 14.13(C)(II) AND (III) ABOVE SHALL NOT HAVE BEEN SATISFIED WITHIN 10
(TEN) BUSINESS DAYS OF RECEIPT OF HSR CLEARANCE, OMI SHALL HAVE THE UNILATERAL
RIGHT TO TERMINATE THIS AGREEMENT WITHOUT ANY PRIOR NOTICE TO ISIS.
(G)
IN THE EVENT OF A TERMINATION OF
THIS AGREEMENT UNDER PART (F) ABOVE, NOTWITHSTANDING THE PROVISIONS OF SECTION
10.6.2 HEREIN, ONLY ARTICLES
7, 8, 10, 12 AND 14 AND SECTION 13.4 OF THIS
AGREEMENT SHALL SURVIVE SUCH TERMINATION.
SECTION 14.14
FORCE MAJEURE. NEITHER PARTY WILL BE CHARGED
WITH ANY LIABILITY FOR DELAY IN PERFORMANCE OF AN OBLIGATION UNDER THIS
AGREEMENT TO THE EXTENT SUCH DELAY IS DUE TO A CAUSE BEYOND THE REASONABLE
CONTROL OF THE AFFECTED PARTY, SUCH AS WAR, RIOTS, LABOR DISTURBANCES, FIRE,
EXPLOSION, AND COMPLIANCE IN GOOD FAITH WITH ANY GOVERNMENTAL LAW, REGULATION OR
ORDER. THE PARTY AFFECTED WILL GIVE PROMPT WRITTEN NOTICE TO THE OTHER PARTY OF
ANY MATERIAL DELAY DUE TO SUCH CAUSES.
SECTION 14.15
INTERPRETATION.
(A)
EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT
HAS BEEN DILIGENTLY REVIEWED BY AND NEGOTIATED BY AND BETWEEN THEM, THAT IN SUCH
NEGOTIATIONS EACH OF THEM HAS BEEN REPRESENTED BY COMPETENT COUNSEL AND THAT THE
FINAL AGREEMENT CONTAINED HEREIN, INCLUDING THE LANGUAGE WHEREBY IT HAS BEEN
EXPRESSED, REPRESENTS THE JOINT EFFORTS OF THE PARTIES HERETO AND THEIR COUNSEL.
ACCORDINGLY, IN THE EVENT AN AMBIGUITY OR A QUESTION OF INTENT OR INTERPRETATION
ARISES, THIS AGREEMENT WILL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES
AND NO PRESUMPTION OR BURDEN OF PROOF WILL ARISE FAVORING OR DISFAVORING ANY
PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS OF THIS AGREEMENT.
(B)
THE DEFINITIONS OF THE TERMS HEREIN WILL APPLY EQUALLY TO THE
SINGULAR AND PLURAL FORMS OF THE TERMS DEFINED. WHENEVER THE CONTEXT MAY
REQUIRE, ANY PRONOUN WILL INCLUDE THE CORRESPONDING MASCULINE, FEMININE AND
NEUTER FORMS. THE WORDS "INCLUDE", "INCLUDES" AND "INCLUDING" WILL BE DEEMED TO
BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION". THE WORD "WILL" WILL