This excerpt taken from the CLRT 10-Q filed May 9, 2007.
(b) For all purposes hereof:
affiliate of any party means any person or entity controlling, controlled by or under common control with such party.
Ancillary Agreement means the License Agreement, the Transition Services Agreement and the Sublease.
business day shall refer to a day, other than a Saturday or a Sunday, on which commercial banks are not required or authorized to close in California.
Business means Sellers business of developing, manufacturing, and selling telepathology, virtual microscopy and/or automated imaging instruments (including Sellers ACIS® systems).
Business Material Adverse Effect means any change, event, effect or condition that, individually or together with any other change, event, effect or condition, results in a material adverse
effect on the (i) assets, liabilities, properties, business, prospects, financial condition or operations of the Business or (ii) ability of Seller to consummate timely the Acquisition. For purposes of this Agreement, Business Material Adverse Effect shall exclude any effects to the extent caused by (A) changes in the United States or foreign economies in general and not impacting the Business in any manner materially disproportionate to other businesses similar situated, or (B) the execution or announcement of this Agreement (including the identity of Purchaser) or any of the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby.
Dako means Dako A/S.
Dako Agreement means the Amended and Restated Distribution and Development Agreement dated March 5, 2007 between Seller and Dako Denmark A/S.
Effective Date means March 1, 2007.
including means including, without limitation.
knowledge of Seller means the actual knowledge of any of Ronald Andrews, James Agnello, Jose de la Torre-Bueno, Karen Yamamoto or Jack Zeinah.
License Agreement means the License Agreement in the form attached hereto as Exhibit 13.05(b)(1) pursuant to which Purchaser will license to Seller certain intellectual property of Purchaser acquired by it pursuant to this Agreement.
Med One Agreement means, collectively, (i) the Assignment Agreement and Bill of Sale, dated as of March 1, 2006, by and between Seller and Med One Capital, Inc., and (ii) the Assignment Agreement and Bill of Sale, dated as of August 31, 2006, by and between Seller and Med One Capital, Inc.
person means any individual, firm, corporation, partnership, limited liability company, trust, estate, joint venture, Governmental Entity, association, organization or other entity.
Seller Parties Transferred Inventory means the Transferred Inventory as well as any raw materials, work-in-process, finished goods, supplies, parts and other inventories owned by CLRT.
Seller Party means either Seller or CLRT, and Seller Parties means Seller and CLRT collectively.
Sublease means the sublease substantially in the form attached hereto as Exhibit 13.05(b)(2).
subsidiary of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body, or, if there are no such voting interests, 50% or more of the equity interests of which is owned directly or indirectly by such first person or by another subsidiary of such first person.
Transition Services Agreement means the transition services agreement substantially in the form attached hereto as Exhibit 13.05(b)(3).
Trestle Holdings means Trestle Holdings Inc., a Delaware corporation.
SECTION 13.06. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered, in person or by telecopier, receipt acknowledged, to the other parties hereto.
SECTION 13.07. Integrated Contract; Exhibits and Schedules. This Agreement, including the Schedules (and the Introduction thereto) and Exhibits hereto, any written amendments to the foregoing satisfying the requirements of Section 13.13 hereof, the Confidentiality Agreement and the Ancillary Agreements, including the schedules and exhibits thereto, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede any previous agreements and understandings between the parties with respect to such matters. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. There are no restrictions, promises, representations, warranties, agreements or undertakings of any party hereto with respect to the transactions contemplated by this Agreement, the Confidentiality Agreement or the Ancillary Agreements other than those set forth herein or therein or in any other document required to be executed and delivered hereunder or thereunder. In the event of any conflict between the provisions of this Agreement (including the Schedules (and the Introduction thereto) and Exhibits hereto), on the one hand, and the provisions of the Confidentiality Agreement or the Ancillary Agreements (including the schedules and exhibits thereto), on the other hand, the provisions of this Agreement shall control.
SECTION 13.08. Severability; Enforcement. The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party hereto agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by law, and each party hereto hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
SECTION 13.09. Governing Law. This Agreement and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed and construed in accordance with the laws of the State of New York, without reference to its conflicts of law principles.
SECTION 13.10. Jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding against them arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the United States District Court for the Southern District of New York, or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York, New York and hereby irrevocably accepts and submits to the exclusive jurisdiction and venue of the aforesaid courts in personam, with respect to any such action, suit or proceeding.
SECTION 13.11. Service of Process. Each of the parties agrees that service of any process, summons, notice or document by U.S. registered mail to such partys respective address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters for which it has submitted to jurisdiction pursuant to Section 13.10.
SECTION 13.12. Waiver of Jury Trial. Each party hereto hereby waives to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions
contemplated hereby or disputes relating hereto. Each party hereto (a) certifies that no representative, agent or attorney of any other party hereto has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 13.12.
SECTION 13.13. Amendments. This Agreement may be amended, modified, superseded or canceled and any of the terms, covenants, representations, warranties or conditions hereof may be waived only by an instrument in writing signed by Purchaser and Seller or, in the case of a waiver, by or on behalf of the party waiving compliance.