AMI SHALL HAVE THE RIGHT, IN ITS SOLE DISCRETION, TO EXERCISE THE CALL
OPTION FOR EITHER (I) [***], OR (II) [***]; PROVIDED THAT, IF AMI, IN ITS SOLE
DISCRETION, ELECTS OPTION (II) ABOVE, THE ACQUISITION CLOSING SHALL BE
CONSUMMATED [***].
IF AMI DOES NOT EXERCISE THE CALL OPTION PRIOR TO 5:00 P.M.
(PACIFIC TIME) ON THE CALL ACCELERATION DATE, THEN THE CALL OPTION SHALL EXPIRE.
(D)
IF ISIS OR IBIS (AS APPLICABLE) FAILS TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY SUCH PURCHASE OFFER ON TERMS NO LESS FAVORABLE TO ISIS OR IBIS
(AS APPLICABLE) THAN THOSE INDICATED IN THE PURCHASE OFFER NOTICE WITHIN [***]
DAYS FROM THE DATE OF THE PURCHASE OFFER NOTICE (THE "PURCHASE OFFER TERMINATION
DATE"), THEN (I) ISIS AND IBIS SHALL BE PROHIBITED FROM PURSUING THE PURCHASE
OFFER, (II) THE CALL OPTION SHALL BE REINSTATED, (III) THE CALL PERIOD SHALL BE
EXTENDED AUTOMATICALLY TO THE DATE THAT IS THE LATER OF (A) [***] DAYS AFTER THE
PURCHASE OFFER TERMINATION DATE AND (B) [***] DAYS AFTER THE CALL OPTION
EXPIRATION DATE (GIVING EFFECT TO ANY EXTENSIONS THEREOF, BUT DISREGARDING ANY
ACCELERATION OF SUCH DATE PURSUANT TO SECTION 3.4(B)) AND (IV) DURING THE CALL
PERIOD, ISIS AND IBIS SHALL NOT BE PERMITTED TO ENTERTAIN ANY SUBSEQUENT OFFERS
FROM THE THIRD PARTY THAT SUBMITTED SUCH PURCHASE OFFER.
Section 3.5
Effect of Expiration and Termination of Call Option,
Subscription Right. After (a) the Call Option Expiration Date (subject to
Section 3.4(d)) or (b) if AMI exercises the Call Option, (i) the termination of
the Acquisition Agreement in accordance with its terms or (ii) the Acquisition
Closing, (A) this Agreement shall terminate automatically and the Call Option
and Subscription Right shall be null and void and of no further force or effect
without any further action by the Parties and (B) Isis, Ibis and AMI shall have
no further rights or obligations under this Agreement.
Except as expressly set
forth in any Investment Document, the expiration of the Call Period shall not
affect the rights and obligations of any of the parties hereto and thereto.
Section 3.6
Call Option Exercise and Subscription Right Exercise
Preparation.
(A)
AMI MAY, IN CONNECTION WITH ITS GOOD FAITH DETERMINATION WHETHER TO
EXERCISE IN ITS SOLE DISCRETION THE SUBSCRIPTION RIGHT OR THE CALL OPTION,
REQUEST THAT ISIS DELIVER THE DISCLOSURE SCHEDULES TO THE STOCK SUBSCRIPTION
AGREEMENT OR THE ACQUISITION AGREEMENT, AS THE CASE MAY BE, TO AMI AND,
THEREAFTER, ISIS SHALL, AS SOON AS REASONABLY POSSIBLE, DELIVER TO AMI THE
DISCLOSURE SCHEDULES TO THE STOCK SUBSCRIPTION AGREEMENT OR THE ACQUISITION
AGREEMENT, AS THE CASE MAY BE, TOGETHER WITH A CERTIFICATION OF AN AUTHORIZED
SIGNATORY OF ISIS THAT THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE STOCK
SUBSCRIPTION AGREEMENT OR THE ACQUISITION AGREEMENT, AS THE CASE MAY BE, AS
QUALIFIED BY THE DISCLOSURE SCHEDULES, ARE TRUE AND CORRECT IN ALL RESPECTS AS
OF THE DATE OF DELIVERY TO AMI.
IN ANY EVENT, ISIS SHALL DELIVER THE DISCLOSURE
SCHEDULES TO THE STOCK SUBSCRIPTION AGREEMENT TO AMI NO LATER THAN JUNE