PROVIDE THAT (I) SUBJECT TO SECTION 8.14, IN
NO EVENT WILL AMI AND IBIS TOGETHER BE REQUIRED TO PAY TO ISIS MORE THAN $[***]
IN THE AGGREGATE FOR THE INITIAL SERVICES (AS DEFINED IN THE TRANSITION SERVICES
AGREEMENT) PROVIDED BY ISIS THEREUNDER, (II) ISIS WILL PROVIDE ONLY THE
CATEGORIES OF SERVICES SET FORTH ON EXHIBIT E-1 ATTACHED HERETO, AND (III) IBIS
WILL NOT OCCUPY ISIS' FACILITIES NOR WILL ISIS BE REQUIRED TO PROVIDE SERVICES
TO IBIS AFTER [***] (THE "TRANSITION SERVICES AGREEMENT"), AND THE TRANSITION
SERVICES AGREEMENT SHALL BE IN FULL FORCE AND EFFECT.
(L)
ISIS SHALL HAVE EXECUTED AND DELIVERED TO AMI A NON-FOREIGN
AFFIDAVIT DATED AS OF THE CLOSING DATE AND IN FORM AND SUBSTANCE REQUIRED UNDER
THE TREASURY REGULATIONS ISSUED PURSUANT TO CODE § 1445 STATING THAT ISIS IS NOT
A "FOREIGN PERSON" AS DEFINED IN CODE § 1445.
(M)
THERE SHALL NOT HAVE BEEN ANY MATERIAL BREACH OF ANY OF THE TERMS
AND PROVISIONS OF THE TRANSACTION DOCUMENTS THAT HAS NOT BEEN WAIVED BY AMI.
(N)
EXCEPT AS CONTEMPLATED BY SECTION 2.5 AND THE TRANSITION SERVICES
AGREEMENT, IBIS SHALL BE ENTITLED TO FULLY EXERCISE WITHOUT RESTRICTION OR
LIMITATION ALL LEGAL AND BENEFICIAL RIGHTS UNDER THE IBIS CONTRACTS (INCLUDING
THE GOVERNMENT CONTRACTS) AND ALL OTHER ASSETS, PROPERTIES AND RIGHTS RELATED
TO, USED IN OR NECESSARY TO OPERATE AND CONDUCT THE BUSINESS IN ALL RESPECTS IN
THE MANNER CONDUCTED ON AND PRIOR TO THE CLOSING DATE AND AS CONTEMPLATED TO BE
CONDUCTED FROM AND AFTER THE CLOSING DATE.
18
[***]AMI may waive any condition specified in this Section 4.1 if it executes a
writing so stating at or prior to the Closing.
In the event of any such waiver,
AMI shall be deemed to have waived any claim against Isis 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 AMI's right to
recovery hereunder for a breach by either Isis or Ibis of any other provision of
this Agreement.
4.2
Conditions to Obligation of Isis.
The obligation of Isis to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(A)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF AMI SET FORTH IN
THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT AND AS OF
THE DATE HEREOF AND AS OF THE CLOSING DATE.
(B)
AMI SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH EACH OF ITS COVENANTS HEREUNDER THROUGH THE CLOSING;
(C)
NO CLAIM SHALL BE PENDING BEFORE ANY COURT, ARBITRATOR, OTHER BODY
OR ADMINISTRATIVE AGENCY OF ANY GOVERNMENTAL AUTHORITY WHEREIN AN UNFAVORABLE
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING OR CHARGE WOULD PREVENT CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (AND NO SUCH
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING OR CHARGE SHALL BE IN EFFECT).
(D)
ALL FILINGS WITH AND AUTHORIZATIONS AND APPROVALS OF GOVERNMENTAL
AUTHORITIES THAT ARE REQUIRED FOR THE CONSUMMATION OF