Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies: (a) each Celladon Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (b) each Celladon Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will; (c) each Celladon Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions; (d) each Celladon Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directors; (e) each Celladon Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation to engage in any line of business or compete with any Person; (f) each Celladon Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty; (g) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity; (h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladon; (i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business; (j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactions; or (k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Material Contract”) in such manner as would permit any other party to seek damages which would reasonably be expected to have a Celladon Material Adverse Effect. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation to any Person under any Celladon Contract.
Appears in 1 contract
Sources: Merger Agreement (Celladon Corp)
Agreements, Contracts and Commitments. Part 3.7 Schedule 3.9 of the Celladon Acquiror Disclosure Letter identifies, except for the Acquiror Contracts set forth in Schedule identifies3.13 of the Acquiror Disclosure Letter or filed as an exhibit to any of the Acquiror Current SEC Documents and except for this Agreement and other agreements, contracts or commitments relating to the Contemplated Transactions:
(a) each Celladon Acquiror Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) each Celladon Acquiror Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon the Acquiror on ninety (90) days’ days notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will;
(c) each Celladon Acquiror Contract relating to any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Celladon Acquiror Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon the Acquiror and any of its respective officers or directors;
(e) each Celladon Acquiror Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation Acquiror to engage or participate, or compete with any other Person, in any line of business business, market or compete with geographic area, or to make use of any Intellectual Property to the extent that such Intellectual Property (i) is used in, necessary to, or would be infringed by the conduct of the Acquiror Business and (ii) would be necessary to or would be infringed by the commercial manufacture, use, sale, or import of any of the Acquiror’s Clinical Products, as contemplated by the Acquiror to be conducted following the Acquiror’s or its licensee’s obtaining regulatory approval (if any) for such commercial manufacture, use, sale or import, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person;
(f) each Celladon Acquiror Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(g) each Celladon Acquiror Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Acquiror Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Celladon the Acquiror or any loans or debt obligations with officers or directors of Celladonthe Acquiror;
(i) each Celladon Acquiror Contract relating to product supply, manufacturing, distribution or development, or the following if currently license of Intellectual Property used in force the Acquiror Business, to or from the Acquiror (except for (i) standard biological material transfer agreements, (ii) standard licenses purchased by the Acquiror for generally available commercial software, and if (iii) Contracts in which the obligations of Celladon under such Celladon Contract after aggregate payments either to or by the date of this Agreement Acquiror are not in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof100,000)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Acquiror Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon the Acquiror in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement Acquiror under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that is material to the business or operations of Celladonthe Acquiror. Celladon The Acquiror has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Material material written Acquiror Contracts, including all amendments thereto. There Except as set forth on Schedule 3.9.1 of the Acquiror Disclosure Letter, there are no Celladon Material material Acquiror Contracts that are not in written form. Except as set forth on Part 3.7 Schedule 3.9.2 of the Celladon Acquiror Disclosure ScheduleLetter, neither Celladon northe Acquiror has not, nor to the Knowledge of CelladonAcquiror’s Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon an Acquiror Material Contract (as defined below) has ), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under (and no event has occurred which with the passage of time or the giving of notice would result in such breach, violation or default under), any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon the Acquiror is a party or by which it is bound of the type described in clauses (a) through (ko) above (any such agreement, contract or commitment, a an “Celladon Acquiror Material Contract”) in such manner as would permit any other party to cancel or terminate any such Acquiror Material Contract, or would permit any other party to seek damages which would would, individually or in the aggregate, reasonably be expected to have a Celladon an Acquiror Material Adverse Effect. The As to the Acquiror, as of the date of this Agreement, each Acquiror Material Contract is valid, binding on, and enforceable against, the Acquiror, and to the Acquiror’s Knowledge, each other party thereto, and is in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth in Schedule 3.9.3 of the Acquiror Disclosure Letter, the consummation of the Contemplated Transactions shall will not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon the Acquiror (including as the Surviving Corporation) or the Surviving Corporation Company to any Person under any Celladon Acquiror Contract or give any Person the right to terminate or alter the provisions of any Acquiror Contract. No Person is renegotiating, or has a right pursuant to the terms of any Acquiror Material Contract to renegotiate, any material amount paid or payable to the Acquiror under any Acquiror Material Contract or any other material term or provision of any Acquiror Material Contract. Schedule 3.9.4 of the Acquiror Disclosure Letter identifies and provides a brief description of each proposed Contract as to which any written bid, offer, award, proposal, term sheet or similar written document has been submitted or received by the Acquiror (other than term sheets and proposals provided by the Acquiror or to the Acquiror by any party related to the subject matter of this transaction or an Acquisition Proposal made prior to the date hereof) that if entered into by the Acquiror would be an Acquiror Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as listed in Part 3.7 2.9(a) of the Celladon Advaxis Disclosure Schedule identifiesSchedule, as of the date of this Agreement, neither Advaxis nor any of its Subsidiaries is a party to or bound by any:
(ai) each Celladon Advaxis Contract that would be required to be filed by Advaxis as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Advaxis SEC Reports;
(ii) Advaxis Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(biii) each Celladon Advaxis Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Advaxis or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit CelladonAdvaxis’, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(civ) each Celladon Advaxis Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions Transactions, including the Merger (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(dv) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of indebtedness, in each Celladon Contract relating to any agreement case providing for indebtedness in excess of indemnification or guaranty not entered into in the Ordinary Course of Business $100,000, other than indemnification agreements indebtedness solely between Celladon or among any of Advaxis and any of its officers or directorswholly owned Subsidiaries;
(evi) each Celladon Advaxis Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon Advaxis, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or compete with any Person;
(fvii) each Celladon Advaxis Contract that contains a put, call, right of first refusal or similar right pursuant to which Advaxis or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person;
(viii) material settlement agreement or similar agreement with a Governmental Authority to which Advaxis or any of its Subsidiaries is a party that contains material obligations or limitations on Advaxis’ or such Subsidiary’s conduct;
(ix) Advaxis Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(gx) each Celladon Advaxis Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit Entity in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladon100,000;
(ixi) each Celladon Advaxis Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; Advaxis (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Advaxis or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Advaxis or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonAdvaxis or such Subsidiary; or (iv) any Contract currently in force to license any third party to manufacture or produce any Advaxis product, service or technology of Celladon or any Contract currently in force to sell, distribute or commercialize any Advaxis products or service of Celladonservice, except except, in each case, agreements entered in the Ordinary Course of Business;
(jxii) each Celladon Advaxis Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Advaxis in connection with the Contemplated Transactionstransactions set forth in this Agreement, including the Merger;
(xiii) Advaxis Contract pursuant to which any Advaxis IP Rights are licensed by or to Advaxis or any of its Subsidiaries, other than (A) “shrink wrap” or other licenses for generally commercially available software (including open source software) or hosted services, (B) customer or channel partner Advaxis Contracts substantially on Advaxis’ or any of its Subsidiaries’ standard forms, (C) Advaxis Contracts that authorizes Advaxis or any of its Subsidiaries to identify another Person as a customer, vendor, supplier or partner or that authorizes another Person to identify Advaxis or any of its Subsidiaries as a customer, vendor, supplier or partner of such Person, (D) Advaxis Contracts that provide a limited, non-exclusive license to use the trademarks included in the Advaxis IP Rights to promote any products or services of Advaxis or its Subsidiaries or to otherwise provide such products or services to others, (E) Advaxis Contracts with Advaxis’ or its Subsidiaries’ employees or contractors substantially on Advaxis’ or its Subsidiaries’ standard forms, and (F) non-disclosure agreements (the “Advaxis Standard Contracts”); or
(kxiv) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement Advaxis or its Subsidiaries under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that may not be terminable with no liability or cost within ninety (90) days. Each such Contract described in clauses (a) through (n) is material referred to the business or operations of Celladon. Celladon herein as an “Advaxis Material Contract”.
(b) Advaxis has delivered or made available to Eiger Biosight accurate and complete (except for applicable redactions thereto) copies of all Celladon Advaxis Material Contracts, including all amendments thereto. There are no Celladon Advaxis Material Contracts that are not in written form. Except as set forth on Part 3.7 would not reasonably be expected to have, individually or in the aggregate, an Advaxis Material Adverse Effect, (i) neither Advaxis nor any of the Celladon Disclosure Schedule, neither Celladon norits Subsidiaries is (and, to the Knowledge of CelladonAdvaxis, no other party is) in default under or breach of any Contract to which Advaxis is a party, there are no events or conditions, including with respect to any events or conditions as a result of the date COVID-19 pandemic, which constitute, or, after notice or lapse of this Agreementtime or both, will constitute, a default on the part of Advaxis or any of its Subsidiaries or, to the Knowledge of Advaxis, any counterparty under such Advaxis Contract, (ii) each of the Advaxis Material Contracts is in full force and effect and is a valid, binding and enforceable obligation of Advaxis and its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other party forms of equitable relief may be subject to a Celladon equitable defenses and to the discretion of the court before which any proceedings therefor may be brought, and (C) to the extent that any Advaxis Material Contract expires in accordance with its terms, and (as defined belowiii) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of Advaxis and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the terms or conditions of any of the agreements, contracts or commitments Advaxis Material Contracts to which Celladon is they are a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Material Contract”) in such manner as would permit any other party to seek damages which would reasonably be expected to have a Celladon Material Adverse Effect. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation to any Person under any Celladon Contractparty.
Appears in 1 contract
Sources: Merger Agreement (Advaxis, Inc.)
Agreements, Contracts and Commitments. Part 3.7 Section 3.13 of the Celladon Nautilus Disclosure Schedule identifiesidentifies each Nautilus Contract that is in effect as of the date of this Agreement and is:
(a) each Celladon a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act,
(b) a Contract to which Nautilus is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Nautilus in excess of $150,000;
(c) a Nautilus Real Estate Lease;
(d) a Contract disclosed in or required to be disclosed in Section 3.12(c) or Section 3.12(d) of the Nautilus Disclosure Schedule;
(e) a Nautilus Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bf) each Celladon a Nautilus Contract requiring payments by Nautilus after the date of this Agreement in excess of $150,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Nautilus on ninety (90) 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s Nautilus’ ability to terminate employees at will;
(cg) each Celladon a Nautilus Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(dh) each Celladon a Nautilus Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ei) each Celladon a Nautilus Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon or the Surviving Corporation Nautilus to engage in any line of business or compete with any Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision;
(fj) each Celladon a Nautilus Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 250,000 pursuant to its express terms and not cancelable without penalty;
(gk) each Celladon a Nautilus Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(hl) each Celladon a Nautilus Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 250,000 or creating any material Encumbrances with respect to any assets of Celladon Nautilus or any loans or debt obligations with officers or directors of CelladonNautilus;
(im) each Celladon a Nautilus Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract Nautilus after the date of this Agreement are in excess of $50,000 in the aggregate 250,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of CelladonNautilus; (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Nautilus has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Nautilus has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonNautilus; or (ivD) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon Nautilus or any Contract to sell, distribute or commercialize any products or service of CelladonNautilus, in each case, except agreements for Nautilus Contracts entered into in the Ordinary Course of Business;
(jn) each Celladon a Nautilus Contract containing any “standstill” provision with respect to the acquisition of Nautilus Common Stock or other equity securities of Nautilus;
(o) a Nautilus Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Nautilus in connection with the Contemplated Transactions; or
(kp) any other agreement, contract or commitment which Nautilus Contract that is not terminable at will (with no penalty or payment) by Celladon Nautilus, and (iA) which involves payment or receipt by Celladon Nautilus after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 250,000 in the aggregate, or (iiB) that is material to the business or operations of CelladonNautilus. Celladon Nautilus has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Nautilus is a party or by which it is bound of the type described in clauses (aa)-(o) through (k) above of the immediately preceding sentence (any such agreement, contract or commitmentContract, a “Celladon Nautilus Material Contract”) ). Nautilus has not nor, to Nautilus’ Knowledge as of the date of this Agreement, has any other party to a Nautilus Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Nautilus Material Contract in such manner as would permit any other party to cancel or terminate any such Nautilus Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Nautilus Material Adverse Effect. The consummation As to Nautilus, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Nautilus Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Nautilus Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Nautilus under any Celladon Nautilus Material Contract or any other material term or provision of any Nautilus Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 (a) As of the Celladon Disclosure Schedule identifiesdate hereof, neither the Company nor any of its Subsidiaries is a party to, nor are they bound by:
(ai) each Celladon Contract any Employee Agreement in effect as of the date of this Agreement, other than (A) Company Options and other than standard offer letters that do not contain terms regarding severance, change in control or similar payments or (B) agreements between the Company or any of its ERISA Affiliates and any consultant or contractor relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, the performance of services for the Company or any other employee benefit plans or arrangementsof its ERISA Affiliates (in either case, the forms of which have previously been provided to Parent);
(bii) each Celladon Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will;
(c) each Celladon Contract relating to any agreement or plan, plan (including any stock option planCompany Option Plan, stock appreciation right rights plan or stock purchase plan, ) any of the benefits of which will could be increased, or the vesting of benefits of which will could be accelerated, by the occurrence of any of the Contemplated Transactions transactions contemplated by this Agreement (either alone or in conjunction with any other event, such except as termination of employmentrequired by this Agreement) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactionstransactions contemplated by this Agreement;
(diii) each Celladon Contract relating to any agreement lease of indemnification personal property providing for payments in excess of $25,000 individually or guaranty not entered into $100,000 in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsaggregate;
(eiv) each Celladon Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation to engage in any line of business or compete with any Person;
(f) each Celladon Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations future payments after the date of this Agreement hereof in excess of $25,000 individually or $100,000 and not cancelable without penaltyin the aggregate;
(gv) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Company’s business;
(hvi) each Celladon Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of credit or security interest;
(vii) any pending purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $100,000 in the aggregate;
(viii) any powers of attorney;
(ix) any agreement containing any price protection, “most favored nation” or similar provisions;
(x) any partnership, joint venture, strategic alliance or similar agreement;
(xi) any material Contract to which an Interested Party is a party, other than Contracts relating to the acquisition of equity securities of the Company or relating to an Interested Party’s employment or service relationship with the Company;
(xii) any dealer, distribution, joint marketing, development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement for marketing, sales, provision or distribution of the Company’s products, technology or services and that is material to the Company’s business; or
(xiii) any other Contract, including any service, operating or management agreement or arrangement with respect to any of the Company’s properties (whether leased or owned), that involves in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladon;and is not cancelable without penalty within thirty (30) days.
(ib) each Celladon Contract relating The Company and its Subsidiaries are in compliance in all material respects with, and have not received notice prior to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has they have breached, violated or defaulted underunder any of, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Contract required to be set forth on Section 3.14(a) of the agreementsCompany Disclosure Schedule, contracts nor has there occurred any event or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Material Contract”) in such manner as would permit any other party to seek damages which would condition that could reasonably be expected to have constitute such a Celladon Material Adverse Effectbreach, violation or default by the Company or its Subsidiaries with the lapse of time, giving of notice or both. The consummation Each Contract required to be set forth on Section 3.14(a) of the Contemplated Transactions shall not Company Disclosure Schedule is in full force and effect (either alone except to the extent that such Contracts are terminated in a manner permitted under Section 5.1(b)(iii)) and, to the Company’s Knowledge, no third party obligated to the Company or upon the occurrence any of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation its Subsidiaries pursuant to any Person under such Contract is subject to any Celladon Contractdefault thereunder.
(c) The Company has delivered to Parent true, correct and complete copies of all Contracts listed in Section 3.14(a) of the Company Disclosure Schedule, including all amendments, supplements, exhibits and ancillary agreements thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) each Celladon Contract relating As of the date hereof, SmarterKids is not a party to any bonusexisting contract, deferred compensationobligation or commitment (including amendments, severance, incentive compensation, pension, profit-sharing supplements or retirement plans, modifications thereof (whether orally or in writing)) of any other employee benefit plans type in any of the following categories except for contracts filed as exhibits to the SmarterKids SEC Reports or arrangementsset forth in the SmarterKids Disclosure Schedule (true and complete copies of which contracts have been delivered to or made available to Earlychildhood):
(i) contracts that provide for annual payments to or by SmarterKids aggregating in excess of $150,000;
(bii) each Celladon Contract relating to contract of SmarterKids that was not entered into in the employment of, or the performance ordinary course of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at willbusiness;
(ciii) contracts under which SmarterKids has or may, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (x) the performance under a contract of any other person, firm or corporation or (y) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation, in all cases, individually in excess of $1,000,000 and in the aggregate in excess of $5,000,000;
(iv) employment agreements, consulting agreements, contracts or commitments with any employee or member of SmarterKids' Board of Directors, other than those which are terminable by SmarterKids on not more than thirty days notice without liability or financial obligation, and within each Celladon Contract relating to such category of agreements, contracts or commitments, which are individually in excess of $150,000;
(v) any agreement agreements or planplans, including including, without limitation, any stock option planoption, stock appreciation right plan or stock purchase planplans or agreements, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactionstransactions contemplated by this Agreement;
(dvi) each Celladon Contract relating to any agreement contract with any director, officer or more than 5% stockholder of indemnification or guaranty not entered into in the Ordinary Course of Business SmarterKids, other than indemnification agreements between Celladon and in such person's capacity as a director or officer of SmarterKids, or any contract with any entity in which, to the knowledge of its officers SmarterKids, any director, officer or directorsmore than 5% stockholder or any family member of any director, officer or stockholder has a material economic interest;
(evii) each Celladon Contract relating to any agreement, contract that limits or commitment containing restricts in any covenant limiting the freedom of Celladon material respect where SmarterKids may conduct its business or the Surviving Corporation to engage in any type or line of business or compete with any Personthat Earlychildhood may engage in;
(fviii) each Celladon Contract relating any powers of attorney outstanding (other than those issued in the ordinary course of business with respect to Tax matters), or material obligations or liabilities (absolute or contingent) as guarantor, surety, cosigner, endorser, co-maker, indemnitor, or otherwise respecting the obligations or liabilities of any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penaltyperson;
(gix) each Celladon Contract relating to any agreement, material contract or commitment currently in force relating to the disposition or acquisition of material assets or containing any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any Encumbrances agreement with respect to any assets change of Celladon or any loans or debt obligations with officers or directors of Celladon;control; and
(ix) each Celladon Contract relating to material amendment, supplement and modification (whether oral or written) in respect of any of the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;foregoing.
(jb) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is SmarterKids has not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received in writing any claim or notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such material agreement, contract or commitment, a “Celladon commitment filed or required to be filed as an exhibit to the SmarterKids SEC Reports or set forth or required to be set forth in Section 4.11 of the SmarterKids Disclosure Schedule ("SmarterKids Material Contract”Contracts") in such a manner as would permit any other party to seek damages which would as, individually or in the aggregate, is reasonably be expected likely to have a Celladon SmarterKids Material Adverse Effect. The consummation Each SmarterKids Material Contract that has not expired by its terms is in full force and effect, except for those contracts the ineffectiveness of which would not reasonably be likely to have a SmarterKids Material Adverse Effect, and, if all of the Contemplated Transactions shall not consents, approvals, authorizations, filings, notifications and other actions listed with respect to such contract in the SmarterKids Disclosure Schedule are obtained, taken or made, as applicable, such contract will continue, after the Effective Time, to be in full force and effect on identical terms.
(either alone or upon c) To SmarterKids' knowledge, none of the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation parties to any Person SmarterKids Material Contract have terminated, or notified SmarterKids in writing of its intent to materially reduce or terminate its business relationship with SmarterKids in the future.
(d) SmarterKids has not received written notice from any customer, or group of customers, that are under common ownership or control, and that accounted for a material percentage of the aggregate products and services furnished by SmarterKids since January 1, 1999 that such customer or group of customers has stopped or intends to stop purchasing SmarterKids' products or services, nor has SmarterKids lost any Celladon Contractsupplier, or group of suppliers that are under common ownership or control, that accounted for a material percentage of the aggregate supplies purchased by SmarterKids since January 1, 1999.
Appears in 1 contract
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Agreements, Contracts and Commitments. Part 3.7 Section 4.13 of the Celladon Terrain Disclosure Schedule identifiesidentifies each Terrain Contract that is in effect as of the date of this Agreement and is:
(ai) each Celladon a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act,
(ii) a Contract relating to which Terrain is a party or by which any bonusof its assets and properties is currently bound, deferred compensationwhich, severancepursuant to the express terms thereof, incentive compensation, pension, profit-sharing or retirement plansrequire annual obligations of payment by, or any other employee benefit plans or arrangements;annual payments to, Terrain in excess of $150,000,
(biii) each Celladon a Contract requiring payments by Terrain or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or individual independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Terrain or its Subsidiaries on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit CelladonTerrain’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(civ) each Celladon Terrain Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will could be increased, or the vesting of benefits of which will could be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) service), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(dv) each Celladon a Terrain Real Estate Lease or a Contract relating disclosed in or required to any agreement be disclosed in Section 4.12(b) or Section 4.12(c) of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsTerrain Disclosure Schedule;
(evi) each Celladon a Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon Terrain, its Affiliates or the Surviving Corporation to engage in any line of business or compete with any Person;, or limiting the development, manufacture or distribution of the Terrain’s products or services or (B) any grant of any option to any Intellectual Property rights,
(fvii) a Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Terrain or its Affiliates in connection with the Contemplated Transactions,
(viii) each Celladon Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(g) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Celladon Terrain or any of its Subsidiaries or any loans or debt obligations with officers or directors of Celladon;
(i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated TransactionsTerrain; or
(kix) a Contract under which a third party would be entitled to receive a license or have any other agreementrights in Intellectual Property of the Company, contract Terrain or commitment which is not terminable any of their Affiliates at will (with no penalty the time of or payment) by Celladon and (i) which involves payment or receipt by Celladon immediately after the date Effective Time,
(x) a Contract which would give rise to or otherwise result in proxy statement disclosure pursuant to Item 404 of this Agreement under any such agreementRegulation S-K, contract or commitment of more than $50,000 in the aggregateor
(xi) a Contract, plan, program, or obligations after the date of this Agreement policy providing for severance, termination compensation, retention or stay pay, change in excess of $50,000 in the aggregatecontrol payments, or (ii) that is material to the business or operations of Celladontransaction-based bonuses. Celladon Terrain has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Terrain is a party or by which it is bound of the type described in clauses (ai)-(viii) through (k) above of the immediately preceding sentence (any such agreement, contract or commitmentContract, a “Celladon Terrain Material Contract”) ), including all amendments thereto. Terrain has not nor, to ▇▇▇▇▇▇▇’s Knowledge as of the date of this Agreement, has any other party to a Terrain Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Terrain Material Contract in such manner as would permit any other party to cancel or terminate any such Terrain Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Terrain Material Adverse Effect. The consummation As to Terrain, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Terrain Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Terrain Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Terrain under any Celladon Terrain Material Contract or any other material term or provision of any Terrain Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) Section 4.13 of the Magenta Disclosure Schedule identifies each Celladon Magenta Contract that is in effect as of the date of this Agreement (each, an “Magenta Material Contract” and collectively, the “Magenta Material Contracts”):
(i) each Magenta Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon Magenta Contract requiring payments by Magenta after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity Entity providing employment related, consulting or independent contractor services, not terminable by Celladon Magenta on ninety thirty (9030) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit CelladonMagenta’s, or such successor’s ability to terminate employees at will;
(ciii) each Celladon Magenta Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, increased or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) each Celladon Magenta Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ev) each Celladon Magenta Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon Magenta or the Surviving Corporation any of its Subsidiaries to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Magenta’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(fvi) each Celladon Magenta Contract relating (A) pursuant to which any agreementPerson granted Magenta an exclusive license under any Intellectual Property, contract or commitment (B) pursuant to which Magenta granted any Person an exclusive license under any Magenta IP Rights;
(vii) each Magenta Contract relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(gviii) each Celladon Magenta Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000 after the date of this Agreement;
(hix) each Celladon Magenta Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Celladon Magenta or any loans or debt obligations with officers or directors of CelladonMagenta;
(ix) each Celladon Magenta Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract Magenta after the date of this Agreement are in excess of $50,000 in the aggregate 100,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); , (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; Magenta, (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Magenta or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Magenta or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; Magenta or such Subsidiary or (ivD) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Celladon Magenta or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of CelladonMagenta or any of its Subsidiaries, in each case, except agreements for Magenta Contracts entered into in the Ordinary Course of Business;
(jxi) each Celladon Magenta Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Magenta in connection with the Contemplated TransactionsTransactions and requiring payments by Magenta after the date in this Agreement in excess of $100,000 pursuant to its express terms;
(xii) each Magenta Contract to which Magenta or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Magenta or such Subsidiary in excess of $100,000;
(xiii) any Magenta Real Estate Lease;
(xiv) a Contract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Magenta Disclosure Schedule; or
(kxv) any other agreement, contract or commitment which Magenta Contract that is not terminable at will (with no penalty or payment) by Celladon Magenta or any of its Subsidiaries, and (iA) which involves payment or receipt by Celladon Magenta or such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, aggregate or (iiB) that is material to the business or operations of Celladon. Celladon Magenta and its Subsidiaries taken as a whole.
(b) Magenta has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Magenta Material Contracts, including all amendments thereto. There are no Celladon Magenta Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon Magenta has not nor, to the Magenta’s Knowledge of Celladon, as of the date of this Agreement, has any other party to a Celladon Magenta Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Magenta Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Magenta Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Magenta Material Adverse Effect. The consummation As to Magenta and its Subsidiaries, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Magenta Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Magenta Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Magenta under any Celladon Magenta Material Contract or any other material term or provision of any Magenta Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) Section 4.13 of the Utah Disclosure Schedule identifies each Celladon Utah Contract that is in effect as of the date of this Agreement other than the Securities Purchase Agreement (each, an “Utah Material Contract” and collectively, the “Utah Material Contracts”):
(i) each Utah Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon Utah Contract requiring payments by Utah after the date of this Agreement in excess of $75,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity Entity providing employment related, consulting or independent contractor services, not terminable by Celladon Utah on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit CelladonUtah’s, or such successor’s ability to terminate employees at will;
(ciii) each Celladon Utah Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) each Celladon Utah Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ev) each Celladon Utah Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon Utah or the Surviving Corporation any of its Subsidiaries to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of the Utah’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(fvi) each Celladon Utah Contract relating (A) pursuant to which any agreementPerson granted Utah an exclusive license under any Intellectual Property, contract or commitment (B) pursuant to which Utah granted any Person an exclusive license under any Utah IP Rights;
(vii) each Utah Contract relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(gviii) each Celladon Utah Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000 after the date of this Agreement;
(hix) each Celladon Utah Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Celladon Utah or any loans or debt obligations with officers or directors of CelladonUtah;
(ix) each Celladon Utah Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract Company after the date of this Agreement are in excess of $50,000 in the aggregate 100,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); , (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; the Company, (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Utah or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Utah or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; Utah or such Subsidiary or (ivD) any Contract to license any patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Celladon Utah or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of CelladonUtah or any of its Subsidiaries, in each case, except agreements for Utah Contracts entered into in the Ordinary Course of Business;
(jxi) each Celladon Utah Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Utah in connection with the Contemplated Transactions; or;
(kxii) each Utah Contract to which Utah or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Utah or such Subsidiary in excess of $100,000;
(xiii) an Utah Real Estate Lease;
(xiv) a Contract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Utah Disclosure Schedule;
(xv) any other agreement, contract or commitment which Utah Contract that is not terminable at will (with no penalty or payment) by Celladon Utah or any of its Subsidiaries, and (iA) which involves payment or receipt by Celladon Utah or such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, aggregate or (iiB) that is material to the business or operations of Celladon. Celladon Utah and its Subsidiaries taken as a whole; or
(b) Utah has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Utah Material Contracts, including all amendments thereto. There are no Celladon Utah Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon Utah has not nor, to the Utah’s Knowledge of Celladon, as of the date of this Agreement, has any other party to a Celladon an Utah Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Utah Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Utah Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon an Utah Material Adverse Effect. The consummation As to Utah and its Subsidiaries, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Utah Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Utah Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Utah under any Celladon Utah Material Contract or any other material term or provision of any Utah Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) Section 4.13(a) of the PubCo Disclosure Schedule lists the following PubCo Contracts in effect as of the date of this Agreement (each, a “PubCo Material Contract” and collectively, the “PubCo Material Contracts”):
(i) each Celladon PubCo Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon PubCo Contract requiring payments by PubCo after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Personcurrent PubCo Associate that is not immediately terminable at-will by PubCo without notice, including any employee, consultant or independent contractorseverance, or entity providing employment related, consulting other similar cost or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will;
(ciii) each Celladon PubCo Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or plan, stock purchase plan, severance plan, policy or agreement, any of the payments or benefits of which will be increased, or the vesting of benefits or payments of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the payments or benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) each Celladon PubCo Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ev) each Celladon PubCo Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon PubCo or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of PubCo’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of PubCo to conduct its business;
(fvi) each Celladon PubCo Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(gvii) each Celladon PubCo Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000;
(hviii) each Celladon PubCo Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances in each case in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon PubCo or any loans or debt obligations with officers or directors of CelladonPubCo;
(iix) each Celladon PubCo Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract PubCo after the date of this Agreement are in excess of $50,000 in the aggregate 100,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); , (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; PubCo, (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon PubCo has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon PubCo has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; PubCo, or (ivD) any Contract to license any Patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Celladon PubCo or any Contract to sell, distribute or commercialize any products or service of CelladonPubCo, in each case, except agreements for PubCo Contracts entered into in the Ordinary Course of Business;
(jx) each Celladon PubCo Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon PubCo in connection with the Contemplated Transactions;
(xi) each PubCo Real Estate Lease;
(xii) each PubCo Contract to which PubCo is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, PubCo in excess of $100,000; or
(kxiii) any other agreement, contract or commitment which PubCo Contract that is not terminable at will (with no penalty or payment) by Celladon PubCo, as applicable, and (iA) which involves payment or receipt by Celladon PubCo after the date of this Agreement under any such agreement, contract Contract or commitment of more than $50,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (iiB) that is material to the business or operations of Celladon. Celladon PubCo, taken as a whole.
(b) PubCo has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon PubCo Material Contracts, including all amendments thereto. There are no Celladon PubCo Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure SchedulePubCo has not, neither Celladon nor, nor to the Knowledge of CelladonPubCo’s Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon PubCo Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon PubCo Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such PubCo Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon PubCo Material Adverse Effect. The consummation As to PubCo, as of the Contemplated Transactions shall not (either alone date of this Agreement, each PubCo Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. As of the date of this Agreement, no Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any PubCo Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person PubCo under any Celladon PubCo Material Contract or any other material term or provision of any PubCo Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Celladon Company Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity Entity providing employment related, consulting or independent contractor services, not terminable by Celladon the Company or its Subsidiaries on ninety (90) days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit Celladonthe Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(ciii) each Celladon Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) each Celladon Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ev) each Celladon Company Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision;
(fvi) each Celladon Company Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(gvii) each Celladon Company Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(hviii) each Celladon Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of Celladon the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of Celladonthe Company;
(iix) each Celladon Company Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract Company after the date of this Agreement are in excess of $50,000 in the aggregate 100,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); , (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; the Company, (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; the Company or (ivD) any Contract to license any patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Celladon the Company or any Contract to sell, distribute or commercialize any products or service of Celladonthe Company, in each case, except agreements for Company Contracts entered into in the Ordinary Course of Business;
(jx) each Celladon Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease;
(xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(kxiii) any other agreement, contract or commitment which Company Contract that is not terminable at will (with no penalty or payment) by Celladon the Company or its Subsidiaries, as applicable, and (iA) which involves payment or receipt by Celladon the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, aggregate or (iiB) that is material to the business or operations of Celladon. Celladon the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Eiger Zordich accurate and complete (except for applicable redactions thereto) copies of all Celladon Company Material Contracts, including all amendments thereto. There are no Celladon Company Material Contracts that are not in written form. Except as set forth on Part 3.7 Neither the Company nor any of the Celladon Disclosure Scheduleits Subsidiaries has, neither Celladon nor, nor to the Knowledge of CelladonCompany’s Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon Company Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Company Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Company Material Adverse Effect. The consummation As to the Company and its Subsidiaries, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Company Material Contract to change, any material payment amount paid or payments becoming due from Celladon or payable to the Surviving Corporation to any Person Company under any Celladon Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Zafgen, Inc.)
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Yumanity Disclosure Schedule identifies:identifies (in each case, as applicable, excluding Contracts entered into in connection with a Permitted Asset Disposition):
(a) each Celladon Yumanity Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements, other than Yumanity Contracts on Yumanity’s standard form offer letter entered into in the Ordinary Course of Business;
(b) each Celladon Yumanity Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable at will by Celladon on ninety (90) days’ notice without liabilityYumanity or its Subsidiaries, except to the extent general principles of wrongful termination law may limit CelladonYumanity’s, Yumanity’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each Celladon Yumanity Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Celladon Yumanity Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon Yumanity and any of its officers or directors;
(e) each Celladon Yumanity Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon Yumanity or the Surviving Corporation its Subsidiaries to engage in any line of business or compete with any Person;
(f) each Celladon Yumanity Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 50,000 and not cancelable without penalty;
(g) each Celladon Yumanity Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Yumanity Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 50,000 or creating any material Encumbrances with respect to any assets of Celladon Yumanity or any Yumanity Subsidiary or any loans or debt obligations with officers or directors of CelladonYumanity;
(i) each Celladon Contract relating all Contracts pursuant to the following if currently in force and if the obligations of Celladon which Yumanity or a Yumanity Subsidiary grants any Person a license under such Celladon Contract after the date of this Agreement are in excess of $50,000 any Yumanity IP Rights, other than software licensed to customers in the aggregate Ordinary Course of Business;
(except that no dollar threshold shall apply j) other than “shrink wrap” and similar generally available commercial end-user licenses to software, all Contracts pursuant to which Yumanity or a Yumanity Subsidiary is licensed to use any Celladon Third-Party IP Rights outside the Ordinary Course of Business;
(k) each Yumanity Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) appointing a third party to distribute any distribution agreement Yumanity product, service or technology (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of for a third party to provide services or products with respect to any pre-clinical or clinical development activities of CelladonYumanity; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Yumanity or the Yumanity Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Yumanity or the Yumanity Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonYumanity or such Yumanity Subsidiary; or (iv) any Contract to license any third party to manufacture or produce any Yumanity product, service or technology of Celladon or any Contract to sell, distribute or commercialize any Yumanity products or service of Celladonservice, except agreements in the Ordinary Course of Business;
(jl) each Celladon Yumanity Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Yumanity in connection with the Contemplated Transactions; or
(km) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) Yumanity which involves payment or receipt by Celladon after Yumanity or the date of this Agreement Yumanity Subsidiaries under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon Yumanity has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Yumanity Material Contracts, including all amendments thereto. There are no Celladon Yumanity Material Contracts that are not in written form. Except as set forth on in Part 3.7 of the Celladon Yumanity Disclosure Schedule, neither Celladon Yumanity nor any of the Yumanity Subsidiaries nor, to the Knowledge of CelladonYumanity’s Knowledge, as of the date of this Agreement, has any other party to a Celladon Yumanity Material Contract (as defined below) has breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Yumanity or the Yumanity Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (kl) above (any such agreement, contract or commitment, a an “Celladon Yumanity Material Contract”) in such manner as would permit any party to cancel or terminate any Yumanity Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Material Adverse Effectbe material. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon Yumanity or the Surviving Corporation any Yumanity Subsidiary to any Person under any Celladon Yumanity Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) each Celladon Contract relating As of the date hereof, SmarterKids is not a party to any bonusexisting contract, deferred compensationobligation or commitment (including amendments, severance, incentive compensation, pension, profit-sharing supplements or retirement plans, modifications thereof (whether orally or in writing)) of any other employee benefit plans type in any of the following categories except for contracts filed as exhibits to the SmarterKids SEC Reports or arrangementsset forth in the SmarterKids Disclosure Schedule (true and complete copies of which contracts have been delivered to or made available to Earlychildhood):
(i) contracts that provide for annual payments to or by SmarterKids aggregating in excess of $150,000;
(bii) each Celladon Contract relating to contract of SmarterKids that was not entered into in the employment of, or the performance ordinary course of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at willbusiness;
(ciii) contracts under which SmarterKids has or may, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (x) the performance under a contract of any other person, firm or corporation or (y) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation, in all cases, individually in excess of $1,000,000 and in the aggregate in excess of $5,000,000;
(iv) employment agreements, consulting agreements, contracts or commitments with any employee or member of SmarterKids' Board of Directors, other than those which are terminable by SmarterKids on not more than thirty days notice without liability or financial obligation, and within each Celladon Contract relating to such category of agreements, contracts or commitments, which are individually in excess of $150,000;
(v) any agreement agreements or planplans, including including, without limitation, any stock option planoption, stock appreciation right plan or stock purchase planplans or agreements, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactionstransactions contemplated by this Agreement;
(dvi) each Celladon Contract relating to any agreement contract with any director, officer or more than 5% stockholder of indemnification or guaranty not entered into in the Ordinary Course of Business SmarterKids, other than indemnification agreements between Celladon and in such person's capacity as a director or officer of SmarterKids, or any contract with any entity in which, to the knowledge of its officers SmarterKids, any director, officer or directorsmore than 5% stockholder or any family member of any director, officer or stockholder has a material economic interest;
(evii) each Celladon Contract relating to any agreement, contract that limits or commitment containing restricts in any covenant limiting the freedom of Celladon material respect where SmarterKids may conduct its business or the Surviving Corporation to engage in any type or line of business or compete with any Personthat Earlychildhood may engage in;
(fviii) each Celladon Contract relating any powers of attorney outstanding (other than those issued in the ordinary course of business with respect to Tax matters), or material obligations or liabilities (absolute or contingent) as guarantor, surety, cosigner, endorser, co-maker, indemnitor, or otherwise respecting the obligations or liabilities of any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penaltyperson;
(gix) each Celladon Contract relating to any agreement, material contract or commitment currently in force relating to the disposition or acquisition of material assets or containing any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any Encumbrances agreement with respect to any assets change of Celladon or any loans or debt obligations with officers or directors of Celladon;control; and
(ix) each Celladon Contract relating to material amendment, supplement and modification (whether oral or written) in respect of any of the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;foregoing.
(jb) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is SmarterKids has not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received in writing any claim or notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such material agreement, contract or commitment, a “Celladon commitment filed or required to be filed as an exhibit to the SmarterKids SEC Reports or set forth or required to be set forth in Section 4.11 of the A-30 SmarterKids Disclosure Schedule ("SmarterKids Material Contract”Contracts") in such a manner as would permit any other party to seek damages which would as, individually or in the aggregate, is reasonably be expected likely to have a Celladon SmarterKids Material Adverse Effect. The consummation Each SmarterKids Material Contract that has not expired by its terms is in full force and effect, except for those contracts the ineffectiveness of which would not reasonably be likely to have a SmarterKids Material Adverse Effect, and, if all of the Contemplated Transactions shall not consents, approvals, authorizations, filings, notifications and other actions listed with respect to such contract in the SmarterKids Disclosure Schedule are obtained, taken or made, as applicable, such contract will continue, after the Effective Time, to be in full force and effect on identical terms.
(either alone or upon c) To SmarterKids' knowledge, none of the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation parties to any Person SmarterKids Material Contract have terminated, or notified SmarterKids in writing of its intent to materially reduce or terminate its business relationship with SmarterKids in the future.
(d) SmarterKids has not received written notice from any customer, or group of customers, that are under common ownership or control, and that accounted for a material percentage of the aggregate products and services furnished by SmarterKids since January 1, 1999 that such customer or group of customers has stopped or intends to stop purchasing SmarterKids' products or services, nor has SmarterKids lost any Celladon Contractsupplier, or group of suppliers that are under common ownership or control, that accounted for a material percentage of the aggregate supplies purchased by SmarterKids since January 1, 1999.
Appears in 1 contract
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Agreements, Contracts and Commitments. (a) Except as listed in Part 3.7 3.9(a) of the Celladon Biosight Disclosure Schedule identifiesSchedule, as of the date of this Agreement, neither Biosight nor any of its Subsidiaries is a party to or bound by any:
(ai) each Celladon Biosight Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon Biosight Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Biosight or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit CelladonBiosight, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(ciii) each Celladon Biosight Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions Transactions, including the Merger (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of indebtedness, in each Celladon Contract relating to any agreement case providing for indebtedness in excess of indemnification or guaranty not entered into in the Ordinary Course of Business $100,000, other than indemnification agreements indebtedness solely between Celladon or among any of Biosight and any of its officers or directorswholly owned Subsidiaries;
(ev) each Celladon Biosight Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon Biosight, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or compete with any Person;
(fvi) each Celladon Biosight Contract that contains a put, call, right of first refusal or similar right pursuant to which Biosight or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person;
(vii) material settlement agreement or similar agreement with a Governmental Authority to which Biosight or any of its Subsidiaries is a party that contains material obligations or limitations on Biosight or such Subsidiary’s conduct;
(viii) Biosight Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(gix) each Celladon Biosight Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit Entity in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladon100,000;
(ix) each Celladon Biosight Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; Biosight (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Biosight or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Biosight or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonBiosight or such Subsidiary; or (iv) any Contract currently in force to license any third party to manufacture or produce any Biosight product, service or technology of Celladon or any Contract currently in force to sell, distribute or commercialize any Biosight products or service of Celladonservice, except except, in each case, agreements entered in the Ordinary Course of Business;
(jxi) each Celladon Biosight Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Biosight in connection with the Contemplated Transactionstransactions set forth in this Agreement, including the Merger;
(xii) Biosight Contract pursuant to which any Biosight IP Rights are licensed by or to Biosight or any of its Subsidiaries, other than (A) “shrink wrap” or other licenses for generally commercially available software (including open source software) or hosted services, (B) customer or channel partner Biosight Contracts substantially on Biosight or any of its Subsidiaries’ standard forms, (C) Biosight Contracts that authorizes Biosight or any of its Subsidiaries to identify another Person as a customer, vendor, supplier or partner or that authorizes another Person to identify Biosight or any of its Subsidiaries as a customer, vendor, supplier or partner of such Person, (D) Biosight Contracts that provide a limited, non-exclusive license to use the trademarks included in the Biosight IP Rights to promote any products or services of Biosight or its Subsidiaries or to otherwise provide such products or services to others, (E) Biosight Contracts with Biosight’s or its Subsidiaries’ employees or contractors substantially on Biosight’s or its Subsidiaries’ standard forms, and (F) non-disclosure agreements (the “Biosight Standard Contracts”); or
(kxiii) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement Biosight or its Subsidiaries under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that may not be terminable with no liability or cost within ninety (90) days; Each such Contract described in clauses (i) through (xiii) is material referred to the business or operations of Celladon. Celladon herein as an “Biosight Material Contract”.
(b) Biosight has delivered or made available to Eiger Advaxis accurate and complete (except for applicable redactions thereto) copies of all Celladon Biosight Material Contracts, including all amendments thereto. There are no Celladon Biosight Material Contracts that are not in written form. Except as set forth on Part 3.7 would not reasonably be expected to have, individually or in the aggregate, a Biosight Material Adverse Effect, (i) neither Biosight nor any of the Celladon Disclosure Schedule, neither Celladon norits Subsidiaries is (and, to the Knowledge of CelladonBiosight, no other party is) in default under or breach of any Contract to which Biosight is a party, there are no events or conditions, including with respect to any events or conditions as a result of the date COVID-19 pandemic, which constitute, or, after notice or lapse of this Agreementtime or both, will constitute, a default on the part of Biosight or any of its Subsidiaries or, to the Knowledge of Biosight, any counterparty under such Biosight Contract, (ii) each of the Biosight Material Contracts is in full force and effect and is a valid, binding and enforceable obligation of Biosight and its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other party forms of equitable relief may be subject to a Celladon equitable defenses and to the discretion of the court before which any proceedings therefor may be brought, and (C) to the extent that any Biosight Material Contract expires in accordance with its terms, and (as defined belowiii) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of Biosight and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the terms or conditions of any of the agreements, contracts or commitments Biosight Material Contracts to which Celladon is they are a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Material Contract”) in such manner as would permit any other party to seek damages which would reasonably be expected to have a Celladon Material Adverse Effect. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation to any Person under any Celladon Contractparty.
Appears in 1 contract
Sources: Merger Agreement (Advaxis, Inc.)
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) Section 2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Celladon Company Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(bii) each Celladon Company Contract requiring payments by the Company after the date of this Agreement in excess of $150,000 per year pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment employment-related, consulting or independent contractor services, not terminable by Celladon the Company or its Subsidiaries on ninety (90) 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit Celladonthe Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(ciii) each Celladon Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) ), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(div) each Celladon Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsBusiness;
(ev) each Celladon Company Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision;
(fvi) each Celladon Company Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations requiring payments after the date of this Agreement in excess of $100,000 250,000 pursuant to its express terms and not cancelable without penalty;
(gvii) each Celladon Company Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(hviii) each Celladon Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 250,000 or creating any material Encumbrances with respect to any assets of Celladon the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of Celladonthe Company;
(iix) each Celladon Company Contract relating requiring payment by or to the following if currently in force and if the obligations of Celladon under such Celladon Contract Company after the date of this Agreement are in excess of $50,000 in the aggregate 250,000 pursuant to its express terms relating to: (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (iA) any distribution agreement (identifying any that contain exclusivity provisions); (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladonthe Company; (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladonthe Company; or (ivD) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon the Company or any Contract to sell, distribute or commercialize any products or service of Celladonthe Company, in each case, except agreements for Company Contracts entered into in the Ordinary Course of Business;
(jx) each Celladon Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon the Company in connection with the Contemplated Transactions;
(xi) each Company Real Estate Lease; or
(kxii) any other agreement, contract or commitment which Company Contract that is not terminable at will (with no penalty or payment) by Celladon the Company or its Subsidiaries, as applicable, and (iA) which involves payment or receipt by Celladon the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 250,000 in the aggregate, or (iiB) that is material to the business or operations of Celladon. Celladon the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Eiger Nautilus accurate and complete (except for applicable redactions thereto) copies of all Celladon Company Material Contracts, including all amendments thereto. There Except as set forth in Section 2.13(b) of the Company Disclosure Schedule, there are no Celladon Company Material Contracts that are not in written form. Except as set forth on Part 3.7 Neither the Company nor any of the Celladon Disclosure Scheduleits Subsidiaries has, neither Celladon nor, nor to the Knowledge of CelladonCompany’s Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon Company Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Company Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Company Material Adverse Effect. The consummation As to the Company and its Subsidiaries, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Company Material Contract to change, any material payment amount paid or payments becoming due from Celladon or payable to the Surviving Corporation to any Person Company under any Celladon Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 3.9 of the Celladon Axonyx Disclosure Schedule identifies:
(a) each Celladon Axonyx Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) each Celladon Axonyx Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Axonyx or its Subsidiaries on ninety (90) days’ days notice without liability, except to the extent general principles of wrongful termination law may limit CelladonAxonyx’s or the Subsidiaries’ ability to terminate employees at will;
(c) each Celladon Axonyx Contract relating to any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as a termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Celladon Axonyx Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon Axonyx and any of its officers or directors;
(e) each Celladon Axonyx Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon Axonyx or the Surviving Corporation its Subsidiaries to engage in any line of business or compete with any Person;
(f) each Celladon Axonyx Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(g) each Celladon Axonyx Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Axonyx Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon Axonyx or any Axonyx Subsidiary or any loans or debt obligations with officers or directors of CelladonAxonyx;
(i) each Celladon Axonyx Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; Axonyx, (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Axonyx or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Axonyx or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonAxonyx or such Axonyx Subsidiary; or (iv) any Contract agreement, contract or commitment currently in force to license any third party to manufacture or produce any Axonyx product, service or technology of Celladon or any Contract agreement, contract or commitment currently in force to sell, distribute or commercialize any Axonyx products or service of Celladon, except agreements with distributors or sales representatives in the Ordinary Course of Business;
(j) each Celladon Axonyx Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon Axonyx in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement Axonyx or its Subsidiaries under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that is material to the business or operations of CelladonAxonyx and its Subsidiaries. Celladon Axonyx has delivered or made available to Eiger TorreyPines accurate and complete (except for applicable redactions thereto) copies of all Celladon Material material written TorreyPines Contracts, including all amendments thereto. There are no Celladon Material Axonyx Contracts that are not in written form. Except as set forth on Part 3.7 3.9 of the Celladon Axonyx Disclosure Schedule, neither Celladon norAxonyx nor any of its Subsidiaries has, nor to the Knowledge of CelladonAxonyx’s Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon Axonyx Material Contract (as defined below) has ), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Axonyx or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (kj) above (any such agreement, contract or commitment, a “Celladon Axonyx Material Contract”) in such manner as would permit any other party to cancel or terminate any such Axonyx Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Axonyx Material Adverse Effect. As to Axonyx and its Subsidiaries, as of the date of this Agreement, each Axonyx Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or Axonyx, any Axonyx Subsidiary, the Surviving Corporation or TorreyPines or any TorreyPines Subsidiary to any Person under any Celladon Axonyx Contract or give any Person the right to terminate or alter the provisions of any Axonyx Contract. No Person is renegotiating, or has a right pursuant to the terms of any Axonyx Material Contract to renegotiate, any amount paid or payable to Axonyx under any Axonyx Material Contract or any other material term or provision of any Axonyx Material Contract. Part 3.9 of the Axonyx Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Axonyx (other than term sheets and proposals provided by Axonyx or to Axonyx by any party related to the subject matter of this transaction or an Acquisition Proposal made prior to the date hereof) that if entered into by Axonyx or any Axonyx Subsidiary would be a Axonyx Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Axonyx Inc)
Agreements, Contracts and Commitments. Part 3.7 Schedule 2.13 includes a list of all ------------------------------------- ------------- agreements, contracts and commitments, written or oral, to which Genius is a party or by which it is bound, excluding all agreements, contracts or commitments which pertain solely and exclusively to the portion of the Celladon Disclosure Schedule identifies:Business which consists of the Retained Assets, including the following (provided, however, that no agreements, contracts or commitments representing liability in excess of DM 5.000 individually and DM 50.000 in the aggregate need to be so scheduled):
(a) each Celladon Contract relating to any collective bargaining agreements;
b) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements, (collectively "BENEFIT ARRANGEMENTS"). Each Benefit Arrangement has been maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, laws, ordinances and regulations which are applicable to such Benefit Arrangements. No Benefit Arrangement has unfunded liabilities that, as of the Closing Date, will not be offset by insurance or fully accrued or reserved against in the Summary Financial Information. Except as required by law, no condition exists that would prevent Autodesk or any of its subsidiaries from amending or terminating any Benefit Arrangement;
(bc) each Celladon Contract relating to the any employment ofor consulting agreement, contract or the performance of employment-related services by, commitment with any Person, including any officer or director level employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Genius on ninety thirty (9030) days’ or fewer days notice without liability, except to the extent general principles of wrongful termination law in the Federal Republic of Germany and other jurisdictions may limit Celladon’s Genius' ability to terminate employees at will;
(cd) each Celladon Contract relating to any agreement or plan, including without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any Acquisition and the other event, such as termination of employment) transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated TransactionsAcquisition and the other transactions contemplated by this Agreement;
(de) each Celladon Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Business business other than indemnification such agreements or guarantees between Celladon Genius and any of its subsidiaries, officers or directors;
(ef) each Celladon Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation Genius to engage in any line of business or compete with any Personperson;
(fg) each Celladon Contract relating to any outstanding agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penaltyfuture obligations;
(gh) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets Genius Assets not in the ordinary course of business or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise;
(hi) each Celladon Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than trade credit agreements entered into in excess the ordinary course of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladonbusiness;
j) any joint marketing or development agreements (i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 excluding agreements with resellers, value added resellers or independent software vendors entered into in the aggregate (except ordinary course of business that no dollar threshold shall apply do not permit such resellers or vendors to any Celladon Contract that, to modify the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereofGenius Products)): (i;
k) any distribution agreement (identifying any that contain exclusivity provisions); (ii, including distribution agreements involving Genius' subsidiary GCS Scandinavia AB;
l) any agreement involving provision of services licenses, sublicenses, confidential disclosure, employee proprietary information agreements, or products with respect other agreements relating to any prepatents, trademarks, copyrights, technical assistance, know-clinical or clinical development activities of Celladon; (iiihow, inventions, trade secrets, and similar intellectual property arrangements;
m) any dealer, distributormajor account, joint marketingsales, alliancesales representative or marketing agreements, joint venture, cooperation, development including those dealer agreements involving GCS Scandinavia AB;
n) any lease for real or other personal property;
o) any authorized Training Center agreements;
p) any agreement currently in force under which Celladon has continuing obligations to develop purchase goods or market any product, technology or service, services after the Closing or any agreement pursuant to which Celladon has continuing obligations purchase goods or services prior to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements the Closing other than in the Ordinary Course ordinary course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactionsbusiness; or
(kq) any other agreementagreement to produce, contract market and sell products related to the Genius Products. Those agreements, contracts and commitments on Schedule 2.13 which are ------------- specifically designated (the "CONTRACTS") shall be assigned by Genius to Autodesk at the Closing effective upon receipt of whatever third party consents or commitment which is not terminable at will (with no penalty approvals as may be required under the terms of such agreements, contracts or payment) by Celladon and commitments. Except for such (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreementbreaches, contract or commitment of more than $50,000 in the aggregateviolations and defaults, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) alleged breaches, violations and defaults, and (iii) events that is material would constitute a breach, violation or default with the lapse of time, the giving of notice, or both, which are noted in Schedule 2.13 or which reasonably would not be expected ------------- to the business or operations of Celladon. Celladon have a Material Adverse Effect, Genius has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Contract required to be set forth in Schedule 2.13. Each Contract is in full force and effect and, except as ------------- otherwise disclosed in Schedule 2.13, is not subject to any default thereunder ------------- of which Genius has knowledge by any party obligated to Genius pursuant thereto. Genius has obtained, or will use its best efforts to obtain with the reasonable assistance and cooperation of Autodesk prior to the Closing Date, all necessary consents, waivers and approvals of parties to or affected by any Contract as are required to assign all rights, interests and benefits thereunder to Autodesk as of the agreementsClosing. Genius has marked in a manner which specifically indicates each Contract requiring consent, contracts waiver or commitments approval by a contracting party other than Genius in order that any rights, interests or benefits thereunder can be assigned to which Celladon is a party or by which it is bound Autodesk in accordance with the requirements of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Material Contract”) in such manner as would permit any other party to seek damages which would reasonably be expected to have a Celladon Material Adverse Effect. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation to any Person under any Celladon Contractthis Agreement.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 (a) Section 3.13 of the Celladon Clywedog Disclosure Schedule identifiesidentifies each Clywedog Contract that is in effect as of the date of this Agreement and is:
(ai) each Celladon Clywedog Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing agreement of indemnification or retirement plans, or any other employee benefit plans or arrangementsguaranty not entered into in the Ordinary Course of Business;
(bii) each Celladon Clywedog Contract where any of Clywedog’s assets and properties is currently bound, which, pursuant to the express terms thereof, require annual obligations of payment by, or annual payments to, Clywedog in excess of $250,000,
(iii) each Clywedog Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(iv) each Clywedog Contract (A) requiring payments by Clywedog in excess of $250,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or individual independent contractor, or entity providing employment employment-related, consulting or independent contractor services, services or (B) that is not terminable by Celladon Clywedog or its Subsidiaries on ninety thirty (9030) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit CelladonClywedog’s, its Subsidiaries or such successor’s ability to terminate employees at will;
(cv) each Celladon Clywedog Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will could be increased, or the vesting of benefits of which will could be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) service), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(dvi) each Celladon Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsClywedog Real Estate Lease;
(evii) each Celladon Clywedog Contract relating disclosed in or required to any agreement, contract be disclosed in Section 3.12(b) or commitment Section 3.12(c) of the Clywedog Disclosure Schedule;
(viii) each Clywedog Contract containing (A) any covenant limiting the freedom of Celladon Clywedog, its Affiliates or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of Clywedog’s products or services, (B) any most-favored pricing arrangement, (C) any exclusivity provision, (D) any non-solicitation provision, or (E) any grant of any option to any Intellectual Property;
(fix) each Celladon Clywedog Contract relating with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to any agreement, contract Clywedog or commitment relating to capital expenditures and involving obligations after its Affiliates in connection with the date of this Agreement in excess of $100,000 and not cancelable without penaltyContemplated Transactions;
(gx) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Clywedog Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 250,000 or creating any material Encumbrances with respect to any assets of Celladon Clywedog or any of its Subsidiaries or any loans or debt obligations with officers or directors of CelladonClywedog;
(ixi) each Celladon Clywedog Contract relating to the following if currently in force capital expenditures and if the obligations of Celladon under such Celladon Contract requiring payments after the date of this Agreement are in excess of $50,000 in the aggregate 250,000 pursuant to its express terms and not cancelable without penalty;
(except that no dollar threshold shall apply xii) each Clywedog Contract requiring payment by or to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to Clywedog after the date hereof)): of this Agreement in excess of $250,000 pursuant to its express terms relating to: (iA) any distribution agreement (identifying any that contain exclusivity provisions); , (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; Clywedog, (iiiC) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon Clywedog has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon Clywedog has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; Clywedog or (ivD) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of Celladon Clywedog or any Contract to sell, distribute or commercialize any products or service of CelladonClywedog, in each case, except agreements for Clywedog Contracts entered into in the Ordinary Course of Business;
(jxiii) each Celladon Clywedog Contract with under which a third party would be entitled to receive a license or have any Personother rights in Intellectual Property of Clywedog, including Beacon or any financial advisorof their Affiliates at the time of or immediately after the Merger Effective Time;
(xiv) a Labor Agreement;
(xv) each Clywedog Contract providing for severance, brokertermination compensation, finderretention or stay pay, investment banker change in control payments, or other Person, providing advisory services to Celladon in connection with the Contemplated Transactionstransaction-based bonuses; or
(kxvi) any other agreement, contract or commitment which Clywedog Contract that is not terminable at will (with no penalty or payment) by Celladon Clywedog, and (iA) which involves payment or receipt by Celladon Clywedog after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 250,000 in the aggregate, aggregate or (iiB) that is material to the business or operations of Celladon. Celladon Clywedog taken as a whole.
(b) Clywedog has delivered or made available to Eiger the Beacon accurate and complete (except for applicable redactions thereto) copies of all Celladon Clywedog Contracts described in clauses (i)-(xvi) of the immediately preceding sentence (any such Clywedog Contract, a “Clywedog Material ContractsContract”), including all amendments thereto. There are no Celladon Clywedog Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure ScheduleNeither Clywedog nor any if Subsidiaries has, neither Celladon nor, nor to the Knowledge of Celladon, Clywedog as of the date of this Agreement, has any other party to a Celladon Clywedog Material Contract (as defined below) has Contract, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Clywedog Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Clywedog Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Clywedog Material Adverse Effect. The consummation As to Clywedog and its Subsidiaries, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Clywedog Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating or upon has a right pursuant to the occurrence terms of additional acts any Clywedog Material Contract or events) result in any other material payment term or payments becoming due from Celladon or the Surviving Corporation to provision of any Person under any Celladon Clywedog Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 2.9 of the Celladon TorreyPines Disclosure Schedule identifies:
(a) each Celladon TorreyPines Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) each Celladon TorreyPines Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon TorreyPines or its Subsidiaries on ninety (90) days’ days notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s TorreyPines’ or TorreyPines’ Subsidiaries’ ability to terminate employees at will;
(c) each Celladon TorreyPines Contract relating to any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Celladon TorreyPines Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon TorreyPines and any of its respective officers or directors;
(e) each Celladon TorreyPines Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon TorreyPines or the Surviving Corporation its Subsidiaries to engage in any line of business or compete with any Person;
(f) each Celladon TorreyPines Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty;
(g) each Celladon TorreyPines Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon TorreyPines Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon TorreyPines or any TorreyPines Subsidiary or any loans or debt obligations with officers or directors of CelladonTorreyPines;
(i) each Celladon TorreyPines Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; TorreyPines (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon TorreyPines or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon TorreyPines or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CelladonTorreyPines or such TorreyPines Subsidiary; or (iv) any Contract agreement, contract or commitment currently in force to license any third party to manufacture or produce any TorreyPines product, service or technology of Celladon or any Contract agreement, contract or commitment currently in force to sell, distribute or commercialize any TorreyPines products or service of Celladon, except agreements with distributors or sales representatives in the Ordinary Course of Business;
(j) each Celladon TorreyPines Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon TorreyPines in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement TorreyPines or its Subsidiaries under any such agreement, contract or commitment of $100,000 or more than $50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 100,000 in the aggregate, or (ii) that is material to the business or operations of CelladonTorreyPines and its Subsidiaries. Celladon TorreyPines has delivered or made available to Eiger Axonyx accurate and complete (except for applicable redactions thereto) copies of all Celladon Material material written TorreyPines Contracts, including all amendments thereto. There are no Celladon Material TorreyPines Contracts that are not in written form. Except as set forth on Part 3.7 2.9 of the Celladon TorreyPines Disclosure Schedule, neither Celladon norTorreyPines nor any of its Subsidiaries has, nor to the Knowledge of CelladonTorreyPines’ Knowledge, as of the date of this Agreement, Agreement has any other party to a Celladon TorreyPines Material Contract (as defined below) has ), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon TorreyPines or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon TorreyPines Material Contract”) in such manner as would permit any other party to cancel or terminate any such TorreyPines Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon TorreyPines Material Adverse Effect. As to TorreyPines and its Subsidiaries, as of the date of this Agreement, each TorreyPines Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or TorreyPines, any TorreyPines Subsidiary, the Surviving Corporation or Axonyx or any Axonyx Subsidiary to any Person under any Celladon TorreyPines Contract or give any Person the right to terminate or alter the provisions of any TorreyPines Contract. No Person is renegotiating, or has a right pursuant to the terms of any TorreyPines Material Contract to renegotiate, any amount paid or payable to TorreyPines under any TorreyPines Material Contract or any other material term or provision of any TorreyPines Material Contract. Part 2.9 of the TorreyPines Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by TorreyPines (other than term sheets and proposals provided by TorreyPines or to TorreyPines by any party related to the subject matter of this transaction or an Acquisition Proposal made prior to the date hereof) that if entered into by TorreyPines or any TorreyPines Subsidiary would be a TorreyPines Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Axonyx Inc)
Agreements, Contracts and Commitments. Part 3.7 Except as set forth in Section 2.17 of the Celladon Disclosure Schedule identifies(specifying the appropriate paragraph), neither the Company nor any Proxima Subsidiary is a party to, or bound by:
(ai) each Celladon Contract relating any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than "at will" employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plansemployee, or any consulting or sales agreement, contract, or commitment with a firm or other employee benefit plans or arrangementsorganization;
(bii) each Celladon Contract relating to other than the employment ofCompany's Amended and Restated Option Plan, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will;
(c) each Celladon Contract relating to any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactionstransactions contemplated by this Agreement;
(diii) each Celladon Contract relating to any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate;
(v) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty not entered into in the Ordinary Course excess of Business $25,000, other than the Company's or any Proxima Subsidiary's indemnification agreements between Celladon and any of its officers or directorsobligations under their respective End User Agreements;
(evii) each Celladon Contract relating to any agreement of indemnification under any End User Agreement that (A) does not eliminate the Company's or any Proxima Subsidiary's potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company or any Proxima Subsidiary's under such agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation to engage in any line of business or compete with any Person;
(fviii) each Celladon Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement future payments in excess of $25,000 individually or $100,000 and not cancelable without penaltyin the aggregate;
(gix) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the business;
(hx) each Celladon Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit;
(xi) any purchase order or contract for the purchase of materials involving in excess of $100,000 or creating any Encumbrances with respect to any assets of Celladon or any loans or debt obligations with officers or directors of Celladon25,000 individually;
(i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (ixii) any distribution agreement construction contracts;
(identifying any that contain exclusivity provisions); (iixiii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any partnership, dealer, distributordistribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar agreement;
(xiv) any agreement, contract or commitment to alter the Company's interest in any corporation, association, joint venture, cooperationpartnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any sales representative, development original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement currently in force under which Celladon has continuing obligations to develop for use or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology distribution of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated TransactionsCompany Products; or
(kxvi) other than customer purchase orders, any other agreement, contract or commitment which that involves $25,000 individually or $100,000 in the aggregate or more with respect to any Person and is not terminable at will cancelable without penalty within 30 days.
(with no penalty or paymentb) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations after the date of this Agreement in excess of $50,000 in the aggregate, or (ii) that is material to the business or operations of Celladon. Celladon has delivered or made available to Eiger accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 in Section 2.17(b) of the Celladon Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's consolidated net sales. Section 2.17(b) of the Disclosure Schedule contains a list of the Company's (on a consolidated basis) 10 largest resellers for each of the last fiscal year and the nine months ended September 30, 2006 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, neither Celladon northe Company nor any Proxima Subsidiary has received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company or the Proxima Subsidiaries. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a "Material Contract" and collectively, the "Material Contracts") have been delivered to the Knowledge Buyer. Each Material Contract to which the Company or the Proxima Subsidiaries is a party or any of Celladontheir properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or the Proxima Subsidiaries enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or the Proxima Subsidiaries, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Company and/or the Proxima Subsidiaries, as of the date of this Agreementapplicable, any other party to a Celladon Material Contract (as defined below) is in compliance with and has not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any such Material Contract. No party obligated to the Company or any Proxima Subsidiary pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would constitute such a breach, violation or default under such Material Contract by any such other party.
(c) Each of the agreements, contracts or commitments to which Celladon is a party or by which it is bound Company and each of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a “Celladon Proxima Subsidiaries has fulfilled all of their respective obligations required pursuant to each Material Contract”) in such manner as would permit any other party to seek damages which would reasonably be expected Contract to have a Celladon Material Adverse Effect. The consummation been performed by the Company and each of the Contemplated Transactions shall not Proxima Subsidiaries, as applicable, prior to the date hereof.
(either alone or upon d) All outstanding indebtedness of the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or Company and the Surviving Corporation to any Person under any Celladon ContractProxima Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 Section 4.13 of the Celladon Parent Disclosure Schedule identifiesidentifies each Parent Contract that is in effect as of the date of this Agreement and is:
(ai) each Celladon Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profita material contract as defined in Item 601(b)(10) of Regulation S-sharing or retirement plans, or any other employee benefit plans or arrangementsK as promulgated under the Securities Act;
(bii) each Celladon a Contract to which Parent is a party or by which any of its assets and properties is currently bound, which, pursuant to the express terms thereof, require annual obligations of payment by, or annual payments to, Parent in excess of $2,500,000;
(iii) a Contract requiring payments by Parent or any of its Subsidiaries after the date of this Agreement in excess of $300,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or individual independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon Parent or its Subsidiaries on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law Law may limit CelladonParent’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(civ) each Celladon Parent Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will could be increased, or the vesting of benefits of which will could be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) service), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(dv) each Celladon a Parent Real Estate Lease or a Contract relating disclosed in or required to any agreement be disclosed in Section 4.12(b) or Section 4.12(c) of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any of its officers or directorsParent Disclosure Schedule;
(evi) each Celladon a Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of Celladon Parent, its Affiliates or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Parent’s products or services or (B) any grant of any option to any Intellectual Property rights;
(fvii) each Celladon a Contract relating with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to any agreement, contract Parent or commitment relating to capital expenditures and involving obligations after its Affiliates in connection with the date of this Agreement in excess of $100,000 and not cancelable without penaltyContemplated Transactions;
(gviii) each Celladon Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 200,000 or creating any material Encumbrances with respect to any assets of Celladon Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of Celladon;
(i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated TransactionsParent; or
(kix) a Contract under which a third party would be entitled to receive a license or have any other agreementrights in Intellectual Property of the Company, contract Parent or commitment which is not terminable any of their Affiliates at will (with no penalty the time of or payment) by Celladon and (i) which involves payment or receipt by Celladon immediately after the date of this Agreement under any such agreementEffective Time,; or
(x) a Contract, contract or commitment of more than $50,000 in the aggregateplan, program, or obligations after the date of this Agreement policy providing for severance, termination compensation, retention or stay pay, change in excess of $50,000 in the aggregatecontrol payments, or (ii) that is material to the business or operations of Celladontransaction-based bonuses. Celladon Parent has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Parent is a party or by which it is bound of the type described in clauses (ai)-(x) through (k) above of the immediately preceding sentence (any such agreement, contract or commitmentContract, a “Celladon Parent Material Contract”) ), including all amendments thereto. Parent has not nor, to Parent’s Knowledge as of the date of this Agreement, has any other party to a Parent Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Parent Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon Parent Material Adverse Effect. The consummation As to Parent, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Parent Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Parent under any Celladon Parent Material Contract or any other material term or provision of any Parent Material Contract.
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Agreements, Contracts and Commitments. Part 3.7 3.9 of the Celladon CGI Disclosure Schedule identifies, except for CGI Contracts set forth in Part 3.13 of the CGI Disclosure Schedule:
(a) each Celladon CGI Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plansthe retention of, or the performance of services by, any other employee benefit plans individual consultant or arrangementsindependent contractor not terminable by CGI on 90 or fewer days’ notice without liability;
(b) each Celladon employment, management, service and/or consulting Contract relating to the employment of, or the performance providing for annual compensation in excess of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will$100,000;
(c) each Celladon CGI Contract relating to any agreement providing for severance in excess of amounts required by law, retention, change in control or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactionssimilar payments;
(d) each Celladon CGI Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon CGI and any of its officers or directors;
(e) each Celladon CGI Contract relating to any agreement, contract or commitment containing (i) any covenant limiting the freedom of Celladon CGI or the Surviving Corporation to engage in any line of business or compete with any PersonPerson or (ii) any exclusivity provisions binding on CGI;
(f) each Celladon Contract relating to any agreement, contract or commitment all CGI Contracts relating to capital expenditures and involving obligations by CGI after the date of this Agreement in excess of $100,000 individually or in the aggregate and not cancelable without penalty;
(g) each Celladon CGI Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(h) each Celladon Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments all CGI Contracts relating to the borrowing of money or extension of credit in excess of $100,000 150,000 individually or in the aggregate or creating any material Encumbrances with respect to any assets of Celladon CGI or any loans or debt obligations with officers or directors of CelladonCGI;
(i) each Celladon Contract relating to the following if currently in force and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are all CGI Contracts involving payment or receipt by CGI in excess of $50,000 150,000 in the aggregate (except that no dollar threshold shall apply relating to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); or (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; CGI;
(iiij) each CGI Contract involving (i) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, partnership, development or other agreement currently in force under which Celladon CGI has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Celladon CGI has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; CGI or (ivii) any Contract to license any third party to manufacture or produce any CGI product, service or technology of Celladon or any Contract to sell, distribute sell or commercialize any CGI products or service of Celladon, except agreements with sales representatives in the Ordinary Course of Business;
(jk) each Celladon CGI Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon CGI in connection with the Contemplated Transactions;
(l) each CGI Contract under which CGI is a licensee of or is otherwise granted by a third party any rights to use any CGI Third Party Intellectual Property (other than (i) non-exclusive licenses of commercially available software with an annual license fee of less than $30,000 for each such agreement and (ii) agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements or CGI’s business);
(m) each CGI Contract under which CGI is a licensor or otherwise grants to a third party any rights to use any CGI Intellectual Property or CGI Third Party Intellectual Property (other than agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements); or
(kn) any all other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and CGI Contracts (i) which involves involve payment or receipt by Celladon after the date CGI under such Contracts of this Agreement under any such agreement, contract $150,000 or commitment of more than $50,000 individually or in the aggregate, aggregate or obligations after the date of this Agreement in excess of $50,000 150,000 individually or in the aggregate, aggregate or (ii) that is are material to the business or operations of CelladonCGI. Celladon CGI has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon CGI Material ContractsContracts (as defined below), including all amendments thereto. There are no Celladon CGI Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure ScheduleNeither CGI, neither Celladon nor, nor to the Knowledge of Celladon, as of the date of this AgreementCGI’s Knowledge, any other party to a Celladon CGI Material Contract (as defined below) Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments Contracts to which Celladon CGI is a party or by which it is bound of the type described in clauses (a) through (kn) above (any such agreement, contract or commitmentContract, a “Celladon CGI Material Contract”) in such manner as would permit any other party to cancel or terminate any such CGI Material Contract, or would permit any other party to seek damages damages, in each case which has had or would reasonably be expected to have a Celladon CGI Material Adverse Effect. The consummation As to CGI, as of the Contemplated Transactions shall date of this Agreement, each CGI Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. CGI has not (either alone received any written notice of termination or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Celladon or the Surviving Corporation to any Person cancellation under any Celladon CGI Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Celladon Disclosure Schedule identifies:
(a) each Celladon Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(b) each Celladon Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Celladon on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Celladon’s ability to terminate employees at will;
(c) each Celladon Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any Section 4.13 of the benefits of which will be increasedInsight Disclosure Schedule identifies each Insight Contract, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Celladon Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business other than indemnification agreements between Celladon and any Insight Employee Plan, that is in effect as of its officers or directors;
(e) each Celladon Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of Celladon or the Surviving Corporation to engage in any line of business or compete with any Person;
(f) each Celladon Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement and is:
(i) a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act;
(ii) a Contract to which Insight is a party or by which any of its assets and properties is currently bound, which, pursuant to the express terms thereof, require annual obligations of payment by, or annual payments to, Insight in excess of $100,000 and not cancelable without penalty500,000;
(giii) each Celladon a Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(hiv) a Contract with any current Insight Associate (A) requiring payments by Insight in excess of $150,000 in annual base compensation or (B) that is not terminable by Insight or its Subsidiaries on thirty (30) calendar days’ or less notice without payment of severance, termination payment or other liability, except to the extent general principles of wrongful termination Law may limit Insight’s, its Subsidiaries or such successor’s ability to terminate employees at will;
(v) an Insight Real Estate Lease or a Contract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Insight Disclosure Schedule;
(vi) a Contract providing for severance, termination compensation, retention or stay pay, change in control payments or transaction-based bonuses;
(vii) a Labor Agreement;
(viii) a Contract containing (A) any covenant limiting the freedom of Insight, its Affiliates or the Second Surviving Company to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Insight’s products or services, (B) any most-favored pricing arrangement, (C) any exclusivity provision, (D) any non-solicitation provision, or (E) any grant of any option to any Intellectual Property, in each Celladon case to the benefit of the counterparty thereto;
(ix) a Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Insight or its Affiliates in connection with the Contemplated Transactions;
(x) a Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 50,000 or creating any material Encumbrances with respect to any assets of Celladon Insight or any of its Subsidiaries or any loans or debt obligations with officers or directors of CelladonInsight;
(ixi) each Celladon a Contract relating to the following if currently in force capital expenditures and if the obligations of Celladon under such Celladon Contract after the date of this Agreement are in excess of $50,000 in the aggregate (except that no dollar threshold shall apply to any Celladon Contract that, to the Knowledge of Celladon, includes most favored pricing arrangements, exclusivity provisions, non-competition, non-solicitation or other similar limitations which could adversely affect or apply to the conduct of current clinical development programs or other operations of Eiger following the Closing (except the business of Celladon as conducted prior to the date hereof)): (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Celladon; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Celladon has continuing obligations to develop or market any product, technology or service, requiring payments by Insight or any agreement pursuant to which Celladon has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Celladon; or (iv) any Contract to license any third party to manufacture or produce any product, service or technology of Celladon or any Contract to sell, distribute or commercialize any products or service of Celladon, except agreements in the Ordinary Course of Business;
(j) each Celladon Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Celladon in connection with the Contemplated Transactions; or
(k) any other agreement, contract or commitment which is not terminable at will (with no penalty or payment) by Celladon and (i) which involves payment or receipt by Celladon after the date of this Agreement under any such agreement, contract or commitment of more than $50,000 in the aggregate, or obligations its Subsidiaries after the date of this Agreement in excess of $50,000 pursuant to its express terms and not cancellable without financial penalty;
(xii) a Contract under which a third party would be entitled to receive a license or have any other rights in Intellectual Property of the aggregateCompany, Insight or any of their Affiliates at the time of or immediately after the First Effective Time; or
(iixiii) that is material a Contract which would give rise to the business or operations otherwise result in proxy statement disclosure pursuant to Item 404 of Celladon. Celladon Regulation S-K.
(b) Insight has delivered or made available to Eiger the Company accurate and complete (except for applicable redactions thereto) copies of all Celladon Material Contracts, including all amendments thereto. There are no Celladon Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Celladon Disclosure Schedule, neither Celladon nor, to the Knowledge of Celladon, as of the date of this Agreement, any other party to a Celladon Material Contract (as defined below) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Celladon Insight is a party or by which it is bound of the type described in clauses (ai)-(xiii) through (k) above of the immediately preceding sentence (any such agreement, contract or commitmentContract, a “Celladon Insight Material Contract”) ), including all amendments thereto. There are no Insight Material Contracts that are not in written form. Insight has not nor, to Insight’s Knowledge as of the date of this Agreement, has any other party to an Insight Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Insight Material Contract in such manner as would permit any other party to cancel or terminate any such Insight Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Celladon an Insight Material Adverse Effect. The consummation As to Insight, as of the Contemplated Transactions shall not (either alone date of this Agreement, each Insight Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating or upon has a right pursuant to the occurrence terms of additional acts or events) result in any Insight Material Contract to change, any material payment amount paid or payments becoming due from Celladon or the Surviving Corporation payable to any Person Insight under any Celladon Insight Material Contract or any other material term or provision of any Insight Material Contract.
Appears in 1 contract